Thames Water Utilities Ltd v Bromley Magistrates' Court & Anor [2013] EWHC 472 (Admin)

Case No CO/2766/2011

[2013] EWHC 472 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/03/2013

Before

LORD JUSTICE GROSS

MR JUSTICE SINGH

Between

Thames Water Utilities Ltd.Claimant

Bromley Magistrates’ CourtDefendant

The Environment AgencyInterested Party

Mr Stephen Tromans QC and Mr Gregory Jones QC (instructed by Berwin Leighton Paisner LLP) for Claimant

Mr Mark Harris and Mr Mark Watson (instructed by the Environment Agency) for Interested Party

Hearing Hearing dates: 6 th November 2012

Judgment

[1]The applicant (“Thames”) is the sewerage undertaker for the Thames region; it owns and operates the network of sewers within its area. It is obliged (as undertaker) to receive and to treat domestic sewage from properties within its area.

[2]The interested party (“the EA”) is the statutory body which has responsibility for the enforcement of waste legislation in England and Wales.

[3]On a number of dates between 10th February and 24th April, 2003, sewage escaped from the Thames system onto land - residential gardens, allotments and the highway – in the London Borough of Bromley. It is not in dispute that the discharge of sewage emanated from the Thames sewage system.

[4]The EA brought criminal proceedings against Thames, alleging various offences. Some of those were strict liability offences, which are not in issue in these proceedings. The remainder (with one exception) involved charges of contravening s.33(1)(a) of the Environmental Protection Act 1990 (“the Act”). After a somewhat extended history (to which I shall return), Thames was convicted on those charges and now, inter alia (see below) advances a claim for Judicial Review.

[5]This claim for Judicial Review is concerned with the question of whether, on the true interpretation of s. 33(1)(a) of the Act, the unintended escape of sewage amounted to a “deposit” of the sewage in question on land by Thames.

[6]In the careful written judgment under Review, dated 8th March, 2011 (“the judgment”), DJ (MC) Lynch held that the answer to that question was “yes”.

[7]In the circumstances, DJ Lynch went on to consider the further question of whether Thames could establish the defence under s.33(7)(a) of the Act, namely, that it had taken all reasonable precautions and exercised all due diligence to avoid the commission of the offence. To this question, DJ Lynch gave the answer “no”.

[8]Thames contends that DJ Lynch’s findings as to the meaning of “deposit” in s.33(1)(a) of the Act constitute an error of law on the face of the record and resulted in the Judge misdirecting himself in his consideration of the specific offences under the relevant Summonses – namely those referred to in the judgment as Original Summonses 3, 1, 2, 7, 5, 8, 9, 11, 13 and 14. Thames accordingly seeks quashing orders in respect of its convictions under those Summonses. In a nutshell, Thames submits that the wording in s.33(1)(a), “shall not deposit controlled waste” imports a deliberate act of depositing, as opposed to an unintentional escape of waste from its control. Such a construction had proper regard to the fact that s.33(1)(a) imposed criminal liability on a party in breach thereof. Moreover, construing s.33(1)(a) in this fashion permitted ss.33 and 34 of the Act to be read sensibly together; I shall come to the terms of s.34 presently.

[9]The claim for Judicial Review does not challenge DJ Lynch’s conclusions on the second question, namely, whether Thames had made good (for shorthand) the “due diligence” defence under s.33(7)(a). It will, however, be necessary to refer to that defence insofar as it has a bearing on the true construction of s.33(1)(a).

[10]The EA resists the Thames claim. In essence, the EA submits that the word “deposit” in s.33(1)(a) is an ordinary English word and it was for DJ Lynch, having heard the evidence, to apply it to the facts; his conclusion was reasonable and his decision should be upheld. In any event, the proper meaning of “deposit” in the first limb of s.33(1)(a) includes unintentional deposits, an interpretation consistent with the true construction of the remainder of the sub-section, authority and the “due diligence” defence under s.33(7)(a), to which reference has already been made. So far as concerns s.34 of the Act, the EA’s case is that it is inapplicable to the circumstances in question and irrelevant.

