McIntosh, R. v

A company director who persistently neglects environmental compliance, despite repeated warnings and enforcement action, may properly be disqualified where he knows that the company is failing to meet its obligations and nevertheless remains in office. The assessment is one of the sentencing judge’s broad discretion.

A prosecution costs order may take account of an offender’s equitable interest in property. The fact that payment may require a sale or re-mortgage does not prevent a finding that the offender has means to pay, although a realistic further period for payment may be appropriate.

The appellant, the sole director of Caledonian Waste Ltd, pleaded guilty to environmental waste offences arising from the operation of sites at Walsall and Wednesbury. The company repeatedly breached permit and exemption requirements, failed to comply with enforcement notices, and continued unlawful waste operations.

At Wolverhampton Crown Court, the appellant received a community order with 200 hours’ unpaid work, five years’ director disqualification, and a prosecution costs order of £36,577.08. He appealed against sentence. The challenge to unpaid work was abandoned after it had been completed. The remaining issues were whether the disqualification and costs orders were justified and proportionate.

1. Appeal dismissed. The court upheld the five-year director disqualification and the prosecution costs order. It allowed the appellant a further six months to pay the costs and awarded the respondent £2,000 costs of the appeal.

2. The appellant’s persistent and serious neglect justified disqualification under Company Directors Disqualification Act 1986, section 2. He knew, or came to know, that the company was not complying with its environmental obligations. His position as director was compromised, yet he did not resign and continued in office. That conduct demonstrated a sufficient failure to understand and discharge a director’s responsibilities.

3. The sentencing judge was entitled to regard the repeated failures, ignored advice and enforcement action, and the risks created by unlawful waste operations as serious. Although the challenge to the unpaid-work requirement was abandoned, the court observed that the completed 200 hours was a wholly appropriate punishment for the appellant’s part in conduct which created potentially disastrous environmental consequences.

4. The costs order was also justified. The appellant’s equitable interest in his property meant that he had the means to pay. It was immaterial that payment would require him to sell or re-mortgage the property; that circumstance instead supported allowing further time. His late decision to contest the charges had generated significant prosecution costs, which it was right that he should meet.

• Court of Appeal (Criminal Division): dismissed the appeal against sentence in [2019] EWCA Crim 231, while extending the period for payment of prosecution costs by six months.
• Wolverhampton Crown Court: on 4 May 2018 imposed a community order with 200 hours’ unpaid work, disqualified the appellant from acting as a company director for five years, and ordered prosecution costs of £36,577.08.