Expert highlights "worrying approach" in Justice Committee's report on sentencing of environmental offenders

Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, was commenting as the parliamentary committee published a report on proposed sentencing guidelines for environmental offences issued by the Sentencing Council.

Without clear guidance from Government on how the risk of harm should be assessed and categorised by the Environment Agency, the approach suggested by the Justice Committee would not work, Colvin said.

"Those familiar with the guidelines will know that they place a huge amount of influence over the ultimate sentence imposed by the courts in the hands of the Environment Agency - the Environment Agency's role in the categorisation of harm is one reason for this," Colvin said.

"Without a clear framework that establishes how the risk of harm should be assessed, and without transparency from the Environment Agency as to how they have arrived at that categorisation, offenders are at a significant disadvantage," he said.

Published in March, the draft is the first guidance produced by the Sentencing Council in relation to environmental offences and is intended to establish a consistent approach in courts across England and Wales. The new guidelines cover a wide variety of offences governed by the Environmental Protection Act and the Environmental Permitting Regulations including fly-tipping, breaches of the waste permitting regime and 'nuisance' offenders who cause noise, odours , dust or health or pollution risks.

Among the biggest changes to the regime set out in the new guidelines is the prospect of larger fines for serious offenders, with fines of up to £2 million proposed for the most significant offences by the largest companies. The guidelines also encourage magistrates to make more use of the highest levels of fines available to them when making sentencing decisions on more serious offences.

The final guidelines is due to be published early next year and will come into force 12 weeks later, according to the Sentencing Council.

The Justice Committee, which must by law be consulted in relation to proposed new sentencing guidelines, said in its report that its biggest concern with the draft was the potential for "leakage" from the final guidance into sentencing in relation to other regulatory offences without specific guidance, such as health and safety. Its concern was that this could lead to inconsistency in sentencing of these offences, and said that if this was intended to be the case then the Sentencing Council should make this more explicit.

"On balance, we consider that the best approach would have been to create a general guideline containing general principles that could cover offences with an activity whereby environmental harm is caused (including health and safety offences), with short specific guidelines for distinct categories of offences," the Committee said in its letter to the Sentencing Council. "However, we accept that this would have been a much larger project and would have delayed the production of a guideline specifically requested by the Magistrates' Association to assist them with their work."

Other areas of concern raised by the Justice Committee included the Sentencing Council's "simplistic" proposal to use turnover as a means of categorising companies; the need for basic financial training for magistrates to allow them to understand company financial information; and whether company directors were supposed to be individually liable for the actions of a company.

One area of the Committee's response that environmental law expert Simon Colvin welcomed was its call for "greater recognition of those who do more than the minimum in seeking to remediate any environmental harm".

"In the past, companies were not given the necessary recognition for taking this approach and that acted as a disincentive," he said. "If companies are given credit for doing more than the minimum, then the real beneficiary is the environment."