Last month the Sentencing Council launched a new batch of proposals aimed at increasing the penalties that could be imposed on serious environmental offenders, such as fly tippers. These draft sentencing guidelines are meant to provide a framework to ensure some degree of consistency in the courts across England and Wales when dealing with environmental offences. Magistrates are being encouraged to make use of the higher levels of penalties for the more serious of the offences, both to encourage compliance with the law, and to hit offenders where it hurts with financial punishments.
The offences to which these new guidelines will apply are mostly covered by the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010. They relate to the disposal of waste of all sorts – for example, a skip company dumping the contents of a customer’s skip in a field – as well as nuisance offenders who are being prosecuted for issues, such as causing smoke, noise, dust and smells - for example a haulage company with defective or ageing vehicles.
There are also other offences that will come within the guidelines, such as breaking the terms of a waste permit that only allows a skip company to transport waste and rubbish to a disposal site by carrying out the disposal on the waste company site itself.
Katharine Rainsford, who is a magistrate and Sentencing Council member explained the motivation behind the draft sentencing guidelines: “We’re improving guidance for courts to help ensure consistent and appropriate sentences for offenders, particularly for corporate offenders who can be guilty of the worst offences.”
The consideration of the draft form of these new sentencing guidelines is an indication that the courts are going to be encouraged to take a much tougher approach with companies that engage in environmentally damaging behaviour, and that a consensus is emerging that the current penalties have simply not been strong enough.
For many companies, a penalty imposed as a result of a breach of environmental law – particularly a financial penalty of the newly increased kind – will have a significant effect on a businesses. A recent example of how substantial the fines can be was an Environment Agency prosecution concluded in December last year of a man operating a legitimate skip hire business who was not disposing of waste according with the authorisations he’d registered with the Environment Agency – this resulted in a fine of £80,000.
In order to avoid ending up on the wrong side of one of these prosecutions it is important for businesses to pay attention to the licences, authorisations and permits that have been issued, particularly any conditions that have been attached to those, such as where, how or if waste can be disposed of in a certain location.
It is rarely worth risking being in breach of any of the conditions that have been imposed, as the fines that already exist – let alone the new sentencing guidelines, if they are brought into play – could cripple a small business, particularly one already suffering from cash flow problems as a result of current economic conditions.
Stephensons is able to offer comprehensive advice on how to avoid prosecution for environmental offences, both in the current context and if these new sentencing guidelines come into force.