Thames Water Utilities Ltd, R v

For serious corporate pollution offences, sentence must reflect culpability, actual or foreseeable environmental harm, punishment, deterrence and reparation. A water company must conduct continuing risk assessments and provide fail-safe systems where the risk and possible consequences require them.

A court should assess seriousness and identify a notional post-trial fine containing punishment and deterrence. Substantial voluntary reparation may justify reducing, or exceptionally eliminating, the deterrent element. It will not normally reduce the punishment element. The court should then allow for other mitigation and the guilty plea. A fine imposed on a wealthy company must have a real economic impact, but the sentence remains fact-specific and no tariff applies.

The appellant pleaded guilty at Sutton Magistrates’ Court to causing sodium hypochlorite to enter controlled waters, contrary to section 85(1) of the Water Resources Act 1991. During unsupervised cleaning of a sewage-treatment tank, bleach escaped into a tributary of the River Wandle and the river itself. The incident caused extensive and long-lasting ecological damage.

At Croydon Crown Court, the Recorder imposed a fine of £125,000 and ordered prosecution costs. The company had made and pledged £500,000 in voluntary reparation. It appealed against sentence, contending that the reparation, the starting point and its previous convictions had been wrongly assessed.

The central issue was how a sentencing court should balance punishment and deterrence against exceptional voluntary reparation for a serious environmental offence.

Appeal allowed. The fine of £125,000 was manifestly excessive. It was quashed and replaced with a fine of £50,000.

1. An offence under section 85(1) of the Water Resources Act 1991 is one of strict liability. Water companies bear a heavy responsibility to prevent pollution. They must conduct continuing risk assessments addressing both the likelihood of failure and the possible scale of harm. Where the risk requires it, they must provide fail-safe systems. The appellant’s lack of risk assessment, safeguards, training and supervision made this an extremely serious offence.

2. The seriousness assessment had to reflect the noxious, widespread and persistent pollution, its effect on people, fish, flora and public amenity, the extensive restoration operation, and the appellant’s culpability. Its previous convictions could properly aggravate sentence under section 143(2) of the Criminal Justice Act 2003. However, a major water company should not be treated as more culpable solely because of the number of convictions, without regard to the scale of its operations.

3. Following the principles in Anglian Water Services Limited [2003] EWCA Crim 2243, punishment, deterrence and reparation were especially important. For a wealthy company, the overall penalty must ordinarily have a real economic impact on management and shareholders. There was no tariff; sentence depended on the particular facts.

4. The court set out a structured approach. It should assess offence seriousness, identify a notional post-trial fine containing punishment and deterrence, consider compensation, then assess whether voluntary reparation warrants a reduction. Corrective measures preventing repetition are ordinarily the minimum expected response. Substantial voluntary reparation will generally reduce the deterrent element, but should not normally reduce the punishment element. Other mitigation and the guilty-plea discount follow.

5. Here, the proper notional fine was £250,000 to £300,000, of which £75,000 to £80,000 represented punishment. The exceptional £500,000 voluntary reparation had fully brought home the deterrent message, so the deterrent element should have been reduced to nil. The seriousness of the offence prevented any reduction of the punishment element. After full credit for the early plea, the correct fine was £50,000. A defendant’s costs order was made.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 202, the court allowed the appeal against sentence, quashed the £125,000 fine and substituted a fine of £50,000.
• Crown Court at Croydon: On 26 January 2009, Miss Recorder Wickham fined the appellant £125,000 and ordered it to contribute £21,335.19 towards prosecution costs.
• Sutton Magistrates’ Court: On 4 December 2008, the appellant admitted the section 85(1) offence.