ENVIRONMENTAL ROUND-UP
New EU Emissions Directive
The new EU Industrial Emissions Directive (IED) is a step closer with a
compromise having been reached on large coal fired power plants, to
which the stricter standards it sets will not apply until 2020. The IED
aims to strengthen and consolidate the existing Integrated Pollution
Prevention and Control (IPPC) Directive (96/61/EC as amended by
2008/1/EC), combining it with six other Directives.
Buncefield defendant sentenced for Water Resources Act breach
On 16 July at St Albans Crown Court a number of the defendants in the
Buncefield case were sentenced. Better known for breaches of the HSWA,
oil company Total was also fined £600,000 for environmental
offences under the Water Resources Act. A co-defendant, British
Pipeline Agency (jointly owned by BPO and Shell) was fined for a breach
of the same provisions. The prosecution was brought jointly by HSE and
the Environment Agency.
United Utilities fined
Recently at Halton Magistrates Court, United Utilities was fined
£12,000 (+ £2,895 costs) in respect of a breach of the
Water Resources Act arising from the escape of untreated sewage into a
watercourse in Warrington. The water company failed to maintain a
stand-by pump and failed to repair a pumping station as soon as was
reasonably practicable.
Compass Regulatory Members:
Peter Gray QC
Andrew Smith QC
Mark Stewart QC
Gary Allan QC
Jamie Gilchrist QC
David Sheldon
Barry Divers
Steve Love
Susan Duff
Graeme Middleton
Amber Galbraith
Barry Smith
Yvonne Waugh
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
To view previous
Bulletins:
January 2009
February 2009
April 2009
June 2009
September 2009
November 2009
March 2010
May 2010
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SENTENCING IN ENVIRONMENTAL CRIME: A NORTH – SOUTH DIVIDE?
As recently as February this year concern was being expressed by the
environmental regulator SEPA regarding what was described as the
“derisory” level of fines imposed for environmental crimes
in Scotland. Official statistics revealed that the level of fine
imposed in Scotland for crimes of pollution or illegal dumping of waste
were, on average, £2500 compared with an average of approximately
£7500 being imposed in respect of the same class of offences in
England and Wales. Furthermore, typical levels of fine had fallen to
almost a third of the average which had been imposed in Scotland three
years ago. Colin Bayes, the director of environmental protection at
SEPA was reported by The Scotsman newspaper as stating “Scotland
has a far better environment on the whole than many parts of England
and Wales, so why does our criminal system not appear to value it the
same when it has been damaged?”
Is there really a north/south divide when it comes to sentencing in
this area? If, as the statistics appear to indicate, there has
historically been a divide, two very recent cases on either side of the
border may have gone some way to introducing a more uniform approach to
sentencing in environmental crime, and to raising significantly the
levels of fine likely to be seen in the future in Scotland.
In February 2010, in the case of R v Thames Water Utilities the
Court of Appeal in England identified the sentencing principles to be
applied in a case involving pollution of the environment, and
specifically an offence under Section 85 of the Water Resources Act
1991. In its judgment, the Court stated that there was a clear overlap
with the sentencing principles applicable in health and safety cases and the following principles would be of relevance in any offence involving environmental crime:
•
The environment in which we live is a precious heritage, and it is
incumbent on the present generation (including the courts) to play a
part in preserving it for the future.
• Punishment, deterrence and reparation are all particularly important purposes of sentence.
• The purpose of deterrence includes making clear that the overall
penalty is always likely to be more costly than any expense that should
have been incurred in avoiding the breach.
• The overall penalty should be such as to bring the necessary
message home to the particular accused before the court, in order to
deter future breaches – whether by that accused, or by other
potential offenders.
• Generally aggravating factors identified, included:
o The extent to which the company fell short of its duty, and thus its degree of culpability;
o The deliberate breaching of a duty in order to maximise its profit;
o The skimping of proper precautions to make or save money, or to gain a competitive advantage;
o Evidence of repetition, or failure to heed advice, caution, concerns
or warnings whether from the regulatory authorities, employees, or
others;
o A poor attitude and/or response after the event;
o Any previous convictions.
• Generally mitigating factors identified, included:
o A good record of compliance with the law;
o A good attitude and/or response after the incident, including prompt
reporting of the offence, co-operation, the taking of prompt and
effective measures to rectify any failures, and the payment of
compensation where appropriate;
o A timely admission of guilt and early plea of guilty.
To read Thames Water Utilities in full, follow the link:
http://www.bailii.org/ew/cases/EWCA/Crim/2010/202.html
In August 2010, in the case of HMA v Doonin Plant Limited the
Appeal Court in Scotland allowed an Appeal against Sentence brought by
the Crown on the grounds of undue leniency in relation to the sentence
imposed at Glasgow Sheriff Court in respect of an offence under Section
33(1)(c) of the Environment Protection Act 1990. It was the first
appeal ever brought by the Crown in relation to sentencing in
environmental crime. In allowing the appeal, the Appeal Court
substituted a fine of £90000.00 for the original fine of
£8000.00 which had been imposed following a plea of guilty.
Although in the course of its submissions the Crown did not refer the
Appeal Court to the case of Thames Water Utilities, the
judgment of the Court makes it clear that, as in England, many of the
sentencing principles which are relevant in health and safety crime
will frequently be equally applicable in the context of environmental
crime; and the Appeal Court had regard to many of the principles
identified in Thames Water Utilities in allowing the appeal and substantially increasing the original fine.
The level of fine imposed will, doubtless, allay to a significant
extent the concerns expressed by SEPA earlier in the year regarding the
level of fines imposed and, equally, send alarm bells ringing in the
ears of those who regularly advise and represent companies or
individuals who may face prosecution for environmental offences. In
this area at least, the north/south divide appears to be receding.
To read HMA v Doonin Plant Limited in full, follow the link:
http://www.scotcourts.gov.uk/opinions/2010HCJAC80.html
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Compass Chambers