UK Courts Get Tough On Environmental Crime: Sentencing Of Environmental Offences Committed By Large Companies

"To bring the message home to the directors and shareholders of organisations which have offended negligently once or more than once before, a substantial increase in the level of fines, sufficient to have a material impact on the finances of the company as a whole, will ordinarily be appropriate. This may therefore result in fines measured in millions of pounds"

"[In the most severe cases] This may well result in a fine equal to a substantial percentage, up to 100%, of the company's pre-tax net profit for the year in question... even if this results in fines in excess of £100 million. Fines of such magnitude are imposed in the financial services market for breach of regulations. In a Category 1 harm case, the imposition of such a fine is a necessary and proper consequence of the importance to be attached to environmental protection."

- English Court of Appeal, 2015

Introduction There is a widely held belief that environmental laws in the UK are toothless in practice because enforcement authorities are under resourced and typical levels of fines and penalties imposed are far too low.

This view is particularly prevalent among those with first-hand experience of jurisdictions where environmental enforcement has historically tended to be stricter (for example, the United States).

Although they ignore the significant reputational damage that can occur from environmental non-compliance, such views have considerable basis in historical fact in the UK. Often, environmental crime in the UK has been seen to pay. This has been a frequent source of complaint by the majority who strive, at considerable cost, to comply whilst seeing those who apparently 'get away with it' all too often.

However, such views need to be reappraised in light of recent new sentencing guidelines and senior judicial statements equating serious breaches of environmental law with financial services offences. A recent decision of a unanimous Court of Appeal that included the Lord Chief Justice presages a much tougher approach in the future.

This is particularly true in the case of environmental offences committed by large commercial organisations.

Environmental sentencing guidelines The Sentencing Council's so-called 'definitive guideline' for sentencing of environmental offences came into effect just over a year ago. Those guidelines apply among other things to unauthorised or harmful deposit, treatment or disposal of waste, illegal discharges to air, land and water and many other of the most common environmental offences.

The guidelines require a step-by-step approach to calculation of a fine based upon the degree of culpability of the offender, the harm caused by the offence and the finances of the offending organisation or individual.

Organisations are divided into four...