202403476 A2 - [2025] EWCA Crim 1384

There is no Definitive Guideline for offences under s.210(1) of the 1990 Act. Both the appellant and the respondent suggested that the court should consider the Guideline for Environmental Offences, in particular the sentencing of individuals in respect of pollution offences to do with the deposit, treatment or disposal of waste or illegal discharges to air, land or water. Initially it was suggested that this could be used as a cross-check on the level of sentence, by analogy with R v Sandhu [2017] EWCA Crim 908; [2017] 4 WLR 160 at [22] and [30]. But both counsel accepted that the Guideline is dealing with offences of a different nature, where a key input to determining sentence, harm, is not comparable to breaches of a TPO. The levels of sentence for those environmental offences cannot be read across to offending under s.210(1) of the 1990 Act. The most that can be taken from the Guideline are the degrees of culpability set out at p.17 ranging from “low or no culpability”, through “negligent”, then “reckless”, to “deliberate” and the explanations given of those terms.

In these circumstances, it is necessary for a sentencing judge to consider the General Guideline: Overarching Principles and the Sentencing Act 2020. The Guideline gives similar guidance on culpability but also addresses harm, aggravating and mitigating factors.

Section 57(2) requires the court to have regard to the purposes of sentencing, which include not only the punishment of offenders but also the reduction of crime including its reduction by deterrence. Section 63 provides that when the court is considering the seriousness of an offence it must consider—

“(a)

The offender’s culpability in committing the offence, and

(b)

any harm which the offence—

(i)

caused,

(ii)

was intended to cause, or

(iii)

might foreseeably have caused.”

Sections 125 to 126 of the 2020 Act lay down principles for fixing the amount of any fine. A fine must reflect the seriousness of the offence (s.125(1)). The court must take into account the circumstances of the case including, in particular, the financial circumstances of the offender so far as they are known, or appear to the court (s.125(2)). That last principle applies whether those financial circumstances have the effect of increasing or reducing the amount of the fine (s.125(3)). Section 125(6) addresses the interrelationship between the imposition of a fine and the making of any confiscation order.

In our discussion of factors which may be relevant to culpability and harm we do not seek to be either prescriptive or comprehensive. Tree preservation orders are of different types. Some protect individual specimen trees, while others protect groups of trees or woodlands. Section 210 covers a potentially wide range of breaches from lopping a part of a tree, the significance of which may vary from case to case, to damaging a tree, or cutting down or destroying a tree. Sentencing, as ever, is fact sensitive. Not much help is likely to be gained by comparing the index offence with the circumstances and sentence in another. Usually, insufficient information is available to enable any proper comparison to be made. But even where more information is available, it is likely to reveal dissimilarities as well as similarities and make meaningful comparison difficult. Furthermore, in Sandhu this court said that the practice of providing a judge with newspaper and other reports of sentences in other cases said to be similar must stop [20]. They are not guideline cases and they are not full, authorised reports of a decision, or even a transcript. Rather, it seems to us that practitioners should focus on making sure that the court is provided with accurate, helpful and sufficient information on the circumstances of the case with which the judge has to deal.

However, there are some decisions which do assist in identifying factors which may be relevant, or an approach which may be taken, depending on the circumstances of the case.

In R v Palmer (1989) 11 Cr. App. R. (S) 407 this court considered the forerunner of s.210(3) of the 1990 Act, the requirement that the court should pay particular regard to any financial benefits which has accrued or appears likely to accrue to the defendant as a result of the commission of the offence. In Palmer the appellant had applied for consent to install a root barrier between a protected cedar tree and his home. However, before the application was determined he cut the tree down.

The court decided to take as a starting point for the fine the costs of the installation of the root barrier which the appellant had saved. That gave some indication of the financial implications of the unlawful act. The fine then had to reflect the appellant’s deliberate defiance of the TPO to serve his own personal advantage. The court gave the appellant credit for his excellent character and his co-operation with the local planning authority in relation to other trees. But a substantial fine was called for to mark the importance of the offence and to deter others from thinking that they could take similar action “without paying heavily for doing so”. The court judged that from a starting point of £1000, the appropriate fine should be £3000. It is also worth nothing that the court regarded a landowner’s statutory obligation to replace a tree which has been unlawfully removed or destroyed as a separate matter from any penalty imposed as a punishment (p.409). We agree.

By contrast, the decision in R v Razzell (1990) 12 Cr. App. R (S) 142 does not provide any assistance for deciding how to determine the appropriate level of a fine. The court simply refused a hopeless application for leave to appeal to this court. The decision was not worth citing.

