Abstract
The applicant for permission to appeal was the operations director of a family run business, Lawrence Skip Hire Ltd. The company occupied a substantial site on the outskirts of Kidderminster, below which ran a canal, and adjacent to which was a site of special scientific interest (SSSI). The business received waste at its site, for which it charged a fee, and then made additional profit by extracting and selling on some of the waste. Unsaleable waste had to be disposed of at a cost to the company. The business operated under the authority of an environmental permit issued by the Environment Agency.
Due to financial difficulties, the company allowed unsaleable waste to accumulate on site. Vast quantities of such waste were in plain sight on a daily basis. Complaints from neighbouring properties about the smell and an increase in vermin led to an Agency visit during which the risk of a self-heating fire breaking out was made clear. The site was subsequently inspected by the company’s insurers and on two further occasions by the Agency. On one of those occasions, the Agency brought fire officers to the site. Despite the various warnings, a fire broke out on the site on 12th December 2012 and took more than a week to extinguish. Thousands of gallons of water mixed with combustion products from the waste created fire water. Although the Agency was able to prevent it from reaching the SSSI, some of the fire water had to be diverted to the canal.
The applicant undertook to learn lessons from the fire. Despite assurances given to the Agency, however, waste began accumulating at the site once again. Further warnings from the company employee responsible for health and safety and the Agency were ignored. On 16th June 2013, another major fire broke out. Thick black smoke emanating from the site caused Public Health England to advise people to stay away. The fire, which continued for many weeks, necessitated a substantial and prolonged fire-fighting operation. Large quantities of highly polluted water ran into the canal and caused the death of 3,000 fish. The black smoke had a significant adverse effect on air quality in the locality, which included a primary and secondary school. The expense of paying the vast costs of the operation fell on the public purse given that the applicant’s insurance had lapsed after the first fire.
The applicant pleaded guilty to four counts relating to the two fires. In relation to count 1, the offence was contrary to regs 38(2) and 41(1) of the Environment Permitting (England and Wales) Regulations 2010 (then in force), and in relation to count 2, the offence was contrary to ss 33(1) and (6) and 157 of the Environmental Protection Act 1990. Counts 3 and 4 provided for the same set of offences in relation to the second fire. He was sentenced on count 1 to a fine of £270. No separate penalty was imposed on count 2. In respect of counts 3 and 4, the sentencing judge imposed a term of 9 months’ imprisonment, suspended for 24 months, together with 180 hours of unpaid work on each count to run concurrently.
The present renewed application for leave to appeal was brought on the basis that the sentence was manifestly excessive because the judge had erred in the way that he had applied the Sentencing Council’s Definitive Guideline on Environmental Offences. The essence of the argument was that at step 3 of the Guideline, the judge had determined the offence at the top of Category 2 harm, but had then aggregated the features of harm to move it into Category 1 despite the fact that it was not possible to do so. It was therefore argued that the judge had wrongly conflated steps 3 and 4, and that his analysis had led him to impose too high a sentence.
Commentary
The penalties imposed by the courts for environmental offences were, in the past, frequently subject to criticism. Fundamentally, it was felt that too often the punishment did not properly fit the environmental harm that had been caused or the offending behaviour. Moreover, remarks made by senior judges sometimes further undermined the seriousness of the environmental crime in question, as did their willingness to substantially reduce fines which had been imposed on defendants by trial judges. Thus, in a leading case on the offence of causing polluting matter to enter a watercourse (now contrary to regs 12 and 38 of the Environmental Permitting (England and Wales) Regulations 2016, SI No 1154), Viscount Dilhorne remarked that the acts in question were, in the words of Wright J in Sherras v De Rutzen [1895] 1 QB 918, ‘not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’: see Alphacell Ltd v Woodward [1972] AC 824 at 839.
The high point in terms of the reduction of environmental fines on appeal occurred in Environment Agency v Milford Haven Port Authority [2000] 2 Cr App R(S) 423, where the Court of Appeal reduced a fine of £4 million imposed by Steel J in the Cardiff Crown Court in respect of the running aground of the oil tanker, the Sea Empress, to the rather lower sum of £750,000. In so doing, the Court declined to follow an Advice published by the Sentencing Advisory Panel (a forerunner of the Sentencing Council), preferring instead to follow sentencing guidelines which it had itself formulated in R v F Howe & Son (Engineers) Ltd [1999] 2 All ER 249, in the rather different context of health and safety offences. The publication by the Sentencing Council of its Definitive Guideline on Environmental Offences on 1 July 2014 was, therefore, intended to address concerns about the low level of penalties imposed for these offences by providing a structure for the exercise of sentencing discretion designed to achieve outcomes which were proportionate, consistent and fair. Thus far, it seems to have had a positive effect, as evidenced by the courts’ new-found willingness to impose fines which are substantially higher than those imposed in the past, coupled with a greater reluctance on the part of the appeal courts to reduce them. The best example of the former occurred in a case against Thames Water which was heard by HHJ Sheridan sitting in the Aylesbury Crown Court in March 2017. In imposing a fine of nearly £20 million on the water company for having caused the discharge of raw or partially treated sewage from a number of its plants into the River Thames, it is clear that the judge followed assiduously the sentencing methodology set down in the 2014 Guideline. Although the same does not appear to have happened in Lawrence, the effect of the Court of Appeal’s judgment seems to be that this does not necessarily matter too much provided that it does not result in a sentence which is either manifestly excessive or wrong in principle. Thus, in the earlier Court of Appeal decision in R v Thames Water Utilities Ltd [2019] EWCA Crim 1344, which was relied upon by counsel for the Environment Agency in the present case, it was stated, among other things, that ‘if a judge fails to follow a structured approach…such a failure does not invalidate the sentence’ (per William Davis J at [22]).
