Powerday pay hefty sum

On 11 April Powerday was fined £1m for certain waste related offences and was ordered to pay nearly £250,000 towards the Environment Agency’s costs.

On 11 April Powerday was fined £1m for certain waste related offences and was ordered to pay nearly £250,000 towards the Environment Agency’s (EA) costs.

There were three separate offences spanning the period from 2009-2012 at two separate sites, one pursuant to the Environmental Permitting Regulations 2007 (the regulations in force at the time of the offence) and two pursuant to s33 of the Environmental Protection Act 1990. A £700,000 fine was imposed for the breach of the 2007 Regulations and two separate fines of £200,000 and £100,000 were imposed for the breaches of the 1990 Act. The case highlights two interesting points.

The first is the retrospective application of the new Sentencing Council Guideline for Environmental Offences which was introduced in July 2014. It applies to offences committed before that date if the case comes before the courts after July 2014 which is what happened to Powerday.

In addition, the £700,000 fine for the breach of the 2007 Regulations was said to include an “agreed” amount to reflect the benefit derived by Powerday. The EA can use its powers pursuant to the Proceeds of Crime Act to recover financial benefit derived from an offence. Alternatively, the new Guideline allows a court to reflect any financial benefit in the level of the penalty imposed. In this instance it seems the EA invited the court to recover an amount as part of the penalty.

The different approaches present the EA with a dilemma. Use POCA, a more complicated process, but through which the EA retains a proportion of the amount recovered? Or ask the court to recover an amount, potentially simpler, but less certain as the court has a wide discretion when sentencing and the EA does not get to recover a proportion of the penalty?

We expect the EA will continue using POCA in more clear cut cases where recovery is certain and the Guideline when a POCA application is less likely to succeed.

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