All Change in Environmental Prosecution Sentencing

09 Jun

All change in environmental prosecution sentencing
And so, at last (and for my money not a moment too soon), both prosecution and defence can look forward to a more unified approach to sentencing practice when it comes to environmental prosecutions.

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​“The environment is everything that isn't me”.  - Albert Einstein

And so, at last (and for my money not a moment too soon), both prosecution and defence can look forward to a more unified approach to sentencing practice when it comes to environmental prosecutions.

The Sentencing Guidelines Council, following consultation, have produced specific guidelines which will come into force from 1st July 2014, both in the Crown and Magistrates courts.
Following the now familiar excitingly chunky and colourful format which many practitioners know and love, the guidance spells out (in a lurid green – as is fitting) a staged process for considering a variety of offences.

No doubt others will have experienced the somewhat unnerving situation where advising the client becomes far to much of a guessing game. Given that the majority of common environmental prosecutions attract financial penalties; the levels of fines have always been difficult to gauge. 

In some cases it seemed that they were almost as dependant on the existence and extent of righteous indignation on behalf of the court, than on the facts of any particular case. The new position is, I’m sure you will agree, much clearer.
The primary focus is placed on section 33 of the Environmental Protection Act 1990 and its attendant regulations; although a framework has also be provided under the more nebulous title of ‘Other Environmental Offences.

This includes breaches of abetment notices, section 34 EPA 1990 duty of care prosecutions as well as more arcane offences such as those under the Transfrontier Shipment of Waste regulations 2007.

Helpfully, separate guidance has been provided for when offences pertain to individuals as opposed to organisations. Detailed consideration is to be given to the involvement, intention and precise actions of parties tailored to the factual circumstances of any individual case.

A range of options is set out to cater for cases in which the Defendant’s actions range from deliberate, reckless, negligent and finally cases which involve no, or low culpability. This is likely to be invaluable in assessing the impact of any punishment – and goes a long way to removing the uncertainty which could lead to individuals being financially crippled, whilst leaving companies happily paying a fine which amounts to little more than a drop in the ocean, or  a minor irritation at best.

Parties should note, in particular, the guidance which sets out the nature and extent of the financial information which the courts will need to see prior to the imposition of any finical penalty. Those defendants who may be disinclined to assist should note that:
“Failure to produce relevant recent accounts on request may properly lead to the conclusion that the company can pay any appropriate fine.”

Offenders which are companies, partnerships or bodies delivering a public or charitable service, are expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status.

In the absence of such disclosure, or where the court is not satisfied that it has been given sufficient reliable information, the court will be entitled to draw reasonable inferences as to the offender’s means from evidence it has heard and from all the circumstances of the case.

In short – you have been warned.

Any guidance in this area represents a welcome step forward, and will be a welcome change to watching courts flailing around seeking some divine inspiration before passing sentence.

The fact that the guidance also examines and specifically sets out considerations as to both compensation and confiscation will also be of huge assistance to those who practice in this area.

It is also important to note, that with the existence of more concrete guidance on the anticipated level of fine (or other punishment), and the nature of the deterrent this is likely to be, those who are subject the various tests for prosecutors will be able to much more accurately analysis a decision to prosecute, in comparison to using an alternative means of disposal. 

The Guidelines are available to download at:

http://sentencingcouncil.judiciary.gov.uk/docs/Final_Environmental_Offences_Definitive_Guideline_%28web%29.pdf

Only time will tell whether they will ultimately be effective, but for the moment they certainly mark the start of a far more consistent approach to such cases.

Jonathan Underhill

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