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
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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 to a step number, this paper organisations; and makes clear when the reference is to the ‘draft • the use of a starting point of 12 weeks’ guideline’ published with the consultation paper custody for some categories of offences or the ‘definitive guideline’. committed by individuals.
The Council has carefully considered all of the responses it has received and has made a number of changes in these areas, alongside some more minor adjustments, which are examined in detail below. 6 Environmental Offences Response to Consultation
Response to specific questions
Scope and structure The Council has reviewed the other offences The draft guideline covered offences under suggested by respondents for inclusion in the section 33 Environmental Protection Act main body of the guideline. The additional 1990 (“EPA”) and regulations 12 and 38(1), offences suggested have different statutory (2) and (3) of the Environmental Permitting maxima to the offences under section 33 EPA Regulations 2010 (“EPR”). Question 1 of the 1990 and regulations 12, 38(1), (2) and (3) of consultation sought views on grouping these the EPR 2010. As such, the starting points and offences together to form the scope of the ranges used in step two of the guideline would guideline. In addition to these offences, the draft not translate across to sentencing the other guideline directed sentencers that for “other offences suggested and the Council does not environmental offences” listed at the end of the propose to create additional starting points and guideline the court should refer to steps one ranges for these offences which are either very (harm and culpability) and three (other relevant few in number or have a relatively low statutory factors to consider) of the draft guideline, maxima, with fines being the only available bearing in mind the statutory maxima for the disposal. relevant offence.Question 2 sought views on the approach to “other environmental offences”. A minority of respondents, including legal practitioners such as the UK Environmental Law The majority of the 105 respondents answering Association (UKELA), disagreed with the overall question 1 were supportive of the approach, approach of the guideline and considered that it with 85 per cent agreeing with the proposed should have been drawn up as general guidance scope of the guideline. Of the 87 respondents to apply widely to more environmental offences. to question 2, 83 per cent agreed with the UKELA also reasoned that, given the relatively suggested approach for the other environmental narrow scope of the guideline, magistrates and offences listed. judges would nevertheless extrapolate and adapt from it when sentencing other offences Many respondents, including those in overall that were not expressly included. agreement, considered that other offences could be included either within the main As set out below in relation to question 3, the guideline or in the list of “other environmental Council believes that courts will benefit more offences”. A wide range of additional offences from detailed guidance with clear starting points was suggested, from the offence of leaving litter and ranges for high volume environmental (section 87 EPA 1990) to wildlife crime offences. offences than the more general approach suggested by some respondents. This view Environmental Offences Response to Consultation 7
was supported by consultation responses relating to the disposal of anything likely to from, in particular, magistrates. Consequently, cause damage into public sewers, and offences the Council will retain the current structure of under the Transfrontier Shipment of Waste a guideline with specific starting points and Regulations 2007, relating to the transportation ranges for high volume offences. However, of waste to countries inside and outside the the Council considers that there is value in European Community, a suggestion made by a broadening the general approach in place for number of respondents. dealing with “other environmental offences” listed in the guideline. The Council considers The Council also carefully considered that this would go some way to meeting the submissions from the UK National Wildlife suggestion made by respondents that the Crime Unit that wildlife crime should be brought guideline should apply more widely. within scope of the guideline. The Council has noted the view expressed that sentencing in “…it is important that all relevant environmental this area is inconsistent and would benefit from offences benefit from the guideline. One a guideline. The Council considers, however, possible way to enable this… [is to make] that the factors the court is required to consider clear in the section on other environmental in the environmental guideline – particularly offences that the sentences referred to are those relating to the harm caused – do not fit indicative examples of how the guideline may with most wildlife crime offences. The Council apply to all environmental offences and it is a has therefore concluded that any guideline non‑exhaustive list.” for wildlife crime would have to be separately The Law Society constituted; the Council will continue to keep the need for a guideline in this area under review in The Council therefore proposes to make clear considering its future work plan. that the list of other ‘relevant and analogous environmental offences’ at the end of the A number of respondents also strongly guideline is ‘indicative’ and not exhaustive, recommended including offences under the leaving it open to advocates to submit that Control of Major Hazards Regulations 1999 factors in the guideline apply to offences that are (COMAH) in the guideline. The Council is not explicitly named. Given that the guidance for currently developing a draft guideline for health the other environmental offences listed does not and safety offences, which will be issued for include reference to specific starting points and consultation later in 2014. Given that the COMAH ranges but guides the court to consider relevant offence is framed in terms that are similar to factors and general principles, the Council health and safety offences, the Council considers considers that this generality of approach to that any specific sentencing guidance for this other offences is acceptable. offence would be better considered as part of the work on the health and safety guideline. The Council is grateful for responses highlighting specific offences that are of growing concern Question 3 sought views on the proposed in this area or that have similarities to the structure of the guideline. The draft guideline offences already covered by the guideline and contained clear starting points and ranges but, would benefit from being explicitly highlighted. unlike other Sentencing Council guidelines, Additionally, therefore, the Council proposes to it incorporated a “step back” stage for the include an express reference to two additional sentencer to consider a range of relevant factors offences that have particular similarities to the that may warrant adjustment of the financial offences already included in the list of “other element of the sentence. The Council consulted environmental offences”. These offences are on whether this structure provided sufficient section 111 of the Water Industry Act 1991, guidance as well as flexibility for sentencers. 8 Environmental Offences Response to Consultation
Of the 97 respondents answering question 3, 87 consistency of approach to sentencing in this per cent agreed with the proposed structure and area. Consequently, the Council has sought 13 per cent disagreed. to produce a guideline that provides wide discretion to courts to tailor the sentence in Magistrates, in particular, welcomed the use individual cases but provides sufficient guidance of clear starting points and ranges for the high to promote a consistent approach to sentencing volume offences covered by the guideline. in this area, particularly given that there is a These respondents also recognised the need to relative lack of familiarity with sentencing these guide the court to move outside the proposed offences. Furthermore, since the vast majority ranges in appropriate cases and welcomed the of these offences are sentenced in magistrates’ flexibility imported by step three of the draft courts (approximately 93 per cent in 2012), guideline for this purpose. the Council finds it significant that magistrates were supportive of the proposed structure of “We feel strongly that clear starting points the guideline in their responses and thought are required but also recognise the need for that starting points and ranges were necessary. flexibility.” For these reasons, the Council has retained the Solihull Magistrates structure proposed in the draft guideline in the definitive version. “A narrative guideline would not be helpful without clear starting points and ranges.” Some consultation responses indicated a degree Conwy Magistrates of confusion over the breadth of flexibility offered to the court at step three (the “step On the other hand, a minority of respondents back” stage) of the draft guideline, questioning, considered that a general narrative would for example, whether this would allow the court have been preferable to the approach taken to move outside the ranges set out in step two in the guideline. Legal practitioners were of the draft guideline. Therefore, the Council notably amongst those expressing this view, has added text prior to step five of the definitive considering that the tariff-based sentencing guidelines (step three of the draft guideline) to tables would lead to cases being ‘pigeon-holed’ emphasise clearly the wide degree of flexibility without adequate consideration of the issues. afforded, if necessary, to adjust the fine once an These respondents quoted Court of Appeal initial starting point has been identified using cases2 highlighting the difficulty of producing the sentencing tables. The guidance emphasises a tariff based guideline for environmental and that, where the sentence is a fine, it may be analogous regulatory offences given the range of moved upwards, downwards, including outside circumstances involved; in some cases the court the range in appropriate cases. had stated that consistency is not the ‘primary aim’ of sentencing cases of this type. Use of turnover in the draft guideline Another important issue raised by a range of The Council is aware of these cases and respondents, which cut across answers to many recognises that sentence levels for offences of the consultation questions including question under section 33 EPA 1990 and regulations 3, related to the use of turnover to categorise 12 and 38(1), (2) and (3) EPR 2010 will broadly different sized corporate offenders for differ considerably given the variability of the purpose of identifying a starting point and circumstances covered by these provisions. range at step four of the definitive guideline However, the Council does not consider (step two of the draft guideline). that this justifies resistance to having a
