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New guidelines from the Sentencing Council cover a variety of offences related to the disposal of waste and rubbish mostly covered by the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010.

Environmental offences such as fly-tipping will be punished with larger fines. In addition, the new guidelines deal with nuisance offenders such as those who cause noise, smoke, dust or smells, or run premises which pose a health or pollution risk.

Magistrates are encouraged to make more use of the highest levels of fines for some of the more serious offences that come before the courts, the Sentencing Council said.

Corporate offenders committing serious offences, who are likely to be those causing most damage or risk to health, are expected to get higher fines.

There are unlikely to be significant changes to penalty levels for lower-level offences and the overall proportions of offenders receiving the various types of sentence such as fines, community sentences, discharges and prison sentences, are expected to remain the same.

Law firm Irwin Mitchell said the guidelines follow a public consultation in 2013 which took into account views from judges and magistrates, lawyers, environmental professionals and local authorities.

Irwin Mitchell environmental law specialist Cairo Nickolls said: “This is the first release of sentencing guidelines in relation to environmental offences by the Sentencing Council and it is very likely to lead to higher fines as a result.

“Businesses need to ensure that they understand the new sentencing framework and be aware that courts which are sentencing after 1 July 2014 will utilise the guidelines irrespective of when the offence took place.

“Although this is intended to create a consistent method of sentencing, it may actually result in a method of sentencing which is overly prescriptive.

“Businesses will be categorised by size, particularly turnover, and I expect there will be some level of ambiguity in relation to how the turnover of organisations will be established. In particular, I am concerned about the potential difficulty arising from sentencing a company which is part of a group of companies. The sentencing court will retain some discretion when sentencing.

“As well as turnover, the Court can also take into account the organisation’s wider financial circumstances and whether any operational savings were made by committing the breach.

“The new guidelines are significant and highlight the need for organisations affected to seek expert legal advice as early as possible.”

Liz Gyekye

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