The Court of Appeal has ruled against Thames Water Utilities Limited and upheld the £250,000 fine for pollution (sewage) of a nature reserve. The original sentencing decision made by the Court was made in accordance with the Environmental Sentencing Guidelines which came into force in July 2014. This is the first judgement of the Court of Appeal to consider the new 2014 Sentencing Council Guideline for Environmental Offences and it confirms the intention that fines will be fixed taking into account the means of a particular company offender, not just to reduce the level of a fine in a particular case, but to increase it where the company is of greater means.
The original case was brought by the Environment Agency following the release of untreated sewage (3rd September 2012) into Chase Brook following a non-emergency discharge from the Broad Laying Sewage Pumping Station Emergency Overflow pipe (PSEO). The court heard that the discharge happened because pumps at the pumping station had on the 29th of August 2012 had become blocked and Thames Water had failed to act on their alarm systems to attend and unblock them.
Failure of the pumps led to the stations wet well becoming full and caused Thames Water to discharge sewage through the emergency outfall, rather than be carried through the pumping station and sewage network to the local waste water treatment works (sewage works) where it could be treated.
Matthew Rice, Environment Agency Officer, said:
“Our officers attended the site after a member of public reported a strong smell of sewage and discoloured water in the Chase Brook. It soon became apparent that the whole length of the Chase Brook (approximately 600 metres) was polluted with Sewage.”
“Water quality testing revealed that there were high levels of both ammonia and e-coli in the pond and Brook. This combined with low oxygen levels meant that recovery from the incident was a long process. Ammonia is toxic to aquatic organisms and low dissolved oxygen levels starve creatures of oxygen which is essential for life”.
“Despite the fact that Thames Water had fixed the two pumps which were blocked and had organised a tanker to control the flow, raw sewage had already severly impacted aquatic life in over 600 metres of the chase brook”.
Since the incident in 2012, Thames Water has made several changes at Broad Layings Sewage Pumping Station (SPS). They have sealed up the PSEO outfall to the Chase Brook and Created a bunded area around the SPS into which the Contents of the well will overflow, instead of the Chase Brook. They have also replaced both of the pumps on-site with a new type which can deal with blockages.
During sentencing Judge, Mrs Recorder Arbuthnot said “The parties agree that the level of culpability is negligence and with which I agree. With regards to harm I find that this is a Category 3 Offence but at the severe end”.
Ann Brosnan, Deputy Director (Chief Prosecutor) of Legal Services at the Environment Agency Said:
“We Welcome the Court of Appeal’s decision to uphold this significant prosecution result, which demonstrates that business need to prevent pollution or their profits could take a hit.”
“Under the new Environmental sentencing guideline very large companies who risk causing serious environmental damage could face very large fines.”
“In this instance the Company did not act swiftly enough to stop sewage damaging a nature reserve and a significant clean-up operation was needed. This sentence should act as a deterrent. In fact the Court said that it would have upheld a very substantially higher fine in this case”.
In discussing the new environmental sentencing guidelines the Court noted that in the worst cases, which cause the highest category of harm and culpability the objective of punishment, deterrence and removal of gain (for example the decision of management not to expend sufficient resources in modernisation and improvement) must be achieved by the level of penalty imposed. This may well result in a fine equal to a substantial percentage, upto 100% of the Company’s pre-tax profit for the year in question….even if this results in fines in excess of £100 million.
Regarding repeat offending, the Court of Appeal Said:
“To bring the message home to the directors and shareholders of organisations which have offended negligently more than once before, a substantial increase in the level of fines, sufficient to have a material impact on the finances of the company as a whole, will ordinarily be appropriate. This may result in fines measured in millions of pounds”.
For a Large Company (Turn over >£50 million) committing a negligent Category Pollution 3 Incident the Sentencing Guidelines set a Starting Point for the Fine of £60,000, and a range of £35,000 to £150,000 to enable the courts to take account of aggregative and mitigating factors
The Sentencing Guideline Review states that:
Where a defendants turnover or equilivalent very greatly exceeds the threshold for large companies it may be necessary to move outside the suggested range to achieve a proportionate sentence.
At the time that the pollution incident occurred the the defendant profit for the year ending 31st March 2014 was £346.7 Million