In an effort to bring about greater consistency in sentencing for environmental offences, the Sentencing Guidelines Council (SGC) has issued new sentencing guidelines for such offences, which come into effect on the 1st July 2014.
A significant distinction is made between offences committed by an organisation (a business crime or corporate crime category) and those offences committed by individual. Each category attracts separate guidelines.
This is the first time such guidance has been produced and includes offences such as waste crimes and fly tipping. It also deals with sentencing for more serious environmental criminal offences where it is alleged that the culpable actions have caused harm to public health, pollution or has exposed the public to such risks. A wide variety of circumstances are considered, such as land or water contamination by a company; the failure to secure hazardous material and any escapes which result.
Others examples cited in the guidance relate to nuisance offences: Offenders who cause noise, smoke, dust and smell pollution. A sharp focus is on companies and individuals whose businesses and premises pose a pollution a health risk.
The Guidelines also encompass regulatory environmental offences including breaches of waste permits.
The majority of the offences cover under the sentencing guidelines guidance relate to the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010.
Criminal courts existing “lack of familiarity” with environmental crime.
Whilst the latest guidelines, can be seen in the broader framework of the SGC to harmonise the framework in which sentencing takes place, the particular sentencing regime for environmental crime identifies the problem in inconsistent and disparate sentencing. As such offences are not as common in the criminal courts, the sentencing approach by many courts, particularly magistrates, has been recognised as problematic:“ Research has also shown a lack of familiarity among magistrates with sentencing these types of offences. “
Under the new sentencing regime Magistrates are encouraged to impose the highest level fines for the most serious offences and breaches.
Corporate offenders convicted for the most serious environmental criminal offences, such as causing damage or exposing risk to health, will also incur greater financial penalties. Conversely, the guidelines acknowledge that there is unlikely to be any significant change to the way in which lower-level offences are dealt with , Acknowledging ” overall proportions of offenders receiving the various types of sentences such as fine as, community sentences, discharges and prison sentences, are expected to remain the same”
Whilst the majority of environmental offences attract financial penalties, the sentencing guidelines make clear that where such offences are motivated by making a profit or cost savings, such offences which will be dealt with more severely.
For individual culpability, custody remains the starting point for “ the most serious types of individual offenders who deliberately commit a crime that causes significant or major harm.”
The increased focus on environmental regulation and its enforcement through the criminal law and the clarity that these guidelines reflect the seriousness of such offences. The sharp demarcation between individual responsibility for environmental offending and business crime and corporate criminal responsibility underlines the targeted approach taken towards organisations in sentencing.
These guidelines are important for those in the waste management industry and business that may be exposed to a criminal prosecution if the nature of the business gives rise to an environmental risk such as pollution or health risk from hazardous material.
Our Criminal barristers provide both consultancy and advisory services in ensuring that you or your businesses are compliant with the relevant environmental legislative requirements and expert advice and representation both in defending and prosecuting such matters in both the Magistrates Court and Crown Court.
The Guidelines can be accessed from the Sentencing Guidelines Council website here. http://sentencingcouncil.judiciary.gov.uk/about/environment.htm