The science of sentencing in health and safety cases involving companies came under the microscope recently at the Court of Appeal.
Thames Water had been fined in the sum of £2,000,000 following a case at Reading Crown Court in which it had pleaded guilty to an offence relating to the discharge of untreated sewage (an offence under the Environmental Permitting (England and Wales) Regulations 2016). The company then appealed the amount of the fine.
In refusing the appeal, the Court was at pains to affirm the findings in a previous case, also involving Thames Water (R v Thames Water Utilities Limited). It was therefore underlined that:-
- A company’s financial circumstances must always be taken into account, but especially so in the case of a very large organisation;
- Repeated ‘operational failures’ can be treated in the same way as previous convictions. Such failures are said to suggest ‘…a lack of appropriate management attention’;
- Where is previous offending or failures of the type described above, there ought to be a ‘substantial increase’ in the amount of a fine;
- Where the company is said to be simply ‘large,’ a court does not have to be bound by the fines contained in the relevant Sentencing Guideline.
The court in this case also indicated that it would have increased the fine handed to Thames Water had it been permitted to do so, stating that
‘….the resulting fine of £2 million was not manifestly excessive or wrong in principle.’
What can be taken from the case?
The points highlighted above are of obvious significance for multi-million pound companies, and certainly such organisations are no strangers to the court system. That said, any company would do well to take note of the Court of Appeal’s findings- any breach of environmental regulations is treated with the utmost seriousness.
Further, financial penalties cannot be challenged simply because the company feels that the judge did not adequately detail their reasoning. It is only if the fine can be said to be manifestly excessive, or wrong in principle, that it can be called into question. If the company is simply aggrieved by the amount it will have to pay out, they will have to live with it.
One last point. The prosecution costs, which Thames Water had been ordered to pay, were just shy of £80,000- a substantial sum. Any company being prosecuted for such offences therefore runs the risk of being asked to pay a similarly significant sum.
At Ison Harrison we have secured several excellent results for companies and directors facing prosecution by the Environment Agency and the Health and Safety Executive. The best course of action in any investigation is to obtain expert advice at an early stage. Prosecutions can often be avoided altogether if appropriate steps are taken and we can take care of that process for you during the investigatory stage.
If your company is facing proceedings in relation to a breach of environmental regulations, our Regulatory law team can assist with its experience in handling these difficult cases. Please contact Amber Walker on 0113 284 5042 or firstname.lastname@example.org, or Ian Anderson via 0113 284 5062 or email@example.com.
The full Judgment can be found at:-https://www.bailii.org/ew/cases/EWCA/Crim/2019/1344.html by way of https://summaryjustice.com/