Written by Dr Anna Willetts of gunnercooke llp and Samantha Riggs of 25 Bedford Row, the piece discussed what they believe to be “heavy-handed” enforcement by the EA in a recent case.
The original opinion-editorial can be read here and the full letter from the EA can be read below.
Dear Editor,
I would like to correct several claims in the opinion piece by Anna Willetts and Samantha Riggs about the prosecution of Graham Orchard for smelting aluminium in breach of the environmental permit at his premises.
At no time did the Environment Agency seek to punish Mr Orchard through the Proceeds of Crime Act but simply to ask for the confiscation of the funds obtained through his illegal activity.
We maintain that Mr Orchard was aware of the requirement to comply with the environmental permit and that any breach of it is a criminal offence. During the offending period Mr Orchard was the operator of the site and had achieved the relevant waste operator qualifications.
Mr Orchard was made aware that the filters in the furnace stack were heavily contaminated and particulate levels were considerably higher than permitted levels as early as December 2013, when as part of the smelter commissioning process a nationally recognised consultant was instructed to undertake emission testing of the furnace. A report detailing their findings was provided to Mr Orchard who then changed the document prior to passing it to the Environment Agency to give the impression that the smelter had passed the tests.
On multiple occasions over the offending period, reports were received by the Environment Agency from members of the public over concerns regarding dust, smoke and an acrid odour coming from the site. Visits were made following these reports and Mr Orchard deliberately misled Environment Agency officers as to the reason for the black smoke coming from the furnace.
Mr Orchard was required to submit annual reports to the Environment Agency relating to the emissions from the furnace stack. Between 2013 and 2022 Mr Orchard repeatedly provided false documentation.
He not only failed to undertake appropriate testing, but he also knowingly burnt hazardous waste in the furnace, which was not authorised by his permit, with no consideration to the impact on human health or the environment.
This included waste oil from other end-of-life vehicle sites and waste oil from vehicles depolluted at his own site. He also falsified a hazardous waste consignment note to conceal the fact he burnt these materials in the furnace.
The Environment Agency aims to work with operators of permitted facilities to bring them back into compliance, but this is not possible where operators deliberately and continually deceive officers.
The POCA application was applied appropriately in this case. The purpose of the Proceeds of Crime Act is to ensure that criminals do not financially benefit from their criminality and to recover the proceeds of crime as well as to disrupt and deter criminality.
The Environment Agency reserves the right to ask a court to consider a confiscation order following a conviction. In a case such as this, where the offending was of a deliberate nature and there has been a large financial benefit, over £1 million, we maintain that the application of POCA is appropriate.
In August 2023, the EA obtained a POCA restraint which particularised the house/yard and funds in a bank account. The defendant had two bank accounts with the same bank. The EA only restrained the savings account and not the current account to allow the defendant to continue trading as it was accepted that not all of the defendant’s business was criminal.
Due to issues with the way the restraint was applied to the savings account, the defendant lost online access to the current account. The restraint was varied to allow the defendant access to the unrestrained account. During this hearing the judge warned the defendant that he would send him to prison if any of the funds had been dissipated in the future – this is the reason Mr Orchard preserved the funds.
Mr Orchard received a financial benefit from his offending. During a POCA hearing in December 2024 the main issue was agreeing what the benefit figure was from the offending. The Environment Agency took a fair approach and stripped back the benefit figure to the financial benefit of the aluminium ingots produced by the furnace and removed all other elements of the defendant’s particular benefit and section 10 POCA assumptions.
Mr Orchard’s defence team did not agree with this figure and put an alternative forward. At the POCA hearing in November 2025, the Judge did not agree with either the figures presented by the prosecution or the defence but an agreed benefit figure of £1,271,034.54 was reached.
At this point the defendant’s available assets included the house and yard as well as funds in bank accounts. The Agency agreed that the house and yard would be ringfenced from the confiscation order and any future Section 22 uplifts meaning the defendant will never lose his home and business. This has enabled the defendant to continue trading. This approach was commended by the Judge.
Regards,
Emma Viner
Enforcement & Investigations Manager for the Environment Agency
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