Environmental Sentencing Guidelines: Consistently Packing A Punch

Written by freethslocalgovernment on February 16, 2017

Prosecution for an environmental offence can have serious consequences for any business organisation or individual, not only in terms of criminal sanction (as seen below) but also damage to the organisation’s/individual’s reputation and their future relationship with environmental regulators.

Since 1 July 2014, the courts have applied tough sentencing guidelines which were introduced with the aim of achieving greater consistency between courts in the imposition of sanctions.

Recent prosecutions in the last 12 months have resulted in the following sentences:

  • A waste operator sentenced to prison for a record 7½ years
  • An individual sentenced to 8 months in prison, suspended for 18 months with a 5 month electronic curfew between the hours of 7pm and 7am and an order to pay £1,500 in costs.
  • A Company and a Director were sentenced.  The Company was fined £20,000.  The Director was disqualified from acting as a Company Director for 5 years and ordered to pay £35,000 compensation to the landowner and carry out 250 hours of unpaid work.
  • An operator was given a 4 month custodial sentence suspended for 1 year and ordered to pay over £7,600 in costs and a remediation order was made.
  • A Company, a Director and another individual were sentenced.  The Company were fined a total of £50,000 and ordered to pay costs of £18,648. The Director was ordered to pay fines of £8,000 and costs of £18,648. The individual was fined £45,000 and ordered to pay costs of £30,789.
  • A company, a Director and another individual were sentenced.  The company will be sentenced after confiscation proceedings are concluded early this year.  The Director was given three 12 month prison sentences to run concurrently, suspended for two years.  The individual has been ordered to pay over £54,000 in fines and costs.
  • A waste company has been ordered to pay fines in the region of £1 million and costs of £243,955.35

In establishing consistency the Sentencing Guidelines provide “starting points” for the calculation of fines based on the degree of culpability of the defendant (i.e. whether the offence was committed deliberately, recklessly, negligently or whether there was low or no culpability), the extent of harm caused by the offence and for organisations, the size of the offending organisation.

Once the court has arrived at a starting point, and an appropriate range for a fine, the courts may then reduce or increase the fine with reference to various aggravating and mitigating features.

In November 2016, the Sentencing Council published a report on the impact of the sentencing guidelines on the levels of fines imposed by the courts. As expected, data collected by the Environment Agency shows that fines imposed have increased since the guidelines came into force.

The majority of cases sentenced in 2015 (67%) were for contravening environmental permitting requirements.

The most common aggravating factor cited (noted in 43% of cases) was “offending over an extended period of time (or repeated incidents)”.  Just under a third of cases (32%) cited “history of non-compliance” and a further 25% mentioned “offence committed for financial gain”.

“Evidence of steps taken to remedy problem” was the most prevalent mitigating factor, cited in 48% of cases, followed by “self-reporting, co-operation and acceptance of responsibility” (41%).

Across the board it appears that not only have the guidelines brought consistency in sentencing but also heavier sanctions both in fines, costs and other orders. In addition there appears to be an increased understanding by the courts of the gravity of the issues caused by environment offences, the impact it has on the environment and the impact on the resources of the organisations tasked with the clear up, regulation and enforcement.

Naturally, the best approach is to avoid an offence in the first place. However, the message is clear: when an offence is committed, the courts will expect to see a swift and positive response from the offender; ignoring a breach, or allowing it to continue, will only lead to greater sanction.

 

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EU General Data Protection Regulation – All Change!

Written by freethslocalgovernment on February 3, 2017

As many of you will be aware, the new EU General Data Protection Regulation (“GDPR”) comes into effect in May 2018.  Notwithstanding Brexit, the government have made it clear that this regulation will be required to be complied with within the UK.

The GDPR places new legal obligations on organisations to maintain detailed records of personal data and processing activities and enhances the role of designated individuals responsible for data management within corporate bodies. It also gives or codifies a range of rights to data subjects such as the “right to access”, the “right of erasure” and the “right to rectify” data held concerning them.

Non-compliances can lead to substantial penalties to be imposed, based on a proportion of an organisation’s turnover.

We are planning produce training materials on the GDPR iand offer an “assurance check” to clients who would like a second opinion on the compliance status of their policies and procedures – details of which will be made available in due course. If you would be interested in this please let us know.…

LGPS Employer Discretions Policy – Are you compliant?