2 Including R v Thames Water [2010] EWCA Crim 202; R v F&M Dobson [1995] 16 Cr App R(S) 957; R v Milford Haven [2000] Env LR 632 Environmental Offences Response to Consultation 9
Around 20 respondents raised concerns about “We agree that [the use of turnover to the way turnover was used in the guideline, categorise companies] is simplistic, as it fails to principally on the basis that turnover does take into account a true financial picture of the not always reflect the financial health of an company and of the business concerned: some organisation. Consequently, respondents businesses have a very high turnover with very highlighted that companies within the same low profit margins; however, we consider that bracket of turnover could be affected very the simplicity of turnover can be the starting differently by the same fine depending on, for point for categorisation, provided that other example, the profitability of the organisation. financial information is taken into account in They also raised concerns that over-reliance appropriate cases.” on turnover in setting the fine may create a Justice Select Committee perverse incentive to structure corporations so that there was a subsidiary ‘risk-taking’ The Council has therefore clarified that the organisation with a small turnover. starting points and ranges categorised according to turnover at step four provide an initial fine “The reasons that turnover is an arbitrary figure level for sentencers, with flexibility at later are well known and can be summarized by the steps to adjust from that figure, if appropriate, phrase, different undertakings are organised in given the wider financial circumstances of different ways for a variety of different reasons.” the offending organisation. This is achieved Richard Matthews QC in the definitive guideline by indicating in the “obtaining financial information” section Most respondents in disagreement with the way that turnover will initially be relevant but that turnover was used to categorise organisations other financial factors relating to the offending in the draft guideline considered that the better organisation may need to be referred to later; approach was to refer to a range of factors rather and, at step six, highlighting that the financial than relying solely on turnover. Profitability was circumstances of the organisation will need to most commonly cited as a measure that should be considered in the round. The Council has be taken into account in addition to or in the separated this guidance out in a specific step in alternative to turnover. the definitive guideline for organisations (step six) to highlight its importance and stressed that The Council considered that there are important profit may be a particularly important feature to advantages to having a simple scheme of consider when deciding whether adjustment to starting points based on turnover, which the fine is appropriate. is a clear measure and less susceptible to manipulation than other financial measures. There was clear support from many consultation respondents for this approach. However, the Council has taken note of the concerns raised regarding the use of turnover and is conscious that in some cases the sentencer should be guided to consider other financial factors to ensure that any fine imposed on a corporate offender is proportionate to its means. 10 Environmental Offences Response to Consultation
Assessing offence seriousness suggested that a more definite measure could Question 4 asked respondents for their views be used to assess harm, such as the costs of on the treatment of offences which had created clearing up the damage caused by the offence. a risk of harm but no (or less) actual harm. Respondents were presented with one approach In a first stage of research with sentencers in the draft guideline, which was to guide the conducted prior to the consultation, the Council sentencer that usually an offence that had explored a number of different methods of created a risk of harm would be less serious, assessing harm, including one based on the except if the likelihood or extent of the risk was costs of reparation following the offence. particularly high. The consultation paper also set However, this method was not well received out an alternative approach, which was to make by sentencers who considered it to be too no distinction between risk of harm and actual difficult to quantify the costs of clear up in a harm in assessing the offence seriousness at number of circumstances, such as where the step one of the draft guideline, but to treat risk damage was latent or widely spread. Therefore of harm as a mitigating factor at step two. the Council does not propose to change the overall approach to assessing harm, but in order Question 4 created a great deal of debate to clarify the step up from the category 2 to amongst the 97 respondents answering this category 1 harm, the Council has changed the question, with 76 per cent ultimately agreeing descriptor from ‘substantial’ to ‘major’. with the approach taken in the draft guideline as opposed to the alternative presented in the Some respondents suggested the inclusion of consultation paper. Many respondents stated additional harm factors. One recurring theme, that the issues were not clear cut. However, the raised by some prosecuting authorities and Council has retained the approach taken in the industry representatives, related to the harm draft guideline in view of the majority response environmental offences cause by undercutting in favour of it, particularly given that flexibility legitimate businesses that are compliant with is clearly given to the court to treat a risk of the regulatory regime. harm as seriously as actual harm in certain circumstances. “The regulated industry ESA represents is one of the most direct victims of environmental Question 5 sought respondents’ views on the crime, as its business activities are often directly harm and culpability factors proposed in the undercut by those environmental criminals who draft guideline. Approximately 90 per cent of cut costs by circumventing or blatantly ignoring the 105 respondents answering this question the relevant environmental laws.” were favourable towards the overall approach; Environmental Services Association (ESA) however, around 50 per cent of respondents to this question also provided comments “We would emphasise that there needs to be suggesting changes or improvements to the effective deterrence to allow business to grow proposed factors. rather than being undercut or even put out of business by illegal operators.” Harm Environment Agency A number of respondents considered that the distinctions between the varying levels In response to these comments the Council has of harm in the draft guideline could be made made a small amendment to the harm factors clearer. Feedback both from the research of to recognise the harm of ‘undermining’ lawful the guideline conducted with sentencers and activities or the ‘regulatory regime’, in addition consultation responses indicated concerns to the harm already included in the draft with distinguishing between ‘substantial’ and guideline relating to “interference with lawful ‘significant’. Some consultation responses activities”. Environmental Offences Response to Consultation 11
Another concern, raised by a number of scheme. The Council is confident that courts Local Authorities, the Chartered Institute for will appropriately use the factors in the Environmental Health and the Government in sentencing guideline to assess the seriousness their responses, was that the harm indicators of an offence for the purpose of sentencing, in the draft guideline did not reflect the nature and will not be unduly influenced by earlier of offences under section 80 of the EPA 1990 classifications by the regulator for the purpose (breach of an abatement notice), which is of managing the incident. The Council does listed in the section on “other environmental not anticipate that the guideline will create an offences”. These respondents emphasised that increased need for Newton hearings but will nuisance usually would not create any physical monitor this factor as part of its work to closely damage, or may not amount to a health effect observe the impacts of the guideline for the first that was purely clinical in nature. As such, these year that it is in force. groups suggested amendments that would better reflect the harm that could result from a Culpability section 80 EPA offence. While the majority of respondents considered that the culpability scheme, based on familiar Further to these submissions, the Council has concepts of criminal intent, was clear and added to the harm factors a reference to the would be easy to use, the Council was grateful adverse effect of an offence on ‘quality of life’ for very constructive submissions from some to recognise the harm caused by offences that legal professionals on the potential difficulties are disruptive, constant or cumulative in nature of applying this structure to organisations. In but do not necessarily cause a health issue. view of the favourable general response, the The Council considers that this harm factor will Council does not propose to move away entirely often be relevant in environmental offences – for from the scheme but to clarify its application to example, where odour is present – and therefore organisations. As such, the culpability scheme appropriately suits the general harm scheme. for organisations now clarifies that the requisite ‘reckless’ or ‘deliberate’ intention must be held A small number of responses, from law firms, by a person of such a position of responsibility set out concerns that prior classification of harm in the organisation that their acts/omissions by the regulator before the case came to court may properly be attributed to the organisation; would disadvantage an offender, particularly if or, on an alternative basis, that the levels they pleaded guilty. These respondents were of culpability relate to degrees of failure by concerned that there would be an increased the organisation to put in place and enforce need for Newton hearings3 to enable offenders reasonable preventative systems. to challenge an initial classification by the regulator.
