Memorandum from the Environment Agency
SUMMARY
Environmental offending is multi-faceted, involving
not just the causing of pollution to land, water or air which
may have long term consequences, but also encompasses the breach
of complex Licence conditions. The Agency's task may also involve
not just protecting the environment but also public health as
many serious offences can result in long term impacts. The primary
aim of the Agency is to prevent or minimise harm to the environment
and it has a range of enforcement and other powers to deploy.
For instance the serving of formal Notices requiring specific
action, the prohibition of specific activity, or the revocation
of a permit. The Agency also has a broad range of criminal powers
aimed at punishing and deterring offenders including formal prosecutions.
This Memorandum deals mainly with this last aspect of the Agency's
activities.
The process for sentencing of environmental
offenders continues to develop. Improvement is slow and this may
in large part be due to the fact that very few magistrates or
judges deal with environmental cases on a regular basis. Guidance
to the courts on fine levels would be desirable particularly in
relation to corporate offenders along with a wider range of sentencing
options.
— The number of environmental incidents
reported to the Agency remains relatively constant at about 45,000
per annum The vast majority relate to unregulated, unpermitted
sites.
— The Environment Agency has been taking
more prosecutions in relation to environmental offending but average
fines are only rising very gradually. This is a general pattern
for other environmental regulators as can be seen in the DEFRA/ERM
Report at Annex 1.
— The Magistrates Association initiative
in producing guidance in October 2002 on the sentencing of environmental
and health and safety offences has assisted the process. This
could be repeated to advantage at Crown Court level but the production
of tariff guidance which indicated a suggested financial "entry
point" would assist all involved in the sentencing of offenders.
— Serious offences are attracting appropriately
large penalties despite variations on appeal.
— We are however not seeing general
deterrence in respect of large scale, organised unlawful activity,
(particularly in the waste disposal field), probably due to the
profits that can be made.
— It is considered that the ability
of the Agency to impose "administrative penalties" on
regulated bodies for limited types of offending, (eg failure to
provide data returns) thus removing them from the court process,
would enable courts to concentrate on the more obvious types of
environmental offending.
1. INTRODUCTION
The Environment Agency is the principal regulatory
body for environmental regulation in England and Wales. Its remit
covers granting enforcement of environmental licences, the apprehending
of serious illegal unlicensed activity and the prosecution of
environmental offences.
In the exercise of its enforcement and prosecution
activities the Agency follows its own publicly available Enforcement
and Prosecution Policy and Functional Guidelines. It also adheres
to the Code for Crown Prosecutors.
The Agency has contributed heavily this year
to two significant reports both commissioned by DEFRA, into the
area of environmental justice (see Annexes 1 and 2.) It has provided
data on its enforcement activities along with interpretation and
comment. The first study undertaken by ERM on behalf of DEFRA
(Annex 1) focused on Environmental Sentencing. The second undertaken
by Leigh Day and Co., Solicitors in association with WWF and ELF
(Annex 2) considered the issue of Access to Environmental Justice.
2. THE AGENCY
HAS ADDRESSED
THE SPECIFIC
QUESTIONS RAISED
BY THE
SUB COMMITTEE:
(1) Are the scale and nature of sentences
for environmental crimes commensurate with the seriousness of
the crimes themselves?
Offence provisions in relevant statutes lay
down the maximum sentences available in both the Magistrates and
Crown Court. In general in a Magistrates Court the maximum fine
is £20,000 per offence. In the Crown Court the fine can be
unlimited. Additionally, except for corporate offenders, most
offences carry the possibility of a custodial sentence of six
months in a Magistrates Court per offence with a total maximum
of 12 months. In the Crown Court the maximum custodial sentence
can be two years, rising to five years for offences involving
special waste. Community punishment is possible as an alternative
to a custodial sentence in the form of either a Community Punishment
Order or Community Rehabilitation Order. In addition courts may
also make Compensation Orders in respect of injury, loss or damage
suffered by a victim. Some statutes also carry provision for remediation
orders.