Written by freethslocalgovernment on September 16, 2016

 

All employers who participate in the Local Government Pension Scheme are required to formulate a discretions policy in accordance with LGPS Regulations. Discretions come at a cost. An employer must be satisfied that the policy is workable, affordable and reasonable having regard to foreseeable costs.

Understand your policy, understand the strategy you wish to adopt and seek legal advice..read more

Freeths’ Pensions Law Team has vast amount of experience in drafting such employer discretion policies. If you would like to discuss this further, please contact either Parminder Latimer parminder.latimer@freeths.co.uk or Anne Taylor anne.taylor@freeths.co.uk for advice.

Parminder Latimer H&S 1 small

 

 

 

 

Parminder Latimer
Partner & National Head of Pensions
0845 073 8559
parminder.latimer@freeths.co.uk

Anne Taylor 2016 H&S small (6)

 

 

 

 

 

Anne Taylor
Director
0845 128 6995
anne.taylor@freeths.co.uk

 

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Judicial review – which decision is the one I am being challenged upon or should challenge?

Written by freethslocalgovernment on August 23, 2016

 

In theory a simple, but not always easy, question to answer.   The decision in R (on the application of the London Borough of Southwark) -v- London Fire and Emergency Planning Authority [2016] EWHC 1701 (Admin) sheds a little more light on the topic.

The background was that in 2009 there was a fire at a block of Council flats in Southwark, leading to the death of six residents and the injury of others.  There followed a thorough investigation and inquest, the possible outcome of which was that the Council might face prosecution by the London Fire and Emergency Planning Authority (“Fire Authority”).  The Council argued that the bringing of any prosecution against the Council should not be considered by the Fire Authority, but instead passed to the Health and Safety Executive.  This was because the Fire Authority had a conflict of interests by virtue of a number of factors: its fire brigade had attended the fire; were criticised over their handling of the fire; and had provided training to Southwark Council’s officers on the carrying out fire risk assessments for Council housing blocks in the Borough.   The Council argued that the conflict would render any decision by the Fire Authority to prosecute tainted with bias.

The Fire Authority denied that in deciding whether to prosecute the Council it had a conflict of interests.  It wrote to the Council along those lines on 10 July 2015.  In then later made a decision not to alter its earlier decision.  The Council argued that this gave rise to two decisions that the Court had to consider, namely, the decision of 10 July 2015 and the later decision not to alter its earlier decision.  The Court rejected the Council’s argument and concluded that …”there is but one decision that requires to be assessed.  Thus, the original decision continues to operate until it is brought into effect or reversed.  In the absence of new facts which might justify a change of approach, a second decision is not made simply as a consequence of a refusal to change the first one.  Were it otherwise, the time limit for judicial review of any decision could be restarted following a refusal request to change it ”.

Incidentally, as to whether there was a conflict of interests, the Court found in favour of the Fire Authority holding that there was neither bias nor the appearance of bias in deciding whether not to prosecute the Council.

Nathan Holden H&S small (3)

 

 

 

 

Nathan Holden
Partner and Head of Local Government
nathan.holden@freeths.co.uk
+44(0)845 077 9646

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Brexit – Implications for the public sector

Written by freethslocalgovernment on June 24, 2016

 

We now know the outcome of the Brexit poll.

The long-term implications of the government leaving the EU, and timings, are still up in the air as we write this note. We are aware that a number of clients will have queries concerning the status of the EU Public Procurement Regime, State Aid Rules and the status of applications for funding supported by European Regional Development monies.

As soon as the timetable and implications of changes within these regimes become clear, we will be informing clients, but would be pleased to offer short-term guidance in terms of urgent issues such as ongoing applications for EU-funded financial support.

Stephen Pearson H&S small

 

 

 

 

Stephen Pearson
Partner 
stephen.pearson@freeths.co.uk
+44(0)845 274 6900

Nathan Holden H&S small

 

 

 

 

Nathan Holden
Partner and Head of Local Government
nathan.holden@freeths.co.uk
+44(0)845 077 9646

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Amelia – coming to where you are soon!

Written by freethslocalgovernment on May 3, 2016

The stuff of science fiction is about to become science fact.  We are on the cusp of a technological tipping point.  Artificial Intelligence (AI) is just around the corner and the most likely early adopters will be local authorities.  One London local authority is currently piloting Amelia (click here), a desktop (computer) generated avatar that will act as your first point of contact providing answers to questions about council services.  The benefit of Amelia over her human equivalent is that she carries in her virtual head all of the up-to-date information about the organisation and what really makes the difference is that unlike existing on-line systems she (assuming it is possible to have a gender as an on-line avatar) is designed to respond to questions posed in natural speech or words, so that she mimics human responses.  The really clever thing though is that Amelia not only understands the questioner’s intent but if Amelia cannot answer a question when it is referred to a human operator Amelia has the capacity to learn from that interaction so that she can answer the question next time its asked.

