New sentencing guidelines for waste crime
Judges in England and Wales could soon impose harsher sentences on those found guilty of committing waste crime, following the publication of new guidance by the Sentencing Council (SC).
The SC, a division of the Ministry of Justice, first consulted on draft sentencing guidelines last year, in the hopes of introducing larger fines and penalties for waste offences such as flytipping and polluting.
The consultation was introduced by the SC due to a ‘lack of familiarity, particularly among magistrates’ with sentencing for these offences, a lack of standardised sentencing, and because some fines were deemed to be ‘too low’ and did not reflect the seriousness of the offences committed.
Following the analysis of responses to the consultation – including those from magistrates, lawyers, environmental professionals, local authorities, the waste industry and members of the public – the SC has issued a finalised guideline document to judges (thought to be the first of its kind). This will apply to all offenders aged 18 and over and organisations sentenced on or after 1 July 2014.
It is thought that the guidelines will encourage magistrates to make more use of the highest levels of fines for some of the more serious offences that come before the courts, so that offenders ‘are hit in the pocket as well as deterred from committing more crime’.
The ‘Environmental Offences: Definitive Guideline’ covers a variety of offences related to the disposal of waste and rubbish as covered by the Environmental Protection Act 1990 and the Environmental Permitting (England and Wales) Regulations 2010.
- the unauthorised dumping of waste (flytipping);
- waste handling or disposal offences where a company or individuals cause pollution or harm to people’s health, or the risk of it;
- breaches of environmental permits; and
- ‘nuisance offenders’, such as those handling waste in a way that produces excess noise, smoke, dust, or odours.
The guidance includes separate sentencing suggestions for offences committed by organisations and those committed by individuals.
Corporate offenders committing serious offences, who the SC says are more ‘likely to be those causing most damage or risk to health’, are expected to get the highest fines. However, there are unlikely to be ‘significant changes’ to penalty levels for lower level offences.
For example, SC suggests magistrates issue the following penalties:
- Organisations that are found to be practicing the ‘unauthorised or harmful deposit, treatment or disposal etc of waste’ and ‘illegal discharges to air, land and water’, could be subject to: ‘unlimited fines’ when tried on indictment; a maximum £50,000 fine when tried summarily; and an ‘offence’ range of between £100 and £3 million;
- For individuals being sentenced for the same crimes, magistrates are encouraged to issue offenders with: either a unlimited fine and/or five years’ custody when tried on indictment; up to £50,000 and/or six months’ custody when tried summarily, and an offence range of conditional discharge to three years’ custody.
Magistrates are also recommended to issue fines based on the severity of the offence. For example, crimes that are found to be deliberate would realise the highest fines, while those with no culpability or made through negligence, would call for the lowest fines. For corporate offences, fines will also be issued in accordance with the company’s turnover.
SC stated however, that it believes 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.
Although the scope of the guidelines are for the crimes listed above, it is thought that the general approach of sentencing could also be applied to other environmental offences.
Guidance is a ‘much needed resource’
Speaking of the guideline, SC member and magistrate Katharine Rainsford said: “Illegal disposal of hazardous waste not only causes damage to the environment but puts people’s health at risk as well.
“This guidance for courts will help ensure consistent and appropriate sentences for offenders.
“These crimes are normally about making or saving money at the expense of the taxpayer. They also undermine law-abiding businesses in the waste management industry who are contributing to economic growth. This guideline aims to ensure that sentences hit offenders in their pocket.”
Peter Chapman, Chairman of the Magistrates' Association (MA) Judicial Committee, added: “This guideline represents the successful realisation of aspirations going back many years. Magistrates sentence the majority of environmental offences and almost all flytipping, and they live in the communities [that] suffer from it…
“The MA is delighted that its cooperation with the Sentencing Council has produced this much-needed resource, which will be welcomed in magistrates' courts across England and Wales.”
Stronger, consistent sentencing could ‘lead to a reduction in environmental crime’
Members of the waste and resources industry have welcomed the publication of the guideline, with the Deputy Chief Executive of the Chartered Insttitution for Wastes Management (CIWM) Chris Murphy, saying: “The new guidance will improve understanding about the impact of environmental crime and will help to tackle what is a growing problem. It provides judges and magistrates with the right tools to appropriately punish those who seek to profit from damaging the environment, our communities and the legitimate waste industry.
“We are pleased to see that new guidance allows fines to be more accurately tailored to the fit the crime and that there is now the scope to sentence corporate offenders. By extending the range of fines and the upper limit of the fine that can be imposed, the new sentencing framework means that serious and persistent offenders are likely to face much tougher penalties.”
Director General of the Environmental Services Association (ESA), Barry Dennis, added that he hopes the guidance will “help to deter environmental criminals who pose the greatest environmental risk, whose transgressions are most difficult to detect and whose adverse environmental impact is greatest”.
Adding that the ESA has previously ‘expressed concerns’ that courts do not have sufficient guidance or receive sufficient training on dealing with environmental offences (and thus ‘often do not fully appreciate the seriousness of such crimes, and therefore impose inadequate sentences’) he said that the guidance could help to see more appropriate sentences imposed.
He continued: “The regulated industry that the ESA represents is one of the direct victims of environmental crime, as its business activities are often directly undercut by those environmental criminals who cut costs by ignoring the relevant environmental laws…
“ESA believes that a combination of education and crime prevention measures along with stronger, more consistent sentencing from the courts would lead to a reduction in environmental crime. The current situation, where the environment and human health are threatened and legitimate waste businesses are undermined by illegal operators, must be brought to an end.”
The ESA is currently working on a new Environmental Services Association Education Trust (ESAET) report into crime in the waste and resource management sector (and what can be done to prevent it), which is due to for publication in March.