UK: A New Level Of Eye-Watering Fines - Sentencing Council Publishes Definitive Guideline For Environmental Offences

A new guideline for environmental offences will have a significant impact on the penalties imposed and could potentially result in eye-watering fines in such cases.

In summer 2013, the Sentencing Council ("SC") launched a consultation seeking views on proposed changes to the manner in which environmental offences are punished in the criminal Courts (please follow the link for our previous analysis -

In recognition of the infrequency with which the Courts are called upon to consider the issues (research suggests that 40,000 environmental cases pass through the Magistrates' Courts each year) and the limited assistance available to them when they do, the SC has now finalised and published a guideline to direct the environmental sentencing exercise.

Does the guideline apply to all environmental offences?

No. Primarily, the guideline applies to offences committed under section 33 of the Environmental Protection Act 1990 ("EPA") (unauthorised or harmful deposit, treatment or disposal of waste) and regulations 12 and 38 of the Environmental Permitting (England & Wales) Regulations 2010 ("EPR") (illegal discharges to air, land and water). These offences are selected due to the frequency with which the Courts sentence such matters and the relatively high statutory maximum penalties presently available.

In sentencing certain other environmental offences, Courts should follow the general sentencing approach set out in the guideline, but with the starting points and ranges adjusted, bearing in mind the statutory maxima for those offences. The other offences covered by the guideline are:

  • Section 34, Environmental Protection Act 1990 ("EPA") (breach of the duty of care in relation to waste)
  • Section 1, Control of Pollution (Amendment) Act 1989 Common (transportation of controlled waste without registering)
  • Section 80, EPA (breach of an abatement notice)

The big news

Prior to drawing up the guideline, the SC discussed three possible sentencing models with a pool of Crown Court Judges, District Judges and Magistrates. "The feedback...was that a narrative guideline that lists the principles a sentencer should follow would not be helpful without clear starting points and ranges". This has resulted in the SC now introducing a tariff based guideline; a marked change to the present system in which no tariff is imposed.

Headline figures

Organisations convicted of offences under section 33 of the EPA or Regulations 12 and 38 of the EPR could now face fines of up to GBP 3 million, with a starting point of GBP 1 million for the most serious offences! Individuals convicted of the same offences may be sentenced to up to 3 years in prison.

What will the starting points be?

The guideline identifies five groups of defendant:

  • Large organisations: turnover exceeding GBP 50 million. The most serious offences will attract a starting point of GBP 1 million with a range of GBP 450,000 to GBP 3 million. The least serious offences have a starting point of GBP 10,000 with a range of GBP 7,000 to GBP 25,000
  • Medium organisations: turnover between GBP 10 million and GBP 50 million. The most serious offences will attract a starting point of GBP 400,000 with a range of GBP 170,000 to GBP 1 million. The least serious offences have a starting point of GBP 3,000 with a range of GBP 2,500 to GBP 10,000
  • Small organisations: turnover between GBP 2 million and GBP 10 million. The most serious offences will attract a starting point of GBP 100,000 with a range of GBP 45,000 to GBP 400,000. The least serious offences have a starting point of GBP 700 with a range of GBP 400 to GBP 3,500
  • Micro organisations: turnover not exceeding GBP 2 million. The most serious offences will attract a starting point of GBP 50,000 with a range of GBP 9,000 to GBP 95,000. The least serious offences have a starting point of GBP 200 with a range of GBP 100 to GBP 700
  • Individuals: these defendants will be subject to the banding system currently contained within the Magistrates' Court Sentencing Guidelines. For individuals, the most serious offences will attract a starting point of 18 months' custody with a range of 1 to 3 years. The least serious offences have a starting point of a Band A fine (typically 50% of relevant weekly income but varying from 25% - 75%) with a range of conditional discharge to a Band A fine.

Offenders which are companies, partnerships or bodies delivering a public or charitable service are expected to provide comprehensive accounts for the last three years to enable the Court to make an accurate assessment of its financial status. In the absence of such disclosure, the Court will be entitled to draw reasonable inferences as to the offender's means. There is even scope for the Court to take into account the resources of a linked organisation and to step outside the guideline altogether where a defendant company's turnover greatly exceeds the GBP 50 million threshold for large companies.

So how is seriousness determined?

The guideline sets out a step by step approach to the sentencing exercise. The first step is to determine seriousness by categorising the offence according to the harm caused and then identifying the culpability factors.

There are four harm categories based on the Environment Agency's Incident Classification Scheme, which is used to categorise non-compliance based on the level of harm. Businesses will now, more than ever, need to consider whether or not to challenge the categorisation imposed in the immediate aftermath of an incident, given that this will ultimately affect the Court's view of the seriousness of the matter and therefore impact upon sentence.

There are also four culpability categories: deliberate offences, those committed recklessly, those committed negligently and those where there is low or no culpability. The guideline states dealing with risk of harm involves consideration of both the likelihood of harm occurring and the extent of any harm. Therefore, where the offence has caused risk of harm but no actual harm (or less than the potential harm anticipated), the normal approach will be to move down to the next category of harm, for example, from deliberate to reckless.

The Court will then engage in the familiar process of analysing the aggravating and mitigating features by reference to identified factors increasing or reducing the seriousness of the offending.

Having arrived at a proposed level of fine, it is suggested the Court step back from the process and take into account other factors that may warrant some adjustment to the proposed punishment. Matters such as means, the impact on employees and customers are relevant here, as interestingly is the effect of the fine on the offender's ability to improve conditions and achieve compliance. However, important to note is the fact that relevant recent convictions and/or a history of non-compliance are likely to result in a substantial upward adjustment.

The guideline also suggests that the Court should add to the fine any economic benefit the offender has derived from the wrongdoing.


In addition to any financial penalty, the guideline requires the sentencing Court to consider making a compensation order requiring the offender to pay compensation for any personal injury, loss or damage resulting from the offence. Indeed, where the means of the offender are limited, the guideline requires that priority is given to the payment of compensation over payment of any other financial penalty.

Potential impact

Echoing the well known health and safety authority of R v Howe, the SC confirms that, for corporate offenders, "the fine must be substantial enough to have a real economic impact which will bring home to both management and shareholders the need to improve regulatory compliance".

It continues, "whether the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence". In the current economic climate where profit margins in many industries remain slim or non-existent, the levels of fine anticipated mean this could be a very real risk.

What is clear is the potential for more seven figure fines against large organisations over the coming years for environmental offending. However, for individuals and smaller organisations, whilst levels of fine seem set to increase, the impact is likely to be less given the requirement for the sentencing Court to consider the offender's means when handing down a financial penalty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.