The Environment Agency, R (On the Application Of) v Lawrence

Under the Environmental Offences Guideline, a sentencing court must avoid double counting a feature used to determine the harm category. It may nevertheless take account of distinct features increasing seriousness at the adjustment stage and, where appropriate, move outside the category range.

Sentencing guidelines assist structured judgment; they are not a statutory straitjacket. The court must follow a relevant guideline under section 125(1) of the Coroners and Justice Act 2009, unless that would be contrary to the interests of justice. An environmental incident-classification scheme does not constrain the criminal court's sentencing assessment.

The applicant, the operations director and technically competent person of a waste-management company, pleaded guilty at Worcester Crown Court to four environmental offences arising from two major waste fires in December 2012 and June 2013.

After the first fire, the applicant received further warnings but allowed waste to accumulate. The second fire caused extensive pollution of a canal, fish deaths, contaminated smoke and substantial public expense. The sentencing judge imposed a fine for the first incident and, for the later incident, concurrent nine-month suspended sentences with unpaid work.

The applicant appealed on the sole ground that the judge had wrongly aggregated Category 2 harm features under the Environmental Offences Guideline to sentence outside that category's range.

1. Permission to appeal was granted, but the appeal was dismissed. The sentence was neither manifestly excessive nor wrong in principle.

2. The sentencing judge had found high recklessness and all five Category 2 harm criteria in relation to the second fire. The Court held that a feature used to determine, or raise offending within, a harm category cannot be used again as an aggravating feature to elevate the offending into a higher category. On the findings, however, ample separate features remained to aggravate the offending beyond the top of Category 2 harm.

3. Step 4 of the Environmental Offences Guideline expressly permitted the judge, after considering factors increasing seriousness, to move outside the category range. The judge was therefore entitled to impose a sentence derived from a higher range. The Court also held that, even without those express words, the Guideline could not sensibly require grave aspects of wrongdoing to go unpunished merely because they fell within one harm category.

4. The Environment Agency’s Common Incident Classification Scheme was not a sentencing instrument and did not limit the Guideline's operation. Section 125(1) of the Coroners and Justice Act 2009 requires a court to follow a relevant guideline unless that would be contrary to the interests of justice. Following the approach described in R v Whirlpool UK Appliances Ltd [2018] 1 WLR 1811 and R v KC [2019] EWCA Crim 1632, guidelines assist structured judgment but are not a straitjacket.

5. The applicant's very high recklessness, extensive harm and aggravating features justified the suspended custodial sentence after mitigation and credit for late pleas. The applicant was ordered to pay the Environment Agency's costs of £1,500, by instalments after payment of the lower-court costs.

• Court of Appeal (Criminal Division): Leave to appeal was granted because the sentencing issue was of broader significance, but the appeal against sentence was dismissed: [2020] EWCA Crim 1465.
• Worcester Crown Court: On 4 July 2019, following guilty pleas to four environmental offences, the applicant received a fine for the first incident and concurrent nine-month suspended sentences with unpaid work for the later incident.