New Environmental sentencing guidelines published.
The Sentencing Council has recently release definitive guidance on the sentencing of environmental offences. It deals primarily with unauthorised or harmful deposit, treatment or disposal of waste and illegal discharges to air, land and water and also ‘other offences’ for companies and individuals.
The guidelines follow the usual format, defining the position within a category range, setting out the aggravating and mitigating factors, and then making adjustments in respect of fines and credit for pleas of guilty.
1. Organisations:
Unauthorised or harmful deposit, treatment or disposal of waste or Illegal discharges to air, land and water under section 33 of the Environmental Protection Act 1990 and the Environmental Permitting ( England and Wales) Regulations 2010 ( regulations 12 and 38(1) (2) and (3).
Triable either way. Maxium when tried on indictment: unlimited fine. When tried summarily £50k fine.
Offence range fine £100 – £3 million.
There are two determining factors; Cupability and Harm ( which also apply in the following guidelines).
Culpability: is divided into four categories, Deliberate cases of intentional breach or fragrant disregard for the law, Recklessness, Negligent failure to put in place proper systems and low/no culpability.
Harm also is divided into four categories, category 1 for major incidents where widespread costs are incurred, category 2 where there is a significant adverse effect or damage, category 3 for minor localised adverse effect or damage and category 4 where there was a risk of category 3 harm.
The Guidance then refers the court to four tables, one for large organisations, one for medium organisations, one for small organisations and one for micro organisations. The starting points are set out within category range, the court should then consider further adjustments within the category range for aggravating and mitigating features.
There is a reminder to companies and larger organisations to provide comprehensive accounts or risk the conclusion that the company can pay the appropriate fine. The fines vary from £3 million down to £7,000, set out in a logical manner.√جª¬ø
For Large Companies i.e. Turnover £50 million and over, this is the table ( there is provision to go above these figures for very large companies).
Deliberate Starting Point Range
Category 1 £1,000,000 £450,000 – £3,000,000
Category 2 £500,000 £180,000 – £1,250,000
Category 3 £180,000 £100,000 – £450,000
Category 4 £100,000 £55,000 – £250,000√جª¬ø
Reckless
Category 1 £550,000 £250,000 – £1,500,000
Category 2 £250,000 £100,000 – £650,000
Category 3 £100,000 £60,000 – £250,000
Category 4 £60,000 £35,000 – £160,000
Negligent
Category 1 £300,000 £140,000 – £750,000
Category 2 £140,000 £60,000 – £350,000
Category 3 £60,000 £35,000 – £150,000
Category 4 £35,000 £22,000 – £100,000
Low / No culpability
Category 1 £50,000 £25,000 – £130,000
Category 2 £25,000 £14,000 – £70,000
Category 3 £14,000 £10,000 – £40,000
Category 4 £10,000 £7,000 – £25,000√جª¬ø
The range for Medium Companies ( turnover between £10 million and £50 million) is from £1,000,000 maxium to £2,500.
The range for Small Companies ( turnover between £2 million and £10 million) is from £400,000 to £400.
The range for Micro Companies ( turnover below £2m) is from £95,000 to £100).
The sentence must then take into account a number of aggravating and mitigating features, then step back, consider whether or not the sentence is proportionate, taking into account the extent of any economic benefit, whether payment by instalments would be proportionate and any other factors such as the effect on employment service users and the local economy.
Aggravating features include a history of non compliance with the regulator, deliberate concealment, ignoring risks identified by employees and established evidence of wider/community impact.
Mitigating features include evidence of steps taken to remediate the problem, and an effective compliance and ethics programme including self reporting. It is here that the Defence need to demonstrate ‘Best Practice’ in all aspects of their business process, so that they can take advantage of modern business thinking such as ‘six sigma’ and ‘lean’ manufacturing techniques which may fall short of supporting a Due Diligence Defence.
The court must then consider whether there has been any assistance to the prosecution, whether or not there is a discount for a plea of guilty and finally other issues such as the extent of any remediation.
2. Individuals.
The same approach and format is used for individuals, where it has to be remembered that there is also the power to imposeimprisonment up to 5 years, with the offence range being a conditional discharge to 3 years.
Without rehearsing the matters in the above tables, the same approach has been taken with the most serious offences in Category 1 starting at 18 months custody, with a range of 1 – 3 years, down to a conditional discharge and band A fine for the least serious. [The fine bands run from Band A 25% – 75% of weekly income to Band F 500% – 700 % of weekly income, which come into play for Category 1 Reckless offences where the range is Band F fine or high level community order to 12 months custody].
Click here to download the full version of the guidelines.
Originally posted 2014-03-06 00:00:00.
