Understanding civil sanctions
An alternative to court proceedings, civil sanctions were introduced in 2008 and have been used since 2010 to help manage minor breaches in environmental law. The aim is to bring about compliance without the stigma of criminality for businesses that are not habitual offenders or have committed an ‘accidental’ breach of regulations. Although only available for a small range of offences, since April 2015, some environmental permit breaches are also able to be dealt with via the civil system.
Six civil sanction options are available:
1. Fixed Monetary Penalties.
This civil sanction, imposed by the regulator, is a £300 charge on businesses who have committed minor offences, often paperwork or administration offences, AND have not followed suggestions for improvement or compliance.
2. Variable Monetary Penalties.
This civil sanction is also imposed by the regulator, although the amount is dependent on a number of factors. The sanction is meant to change behaviour and thus contains a ‘deterrent’ element as well as an element intended to ensure that non-compliant companies do not have a financial advantage over compliant competitors.
3. Compliance Notices.
This civil sanction is intended for use when a formerly compliant company becomes non-compliant for some reason. Intended to be used only after less formal intervention has failed, they can be combined with variable monetary penalties and/or restoration notices.
4. Restoration Notices.
Used where actual environmental damage has occurred that is not covered under other legislation, such as the Environmental Damage (Prevention and Remediation) regulations, this civil sanction requires the offending company to make good the damage caused. Both Compliance Notices and Variable Monetary Penalties can also be used with this sanction.
5. Stop Notices.
This civil sanction, as the name suggests, brings an immediate stop to an activity that is causing, or is likely to cause, actual damage to the environment or human health, or is a breach of environmental laws. Once the stop notice is complied with, other sanctions may follow.
6. Enforcement Undertakings.
Unlike the other civil sanctions, enforcement undertakings are offered by the company in breach of regulations. They are an opportunity for the offender to ‘hold their hands up’ and make reparation for any offences they have committed. Often, although not exclusively, made in respect of ‘administrative’ offences such as those under the Packaging Waste regime, they are considered by the agency and, once accepted and completed, enable the company to move forward in compliance. It is important that good advice is obtained before submitting an enforcement undertaking as the enforcement agencies are not obliged to accept them. Neither should they be seen as a ‘get out of jail free’ card. Although less stigmatic than a prosecution, they still require an acknowledgement of wrongdoing, remediation of any environmental damage and a compensatory element. The consideration process will include a full review of the offence committed and an examination of the intent to ensure compliance after the event.