“I certify that the case is a fit case for appeal against conviction on the ground that at the close of the prosecution case I ruled that regulation 23Transfrontier Shipment of Waste Regulations 2007 (SI 2007/1711) created an offence of strict liability. The defence has submitted throughout that Parliament could not have intended to create an offence which could be committed by such a wide range of individuals and/or companies involved in the export of waste electrical items abroad without there being some degree of intention on the part of those involved. These regulations set out to criminalise the breach of article 36 of theEuropean Union Waste Shipment Regulations 2006 . At the same time I made rulings on what, for the purposes of the Regulations, constituted ‘waste’ and the meaning of ‘destined for recovery’ both of which concepts are issues that the defence will seek to have determined by the Court of Appeal as part of the proceedings on appeal.”
“The concept of waste underlying Community law on waste is defined in article 1(a) of Directive 75/442. According to that definition, "waste" means "any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard".”
“1. Member States shall lay down the rules on penalties applicable for infringement of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive....”
“23. A person commits an offence if, in breach of Article 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.”
“5(1) Any reference in these Regulations to transport includes consigning for transport. (2) Any reference in these Regulations to a person who transports waste includes the following persons- (a) the notifier; (b) any transporter of waste, by land or otherwise- (i) into or in the United Kingdom; or (ii) from the United Kingdom; (c) any freight-forwarder; or (d) any other person involved in the shipment of waste.”
‘‘108. The Court of Justice has thus refused to make classification of a material as waste dependent on its economic value, its fitness for reuse . . . or the environmental hazards posed by it . . . The holder’s conduct can be appraised only with regard to his intentions, a fact which causes the body applying the law considerable difficulties. 109. The Court of Justice solves this problem by inferring an intention to discard the substance from objective indicators; in doing so it has regard both to all the factual circumstances and to the aim of the waste Directive . . .’’
“i) The concept of waste ‘‘cannot be interpreted restrictively’’ (ARCO para.[40]). ii) Waste, according to its ordinary meaning, is ‘‘what falls away when one processes a material or an object, and is not the end product which the manufacturing process directly seeks to produce’’ (Palin Granit Oy (Case C– 9/00) [2002] Env LR 35,[2002] 1 WLR 2644 , para.[32]). iii) The term ‘‘discard’’ ‘‘covers’’ or ‘‘includes’’ disposal or recovery within the terms of Annex IIA and B (Inter Environnement Wallonie (Case C-129/96 ) [1997] ECR 1-17411, [1998] Env LR 623, para.[27]; ARCO para.[47]); but the fact that a substance is treated by one of the methods described in those Annexes does not lead to the necessary inference that it is waste (ARCO paras [48]–[49]). iv) The term ‘‘discard’’ must be interpreted in the light of the aims of the WFD, and of Art.174(2) of the treaty, respectively: a) The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste; and b) Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and the principle that preventive action should be taken (Palin Granit Oy para.[23]). v) Waste includes substances discarded by their owners, even if they are ‘‘capable of economic reutilisation’’ (Vessoso & Zanetti (Case C-206/88 ) [1990] E.C.R. I -1461 para.[9]) or ‘‘have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use’’ (Tombesi (Case C-304/94 ) [1997] ECR 1-3561, [1998] Env LR 59, para.[52]). vi) In deciding whether use of a substance for burning is to be regarded as ‘‘discarding’’ it is irrelevant that it may be recovered as fuel in an environmentally responsible manner and without substantial treatment (ARCO para.[73]). vii) Other distinctions, which may be relevant depending on the nature of the processes, are— a) between ‘‘waste recovery’’ within the meaning of the WFD and ‘‘normal industrial treatment’’ of products which are not waste (‘‘no matter how difficult that distinction may be’’) (Wallonie para.[33]); b) between a ‘‘by-product’’ of an industrial process, which is not waste, and a ‘‘production residue’’, which is (Palin Granit Oy paras [32]– [37]—see further below).” a) The protection of human health and the environment against the harmful effects caused by the collection, transport, treatment, storage and tipping of waste; and b) Community policy on the environment, which aims at a high level of protection and is based on the precautionary principle and the principle that preventive action should be taken (Palin Granit Oy para.[23]). a) between ‘‘waste recovery’’ within the meaning of the WFD and ‘‘normal industrial treatment’’ of products which are not waste (‘‘no matter how difficult that distinction may be’’) (Wallonie para.[33]); b) between a ‘‘by-product’’ of an industrial process, which is not waste, and a ‘‘production residue’’, which is (Palin Granit Oy paras [32]– [37]—see further below).”
“56. Understandably, the court has held that a material does not cease to be waste merely because it has come into the hands of someone who intends to put it to a new use. But that should not be because it still meets the Art.1(a) definition in his hands; but rather because, in accordance with the aims of the Directive, material which was originally waste needs to continue to be so treated until acceptable recovery or disposal has been achieved. Unfortunately the court has consistently declined invitations to develop workable criteria to determine that question. Instead, it continues to insist that the ‘‘discarding’’ test remains applicable, even where the ‘‘holder’’ is an end-user such as Epon, whose only subjective intention is to use, not to get rid of, the materials in issue.... 59. In other words, although the Court continues to pay lip-service to the ‘‘discarding’’ test, in practice it subordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.”
