We review a judgment which serves as a reminder of the significant fines that intentional breaches of environmental regulations can bring, particularly for wealthy individuals who may increasingly see penalties imposed which are proportionate with their wealth and ability to pay.
The recent case of Natural England v Philip Edward Day was dealt with in the Court of Appeal Criminal Division. A fine of £450,000 and costs of £457,317.74 were upheld against Mr Day. This result should serve as a salutary reminder, particularly to wealthy individuals and company directors, that environmental regulations cannot be intentionally breached without potentially significant fines being imposed.
The Court of Appeal decided that a fine of £450,000 imposed on Mr Philip Day was justified. Mr Day is a wealthy business man with a fortune in the region of £300 million. He had arranged the felling of several trees in woodland located in a Site of Special Scientific Interest (SSSI) without prior authorisation from National England. The Court of Appeal reaffirmed that Mr Day’s actions were grossly negligent and had been carried out for commercial gain.
Mr Day had appealed against his conviction under the Wildlife and Countryside Act 1981 and against the imposition of the £450,000 fine.
The Judge who had passed sentence had correctly identified the harm caused, and Mr Day’s culpability. A fine significantly greater than that imposed would have been amply justified to reflect Mr Day’s grossly negligent conduct in pursuit of commercial gain. A seven figure fine should not therefore be regarded as inappropriate where it was necessary to (a) bring home to a man of enormous wealth, the seriousness of the matter where there was gross negligence in pursuit of commercial gain; (b) to protect the public interest in Sites of Special Scientific Interest and (c) deter others. The £450,000 fine imposed could not therefore be viewed as disproportionate.
Once Mr Day had elected to take proceedings to the Crown Court, the Judge was bound to approach the case on the evidence as it appeared before him, and could not be influenced by an earlier decision of Natural England that the matter could be dealt with by a Magistrates Court.
The Judge was entitled to take into account Mr Day’s means. Mr Day was worth an estimated £300 million. It was the Judge’s duty to impose a fine that would not only punish him for what he had done for commercial gain, but which would also deter others and protect the public. The protection of the environment and particularly Sites of Special Scientific Interest was of great importance.
On the Judge’s findings, Mr Day should have suffered a considerable loss of reputation and faced harsh public criticism. Apart from evidence of his family having to move, no material had been brought to the Court as to the actual effect on his business, livelihood or reputation. The Courts should consider making an order requiring a detailed statement of the assets and income of wealthy individuals, covering a 5 year period. The fact that an appeal was pending did not suspend the operation of any sentence or order of the Crown Court.
Courts have always had the power to consider financial means and resources when passing sentence on an individual or corporate defendant convicted of regulatory and criminal offences.
The judgement in this case illustrates a step change in the willingness of Courts to go that extra mile and impose financial penalties on wealthy defendants which are commensurate with their wealth and ability to pay.
The existing Environmental Sentencing Guidelines published by the Sentencing Council, and the draft Health and Safety and Food Safety Guidelines which are currently going through a consultation stage will also be relevant to future sentencing exercises.
Courts will now no doubt be encouraged to require wealthy individual defendants and corporates to produce their business accounts for the five year period immediately preceding passing of sentence. This will enable Courts to obtain full information about the full financial circumstances of wealthy individuals and to impose financial penalties which will serve as a punishment to offenders and a real deterrent to others who may be considering committing offences.
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