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 QUESTIONCURRENT
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.
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
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
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