The Polluter Pays: Part 2 Criminal and Civil Penalties for Water Pollution

This Article is the second of a 3-part series which looks at the following:

• Part 1- Recent fines and the law relating to water pollution

• Part 2- Criminal and civil penalties for water pollution

• Part 3- The future regulation of water pollution and conclusion

This part reviews the penalties which may be imposed by the Courts through criminal prosecutions and civil penalties that may be imposed by the regulators.

Sentencing powers for a Regulation 38 offence

If an offence is not so serious as to warrant prosecution, the EA may assess whether a warning or formal caution is an appropriate penalty. This would usually be the case for a first offence and/ or minor breach of the Regulations. For more serious offences and repeated breaches, prosecution before the criminal Courts is the more likely response.

The sentencing powers available to the Courts for offences relating to water discharge activities or groundwater activities are prosecuted under Regulation 38(1)(a) (referring to Regulation 12(1)(b)) and the offence may be heard by the Magistrates or the Crown Court. The Courts would consider use of the following financial orders to ensure any economic benefit derived from the offence was removed:

1. making a compensation order to pay for any loss, damage or personal injury which may have occurred as a result of the offence;

2. confiscation proceedings brought under the Proceeds of Crime Act 2002, section 70 following committal to the Crown Court; and/ or

3. a fine as per the Environmental Offences Definitive Guideline.

Regulation 38 offences may result in the imposition of significant penalties as detailed below:

Where the offender is an organisation;

• a maximum unlimited fine imposed by either the Magistrates or the Crown Court

Where the offender is an individual;

• on summary conviction in the Magistrates Court - an unlimited fine and/ or imprisonment for up to 6 months

• on indictment in the Crown Court - an unlimited fine and / or imprisonment for up to 5 years

Sentencing in pollution matters is governed by the Environmental Offences Definitive Guideline. The Court should:

i. make an assessment of culpability (whether it was a deliberate, reckless or negligent act)

ii. assess the level of harm caused; and

iii. take the company’s turnover into account.

The Court will consider aggravating factors such as previous convictions, a history of non- compliance, whether an offence is committed for financial gain, deliberate concealment and the location of the pollution, such as near houses or schools.

Alongside compensation, fines and potential confiscation, companies should also have regard to the potential reputational damage caused. The EA and Department for Environment Food & Rural Affairs (Defra) for example, are publicising successful prosecution cases for water pollution across social media, in the press and in official statements.

Civil Penalties

The EA have the power at present to issue variable monetary penalties as regulator, without the need to go to Court. These civil penalties can be used as an alternative to criminal prosecutions but at present are capped at £250,000. A recent Government Consultation, dated April 2023, proposes that this cap will be removed completely to allow the EA to impose unlimited fines.

Further civil sanctions available to the EA include fixed monetary penalties, compliance notices, restoration notices, stop notices, enforcement undertakings and third-party undertakings.