Corporate Crime analysis: The Court of Appeal examined an issue of principle regarding categorisation of harm for the purpose of the sentencing guidelines for environmental offences. The sole ground of appeal concerned whether the sentencing judge’s approach erred in conflating steps 3 and 4 of the guidelines; step 3 of which does not expressly permit upward revision of the provisional categorisation of harm. The Court of Appeal rejected the appellant’s challenge to the judge’s approach, holding that the overall sentence was not manifestly excessive or wrong in principle, and could be justified by the consideration of numerous aggravating factors in the case.
Environment Agency v Lawrence  EWCA Crim 1465,  All ER (D) 50 (Nov)
What are the practical implications of this case?
The Court of Appeal will only interfere with the overall sentence when it is manifestly excessive, and has injected further flexibility into the sentencing guidelines where guidelines do not expressly provide for upward revision of harm categorisation. The court has repeated its view that sentencing judges are not constrained by the guideline ranges in serious cases, observing that some judges might not have suspended the sentence in this case given the ‘utmost importance of protecting the environment’.
One practical implication of this case is the potential approach to sentencing individuals or corporates for environmental offences where multiple harm factors are present. An increase in harm category can make the difference between a starting point of a fine or custody when sentencing an individual or more than double the financial starting point when sentencing a corporate defendant. Clients should be advised that aggravating factors listed in step 4 may now result in an increase to the categorisation of harm at step 3 in serious cases, even though the sentencing guidelines for environmental offences do not expressly provide for such an approach. It is observed that similar issues may also apply to other sentencing guidelines that do not expressly provide for an upward revision in harm categorisation.
What was the background?
The appellant was the operations director of a skip hire company. The company was warned by the Environment Agency, local fire officers and its own insurers about the dangers of storing waste on its site, and a fire subsequently broke out in December 2012 which took over a week to bring under control. Following this incident, waste quickly began to pile up again on site. The company ignored further warnings and a second fire broke out in June 2013 involving the second largest fire-fighting operation in Hereford and Worcester in 28 years. This fire had a large impact on the local environment and the public purse ended up paying the vast costs.
The individual director was charged with offences arising from the fires in December 2012 and June 2013 and entered a late guilty plea. The judge concluded that the appellant was ‘negligent’ rather than ‘reckless’ in relation to the first fire, which fell at the top of harm category 3 for the purpose of the sentencing guidelines. He fined the director £270 for this incident. The judge then concluded that the risks were ‘startlingly plain’ after the first fire and that the appellant had thereafter been ‘highly reckless’. He found all five category 2 criteria to be met and therefore increased the harm assessment to category 1, provisionally arriving at a sentence of ten months’ imprisonment at step 3. This was then increased further to 15 months to reflect the additional aggravating factors at step 4. Allowing a 10% reduction for the late guilty plea and other positive mitigation, the appellant was sentenced to nine months’ suspended sentence for two years and the court imposed a requirement of 180 hours unpaid work.
What did the Court of Appeal decide?
In dismissing the appeal, the court observed that the guidelines did not prohibit upward revision of harm categorisation and went on to consider R (upon the prosecution of Her Majesty’s Inspectors of Health and Safety) v Whirlpool UK Appliances Ltd  EWCA Crim 2186, R (upon the prosecution of Her Majesty’s Inspectors of Health and Safety) v Bupa Care Homes (BNH) Ltd  EWCA Crim 1691,  All ER (D) 74 (Oct) and R v KC  EWCA Crim 1632,  All ER (D) 33 (Oct) which require a degree of flexibility in the application of sentencing guidelines. The aggravating features found by the judge entitled him to impose a sentence well beyond the sentencing range for category 2 harm. The court noted that a number of the aggravating features listed at step 4 could also be used when assessing harm at step 3. The sentencing council did not intend that aggravating features could only be used at step 4 to take the sentence outside the identified category range. The court was nevertheless careful to state that a factor treated as relevant to the assessment of harm cannot be used again as an aggravating feature to elevate the offending into the next harm category.
The court found that the sentence was not manifestly excessive or wrong in principle. In any event, there was nothing wrong with the judge’s approach.
Separately, the court rejected an argument that the Environment Agency’s Common Incident Classification Scheme (CICS) should operate as an interpretative tool when examining the sentencing guidelines. The CICS was devised by the Environment Agency for its own purposes and while it was understandable that the Sentencing Council might have examined the scheme in order to inform itself of relevant considerations, the CICS did not constrain any interpretation of the sentencing guidelines.
- Court: Court of Appeal (Criminal Division)
- Judge: Lord Justice Green, Mr Justice Julian Knowles and Her Honour Judge Wendy Joseph QC
- Date of judgment: 6 November 2020
This analysis was first published on Lexis®PSL on 12 November 2020 and can be found here (subscription required).