In R v Davey [2013] EWCA Crim 1662; [2014] 1 Cr. App. R (S) 34 the appellant was convicted after trial of causing or permitting a protected maritime pine in his neighbour’s property to be cut down during the night, in order to improve the view from his property over Poole Harbour and the Purbeck Hills beyond [4]. The Crown Court imposed a confiscation order in the sum of £50,000 and a fine of £75,000.

The court in Davey proceeded on the basis that the confiscation order had removed the financial benefit to the appellant because it had been based on the increase in the value of his property consequent upon the removal of the tree [8] and [13]. The court rejected the submission that the fine had wrongly taken into account that financial benefit [17]. The confiscation order had not addressed the amenity benefit of the improved view which the appellant had gained. The fine properly reflected that additional factor as well as the seriously aggravating feature that the tree had belonged to the neighbour ([18-[19]). Once again, the court stated that fines for this type of offence had to include an element for deterrence [20]. The appeal against sentence was dismissed.

In R (Natural England) v Day [2014] EWCA Crim 2583; [2015] 1 Cr. App. R (S) 53 the appellant was a wealthy businessman who owned an estate of about 500 acres comprising mainly woodland. Part of the land was a site of special scientific interest (“SSSI”) designated under the Wildlife and Countryside Act 1981. In order to operate a commercial pheasant shoot 43 trees were felled and a vehicle track constructed on bunds or banks. The appellant pleaded guilty at a preliminary hearing to strict liability offences under the 1981 Act of causing or permitting the works to be carried out without the prior consent of Natural England. The area affected was “relatively small” [35] but it was located in a sensitive part of a river gorge. Vegetation would regenerate naturally but some topographical features had been permanently changed by the works. The appellant was fined £450,000 based on a sentence of £500,000 less a credit for plea of 10% following a Newton hearing in which the appellant had been unsuccessful. He was also ordered to pay prosecution costs of about £457,000.

The specific interests which a SSSI may serve to protect will vary from one designation to another, and are likely to be different from the objectives of a TPO. Accordingly, directcomparisons with the level of sentence imposed in Day would be inappropriate. Nevertheless, Day is helpful by indicating relevant considerations and overall approach.

The judge in the Crown Court found that the appellant knew about the SSSI and its significance. He did not deliberately set out to flout the terms of the SSSI designation but had been grossly negligent. The offence had been aggravated by the strategy he had deployed in an attempt to avoid prosecution, including tactics directed against members of the public collecting evidence.

Lord Thomas LCJ, delivering the judgment of this court, agreed with the judge’s assessment of culpability, harm and that last aggravating feature ([38]-[39]). The judge had also been entitled to take into account the appellant’s wealth ([41]-[42]. He said that it was the court’s duty to impose a fine that would not only punish the offender for what he had done (in that case for commercial gain), but which would also deter others and protect the public. The protection of the environment, particularly areas such as SSSIs, is of great importance. It is also important to take into account any difficulty a regulatory body has in monitoring such areas. Deterrence is of considerable importance. The fine in that case had to be of such a size as to achieve each of those objectives [43].

Applying the approach laid down in R v Sellafield Limited [2014] EWCA Crim 49; [2014] Env. L.R. 19 to fines imposed on companies of very significant size and on individuals possessing the appellant’s scale of wealth (£300m), a fine significantly greater than £450,000 would have been amply justified for grossly negligent conduct in pursuit of commercial gain, particularly when aggravated by attempts to avoid prosecution. A fine in seven figures might not be inappropriate [46]. Accordingly, the fine of £450,000 in Day’s case should not be seen as the benchmark against which to compare less serious cases. The court also referred to the potential need for a court to make a financial circumstances order under s.124 of the 2020 Act when dealing with wealthy individuals.

We consider that in the case of offences under s.210 of the 1990 Act, a number of factors may be relevant to the court’s assessment of harm, including the number of trees affected, the type of damage caused, and the size of the area where the works were carried out. It may also be helpful for the court to be told about the approximate age of the trees affected and their amenity and arboreal value, along with any landscape or other designations of significance to the harm which s.210 is intended to avoid. Sometimes the offender’s unlawful activities may have destroyed evidence which could have addressed some of those issues and the prosecution may have to rely upon such pre-existing material as is available. This guidance is not meant to be an exhaustive checklist for use in every case. Some prosecutions will relate to less extensive works or to a lesser degree of harm. The information provided to the court should be proportionate to the matter in hand.

As for culpability, we have already referred to guidance on the differing levels which may arise in strict liability offences of this type. There may also be aggravating circumstances such as financial benefit and or other non-pecuniary advantages, including an amenity benefit or improved view, as a result of the unlawful conduct.