For those worried about AI taking over the world, including Stephen Hawkins, and who wouldn’t be, there are plenty of fictional examples of what happens when you let the machines run amok – Terminator and going further back Stanley Kubrick’s HAL 9000 from 2001: A Space Odyssey, the designers say that Amelia is only capable of learning something she is taught by a human operator and is not capable of learning on her own……..let’s hope they’re right!

In terms of more practical issues, reminding myself that this is supposed to be a legal article, what happens if Amelia gets it wrong – who is to blame: the person that licences the software or the programmers?

In terms of where this is headed, it seems the days of conventional call centres may be numbered.  In the way that manufacturing has become increasingly dominated by the use of robots, AI will dominate banking, finance and possibly even the delivery of health care.

Even where Amelia is not deployed on the front line, there is clearly a role for her now in providing support to professionals as a font of up-to-date knowledge and expertise, a sort of very sophisticated internet browser.  However, it would be naive to think it will stop there.  Amelia potentially sounds the death knell for the privilege of expertise and presents a threat to the professions everywhere… may be the Luddites were right after all!

Nathan Holden H&S small

Nathan Holden
Partner
nathan.holden@freeths.co.uk
+44(0)845 077 9646
Head of Local Government

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Public Procurement: bidders supported by other entities

Written by freethslocalgovernment on January 22, 2016

 

Can a contracting authority require a bidder that wants to rely on another entity’s expertise in making its bid enter into a contract with that other entity? 

It is not unusual for smaller bidders that do not possess all the requisite skills and experience to perform a contract, to seek to rely on another entity to fill the gap or bolster their bid so as to improve their chances.

This creates a tension, on the one hand it is healthy in a competitive market, especially one that wants to encourage small and medium-sized enterprises to bid for public contracts, to make the process easier for these smaller operators to bid by allowing them to join up with other entities so that they can compete with the bigger players in the market; on the other hand, from a contracting authority’s perspective, it needs to be confident that there is strong relationships between the bidder and the other entity, to give confidence that the bidder will deliver on the promises it makes if it is awarded the contract.  Public procurement is a tortuous and slow process and the last thing that a contracting authority wants is to award the contract to a bidder that lets them down.

This issue was considered in a recent decision of the European Court of Justice (ECJ) involving a Latvian local authority.  Under the terms of the procurement process, and quite reasonably you might think, the local authority required that a bidder, who wanted to rely on another entity in performing the contract, enter into a binding contract, or form a partnership, with that other entity before the contract could be awarded.

The Public Contracts Directive (2014/18) provides, in the context of “technical and/or professional ability”, a bidder may rely on another entity as part of its bid if the bidder can prove that they will have at their disposal the entity’s resources by, for example, producing an undertaking from that entity.

The Public Contracts Regulations 2015, in transposing the Directive, uses slightly different language, i.e. refers to a “commitment” rather than an “undertaking” but is broadly the same.

The ECJ held that the key issue is evidence and there can be no prescribed form that evidence may take.  By specifically providing that the bidder must either contract or form a partnership with the other entity the contracting authority had gone too far and beyond the scope of the Directive.  Had it simply identified a contract or partnership as a means of demonstrating a strong connection between the bidder and the other entity, leaving open the possibility of other means of proof or evidence being provided, then presumably that would have been okay.

This is a helpful steer from the ECJ on the correct interpretation of the law although, from a contracting authority’s perspective, they would no doubt prefer to be able to prescribe the legal form that any cooperation between a bidder and another entity takes.

A copy of the ECJ’s judgment can be viewed here .…

THE NEW CONCESSION CONTRACTS REGIME

Written by freethslocalgovernment on January 15, 2016

 

The new Concession Contracts Regulations are due to come into force in April this year.  The new Regulation will apply to all concession contracts with a value (measured by turnover) of more than € 5,225,000 (£4,104,394).  Concession contracts typically involve the granting by one party to another of a right for a fixed period to exploit for commercial purposes works or the provision of a service.  For example, in the local government context, the right to run and operate a car park in return for retaining the income generated. 

