Cemex Cement Ltd, R v

In sentencing a corporate offender for a strict-liability environmental offence, the health-and-safety sentencing principles remain helpful. There is no tariff and no fixed relationship between a fine and turnover or profit. The court must assess the gravity and duration of the breach, the risk and danger created, aggravating and mitigating features, and the offender’s resources.

A fine must be large enough to mark the offence and deter a corporate offender, but it must remain proportionate. Substantial corporate resources cannot justify a fine that is disproportionate to the breach, the limited consequences, and the mitigation present.

Cemex pleaded guilty at Rugby Magistrates Court to failing to comply with a permit condition requiring plant, equipment and technical means to be maintained in good operating condition. The offence concerned a defective external door on a reject clinker silo at its cement works. Dust escaped through the defective door before a temporary repair and, the following day, a full repair were completed.

The magistrates committed the case to Warwick Crown Court because their fining powers were inadequate. The Recorder imposed a fine of £400,000 and prosecution costs. Cemex appealed by leave, alleging factual errors in the sentencing basis and that the fine was wrong in principle and manifestly excessive.

The central issue was whether the fine was proportionate to this strict-liability environmental breach, its risk and consequences, the company’s resources, and the accepted mitigation.

1. Appeal allowed. The court quashed the £400,000 fine and substituted a fine of £50,000.
2. The Recorder had not sentenced on an erroneous factual basis. He did not decide that the defective door was the principal source of all dust emissions. He permissibly found that a substantial quantity escaped through the gap around that door. The safety data sheet was used only as background to seriousness. The Recorder expressly accepted that no actual adverse health consequences had been shown.
3. The principles in R v Howe [1999] 2 All ER 249, although formulated for offences under the Health and Safety at Work Act 1974, were helpful in sentencing for environmental pollution under the Pollution Prevention Control Regulations 2000. Sentencing required an assessment of the gravity and duration of the breach, the risk created, aggravation, mitigation, and the offender’s financial means. There was no tariff or fixed relationship between a fine and turnover or profit.
4. The court accepted that none of the particular aggravating features identified in Howe was present and that all its stated mitigating features were present. The Recorder was nevertheless entitled to treat the inadequate inspection and record-keeping arrangements, the delay and imperfect temporary repair, and restarting the kiln before proper repair as aggravating. Cemex’s substantial resources were also properly relevant.
5. Even so, there had been no death, actual health damage, or deliberate breach for profit. The incident was short-lived and the mitigation was substantial. Having regard also to R v Clifton Steel Ltd [2007] EWCA Crim 1537, the fine was disproportionate and did not need to exceed £50,000.

• Court of Appeal (Criminal Division). Allowed Cemex’s appeal by leave, quashed the Crown Court fine of £400,000, and substituted a fine of £50,000: [2007] EWCA Crim 1759.
• Warwick Crown Court. The Recorder sentenced Cemex to a fine of £400,000 and ordered payment of prosecution costs.
• Rugby Magistrates Court. Cemex pleaded guilty. The magistrates committed the case to the Crown Court for sentence because their powers were inadequate.