New Sentencing Guidelines Spell Bigger Fines for Serious Environmental Offences

The Sentencing Council issued new sentencing guidelines for environmental offences in February 2014 following a public consultation. They come into force on 1 July 2014.

The new guidelines cover activities such as fly tipping, waste handling and others. The offences are primarily regulated by the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010.

The Sentencing Council is an independent, non-departmental public body of the Ministry of Justice which issues guidelines to the courts that must generally be followed unless it is in the interests of justice not to do so.

This is the first time that the Sentencing Council has produced guidelines for environmental offences and it entails significant changes, particularly in the most serious cases.

How Will Organisations Committing Environmental Offences be Sentenced?

The new sentencing guidelines have established a two tier system to deal with offences committed by organisations and offences committed by individuals. In both cases there is a 12 step process for determining the appropriate sentence.

Organisations such as businesses will be sentenced on the basis of 3 main elements within the 12 step process:

· Determined by the offence category – this will consider both culpability and harm:

- Culpability: whether deliberate, reckless or negligent; to little or no fault.

- Harm: from Category 1 with the most serious forms of harm to Category 4 with a mere risk of Category 3 harm.

· Determined by the starting point and category range for the potential fine. This is set out in tables within the guidelines.

· Determined by the size of the organisation by turnover from micro £2m, to small between £2m and £10m, to medium between £10m and £50m, to large over £50m and very large beyond that.

It should be noted at this point that making the size of the fine relative to the size of the business is a new approach for this type of sentencing. However, the guidelines do attempt to maintain a degree of flexibility to manage potential issues such as complex corporate structures; for example, they include a check at step 6 that a fine based on turnover is proportionate to the means of the offender. Aggravating and mitigating features can also be taken into account.

Comment

Under the new guidelines a medium sized business negligently committing a category 1 offence would face a starting point for a fine of £120,000 with a range of £55,000 to £300,000. This is considerably higher than a comparable company has faced in court for a similar offence up to now.

Companies will need to be increasingly vigilant about their environmental responsibilities in light of the higher financial penalties. For specialist advice contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.