Transport and logistics companies face vastly increased fines for breaching environmental law, warns Weightmans partner Simon Colvin.

In the space of less than 12 months we have seen the scale of fines for environmental offences jump dramatically. Fines of less than £100,000 were once common for serious environmental incidents involving multiple environmental offences but those days are now officially gone.

Following the introduction of the Sentencing Council Guideline for Environmental Offences in July 2014 and the very recent Court of Appeal judgement in the case of R v Thames Water Utilities Ltd EWCA Crim 960, the prospect of multi million pound fines for environmental offences is now a reality.

Transport and Logistic companies need to make the following key points from the judgment vital reading:

Warning Signs

Do not ignore warning signs in the form of ongoing mechanical failures, or concerns raised by employees. If you do, this could lead to significantly higher fines in the event of an incident.

Sensitive sites

The closeness of any sensitive sites to your operations will mean the courts expect more from you to prevent any environmental harm. You need to know whether your operations pose any threats to sensitive sites so that you can take additional steps to protect those sites.

Evidence is key

The case highlights the potential for disputes concerning the correct categorisation of ‘harm’. It also reinforces the importance of strong contemporaneous evidence to support any argument for a reduction in the categorisation level. The regulator will always seek to obtain the highest categorisation possible as this feeds through to a higher fine. The evidence gathering process to enable you to successfully dispute the regulator’s classification needs to start in the immediate post incident phase.

Board engagement

The judgment says that “clear and accepted evidence from the Chief Executive or Chairman of the main board that the main board was taking effective steps to secure substantial overall improvement in the company’s fulfilment of its environmental duties would be a significant mitigating factor”. 

Don’t make the same mistake twice

The judgment reinforces the importance of proper debriefs following an incident to prevent a recurrence. A failure to do so will leave a company exposed to criticism that it did not learn any lessons leaving it open to a much higher fine second time round.