Utility Week

UTILITY WEEK | NOVEMBER 2022 | 17 Water ings should be brought. However, the level of fines proposed by Jayawardena implies greater severity than criminal proceedings. Barlow says serious offences that meet the threshold will still be subject to crimi- nal proceedings, which could lead to fines or imprisonment based on sentencing guidelines. These are used by courts to provide con- sistency in sentencing and to ensure the penalty is high enough to be a deterrent – because historically they had been lower and not considered a disincentive alone. The three main factors a court takes into account when deciding a fine are, first, the size of the company and its turnover in order to set an appropriate fine. Second, the culpa- bility of the offender – was it deliberate, reck- less, negligent, or no fault but still a breach? Third, what level of environmental harm was caused according to four categories. Barlow professes scepticism about whether the move could actually meet the government's objectives. He says: "The reasoning given is to speed up the process, but that seems unlikely because companies would end up appealing." Barlow explains that it effectively hands the EA the power to slap a penalty notice of £250 million on an organisation. These could – and certainly would – be appealed, but it reverses the verdict, which then requires the culprit to appeal it, rather than requiring the prosecutor to prove beyond reasonable doubt that the offence took place. Barlow describes appeals as "complicated exercises" requiring detailed evidence and probably a number of stages. He warns that tribunals are probably not set up to deal with such a volume of work. He says: "My view is this is unlikely to sur- vive any scrutiny. Neither side will be happy: the companies are exposed to the risk of £250 million without the checks and balances of the criminal process, which was always intended to be for the more serious offences." Getting a bigger stick Unsurprisingly, the EA welcomed Jayawarde- na's intervention, with its new chair urging the government to introduce the new levels quickly. Alan Lovell, who joined the agency in September, appeared with chief execu- tive James Bevan before the House of Lords Industry and Regulators Committee a week a•er the secretary of state's announcement. He told the committee: "We are quite delighted that one of the earliest announce- ments by the new secretary of state was to raise it to £250 million – a 1,000 times increase, which gives us a much bigger stick to go a•er bad behaviour." He added that it would still require crimi- nal standard of evidence, so would not be a simple process, but he felt it would "tip the balance in the discussions with water com- panies" around pollution incidents. "We are hoping he will quickly be able to deliver on that promise," Lovell said. Chief executive James Bevan added that, under current enforcement procedures, the EA "normally always prosecutes where there is evidence of serious harm or culpability" and believed penalties were a deterrent. "We normally always win, but it takes time," he said, adding that for criminal cases the courts have imposed tougher environ- mental penalties in recent years including imprisonment. Although that option has not been used for water pollution, Bevan said the EA would seek custodial sentences for water company employees if appropriate. "We see no reason for white collar crimi- nals to be treated differently," he remarked. Lovell's predecessor, Emma Howard Boyd, had been especially vocal towards the end of her term as chair that water compa- nies' boards and executive teams should face tough penalties for polluting and causing harm to the environment. Giving its official response, trade body Water UK said: "Water and sewerage compa- nies agree there is an urgent need for action to tackle the harm caused to the environment by spills from storm overflows and wastewa- ter treatment works. They are investing over £3 billion to improve overflows as part of a wider national programme to improve the environment between 2020 and 2025. "All water companies have written to the secretary of state to outline their plans to enhance the environment, tackle leakage and protect customers. We look forward to seeing the detail of the government's plan and working with them to bring about the transformation we all want to see." Ruth Williams, water correspondent

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