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Environmental Offences Response to Consultation 1

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Environmental Offences Response to Consultation 1 Environmental Offences RESPONSE CONSULTATION Response to Consultation February 2014 Environmental Offences Response to Consultation 1 Contents Foreword 2 Introduction 3 Summary of responses 4 Response to specific questions 6 Conclusion and next steps 24 Annex A: Consultation respondents 25 Annex B: Consultation questions 27 © Crown copyright 2014 You may re-use this information (not including logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit www.nationalarchives.gov.uk/doc/open-government- licence/or email: [email protected] 2 Environmental Offences Response to Consultation Foreword On behalf of the Sentencing Council I would Consequently, the Council has found the like to thank everyone who responded to constructive and considered responses received our consultation on sentencing guidelines have been of great assistance in producing the for environmental offences, took part in our definitive guideline. We received 124 responses research exercises or attended consultation in total, in addition to feedback obtained from events. We have received views from a interviews with sentencers and consultation range of parties with varied experience and events. We are pleased that the response is perspectives, which have been very valuable generally positive; however, in the light of in shaping the definitive guideline. The responses received we have closely reviewed Council is grateful for the time taken by all some aspects of the guideline, resulting in a those who offered their views. number of changes that are examined in detail in this response paper. The environmental offences guideline embraces both a wide range of offending and offenders. While the Council monitors all of their The environmental offences within the scope guidelines, in light of the novel challenges of the guideline may be committed either by posed by this guideline and the data limitations individuals or by organisations, which may vary outlined above, the Council will scrutinise greatly in terms of their size and complexity. In the use of the environmental guideline with addition, as these are strict liability offences, particular intensity for the first twelve months the guideline also needs to cover a wide spread that it is in force. The Council is very grateful to of culpability. It has been challenging for the the Environment Agency for agreeing to assist us Council to produce a guideline capable of in this exercise by gathering detailed information covering such a wide range of offenders and on how the guidelines are being used by offence seriousness; a challenge exacerbated sentencing courts during this period. by the fact that environmental offences are relatively infrequently sentenced, making it Lord Justice Treacy difficult to build up a comprehensive picture of Chairman, Sentencing Council general sentencing practice. Environmental Offences Response to Consultation 3 Introduction The Sentencing Council is the independent there was a need for improved guidance in body responsible for developing sentencing this area. In addition, following its review of guidelines for the courts to use when current sentencing practice to assess both the passing a sentence. consistency in the levels of fines given for similar offences and offenders and whether the fines The Sentencing Council began the development being awarded reflected the seriousness of the of a guideline for environmental offences offences committed, the Council determined that following requests from a range of parties with the levels of some fines appeared too low. an interest in this area, including the National Fly-tipping Prevention Group, the Welsh The Council consulted on a draft guideline for Assembly, the Magistrates’ Association and the environmental offences between 14 March 2013 Environment Agency. In particular, these groups and 6 June 2013. During the consultation period were concerned that the fines being passed by the Council held consultation events with legal the courts were not high enough to reflect the practitioners, sentencers and Local Authorities seriousness of the offences committed or to and presented to the National Fly Tipping have a deterrent effect, and that there was an Prevention Group (NFTPG), whose membership inconsistency in fine levels across the country. comprises a range of organisations. The Council is grateful to Keep Britain Tidy and the NFTPG for As noted in the consultation paper, prior to hosting these events. this guideline there was limited guidance for sentencers dealing with environmental During the consultation period, the Council offences. There is some general guidance in conducted a second stage of qualitative the Magistrates’ Court Sentencing Guidelines research with magistrates, district judges and and also in a publication issued by the Crown Court judges to test the draft guideline Magistrates’ Association called Costing the against case scenarios. Findings from this Earth. Court of Appeal authority is limited for research are referred to throughout this environmental offences, although there is response paper and a full report may be found more developed authority for health and safety at: http://sentencingcouncil.judiciary.gov.uk/ offences, which have some similarities with facts/research-and-analysis-publications.htm environmental offences in terms of sentencing. Through its own research with sentencers, The definitive guideline will apply to all the Council identified a lack of familiarity with individual offenders aged 18 and older and sentencing environmental offences, particularly organisations who are sentenced on or after amongst magistrates, and considered that 1 July 2014, regardless of the date of the offence. 4 Environmental Offences Response to Consultation Summary of responses Public 6% Judiciary 3% The consultation sought views from respondents on four main areas: the Police 2% Magistrates 25% scope and structure of the guideline, Government proposals for assessing seriousness, 3% the suggested sentences and any other factors that should influence Individuals the sentence. In particular, the 13% Council was keen to receive feedback on the elements of the guideline that were designed to deal with offenders that were organisations and for sentencing strict liability offences;1 these being particularly challenging Legal features of the guideline. practitioners Utilities and 7% industry 10% There were a total of 124 respondents to the consultation of which 90 provided Charity/professional body 20% Local authority 11% email or paper responses and 34 responded online. Breakdown of respondents Type of respondent Number In addition, feedback received from Judiciary 4 the Council’s consultation event and Magistrates 31 interviews with sentencers during the consultation period is reflected in the Utilities and industry 12 responses to individual questions below. Local authority 14 Charity/professional body 25 In producing the definitive guideline the Legal practitioners 8 Council has also had regard to ensuring Individuals 16 consistency between this guideline and Government 4 the corporate fraud guideline, which was Police 3 being developed concurrently, as this similarly addresses issues relating to Public 7 the sentencing of organisations. Total 124 1 A strict liability offence is one where there is no requirement to prove the offender had a ‘guilty state of mind’. The offender needs only to have committed the ‘act’ prohibited by the offence to be convicted of the offence Environmental Offences Response to Consultation 5 “The NBCF welcomes consistent guidance for The Council has also noted consultation environmental offences, which can be difficult responses and findings from its practical to sentence, particularly in relation to the research with sentencers relating to the usability assessment of means.” of the guideline; on the basis of the feedback National Bench Chairmen’s Forum received the Council has restructured elements of the guideline to increase clarity in more In general, there was a favourable response complex areas. This has resulted in: to the proposals. In particular, magistrates • the addition of steps to address financial welcomed the structure of the guideline and orders that the court should consider prior the introduction of clear starting points and to addressing the fine; ranges. However, the Council was also grateful • the separation of the guideline into one for constructive criticism and considered for individuals and one for organisations suggestions for amending parts of the draft given that in several parts of the sentencing guideline. The principal substantive themes process different considerations apply; and emerging from responses related to: • the separation of step three of the draft • the overall flexibility required for an guideline – where the sentencer is required environmental offences guideline given the to “step back” and consider factors that wide range of offenders and offending types may warrant an adjustment to the financial encompassed by the relevant offences; element of the sentence – into distinct • the application of culpability categories to stages. organisations; • the use of turnover to categorise different As a result of these changes, the numbering sized corporate offenders for the purpose of steps in the definitive guideline is different of establishing a starting point and range; to those in the draft guideline. Consequently, • the proportionality of proposed fines for when referring
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