While the Council has had regard to the regulator’s scheme for classifying environmental incidents, it should be emphasised that the content of the harm scheme in the definitive guideline draws on a range of sources including case law, existing Magistrates’ Court Sentencing Guidelines guidance, the Council’s qualitative research and responses received to this consultation to ensure that it is a standalone
3 A Newton hearing is held when an offender pleads guilty but disputes the case as put forward by the prosecution and the dispute would make a difference to the sentence. The judge will normally hear evidence from witnesses to decide which version of the disputed facts to base the sentence on 12 Environmental Offences Response to Consultation
Factors to consider in sentencing available for magistrates by the time the environmental offences guideline comes into force. Fines and financial information A number of respondents queried whether the Question 6 sought views on principles set out assets of a parent company could be taken into in the draft guideline for the court to follow in account when sentencing one of its subsidiary setting a fine. Of the 94 respondents answering companies, requesting guidance on this issue. this question 87 per cent agreed with the The Council has therefore added guidance principles outlined. Those in disagreement that normally only information relating to the tended to reiterate concerns they had raised organisation before the court will be relevant. elsewhere, such as how turnover is used in the guideline and the categorisation of companies, Aggravating and mitigating factors which are considered in response to question 3 Question 8 asked whether respondents and question 13 in this response paper. agreed with the proposed non-exhaustive list of aggravating and mitigating factors and whether Question 7 sought views on whether the there were any factors they would add or guidance on obtaining financial information remove. Of the 101 respondents who answered was sufficiently detailed and helpful. Of the 91 this question, 65 per cent of them made respondents answering this question, 79 per suggestions for addition or removal. cent agreed that it was. A number of factors suggested by respondents Some respondents commented that the financial were features that are already explicitly included information required may often be difficult in the harm or culpability factors at step three, to interpret and suggested that magistrates and therefore including them again in step in particular would benefit from training on four would result in the factors being double applying the information that was provided counted. to the court. A small number of respondents considered that the information stipulated was However, a number of different factors were too complex altogether and suggested that also suggested. In terms of aggravating factors, instead a pro forma should be produced for an a frequent comment was that committing the offending organisation to complete with relevant offence for financial gain should be included, financial details. particularly as lack of financial gain or commercial motivation was a mitigating factor. The Council considers that it is preferable While “warnings by regulator” was already to draw on audited or other comprehensive included as an aggravating factor in the draft accounts than a pro forma as this reduces the guideline, some respondents highlighted risk of misleading information being provided by that ignoring concerns raised by others, or by the offender or, where audited accounts are not employees, should be capable of increasing available, provides some context to the general the sentence. The Council agrees with both of financial probity of the offending organisation, these suggestions for additions to aggravating assisting the court in assessing the reliability factors and has included them in the definitive of the information provided. However, the guideline. Council agrees that some training in applying the financial information specified to the stages In terms of mitigating factors, a number in the guideline would be beneficial. Therefore, of industry respondents as well as some the Council is working with the Judicial College, prosecuting authorities considered that the organisation responsible for judicial training, voluntary payments to remedy the damage to with the aim of making scenario-based training the environment caused by an offence should Environmental Offences Response to Consultation 13
be included as a mitigating factor, as recognised “We believe that this [the approach in step by the Court of Appeal in Thames Water Utilities three] is an effective way of approaching Ltd.4 The Council agrees and has added this the assessment of appropriate sentences, factor. and especially welcome the suggestion that economic benefits (avoided costs and operating The “step back” stage savings or any gain made as a result of the Question 9 and question 10 related to step offence) are included.” three of the draft guideline, which, for the Fish Legal reasons explained below, are now encapsulated in steps five to seven in the definitive guideline Notwithstanding the overall support for the for organisations and steps five and six of the content of step three of the draft guideline, definitive guideline for individuals. This stage a number of comments were made both in of the draft guideline sought to ensure that the consultation and in the Council’s research with court had sufficient flexibility to respond to the sentencers about the clarity of this stage of wide range of circumstances that environmental the guideline. Some consultation responses offending encompasses by requiring the highlighted confusion about the degree of sentencer to “step back” and consider a range flexibility offered by this step, while others of factors that may warrant an adjustment to the considered it verbose or their responses fine reached at the previous stage. Question 9 demonstrated that they had overlooked asked respondents whether the approach taken factors that had been included. An important in step three of the draft guideline achieved theme that emerged, in particular, from road the objectives of punishment, deterrence and testing was that compensation would need to removal of gain in a fair and proportionate way be considered prior to step three of the draft and question 10 asked whether the factors guideline as the court would need to consider identified were the correct ones. the totality of the financial orders imposed on the offender in order to assess the potential The majority of respondents were supportive impact of the fine. of the approach taken in step three and the factors identified. Of the 94 respondents who On the basis of these consultation responses, answered question 9, 74 per cent were generally road-testing results, and refinements positive about the approach, and of the 91 concurrently being made to the Council’s respondents who answered question 10, 87 per corporate fraud guideline that related to similar cent were generally positive. In particular, there issues, the Council has made some structural was a great deal of support for the emphasis changes to the guideline. on removal of economic benefit, with many commenting that this was a primary driver of The Council agrees that the issue of environmental offending and could, if anything, compensation needs to have been settled be even more clearly highlighted. before approaching the “step back” stage of the guideline. Under section 130 of the “Economic gain is the main factor for fly-tipping Powers of Criminal Courts (Sentencing) Act offences. Much of the reason for fly-tipping is to 2000, priority should be given to the payment avoid the legal costs of disposal or treatment of of compensation over payment of any other waste. NFTPG supports the guideline in trying to financial penalty where the means of the counter this.” offender are limited. Consequently, the Council National Fly-Tipping Prevention Group (NFTPG) has included a specific step to prompt the court to consider making a compensation order at step one of the definitive guideline.
