Last reviewed 20 January 2016
Sarah Holmes considers three recent sentencing cases that illustrate some of the factors considered by the courts when sentencing defendants following conviction for environmental offences and provide a timely reminder of the importance of good housekeeping and effective governance.
The Sentencing Council's Environmental Offences Definitive Guideline must be followed by every court in England and Wales when sentencing individuals and organisations for specified environmental offences. In the 18 months since the Guideline was issued there has been a significant change in the scale of penalties imposed on conviction of environmental offences. In addition to the fines imposed, where a defendant has benefited from criminal conduct the prosecutor can ask the court to make a confiscation order under the Proceeds of Crime Act.
Maintenance, effective systems and prompt remediation
The pollution of controlled waters by effluent from a pub's poorly maintained sewage treatment plant led to a fine of £150,000 with costs of £4596 being imposed on the owners of the pub. Brown effluent from the plant that treated sewage from the Cross Keys Inn Pub, run by Spirit Pub Company Limited, was found to be entering a tributary of the River Leven. Particles of solid waste were also found in the water and around the outfall.
The Environment Agency advised staff that immediate remedial action was necessary, but on return a few days later found that the pollution was still occurring. Samples were taken, and after analysis it was found that permitted limits for suspended solids and biochemical oxygen demand had been significantly exceeded. This resulted in a negative impact on the water quality for a distance of 720m and harm to the ecology of the stream for 380m. Livestock that grazed on the land next to the stream were also at risk from the pollution.
The Environment Agency found the general maintenance of the sewage treatment plant was poor. The plant was overgrown with hogweed and one of the tanks was full of brown sludge. There was a lack of systems in place to monitor and maintain the performance of the works and the emergency procedures failed. No motoring of the plant had taken place in between the three-monthly service visits, and no checks on the outfall had been made.
The defendant company was prosecuted for breaches of Regulation 38 of the Environmental Permitting (England and Wales) Regulations 2010. It pleaded guilty to two charges of breaching the conditions imposed on the environmental permit that authorised the discharge from the sewage plant, and one charge of not properly maintaining the treatment works.
In considering the penalties the court was required by the Sentencing Guideline to take into account the culpability of the defendant in failing to take reasonable care to put in place and enforce proper systems for avoiding commission of the offence, the level of harm actually or at risk of being caused, the defendant's annual turnover and the existence of aggravating or mitigating factors, including the steps taken to remedy the problem.
A company that knew it was committing an offence by storing waste without an environmental permit yet continued to do so for a year after the Environment Agency had provided it with guidance on its options was fined £89,000 for breaches of the Environmental Permitting (England and Wales) Regulations 2010. VJ Commercials operated a business out of a unit at Shipdham airfield. When it ran out of storage space in the hangar in August 2013 it began to store waste on the runway.
On a visit to the site the Environment Agency found scrap vehicles on the runway and oil spills on the ground from leaking vehicles. The site's technically competent manager claimed to have inquired about an environmental permit to allow the storage of waste on the runway to continue when the Environment Agency visited the site in 2013, but had understood that this would not be possible owing to the nature of the site.
In court, the Judge noted that the quantity of waste on the runway had increased following a reduction in the price of scrap metal. He concluded that the breach was a calculated commercial decision. The company was fined a total of £89,000 for breaches of regulations 12(1) and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2010. The Judge noted the early guilty pleas and that the site has now been remediated. The correct permit is now in place to allow the site to operate legally.
The size of the fine reflected size, by turnover, of the company. The financial gain to the company and the decision to continue to operate in knowledge of the breach of environmental law were aggravating factors. The early guilty pleas, the remediation and the subsequent compliance were mitigating factors.
The proceeds of crime
In a third case concerning a conviction under the Environmental Permitting Regulations 2010 the Environment Agency sought a confiscation order under the Proceeds of Crime Act 2004. Prosecutors are advised to consider asset recovery in all cases where a defendant has benefited by more than a minor amount from criminal conduct and is likely to have the means to pay a confiscation order. Where a defendant does not have the means to pay a confiscation order the prosecutor may seek compensation, deprivation, forfeiture or restitution orders and costs. Any case in which confiscation is sought must be dealt with in the Crown Court. Confiscation must be dealt with before any other fine or financial order is made.
The defendant, Mr Shepherd, had been convicted of depositing, sorting and storing mixed household and industrial waste at West Musgrove Farm, Shildon. For operating the illegal waste transfer facilities the defendant was convicted of breaches of the Environmental Permitting Regulations 2010 and, on 24 February 2014, sentenced to 12 months in prison, suspended for two years. At the request of the Environment Agency, the court ordered financial investigations with a view to the making of a confiscation order.
On 17 August 2015, a confiscation order was made by the Crown Court under which Mr Shepherd was ordered to pay the sum of £350,000 within 6 months of the date of the order. As this sum represented only a part of the £1,168,000 sum agreed as the proceeds of the criminal conduct the defendant can be ordered to repay further sums if he comes into future assets.
In a separate case concerning Mr Shepherd's father, financial investigations are in hand following a conviction under the Environmental Permitting Regulations 2010 for operating a regulated waste facility without an environmental permit and failing to comply with a suspension notice. The defendant in that case was imprisoned for 18 months.
The Sentencing Guideline applies to offences involving the unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water, and to some related offences. It specifies the range of sentences appropriate for each type of offence, the categories that reflect the degrees of seriousness and the starting point within each category from which the court should calculate the provisional sentence. Further features relating to the offence and the offender are then to be taken into account if relevant and may lead to an adjustment to the provisional sentence. Credit for a guilty plea will be taken into consideration after the sentence has been identified.
Responsibility for ensuring compliance with a permit rests with the operator. Although contractors can be employed to service plant and machinery, this does not absolve operators from the responsibility of having effective systems in place to ensure inspections and the maintenance of plant and machinery are undertaken. While these will be undertaken at a site level, decisions on investment in such systems, their monitoring, maintenance and upgrading are made at director level. The courts look at these acts or omissions of those directing the business both in determining culpability and in applying the additional factors.
The three cases display culpability ranging from negligent to deliberate, and a range of harm categories though none of the most serious. In all three cases these two factors determined the offence category. Using this, the court then determined whether the defendant was a large, medium, small or micro organisation in terms of turnover. This provided the starting point for the sentence within the offence category. The aggravating and mitigating factors were then applied to reach a final sentence.