Out-Law / Your Daily Need-To-Know

Out-Law News 2 min. read

New environmental sentencing guidelines could see "step change" in approach towards offences

The newly-published guidance on the sentencing of environmental crimes could result in a "step change" in the treatment of offenders, an environmental law expert has said.

Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, said that the Sentencing Council's draft would provide much-needed clarity if enacted in its current form. However, companies more at risk of committing environmental offences "due to the nature of their activities" would be "much more susceptible to the new system", he said.

The draft marks the first time that the Sentencing Council has produced guidelines for environmental offences, and is intended to establish a consistent approach in courts across England and Wales. Among the biggest changes is the prospect of larger fines for serious offenders, with fines of up to £2 million proposed for the most significant offences by the largest companies. The guidelines also encourage magistrates to make more use of the highest levels of fines available to them when making sentencing decisions on more serious offences.

The new guidelines cover a wide variety of offences governed by the Environmental Protection Act and the Environmental Permitting Regulations. These include fly-tipping of waste, by both companies and individuals, and situations where waste has not been handled or disposed of correctly. They will also apply to companies in breach of the waste permitting regime, and 'nuisance' offenders who cause noise, smells, dust or health or pollution risks.

According to the Sentencing Council, the new guidelines will likely lead to an increase in fines for corporate offenders, where they cause the most damage or risk to health. It does not expect fines to rise from current levels for less serious offenders; or that the guidelines will change the overall proportion of offenders receiving fines, community sentences, discharges and prison sentences.

"Offences like fly-tipping and illegal disposal of hazardous waste can cause significant damage to the environment and put people's health at risk," said Katharine Rainsford, a magistrate and member of the Sentencing Council.

"We're improving guidance for courts to help ensure consistent and appropriate sentences for offenders, particularly for corporate offenders who can be guilty of the worst offences. These offences are normally motivated by making or saving money at the expense of the taxpayer. Our proposals aim to ensure that sentences hit offenders in their pocket," she said.

Environmental law expert Simon Colvin said that the higher fines proposed in the guidelines were "a world away" from the levels of fine currently imposed on offenders.

"The pre-text for this fundamental shift is the currently limited availability of any guidance for the sentencing of environmental offences, the fact that the current levels of fines are seen as not being high enough, and also that there is too much inconsistency in fines for similar offences," he said. "The new tariff-based system that recommends starting points and ranges for different categories of offence is meant to combat the failings of the current system."

However, he said that there were arguments that the high starting points in the guidelines would give courts very little discretion when sentencing.

"An obvious alternative to this approach would be to allocate particular courts and judges to hear environmental cases to ensure consistency," he said. "Such an approach might also get round the suggestion that fines do not reflect the seriousness of offences. The establishment of the environmental tribunal which may soon be hearing environmental permit appeals shows what is possible with a bit of effort, but the fact that we have this draft Guideline suggests that moves for special hearings for criminal environmental cases are some way off."

"The new Guideline, in conjunction with the introduction of civil sanctions and the intended removal of any sentencing cap in the magistrates court, means that the future for the enforcement of environmental offences is going to be very different from what we have seen in the past," said Colvin. "Companies need to ensure they understand the new framework so they limit the impact of any enforcement action on their businesses."

He urged companies likely to be affected by the changes, such as those operating in the utilities sector, to respond to the consultation. The Sentencing Council is seeking views until 6 June 2013.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.