In Step two, the size of the company is assessed, so that the starting point for fine magnitude can be determined. Using the Companies Act 2006, businesses are categorised as large (turnover of more than £25.9m), medium (£6.5m - £25.9m) and small (less than £6.5m). This raises an immediate question over the indicator used to assess size; companies can have high turnover but low profit, and although this can be taken into account when the case goes to court, this remediation is unlikely to make up for a high size classification. In fact, step two is rather contentious, as will been show later. Step three simply allows for the magnitude of fines to be increased or decreased due to aggravating or mitigating circumstances, respectively.
much reduced fines due to their public-service function, quasi-publicly functioning businesses, such as utility companies, face no reductions. This could threaten the efficacy of the guidelines as public services are put under threat. Last of all, although the Sentencing Council hopes that higher fines will make businesses take environmental issues more seriously, but it is worth considering that for lesser offences, fine levels will barely change, nor will there be an alteration to the proportions of offenders receiving community or prison sentences. So is the Sentencing Council being as aggressive as possible, I ask? The toughest approach would certainly be to send more offenders to prison.
Potential Flaws Now, it’s fair to say that up to now, the new guidelines appear promising – even exciting – as catalysts for a new age of environmental sustainability within our courts. Yet, as ever, there are certain flaws that must be highlighted. Above all, it only applies to sections 33 and 34 of the Environmental Protection Act 1990, regulation 12 of the Environmental Permitting (England & Wales) Regulations 2010 and section 1 of the Control of Pollutions Act 1989. This is a narrow field and if these new guidelines are to be the foundations of future sustainability, then surely they must be applied more widely. Furthermore, the guidelines cannot simply be used as a benchmark for the sentencing of other similar offences without further consultation. The Justice Committee has reported that its single greatest concern with the Sentencing Council’s proposals is that this “leakage” could take place without specific guidance being given, causing inconsistency within the sentencing process. Step two has raised many eyebrows, particularly within the Justice Committee. As aforementioned, the determination of company size and hence fine level via turnover analysis is rather divisive. The JC has labelled this as “simplistic”, and have voiced concerns that magistrates will require financial training so that commercial finance data can be interpreted. Doubts have been raised over the guidelines’ clarity in explaining whether size-classification takes into account whether the company is part of a larger group, or considers the offending body alone. Simon Colvin also points out that although charities and local authorities are likely to face
For me, this is a noble step in the right direction. Without a doubt, companies and individuals will pay greater heed to the environment now that they know they could face fines of up to £2 million. Yet, to foster a greener future, we need a ‘carrot and stick’ approach that is more sureof-itself, more severe on those who do wrong. I believe we should elevate all fines, not only those for the most serious offences, and send more environmental criminals to prison. This is the stick. Couple this with further incentive for greener approaches to business and the home, such as more financial reward for using or generating green energy, and perhaps the balance can be struck, and Britain may sustain its green and pleasant status, both in mind and form.●
perhaps the balance can be
struck, and Britain may sustain its green and pleasant status, both in mind and form
The Clarion-Winter 2013
The Winter 2013 issue of The Clarion - journal of Marling School law society