New guidelines on sentencing in relation to environmental offences were published on 26 February 2014. The guidelines were prepared following a consultation exercise, conducted by the Sentencing Council, between March and June 2013.
Background to the consultation
The consultation came about following the Sentencing Council receiving requests to produce guidelines from a range of parties, specifically relating to environmental offences. Examples of the concerns raised, along with findings from research conducted by the Sentencing Council, are set out below:
- Levels of fines not being high enough to reflect seriousness of offence or to have a sufficient deterrent effect
- Inconsistency in fine levels for similar offences across country
- Limited guidance in the Magistrates' Court Sentencing Guidelines or Court of Appeal authority
- Lack of familiarity among magistrates with sentencing environmental offences due to infrequency with which they go to court
- Magistrates lacking confidence in assessing the seriousness of offences
- Magistrates lacking confidence at pitching fines at appropriate levels, particularly in relation to corporate defendants.
Aim of the guidelines
The overall aim of the guidelines is to promote a consistent approach to the sentencing of environmental offences across England and Wales. In particular, that the levels of fines are proportionate to the seriousness of the offence so that offenders are punished, deterred from committing more crime and if they have obtained an economic benefit by committing the offence, receive an appropriate financial penalty.
The guidelines set out specific offence ranges for each type of offence along with a number of categories which reflect the varying degrees of seriousness. The court should determine the offence category following consideration of culpability and harm factors, which are set on a sliding scale. Having determined the offence category, the court is referred to starting points and ranges. For organisations, these are dependent upon the size of the organisation. The court should then consider further features of the offence (such as aggravating and mitigating factors) that warrant adjustment of the sentence within the range.
Credit for a guilty plea is taken into consideration only after the appropriate sentence has been identified.
Scope of the guidelines
The guideline covers sentencing for the following legislation:
- Section 33 of the Environmental Protection Act 1990 – unauthorised deposit of waste (fly-tipping)
- Regulations 12 and 38 (1), (2) and (3) of the Environmental Permitting (England & Wales) Regulations 2010 – illegal discharges to air, land and water.
In addition, the guideline provides general guidance for sentencing other relevant and comparable environmental offences and provides an indicative list of such offences.
Who do the guidelines apply to?
The guidelines apply to all individuals aged over 18 along with organisations.
When do the guidelines come into force?
The guidelines come into force on 1 July 2014, regardless of the date of the offence. It is however anticipated that courts will no doubt refer to the guidance, going forward, when considering sentencing options for offenders.
Anticipated effect of guidelines?
It is anticipated that offenders are going to face increased sentences as a result of the guidelines, with larger companies open to substantial financial penalties. It is, however, anticipated that the guidelines will provide greater assistance to lawyers in advising clients as to potential sentences.