Environment – Waste – Environmental offence – Sentencing – Appellant pleading guilty to environmental offences – Appellant appealing against sentence as being manifestly excessive – Whether judge erred in application of Sentencing Council’s guideline on environmental offences – Appeal dismissed
The appellant was the operations director and technically competent person within a family skip hire business. The company occupied premises at The Forge on the outskirts of Kidderminster, Worcestershire, below which ran a canal, and adjacent to which was a site of special scientific interest (SSSI).
The nature of the business was to receive payment from those who used its facilities to dispose of their waste, and to make further profit by extracting and selling on some of that waste. What was unsaleable had to be disposed of at a cost to the company.
The company needed and obtained an Environment Agency permit which required it to put in place a management system to identify and minimise the risk of pollution. An obvious major risk of pollution was that of fire, because contaminant-laden smoke would very likely affect the town and fire water the adjoining canal and site of special scientific interest. Some measures were put in place but proved to be wholly inadequate.
By mid-2012 the company had become financially strained. To avoid the cost of disposing of the unsaleable waste off-site, a practice had developed of allowing it to remain on site and accumulate in vast quantities. Following neighbours’ complaints of the smell and an increase in vermin, in the late summer of 2012 the respondent Environment Agency visited and pointed out to the appellant the risk of self-heating fire breaking out.
Following two serious fires in 2012 and 2013, the appellant pleaded guilty to being the officer of a company which committed offences contrary to regulation 38(2) and 41(1) of the Environmental Permitting (England and Wales) Regulations 2010 and sections 33(1), 33(6) and 157 of the Environmental Protection Act 1990.
The appellant appealed against sentence on the ground that the sentence was manifestly excessive because the judge erred in the way he applied the Sentencing Council’s Definitive Guideline on Environmental Offences.
Held: The appeal was dismissed.
(1) The guideline identified levels of culpability as deliberate, reckless, negligent and low or none. It defined “reckless” as involving actual foresight or wilful blindness to the risk of offending and the risk nevertheless taken. It defined “negligent” as committing an act or omission which a person exercising reasonable care would not have committed. As to harm, it provided categories 1-4 in descending levels of seriousness. Category 2 set out five examples of relevant harm: (i) significant adverse effect or damage to air or water quality, amenity value or property; (ii) significant adverse effect on human health or quality of life, animal health or flora; (iii) significant costs incurred through clean-up, site restoration or animal rehabilitation; (iv) significant interference with or undermining of other lawful activities or regulatory regime due to the offence; and (v) risk of category 1 harm. Category 3 involved similar criteria where the adverse effects, costs and risks were at a lower level.
Amongst the aggravating features listed, a number could also be classed under step 3 harm, such as the location of the offence near housing, schools, livestock or environmentally sensitive sites, repeated incidents of offending or offending over an extended period of time, established evidence of wider/community impact, and an offence committed for financial gain. If a feature was used by the judge to place wrongdoing in category 2 harm, or to move it up that category, the same feature could not be used again as an aggravating feature to elevate the offending into category 1. However, in the present case, there were ample findings made by the judge to justify him finding harm at the top of category 2, with other features available to aggravate the offending well beyond that. Accordingly, the wording of step 4 allowed the judge to impose concurrent sentences of nine months’ imprisonment, suspended for 24 months, with 180 hours of unpaid work on each concurrent.
However, even if it did not, no-one committing such offences should think that multiple aspects of his/her wrongdoing, however grave, would receive no punishment simply because they all fell within one category of harm. It could never have been the intention of the Sentencing Council to so limit or constrain the duty of the judge in assessing the features of the case before him/her.
(2) Although in broad policy terms, the Sentencing Council might have taken the Environment Agency’s Common Incident Classification Scheme as part of its source guidance, that was not a reason to read the guidelines as subject to constraints imposed by the scheme, which was not an instrument designed to address sentencing by the criminal courts.
Section 125(1) of the Coroners and Justice Act 2009 provided that in sentencing the court had to follow any relevant sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so. Where the interests of justice required it, the court might step outside the guidelines, which were not meant to be a straitjacket.
Whether by application of the guideline or by stepping back and taking an overall view of the total wrongdoing committed by the appellant, his very high level of recklessness together with the large number of features of harm and aggravation, tempered by his personal mitigation and his very late pleas, mean that the sentence imposed could not be described in any way as either manifestly excessive or wrong in principle. Indeed, to the contrary, the court could envisage that some judges, bearing in mind the utmost importance of protecting the environment, might not have suspended the sentence.
Samantha Riggs (instructed pro bono) appeared for the appellant; Tim Pole (instructed by Environment Agency) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Environment Agency) v Lawrence
