Excessive confiscation fines levelled against company directors convicted of an environmental breach could become a thing of the past thanks to a landmark Welsh ruling, says expert solicitor advocate, Emma Harris, of Blackfords LLP.
Miss Harris, solicitor-advocate at specialist fraud serious fraud, crime and regulatory law firm Blackfords LLP, said the fines, which can stray into hundreds of thousands if not millions of pounds, could now be successfully challenged thanks to the ruling in Wormtech Ltd vs National Resources Wales (NRW).
Miss Harris successfully represented defendant and former company director Jacqueline Powell when the prosecution appealed to have her confiscation fine increased significantly after conviction.
She said: “We represented Ms Powell, from the Caerwent recycling company, at Cardiff Crown Court, in what proved to be a landmark case for confiscation proceedings.”
The company was prosecuted after it was accused of abandoning hundreds of tons of rotting food on land in Monmouthshire following the company’s liquidation.
Ms Powell and fellow director Jonathan Westwood were prosecuted and both were handed suspended prison sentences and ordered to carry out unpaid work and banned from acting as directors for five years.
Subsequently Powell received a £60,000 confiscation order and Westwood was ordered to pay £30,000. Prosecutors then appealed to have the confiscation amounts increased further to cover the significant clean-up costs incurred at the site.
After a hearing, the Court of Appeal ruled that Jacqueline Powell cannot be pursued personally.
Following this Miss Harris said: “This case has a profound impact on the way that company directors can be held responsible when a company is alleged to have committed a criminal offence.
“The prosecution’s approach would risk making every company director liable to the confiscation regime whenever a company broke the criminal law.
“Our client is pleased that the Court has reached a sensible decision in respect of the financial responsibility which any director can hold in the event that a company finds itself in criminal or regulatory proceedings.”
With the conclusion of this case, what does Miss Harris believe the longer-term implications for company directors are?
She added: “This judgement can only be encouraging for company directors who have been left open to hefty confiscation orders previously.
“I believe we are likely to see fewer appeals for an increase to confiscation order amounts or possibly more realistic appeals for a smaller increase if at all.
“Confiscation orders, combined with legal fees and fines can reach into the hundreds of thousands and potentially devastate a company.
“We hope that this appeal will spell the end of excessive confiscation orders.”
Miss Harris said that if company directors believe they have fallen foul of environmental legislation it is vital they consult a legal expert at the earliest opportunity.
Earlier intervention could help to minimise the damage and limit the possibility of prosecution and potential confiscation proceedings.
Miss Harris said: “If proceedings have been instigated then ensure you are represented in interview. This is something many people believe they do not need to do, but we can advise clients of all the things they could have raised in interview which might have stopped the prosecution from moving forward.”
Emma Harris is a qualified barrister who cross-qualified as a solicitor in 2011. She specialises in regulatory law, representing environmental clients in appeals before Natural Resources Wales and other professional bodies.