First Scottish company hit with confiscation order for environmental crime

David Cochrane Ltd was given a £41,131 confiscation order and fined £53,000 for illegally keeping regulated waste on the site and for failing to comply with an order by the Scottish Environmental Protection Agency (SEPA) to remove it.

Environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com, said that the order was a "step change" for environmental enforcement in Scotland.

"We know from defending POCA orders in environmental prosecutions in England and Wales that the amounts sought by orders can easily outstrip the fines themselves, and all via a procedure that can seem draconian when applied to strict liability environmental offences," he said.

"It's not just drug dealers' Porsches that can be caught by POCA orders. SEPA and the Procurator Fiscal will use this procedure to recover the revenue and potentially personal assets of business persons that they claim has originated out of environmental non-compliance," he said.

POCA allows prosecutors to deprive a person or business of the financial benefit that it has gained as a result of criminal conduct.

According to SEPA, David Cochrane Ltd had ignored the "numerous attempts" it had made to ensure it complied with regulatory requirements under the Environmental Protection Act over a period of several years. The regulator served a notice on the company in November 2011 requiring it to remove controlled waste, including scrap metal, tyres and batteries, from the site by the end of June 2012. Although a "large quantity" of waste was removed, the site was not finally cleared until the end of October 2012.

"David Cochrane Ltd had a significant amount of time in which to comply with the legislative requirements and had several options as to how this could be achieved," said Karen Ellis, SEPA's investigating officer. "SEPA has tried to work with them for many years, the deadline for compliance with the notice was agreed and yet the requirements were still not met.

"Continuing to carry on the scrap metal activities at the site in contravention of the legal requirements has the potential to put the ground and surface water at risk. We want to make it very clear that SEPA will work with individuals and companies to ensure that they understand their environmental responsibilities and understand what they need to do to operate their business legally. However, where the law is routinely broken or ignored we will not shy away from taking appropriate enforcement action, including reporting cases to the Procurator Fiscal," she said.

Gordon McCreath said that it was interesting to see specialist environmental prosecutors taking their own steps to prevent environmental offenders from profiting from their crimes, even as legislation giving SEPA significantly greater enforcement powers was making its way through the Scottish Parliament.

"The overall message is clear: environmental non-compliance in Scotland will result in ever more serious consequences, so businesses need to take steps to avoid those non-compliances and have procedures in place to protect their position in the event that they occur," he said.