|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Thames Water Utilities Ltd, R v  EWCA Crim 202 (19 February 2010)
Cite as:  Env LR 34,  Bus LR D132,  2 Cr App Rep (S) 90,  3 All ER 47,  EWCA Crim 202,  2 Cr App R (S) 90
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
MISS RECORDER WICKHAM
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE DAVID CLARKE
MR JUSTICE SWEENEY
|- and -
|THAMES WATER UTILITIES LTD
Mark Harris and Howard McCann (instructed by The Environment Agency ) for the Respondent
Hearing dates : 9th November 2009
Crown Copyright ©
Mr Justice Sweeney:
"The pollution event from [the Works] was completely inexcusable; a tragedy for the Wandle that with one wrong turn of a stopcock destroyed many years of hard work by local people to restore the river".
The hearing in the Crown Court.
The Grounds of Appeal.
i) Took insufficient account of the £500,000 in reparation paid or pledged by the Appellant;
ii) Took too high a starting point of £250,000;
iii) Gave too much weight to the Appellant's previous convictions.
The Relevant Sentencing Principles.
"Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing –
(a) the punishment of offenders
(b) the reduction of crime (including its reduction by deterrence)
(c) the reform and rehabilitation of offenders
(d) the protection of the public
(e) the making of reparation by offenders to persons affected by their offences."
"(1) In considering the seriousness of any offence, the court must consider the offender's culpability in committing the offence, and any harm which the offence caused, was intended to cause or might foreseeably have caused.
(2) In considering the seriousness of an offence ('the current offence') committed by an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating feature if (in case of that conviction) the court considers that it can reasonably be so treated having regard, in particular, to –
(a) The nature of the offence to which the conviction relates and its relevance to the current offence,
(b) The time that has elapsed since the conviction.".
i) The environment in which we live is a precious heritage, and it is incumbent on the present generation (including the courts) to play a part in preserving it for the future. Rivers and water courses are an important part of the environment, and there is an increasing awareness of the necessity to preserve them from pollution.
ii) Parliament has imposed on the Appellant, and other companies like it, a heavy burden to do everything possible to ensure that they do not cause pollution by the escape of materials from sewage treatment plants into controlled waters.
iii) Section 85(1) of the 1991 Act is an offence of strict liability precisely because Parliament regards the causing of polluting matter to enter controlled waters to be so undesirable as to merit the imposition of criminal punishment irrespective of a company's knowledge, state of mind, belief or intention.
iv) Although environmental safety involves a question of where to strike the balance of priority, there is a clear onus on a prudent water company to conduct ongoing risk assessments looking at not only the likelihood of events occurring that might lead to pollution, but also looking at the extent of the damage, or possible damage, if such events do occur. When the level of risk requires it, fail safe systems must be put in place.
v) The size of the overall penalty will be dependent on the peculiar facts of each case. The authorities provide no tariff as such, although decisions of this Court are likely to continue to emerge over time, and will provide some kind of focal points.
vi) Punishment, deterrence (thereby protecting the environment and the public in the future), and reparation are all particularly important purposes of sentence in this type of case.
vii) Punishment speaks for itself.
viii) The purpose of deterrence, in this context, includes :-(a) Making clear that the overall penalty for a breach of the law is always likely to be more costly than any expense that should have been incurred in avoiding the breach in the first place.(b) The need for the overall penalty to be such as to bring the necessary message home to the particular defendant (whether individual or corporate) before the Court, in order to deter future breaches - whether by that defendant, or by other potential offenders.(c) The need for equal deterrence of all potential offenders, whether wealthy or of limited means - not least because the wealthiest potential offenders are likely, via the scale of their operations, to have the greatest potential to cause the most serious damage.
ix) Thus, in the case (as here) of a large wealthy company defendant, the overall penalty should, if required, be substantial enough to have a real economic impact so as (along with the attendant bad publicity) to bring the necessary deterrent message home to those who manage the company, and also to its shareholders. That said, if (in contrast to the present case) the Defendant is an under-funded organisation, care may need to be taken to avoid the counterproductive effect of imposing too great an overall penalty.
x) Consistency of fine level will therefore be difficult to achieve between cases, as will consistency of proportionality between the fine and the gravity of the offence. However, such consistency is not a primary aim of sentencing in cases of this type.
