18/01/2002

Environment Agency v. M E Foley (Contractors) Ltd & Anor

Uncategorized

Administrative Court

On an allegation of an offence contrary to s.33(1)(a) Environmental Protection Act 1990, the burden lay on the prosecution to prove not only that controlled waste of any type had been transported but also that the controlled waste was of a specific type, such as waste contaminated with more than 10 per cent calcium hydroxide.

Appeal by way of case stated against Cardiff Magistrates' decision to acquit the respondents for offences contrary to s.33(1)(a) Environmental Protection Act 1990. The first respondent ('F') had transported controlled waste to two sites, a landfill site ('site one') and sea-wall reinforcement works that belonged to the second respondent ('N') ('site two'). A waste disposal licence permitted the deposit of controlled waste at site one with the specific exclusion of "special waste" as defined in the Control of Pollution (Special Waste) Regulations 1980 SI 1980/1709 without the prior written authority of the waste disposal authority. Site two was exempt from waste-management licensing under reg.17 Waste Management Licensing Regulations 1994 SI 1994/1056. F was charged with knowingly causing controlled waste, namely soils contaminated with more than 10 per cent calcium hydroxide, to be deposited on land in respect of which a waste-management licence authorising such deposit was not in force. N was charged with permitting that offence by accepting delivery of the soil. The magistrates found that the burden lay on the prosecution to prove not only that controlled waste of any type was transported, but also that the controlled waste was contaminated with more than 10 per cent calcium hydroxide. The magistrates held that the prosecution had not proven that the soil was contaminated with more than 10 per cent calcium hydroxide and acquitted F and N. The questions formulated by the magistrates on the case stated were as follows: (i) whether the burden lay on the prosecution to prove that there was no waste-management licence authorising the deposit of controlled waste (or that there was an exemption under the 1994 Regulations), or that the deposit was not in accordance with the licence (or exemption) in that the controlled waste was special waste; and (ii) whether the burden lay on the accused to prove that there was a waste-management licence (or exemption under the 1994 Regulations) authorising the deposit of such controlled waste and that the deposit was in accordance with that licence (or exemption) in that the controlled waste was not special waste.
HELD: (1) The question in respect of site one was whether it was for the prosecution to prove that F had delivered contaminated soil without prior written permission, or whether it was for F to prove that the soil was not contaminated or that it had prior written permission. The question for decision in respect of site two was whether it was for the prosecution to prove that F had delivered and N had accepted contaminated soil, thus taking it outside the exemption, or whether it was for F and N to prove that it was not contaminated soil, thus preserving the exemption. (2) In the case of site one, it was for the prosecution to prove that F had delivered contaminated soil without prior written approval. In the case of site two, it was for the prosecution to prove that the waste contained contaminated soil, thus taking it outside the exemption. (3) Before resorting to s.101 Magistrates' Court Act 1980 a court should consider the particular exemption in play, the way in which it would apply and the issues of fact to be determined. Thus, there should be a case-specific approach rather than a blanket s.101 approach to complex statutory provisions involving exceptions and, as in this case, exceptions to exceptions. (4) The Department of the Environment Circular 6/96 was concerned with waste producers. Section 33 of the 1990 Act was concerned with more than producers and included those who delivered, managed and received waste. (5) Audit trails available to defendants that might assist their cases evidentially should also be available to the prosecution. The absence of such documents, culpable or otherwise, was not a basis for finding a defendant guilty under s.33 of the 1990 Act. (6) A pointer against the policy argument was that s.33(7) of the 1990 Act provided a defence to those charged with a s.33(1)(a) offence. Parliament was unlikely to have imposed a burden of proof on defendants at the same time as providing a defence on the issue of whether they had deposited controlled waste of a type and in circumstances that were prohibited otherwise than in accordance with a licence or exemption.
 

Appeal dismissed.

[2002] 1 WLR 1754 : [2002] Env LR 27

ENVIRONMENT,CRIMINAL LAW,CRIMINAL EVIDENCE,AGENCY,JOHN,BATES