Categorising Environmental Harm
For a number of years, the Environment Agency has applied a Common Incident Classification Scheme as a means of determining the scale and impact of pollution incidents on the environment, which in turn has an influence on its decision whether or not to prosecute a polluter. Its discretion in the present context is exercised in accordance with the Agency’s enforcement and sanctions policy (last updated 20 December 2019). In Lawrence, counsel for the appellant argued that the different categories of harm in the Sentencing Council’s Guideline were based on the Agency’s Classification Scheme (a point confirmed, incidentally, by the Council itself in its Environmental Offences Guideline—Consultation (March 2013), at p 13), and that accordingly, since the Scheme identifies a Category 1 incident as ‘major’ and a Category 2 incident as ‘significant’, this had precluded the trial judge from re-determining that the overall harm caused by the fires ought to be considered to be in the higher category. Significantly, while the Court of Appeal was willing to accept that the Scheme may have been taken by the Council as ‘part of its source guidance’, this 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’ (at [30]). It is evident, therefore, that despite the Sentencing Council’s use of the same four categories of harm as appear in the Agency’s Scheme so as ‘to ensure a common understanding’, the fact that the two documents have been produced by different bodies for different purposes ensures that the categorisation of environmental harm for sentencing purposes is not to be constrained by definitions relevant to the exercise of prosecutorial discretion.
Sentencing Guidelines Not a Straightjacket
Although the decision in Lawrence represents a further occasion on which the courts have applied the Guideline relating to environmental offences, it is clear that slavish adherence to it is not required. Thus, HHJ Wendy Joseph QC drew attention to the fact that s 125(1) of the Coroners and Justice Act 2009 permits a court to step outside a sentencing guideline where the interests of justice require it. She also noted that in a number of cases, the ‘courts have stressed over and over that the guidelines are not meant to be a straightjacket’ (at [30]): see, for example, R v Whirlpool UK Appliances Ltd [2018] 1 WLR 1811 at [12], and BUPA Care Homes (BNH) Ltd v R (Upon the prosecution of Her Majesty’s Inspectors of Health and Safety) [2019] EWCA Crim 1632 at [45]. In R v KC [2019] EWCA Crim 1632, which was quoted from by HHJ Wendy Joseph QC in Lawrence, Green LJ remarked: It is not sensible to seek to construe the Guidelines as if they were a statute. They cannot predict every permutation of circumstances that might arise and there must be a degree of elasticity in the terminology used, and to this extent there is a degree of flexibility in how the Guidelines operate…or simply moving outside of the Category…range in the Guidelines. (at [45])
An independent review commissioned by the Sentencing Council and undertaken by Sir Anthony Bottoms found, among other things, that ‘the principles of a guidelines system appear now to be more widely accepted by judges and magistrates in England and Wales’: see The Sentencing Council in 2017, at para 33. It also noted that in case of offence-specific guidelines (like that which relates to environmental offences), interviews with judges suggested that they would ‘typically have the guideline in front of them, and follow through its “steps”’ (at [35]). This structured and transparent approach to sentencing is desirable in that it increases public confidence in the process, as well as making it easier for appeal courts to determine why a particular penalty was imposed when it is subsequently claimed to have been manifestly excessive or wrong in principle. It is clear, however, as the decision in Lawrence confirms, that despite the existence of offence-specific guidelines, judges still retain a measure of discretion when it comes to punishing a defendant for the commission of an offence.
Conclusion
Custodial sentences are not commonplace in the context of environmental crime. It is far more likely that a polluter will be fined rather than imprisoned, especially where the public interest demands that the activity in question takes place, for example, the treatment of sewage. Nevertheless, offences relating to the illegal storage or disposal of waste have sometimes resulted in the imposition of prison sentences. Thus, in the recent case of R v Mete [2020] EWCA Crim 441, for example, where in excess of 40,000 cubic metres of waste consisting of soil mixed with bricks, rubble and stone had been illegally deposited on land over an 18-month period and had cost approximately £500,000 to clean-up, a sentence of 26 weeks’ imprisonment was upheld on appeal. Given the significant events which led to the prosecution in Lawrence, and how they compare with what occurred in Mete, it might be thought that the applicant was fortunate to have escaped an immediate custodial sentence. This seems to have been the Court of Appeal’s view since as HHJ Wendy Joseph QC remarked, ‘we can envisage that some judges, bearing in mind the utmost importance of protecting the environment, might not have suspended the sentence’ (at [31]).