Following his recently posted review of the regulatory regime of the Environment Agency (‘the EA’) and the types of investigation that it can conduct, John Veale of Kangs Solicitors examines some of the sentences and penalties that may be imposed upon an individual or a company in respect of waste management crime.
Sentencing Guidelines for Environmental Offences| Kangs Solicitors
When handing down a sentence the Court will consider the “Definitive Guidelines for Environmental Offences”, (‘the Guidelines’), as defined by the Sentencing Council, that came into effect from 1st July 2014.
Offences Covered by the Guidelines| Kangs Regulatory Solicitors
The Guidelines cover the unauthorised or harmful deposits, treatment or disposal of waste, illegal discharges to air, land and water as legislated for by:
- Section 33 of the Environment Protection Act 1990.
- Regulations 12 and 38(1), (2) and (3) of the Environmental Permitting (England and Wales) Regulations 2010.
- Section 1 of the Control of Pollution (Amendment) Act 1989-transporting controlled waste without registering.
- Section 34 of the Environmental Protection Act 1990- breach of a duty of care.
- Section 80 of the Environmental Protection Act 1990- breach of an abatement notice.
- Section 111 of the Water Industry Act 1991-restriction of use of public sewers.
- Offences under the Transfrontier Shipment of Waste Regulations 2007.
Who Can Be Prosecuted?| Environment Agency Solicitors
In addition to prosecutions of individuals, various organisations can also be subject to prosecution and, therefore, the guidelines include:
- Local authorities, fire authorities and similar public bodies
- Health Authorities
As such organisations cannot be imprisoned it is normally the case that the penalty will be enforced by way of a fine as follows:
- in the Magistrates Court – £50,000.
- in the Crown Court – anything from £100 to £3million.
Culpability | Kangs Solicitors Defending Waste Management Companies
When determining the level of fine to be imposed, the Court will consider whether that culpability arises from:
- A deliberate/intentional breach/deliberate failure to put in place and to enforce a system that would avoid the commission of an offence.
- Being reckless, i.e. actual foresight or willful blindness/ reckless failure to put in place and to enforce a system that would avoid the commission of an offence.
- Being negligent, i.e. failure to take reasonable care to put in place and to enforce a system that would avoid the commission of an offence.
- Low or no culpability.
Harm | Kangs Solicitors Defending Environment Agency Cases
Additionally, the court will consider the level of harm that has arisen from the offence and which ranges from:
Category 1: polluting material of a dangerous nature/major adverse effect or damage to air or water quality, to
Category 4: risk of minor localised adverse effect or damage to air or water quality.
Size of Organisation | Kangs Solicitors
The Court will also consider the size of the organisation by reference to trading turnover and will examine accounts, budgets and financial reports.
This will enable the Court to categorize the organisation, according to turnover, as:
- Large: £50 million or more.
- Medium: £10 to £50 million.
- Small: £2 to £10 million.
- Micro: £2 million or less.
The Court will then consider the matrix of fines contained within the Guidelines and these range enormously as the following examples show:
- Large: with deliberate culpability and category 1 harm, the range of fine is from £450,000 to £3million.
- Micro: with low or no culpability and category 4 harm, the range of fine is £100 to £700.
Once the fine has been determined by reference to the Guidelines the Court may consider any discount if a guilty plea has been tendered.
Individuals | Kangs Defence Solicitors
A Magistrates’Court can impose upon an individual a maximum fine of £50,000 and/or a prison sentence of six months.
A Crown Court can impose an unlimited fine and/or a prison sentence of five years.
The comments above relating to culpability and harm concerning organisations are generally also applicable to individuals save that no account is taken of any failure to set up and enforce a system that would have prevented the commission of the offence.
Level of Fine
The level of fine is determined by a percentage multiplier of the individual’s relevant weekly income.
Proof of income will therefore have to be provided to the Court.
Starting at Band A, this being 50% of the weekly income, the bands go in increments up to Band F being 600% of the weekly income.
As with organisations, as explained above, the Court will consider culpability and harm and the penalty will be adjusted accordingly as the following examples show:
- Category 1 offence – deliberate, the range of custody will be one to three years.
- Category 4 offence – there is a range between conditional discharge and a Band A fine.
Again, the Court will consider any discount for a guilty plea, if appropriate.
How Can We Help You? | Solicitors for Environment Agency Cases
We are able to assist you by:
- Formulating a reply to any notices served by the EA
- Dealing with any general enquiries from the EA
- Advising you on the regulatory regime and requirements that governs your business
- Advising you on the steps to take to ensure that your business is compliant with the Environmental Permitting Regulations
- Representing you at any interviews with EA officers
- Defending any prosecution brought by the EA for any regulatory breaches
- The sentencing process described above is in summary only and there are many other factors that will be taken into account, as well as additional penalties, compensation and confiscation. It is a very complicated process and it is essential that experienced counsel is instructed to make representations in regard to culpability, level of harm and mitigate any potential sentence.
- At Kangs Solicitors we have established relationships with experienced barristers who we can call upon in order to ensure that the best possible outcome can be achieved for you.
We have a proven track record in dealing with Environmental matters and we welcome you contacting our team of solicitors through either of the following, who will be happy to discuss your situation with you.