Anglian Water Services Ltd, R. v

A strict-liability pollution offence under Water Resources Act 1991 remains a criminal offence of real gravity. Absence of mens rea may reduce culpability, but it does not remove the heavy obligation on a water company to take all reasonably necessary precautions against pollution.

In fixing a fine, the court should assess culpability, the damage and its spatial and temporal extent, previous compliance, remedial action, the plea, and the offender’s means. The fine must express censure and provide effective deterrence, without imposing a counterproductive burden. No tariff should be prescribed: each case turns on its facts.

Anglian Water Services Ltd pleaded guilty to causing sewage effluent to be discharged into controlled waters, contrary to section 85(3) of the Water Resources Act 1991. The magistrates committed the case to the Crown Court for sentence. At Basildon Crown Court, Judge Zoe Smith imposed a fine of £200,000.

The discharge resulted when a computer-operated gate failed and no adequate fail-safe system was operating. About 200 tonnes of sewage entered the River Crouch. The appellant promptly re-oxygenated the river, which recovered by the following day, but the discharge caused serious local harm to fish and wildlife.

The appellant appealed against sentence. The central issue was whether the fine was manifestly excessive for this strict-liability environmental offence.

1. Appeal allowed. The fine of £200,000 was manifestly excessive and was substituted with a fine of £60,000.

2. The offence under section 85(3) of the Water Resources Act 1991 was one of strict liability, but it was not thereby non-criminal in character. Parliament had imposed a heavy burden on those operating sewage-treatment works to do everything possible to prevent pollution. The appellant’s contention that the mechanical failure was unforeseeable did not answer the sentencing question. The absence of a satisfactory backup system justified the Crown Court’s finding that the appellant had acted grossly irresponsibly.

3. In sentencing environmental offenders, the principal considerations included the degree of culpability and the actual damage, including its spatial and temporal extent. Relevant additional matters were the offender’s record, its conduct after the incident, its plea, and the need to balance deterrent censure against any counterproductive effect of an excessive fine. The court applied the comparable guidance in R v Yorkshire Water Services Ltd [2001] EWCA Crim 2635.

4. This was a serious local pollution event. Its consequences were limited in duration because it was promptly reported and the appellant took effective remedial action. Its previous convictions were of limited significance when viewed against the scale of its operations, although earlier incidents should have prompted a more effective review of risk management. There was no deliberate cost-cutting, and the guilty plea and remedial measures were substantial mitigation.

5. The court declined to prescribe a tariff for pollution offences. Each case required assessment on its own facts, although appellate decisions could provide sentencing reference points. Magistrates should decline jurisdiction where an offence under section 85 may merit a fine above their £20,000 maximum.

6. A defendant’s costs order was also made for the appeal.

• Court of Appeal (Criminal Division) — [2003] EWCA Crim 2243. Allowed the sentence appeal and substituted a fine of £60,000.
• Crown Court at Basildon — Judge Zoe Smith fined the appellant £200,000 following its guilty plea.
• Magistrates’ Court — committed the case to the Crown Court for sentence because its maximum fine of £20,000 was considered insufficient.