Regular Update on Legal Issues: Construction - January 2014
Welcome to 2014 and to the first edition of DAC Beachcroft's regular update on legal issues which affect Contractors.
Published 4 March 2014
The Sentencing Council has issued a new mandatory guideline which will apply to all environmental offences that are sentenced on or after 1 July 2014. This will replace the existing general guidance given to the courts.
All courts must sentence cases in accordance with the guideline unless it would be contrary to the interests of justice to do so.
The new guideline will result in higher penalties being imposed in relation to environmental offences. The guideline will also result in more complex sentencing hearings.
The guideline distinguishes between offences committed by organisations and those committed by individuals. Common to both and applicable to all environmental offences is the requirement for the courts to conduct an analysis of the facts to decide the defendant's culpability and the level of harm or potential harm in order to assess the seriousness of the offence.
The full guideline will apply to certain offences, whilst only parts of the guideline will apply to other offences. It remains to be seen how the guideline will be applied but there is a risk that the courts, in the absence of robust defence submissions, will apply the whole guideline to all offences.
The full guideline applies to the offences of the unlawful deposit, treatment and disposal of waste, pollution of air, land and sea and breaches of environmental permits. The starting point and range of penalties are specified. For organisations, financial penalties range from £100 to £3 million depending on the seriousness of the offence and the size of the organisation based on turnover. For individuals there are a range of possible sentences from a conditional discharge to fines, community penalties and up to three years imprisonment for the most serious cases.
For all other environmental offences, such as breaches of duty of care and unlawful export of waste, the court must carry out the same analysis of seriousness but the starting point and range of penalties do not apply.
The guidelines also list the ancillary orders that courts must consider. Those are:
The stated intention is to provide a structure for sentencing to achieve consistency across the courts, which, in most cases, have limited experience of environmental offences and how to deal with them appropriately.
The guideline builds on a trend for higher penalties in environmental cases. This has been demonstrated in the recent Sellafield and Southern Water cases where the Court of Appeal upheld and encouraged high levels of fines, even in the absence of environmental damage. The Court made clear that there must a direct financial impact on companies, their Directors and shareholders arising from regulatory failures.