4 [2010] EWCA Crim 202 14 Environmental Offences Response to Consultation
The inclusion of a step for compensation raises Question 11 asked respondents for their again the issue of how the guideline should deal views on the approach to sentencing bodies with confiscation, which similarly is an order that delivering public and charitable services. Of the should take priority over the payment of a fine or 87 respondents who answered this question, 69 any other financial order (except compensation). per cent agreed with the approach and 39 per In the draft guideline, confiscation was cent disagreed. highlighted at the start of the guideline as being of relevance only in the Crown Court and A relatively large proportion, but, nevertheless, that magistrates should commit for sentence a minority of respondents disagreed with the if confiscation was under consideration. The guidance that the fine should “normally be Council is conscious that the vast majority of reduced substantially” where the offender was the offences covered by the guideline are dealt an organisation delivering public or charitable with in magistrates’ courts where confiscation services. A range of types of respondents is not available. However, the Council considers disagreed with the approach although notably a that having highlighted compensation at step number of magistrates were amongst this group. one, confiscation should also be dealt with in a specific step as the court needs to consider the Most commonly a negative answer was made consequences of the totality of financial orders on the basis that the offence was the same imposed on the offender in the round at the regardless of the business of the offender and “step back” stage. Consequently, the Council has therefore the same sentence should apply. included a separate step for confiscation, clearly Some respondents expanded the objection by marked as being only relevant to the Crown highlighting that the circumstances of charities Court, at step two of the definitive guideline. and public bodies varied considerably and some may have significant assets or liquidity. The Council has also made a number of A smaller number of respondents stated that changes to what was step three of the draft the reduction in fine should not be presumed guideline to enhance clarity. The Council has – as suggested by the inclusion of the word separated distinct themes bound up together “normally” in the draft guideline – but must be in the original step three to increase clarity and argued for. reduce the chance of an important factor being overlooked. These themes are: the removal “We can see absolutely no reason to treat public of economic benefit; for offenders that are services any differently to private enterprise…. organisations, the proportionality of the fine the guidance gives adequate scope to fix a in view of the wider financial circumstances penalty that is appropriate to the means of any of the offender; and factors relating to the charity.” wider impact of the fine on the offender or Hartlepool and Teesside Magistrates others. These themes are now embraced in separate steps: steps five to seven in the “The Government broadly agrees with the guideline for organisations and steps five and approach that the removal of funds from a six in the guideline for individuals. This change public or charitable service would disadvantage also enabled the Council clearly to flag the those who ordinarily benefit from the service. guidance it has added on reviewing the financial However, the Government agrees that the circumstances of an offending organisation offender would need to demonstrate the impact in the round further to concerns raised in the sentencing would have on provision of its consultation regarding the use of turnover service.” to establish starting points and ranges (see HM Government page 9). Environmental Offences Response to Consultation 15
The Council considers that, when sentencing agreeing with the approach in the draft public and charitable bodies, there is a guideline. particular risk that these organisations would have limited options for paying the fine imposed Of the 31 per cent of respondents disagreeing without adversely effecting service provision to with the categorisation of organisations, a third party beneficiaries or taxpayers generally. number reiterated concerns already considered That such a consequence would be wrong as in this paper about the use of turnover to a matter of principle has been recognised by categorise different sizes of organisations (see the Court of Appeal in leading cases in the page 8), the treatment of public and charitable area.5 Therefore, the Council believes that in bodies (see page 14) and the need for guidance the case of public and charitable bodies this on dealing with holding companies or other principle should be highlighted over and above complex corporate structures (see page 12). the general factor set out in step seven of the guideline for organisations, applicable in all The other issue arising in response to this cases for all offenders, directing the court to question was raised by water company consider the impact of the proposed fine on respondents, who argued that “statutory service users and others. However, the Council undertakers” (such as water companies) should accepts that the guideline should be clearer be recognised as a unique category owing to that a reduction in fine should be made only if a their responsibilities in providing a service to ‘significant’ detrimental impact on the provision the public, the scale of their operations and the of services can be proved, and has amended the detailed regulatory landscape to which they wording accordingly. are subject. The water companies considered that their responsibility for a network of sewers Question 12 sought views on the wording in the measuring over 300,000 kilometres, which guideline on ancillary orders and compensation. are susceptible to damage from third parties, Of the 74 respondents answering this question, meant that they would be subject to an unfair 84 per cent provided positive responses. amount of punishment. In economic terms, they considered that fines would not have a deterrent A number of respondents considered that the effect as their prices and investment plans are importance of compensation orders should be already subject to agreement by the regulators; more clearly highlighted. As set out on page rather, their view was that financial penalties 13, compensation has now been isolated in a could impact their ability to improve the system separate step. Some respondents, including a for the public and environmental conditions number of magistrates, considered that further generally. guidance on the ancillary orders available in environmental cases would be helpful given Overall the Council was not persuaded by this that some of these orders would be relatively argument. The Council agrees that the impact unfamiliar to the court. The Council has therefore of a fine on the offender’s ability to improve expanded the guidance provided on ancillary conditions to achieve compliance with the orders in the definitive guidelines. law or on third parties such as service users or customers may be relevant to sentencing Question 13 of the consultation asked whether some cases. This is a general factor for the respondents agreed with the way in which court to consider, set out in step seven of the the guideline categorised different types of definitive guideline for organisations, which organisations. There were 88 responses to could be relevant to any offender, including this question, with 69 per cent of respondents statutory undertakers. However, unlike public
5 R v Milford Haven [2000] Env LR 632 16 Environmental Offences Response to Consultation
and charitable bodies (see page 14), the Council Sentences for environmental does not consider that water companies are a offences special case where there is a particular risk that the organisation would be unable to pay the In their review of current sentencing practice fine without impacting their service provision to prior to issuing the consultation, the Council the general public. Rather, water companies are determined that the levels of some fines were profit-making organisations with shareholders too low and did not reflect the seriousness of and have a choice of whether to pay fines from the offences committed. Consequently, the profit rather than service delivery funding; Council consulted on sentences that it expected consequently, the Council was not persuaded would increase the current levels of fines either that further guidance over and above received for some offences by some offenders, in the general factors provided at steps five to particular, companies committing more serious seven of the guideline was necessary or that offences. water companies would be impervious to the economic deterrent of a fine. Finally, the Council As set out in the consultation paper, has constructed the guideline to ensure that understanding current sentencing practice lower culpability results in lower penalties. As was particularly challenging for environmental such, where an offender can prove that they offences as relatively few of these offences genuinely lack fault for the incident – whether are sentenced, resulting in data limitations. this be owing to the ambit of their operations or Few sentencers have experience of sentencing for any other reason – the fine will reflect this significant numbers of cases and, as a result, it accordingly. is difficult to build up a representative picture of how cases are currently dealt with. Also, data on financial penalties is difficult to interpret because it does not directly correspond to sentencing ranges set out in sentencing guidelines. Data is available on the absolute amount of financial penalties, after any adjustments for the means of the offender; but the sentencing guideline recommends penalties that apply before any adjustments have been made for means or guilty pleas.
