Environmental crime to be punished severely
Maria Cull, from law firm Herbert Smith, analyses recent court rulings relating to industry and the environmentAs a result of the 2002 Annual General Meeting (AGM) of the Magistrates' Association, sentencing guidelines for magistrates have been published that should ensure greater consistency of sentencing and harsher fines for environmental crimes.
Speakers from the AGM expert panel on the environment addressed a wide range of issues, from the illegal trade in protected species to waste offences; the challenges associated with bringing a prosecution; how sentences should be determined to match the potential seriousness of the crime and how to use sentencing as a deterrent.
Magistrates can influence environmental safety and protection standards in England and Wales because the vast majority of environment-related cases are dealt with through the magistrates' courts. However, fines imposed by magistrates have remained low, much to the chagrin of environment minister Michael Meacher and the Environment Agency.
This is mainly due to the fact that magistrates have little experience in dealing with environmental cases. The new guidelines are designed to put environmental offences into perspective and to encourage consistency in sentencing. Consistency is also important for defendants, so that they do not feel fines levels are arbitrary.The guidance
The guidelines issued by the Association identify factors that should be considered when determining an appropriate sentence. They include:
- the actual degree of environmental damage - for example, the number of fish killed or the number of rare species taken from the wild;
- the risk of environmental harm - the extent of the risk involved in the offence, even if no environmental harm actually occurred;
- the duration of the offence and recurrence - whether it was a one-off or a problem that recurred over time;
- previous warnings and advice - whether warnings were given by the Environment Agency upon which the defendant failed to act or acted upon too late; and
- previous convictions and cautions - this will cause particular aggravation for defendants if the regulator can demonstrate that the defendant was aware of the risks but failed to change work practices or take other steps to prevent recurrence of the offence.
Motivation is also a key factor. For example, if it can be shown that the offence occurred due to an attempt to cut costs and the defendant is a sizeable company, it may be necessary to consider directing the case to the Crown Court, where fines are unlimited.
Actions taken after the offence must also be considered.
The cost of clean-up, co-operation by the defendant to minimise environmental damage and financial contributions made by the defendant must be taken into account.
Steps taken by the defendant to prevent or reduce the risk of similar incidents re-occurring are also a factor.Fining companies
The guidance sets out specific factors associated with fining companies. Any plea of mitigation based on the fact that a particular employee is to blame will be carefully scrutinised.
While there are cases where a company has done everything it can but has been let down by an individual, there are also cases where failures in training or supervision lead to an offence. Such failures may be considered to be aggravating factors.
Courts have made it clear that in the case of large publicly quoted companies and should the facts warrant it, fines should be substantial enough to make an impression on the company directors and the shareholders.
Companies sometimes claim that financial difficulties have led to the occurrence of an offence and that a substantial fine will lead to employees losing their jobs. The Court of Appeal has made it clear that if an offence were very serious, it would be appropriate for a fine to put a company out of business. At present, this approach has only been taken in respect of heath and safety, not environmental offences.
In most cases, courts will want to set fine levels that will have an impact without jeopardising jobs. They would normally expect to have access to fairly detailed financial analysis before making significant adjustments to a sentence that would otherwise be appropriate.