Sword of justice may be double edged for farmers
Date of Article
Jul 01 2014

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1 July 2014, Fly tippers and other environmental offenders could be meeting their nemesis– tougher environmental sentencing guidelines which came into effect on July 1 include measures to remove economic benefits, even if that means driving the offenders out of business.

But the guidelines from the Sentencing Council for England and Wales apply tougher penalties across a wide range of offences and remove the economic benefits that come from the crime, now an important factor in sentencing.

“While it’s obviously great news that tougher sentences may deter some activity such as fly tipping, farmers and rural landowners still need to be diligent not only in their efforts to deter offenders but also in ensuring they themselves comply with environmental law,” advises Cambridge-based rural land use expert Nicola Banks of national consultancy Carter Jonas.

“For instance, while a one-off pollution incident may be accidental, the savings made through not installing leakage alarms or bunds that could have reduced the risk from a leak may be viewed as an economic benefit and that could be added to any financial or other penalty,” she explains.

“This is the first sentencing guideline to be issued for environmental offences and it is expected to result in higher fines for corporate defendants and serious offenders. The guideline aims to encourage courts to make greater use of higher fines, particularly where these offences are motivated by profit or saving money.

“In the case of individuals where imprisonment is also an option, a year’s custody is the starting point for the most serious types of offenders who deliberately commit a crime that causes, or presents a serious risk of, significant harm.

“Landowners who are ignorant of illegal activities on their land may not escape criminal penalties or a Proceeds of Crime Act 2002 confiscation order.

“In a recent case, the Appeal Court upheld a haulage contractor’s conviction for contravention of environmental rules regarding waste disposal after a sub contractor dumped and set fire to illegal third-party waste brought on site while he carried out his contracted demolition work for the haulier.

“The court held that knowledge of the sub contractor being on site was sufficient evidence for the Environment Agency to secure a conviction under the Environmental Permitting Regulations 2007 of ‘knowingly permitting’ the illegal waste operations even though the haulage contractor was not aware of sub contractor’s illegal actions.

“The Appeal Court decisions shows that when using contractors it pays to be fully aware of what they are doing to avoid secondary involvement in an offence.”