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Companies to pay high price for enviromental incidents

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Last week heralded a new era for the sentencing of those who commit environmental offences. New guidelines for the sentencing of environmental crimes were published by the Sentencing Council. These will inevitably result in a significant change for the punishment of offenders and heavier sentences for larger companies who commit serious environmental offences.

The guidelines have been introduced to ensure a consistent approach to environmental offences is taken by courts in England and Wales.  Whilst guidelines have been around in the Magistrates' Courts for many years, a perceived lack of familiarity with these led to concern that environmental offences were not deal with consistently. There were wide variations in the fines imposed for similar offences in different courts, and the Sentencing Council, which ensures that courts across England and Wales adopt a uniform approach, concluded that the levels of fines being imposed were often too low and did not reflect the seriousness of the damage caused to the environment.

The guidelines cover a wide range of offences under the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010. These include illegal disposal of waste such as fly-tipping, breach of the waste permitting regime and failure to dispose of waste correctly. The guidelines also apply to cases where an operator's activities are creating a "nuisance" to local residents due to noise, odour, dust or emissions.

Companies can face unlimited fines in the Crown Court for offences such as operating a waste disposal facility without a permit (or in breach of permit conditions), or causing water pollution. Prior to the new guidelines, fines handed down by courts were well below £1m, but the new guidelines mean that illegal discharges or operations could result of fines of up to £3m in the Crown Court for the largest companies and the most serious offences.

The new guidelines are intended to remedy the perceived problems with the previous sentencing system.  The council said: "[These changes] encourage Magistrates to make more use of the highest levels of fines for some of the more serious offences that come before the courts. Corporate offenders committing serious offences, who are likely to be those causing most damage or risk to health, are expected to get higher fines."

Companies at risk of committing environmental offences due to the nature of their activities will be those most likely to feel the full force of the new guidelines. The higher fines proposed are a significant shift from the levels of fine currently imposed on offenders. There is a new "tariff based" system which recommends starting points and ranges for different categories of offence, which are based on the company's turnover and the environmental impact of offender's actions.

The new guidelines mean that, in future, punishment of environmental offences is going to be very different to that we have seen in the past. Those companies whose activities are more likely to impact on the environment need to fully understand the legislative framework that applies to them, so they can (so far as possible) avoid any breach of the legislation. Examples of those companies most at risk would be those in the waste management sector, the utility sector, or manufacturing industry. If proactive advice has been sought, should the worst happen, such companies are then well placed to limit the impact of any incident or enforcement action on their business.