Consultation on the revised guidance on the use of enforcement action

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Closes 15 Dec 2020

Outline of proposed guidance to determining the level of VMP

Following an appropriate investigation, there are robust internal governance arrangements in place to ensure that issuing a VMP is appropriate, proportionate and fair in the circumstances and that SEPA complies with the Lord Advocate’s Guidelines.

The facts of the offence will be assessed and the level of VMP will be calculated within the prescribed limits of the legislation. We will determine a starting point that reflects the seriousness and nature of the offence. By using professional judgement, we will individually assess the:

  • environmental impact (or likely impact);
  • intent/culpability;
  • socio-economic impact;
  • financial benefit.

The financial benefit is determined from the evidence gathered during the investigation. This takes account of direct and indirect gains (avoided costs) in connection with the offence.

Once the starting point has been determined, we will consider any aggravating or mitigating factors. These factors reflect the attitude, behaviour and knowledge of the offender. Whilst some of these factors are not directly associated with the offence, they are relevant to the offence/offender because they show a pattern of positive or negative behaviours. We will use them as aggravating factors to increase the penalty and mitigating factors to decrease the penalty. This includes a review of:

  • previous enforcement action taken against the individual or organisation;
  • compliance with environmental obligations;
  • co-operation with the SEPA investigation;
  • foreseeability.

Where applicable we will also consider the appropriate level of mitigation to take account of:

  • remediation by the individual or organisation;
  • any other factor.

SEPA reserves its discretion whether or not to reduce the amount of the penalty by removing any amount to reflect the circumstances of the case, including remediation carried out, taking account of the financial benefit and impact caused by the offence.

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