Select Committee on Environmental Audit Written Evidence


APPENDIX 8

Memorandum from Mr Richard Kimbling[2]

INTRODUCTION

  1.  This memorandum addresses the second and third questions posed by the Inquiry: (2) are current penalties adequate; (3) should alternative penalties be developed?

  2.  This evidence arises from reading the report and evidence from the first Inquiry. I saw that there was, understandably, little evidence from those who find themselves prosecuted or from those who have the burden of determining the appropriate sentence in environmental and related sorts of case. Therefore this memorandum aims to assist the Inquiry with some data and general experience. The evidence is no more than a note of my understanding of the way in which these cases are currently dealt with, informed by an interest and practice in environmental and regulatory crime.

  The key points which may assist the Inquiry are:

    (i)  It is neither desirable nor necessary to distinguish fines and guidance according to the regulatory sector into which they fall.

    (ii)  Penalty in environmental cases is in line with other, similar, types of case.

    (iii)  The courts presently have a body of guidance on sentencing in cases concerned with protection of human health, public safety and the environment.

    (iv)  A broad framework of appropriate fines may be identified, and is evolving from the reported cases and fines. If Parliament wishes to see fines increased, it simply has to increase the maxima on summary conviction.

    (v)  Prosecutions are becoming more effective, principally in respect of evidence of harm arising from offences and financial gain or costs savings by defendants. This is an area which is in need of consistency and clarity of approach.

    (vi)  Alternative approaches to sentencing certain types of corporate offender would be effective if they resulted in improved understanding, by the defendant, of environmental hazards.

SECOND QUESTION—CURRENT PENALTIES

Environmental Crime cannot be considered in isolation.

  3.  Penalty for environmental crimes cannot and should not be limited to any particular regulatory area, as has been suggested[3] The guideline case of R v F Howe (Engineering) Ltd[4] has become not only the principal guidance in health and safety cases but is also the root of guideline environmental cases. The similarity of sentencing principles in both areas of regulation is shown by reliance on Howe in Milford Haven[5] and in the Magistrates Association Guidelines which are concerned with Sentencing Companies for Health, Safety and Environmental Offences.

  4.  In the same way that the courts cannot consider penalty for environmental crime in isolation from its other sentencing tasks, neither can Parliament.

Are Current Penalties for Environmental Crime in Line With Related Offences?

  5.  To continue the analogy, if one compares average fines in environmental cases with those in health and safety cases one finds them to be of the same order, but environmental offences are apparently slightly lower.

  6.  However it is clear that, on average, the Environment Agency charges more offences against a defendant (about four charges per case) than does the Health and Safety Executive (about 2 charges per case). When this is taken into account, the average fines are indeed similar (Annex 1). Hence one can see that the courts are applying the principle of "totality", namely that the overall penalty is to be determined in the round, not just by toting up the number of offences and multiplying that by an amount per offence.

Sentencing Principles and Guidelines

  7.  There can be no tariff for environmental offences (Annex 2).

  8.  In terms of sentencing principle, interesting questions remain unanswered:

    (i)  should an offence which puts human life and limb at risk result in a heavier penalty than one which puts aquatic life at risk?

    (ii)  water pollution offences are truly strict (you don't really have to do anything wrong to commit them), cf. health and safety offences for which the whole scheme of the legislation is to impose a duty to do what is reasonably practicable (wouldn't it be better to place those conducting an undertaking under a duty to avoid pollution and prosecute for that breach rather than limit prosecution to the occurrence of polluting events?)

    (iii)  for water pollution offences, how relevant to sentence is it that there is no statutory defence of having used all due diligence to avoid the offence, cf waste offences, consumer protection offences etc?

  9.  It is a feature of water pollution offences that even where there is environmental harm, the water body and its ecosystem recovers, even in the bad cases (for example, Milford Haven, op cit). Unhappily, this is not so in the case of unlawful deposit of waste. The bad cases in which large amounts of waste are deposited on farmland are often left untouched. The reasons include cost and the risk of causing more harm in removing the waste than leaving it in situ.

