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HMA v SAICA Natur UK Limited

 

Nov 16, 2021

At Airdrie Sheriff Court today, Sheriff Thomson fined SAICA Natur UK Limited £20,000 after the company pled guilty to a breach of regulation 23 of the Transfrontier Shipment of Waste Regulations 2007

On sentencing Sheriff Thomson made the following statement in court:

"The offender in this case is SAICA Natur UK Limited (“SAICA”), a company involved in recycling and waste management services.
 
On 26 August 2021, the company tendered a plea of guilty to a breach of regulation 23 (“Regulation 23”) of the Transfrontier Shipment of Waste Regulations 2007 (the “2007 Regulations”).
 
The 2007 Regulations implement, in the United Kingdom, Regulation (EC) No 1013/2006 on shipments of waste.
 
Read short, Regulation 23 provides that it is an offence to transport certain forms of waste, including “waste collected from households”, where that waste is destined for recovery in certain countries, including China.
 
Between late 2016 and early 2017, various containers of paper waste prepared by SAICA and destined for recovery in China were examined by SEPA staff. Those examinations revealed that a number of the containers were contaminated with items of household waste, such as soiled nappies, food waste, electrical equipment, clothing or toys.
 
SAICA has since pled guilty a breach of Regulation 23 in connection with the transport, between 30 August 2016 and 15 September 2016, of 51 shipping containers which contained household waste and had an intended destination of China.
 
In considering sentence, I have had regard to guidelines issued by the Scottish Sentencing Council both on the sentencing process and the principles and purposes of sentencing.
 
Neither the Crown nor those acting for SAICA have been able to identify any reported Scottish decision on the application of Regulation 23. There is, however, a guideline issued by the Sentencing Council of England and Wales, effective from 1 July 2014, which applies cases such as the present (the “Sentencing Guideline”). In reaching my decision, I have had particular regard to the Sentencing Guideline, albeit remaining mindful that it is not to be applied in an unduly rigid or mechanistic manner.
 
Considering, first, the nature and seriousness of the offence, I must look at the culpability and the harm caused, or which might have been caused, by the offending.
 
In terms of culpability, Senior Counsel for SAICA, Ms Mitchell, emphasised that the company had in place systems and training for avoiding the commission of the offence. Its failing was that, on this occasion, those systems had not been adequately enforced. While the company had fallen short of the appropriate standard, its position had to be contrasted with situations such as those where there had been an intentional breach or flagrant disregard for the law. At worst, in the case of SAICA, there had been a failure by the organisation as a whole to take reasonable care to enforce proper systems for avoiding commission of the offence.
 
In terms of harm, it was stressed that no actual harm had been caused here. SAICA was a company involved in waste disposal. Action had been taken to intercept the shipments. However, even if that had not happened, the material would not have gone on to cause actual harm. It was destined for a waste processing site and would have been dealt with there. In the circumstances, there was no more than a risk of harm here.
 
That leads me to the conclusion that SAICA’s culpability and harm both lie towards the lower end of the possible ranges. I am confirmed in that view when I cross-check this assessment with the Sentencing Guideline.
 
In all the circumstances, I consider that a sentencing range in line with what the Sentencing Guideline describes as a ”negligent” level of culpability and harm in “category 4” is fair and proportionate.
 
I have been provided with most recent three years’ audited accounts for SAICA. These disclose an average turnover of c. £54m. per annum and, in the most recent year, c.50m. As such, by reference to the Sentencing Guideline, I consider this to be a “large company”.
 
For such a company, the Sentencing Guideline would suggest a possible sentencing range of between £22,000 and £100,000, with a starting point of £35,000.
 
For SAICA, it was submitted that there were no aggravating factors here. The company was a first offender. The offence was now of some age and there had been no further offending of that type. There were no outstanding cases against SAICA, which had been in operation for nearly 10 years. It had no history of non-compliance with warnings, the offence was not in a location of significance and these were not repeated instances of offending over an extended period of time. There had been no deliberate concealment of the illegal nature of activity, a breach of any order, or any obstruction of justice. The offence had not been committed for financial gain.
 
In addition, it was argued that there were several mitigating factors to be considered.
 
First, SAICA had taken the steps taken to remedy the problem. All material had been returned to Scotland at its cost. The materials had been re-processed to reduce contaminants. SAICA had suspended the exporting of waste-paper from its Croy site since 2016.
 
Secondly, SAICA had shown remorse. I was provided with a letter from the company stating its position in that regard.
 
Thirdly, SAICA had expended significant monies in remedying the situation. The company expecting the consignment had been compensated and SAICA had borne the cost of disposing of the waste. The costs borne by SAICA exceeded, by several times, any profit it might have made, had the materials reached their destination. In addition, SAICA had, since 2016, invested significant monies in improving quality at the site.
 
Fourthly, SAICA now had in place effective processes to ensure that a proper system of compliance was adhered to. It had an established Code of Ethics and Legal Compliance programme, together with an online tool, supported by a specialist external company, to assist employees in adhering to these. At least annually, it undertook an evaluation of each site to review compliance of all obligations associated with quality, food safety, the environment, risk prevention and industrial security. It also had in place appropriate Environmental and Transboundary Waste Shipment policies.
 
Finally, SAICA had acted swiftly in remedying the situation and co-operated fully in investigations. It was otherwise of good character.
 
These matters, taken with a regard to the principles and purposes of sentencing, allow me to select a headline sentence. Any such sentence has to be fair and proportionate and no more severe than is necessary to achieve the purposes of sentencing.
 
Nonetheless, I am of the view, for all of the reasons set out and to bring home the need to comply with important legislation of this nature, that I must impose a substantial financial penalty in this case.
 
In all the circumstances, I consider a headline sentence of £30,000 to be appropriate.
 
In light of the timing of the plea, I will modify that fine to £20,000.
 
As requested, I will allow SAICA to pay that fine in equal monthly instalments over a period of 12 months."