Therefore, the Council consulted both on whether the proposed sentences were proportionate and what effect respondents thought the proposals would have on current sentencing practice. The Council received a number of constructive responses to this section of the consultation and, in response, has made a number of changes.
Organisations Questions 14 to 19 sought views on the proposed sentences for organisations and the effect these would have on current sentencing practice. Environmental Offences Response to Consultation 17
General points The Council agrees that there should be a A number of legal practitioners responding to notable increase in fines between categories the consultation questioned the relationship of no or low culpability and negligence, as one between the proposed fines for environmental entails fault and the other does not (or very little offences and those currently handed down of it), and has accordingly marginally increased for health and safety offences. Some argued the step up in fines for negligence alongside that the proposed fines were disproportionate other changes to the fine levels outlined below. on the basis of their relationship with current However, the Council considers that, as there is sentencing practice for health and safety a considerable overlap between the bottom of offences. the range of one offence category and top of the range of the offence category beneath it, there “…the proposed guideline would result in fines is adequate flexibility for the sentencer to adjust for environmental offences that are significantly within the range where a case is considered higher than those currently imposed for to be on the borderline of a particular offence health and safety offences. This immediately category. Therefore the Council has not made raises the question of consistency (or rather adjustments to the proportional relationship inconsistency) as between fines in the two between fines for reckless and negligent areas.” offences. UK Environmental Law Association (UKELA) Specific fine levels The Council has already commenced work Question 14 sought views on the proposed on developing a draft guideline for health sentences for organisations with large turnovers. and safety offences, which will be published Of the 94 respondents who answered this for consultation later in 2014. This work will question, 63 per cent agreed with the proposed help ensure a proportionate and consistent fines and 37 per cent disagreed with them. relationship between sentences for environmental offences and for health and A small number of respondents, tending to safety offences. comprise large companies and law firms, considered that the fines were generally too high In addition, the Council of HM Circuit Judges (often on the basis of comparison with current and UKELA made general comments on the sentences for health and safety offences). interrelationship between the fine levels for different offence categories in their responses. However, other respondents considered that The Council of HM Circuit Judges submitted the fines were, overall, too low. A range of that negligence by organisations should be respondents, including the Council of HM Circuit more heavily penalised, particularly in view Judges, the Law Society and the Environment of the substantial resources larger companies Agency, considered that the top bracket was too would have available to them in order to low to penalise adequately the worst offending secure compliance within their organisations. by large companies, and advocated removing Meanwhile, UKELA considered that deliberate the upper limit for deliberate and reckless offences would always be significantly more offending. These respondents highlighted that serious than reckless or negligent offences and the proposed penalties would be particularly that the gap between those latter two categories small in the context of corporations with of culpability would be more contentious; as an annual turnover far in excess of £25.9m such, they concluded that there should be a (the definition for a ‘large company’ in the closer overlap between the penalties for reckless draft guideline). Some quoted high profile and negligent categories. environmental cases occurring in recent years involving international corporations with annual turnovers in tens of billions or more. 18 Environmental Offences Response to Consultation
“While it is open to a sentencer, giving reasons, too low to achieve these objectives, particularly to go outside the guideline in a very bad case, if the offending organisation was one with we do not consider the £2 million figure for an annual turnover that greatly exceeded the top of the worst range of offending to be £25.9 million. The Council also agrees that the sufficient.” threshold of £25.9 million annual turnover to Council of HM Circuit Judges define ‘large organisations’ in the draft guideline is relatively low; not infrequently there are “Fines within the proposed category ranges companies before the courts for committing are unlikely to have any significant economic environmental offences that have turnovers impact upon larger corporations with turnovers significantly above this level. many times greater than £25.9m…Thus, the large company category appears too wide, The Council has therefore adjusted the particularly when compared to the other two definitions for banding the sizes of organisations categories. As such, it seems to guide the from those in the draft guideline, which were sentencer towards disproportionately low fines.” based on the Companies Act 2006. The Council HHJ Patrick Field QC has broadly based the banding of different sized companies in the definitive guideline on the EU Further to such responses, the Council has definitions for small and medium enterprise.6 carefully reviewed the proposed penalties in The conversion to sterling is an approximate the draft guideline to determine whether they one to avoid issues with fluctuating exchange are consistent with the general principles to rates from the euro and to ensure the definitions follow in setting a fine set out in step four of the are clear. As a result of this change, the ‘large’ definitive guidelines. Under section 164 of the organisation category now begins at an annual Criminal Justice Act 2003, the fine must reflect turnover of £50 million. The starting points the seriousness of the offence and the court, and ranges have been increased to reflect the when fixing the amount of the fine, should take greater means of a company in this category and into account the circumstances of the case to better fulfil the objectives set out above, and including the financial circumstances of the are at a level that the Council considers fair and offender. The level of fine should also meet, proportionate. in a fair and proportionate way, the objectives of punishment, deterrence and the removal The Council notes that the definition of £50 of gain derived through commission of the million annual turnover is still much lower than offence. Additionally, step six of the definitive the annual turnover of many large corporations. guideline for organisations emphasises that The Council has therefore added guidance that the fine must be substantial enough to have where the organisation is ‘very large’ and has real economic impact which will bring home to a turnover much above the threshold for ‘large’ both management and shareholders the need organisations, it may be necessary to move to improve regulatory compliance. However, outside the range to achieve a proportionate the Council also considers that the starting sentence. points and ranges at step four must be broadly capable of achieving this outcome otherwise The Council believes that these changes to the disproportionate weight is placed on step six in fines at step four of the definitive guideline setting an appropriate fine. will result in courts being directed towards sentences that have a sufficient financial impact The Council has concluded that the starting on the offender to send a message both to the points and ranges consulted on would often be organisation and to the general public. Where
6 http://ec.europa.eu/enterprise/policies/sme/facts-figures-analysis/sme-definition/ Environmental Offences Response to Consultation 19