Types of Offence and Defendant

  10.  There is an infinite variety of case and defendant. However, the normal run of cases which come frequently before the courts do fall into categories. The bulk of cases comprise:

    (i)  Water pollution and waste offences by water and waste management companies.

    (ii)  Water and waste pollution from the construction industry.

    (iii)  Unlawful tipping of waste soils and construction materials, either through ignorance of the relevant controls or deliberately avoiding them.

    (iv)  Uncontrolled releases to the environment on agricultural land.

    (v)  Packaging offences.

  11.  The reality is that the bulk of corporate offenders are small to medium size businesses for whom the total of fines and prosecution costs represents a significant financial burden. The means of the offender are rarely reported and so those not in court will not appreciate the balancing exercise which the court has performed: the gravity of the offence on the one hand and particular defendant on the other.

  12.  As in any other offence, overall culpability is the prime consideration in determining sentence, but the absence or extent of environmental harm is a key factor in sentencing environmental crime. Evidence of harm is provided by Environment Agency officers. It is important that they understand the significance of their evidence.

  13.  All defendants hate to be prosecuted and the larger they are, the more they hate it. The Inquiry should not underestimate the effect of the prosecution itself. The financial penalty is not necessarily the most important outcome; it is often the fact of conviction.

  14.  That said, the fine must be at a level to make some impact on the company and overcome any suggestion that it is cheaper to pay fines than undertake work that is necessary to prevent the offence in the first place (per Scott Baker LJ in Anglian Water).

  15.  Given the considerations above, criticism of current penalties probably arises from a lack of understanding some of the factors which a court properly considers. If Parliament wishes to see fines increased, it simply has to increase the maxima on summary conviction, but even then it will remain a basic principle to fine corporate defendants according to their culpability and their means.

Third Question: Alternative Penalties for Corporate Offenders

  16.  It is very easy to find statements to the effect that fines are too low environmental offences. It is much more difficult to find any view expressed by those companies and individuals who have been through the criminal justice system and seen how it decides their cases. There is no evidence or study of how fines affect the future behaviour defendants, save when they re-appear before the court.

  17.  In contrast, the Lord Chief Justice and Home Secretary continue to advocate methods of disposal of criminal cases by means which rehabilitate offenders. Their approach is to give offenders an opportunity to amend their behaviour, not to increase the element of punishment by way of longer custodial sentences. The contrast is an obvious and stark one.

  18.  It has been remarked upon in cases in the Crown Court which result in community sentences, that a community penalty is particularly well suited to environmental crimes.

  19.  It is a contrast which prompts the question, why is there no order available to a court to require that a defendant company, if it consents, to send employees or directors on a particular course or programme?

September 2004

Annex 1

A COMPARISON OF AVERAGE FINES IN ENVIRONMENTAL AND HEALTH AND SAFETY CASES

  The background information available to the court of appeal when it decided Howe was "In the early 90s Parliament introduced the exemplary maximum fine of £20,000 for breach of the general duties under sections 2-6 of the [Health and Safety at Work] Act where the offence is dealt with summarily. Following this the average fine in the magistrates' courts (per offence prosecuted) for breaches of the general duties increased from £844 to £2,110 in 1992-03 and this has since risen to £6,223, but is still less than the maximum of £20,000. In the Crown Court where the level of fine is unlimited the 1997-98 average fine per offence was £17,768."

  The low level of fines in health and safety offences was recognised in Howe.

  In its report in prosecutions during 2002-03, the HSE reported a reduction in average fines in comparison with the previous year and no substantial change since Howe was decided. It expressed its disappointment, the author of the report said "I believe there is a case to answer about the low level of health and safety fines." The average fine per case was £8,828 in 933 cases prosecuted and 1,688 offences alleged. Part of the explanation given for this outcome is that there were fewer large fines during 2002-03 than previously. If fines in excess of £100,000 are excluded, average fines were £5,796 in 1997-98 and £8,255 five years later, having adjusted for inflation.

  In its evidence to the Environmental Audit Committee, the Environment Agency reported that it prosecuted 737 cases in 2002-03 and alleged 2,890 offences. This was an increase of 16% of cases prosecuted and an increase of 27% in the number of offences charged since 1999. The average fine per case was £4,424, with significantly different average fines for different type of environmental offence (higher for water quality offences, lower for waste offences).