xi) Whilst reparation is one of the principal purposes of sentence in this type of case, the only formal order available to the sentencing court to achieve it is a compensation order. There is, however, an obvious potential difficulty in making compensation orders in this type of case. This Court has made clear, on a number of occasions, that complex compensation issues should not be dealt with in the criminal courts, and it is likely that compensation issues in this type of case will often be complex. Therefore, although compensation orders must always be considered, there may well be practical difficulties in imposing them.
xii) The following factors, relating to the actual or potential extent of the damage caused, may aggravate the seriousness of the offence:-a) The pollutant was noxious, widespread or pervasive or liable to spread widely or to have long-lasting effects.b) Human health, animal health or flora were adversely affected – especially where a protected species was affected, or where a site designated for nature was affected.c) An extensive clean up operation, site restoration or animal rehabilitation operation was required.d) Other lawful activities were prevented or significantly interfered with.
xiii) More general aggravating features include:-a) The extent to which the company fell short of its duty, and thus its degree of culpability.b) The deliberate breaching of a duty in order to maximise profit.c) The skimping of proper precautions to make or save money, or to gain a competitive advantage.d) Evidence of repetition, or failure to heed advice, caution, concerns or warnings whether from the Regulatory Authorities, employees, or others.e) A poor attitude and/or response after the event.f) Any previous convictions.
xiv) Mitigating features include:-a) A good record of compliance with the law.b) A good attitude and/or response after the event – including prompt reporting of the offence, co-operation with the enforcement authorities, the taking of prompt and effective measures to rectify any failures, and the payment of compensation. Albeit that appropriate corrective action (both putting right the failures that led to the offence, and ensuring lack of repetition) should been seen as the necessary minimum response, as indicated above, a poor response will be regarded as an aggravating feature.c) A timely admission of guilt, and a plea of guilty at an early opportunity.
Ground 1 – Insufficient account taken of the £500,000 in reparation.
i) The payment and pledged payment totalling £500,000 directly engaged section 142(1)(e) of the Criminal Justice Act 2003 (above), and therefore required the accordance of great weight in the sentencing exercise, rather than the modest weight given to it by the learned Recorder, when she indicated that its impact on the fine should be 'not too substantial'.
ii) That was particularly so in this case, because the total sum goes far beyond any compensation for loss or damage resulting from the offence which the court could have awarded under the provisions of section 130 of the Powers of Criminal Courts (Sentencing) Act 2000 (above).
iii) In addition, the voluntary payment of any such sum in reparation was unprecedented, quite apart from its amount and the far reaching extent of its future effect, and was far better directed than any order which the court could have imposed.
iv) Thus the payment of such sums in the future should be encouraged by a very substantial reduction in the otherwise appropriate level of fine, perhaps to only a nominal figure.
Ground 2 – Starting point too high.
i) The Appellant had only recently invested £15 million in the Works, including the installation of the tertiary treatment plant itself.
ii) Thus there was clearly no aggravating feature of the offence being driven by profit making, or the saving of otherwise necessary expense – which, in any event, would have been negligible.
iii) In particular, the absence of a risk assessment was not financially motivated. Indeed the risks created by the escape of bleach were 'blindingly obvious' and the risks created by the absence of any fail safe were so obvious that it did not require a risk assessment to point them out.
iv) The Appellant's motivation in carrying out the cleaning process on 17 September had been to ensure the best water quality sooner rather than later, not to save the few hundred pounds that it would have cost for Norsk Hydro to carry out the necessary work.
v) The failure to post a lookout on the weir had been (as accepted above) a 'juvenile' mistake, rather than the product of inappropriate fiscal motivation. It was a classic case of carelessness, not a deliberate or reckless breach of the law.
vi) Nor was there any failure to heed or respond to advice, caution, warnings or concerns from others. On the contrary, the Appellant's attitude towards the authorities had been responsible and fully co-operative throughout.
vii) The facts in the Anglian Water Services Limited case (above) were broadly analogous to the instant case, and the fact that the fine in that case (which also involved an early plea) was reduced on appeal from £200,000 to £60,000 showed that the learned Recorder's starting point of a fine of £250,000 after a trial, and before giving effect to any mitigating features (in particular the £500,000 reparation), was far too high.
viii) The sentences imposed by Magistrates in a number of similar cases further supported this submission.
