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Illegal waste operators face stiffer penalties

New sentencing guidelines for environmental offences have been introduced after concern that some operators find it cheaper to break the law than follow industry regulations.

The Sentencing Council wants judges and magistrates to impose more severe fines on the worst offenders. The guidelines, which will apply a consistent approach by courts in England and Wales, state “it should not be cheaper to offend than to take the appropriate precautions”.

There is currently no uniform advice for the application of sentences for breaches of waste regulation.

The council warned that some magistrates were not sufficiently familiar with waste crime and that “levels of some fines were too low and did not reflect the seriousness of the offence committed”.

It said: “Corporate offenders committing serious offences, who are likely to be those causing most damage or risk to health, are expected to get higher fines.”

Most waste crimes are covered by the Environmental Protection Act 1990 and Environmental Permitting (England and Wales) Regulations 2010.

If an offence is considered to be ‘category 1’ – where a company’s actions have ‘major adverse effects’ or incur major clean-up costs – larger organisations can now expect to be fined upwards from £1m to a maximum of £3m.

Aggravating factors when considering a sentence include interfering with regulators’ enforcement activities.

The director general of the Environmental Services Association (ESA) Barry Dennis said: “ESA has for many years expressed concerns that courts do not have sufficient guidance or receive sufficient training on dealing with environmental offences. We would like to see a transfer of environmental knowledge to the courts, enabling them to impose appropriate sentences, and we hope this guidance and continued training of magistrates will further this aim.”

Sentencing Council member and magistrate Katharine Rainsford said: “These crimes are normally about making or saving money at the expense of the taxpayer.

“They also undermine law-abiding businesses in the waste management industry who are contributing to economic growth. This guideline aims to ensure that sentences punish offenders, deter reoffending and remove any financial gain.”

Cairo Nickolls, an environment law specialist at Irwin Mitchell, said:

“This is the first release of sentencing guidelines in relation to environmental offences by the Sentencing Council and it is very likely to lead to higher fines as a result. Businesses need to ensure that they understand the new sentencing framework and be aware that courts which are sentencing after 1 July 2014 will utilise the guidelines irrespective of when the offence took place.

Although this is intended to create a consistent method of sentencing, it may actually result in a method of sentencing which is overly prescriptive. Businesses will be categorised by size, particularly turnover, and I expect there will be some level of ambiguity in relation to how the turnover of organisations will be established. In particular, I am concerned about the potential difficulty arising from sentencing a company which is part of a group of companies. The sentencing court will retain some discretion when sentencing. As well as turnover, the Court can also take into account the organisation’s wider financial circumstances and whether any operational savings were made by committing the breach.

The new guidelines are significant and highlight the need for organisations affected to seek expert legal advice as early as possible.”

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