It should be noted that corporate offenders
cannot be made subject to custodial or community penalties.
The Agency's view is that sentencing powers
for small, medium enterprises (SMEs) and individuals are already
sufficient, although the actual sentences imposed do not on many
occasions reflect the seriousness of the case. The difficulty
for courts however, when dealing with either SMEs or larger companies
is that there is no guidance by way of tariff to indicate a suggested
value for any fine imposed having regard to the gravity of the
particular offence. This is unlike the situation for "ordinary"
criminal offences where magistrates and Crown Courts are provided
with suggested penalties based on gravity and means of the offender.
The Agency has twice sought unsuccessfully to obtain such guidance
from the Court of Appeal. The lack of a tariff has led to inconsistency
in sentencing between courts in particular at Crown Court level.
Graphic examples are:
EA v Milford Haven Port Authority: Fine
of £4 million reduced to £750,000 by Court of Appeal—the
case involved the escape of thousands of tonnes of crude oil from
a holed tanker onto the beaches of South Wales.
R v Yorkshire Water Services Ltd: Fine
of £119,000 reduced to £80,000—the company had
supplied water unfit for human consumption on four separate occasions
affecting hundreds of properties and faced a total of 17 charges.
R v James, James and James & Gilbert
Gardens Nurseries—thousands of tonnes of waste dumped between
1999-2000—18 offences—the individual offenders fined
a total of £750 and the company £80 at Cardiff Crown
Court
However, for large-scale corporate offenders
the Agency believes there to be scope for the creation of sentencing
provisions additional to fines. The Agency has lobbied for Corporate
Governance provisions that could provide for a duty of care on
environmental issues; annual reporting of environmental performance
and other issues. Additionally the Agency has worked in the past
with the Home Office on consideration of additional sentencing
options namely equity share issues, (which would directly affect
shareholder value and therefore ensure that a company changed
its practices); corporate bonds,(where a company would lodge money
with the court for a finite period as a guarantee of environmental
compliance); corporate probation and community projects. The use
of civil (or administrative) penalties has also recently been
canvassed such as are used to good effect in other jurisdictions
and the Agency would welcome an in -depth review of alternatives
to financial penalties. These could provide alternative options,
where for instance a company was in financial difficulty and a
court felt unable to impose a high fine which might hasten its
liquidation. Also they may be of use where an organisation was
publicly funded so that imposition of a high fine was effectively
a tax on the public purse.
Although there exists guidance for sentencing
courts as to the criteria which should be taken into account and
the Court of Appeal case R v F R Howe and Sons (Engineers)
Ltd [1999] 2 All ER gives very helpful guidance in relation to
the sentencing of corporate offenders it does not provide a tariff
or sentencing "bracket" providing an approximation of
the value of any fine. It is that lack which the Agency believes
has led to inconsistencies.
(2) Are sentences appropriately set to act
as a deterrent?
As referred to above there is inconsistency
in sentences that are imposed by courts. Attached at Annex 3 is
a schedule of average fines over a four-year period. It can be
seen that the average has risen only slightly from £4.1 thousand
to £4.4 thousand per annum. However in this same period there
has been an overall rise in the number of prosecutions brought
by the Agency from 638 to 737 (+16%) (see Annex 4.) Furthermore
in respect of waste offences (which represent the highest number
of prosecutions) the number has risen from 446 to 511 per annum
(Annex 5) and the average fine has risen from just £2.2 thousand
to £2.7 thousand.
The Agency in addition publishes on an annual
basis in its Spotlight on Environmental Performance, a league
table of the worst offenders. This has proved effective in publicising
the deficiencies of corporate offenders. It is apparent that some
companies are repeat offending, in particular the water companies
and the larger waste management operators, (see Annexes 6 and
7). In fairness to these operators the nature and scale of their
businesses makes it more likely that this will happen. However
these companies have demonstrated extreme concern over repeated
court appearances which indicates that adverse publicity associated
with court appearances can act as a deterrent.
