Tough sanctions for environmental offences

Prosecution for an environmental offence can have serious consequences for any business, not only in terms of criminal sanction (typically, a fine, but in the most serious of cases, imprisonment of company officers) but also damage to the organisation’s reputation and its future relationship with environmental regulators.

Food manufacturing and processing businesses could be at particular risk where waste is discharged (or accidentally leaks). The costs of environmental crime relating to the land are high, particularly as a result of tough sentencing guidelines introduced in 2014 which aimed to achieve greater consistency between courts in the imposition of sanctions.

The cost of getting it wrong

Recent prosecutions have resulted in the following sentences:

• A businessman was sentenced to 6 months in prison, suspended for 18 months, and was ordered to pay £5,000 in costs after his poor environmental practices caused a waste fire which became a major incident for emergency crews.
• A land owner and operator were fined £1.1million for illegally discharging waste into a river, caused by a system failure.
• A landowner was fined over £19,000 for polluting a watercourse due to pollution from poor storage tanks. An argument based on insufficient funds to rectify the problem was rejected.
• A company director was disqualified from acting as a company director for 5 years, ordered to pay £35,000 compensation to the landowner and carry out 250 hours of unpaid work for failure to observe environmental permitting laws.
• A company was fined £497,284 and ordered to pay costs of £40,000 for two pollution offences one caused by a storage tank failure and one caused by a technical fault, both being breaches of permits.
• A company was fined £1 million and ordered to pay costs of £243,955.35 for historic offences relating to waste stored and deposited on the land.
• A company was fined £380,000 and ordered to pay costs of £23,092.64 for polluting a stream due to poor site management and breaches of environmental permits.

The Sentencing Guidelines provide starting points for the calculation of fines, based on the degree of culpability of the defendant, (in other words whether the offence was committed deliberately, recklessly, negligently or whether there was low or no culpability) and the extent of harm caused by the offence. They also relate to 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. Common aggravating factors cited were:

• Offending over an extended period of time, or repeated incidents (in 43% of cases)
• History of non-compliance (32%)
• Offence committed for financial gain (25%)

Common mitigating factors were:

• Evidence of steps taken to remedy problem (cited in 48% of cases)
• Self-reporting, co-operation and acceptance of responsibility (41%).

Impact on environmental offences

Whilst the guidelines have brought consistency in sentencing but also heavier sanctions both in fines, costs and other orders. There also seems to be an increased understanding by the courts of the gravity of the issues caused by environmental 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.

Practical steps

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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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.