SUSTAINABILITY THROUGH SENTENCING? Sam Porter Between March and June 2013, consultations were under way for a revolutionary change in the way environmental crime is treated in this country. Potentially, these consultations could form the foundations of a future of green economic growth, where British boardrooms no longer forsake the environment for commercial gain. The Sentencing Council began considering draft guidelines for the restructuring of sentences of environmental crimes, aiming to ensure that punishment is more severe (particularly financially) and acts as a better deterrent, and to provide clarity and hence consistency in courts across England and Wales. Katharine Rainsford, magistrate and Sentencing Council member, said: “We're improving guidance for courts to help ensure consistent and appropriate sentences for offenders, particularly for corporate offenders who can be guilty of the worst offences. These offences are normally motivated by making or saving money at the expense of the taxpayer. Our proposals aim to ensure that sentences hit offenders in their pocket.” The Basics So is this another case of wishful thinking? Or could these new guidelines truly foster improved environmental compliance from companies and individuals alike? I am pleased to so say that, on paper, the latter seems more likely. Most significantly, fines for environmental offences will be increased to previously unparalleled heights, should the proposals materialise. For the most serious offences, fines of £2 million could be imposed. As if to send out a clear message over the severity with which environmental crime is now viewed, some fines will even exceed health and safety offences involving human fatalities. In addition, the Sentencing Council is encouraging magistrates to more often administer the highest levels of fines for serious
offenders, likely affecting corporate bodies most. Simon Colvin, an environmental law expert from Pinsent Masons, claimed that “the pre-text for this fundamental shift is the currently limited availability of any guidance for the sentencing of environmental offences, the fact that the current levels of fines are seen as not being high enough, and also that there is too much inconsistency in fines for similar offences”. In fact, insufficient guidance has meant that, in the past, courts had to rely on case law to set appropriate fines for such crimes. By issuing these new guidelines the Sentencing Council is hence overcoming two endemic issues within our judicial system – the lack of clarity and the lack of severity for sentencing environmental offences. The Nitty-Gritty The denouement of the consultation phase was a proposal for a tariff based system including 9 steps, of which the first, second and third are most informative to any nonexpert in the complexities of environmental sentencing. Step one requires the categorisation of the offence, by evaluating both the harm caused and the culpability of the offending body. Enter the Environment Agency, everyone’s favourite quango. The EA’s Common Incident Classification Scheme is used to assess harm as deliberate, reckless, negligent or low/no culpability. This means that the new guidelines place increased reliance on the EA, which has been met with the requirement that greater transparency is needed in the harm-classification process. The guidelines mean that the Agency must be able to give clear reasons for its decisions; this is particularly crucial when there is no physical harm in a case, but rather a ‘risk of harm’, which, naturally, must be classified in a more subjective way.
these consultations could form the foundations of a future of green economic growth, where British boardrooms no longer forsake the environment for commercial gain.
The Clarion-Winter 2013
The Winter 2013 issue of The Clarion - journal of Marling School law society