Guidance on Environmental Sentencing is a Priority for the Scottish Sentencing Council

The Scottish Sentencing Council was established in October 2015 and is responsible for producing sentencing guidelines for the Courts, publishing guideline judgements issued by the Courts and publishing information about sentences imposed by the Courts. The Council’s Business Plan states that sentencing guidelines for environment and wildlife crimes are a priority for them. The reason being that it is an area of concern to the Scottish public and that there are real difficulties in sentencing environmental crimes. The Council plan to present final draft guidelines in 2019.

There is an expectation that the level of fines and confiscation orders for environmental offences in Scotland will increase as a result of the publication of environmental sentencing guidelines. This has of course been the case in England, culminating in the £20M penalty imposed on Thames Water earlier this year for unlawful discharges of sewage, the highest penalty so far issued under the English environmental sentencing guidelines. The Court sought to make an example of Thames Water, a repeat offender and the recipient of a £1M penalty in January 2016, also for unlawful sewage discharges.

Meantime the Scottish Sentencing Council launched its first consultation on the 1st of August proposing a draft guideline (2 pages only) on the general principles and purposes of sentencing for all crimes in Scotland. It is the first of an anticipated set of three general guidelines.

In terms of the general principles of sentencing, what is proposed is the core over-arching principle of fairness and proportionality. This will be supported by the following six principles:

1. All relevant factors of a case must be considered.
2. Similar offences should be treated in a similar manner in sentencing decisions.
3. Sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing.
4. The reasons for sentencing decisions must be clearly stated.
5. Sentencers must have regard to any applicable sentencing guidelines.
6. People should be treated equally without discrimination.

Regarding the purposes of sentencing, the draft guidelines propose that the sentence given should best achieve the purposes of sentencing that are appropriate for the particular case. Those purposes may include:

1. Punishment.
2. Reduction of crime.
3. Reflecting society’s disapproval of an offender’s behaviour.
4. Providing the opportunity to make amends (to repair the harms caused).

These purposes are particularly relevant to environmental crime and resonate with the Thames Water penalty.

The Consultation is open until 27th October and can be accessed here: https://www.scottishsentencingcouncil.org.uk/consultations/principles-and-purposes-of-sentencing/