[11]So far as material, S.33(1)(a) of the Act provides as follows:

“ (1) ….a person shall not – (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;”

[12]S.33(6) of the EPA provides that a person who, inter alia, contravenes s.33(1) commits an offence. S.33(7), EPA, then provides that:

“ It shall be a defence for a person charged with an offence under this section to prove – (a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence;…”

[13]S.34 of the Act, entitled “Duty of care etc. as respects waste”, is in these terms:

“ (1) ….it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances – (a) to prevent any contravention by any other person of section 33 above; …… (b) to prevent the escape of the waste from his control or that of any other person; ….”

[14]As already foreshadowed, something needs to be said of the history; strikingly, it is nearly a decade since the underlying events of which complaint is made. The EA prosecution commenced in 2004. A preliminary issue arose as to whether sewage which escaped from the system was, as a matter of law, “controlled waste”. The upshot was reference by a previous constitution of this Court to the European Court of Justice (“ECJ”) for a preliminary ruling. In the event, if by way of very crude summary, the ECJ held that sewage which escaped from the system and was not covered by other legislation, was waste as a matter of Community law: R (Thames Water Utilities Ltd) v Bromley Magistrates’ Court

[2007] 1 WLR 1945

(“the 2007 decision”).

[15]Subsequently, another constitution of this Court held that domestic legislation dealt only with the handling and treatment of waste water within the system, including requirements designed to prevent escape; such legislation did not contain provisions for management of the waste after it had escaped. Accordingly, the cases should be remitted to the Magistrates’ Court to determine on the merits: see, R (Thames Water Utilities Ltd) v Bromley Magistrates’ Court

[2008] EWHC 1763 (QB)

; [2009] Env. LR 13 (“the 2008 decision”). At all events, following this remission, the matter came before DJ Lynch, resulting in hearings on a number of occasions in 2010 and culminating in the judgment (of March 2011).

[16]Turning briefly to matters of procedure, Thames has pursued Judicial Review rather than an appeal by way of case stated (though it has preserved its position in that regard). Its reason for doing so is that the judgment already contains full findings of fact and full reasoning on the legal point in issue. We would not be minded to say anything to encourage the use of Judicial Review rather than other forms of challenge to decisions in the Magistrates’ Court, so we should not be understood as endorsing the Thames decision in this case. That said, given the preparations made by the parties, it would have been idle and wasteful to engage in an extended debate as to the most appropriate procedure for this case, let alone to require the parties to start again by a different form of procedure. It was preferable instead to get on and determine the matter.

[17]For completeness as to the procedural position: i) Thames has also appealed to the Crown Court against the sentence imposed by DJ Lynch; as we understand it, that appeal remains in abeyance pending the outcome of the present proceedings. ii) The Defendant (“Bromley Magistrates’ Court”) has indicated that any application for costs against DJ Lynch would be opposed and the District Judge would wish to be heard on any such application. iii) Both Thames and the EA applied to have the present claim transferred to the Upper Tribunal; that application was refused by order of Ouseley J, dated 21st December, 2011, for the reasons he there set out (and which need not be repeated here).

THE JUDGMENT UNDER REVIEW

[18]Reference has already been made to the judgment. After a careful and extended consideration of the meaning of the word “deposit”, the statutory language, the fact that this was a penal provision and the authorities, DJ Lynch’s key conclusions as to s.33(1)(a) of the Act were expressed at pp. 61-2 of the judgment as follows:

“ 26. …I have no hesitation in finding that the use of the verb ‘deposit’ at the beginning of Section 33(1)(a) clearly covers the unintended and unwanted escapes of sewage from the defendant’s system as in this case. Effectively, whenever or however sewage escapes from the defendant’s system, it has been ‘put, place(d) or set down’ by them within the ordinary linguistic meaning of the word ‘deposit’. …. 28. Effectively, whenever and however sewage/controlled waste came out of the defendant’s system in Wimborne Way and St James Avenue this was an escape/leakage from the defendant’s system and as such became a deposit within section 33. The issue of how and why such leakages/escapes may have occurred will be a relevant issue in establishing any defence under Section 33(7). ”

DISCUSSION

[19]We were grateful for the arguments addressed to us by Mr. Tromans QC and Mr. Jones QC, for Thames and Mr. Harris for the EA. As it seems to me, it is convenient to proceed in stages, starting with the word “deposit” itself, then going on to consider the various contextual aspects which arise in the present dispute.