“21...The question whether something has ceased to be waste is not determined by considering whether those subjecting it to the process of reclamation intends to discard it or not, because if that was the question, then undoubtedly it would cease to be waste at the moment when those subjecting it to such a process had the intention to reuse it. Rather, the question of whether something which is undoubtedly waste ceases to be waste is determined by whether the cycle of repair or restoration is complete. To that extent I agree with the submissions advanced on behalf of the Environment Agency...”
“21...the main question in the present case was whether the material delivered to Mr Evans’ Cheadle site should be classified as waste and that the answer to that was primarily to be inferred from Mr Evans’ actions and that those depend on whether or not he intended to discard the substances in question.”
“36. In the first place, he was in error in assessing the status of the materials entirely by reference to the respondents as “holder”[s]: see paragraph 9 of the judgment, last sentence. The hauliers were also clearly “holders” of materials which it was open to the jury to find to have been waste from the moment of excavation at the neighbouring farm and requiring to be discarded by the land owners as “holders”
“In law, an intention to pass on to another that material for that other to use it, nor even an intention to sell, does not amount to such alteration of status by way of intended use as to remove the material from the category of waste. It remains waste in the hands of the haulier up to and including this deposit of it. Further, it remains waste thereafter unless and until some event happens which you can say there is a sufficient proportion to have altered it.”
“13...In our judgment the correct analysis is, as was put by Davis J in argument and is supported by paragraph 36 of the judgment in W, C and C, that at the time when B is about to deposit the material on C's land, the conduct of B in bringing the material to that point, coupled with the purpose of C in receiving the material, is capable of bringing about a change in the status of the material for the purposes of the relevant statutory regime, so that at that time the material will have ceased to be waste, subject to the nature of the material and subject to the nature of the intended reuse and its potential environmental impact. Accordingly, we accept the submission that the judge's direction was a misdirection.”
“WASTES are substances or objects...which: (i) are disposed of or are being recovered; or (ii) are intended to be disposed of or recovered; or (iii) are required, by the provisions of national law, to be disposed of or recovered.”
“The defence contend that each of these cases [Thorn and Inglenorth] is authority for the proposition that a waste item does not remain so until its character is changed by a process of, for example, recycling, and that process has been concluded; rather, depending on the circumstances, an item that is originally a waste item can change its status if it is the intention of the holder at the time to do something with it which will alter that status from waste to something else.”
“If you find that you are satisfied so that you are sure that the items that ended up in the containers, the subject matter of these counts, were discarded by the original owner at the civic hall waste amenity site, I direct you as a matter of law that those items became waste at that moment and that they remained so until something was done to stop them from being waste.”
“... if you are looking for something that provides you with a basis upon which you can make a decision whether or not electrical items have been shown to be functional you may well take the view that the revised correspondence guidelines, especially at paragraphs 12 to 16, provide you with that basis.”
“You must decide whether the prosecution evidence is sufficiently strong on these matters for you to draw the inferences that nothing was done to the items at the various sites where they were taken ... If it is not sufficiently strong you need to consider whether you can draw any inference and what that inference might be.”
“(2) Are you satisfied so that you are sure that the items in the container(s) in the count you are considering were ‘waste’ when they arrived at the collector’s premises? • If you find that the items were discarded by the original owner at the civic amenity waste site, I direct you that the items became waste at that moment; and • That they remained so until something was done to them to stop them from being waste; • The prosecution case is that visual inspection and selection would not be enough; • The defence case is that a combination of visual inspection and selection is sufficient to alter the status of an item from ‘waste’ so that when it arrived at the collector’s premises, it had ceased to be waste. If you are unsure, your decision must be not guilty However, if you are sure, move on to question 3 (3) Has ‘anything been done’ to the items by the collectors that is sufficient in your judgment to change the status of the waste to non-waste? • Prosecution and defence agree that if you find as a matter of fact that waste items were in the container, then the items were hazardous waste; • As a matter of law, I direct you that the intention of any of the defendants as to what should be done or was going to be done with the waste is immaterial; • The prosecution case is that PAT testing is not enough and there should be a test for functionality to determine whether the item is working • The defence case is that visual inspection, PAT testing and selection by the buyers is sufficient to change the status of an item from waste; • If you find that something was done, it must have been sufficient to bring the process within the list of recovery operations within Annex IIB of the Waste Framework Directive (copied to you by the prosecutor in his closing speech) If you are unsure, your decision must be not guilty; However, if you are sure, move on to question 4” • If you find that the items were discarded by the original owner at the civic amenity waste site, I direct you that the items became waste at that moment; and • That they remained so until something was done to them to stop them from being waste; • The prosecution case is that visual inspection and selection would not be enough; • The defence case is that a combination of visual inspection and selection is sufficient to alter the status of an item from ‘waste’ so that when it arrived at the collector’s premises, it had ceased to be waste. If you are unsure, your decision must be not guilty However, if you are sure, move on to question 3 • Prosecution and defence agree that if you find as a matter of fact that waste items were in the container, then the items were hazardous waste; • As a matter of law, I direct you that the intention of any of the defendants as to what should be done or was going to be done with the waste is immaterial; • The prosecution case is that PAT testing is not enough and there should be a test for functionality to determine whether the item is working • The defence case is that visual inspection, PAT testing and selection by the buyers is sufficient to change the status of an item from waste; • If you find that something was done, it must have been sufficient to bring the process within the list of recovery operations within Annex IIB of the Waste Framework Directive (copied to you by the prosecutor in his closing speech) If you are unsure, your decision must be not guilty; However, if you are sure, move on to question 4”
‘destined for recovery’
“(28) It is also necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply, also laid down in the Basel Convention. In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes the waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste.”
