Following consultation in the first half of 2013, the Sentencing Council has now published guideline sentences to be imposed in a wide range of environmental offences involving waste disposal.
Individual magistrates may not hear more than one or two cases each year, so without guidance, it is difficult for them to impose severe penalties with any confidence.
There had been concern about inconsistent sentencing in the lower courts; there was not much guidance from the higher courts, as relatively few cases reach them and a perception developed that some of the fines imposed in recent years had not reflected the seriousness of the offence. New guidelines were published on 26 February 2014. The object is to ensure consistency and proportionality but also to punish and deter.
The guidelines cover a wide range of offences, including illegal discharge of waste into air, land or water, fly tipping and analogous offences. Courts will be required to categorise cases to determine their seriousness and the level of penalty which should apply. This will involve assessing whether the offence was committed deliberately or accidentally, whether or not injury or damage was caused and a variety of other factors which will be used to calibrate the level of the fine. The new guidelines will come into effect in July 2014 and are mandatory.
The limits on fines are now raised to a maximum of £50,000 in the magistrates’ court and are unlimited in cases which are tried in the Crown Court. The worst offences are likely to attract fines of somewhere between £450,000 and £3 million in the Crown Court, with the most minor offences attracting fines of a few hundred pounds on summary conviction.
In addition to the fine, the court must also consider making a compensation order where injury or damage has resulted from an offence. Furthermore, where the means of an offender are limited, it is the compensatory element of the penalty which will take precedence over the fine itself. Therefore, an impecunious defendant may face a higher compensation order than a fine, thus putting the interest of the victim ahead of the interests of the State. The principle that the offender will reimburse society and victims for the cost of his irresponsible behaviour is carried consistently through the guidelines. Property confiscation orders are also available where appropriate – so for example the court could confiscate a vehicle which was persistently used for fly tipping. A defendant could also be made to pay clean up costs. Where offences are committed by individuals, custodial sentences of up to three years’ imprisonment are also available.
This substantial increase in the levels of fines and other penalties is consistent with the principles applied in recent years to other areas of law including various health and safety offences and breaches of Fire Regulations.
The increases recognise the fact that offences of this type are often committed in a commercial context to increase profit. The sentences are intended to take away any financial advantage in breaking the law and to be a severe deterrent to unlawful or careless waste disposal. The guidelines say “it should not be cheaper to offend than to take the appropriate precautions”.
Therefore the court will be specifically required to consider as one of the components in the calculation of the penalty, the amount of economic benefit which the offender derived from the offence and add this to the bill. If the unlawful behaviour has been a regular failure by the business this too will justify a higher fine. This is likely to involve the courts in considering the detailed economic structure of businesses in order to ensure that appropriately tough penalties are imposed. They will be required to look specifically at annual accounts, considering in particular turnover, profit before tax, directors' remuneration, and pension provisions. The levels of expertise individual benches of magistrates bring to this process will vary with the identity of the bench, but it can be expected that courts which habitually deal with people of very slender means will not be sympathetic to corporate defendants where money is being saved on waste disposal at the expense of risk to the environment while the directors' remuneration is high.
The vast majority of environmental offences are tried by magistrates and there are likely to be relatively few cases attracting the most draconian penalties. Nonetheless, irresponsible waste disposal is about to become very much more risky and as magistrates gain confidence under the new guidelines, substantial fines may well become the norm. It is also likely that the environment agency will be encouraged to pursue offenders more vigorously.
We assume that most of the people reading this are unlikely to be engaged in deliberate fly tipping, but it is worth remembering that many of the offences which will be affected by these guidelines can be may be committed as a result of carelessness. The court will consider how much harm has been caused by the offence, but even an offence committed by a medium sized company (defined as a having an annual turnover of up to £50m) causing only minor localised damage, will trigger a fine starting at about £25,000 and possibly rising to about £60,000 per offence.
Consideration may have to be given to the fact that a substantial regulatory fine as a result of carelessness would have to be reported to shareholders in an annual report and could lead to questions being raised about the competence of individual directors.
This might therefore be a good time to review your disposal practices, to make them fully compliant, as the existence of proper procedures, even if there has been an accident, would be likely to reduce risks of committing an offence, harm to the environment and would reduce fines substantially.