Will the polluter finally pay the price?

Notwithstanding the government’s continuing efforts to deregulate business and society, there remains a range of environmental enforcement provisions available to public regulators such as the Environment Agency, Natural Resources Wales and local authorities.

For instance, the formal enforcement options open to the Environment Agency have broadened in recent years to the point where there at least
12 measures that could be used to prevent and regulate pollution, for example issuing a warning, enforcement and prohibition notices, adopting civil sanctions (including fixed penalty notices), issuing a formal caution and the prosecution of offences through the court.

Ineffective sentencing

Prosecution tends to deal with the more
serious pollution incidents and environmental harm that has attracted attention over a number of years and, in particular, the concern that sentences for environmental crime have been too low. This has resulted in some offenders often being prepared to risk paying a fine rather than comply with legislation and the allegation of others that such pollution incidents are not real crimes.
A frequent example of this is the persistent problem of fly-tipping and waste disposal, the latter when organisations have no option but to commit offences.

The concerns about low and ineffective sentences has not been helped by a number of Court of Appeal decisions overturning what appeared to be robust sentences that were committed to the rationale of the ‘polluters pay’ principle.

R v Anglian Water Services Ltd [2003] EWCA Crim 2243 saw the defendant plead guilty to causing sewage effluent to be discharged into a watercourse. The Crown Court fined the defendant £200,000 plus costs of £9,579.58. The Court of Appeal reduced this to £60,000.

In R v Cemex Ltd [2007] EWCA Crim 1759, the defendant pleaded guilty to a failure to comply with an environmental permit condition, which allowed dust to escape from its premises, and was fined £400,000. The Court of Appeal held the fine imposed was disproportionate and reduced this to £50,000.

For at least ten years there have been repeated efforts to address the problem. In 2003, the guidance for sentencers ‘Costing the Earth’ was published. Soon after, the Clean Neighbourhoods and Environment Act 2005 increased the exceptional statutory maxima for a number of key environmental offences.

However, and despite the best efforts of prosecutors and sentencing courts, there has
been continuing concern that the levels of fines
are still not high enough, they do not reflect the seriousness of the offence committed and do not have a sufficient deterrent effect. There was also concern about the inconsistency in the levels for similar offences across the country. This prompted the Sentencing Council, the independent body responsible for developing sentencing guidelines, to provide further guidance.

Two key offences

Following a period of consultation, the Environmental Offences Definitive Guideline came into effect on 1 July 2014. The guideline provides a 12-step approach to sentencing for two key offences: the unauthorised or harmful deposit, treatment or disposal of waste under section 33 of the Environmental Protection Act 1990 (EPA 1990) and illegal discharges to air, land and water, contrary to regulations 12 and 38 of the Environmental Permitting (England and Wales) Regulations 2010.

It makes a distinction between individuals and organisations with a much greater range of sentencing options for individuals such as prison and community orders.

The guideline is based on four categories of environmental harm ranging from category one, which includes factors, such as the pollution was noxious or had a major adverse effect, to category four, which says there was a risk of (rather than actual) minor, localised adverse effect. 

The use of categories to reflect seriousness of effect follows the pattern of other recent Sentencing Council guidelines such as fraud, bribery and money laundering, which has five categories, and burglary, which has three. 

The guideline says at the outset the court must consider making either a compensation order (step one) or a confiscation order (step two). The guideline then notes the court should determine the offence category using only the culpability and harm factors provided in step three. The culpability factors include: 

• deliberate (intentional or flagrant breach);

• reckless (actual foresight or wilful blindness to the offence;

• negligent (failure to take reasonable care); and

• low or no culpability.

Once the category and culpability have been applied the court must then apply a sentence. Step four for companies provides different bands according to the size of the organisation’s finances, ranging from large (over £50m annual turnover) to micro (less than £2m). Personal finances are relevant to sentencing individuals but in a less prescriptive manner. Beyond this, steps five to 12 require the court to ‘step back’ from the sentence and consider other factors such as ancillary orders including, for example, remediation or a reduction in sentence for a guilty plea.

The guideline appears to address the problem of lower sentencing. Applying the guideline to, say, the facts in Anglian Water which involved significant raw sewage discharges, fish kill and ecological harm to the watercourse, a sentence is likely to be closer to the Crown Court’s £200,000 fine rather than the £60,000 allowed on appeal. The guideline is now applied.

In R v Thames Water (unreported) (2 September 2014) the defendant was fined £250,000 and ordered to pay costs of £6,887 for polluting the Chase Brook in Newbury, which flows through a 143-acre nature reserve within the North Wessex Downs Area of Outstanding Natural Beauty. In sentencing, Mrs Recorder Arbuthnot said: “The parties agree that the level of culpability is negligence and with which I agree. With regards to harm I find this is a category three offence but at the severe end.”

Similarly, in R v Green (unreported) (8 September 2014) the defendant individual was prosecuted for operating an illegal landfill site in central Manchester. He was sentenced to eight months in prison, suspended for two years, ordered to undertake 200 hours community service, fined £3,000 and ordered to pay a £15 victim surcharge.

One of the difficulties facing sentencers in dealing with environmental offences was the variety of pollution problems and environmental harm. The concerns could range from air pollution to noise to wildlife offences. The guideline
seeks to address this by reference to other environmental offences beyond the two specific breaches analysed and assessed in detail. It notes that in sentencing other relevant and analogous environmental offences, the court should refer to the sentencing approach for section 33 and regulations 12 and 38, and then adjust the starting point and ranges, bearing in mind any statutory maximum sentence provided by the legislation. An indicative list of offences includes the breach of the duty of care in relation to waste disposal under section 34 of the EPA 1990 and a breach of a statutory nuisance abatement notice under section 80 of the EPA 1990.

The guideline may have finally got to the heart of the concern about inconsistent and low level environmental sentencing. Certainly lawyers advising defendants charged with the relevant offences will be aware of the likely hike in fines and sentencing that may well now ensue. It is quite possible that the polluter may start to pay the real price of environmental harm. SJ

Dr Paul Stookes is a solicitor advocate at Richard Buxton Environmental and Public Law.

He is also an associate lecturer at the Open University and an accredited mediator