Ground 3 – Too much weight given to previous convictions.
i) It is, in reality, inevitable that (as the largest water and sewage service company in the country) the Appellant has in the past, and will in the future, commit strict liability breaches of the 1991 Act.
ii) In those circumstances, the learned Recorder should have given effect to this court's approach in the Anglian Water Services Limited case (above) to the effect that 'the number of previous convictions is not of great significance when seen in the light of the ambit of the Appellant's operation' – see paragraph 30 of the judgment.
iii) It was also a significant feature, to which the learned Recorder gave too little weight, that none of the Appellant's previous convictions related to the Works, and that only two related to the escape of bleach, the last of which was 5 years before the instant offence.
i) The Anglian Water Services Limited case (above) was significantly less serious than the instant case. In the former case only 2 kilometres of the river was affected rather than 5 kilometres as in the instant case; the river recovered within 24 hours rather than the three months in this case; the gravity of the fish stock loss was far worse in the instant case; as was the loss of public amenity. In addition (given the terms of the judgement in the Anglian Water Services Limited case) the Appellant's failures to carry out a risk assessment and/or to provide a fail safe system were particularly grave.
ii) The Appellant's reliance on sentences imposed in other cases, particularly cases in the Magistrates' Court, was inappropriate.
iii) The learned Recorder's identification of a fine in the order of £250,000 after a trial and before making any allowance for mitigation was in the correct bracket – albeit that the authorities do not provide a tariff against which to judge the correct bracket for a case of this type.
iv) It was, however, right to acknowledge that the court's power to have awarded compensation would have been limited to about £30-40,000 and thus the sum of £500,000 in reparation represented a very significant payment in excess of that figure, albeit that a substantial proportion of it was to be paid over 5 years, and would thus lack the full impact on the Appellant of it all having to be paid in one payment – as would normally be the case with a fine and compensation imposed by a court in this type of case.
i) The pollution was noxious, widespread and pervasive. It also had long-lasting effects.
ii) Human health was affected to the extent that, in the very early stages, those near the pollution suffered nausea, and steps had to be taken to keep people away. Animal health and flora were devastated, with (for example) the loss of substantial quantities of high quality fish, with many of the larger specimens being effectively irreplaceable.
iii) An extensive clean up operation, site restoration and animal rehabilitation operation were all required.
iv) The lawful enjoyment of the controlled waters as an important fishery and recreational resource in South London was prevented and/or significantly interfered with.
i) The Appellant fell far short of its duties. There was no risk assessment. There was no fail safe system. There was no appropriate training of staff as to the risks involved. There was no supervision. The discipline of the carrying out of a risk assessment would have revealed the 'blindingly obvious' risk of catastrophe. This should, in turn, have led to the recognition of the need for a fail safe system, including a penstock valve at the exit from the tank, and the proper training of staff as to the need to use a dipstick and to have a lookout on the weir, and for proper supervision. Instead, nothing was done, and a 'juvenile' error duly led to a catastrophe.
ii) This was not, however, a breach involving the maximising of profit, or the skimping of proper procedures to make or to save money. That said, the acceptance that the risks were 'blindingly obvious' and that the eventual error was 'juvenile', which were put forward by the Appellant to underline its lack of financial motivation, are nevertheless (as we have just set out, and as Mr Barnard accepted in argument), highly aggravating features in themselves.
iii) In any event, as already touched on above, the breaches of duty described above involved a reprehensible failure to heed the advice, caution and warnings of this court in the Anglian Water Services Limited case.
iv) The Appellant has a large number of previous convictions for similar strict liability offences, albeit that none relate to the Works, and only two relate to the escape of bleach. Whilst, for the reasons given by this court in the Anglian Water Services Limited case, a sentencing court should not be overborne by the number of convictions per se in a case involving a major water company, nevertheless section 143(2) of the Criminal Justice Act 2003 must be respected. Thus, in our view, the learned Recorder was clearly entitled to regard the Appellant's previous convictions as aggravating the offence.
v) There was also an initial, albeit short, poor response by the Appellant after the event. As indicated above, this was because the likely scale of the consequences was not appreciated when it should have been.
i) After the initial poor response, the Appellant did everything that could be expected of it and more, by way of:-a) Co-operation with the enforcement authorities;b) The taking of prompt and effective measures to rectify the failures, both in the restitution of the controlled waters, and in the provision of a fail safe system for the future;c) The unprecedented payment and pledge of the total sum of £500,000 – a sum vastly in excess of any which the court could have ordered by way of compensation.
ii) There was a timely admission of guilt, followed by a plea of guilty at the earliest opportunity.
i) The Court should first assess the seriousness of the offence by reference to its facts. This assessment should include consideration of all aggravating and mitigating features relating to the offence itself.