“(b)(i) the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials; or (ii) the use of waste as a source of energy”
“23. A person commits an offence if, in breach of Art 36(1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply.”
“2. The issue before us is whether the judge was correct in ruling at a preparatory hearing for the trial that regulation 23 of the UK Regulations and article 36 of the EU Regulation catch all those who are involved in transporting waste for export, from the point of origin where waste is collected and stored for onward transmission to another country, through to the point where the waste is delivered to that country. In reaching that conclusion the judge rejected defence submissions that a defendant only exports waste at some later point, at the extreme when the waste shipped by him leaves the European Community. The judge also rejected submissions that regulation 23 is in breach of European Union law and is ultra vires, and that that regulation is disproportionate and consequently unlawful.”
“39...The creation of a strict liability offence, punishable by up to two years imprisonment, which can be committed by such a wide range of individuals and organisations, is not proportionate. The scope of regulation 5(2) would include arrangers, freight-forwarders, persons who transport waste to the point of embarkation, the operator of any port facility and their sub-contractors, those who load the container on a ship, and the shipping company and their employees. There is nothing in the UK Regulations, it is said, to protect individuals who are not culpable for the harm caused by any wrongful shipment of waste.”
“40. In general there is no issue of proportionality under EU law with respect to strict liability offences:Case C-326/88 , Public Prosecutor v Hansen[1991] ICR 277 , [14]. The defendants point out that there are none of the standard defences in the UK Regulations to the commission of an offence under regulation 23, which one would expect if regulation 23 was a strict liability offence: cf.Environmental Protection Act 1990, s. 33(7) . Hansen, they point out, was a case involving a fine, not imprisonment. In response the prosecution refers to the offence which an employer commits under section 33(1)(a) of the Health and Safety atWork Act 1974 for failure to discharge any of the duties set out in sections 2-7 of that Act. We note, however, that some of those duties are qualified by terms such as reasonable practicability. 41. The judge assumed that strict liability was what was intended by the drafters of the UK Regulations. The phraseology of regulation 23 compared with, say, regulation 36 of the EU Regulations, quoted earlier, supports that conclusion. The contrary has not been argued before us. Assuming that this is an offence involving strict liability, it does not, in our judgment, fail for disproportionality for that reason. Sentence in a court in England or Wales is at large and discretionary; there is ample power in the court to avoid imprisonment, or indeed serious punishment, if a defendant has genuinely offended entirely without fault. The theoretical possibility of a transporter of waste being duped into transporting it without any means of knowing he is doing so would exist also if the offence were limited in the way contended for by the defendants to physical crossing of the last Member State boundary. For both environmental and public health reasons, the handling of waste is very closely managed under EU Regulation 1013/2006 and the international instruments to which we have referred, the Basel Convention and the OECD decision. That involves imposing considerable duties of supervision and enquiry on those who handle such material. Regulation 23 catches anyone breaching article 36(1), anyone involved in a prohibited export. That is a wider category than notifier, which is just one of the categories falling within regulation 5, where transport and person who transports are defined. As we have found, when regulation 23 prohibits transport of waste in breach of article 36(1), it states what article 36(1) intended. The UK regulations do not widen the scope of article 36(1) but merely give effect to it when read in conjunction with the definitions in article 2 of the EU Regulation. We are not persuaded by the defendants’ arguments that regulation 23, coupled with regulation 5, is disproportionate.”
“(1) [T]here is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is truly criminal in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern. Public safety is such an issue; (5) Even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.”
“36. If the operator of a facility knows or has reasonable grounds to suspect that waste brought to that facility is an illegal shipment of waste, he must notify the competent authority immediately and comply with their instructions and failure to do so is an offence.”
“57. Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person is guilty of the offence and a person may be charged with and convicted of an offence by virtue of this regulation whether or not proceedings are taken against the first mentioned person.”
“Whilst it is always possible to adumbrate situations which would appear to be covered by a statutory provision and yet could have manifestly unjust results, one has to rely on the good sense of Prosecuting Authorities and the overall supervisory role of the courts to avoid such a situation developing. Likewise of course the penalty actually imposed in any particular case can reflect the actual degree of culpability involved in a particular case.”