In recognition of public concern about the generally low level of fines for pollution incidents (particularly those awarded against wealthy companies) and a lack of consistency in sentencing, the Government has referred sentencing of certain environment offences to the Sentencing Advisory Panel. The Sentencing Advisory Panel has issued a consultation paper. The period for consultation expires on 17th November 1999.
Generally the consultation process is to be welcomed. In the environment law arena there is no specific guidance to assist the courts (and magistrates especially). To some extent magistrates and legal practitioners have been looking for assistance from the Court of Appeal decision in R -v- Howe & Sons Engineers (November 1999) which laid down sentencing guidelines in the health and safety arena but that is not particularly satisfactory.
The Sentencing Advisory Panel is of the opinion that it would be desirable for the Court of Appeal to issue guidelines applicable to environment law offences. That panel suggests that the following be taken into account:
- culpability
- the extent of damage occasioned by the incident
- whether there was a deliberate breach of law
- whether the defendant acted from a financial motive
- whether the breach was an isolated incident
- whether the defendant failed to respond to advice from the relevant regulatory authority
- whether the defendant ignored concerns voiced by employees or others
- whether the defendant had specific knowledge of the special risks involved
- whether the pollutant was noxious, wide-spread or pervasive, where human health, animal health or flora were adversely affected
- whether expensive clean-up operations were required
- whether other lawful activities were prevented or significantly interfered with
- whether the defendant was ready to co-operate with the enforcing authorities
- whether the defendant has a good environment record, took steps to remedy the problem and pleaded guilty in a timely manner.
The general thrust of the Sentencing Advisory Panel’s consultation paper is that more consistency is required and that fines against larger corporations ought to be higher than is presently the case.
Further, whilst to date very few compensation orders have been made by the courts following pollution incidents, the Panel’s view is that where there is a specific victim (such as a landowner who has incurred expense in cleaning up property, or where riparian rights are interfered with; the restocking of a water course for instance) then the court should always consider making a compensation order.
There are, of course, numerous environment law offences, but the consultation paper relates only to five of those offences namely
- Carrying on a prescribed process without an integrated pollution control or an air pollution control authorisation (Section 23 of the Environmental Protection Act 1990),
- Depositing, recovering or disposing of controlled waste without a site licence or in breach of its conditions (Section 33 of the Environmental Protection Act),
- Polluting controlled waters (Section 85 of the Water Resources Act 1991),
- Illegal abstraction of water (Section 24 of the Water Resources Act 1991), and,
- Failing to meet the packaging, recycling and recovery obligations or to register or to provide the relevant information in that regard (Section 93 of the Environment Act 1995 and the Producer Responsibility Obligations (Packaging Waste) Regulations 1997).
A copy of the consultation paper can be found at http://www.sentencing-advisory-panel.gov.uk/environ.htm
If you require any further information in relation to the consultation paper do not hesitate to contact either Paul Sheridan or Verity Kidd of the Environment Law Group on +44 (0) 171 367 3000
or pfs@cms-cmck.com.