The Agency's view is that court appearance and
sentencing deters most of the regulated operators as they are
sensitive to the public exposure. However, in relation to high
value, repeated,unlawful activity (in particular practised in
the waste disposal field) it is felt that (apart from the individual
fly-tipper who has been caught and taken before a court) there
is no general deterrence. Generally sentencing is not such as
to be sending out stark messages to determined offenders, especially
those who are operating in a large scale quasi-professional capacity.
It may be that the risk of being apprehended is perceived to be
low along with the likely sentence. The adoption of confiscation
provisions contained in the Proceeds of Crime Act 2003 may help
to change this situation but they can only be applied following
detection and conviction of the offenders. If they are applicable
however they would enable the Agency to apply to courts to confiscate
assets to the value of the benefit realised from criminal activity.
This could be a most powerful deterrent. The Agency is also currently
working to enhance its intelligence capabilities along with forging
closer links to other enforcing bodies such as the Police, Inland
Revenue and Customs and Excise so as to confront such criminality.
(3) Is environmental sentencing sufficiently
flexible to ensure that offenders, whatever their means are punished
appropriately?
This issue has been touched upon at (1) above.
Sentencing of environmental offences is dealt with by courts in
exactly the same way as the sentencing of other offences save
for the lack of tariffs. This is of particular concern with regard
to large financially secure corporations who may be perceived
to be saving money at the expense of the environment. The courts
find such corporate offenders difficult to sentence and there
may be some scope here for consideration of civil penalties and
other alternatives. (Note for instance the recent comments of
HH Judge Tabor at Gloucester Crown Court on 5 December when sentencing
the waste disposal company Cleansing Services Group (CSG) for
a range of offences, who referred to this problem of a lack of
guidance after hearing the details of a complex case—nevertheless
he imposed a fine of £250 thousand together with costs of
£400 thousand). The issue of training of Judges and other
sentencers is addressed in the next section.
(4) Is the guidance currently available to
magistrates and other courts appropriate and sufficient to ensure
that sentences for environmental crimes are set at a level which
properly reflects the damage caused by the crimes and the need
to deter future crimes?
The Agency has worked hard with the Magistrates
Association to provide what guidance it can to magistrates. The
Agency initially assisted in the drafting of guidance issued in
May 2001 by the Magistrates Association to its members on "Fining
of Companies for Environmental and Health and Safety Offences".
Subsequently the Agency has contributed to the preparation of
training materials entitled "Costing the Earth" which
has been available on line and in hard copy since October 2002
to all 28,000 members of the lay magistracy. Regionally in the
Agency, considerable training has been provided to local Benches
of magistrates who have expressed an interest in learning more
about environmental offending.
To date the Crown Court judiciary has not received
such training nor has there been a partnership to formulate guidelines
for sentencing at Crown Court level. However the Court of Appeal
in the recent case of R v Anglian Water Services Ltd approved
the Magistrates Association guidelines and these are now brought
to the attention of all sentencing courts.
In addition courts are encouraged to take account
of the cases of R v Friskies Petcare Ltd 2000 2 CAR(S)
401 and R v F R Howe & Son (Engineers) Ltd [1999] 2
All E R. These important decisions, along with the Magistrates
Association Guidelines are routinely brought to the attention
of courts by Agency prosecutors. Courts should also have access
to the Costing the Earth training pack.
The Friskies case directs that the salient points
of each offence are set out in writing together with the aggravating
and mitigating features and that these should, where possible,
be agreed between the parties before plea. The Agency has adopted
this procedure and this led in the recent case mentioned above
(CSG), to the imposition of the highest fine, £250,000, along
with £400,000 costs, yet imposed for waste offences in England
and Wales.
The R v Howe case sets out the criteria
and factors which should be taken into account by courts when
sentencing corporate offenders and is authority for the proposition
that any fine should be large enough to send a message to the
company and the share holders, so that if necessary it should
change its practices and procedures. It also requires the defence
to produce details of their financial position.
(5) Are Magistrates and other courts following
any guidance available?
