Sentencing for environmental offences… a more flexible approach?

We look at the likely impact of a recent Court of Appeal decision on the approach to sentencing for environmental offences.

Since 1 July 2014, sentencing of environmental offences has been subject to the Sentencing Council’s Definitive Guideline on Environmental Offences (the “Guideline”), which provides a matrix to assist judges in determining the appropriate penalty, based on an offender’s culpability and the harm caused by an offence.

Whilst the Guideline has generally led to increased consistency in sentencing, some aspects of its application have remained a matter for individual interpretation.  A recent Court of Appeal case has provided some clarification on the proper approach to the categorisation of harm, and in particular the interface between the Guideline and the Environment Agency’s Common Incident Classification Scheme.

Case background

The case at hand, R (on the application of the Environment Agency) v David Ronald Lawrence [2020] EWCA Crim 1465, involved the director of a waste recycling company sentenced to a suspended prison sentence and unpaid work order at first instance, for various offences relating to the mismanagement of a recycling facility.

The business was struggling and could not afford to dispose of waste that it could not recycle, leading to “vast quantities” remaining on its site, much of which was kept outside, in breach of the facility’s Environmental Permit. The stockpiled waste presented a serious fire hazard. Despite clear advice from the Environment Agency, the stockpiled waste caught alight and a major fire occurred. Despite assurances that the site would improve, excess waste built up again and a second, even more serious, fire occurred.

In considering how to sentence the director, the judge began by considering the application of the Guideline to the first fire, and found that the director had been negligent and that the resultant environmental damage amounted to Category 3 harm. The Guideline provides for four possible Categories of harm, with 1 being the most serious and 4 being the least.

In relation to the second fire, the judge found that by then “the risks must have been very apparent”, and the director was therefore highly reckless. The environmental damage suffered was greater. The judge found that all five criteria listed in harm Category 2 were met, and regarded the cumulative effect of Category 2 harm features as having the potential to raise the overall harm from Category 2 to Category 1.

Applying the Guidelines to multiple offences

It was argued in the Court of Appeal that the approach taken by the judge in elevating the offence from Category 2 harm to Category 1 harm by means of aggregation was not permissible. This argument was rejected by the court, which found that “there were ample findings made by the judge to justify him finding harm at the top of Category 2, with other features available to aggravate the offending well beyond that”.

The court did not go so far as to positively endorse the use of multiple features of harm to move the matter to a higher category range, but the judgment points out that there is no prohibition on a sentencing judge doing so. The court also referred to the commentary within the Guideline in relation to aggravating factors, which states that “in some cases, having considered these factors, it may be appropriate to move outside the category range”. Citing R v KC [2019] EWCA Crim 1632, the judgment notes that “it is not sensible to seek to construe the Guidelines as if they were a statute”.

Environment Agency Common Incident Classification Scheme (CICS)

The Environment Agency has its own way of classifying the environmental harm caused by incidents, namely the Common Incident Classification Scheme. CICS shares many similarities with the Guideline’s harm categorisation matrix, but there is no formal link between the two schemes, and the Guideline does not make explicit reference to CICS.
It was argued in the Court of Appeal that the different categories of harm in the Guideline were based on CICS and that the court should look at CICS to help determine which category of harm was applicable. The court rejected this argument, explaining that whilst “the Sentencing Council might have taken the Scheme as part of its source guidance, this is not a reason to read the Guideline as subject to the constraints imposed by the Scheme, which was not an instrument designed to address sentencing by the criminal courts.”

The Guideline stands apart from CICS, and classification under CICS will not be determinative of, or even particularly persuasive as to, the categorisation of harm by the criminal courts.

Where are we now?

The court’s view on the lack of connection between the categories of harm in the Guideline and the Environment Agency’s Common Incident Classification Scheme is a welcome clarification and will mean that the focus in future should be very much on the Guideline.

The real takeaway from this case is the flexibility accorded to judges in the application of the Guideline. Whether a sentencing judge in a given case elevates harm by reference to multiple features of harm, or by reference to aggravating factors, is perhaps academic – what matters is that the court has recognised there will be cases, such as this one, where elevation is justified on the facts. This must apply across other parts of the Guideline, most importantly the categorisation of culpability.

This clearly allows justice to be done in individual cases, but makes it more difficult to anticipate how any particular sentencing exercise will be approached by the court.
It remains key to get legal advice swiftly in the event of an environmental incident. Giving early consideration to positioning under the Guideline, and gathering evidence to support this, can make all the difference to categorisation, and ultimately to the magnitude of any penalty imposed.