appropriate, the sentencer will then have the for the offence categories attracting a custodial flexibility at steps five to seven to use their starting point) or, in some cases, the proposed discretion to adjust the fine reached at step four. penalties for large companies to conclude that the proposals were too lenient. Some Question 16 sought views on the proposed respondents, including the Council of HM Circuit sentences for organisations with medium Judges, the Environment Agency and Fish Legal, turnovers. A smaller number of respondents, 82 thought that the proposed fines were especially in total, answered this question, with 74 per cent low for certain offence categories; in particular, in general agreement and 26 per cent broadly in the starting points and ranges for deliberate disagreement. category 1 and 2 offences were singled out for criticism. As with question 14, a small number of respondents in disagreement with the proposed “A small turnover is considered to be up to £6.5 fines thought that they were too high; however, million with a maximum fine of £70,000 for a others thought that they were too low. The deliberate breach of a category 1 offence. This comments provided in support of these views seems low for the level of offence that could tended to mirror those submitted in response potentially have been caused intentionally.” to question 14 regarding the penalties for ‘large’ Council of the Isles of Scilly organisations. A number of respondents highlighted that, For the reasons set out above, the Council has given the category extended up to organisations amended the definitions for differently sized with a turnover of £6.5 million, organisations organisations in the definitive guideline from with turnovers towards this figure would have those used in the draft guideline so that they are substantial resources and the proposed fines loosely based on the EU definitions for small and would not have a significant impact. However, medium enterprise. As such, the definition for others acknowledged that the proposed medium sized organisations has changed from penalties would likely have a considerable a bracket between £6.5 million to £29.5 million impact on the much smaller organisations that in the draft guideline to a bracket between would also fall within this category. £10 million to £50 million in the definitive guideline. In view of this change, the Council “…there probably needs to be a lower category has reviewed the starting points and ranges for for the even smaller business.” ‘medium’ organisations and adjusted them to North East Suffolk Magistrates correspond with the increased average means of an organisation falling within the newly defined The Council has reviewed the penalties and ‘medium’ category. structure of this part of the draft guideline further to the responses received. The Council Question 18 asked for views on the proposed agrees that companies falling within the upper sentences for organisations with small turnovers. end of the ‘small’ organisation category as Of the 82 respondents who answered this defined in the draft guideline would receive question, 70 per cent broadly agreed with the penalties that were disproportionately low. proposals and 30 per cent disagreed. As set out in the consultation paper, The vast majority of respondents disagreeing the proposed starting points for ‘small’ with the proposed fine levels for small organisations in the draft guideline were companies considered that they were too low. designed to overlap with the equivalent starting Often, respondents drew comparisons with the points for individuals. This was to avoid a equivalent penalties for individuals (particularly disparity in sentence for an offender that could 20 Environmental Offences Response to Consultation
be treated as a ‘small organisation’ but had The starting point for the micro category is very similar circumstances to an individual based on a company with a notional turnover – for example, a family run business that within the middle of the range (in other words, had incorporated as a company. The Council around £1 million) rather than the smallest considers that it is important to maintain this type of organisation that may be considered principle. However, the Council has reconsidered equivalent to an individual offender, but the whether it should be the starting point that bottom end of the range has been calculated to overlaps with individual penalties (as opposed ensure an overlap with equivalent sentences for to elsewhere in the range) in light of the individuals. responses received. The Council notes that the turnover of an offending organisation that The Council considers that the totality of changes could be considered equivalent to an individual it has made to the sentences for organisations offender (for example, a ‘man and van’ type are fair and proportionate. However, as set out business) would have a value much towards above, with the assistance of the Environment the bottom of a category for organisations Agency the Council will intensively monitor with turnovers ranging up to £6.5 million. the impacts of the guideline during the first Consequently, the Council has concluded that months that it is in force to ensure that it has the it is more appropriate that the bottom of the intended effect on sentencing practice. range overlaps with penalties for individuals rather than the starting point, as otherwise the Questions 15, 17 and 19 sought respondents’ sentencer is pointed to disproportionately low views on how the proposed penalties for ‘small’, sentences. ‘medium’ and ‘large’ organisations respectively would change current sentencing practice. The Council also agrees with those respondents who considered that organisations with Only around half of the total respondents to the turnovers towards the bottom of the definition consultation answered these questions, with for ‘small’ organisations used in the draft many respondents emphasising that they had guideline, of up to £6.5 million, require particular insufficient experience or knowledge of the area consideration. The Council has concluded to comment. Those that did provide answers that it is especially challenging to set starting often commented broadly on the wider effects points and ranges for a single category that the sentencing guideline would have, such as spans organisations with such small turnovers incentivising compliance with environmental that they could be considered equivalent to legislation. The majority of those commenting individual offenders, right up to relatively narrowly on sentencing practice thought that substantial organisations with turnovers in sentences would increase for all categories of millions of pounds. organisations; however, a significant number of respondents commenting on how sentencing Therefore, given that the EU definitions for practice for ‘small’ organisations would be small and medium enterprise also include a impacted thought there would be no change. definition for ‘micro’ organisations, the Council A large number of respondents commented has introduced an additional category of generally that the guidelines would increase organisations within the definitive guideline for consistency in sentencing practice. ‘micro’ organisations with annual turnovers of up to £2 million. The Council has adjusted the fine “Irrespective of the size of organisation we levels for organisations within both the ‘micro’ believe that the guidelines will introduce a category and freshly defined ‘small’ category, degree of consistency to sentencing practice of organisations with turnovers between across England and Wales and will also promote £2 million and £10 million, to a level that the confidence in sentencing practice.” Council considers to be fair and proportionate. Chartered Institute of Environmental Health Environmental Offences Response to Consultation 21
Individual offenders While the majority of respondents were in Question 20 sought views on the Council’s general agreement with the proposals, there stipulation in the guideline that, when were some particular points of disagreement. sentencing individuals, “even where the Most commonly, respondents considered that a community order threshold has been passed, starting point of 12 weeks’ custody for deliberate a fine will normally be the most appropriate / category 3 offences, reckless / category 2 disposal”. There were 87 responses to this offences and negligent / category 1 offences was question. too high. Notably a number of magistrates were amongst the group expressing this view, with The majority of respondents to this question, the Magistrates’ Association emphasising that 82 per cent, agreed with the Council’s view ‘about half’ of all the offences they dealt with that, as the offences covered by the guideline would likely constitute a deliberate / category are mainly committed for economic gain, a fine 3 offence by an individual. These respondents would usually be a more appropriate disposal thought that a starting point of 12 weeks’ than a community order; however, a minority custody was inappropriate as the sentencer of respondents strongly disagreed. Some would not usually be able to conclude that the respondents – for example, the Probation custody threshold was passed in such cases. Chiefs’ Association, Enfield Council and a These respondents sometimes commented handful of magistrates’ responses – commented that a custodial sentence appeared particularly that environmental crimes were antisocial and punitive when compared with the equivalent therefore a fitting response may be to impose financial