[20](1) The word “deposit”: Starting with the word deposit itself,Mr. Tromans submitted that a state of mind was inherent in the meaning of the word “deposit”, thus telling against it encompassing an unintended escape. Although the word could cover a broad range of meanings, the common denominator involved doing something intentionally (i.e., consciously and deliberately). The focus of s.33(1)(a) was on the act rather than the fact of depositing.

[21]Mr. Tromans referred us to observations as to the meaning of the word “deposit” in various authorities. In particular, Mr. Tromans placed reliance on a decision of this Court (Donaldson LJ and Bingham J, as they then were) in Remet Co. Ltd. v Newham London Borough Council [1981] RTR 502. In that case, the defendants, in the course of their business of loading non-ferrous metal swarf on to lorries standing on the highway, from time to time miscalculated the available space in a lorry being loaded, with the result that some of the swarf accidentally fell on to the road. In respect of three such occasions the defendants were charged with depositing pieces of scrap metal on the highway without lawful authority or excuse, contrary to s.127 of the Highways Act 1959. That section provided as follows:

“ If, without lawful authority or excuse….(b) a person deposits any thing whatsoever on a highway…he shall be guilty of an offence…”

The defendants were convicted. Allowing the appeal, Donaldson LJ (giving the leading judgment of this Court) said this (at p.505):

“ I think that the deposit of materials in this context almost certainly does mean ‘consciously and deliberately depositing them’ and, if there is any doubt about it, it must be resolved in favour of a narrower construction, this being a section which creates an offence. ”

[22]Mr. Tromans additionally drew our attention to the conclusion of Laws LJ in Gateway Professional Services (Management) Ltd v Kingston upon Hull CC

[2004] EWHC 597

; [2004] Env. L.R. 42, another decision of this Court. There Laws LJ held (at [10] – [12]) that “escape” in s.34(1)(b) of the Act did not extend to cover deliberate dumping of waste; the environmental wrong constituted by deliberate dumping was “it would seem” covered by s.33(1)(a) of the Act.

[23]Mr. Harris submitted that “deposit” was an ordinary English word; its interpretation was for DJ Lynch; we should be slow to interfere, at least unless the Judge had strayed out of the range of reasonable meanings. Instead, DJ Lynch’s conclusion in the present case had been perfectly reasonable and there was no basis for interfering.

[24]Developing his submissions, Mr. Harris placed reliance on observations of Carnwath LJ (as he then was) in the 2008 decision in the present litigation – observations which are most conveniently considered below. Further, Mr. Harris referred to Scott v Westminster City Council [1995] RTR 327, where Waite LJ said this, at p.331:

“ ….The verb ‘to deposit’ is a term of wide connotation, apt to describe any state of affairs in which one object is placed upon another. Like all words of wide import, it is liable to attract shades of meaning which, according to the context, indicate that the placement contemplated shall have a particular connotation …..It is therefore an expression to be judged in the light of its context, and, being so common a word, the number of differing contexts in which it is liable to occur is almost limitless. But unless a particular context otherwise dictates, it should be interpreted in the broad sense in which it is used in everyday speech. One of the consequences of its flexibility is that there may be cases in which it will be difficult to determine whether a particular placement has the characteristics of a deposit or not…. ”

[25]For my part, first, as a matter of dictionary definition, I do not think it is necessary to look beyond the definition of “deposit” used by DJ Lynch, viz. “put, place(d) or set down”.

[26]Secondly, I readily accept the observation of Aikens LJ in Milton Keynes DC v Fuller

[2011] EWHC 1967 (Admin)

; [2011] Env. LR 31, at [39], that “deposit” is an “ordinary and uncomplicated English word…”. In that case, the magistrates had concluded that the movement of waste, previously tipped by others in the entrance to the Respondents’ field, did not amount to a “deposit”, within s.33(1)(a) of the Act. This Court held that no question of law was involved in the interpretation of the word “deposit”; on the facts, the magistrates’ conclusion was “perfectly reasonable” ([39]). As Aikens LJ went on to observe (loc cit), “We cannot impose our own exegesis on the meaning of the word and then apply our meaning to the facts as found by the justices”.

