Appellant:  Anderson;  Pinsent Masons, Edinburgh

Respondent:  Hughes, AD;  Crown Agent

27 May 2014

[1]        At an intermediate diet on 11 February 2014 at Stirling Sheriff Court the appellant pleaded guilty to two charges on summary complaint, the first being contravention of the Pollution Prevention and Control (Scotland) Regulations 2000, regulation 30(1)(b) as amended and the Pollution Prevention and Control Act 1999, section 2, and the second being a contravention of regulation 30(1)(d) as amended of the same regulations and the same provisions of the 1999 Act. 

[2]        These are serious offences.  Their seriousness is emphasised by the fact that in 2004 the Scottish Parliament raised the maximum fine for each of these charges on summary complaint from £20,000 to £40,000.  We bear in mind the observations of the court in HMA v Doonin Plant Ltd [2010] HCJAC 80 where the court observed:

 "There is a legitimate public concern about the impact of such offences on the environment.  In particular it is a matter of considerable public concern that companies may fail to comply with their environmental responsibilities if it costs them less to pay the penalty for breaking the law than it would to install proper safeguards, or to desist from the conduct in question. Conduct of the sort revealed in the circumstances of this case in our judgment has to be regarded as serious, having regard to the potential of serious harm that arises therefrom.  A fine in a case such as the present in our judgment requires to be large enough to bring the message home to those who manage and are shareholders in companies like the present that the statutory provisions designed to protect our environment must be taken seriously by them".

[3]        We take account of the fact that the offences in this case are different from the offences in the Doonin Plant case and that this case concerns a different statutory regime from the regime considered by the court in Doonin Plant.  That having been said, nothing we say today is intended to suggest that this court disagrees with those views or considers that these are less than serious charges. 

[4]        However, the duty of a sentencing judge is to pass sentence on the basis of the facts of the particular case which are properly before him and not to have regard to factors that are irrelevant in law to the charge or charges before him.  In this case charge 1 on this complaint included the libel that as a result of the appellant's breach of the regulations materials were discharged into an unnamed burn of the Allan Water.  However, charges 2 and 3 (to which the appellant tendered pleas of guilty) included no such libel.  The appellant's plea of not guilty to charge 1 was accepted by the Crown.  The fact of discharge of materials into the burn was included, for what reason we know not, in the agreed narrative of facts placed before the sheriff.  It is therefore perhaps understandable that he referred to it in his report to us, but it is not something to which he ought to have attached any weight when sentencing.  It appears from his report that he did indeed attach some weight to this discharge.  To that extent we consider that he erred in law and that the matter of sentence is for us to consider afresh. 

[5]        We bear in mind that the appellant is a company apparently of substantial means which ought to have little difficulty in paying the fines imposed.  However, we have reached the view that the starting point of £25,000 fine selected by the sheriff in relation to charge 2 was indeed excessive in all the circumstances of this case, and that the figure after discount of £18,750 was also excessive.  The level of discount was not put in issue on behalf of the appellant in this appeal.  We do not rehearse all of the factors relied on by Mr Anderson today in support of this appeal, but they included the fact that the maximum fine set by Parliament is now £40,000, that there was no evidence of environmental damage, that the sheriff attached insufficient weight to the post-incident measures undertaken by the appellant which cost it, we are told, about £66,000 and that the sheriff attached too much weight to previous convictions of the appellant which were not directly analogous and were in any event relatively minor.  Having regard to each and all of those factors, we have reached the view that the appropriate starting point in relation to charge 2 is £20,000 which, after discount, results in a fine of £15,000 in relation to charge 2.

[6]        In relation to charge 3 in addition to the factors referred to earlier, it was argued for the appellant that it was caught between a rock and a hard place.  The enforcement notice was served on 6 February 2013 and required to be fully complied with by the end of 11 February 2013.  The appellant took steps to instruct contractors to take the necessary measures to comply with the enforcement notice as soon as it received the notice, but bad weather intervened and rendered this impossible.  The appellant took the view that it could not properly appeal against the enforcement notice and SEPA had no power to modify or vary it to take account of the weather conditions, and the appellant's contractors did in fact comply fully with the enforcement notice as quickly as they could, this being four days later than the date specified in the notice.  In all these circumstances we are of the view that the starting point of £10,000 fine selected by the sheriff in relation to charge 3 was excessive.  We shall accordingly quash the discounted fine of £7,500 imposed by the sheriff in relation to this charge and substitute a fine of £1,500 which is discounted from a starting point of £2,000 to reflect the early plea of guilty.