penalty levied on ‘small’ organisations community order requirements, such as unpaid for the same offence category. work, on an offender. “…it was a surprise to see a starting point of 12 The Council acknowledges that in many cases weeks custody suggested for this high volume a community order may be an appropriate category [deliberate / category 3]…. We believe disposal. However, the Council considers that it that a fine; or a community order and a fine; remains the case that a fine will more often be plus forfeiture of the vehicle used to commit the the correct response to a crime that is carried offence is a more appropriate sentence than out for economic benefit. The Council considers custody for the types of flytipping cases seen that the framing of the guidance in the guideline most frequently in the magistrates’ courts.” provides flexibility to impose a community order Magistrates’ Association (or a combination of a fine and community order) where appropriate and that the emphasis “Our [seminar] invitees considered that is correctly placed, and therefore does not a starting point of 12 weeks custody for propose to make any changes to this section of individuals assessed as falling within the the guideline. offence categories for Category 1, Negligent, Category 2, Reckless, and Category 3, Question 21 asked for views on the proposed Deliberate, was disproportionately high, sentences for individuals in the draft guideline. and disproportionate in relation to current Of the 87 respondents who answered this sentencing practice and in relation to sentences question, 76 per cent were in agreement with for small companies and similar bodies. We the proposed sentences and 24 per cent were in see no reason to disagree with this view, disagreement with them. and recommend that, whilst custody should remain an option, the starting point should be reduced.” Justice Select Committee 22 Environmental Offences Response to Consultation
The Council is persuaded that a starting point The Council has reviewed the proposed of 12 weeks’ custody is inappropriate for these sentences for individuals in light of these categories of offences. The Council has therefore responses but considers that no further amended the starting point for deliberate / adjustment is necessary. While it is open to the category 3, reckless / category 2 and negligent / sentencer, giving reasons, to go outside the category 1 offences to a starting point of a Band ranges proposed in the guideline and up to the F fine, which is defined as 600 per cent of weekly statutory maximum should it be in the interests income with a range of 500 per cent – 700 per of justice to do so, the Council considers that cent weekly income. The Council has created the ranges it has proposed will be proportionate this fine band specifically for the environmental in the vast majority of cases. The Council has offences guideline on the basis, set out above, considered whether further adjustments need that a fine will usually be the most appropriate to be made to penalties for individuals further disposal for these offences. The Council to the amendments made to sentences for considers that the levels set out for the Band organisations; however, it considers that one of F fine are at an appropriate level to reflect the the issues highlighted by respondents was the seriousness of offending that would fall within lack of relativity between sentences for ‘small’ these categories, and are more commensurate organisations and those for individuals in the with the equivalent fines available in the revised draft guideline, which has been addressed sentencing ranges for ‘micro’ organisations. by the changes made to the penalties for As with the other categories of offences for organisations outlined above. Therefore the individuals, the fine may be combined with a Council has concluded that no further changes community order where appropriate. to the penalties for individuals proposed in the draft guideline are necessary. Notwithstanding the reduction in the starting point for these categories from a 12 week Question 22 sought respondents’ views on how custodial sentence, the Council believes that the proposals would affect current sentencing custody must be available as an option for practice. Only around 50 per cent of total dealing with offenders falling within these respondents to the consultation answered this categories in appropriate cases. Therefore, question, which elicited a range of comments. the range continues to extend up to 26 weeks’ Around 35 per cent of respondents answering custody for these offence categories. this question considered that penalties would, generally, increase, while around 16 per cent A small number of respondents, including considered that the guideline would have no or the Environment Agency and the Law Society, little effect on sentencing practice. considered that the range for category 1 / deliberate offences should be increased from three years’ custody to the statutory maximum of five years. In addition, the Council of HM Circuit Judges stated that should the penalties for organisations be increased in the manner they proposed in earlier responses, then the penalties for individuals should be increased in a consistent manner. Environmental Offences Response to Consultation 23
Victims, equality and diversity and specifically referencing the statements other comments themselves. In Question 23, the Council consulted on The Council published an equality impact whether there were any further ways in which assessment to accompany the consultation but victims could or should be considered in the did not identify any equality issues. Question draft guideline. A number of respondents 24 asked respondents to identify any equality or considered that greater emphasis should be diversity matters arising from the guideline that given to compensation; for the reasons outlined the Council should consider. on page 13, clear emphasis is now given to compensation as part of the sentencing process Very few comments were made by respondents as it is included as a distinct step at the start of on this question. Some respondents reiterated the guideline. concerns they had raised earlier in the consultation regarding the proposed approach A small number of respondents thought that to sentencing public and charitable bodies; the a specific reference should be made to victim Council’s response to this is on page 14. Others personal statements in the guideline. In Assault: commented that the guideline would promote Definitive Guideline the Council decided not to consistency, thus better ensuring equality. include guidance on victim personal statements as it was considered that the existing guidance Question 25 provided respondents with an in the Consolidated Criminal Practice Direction opportunity to make any general comments. and the decision of the Court of Appeal in Perks7 Many responses reiterated issues covered covers the use of these statements in court. The elsewhere in this paper. A small number of Council believes that, for the same reasons, it respondents commented on the relative is unnecessary to repeat this guidance in the complexity of this guideline in comparison environmental offences guideline. In addition to other Sentencing Council guidelines. The the Council is satisfied that the impact on the Council has endeavoured to make the guideline victim is reflected in the factors to be taken as simple and concise as possible; however, into account at earlier steps of the guidelines. owing to the variety of offenders covered by Furthermore, there is a wider issue of the the guideline and the breadth of offending inconsistent use of victim personal statements. types these offences could entail, some level of This is an issue that should be looked at in the complexity is inevitable. context of the police and prosecutors, rather than something that is addressed in sentencing guidelines.
A number of respondents additionally commented that reference should be made to community impact statements. The Council agrees that emphasising the community wide harm that may be caused by environmental offences is important; however, given similar issues with inconsistent usage of community impact statements the Council has added, as an aggravating factor, “established evidence of wider/community impact” rather than
7 [2001] 1 Cr App R (S) 19 24 Environmental Offences Response to Consultation
Conclusion and next steps
The consultation has been an important part of the Council’s consideration of this guideline. Responses received from a variety of organisations and individuals have informed changes made to the definitive guideline.
The definitive guideline will apply to all individual offenders aged 18 and older and organisations who are sentenced on or after 1 July 2014, regardless of the date of the offence.
An update will be provided for the Magistrates’ Court Sentencing Guidelines, which will be update 11.
