Good intentions go down the drain

With public awareness of environmental issues in mind, the government has sought to tighten up legal penalties for polluters.

Environmental offences are increasing. But although courts have the power to impose strong penalties, sentences are seen as being hardly punitive, thereby undermining the effectiveness of environmental regulation.

The Department for the Environment, Food and Regional Affairs, the Environment Agency and the newly-established Sentencing Advisory Panel all recognise that fines generally fail to reflect the seriousness of offences or to match public concern. Fines need to have a real economic impact so that, together with adverse publicity, they encourage companies to improve environmental performance. Too often companies find it cheaper to pay a fine than to properly address their environmental performance.

The Environmental Industries Commission, the trade association for environmental equipment manufacturers and consultants, has been lobbying politicians and the judiciary, notably the Lord Chancellor, to make sentences tougher. In a couple of areas, steps are slowly being taken in the right direction.

Seriousness of offences

The first involves the Sentencing Advisory Panel, an independent body set up by the Home Office during the last government to provide guidelines for the Court of Appeal. The then home secretary, Jack Straw, asked the panel to consider the environment as its first task, and it made a number of suggestions to the Court of Appeal on assessing the seriousness of offences, the choice of sentence and the level of fines. The advice clarifies sentencing principles for environmental offences. For example, many aggravating factors (such as acting from a financial motive and the extent of the damage caused) and mitigating factors (such as a good environmental record and taking prompt steps to remedy the situation) are identified for the courts to consider.

Of course, the courts are independent of government, so all the government can do to toughen sentences is ensure that thejudiciary has sufficient powers. And the judiciary can – and has – ignored the panel’s advice.

In March 2000, considering the 1996 spill of 76,000 tonnes of oil from the Sea Empress, the Court of Appeal overturned a decision to impose a £4m penalty and substituted a £750,000 fine instead. In its decision, the court referred to the guidelines proposed by the panel only days earlier, but chose not to adopt them.

Instead, it referred to more limited principles available in case law.

Such unwillingness to adopt the guidelines may exacerbate problems with environmental sentencing. It may confuse the judiciary, cause more uncertainty and encourage the trend towards low fines.

In contrast, the magistrates’ courts recognise the need for improvement in sentencing.

In September 2000, following discussions with the then DETR and Environment Agency, the Magistrates’ Association issued sentencing guidelines on topics including environmental offences.

The Lord Chancellor, Lord Irvine, and the former Lord Chief Justice, Lord Bingham, endorsed the ‘consistency of approach’ that the guidelines supply. Public pressure is growing in this area, and three developments may change the situation. First, the Court of Appeal may yet adopt the panel’s guidelines, although it may be a long time before an opportunity for this to happen presents itself.

Second, since inconsistency in sentencing is partly attributable to the judiciary’s lack of experience with environmental offences, there is growing support for a specialised tribunal to consider environmental cases.

Need for consistency

The tribunal would accumulate knowledge of sentencing principles and grow to appreciate the relative severity of environmental pollution. This would be likely to result in stronger, more consistent penalties and provide incentives for companies to improve their environmental performance. However, the idea of a tribunal is still subject to debate and it will be a long time before it is implemented, if at all.

Finally, there are more promising signs from Parliament. A Commons select committee has said that if the Court of Appeal guidelines do not cause environmental offences to be treated with ‘the seriousness they deserve’, it may be necessary to review the situation, and called for new measures to give companies a ‘financial incentive to take the right environmental option, rather than to cut corners to the detriment of the environment’.

The EIC applauds these suggestions, and will be lobbying vigorously to ensure the new government acts to toughen sentencing for polluters.

Rachel Devine is a senior associate at law firm Allen & Overy and a member of the EIC law and policy working group. Further information about the EIC can be found at www.eic-uk.co.uk