The New Sentence Guidance and How to Mitigate John Jolliffe Francis Taylor Building

The Sentencing Council produced new Definitive Guidance on environmental crime effective from 1 st July It applies to all offenders sentenced after 1 st July 2014, regardless of the date of offence.

There are key differences between the correct sentencing of organisations and individuals. Individuals can be imprisoned and required to do community service as well as being fined. Companies can only be fined.

Possible issues about whether someone should be treated as an organisation (company) or an individual. Small “one man bands” operators, e.g. waste in illegal landfills, agricultural slurry which enters water. Organisation or individual? Companies are at greater financial risk – the range for a micro (under £2 million turnover) organisation which deliberately commits a category one offence is £9-95,000, with a starting point of £50,000; for individuals, the category range for fine Band F is % of relevant weekly income. Sentencing based on company turnover might produce a very different result to one based on relevant weekly income. Individuals can be imprisoned, although it is very rare – suspended sentences are more common, even in the rare cases which meet the threshold.

“12 step” process, same for organisations and individuals Step 3 – determining the offence category by reference ONLY to (1) culpability and (2) harm

Culpability Deliberate – flagrant disregard by someone senior enough that their acts/omission can be attributed to the organisation, or deliberate failure to put in place and operate a system. Reckless – actual foresight or wilful blindness to risk, or reckless failure to put in place and operate a system. Negligent – failure to take reasonable care to put in place and operate a system. Low/no culpability – accident; act of a rogue employee, despite a proper system; where a proper system was unforeseeably overcome by exceptional events. Harm Categories 1-4 – defined by e.g. hazardous material, major harm e.g. to air or water quality, effects on human/animal health, high costs of remediation, major interference with other lawful activities.

Step 4 – starting point and category range Large Turnover or equivalent: £50 million and over. DeliberateStarting pointRange Category 1 £1,000,000 £450,000 – £3,000,000 Category 2 £500,000 £180,000 – £1,250,000 Category 3 £180,000 £100,000 – £450,000 Category 4 £100,000 £55,000 – £250,000

Reckless Category 1 £550,000 £250,000 – £1,500,000 Category 2 £250,000 £100,000 – £650,000 Category 3 £100,000 £60,000 – £250,000 Category 4 £60,000 £35,000 – £160,000 Negligent Category 1 £300,000 £140,000 – £750,000 Category 2 £140,000 £60,000 – £350,000 Category 3 £60,000 £35,000 – £150,000 Category 4 £35,000 £22,000 – £100,000 Low / No culpability Category 1 £50,000 £25,000 – £130,000 Category 2 £25,000 £14,000 – £70,000 Category 3 £14,000 £10,000 – £40,000 Category 4 £10,000 £7,000 – £25,000

Reduced discretion Turnover – not profit! Offences often committed by comparatively unprofitable, low margin businesses, e.g. recycling, waste, agriculture, sectors with high levels of price volatility. Company could be loss- making but with a high turnover. Fine should be adjusted accordingly (step 6). Much higher fines than e.g years ago – e.g. Switchgear manufacturer. Organisations must produce their accounts (or public sector equivalent) for the last 3 years – if not, the Court is liable to infer the means from evidence and the case circumstances. Aggravating and mitigating factors – to be considered later.

Step 5 – do the combined orders (inc confiscation under POCA) remove any economic benefit? “Efficient breach” E.g. avoided costs; operating savings; profits made. Common in e.g. waste prosecutions. Rarer in water pollution cases.

Step 6 – is the fine proportionate to the offender’s means? It should have “a real economic impact” It is relevant that the fine would put the operator out of business; sometimes, that is an acceptable result.

Other factors “Where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of their services. The non-exhaustive list below contains additional factual elements the court should consider in deciding whether an increase or reduction to the proposed fine is required: fine impairs offender’s ability to make restitution to victims; impact of fine on offender’s ability to improve conditions in the organisation to comply with the law; impact of fine on employment of staff, service users, customers and local economy.” Unfair to the private sector? Assumes that public/charitable activities are intrinsically more desirable than e.g. private sector recycling. Helpful to public sector clients – e.g. NHS trusts with clinical waste.

How to mitigate Exceptional – “Perfect storm”, “It fell out of the sky”, so no chance of it happening again, no need to deter future breaches E.g. flooding or rain – see BBC or Met Office records Offender faces reduced profits/increased costs E.g. reputational damage; business lost from perhaps public sector clients; increased cost of capital; increased cost of insurance; pending civil claims for damages; if the pollutant had value, e.g. oil. E.g. operating in a sector with decreasing profitability. Judges take a lot of persuading of these arguments – accountancy/other expert evidence? EA unlikely to be able to rebut this.

More mitigation Rogue act of an employee; vandalism Remediation at own cost (often through insurance) and not at public cost Cooperation with the authorities – see Environmental Permit, which very often will require the operator to notify the EA/local authority/harbour authority Early guilty plea Previous good record – e.g. evidence of historic compliance, high EA ratings Improved system or compliance

One Recent example Thames Water pollution incident at Chase Brook North Wessex Downs AONB – In September 2012 untreated sewage entered the brook from a sewage pumping station emergency overflow pipe, after the pumps had got blocked. 600 metres of the brook was polluted with sewage, with high levels of ammonia and e-coli. TW fixed the blocked pumps and used a tanker to control flows. It sealed up the pipe’s outfall and created a bund to protect against overflow, and replaced the pumps. Category – negligence; harm – category 3. Fine - £250,000!! Outside the guidance due to TW’s size and scale? TW’s remediation doesn’t seem to have done it much good.

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