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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Southern Water Services Ltd, R v [2014] EWCA Crim 120 (23 January 2014) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2014/120.html Cite as: [2014] EWCA Crim 120 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
(Lord Thomas of Cwmgiedd)
MR JUSTICE SIMON
and
MR JUSTICE IRWIN
____________________
| R E G I N A | ||
| - v - | ||
SOUTHERN WATER SERVICES LIMITED |
____________________
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
Mr D Walbank appeared on behalf of the Crown
____________________
Crown Copyright ©
Thursday 23 January 2014
THE LORD CHIEF JUSTICE:
The offence
Southern Water
Services Limited, part of the
Southern Water
Group, a utility company owed by professional shareholders, discovered that their sewage-pumping station at Margate, which discharged effluent into the sea off the coast of Kent, was faulty and was discharging untreated sewage. They did not notify the Environmental Agency or the Fisheries Conservation Authority until 17 January 2011. That was a breach of their licence and their obvious duty to the public. It transpired that three of the four transfer pumps had failed. Vibration appears to have caused the feet of the pumps to shear. This reduced the capacity of the works so that up to 50 per cent of the sewage was discharged untreated on occasions into the sea. In the period to July 2011, because they were unable to make permanent repairs to the pumps, there were further discharges of untreated sewage into the sea.
Culpability and harm: The findings of the judge
water
sports. Furthermore, the
waters
were used for shell fisheries. The judge found that any loss of confidence in the use of the coastal
waters
of Kent could have a serious effect on the local economy.
The appeal: Culpability and harm
Southern Water
and its main board have approached the whole of this serious criminal offending, is that those representing the company were not given the proper material to enable them to explain to the sentencing judge why there had been no fault on their part in the design. Secondly, nothing of any substance was put forward before the sentencing judge to show why there had been delay in dealing with this matter. Mr Thwaites QC has directed our attention to some interviews which took place with the low-level operatives responsible.
Southern Water
Services Limited failed to appreciate the seriousness of the criminality involved in what had happened and to commission proper evidence, if such was the case, to show that there was good reason why the failure could not be remedied more quickly. It was said on behalf of the Crown that there had been a systemic failure and that the company should have put in more resources. Again, there was no evidence from the company at its main board level to deal with this submission. It is, therefore, hardly surprising that the judge concluded, as she did, the level of culpability which we have set out in the absence of any evidence from the company, and evidence properly put forward, which would show the care and attention that a company of this size would give to such a serious incident as this. If there was material which could have enabled the judge to reach a different conclusion, it is entirely the company's own fault that the judge came to the conclusion she did, as they did not put forward any evidence.
Southern Water
has treated this matter.
Southern Water
.
The financial circumstances of the company
Southern Water
is a very large company by any standards. It had a turnover of approximately £0.75 billion in the last financial year. Its turnover in the year before that was only a little less. Its profitability after tax was £79 million in 2012 and £156.9 million in 2013. It is a company owned by professional shareholders who have two representatives on the board. It is, therefore, a company that has very substantial resources and a management that is quite capable, if it were to put its mind to it, of dealing with the problems that arose in this case.
water
industry professional shareholders would be expected to make investments. The court looks at its profitability in the ordinary way, as if it were an ordinary privately held company. It is quite different to Network Rail, where the monies put into the company come from the public purse.
water companies and other similar utilities have not taken much more seriously the criminality of such offences of the seriousness involved in this case.
MR WALBANK: There is no application.
THE LORD CHIEF JUSTICE: Thank you very much.