Most environmental prosecutions are dealt with by magistrates as no specialist environmental court exists.

A typical bench may go for months or years without seeing an environmental offender. When they do convict someone who has disposed of waste illegally, or a company that has breached a permit condition, they can find it difficult to assess the seriousness of the offence and sentence appropriately, particularly as the magistrates themselves may not have a body of experience and the environment is often the only victim. The Sentencing Council’s general guidelines on sentencing for magistrates currently devote only 4 out of nearly 300 pages to environmental offences. In the view of the Environment Agency and others, magistrates’ unfamiliarity with environmental matters can result in inconsistent and disproportionately low sentences.

The existing Magistrates’ Association’s sentencing guidance, “Costing the Earth”, contains numerous sentencing scenarios as examples, but largely leaves it up to the bench to decide the starting point for the penalty to be imposed, before any mitigating or aggravating factors and other relevant considerations are applied.

Following some concerted lobbying which focused in part on addressing inadequate sentencing for fly-tipping, and a consultation exercise last year, the Sentencing Council has now issued an Environmental Offences Definitive Guideline (the “Guideline”) which will come into use on 1st July. It applies to Crown Courts as well as Magistrates Courts in England and Wales and there is an associated update to the general Magistrates’ Court Sentencing Guidelines.

Unlike “Costing the Earth”, the Guideline uses a matrix-based approach to indicate the starting point and range for fines according to the size of the offender (if a company), his culpability and the degree of harm caused to the environment, human health or quality of life. It is evident that magistrates, in particular, are very supportive of guidance of this type for environmental offences.

The Guideline applies specifically to only a handful of waste and Environmental Permitting offences, but it states that the same approach should be used when sentencing other relevant and analogous environmental offences. We are aware of examples where a court has already used the draft guidance as a sentencing template. However, there have been substantial changes to the final version, including raising the fine starting points and ranges applicable to organisations.

Applying the fines matrix to a large corporate offender that has intentionally breached the law (or flagrantly disregarded it), resulting in substantial harm, gives a starting point for a fine of £1 million with a range of £450,000 – £3 million. Whilst this is a worst case scenario, it seems clear that the level of fines imposed will increase in the future, especially for larger companies, even where their culpability is low.

Magistrates’ maximum sentencing powers are at present capped at £50,000 for each offence covered by the Guideline. They may decide to pass more cases to the Crown Court, particularly where the degree of culpability is yet to be settled. Prosecutors may be more likely to ask for cases to be sent to the Crown Court where a starting point is above the magistrates’ sentencing powers.

A step change in sentencing outcomes is therefore likely. Even well managed organisations can find themselves in the dock on occasion. The potential cost consequences of systems failures, inadvertent breaches and genuine accidents seem about to rise.

For further details contact;

paul.bratt@symmetrylaw.co.uk

victoria.joy@symmetrylaw.co.uk