The Equality Impact Assessment Initial Screening is available on the Sentencing Council website. No evidence was provided during the consultation period which suggested that the guideline would have any adverse impact on equalities issues which would warrant a full Equality Impact Assessment. Following the implementation of the definitive guideline, the Council will monitor the impact of the guideline, with particular intensity for the first year that it is in force. Environmental Offences Response to Consultation 25
Annex A Consultation respondents
Responses were received from the following • Environmental Protection UK (North West and organisations: Yorkshire Divisions) • Anglian Water • Environmental Services Association • Association of Noise Consultants • Fish Legal • Bedford Borough Council • Fly-tipping Action Wales • Berkshire Magistrates • Gloucestershire Pollution Group • Birmingham Magistrates • Grundon Waste Management • Bristol, Gloucester, Somerset and Wiltshire • Hartlepool and Teesside Magistrates Pollution Group and Stroud District Council • Justice Select Committee (enclosing • British Association of Landscape Industries comments from the Environmental Audit and • Broadland District Council Environment, Food and Rural Affairs Select • Canal and River Trust Committees) • Central and South West Staffordshire • Justices’ Clerks’ Society Magistrates • Keep Britain Tidy • CEMEX UK • Keep Wales Tidy • Chartered Institute of Environmental Health • Kingston upon Hull City Council • Chartered Institution of Wastes Management • Law Society • Clyde and Co LLP • Liverpool Law Society • CMS Cameron McKenna LLP • Macclesfield Magistrates • Conwy Magistrates • Magistrates’ Association • Cornwall Magistrates • Mid and South East Northumberland • Council of HM Circuit Judges Magistrates • Council of the Isles of Scilly • Mineral Products Association • Criminal Justice Alliance • Ministry of Justice • Crown Prosecution Service • National Bench Chairmen’s Forum • Department of Environmental, Food and Rural • National Farmers Union Affairs (Neighbourhood Noise and Nuisance • National Fly-Tipping Prevention Group Team) • National Wildlife Crime Unit • EDF Energy • Natural Resources Wales • Energy UK • Newcastle City Council • Enfield Council • Newham Local Borough Pollution Control • Environment Agency • North East Suffolk Magistrates • Environmental Health Lancashire • North Hertfordshire District Council 26 Environmental Offences Response to Consultation
• North London Local Justice Area Magistrates’ Responses were also received from the Courts following individuals: • North Norfolk District Council • James Airey, Environment Agency • Northampton Borough Council • Eric Bodger, Magistrate • Pinsent Masons (on behalf of a range of • Peter Burke, Runnymede Borough Council companies) • Benjamyn Damazer, Magistrate • Pinsent Masons • David Charles Ely, Magistrate • Police and Crime Commissioner for Wiltshire • Henry Emblem, Environmental Packaging and Swindon Solutions • Probation Chiefs’ Association • His Honour Judge Field • Rural Environmental Law Association • Ken Fletcher, Magistrate • Scarborough Magistrates • His Honour Judge Foster • Sefton Magistrates • Dr Myrna Gilbert, Magistrate • Solihull Magistrates • Dr Matthew Hall, University of Sheffield • Somerset Magistrates • Anna Heslop, E.ON E&P • South Cambridgeshire Magistrates • Alan Lloyd Jones, Deputy District Judge • South East London Magistrates • Liz Knox, East Cambridgeshire District Council • South London Local Justice Area Magistrates’ • Derek Lees, Magistrate Courts • Jason Lowther, University of Plymouth • South Oxfordshire District Council and Vale • Robert Maddocks, Gwent Police (Environmental Protection Team) • Simon Mansfield, Merseyside Fire and Rescue • SSE Service • Stroud District Council • Richard Matthews QC, 2 Bedford Row • Swansea Magistrates Chambers • Thames Water • Gordon Milward, Northumbria Police • Trafford Metropolitan Magistrates • Cllr Dave Mitchell, Metropolitan Borough • UK Contractors Group • Colin Newmarch, Dartford Borough Council • UK Environmental Law Association • Simon Rowe, Wigan Council • United Utilities Water PLC • Stephen Russell, Magistrate • Veolia • Jennifer Sadler, Cardiff Council • Wakefield and Pontefract Magistrates • Rafael Salasnik, Magistrate • Wandsworth Borough Council • Carolyn Shelbourne, University of Sheffield • Water UK • Simon Walker, Unitary Authority • Welsh Water • R E Wood, Magistrate • Willmott Dixon • David Woodbridge, Mendip District Council • Yorkshire Water • Martin Wright, Cheshire West and Chester Council
Responses were also received from members of the public Environmental Offences Response to Consultation 27
Annex B Consultation questions
Do you agree with the proposed grouping of offences under section 33 Environmental Q1 Protection Act 1990 and regulations 12 and 38 (1), (2) and (3) Environmental Permitting (England and Wales) Regulations 2010?
Do you agree with the proposed approach taken for the other environmental offences Q2 listed?
Do you think the proposed structure of the guideline provides sufficient guidance as well Q3 as flexibility for sentencers?
Do you agree with the approach taken in the draft guideline with regard to risk of harm? Q4
Do you agree with the harm and culpability factors proposed at step one? If not, please Q5 specify which you would add or remove and why.
Do you think the principles the guideline proposes the court should follow in setting a fine Q6 are the correct ones?
Do you think the guidance on obtaining financial information is sufficiently detailed and Q7 helpful?
Do you agree with the aggravating and mitigating factors proposed at step two? If not, Q8 please specify which you would add or remove and why. 28 Environmental Offences Response to Consultation
Do you think the approach in step three achieves the objectives of punishment, Q9 deterrence and removal of gain in a fair and proportionate way?
Are the factors identified in step three the correct ones? Q10
Is the approach to sentencing bodies delivering public or charitable services correct? Q11
Do you think the wording on ancillary orders in step six is appropriate? Q12
Do you agree with the way in which the guideline categorises different types of Q13 organisations?
Do you agree with the proposed sentences (category ranges and starting points) for Q14 organisations with large turnovers?
What effect do you think the draft guideline will have on current sentencing practice Q15 relating to organisations with large turnovers?
Do you agree with the proposed sentences (category ranges and starting points) for Q16 organisations with medium turnovers?
What effect do you think the draft guideline will have on current sentencing practice Q17 relating to organisations with medium turnovers?
Do you agree with the proposed sentences (category ranges and starting points) for Q18 organisations with small turnovers?
What effect do you think the draft guideline will have on current sentencing practice Q19 relating to organisations with small turnovers?
Do you consider the guidance regarding the use of community orders and fines to be Q20 appropriate and sufficient? Environmental Offences Response to Consultation 29
Do you agree with the proposed sentences (category ranges and starting points) for Q21 individuals?
What effect do you think the draft guideline will have on current sentencing practice Q22 relating to individuals?
Are there further ways in which you think victims can or should be considered? Q23
Are there any equality or diversity matters that the Council should consider? Q24 Please provide evidence where possible.
Are there any further comments you wish to make? Q25