The draft Regulations were consulted upon in August/September 2015 and the Government has yet to publish the outcome of that process.  The approach taken in drafting the Regulations was to follow the lead taken in the context of the Public Contracts Regulation 2015, that is, is to follow the drafting of the parent Directive as closely as possible.  On this basis it seems likely that the draft Regulations will largely remain as drafted between now and when they come into force.

An area that was not addressed by the draft Regulations, is what will happen with respect to procurement processes that have already started at the time the new Regulations come into force – see Part 7.  The drafting of that section of the drafting has yet to be completed.

If you are interested in how the Regulations will apply in practice please click here for our flow diagram and other helpful standard documents.…

Public v Private law capacity – how do you decide which category a Council falls into?

Written by freethslocalgovernment on January 11, 2016

 

A key question that often arises at the permission stage of judicial review challenges is whether the decision challenged is a public law decision and therefore amenable to judicial review or a private law decision and not.  At the heart of the problem is that it is possible to act in both capacities at the same time.

Is it always the case that just because the decision-making body is a public body its actions should be governed by public law principles?

Judicial opinion is divided on the point, for example, in the context of land disposals, one approach takes the view that these decisions are solely governed by private law unless a public law element is involved.  The other, that all decisions made by public bodies are, by definition, public law in nature and therefore potentially amenable to judicial review unless the challenger seeks to rely on public law principles solely for the purposes of undermining a public body’s private law rights.  As  Elias J put it in R (Molinaro) v RB of Kensington & Chelsea [2001] EWHC Admin 896,

“ If the allegation is of abuse of power the courts should, in general, hear the complaint. Public law bodies should not be free to abuse their power by invoking the principle that private individuals can act unfairly or abusively without legal redress. But sometimes the application of public law principles will cut across the private law relationship and, in these circumstances, the court may hold that the public law complaint cannot be advanced because it would undermine the applicable private law principles.”

It is interesting to note how the same principle comes up in different contexts, for example in the recent case of Dudley Muslim Association v Dudley MBC (2105) ECWA Civ 1123.

The facts of the case did not involve a disposal of land, but rather whether the Dudley Muslim Association could rely on legitimate expectation, a public law principle, as a defence to the Council’s right to require the Muslim Association to transfer the land back to it under the terms of a property agreement if it did not secure planning permission.

The Court of Appeal found in favour of the Council for a number of reasons, including the argument that this was a private law matter and not susceptible to judicial review.  Lewison LJ, in support of this approach, referred favourably to Lord Neuberger in Hampshire County Council v Supportway Community Services Limited [2006] EWCA Civ 1035, para 43,

“….it appears to me that it would be wrong in principle for a person who would otherwise be limited to a private law claim to be entitled to base his claim in public law merely because private law does not afford him a sufficiently attractive remedy.  It is one thing to say that, because a contracting authority is a public body, its actions are, in principle, susceptible to judicial review.  It is quite another to say that, because a contracting party is a public body , the types of relief which may be available against it under a contract should include public law remedies, even where the basis of claim is purely contractual in nature

Conclusion

Where a public law challenge is aimed at narrowing a public law body’s private law rights the Courts will not be quick to support the challenge.  However, where a public body has acted outside the scope of its powers or the decision it has taken has public law characteristics then the Courts are more likely to find that the decision is amenable to judicial review.…

The Danger of Deferred Payment Agreements: North East Lincolnshire Council fails to reassess resident’s assets

Written by freethslocalgovernment on October 8, 2015

 

Under the new Care Act 2014, councils have a duty to assess an individual’s assets. This is in order to establish whether a resident ought to be receiving contributions towards his or her residential care costs.

When North East Lincolnshire Council offered to defer the payment of a resident’s care fees until the sale of her property, it became apparent after her passing that she ought to have been receiving contributions towards the costs of her care fees and should have claimed Attendance Allowance from DWP.

The LGO has published a report recommending that all current residents with deferred payment agreements ought to be reviewed by local authorities so as to ensure that the residents are not disadvantaged. The LGO also advises that, when these assessments take place, it is good practice for councils to alert other organisations such as the DWP, when it appears as though the resident may be entitled to additional benefits. 

The full investigation report by the LGO is available for further reading via the following link:

http://www.lgo.org.uk/downloads/CO%20Adult%20social%20care/2015-2016/2204-14-009-105-North-East-Lincs-Council-7.08.2015.pdf