Whilst training has been offered and made available
to all magistrates the likelihood of a particular magistrate dealing
with an environmental case is remote due to the infrequency of
such cases coming before the courts (approximately 800 cases per
annum to be dealt with by 28,000 magistrates). Thought should
therefore be given by the Dept of Constitutional Affairs to nominating
individual magistrates/District Judges to handle environmental
cases. The same approach could also apply to Judges as only a
small proportion of the Agency's cases (approximately 10%) are
dealt with at Crown Court level. There would be no cost implications
for such a proposal and it would have advantages in limiting the
number of individuals who would require training and refresher
training.
As yet average fines and the number of custodial
sentences imposed have not increased. However, the most serious
cases dealt with by the Agency are beginning to attract appropriately
large penalties (see Annex 9) and it is hoped that the trend will
continue. Certainly prosecutors are reporting a perception of
a greater confidence, understanding and awareness by sentencers
of the applicable factors when handling such cases. It is hoped
that in due course the benefits will become apparent.
(6) To what extent are courts sentencing
on the basis of broad environmental principles including the principle
of sustainable development?
The legislation, which sets out the offence
provisions, is drafted against the backdrop of broad environmental
principles. Courts are made aware of these principles, but as
mentioned earlier, it is the Agency's view that sentences could
be far harsher.
The Agency's Enforcement & Prosecution Policy
and Functional Guidelines set out the criteria for its decision
making in relation to enforcement activity. These encompass enforcement
by way of formal Notices (which for instance can prohibit a company's
operations or revoke its Licence); the issuing of Cautions and
Warnings and prosecutions. In respect of prosecutions, courts
are encourage to reflect broad environmental principles in that
for example risk of harm should be treated with as much gravity
as actual harm itself. Courts are also given an indication of
the likely direct cost of the unlawful behaviour and its wider
implications for the environment for instance its effect on sustainable
development. Any risk to human health for instance, or obvious
environmental harm eg a fish-kill or pollution effect is clearly
identified. However where clear loss or damage is not present
(perhaps because of the timely intervention of the Agency) it
is difficult for a court to identify matters of fact upon which
it will sentence rather than hypothetical risk. If the Agency
is to put an issue of risk before a court it must provide evidence
to substantiate this.
The Courts are routinely directed by Agency
prosecutors to the Polluter Pays principle and generally is awarded
its investigation and court preparation costs.
3. THE WAY
FORWARD
With particular regard to sentencing issues
the Agency would welcome the establishment of the following:
— Sentencing Tariffs to provide courts
at all levels with a suggested "bracket" or starting
point for fines.
— Nomination of specialist Magistrates
and Judges to deal with environmental casework.
— Regular training for those nominated.
— Creation of a range of alternative
sentencing provisions.
The biggest cases the Agency deals with come
before Crown Courts and are beginning to attract appropriately
large penalties, (see Annex 9). The Agency sees a need however
to have access, via the Judicial Studies Board, to Judges so as
provide appropriate training which may help in reducing the problem
of inconsistency.
Local Authorities share a responsibility with
the Agency to deal with fly-tipping. However it can be seen from
the DEFRA/ERM Report (Annex 1) at pages 37-42 that many Authorities
find this obligation difficult to fulfil. If environmental offending
is to be addressed with determination at all levels however, then
this is a difficulty that needs to be resolved.
The Agency has directed itself to issues that
might make the tasks of enforcement easier or more effective.
A "wish list" for proposed legislative and other changes
has been compiled and submitted to DEFRA the Agency's sponsoring
body. An extract from this, setting out some of the most salient
points is attached at Annex 8. Some of these are attempts to equip
the Agency with the means of dealing with the large scale and
determined offenders with whom we are confronted. In particular
better intelligence sharing with other organisations and the ability
to call on assistance and act jointly with those organisations
would be very beneficial. These, allied to powers to stop and
search vehicles, to require names and addresses and providing
a limited power of arrest until such information had been given,
would greatly enhance the Agency's capability.
January 2004
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