Enforcement and Sanctions - Guidance 26
progressive assessment methodology that moves from qualitative to quantitative to
monetary assessment as necessary.
Where a particular type of impact may be significant enough to affect the level of the
penalty, it should first be described in quantitative terms and then, if possible, in
monetary terms. Government guidance on valuation will be used for the quantification.
Example: A long-running chronic oil pollution affecting several kilometres of a local
stream is finally traced to a company where an unbunded industrial oil storage facility is
found to be the cause. The financial benefit is estimated to be the cost of building a
bund around and is a few hundred pounds, but in preparing the service of a restoration
notice we estimate the restoration costs to be £75,000. This case is therefore clearly
characterised by the cost of restoration rather than the financial benefit. The maximum
criminal fine assessed is less than the assessed restoration costs and so we do not
use it in this case. Hence we use the restoration costs as the starting point for
calculating the deterrent. We then apply aggravating and mitigating factors and deduct
the offender’s relevant assessed costs.
2.5 Cases where the maximum criminal fine a magistrates court could impose
for the specific offence is used
This will be the starting point for calculating the deterrent component where the
financial benefit and/or restoration costs are either not present, cannot be ascertained
with any certainty or are not a significant feature of the case (i.e. where they are less
than the statutory maximum available).
This will be the maximum penalty that can be applied in a magistrates’ court for the
offence committed. We must be satisfied that we have the evidence to prove each
individual offence beyond reasonable doubt, and care will be taken to distinguish
between a single continuing offence (such as failure to have a permit) and periodic
repeated failures (such as failure to provide annual returns).
Example: Due to a failure to register, a series of summary offences (penalty £5,000
each) are committed over six years. The offences, however, have very little financial
benefit to the offender and no direct environmental impact, hence no restoration costs.
The offending behaviour is best characterised by the length and number of offences,
therefore the starting point for the deterrent component of each VMP (as each offence
would have an individual VMP, should more than one be applied) will be the maximum
criminal fine. We will then apply aggravating and mitigating factors and deduct the
offender’s relevant assessed costs.
3. Aggravating and mitigating factors
After the starting point is chosen, it will then be adjusted to reflect the individual
circumstances of the case as broken down into aggravating and mitigating features.
Aggravating features will be assessed and scored, and their scores added to make a
multiplying factor. This will be multiplied by the starting point to make the aggravated
penalty. This multiplier cannot exceed a maximum of four times the starting point.
Similarly, mitigating features will reduce the deterrent component. Mitigating features
will be assessed and scored as percentages, which will then be added to give a total
percentage reduction in the aggravated penalty. Application of mitigating features will
normally allow up to an 80% reduction of the deterrent element, but the regime can
allow for 100% reduction in exceptional circumstances.
The aggravating and mitigating factors are calculated as follows:
This document is out of date and was withdrawn on 11/04/2018