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Although some breaches of environmental law amount to criminal offences, not all do.

There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.

It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.

Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.

Criminal and offence specific responses to breaches of environmental law

A Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.

A Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.

Prosecution fixed penalty –  can be imposed for certain offences.  If it is not paid a prosecution can follow.

Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.

Civil sanctions

When the Agency decides to impose a civil sanction (except a stop notice) they will:

• serve a notice of intent
• provide an opportunity to make written representations within 28 days
• consider any representations
• make a final decision and notify you with concise reasons for the decision.

 A Compliance notice – this requires the offender to come back into compliance and can also apply where advice has been given but not followed.

A Restoration notice –  a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.

A Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.

Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.

Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.

Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.

How we can help with breaches of environmental law

Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations.

Please contact crime and regulatory solicitor Martin Hadley on 0115 9599550  at our Nottingham officer or use the contact form below.

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The Disclosure and Barring Service (‘the DBS’) is a government organisation responsible for the reporting of convictions and other information to employers and other relevant organisations.

What data is held by the disclosure and barring service?

The Disclosure and Barring service holds three classes of information:

Class 1

Spent and unspent convictions, cautions, reprimands and final warnings.

Class 2

The class 1 information plus police intelligence information.  For example, this might include where a person has been arrested for a crime.

Class 3

A list of people on ‘barred lists’ who are prevented from working with children or vulnerable adults

What can an employer require?

This will depend on the type of the organisation.  As a result, if a person applied for a job at a local supermarket, only the class 1 information would be available.  This is because the job is not sensitive in any way. In such a situation the certificate available would merely show whether there were any unspent convictions that ought to be disclosed. It would be the prospective employee who would request the certificate from the Disclosure and Barring service.  This is called a ‘basic check’.

For many occupations an enhanced certificate can be required.  This could lead to the disclosure of information held that fall into classes 2 and 3.

There are obvious examples of such employers.  These will include the police service or professions such as solicitors. But there is also a very wide range of organisations who employ people who may come into contact with children or adults, such as nursing or childcare.

What is on an enhanced certificate?

Unspent convictions will appear on the enhanced certificate.

However, whether spent convictions and police intelligence appear depends on the application of filtering guidelines and individual decision making within the Disclosure and Barring service.  As a result, the outcome may well differ depending on the relevancy of the information to the role.

A recent Supreme Court decision in R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and
another (Respondents)  means that police forces can reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks.  The case establishes new guidelines in balancing an individual’s right to privacy when applying for employment against the need to protect public safety.

The full judgement in the case can be found here.

An enhanced criminal records certificate will include information on the basis simply of the chief constable’s opinion as to whether it “ought to be included in the certificate”.

Part of the reasoning given was that “In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Is it fair that a spent conviction, an allegation or an arrest not resulting in prosecution will be disclosed?

This is one of the most frequent questions that we receive.  It is not always easy to answer.  This is in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of the Disclosure and Barring service.

The starting point is that it is likely that DBS will continue to retain all conviction and intelligence information. This follows a key recommendation following the Soham murders.

The issue for most people is not so much the storing of the information, but the disclosure of irrelevant information.

There is a complex filtering process which will lead to the inclusion or removal of information.  The rules as to when a conviction or caution will be filtered are set out in legislation. This states that a certificate must include the following:

• cautions relating to an offence from a list agreed by Parliament
• cautions given less than 6 years ago (where individual 18 or over at the time of caution)
• cautions given less than 2 years ago (where individual under 18 at the time of caution)
• convictions relating to an offence from a prescribed list
• where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
• convictions that resulted in a custodial sentence (regardless of whether served)
• convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
• convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)
• A list of offences which will never be filtered from a criminal record check has been taken from legislation.

The list includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. It would never be appropriate to filter offences on this list. Also, the legislation covers equivalent offences committed overseas.

In relation to the latest decision at the Supreme Court, the following concerns were expressed as to how employers would treat the information:

“Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”

Positions where filtering does not apply

There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Some examples are police vetting and firearms licence applications.

If the position or occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the Disclosure and Barring service then the employer is entitled to ask about, and receive information about, all spent convictions and cautions.

The employer should, however, follow existing guidance and conduct a case-by-case analysis of any spent convictions and cautions and consider how, if at all, they are relevant to the position sought.

It would be advisable for the employer to keep records of the reasons for any employment decision and in particular rejections.  These reasons should include whether any spent convictions or cautions were taken into account and, if so, why.

If the employee fails to disclose any spent convictions or cautions when required by law to do so, he or she will not be protected from the consequences of this.  The Rehabilitation of Offenders Act will not apply.

Is there anything I can do?

You need to understand before an application is made what is likely to be disclosed. That will enable you to act quickly if notified that disclosure is to be made.  Please note, however, that the police are not obliged to notify you in advance.

It is also important to note that the filtering process does not deal effectively with police intelligence information, for example, arrest not resulting in prosecution. The police will apply ‘statutory disclosure guidance’ alongside a ‘Quality Assurance Framework’ when making a disclosure decision.

You will be able to make representations to the ‘Independent Monitor’, and in some instances, it may be possible to take court action to prevent future disclosure.

We have seen a large number of court challenges to the Disclosure and Barring service processes.  The High Court ordered another significant change as recently as October 2017 (R (R) v The National Police Chief’s Council & Anor [2017] EWHC 2586 (Admin)).

How we can assist you

There is no instant answer that can be given to the often-complex scenarios that we are presented with.

The disclosure of irrelevant information can be extremely harmful, and therefore each case must be analysed with the utmost care to ensure against wrongful disclosure.