ii) Given the resultant assessment of seriousness, and consideration thereafter of the offender's means, the Court should then identify the amount of a notional fine after a trial. The notional fine should combine both the punishment and deterrent elements of the sentence. The deterrent element should be the amount, over and above the amount of the punishment element, that is required to reach a total figure that brings the necessary message home to the offender's managers and shareholders (and thereby to others).
iii) The Court should then consider the making of any appropriate compensation order(s), and (if made) the extent to which the amount of any such order(s) should be imposed in addition to, or deducted from, the amount of the notional fine identified thus far. In addition to the requisite consideration of the means of the offender, the fact of a prompt offer by the offender to submit to such an order or orders may be a significant feature in such a decision.
iv) The Court should then go on to consider the question of the extent to which (in addition, if it be the case, to the acceptance of any compensation order or orders) the offender has brought the message home to itself, and then the extent (if any) to which that should be reflected in a deduction from the amount of the notional fine thus far identified as appropriate. The cost of putting right the failures that led to the offence, and of ensuring lack of repetition, should not be taken into account in this regard. Such corrective action should be regarded, save in the most exceptional case, as the minimum response to an offence, with failure to carry it out being regarded as a significant aggravating feature. In contrast, the making of substantial voluntary reparation should, depending on its nature and amount, generally be regarded as a significant mitigating feature in this respect, typically requiring at least some reduction in the level of the deterrent element of the notional fine thus far identified. It may, in an appropriate case, result in a very significant reduction. In an exceptional case it may even reduce the deterrent element of the notional fine to a nil amount. However, a deduction for voluntary reparation should not generally reduce the level of the notional fine below the amount already identified as representing the punishment element of the sentence. There may, nevertheless, be very exceptional cases in which justice requires that the extent and amount of voluntary reparation should, at this stage of the process, be reflected in a reduction of the notional fine to an amount below that hitherto identified as representing the punishment element of the sentence. This will all depend upon the particular facts of each case.
v) Having made any reduction for the extent to which the offender has brought the necessary deterrent message home to itself, the Court (which will have considered the mitigating features of the offence itself when assessing seriousness) should then consider whether there are any other mitigating features requiring any further reduction in the amount, thus far reached, of the notional fine.
vi) Finally, the Court should deduct the appropriate percentage of discount for the plea, thereby arriving at the final amount of the actual fine to be imposed (together with any compensation order/orders).
i) As we have already indicated, it seems to us that on its facts, including consideration of the aggravating and mitigating features of the offence itself, this was an extremely serious offence of its type. Thus the learned Recorder was plainly entitled to regard it as such.
ii) Given that assessment, and after consideration of the Appellant's very considerable means, it seems to us that on the facts of this case the appropriate notional fine after a trial, combining both the punishment and deterrent elements of sentence, was a notional fine in the order of £250,000 to £300,000 (with the punishment element of that sum being in the order of £75,000 to £80,000). Thus the learned Recorder's starting point of £250,000 was within the appropriate bracket.
iii) It was not possible to make a compensation order, as the total sum of £30,000 to £40,000 in compensation that might have been the subject of such an order, or orders, had already been paid as part of the voluntary reparation, and thus fell to be considered as part of it.
iv) The nature and amount of the voluntary reparation made and pledged in this case was clearly exceptional. It was, in all, substantially more than the amount of the notional fine after a trial that we have identified above. Although there was an obvious element of public relations gain, and also payment (in substantial part) over a longer period than would have been the case under a court order, the Appellant had thereby clearly brought the necessary deterrent message home to its managers, to its shareholders, and (as a result of the attendant publicity) to others. In the result, the nature and amount of the reparation in this case was such, in our view, as to mean that the proper course should have been for the learned Recorder, in consequence, to have reduced the deterrent element of the notional fine to nil. She therefore fell into error by making a much smaller reduction. We have further considered, with particular care, whether this is one of those rare cases in which the learned Recorder should have gone even further and reduced the punishment element of the notional fine at this stage of the process too. Given, in particular, the extreme seriousness of the offence, it would not have been right for her to have done so, in our view, in this particular case.
iv) We have not identified any further mitigating feature which ought to have reduced the punishment element of the notional fine.
vi) Taking the figure at the bottom of the bracket that we have identified above for the punishment element, namely £75,000, and applying (as she otherwise rightly did) full discount for the early plea, the learned Recorder should thus have arrived at an actual fine of £50,000.