Tuesday, 23 February 2010


I am a bit disturbed by this decision (19/2/10) from the Criminal Division of the C of A:

Thames Water has a sewerage works in South Croydon.  It wanted to clean them out using highly toxic chemicals (essentially bleach) and then this happened:

  1. The sodium hypochlorite cleaning process was begun at about 10 a.m. on 17 September 2007. It was carried out by two of the Appellant's employees. They had not been given any training in the risks involved, nor were they supervised. The first three tanks were, however, cleaned without incident. When the penstock valve to the fourth tank was closed it registered as being fully shut. However it was not, and effluent continued to flow into the tank. No dipstick test was carried out as to the level inside the tank, nor was a lookout posted on the weir, and therefore the two employees failed to notice the continuing ingress of effluent. Mr Barnard for the Appellant conceded that a moment's reflection would have revealed the need for safeguards, and that the mistake in failing to post a lookout on the weir was a 'juvenile' one. Thus when the 1,600 litres of sodium hypochlorite was poured into the tank, the great majority of it was flushed out over the weir and into the main effluent carrier. Although the employees realised that some of the chemical had been flushed out, it appears that they thought that it was only a small proportion, and thus the matter was not reported.
  2. Downstream however, the catastrophic consequences soon became obvious. Within half an hour, local residents noticed a very strong and nauseating smell of bleach coming from the main effluent carrier, that the  water  in it had turned cloudy and was bubbling, and that fish were dying in numbers. Police officers were called to the scene and, as one of the officers put it, saw that the chemical was killing the fish and stripping the river of life. The public had to be kept back from the river bank for their own protection from the effects of the bleach. Suspecting that the problem had come from the Works, an officer went there and was informed about the cleaning process. The officer contacted the Environment Agency and they attended the affected area (which, by then, extended along the whole of the main effluent carrier, and also about 2.7 kilometres downstream from its confluence with the river). The officials from the Environment Agency were eventually joined by a senior employee of the Appellant company.
  3. A sample of the polluted  water  was taken by a member of the public. Analysis of the sample showed that it contained 150 milligrams of bleach per litre. The Environment Agency's recommended limit for discharge from the Works was .005 milligrams per litre.

The River Wandle is one of those suburban London Rivers which the Enviornment Agency has managed to salvage from its post industrial state to water which fish actaully live in:

  1. There then followed a significant operation to clean up the damage to the main effluent carrier and the river. It involved the Environment Agency, the Appellant's contractors, members of angling clubs and members of the public. The clean up operation lasted several days.
  2. A report prepared by a Fisheries officer indicated that, on a conservative estimate, over 2 tonnes of fish had been killed by what was, in environmental terms, a short sharp shock to the controlled  waters . Substantial quantities of the fish were of very high quality, with many of the larger specimens likely to be over 10 years old, and thus effectively irreplaceable. Also killed were the vast majority of the  water  hog lice, fresh  water  shrimp and other invertebrates in the affected area, along with all the flora touched by the pollution. Further destruction at Morden Hall Park had been averted by closing sluice gates after information from an alert member of the public about events upstream.
  3. The Chairman of the Trustees of the Wandle Trust (otherwise relied upon by the Appellant – see paragraph 24 below) described the offence as follows:-
  4. "The pollution event from [the Works] was completely inexcusable; a tragedy for the Wandle that with one wrong turn of a stopcock destroyed many years of hard work by local people to restore the river".
  5. In terms of the 5 kilometre area affected this was plainly therefore a catastrophic event. It is clear that it will take many years to restore the fishery of the river to its pre-pollution condition. Nevertheless, happily, re stocking of the river was able to begin some three months after the offence.
So Thames Water could see a public relations nightmare on the build and no doubt also a prosecution in the offing. So what did they do?

  1. In the aftermath of the incident, the Appellant opened the Works to the Environment Agency, and co-operated fully with the Agency's investigation. At a public meeting on 3 October 2007 the Appellant's Chief Executive Officer accepted responsibility, and pledged £500,000 in compensation to restore the river.
  2. In the result, the following sums have been paid or pledged:-
    • £7,000 project funding for a local education project;
    • £10,000 in compensation for the two local angling clubs;
    • £30,000 to meet the costs of restocking and an ongoing survey to assess damage to the river's ecology;
    • £200,000 core funding for the Wandle Trust to include support for the cost of an employee who will raise additional project funding to deliver access and habitat improvements along the length of the river;
    • £250,000 to be paid over 5 years for a restoration fund to support local projects to improve the river environment
The inevitable prosecution came before Daphne Wickham (sitting as a Recorder rather than in her usual place as extradition and terrorism specialist and national Deputy Chief Magistrate at Westminster Mags Court).  She took into account the £500k of reparations and other matters (e.g. a guilty plea) and reduced the fine from a starting point of £250k to £125k.  Thames Water appealed the sentence.  The Court of Appeal reduced the sentence to £50k:

i) As we have already indicated, it seems to us that on its facts, including consideration of the aggravating and mitigating features of the offence itself, this was an extremely serious offence of its type. Thus the learned Recorder was plainly entitled to regard it as such.
ii) Given that assessment, and after consideration of the Appellant's very considerable means, it seems to us that on the facts of this case the appropriate notional fine after a trial, combining both the punishment and deterrent elements of sentence, was a notional fine in the order of £250,000 to £300,000 (with the punishment element of that sum being in the order of £75,000 to £80,000). Thus the learned Recorder's starting point of £250,000 was within the appropriate bracket.
iii) It was not possible to make a compensation order, as the total sum of £30,000 to £40,000 in compensation that might have been the subject of such an order, or orders, had already been paid as part of the voluntary reparation, and thus fell to be considered as part of it.
iv) The nature and amount of the voluntary reparation made and pledged in this case was clearly exceptional. It was, in all, substantially more than the amount of the notional fine after a trial that we have identified above. Although there was an obvious element of public relations gain, and also payment (in substantial part) over a longer period than would have been the case under a court order, the Appellant had thereby clearly brought the necessary deterrent message home to its managers, to its shareholders, and (as a result of the attendant publicity) to others. In the result, the nature and amount of the reparation in this case was such, in our view, as to mean that the proper course should have been for the learned Recorder, in consequence, to have reduced the deterrent element of the notional fine to nil. She therefore fell into error by making a much smaller reduction. We have further considered, with particular care, whether this is one of those rare cases in which the learned Recorder should have gone even further and reduced the punishment element of the notional fine at this stage of the process too. Given, in particular, the extreme seriousness of the offence, it would not have been right for her to have done so, in our view, in this particular case.
iv) We have not identified any further mitigating feature which ought to have reduced the punishment element of the notional fine.
vi) Taking the figure at the bottom of the bracket that we have identified above for the punishment element, namely £75,000, and applying (as she otherwise rightly did) full discount for the early plea, the learned Recorder should thus have arrived at an actual fine of £50,000.

Just a minute - if a corporate defendant does something incredibly stupid which causes a lot of damage and which amounts to a serious criminal offence  - should the fine be reduced because it is has voluntarily put its hand in its pocket to put right the damage it has caused?  The answer is probably yes - it must be a material mitigating factor - but can it really always just be mathematically deducted from the deterrent element of the fine to reduce it to nil?  Can you essentially buy your way out of the deterrent element of the fine?  I'm not sure this sits easily with me?

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