[27]Thirdly, in the light of it being an ordinary English word, the question for this Court is whether an unintended escape falls within a reasonable range of meanings for “deposit”; if yes, then there is no basis for interfering with DJ Lynch’s conclusion; if no, then DJ Lynch’s conclusion cannot stand.

[28]Fourthly, I am not at all persuaded that this question can be resolved either way on the basis of the word “deposit” considered in isolation. There is something to be said for the arguments of each party and neither party’s case can be disposed of merely on the basis of a dictionary definition. i) I acknowledge some attraction in Mr. Tromans’ submission that, inherent in the meaning of the word “deposit” is the common denominator of doing something intentionally. Further, he can properly derive a degree of assistance from the judgment of this Court in Remet (supra), albeit that a different statute was under consideration. ii) Conversely, it can fairly be said that Mr. Harris derives support from Waite LJ’s observations in Scott (supra), namely, that the word is one of wide connotation, likely to attract “shades of meaning”. Moreover, as will become apparent, I regard the dicta of Carnwath LJ in the 2008 decision as of significant persuasive authority. iii) Without, with respect, in any way casting doubt upon it, I am not persuaded that the judgment of Laws LJ in Gateway (supra) advances the argument; it is one thing to conclude that escape does not extend to deliberate dumping and that deliberate dumping comes within the meaning of s.33(1)(a) of the Act; it does not at all follow that “deposit” in s.33(1)(a) does not extend to an unintended escape.

[29]I accordingly turn to contextual matters, beginning with s.33(1)(a).

[30](2) Sub-section 33(1)(a): As is clear from the wording of the sub-section and as observed by Mance J (as he then was) in Shanks & McEwan (Teesside) Ltd v Environment Agency

[1999] QB 333

, at p.342:

“ The structure of the section is that the word ‘knowingly’ qualifies on its face two (out of three) of the cases identified in its first part; …..The mitigation of the strictness of section 33(1)(a) – and indeed of section 33(1) and (6) generally – is on this basis to be found in the exceptions provided by section 33(7)…. ”

[31]The contrast between the language of the first case and the language of the second and third cases is striking. At least at first blush, the fact that the first case within s-s 33(1)(a) is not qualified by “knowingly” whereas the second and third cases are so qualified, points with force in favour of the EA case. The first case contemplates a “deposit” taking place other than “knowingly”. No doubt the first case is apt to encompass a deliberate and conscious act under some misapprehension, whether as to the nature of the substance deposited or as to a waste management licence being in force. I cannot, however, see why, having regard to the structure of the sub-section, it should be limited to instances of misapprehension. Instead, as it seems to me, in the absence of the requirement that the “deposit” take place “knowingly”, the sub-section is also naturally capable of extending to a “deposit” resulting from an unintended escape. This is so, notwithstanding Mance J’s further observation in Shanks & McEwan (supra), at p.345, “Normally, no doubt, such a person would know what he was doing.” Even assuming that the normal case of a contravention of the sub-section indeed involves a person knowing what they are doing, it does not follow that cases which are not the norm fall outside of it. For completeness, the fact that the first case is not qualified by the word “knowingly” constitutes so stark a contrast with the second and third cases, renders it unnecessary to analyse whether the sub-section involves different offences or simply different ways of committing the same offence; however analysed, effect must be given to the contrast in question.

[32]Accordingly, the structure of s.33(1)(a) of the Act lends cogent support to the EA case and DJ Lynch’s conclusion. I come next to s.33 as a whole.

[33](3) S.33 as a whole: The focus here is upon s.33(7) (set out above). Mr. Tromans submitted that this due diligence defence did not mean that liability under (the first case in) s.33(1)(a) needed to be strict; the s.33(7) defence applied to all limbs of s.33(1)(a) – i.e., those qualified by the word “knowingly” as well. Mr. Tromans further submitted that his construction did not emasculate s.33(7), giving the example that the defendant would often be a company. Mr. Harris submitted that the strict liability for which he contended in respect of the first limb of s.33(1)(a) was qualified by the due diligence defence furnished by s.33(7); the result was a proportionate scheme.