We are happy to advise, guide and make representations on your behalf, and if appropriate, advise on legal remedies in relation to the Disclosure and Barring service.

To discuss any aspect of your case please contact one of our solicitors at your nearest office.  Details can be found here.  Alternatively you can use the contact form below.

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Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence.  In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.

While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.

What do business people need to consider?

The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.

There are a wide number of scenarios catered for under the Act.  As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.

What conduct is relevant?

Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17).  A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).

The court has extensive discretion in relation to most offences:

‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).

What is a ‘disqualification order’?

The effect of the order is to prevent a person being involved in the future affairs of [any] company:

• he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
• he shall not act as an insolvency practitioner.

How long does the order last?

An order made by a Magistrates’ Court can be for no longer than five years.  An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.

The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.

Will a guilty plea make any difference as to the length of the order?

A guilty plea will not act to reduce the disqualification period.  This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).

It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).

It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).

What happens if I breach the order?

Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.

How we can assist in a directors disqualification case

We are experts in all aspects of criminal law.  As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.

Alternatively you can use the contact form below.

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It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such a person involved in drug importation is a ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.

On occasion large quantities of drugs are found.  Sometimes it is merely the leftovers from a holiday or business trip abroad.  This may have occurred at a location where drug use is more widely tolerated by law enforcement than it is in the United Kingdom.

Committing the offence of drug importation can however result in severe consequences.

The crime of drug importation

Drugs are brought into the jurisdiction in a number of supposedly ingenious ways.  For example, cocaine may be moved in its liquid form while disguised as something else.  Drug ‘mules’ may swallow a number of pellets containing drugs of different kinds.

Naturally, the police and associated organisations are frequently uncovering these methods as they arise.  This results in those who take the risk and are caught being charged and sent to prison for a significant term.  This will be despite initial thoughts that the police or customs officers have been outwitted.

Which laws would I break?

The underlying offence is the breaching of the prohibition on the importation and exportation of controlled drugs.  This is created by Section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence.  This is contained in Section 170 of the Customs and Excise Management Act 1979.

The maximum penalties

The maximum penalties for the offence of drug importation will vary depending on the type of drugs in question:

• Class A, life imprisonment;
• Class B and C, 14 years’ imprisonment;

Sentencing for drug importation

Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include:

• the role played by the individual in the activity
• the amount and character of the substance in question
• their level of co-operation with the police.

The sentences here are generally heavy.  Prison almost always follows for even the smallest quantity of drug.  Sentences of between ten and twenty years, or even more, are common where the quantity is large.

There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation.  It is essential that you choose a solicitor who will properly explore these on your behalf to ensure a proper reduction in sentence.

Case studies

In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years.  This was because the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.

Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General.  In this case the sentence increased from 8 years to 14 years’ imprisonment.  This was said to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.

There is a comprehensive sentencing guideline that judges will use in order to decide sentence.

How we can help in drug importation cases

Such offences are always serious.  Expert representation at the earliest stage is highly desirable, particularly if you may have acted under duress and have the basis of a defence in law. Sadly, many already very vulnerable people are caught up in drug importation.  It is essential that your story is told.

If you are to be spoken to about an allegation of drug importation then the first thing you must to is take advantage of our free and independent advice in any interview under caution.  We will be able to give you initial advice that might help with the direction of the case.

The benefits of such early legal advice can be found here.

If your case is to go to court then we will make sure that your best case is before a jury at trial.  Alternatively we will ensure that mitigation is obtained and properly presented on your behalf in order to make sure your sentence properly reflects your involvement.

A number of reasons why you might want to instruct VHS Fletchers over other firms can be found here.

You can find your nearest office by following this link and all of our phone numbers are answered 24 hours a day, every day of the year, to ensure that we provide you with emergency advice when you most need it.

Alternatively you can use the contact form below.

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In the crown court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large.  Before the Magistrates, any court fine imposed will still be a substantial share of weekly income.

Do I have to pay the court fine all at once?

Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.

You will not be given time to pay your court fine (and therefore may be sent to prison forthwith if a fine isn’t paid) if:

• in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay forthwith;
• it appears to the judge that you are unlikely to remain long enough at a place of abode in the UK to enable the payment of the fine to be enforced by other methods; or
• on the occasion when the fine is imposed, the judge sentences you to an immediate prison sentence, custody for life, or detention in a young offender institution for that or another offence, or so sentences you for an offence in addition to forfeiting his recognisance, or you are already serving a sentence of custody for life or a term of imprisonment or detention.

Setting a default period

Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court to fix a period of imprisonment in default.

Imprisonment in default is an extra term of imprisonment that you might receive if a fine is not paid:

“…the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount […] ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves.” (R v Smith [2009] EWCA Crim 344).

The maximum term is dependent on the size of the fine imposed:

Will a court always set the maximum term in default?

The period in default will depend on the amount of the court fine and where it falls within the banding. So, a fine of £55,000 would probably attract a default period nearer 18 months than two years. But this is not an arithmetical exercise.

What happens if I do not pay my court fine?

If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison.

It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.

I would sooner serve the time than pay the fine, is that possible?

Yes, and no!

If you do not pay, then you will go to prison. The court will, however, always try to secure enforcement first.  Imprisonment is not a free choice.  Note also that in relation to some financial penalties, such as confiscation, imprisonment in default does not extinguish the requirement to pay.

 How we can assist

The law concerning non-payment of fines and other financial penalties can be complicated so this article is intended to give only a very brief overview of the issues involved.

Legal aid can be available in certain cases of default where your liberty is at risk.

If you have any concerns about payment of your court fine or wish to discuss any other aspect of your case then please contact your nearest office.  Details can be found here.  Alternatively you can use the contact form below.