Gordon Anderson v R

In sentencing environmental offences, the assessment of harm under the Environmental Offences Guideline is separate from compensation. Clean-up costs may be taken into account where there is a clear and sufficient nexus between the offender’s criminality and the need for remediation. The assessment is not confined by Environmental Protection Act 1990 section 33B.

A defendant who has invited the court to resolve sentencing facts from documents, rather than hold a Newton hearing, cannot later contend that disputed facts had to be accepted in his favour. In sentencing a company director for admitted offences, assessing the director’s culpability, motive and the harm caused does not pierce the corporate veil.

The appellant, the sole active director of Paperback Collection and Recycling Ltd, pleaded guilty to three environmental offences arising from the company’s waste operations at Deeside and Penrhos. The offending included breaches of permit conditions, excessive and unsafe waste storage, and the operation of an unpermitted waste facility.

At the Crown Court at Caernarfon, he received concurrent terms of 15 months’ imprisonment, suspended for 18 months, 250 hours’ unpaid work, and a 15-year director-disqualification order under the Company Directors Disqualification Act 1986.

He appealed against sentence. His grounds concerned the use of full clean-up costs under the Environmental Offences Guideline, the absence of a Newton hearing, the treatment of his expert evidence, alleged piercing of the corporate veil, and the length of disqualification.

1. The appeal was allowed only in respect of the director-disqualification period. The court quashed the 15-year order and substituted a disqualification period of six years. The remaining sentence was neither wrong in principle nor manifestly excessive.

2. The sentencing judge was entitled to take account of the whole clean-up cost when assessing harm at Stage 3 of the Environmental Offences Guideline. That exercise is distinct from compensation. Section 33B of the Environmental Protection Act 1990 therefore did not restrict the assessment to costs directly attributable to waste held above permitted limits. There was a clear and sufficient nexus between the appellant’s offending and the need to clear the whole Deeside site after the company’s demise. His actual foresight, experience and control of the company supported the finding that the offending was deliberate.

3. The appellant had urged the judge to resolve factual disputes from the documents rather than hold a Newton hearing. It was unsustainable for him then to complain that the judge should automatically have accepted his version of disputed facts. In any event, the court identified no material conflict which the sentencing judge had wrongly resolved against him. The judge’s findings did not materially contradict the defence expert report.

4. The corporate-veil doctrine was irrelevant. The judge was not imposing the company’s liabilities on the appellant. She was sentencing him for offences he admitted committing as a director, by reference to his culpability, commercial motive and the harm or risk of harm caused. Those matters properly informed sentence and did not involve disregarding the company’s separate personality.

5. The maximum 15-year disqualification was excessive for a person of previous good character who had pleaded guilty and had not previously been disqualified. Applying the established brackets, the case belonged in the middle bracket. A six-year period was substituted.

• Court of Appeal (Criminal Division) — in [2022] EWCA Crim 1465, allowed the appeal only as to the length of director disqualification and substituted six years.
• Crown Court at Caernarfon — on 18 August 2021, imposed concurrent 15-month suspended sentences, 250 hours’ unpaid work and a 15-year director-disqualification order.