[34]For my part, I think that the due diligence defence in s.33(7) favours the EA case but in a more nuanced fashion than it would have done had it applied only to the first limb of s.33(1)(a). i) It is necessary to keep in mind that s.33(7) applies to all limbs of s.33(1)(a), including those qualified by the word “knowingly”. It would therefore be too simplistic to say that the importation into the first limb of s.33(1)(a) of a requirement that the “deposit” must be “intentional”, would emasculate the defence under s.33(7). Plainly, the legislature did not think so with regard to the second and third limbs of s.33(1)(a). Although it is not altogether easy to see what scope there is – realistically – for a due diligence defence in respect a prohibited activity undertaken “knowingly” or intentionally, examples can be suggested in the case of a corporate defendant: i.e., the company has conducted itself with due diligence but an employee (other than an alter ego) has knowingly or intentionally infringed the section. ii) That said, it remains the case that in respect of the first limb of s.33(1)(a), the “fit” with s.33(7) is much happier on the EA than on the Thames case. On the EA case the scheme is obvious and proportionate. It is, to my mind, exactly what Mance J had in mind (obiter) in Shanks & McEwan (supra), at p.342: namely, the strictness of s.33(1)(a), first limb is mitigated by the availability of the s.33(7) defence. Moreover, such a construction confers the efficacy of deterrence (so according with the “rational and moral justification” for strict liability), while keeping within acceptable limits: see, Tesco Ltd v Nattrass

[1972] AC 153

, at p.194, per Lord Diplock.

[35](4) Ss. 33 and 34: Mr. Tromans vigorously contended that the relationship between ss.33 and 34 pointed in favour of “deposit” (in s.33) not extending to an unintended escape. If “deposit” had the meaning for which the EA contended, then both ss.33 and 34 applied to an unintended escape. That, however, would be odd. S.33 gave rise to a more serious offence than s.34 – punishable by imprisonment not simply a fine. Yet the burden of proof (at least to a civil standard) rested on the defendant to make good a defence of “due diligence” under s.33, whereas s.34 required the prosecution to prove to the criminal standard that the defendant had not taken reasonable measures to prevent the escape of waste. Accordingly, on the EA construction, the prosecution was free to elect for the more serious offence and cast a burden of proof on the defendant. Moreover, the statutory code (enacted pursuant to s.34(7)) would be otiose. In short, s.33 applied strict liability to intentional “deposits”; s.34 applied to unplanned escapes and adopted a standard of reasonable care. S.34 applied here because the spillage was on a continuous basis; once there had been a breakdown of a non-compliant system, the material became controlled waste and Thames came under a duty to take reasonable care to prevent the escape. The EA had not, however, proceeded under s.34 and s.33(1)(a) did not apply to the unintended escape/s here.

[36]For the EA, Mr. Harris’s response was crisp: s.34 had no application to the facts of the present case. As expressed in the EA skeleton argument, Thames was never in possession of controlled waste while it was within their system; it only became controlled waste at the point when it escaped from the Thames system. Accordingly, the s.34 duty did not crystallise here until the point in time at which the horse had bolted. Developing his argument orally, Mr. Harris put it this way: that which was in the pipes was not controlled waste; once it had escaped, it was not in the control of Thames. S.34 was inapplicable. There was no objectionable overlap between ss. 33 and 34 on the EA construction, or, at worst only at the margins. The statutory code was not otiose; it was simply inapplicable (in any meaningful sense) to the facts of this case.

[37]Mr. Tromans’ submission on the construction of ss.33 and 34 would plainly have considerable force if both sections were applicable to the present facts. The crucial question is, accordingly, whether s.34 is thus applicable. Here, for my part, I prefer the submissions of Mr. Harris to those of Mr. Tromans. To explain why, I must first return to the background of litigation before the ECJ and the previous constitution of this Court.