  The ERM report does not analyse its data by reference to the real features of environmental crime in different regions. This is not a criticism of the report, but explanations of some of the data should be obvious to those in practice. For example, the average fine in Wales is rather lower than elsewhere—£4,812 for the London area and £1,650 in Wales. Many of the Welsh defendants are associated with agriculture. It is well known that hill farming has suffered recent economic hardships and it is both a reflection of the defendant's average means and a positive feature of local justice that setting of financial penalties takes account of local conditions.

Annex 2

THE FRAMEWORK OF FINES AND GUIDANCE

  The court of appeal has consistently stated that a rigid tariff on the level of sentence is impossible. Lord Taylor CJ in R v F&M Dobson [1995] 16 Cr App R(S) 957, a food safety case, said No cases in the Crown Court comparable to the present one are available for comparison. There are no guidelines as to the level of sentencing. Perhaps it is difficult for there to be any guideline, since the circumstances in which offences of this kind occur are infinitely various. This was precisely the view taken in Howe, ie "We shall endeavour to outline some of the relevant factors that should be taken into account. In doing so we emphasise that it is impossible to lay down any tariff or to say that the fine should bear any specific relationship to the turnover or net profit of the defendant. Each case must be dealt with according to its own particular circumstances."

  An evolution of a framework of cases for comparison is anticipated in R v Yorkshire Water Services [2002] Env L.R. 18, 449 at p 454 per Rougier J. "So care should be taken to fit any penalty within the framework of previously imposed fines. So in the light of the main variables which will exist we think that any rigid approach is not realistic since that framework will necessarily be wide." Hence, the usual practice in the court of appeal of relying on previous appeal cases to support a ground of appeal that a fine is manifestly excessive is unlikely to assist greatly; see R v Yorkshire Sheeting and Insulation Ltd [2003] Cr App R (S) per Davis J only limited guidance may be obtained from the citation of such authorities; as explained in Howe at 254b, it is impossible to lay down a tariff in cases of this kind; each case must be decided by reference to its own circumstances.

  Hence it is necessary to turn to the guideline cases and the published guidance. The gravity of the breach[6] or the degree of culpability[7] has to be assessed. The aggravating and mitigating features which have been identified by the court of appeal are:


      Injury or damage  Prompt admission of responsibility

      Running risks for profit  Steps to remedy deficiencies

      Extent of danger created  Good record

      Extent of the breaches

      Failure to heed warnings

  Having assessed the above, the guidance in Yorkshire Water is that "a balance may have be struck between a fitting expression of censure, designed not only to punish but to stimulate improved performance on the one hand, and the counter productive effect of imposing too great a financial penalty on an already underfunded organisation on the other . . . Finally it must be correct to determine what the penalty for one incident should be rather than tot up the various manifestations of that incident as reflected in the counts on the indictment."

  The Sentencing Advisory Panel, in its first advice to the court of appeal had suggested that it might be possible to express the fine as a percentage of one or more of turnover, profitability and liquidity. This possibility was effectively rejected in Yorkshire Water[8]but the concept of measuring the penalty for an offence within the framework of previous decisions was accepted and applied in R v Anglian Water Ltd [2003] EWCA 2243 in which Scott Baker LJ said, at para 31 of the judgment " . . . we think the fine of £200,000 was manifestly excessive for this single offence, particularly when measured against the total fines of £80,000 in the Yorkshire Water case."

  The appeals against sentence in Table 1 are not representative of the whole spectrum of such fines. There are few appeals from fines over £1 million, but there is a number of cases in which such fines have been imposed. Five of them were reviewed in Milford Haven.







2   Richard Kimblin PhD, Barrister, No 5 Chambers. Back

3   De Prez, P. "Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecutions" [2000] J. Env. Law 12(1). Back

4   [1999] 2 Cr App R (S) 37. Back

5   [2000] JPL 943 CA. Back

6   Per Scott Baker J. in Howe (op cit) at p 43. Back

7   Per Rougier J. in Yorkshire (op cit) at p 453.

 Back

8   Op cit at p 454. Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 8 February 2005