Over the past few months two Environment Agency prosecutions demonstrate the significant inconsistency in fines imposed by different Magistrates’ Courts. At the present time, it appear to be something of a ‘postcode lottery’ in terms of the level of fine imposed, with huge variations between different courts for what is essentially the same offence.
In the first case, at Plymouth Magistrates’ Court, South West Water pleaded guilty to two offences involving the discharge of untreated sewage from a treatment works into a tributary of the Tamar estuary. South West Water was ordered to pay £50,000 in fines.
In contrast, just two months earlier the Cowdray Estate was prosecuted for polluting 5km of a West Sussex watercourse. The pollution entered a fish farm killing over 4,000 fish. On the face of it this appears to be a much more serious incident, with the Environment Agency commenting that a large of number of fish needlessly died and a local fishery was devastated by a ‘totally avoidable incident’. However, in this case the court imposed a fine of just £5,000.
These two cases demonstrate the problem of inconsistency between different courts imposing fines for the same offence. This is the very reason why new sentencing guidelines are being introduced to assist Magistrates and Judges when sentencing environmental offences. These will introduce a tariff based system which marks a sea change in the way in which the fines for such offences are determined by the courts.
Under the new guidelines, fines will be based on three main factors: (a) the size of the company; (b) the seriousness of the incident (ranging from level 1 being a major incident to level 4 being no environmental impact) and; (c) the culpability of the offender (ranging from a deliberate offence to one committed by negligence). The new guidelines specify a starting point for the fine, but the actual fine imposed can be higher or lower than this (within a specified range) depending upon the aggravating and mitigating features present.
The fines contained in the draft guidelines are much higher than those currently imposed by the courts. For example, a medium sized company which commits a category 2 offence due to recklessness, will be looking at a fine of between £15,000 and £115,000.
In the future, ALL companies will need to be more concerned about environmental offences. Based upon what we currently know about the new guidelines, fines in the future are likely to be far higher than is currently the case.
Stephensons has a specialist environmental law team ready to assist. If you would like more information please contact us on 01616 966 229 or complete our online enquiry form.