[38]In the 2007 decision, the ECJ proceeded on the basis that waste water within a sewerage network maintained by a sewerage undertaker pursuant to Council Directive 91/271/EEC of 21 May 1991 (“the urban waste water directive”) was not within Council Directive 75/442/EEC of 15 July 1975 as amended (“the waste directive”). Crucially, however, the ECJ was required to consider whether waste water which escaped from the sewerage network was waste falling outside the waste directive by reason of the urban waste water directive or national legislation. This question arose because of the provisions contained in Arts. 1 and 2 of the waste directive:

“ Article 1 1. For the purposes of this Directive: (a) ‘waste’ shall mean any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard; (d) ‘management’ shall mean the collection, transport, recovery and disposal of waste….. Article 2 1. The following shall be excluded from the scope of this Directive: (b) where they are already covered by other legislation: (iv) waste waters….”

Article 2

[39]The ECJ ruled that in order to be regarded as “other legislation” within Art.

(b) of the waste directive:

“ 33. …the rules in question must not merely relate to a particular substance, but must contain precise provisions organising its management as waste within the meaning of article 1(d) of the Directive. Otherwise, the management of that waste would be organised neither on the basis of Directive 75/442 nor on that of another Directive nor on that of national legislation, which would be contrary both to the wording of article 2(1)(b) of Directive 75/442 and to the very objective of the Community legislation on waste…. 34. It follows that, for Community or national legislation to be regarded as ‘other legislation’, it must contain precise provisions organising the management of waste and ensure a level or protection which is at least equivalent to that resulting from Directive 75/442….”

[40]Applying this test, the ECJ ruled that the urban waste water directive did not constitute “other [Community] legislation” within Art. 2(1)(b) of the waste directive. It fell to the national court to determine whether the national rules constituted such “other legislation” – hence, the question remitted to the previous constitution of this Court.

[41]Before parting with the 2007 decision of the ECJ, it is of interest to note the Court’s observations on the meaning of the verb “to discard” in Art.

(a) of the waste directive:

“ 27. ….the verb ‘to discard’ must be interpreted in the light not only of the aims of Directive 75/442, that is, the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste, but also of article 174(2) EC….. The verb ‘to discard’ therefore cannot be interpreted restrictively…. 28. The fact that waste water escapes from a sewerage network does not affect its character as ‘waste’ within the meaning of Directive 75/442. The escape of waste water from a sewerage network constitutes an event by which the sewerage undertaker, the holder of that waste water, ‘discards it’. The fact that the waste water is spilled accidentally does not alter the outcome….”

We were not addressed more generally on the relationship between the waste directive and the Act nor on the distinction between the words “discard” and “deposit”, so caution is called for before applying these observations of the ECJ to s.33(1)(a) of the Act. Nonetheless, these observations are instructive as to the policy underlying the directive in question, relating to the same field as the Act.

[42]In the 2008 decision, to which I next turn, this Court held that the provisions of the Water Industry Act 1991 and the Urban Waste Water Treatment Regulations 1994 dealt with the handling and treatment of waste water within the system, including requirements designed to prevent escape. They did not contain provisions for management after it had escaped. Giving the leading judgment of this Court, Carnwath LJ (as he then was) said this:

“ 20. The fact of the matter is that there are no ‘precise provisions’ governing the management of waste which escapes unintentionally from the sewerage system. Accordingly they are not ‘covered by other legislation’ in the sense explained by the ECJ. That may not be surprising, since the escapes are by definition unplanned, and therefore outside the scope of the ordinary management regime. However, that is no reason for them not being subject to the criminal sanctions otherwise thought appropriate for deposit of controlled waste. There is nothing unfair in this. If ….[Thames]…can show that it took all reasonable precautions and exercised all due diligence, it will have a defence. 21. Accordingly, I conclude that the alleged escapes of untreated sewage were within the scope of s.33, and that the cases should be remitted to the magistrates’ court to determine on the merits…… 23. ….. I would therefore answer the preliminary question by holding that sewage escaping from pipes maintained by a statutory undertaker is ‘controlled waste’ within the meaning of s.33 of the EPA and remit the matter to the magistrates’ court.”

[43]Pausing here, it is noteworthy that the Thames argument on that occasion was that the duty under s.34 of the Act only came into play at the stage of removal and disposal of contaminated material – i.e., after it had already escaped from the sewage network: see, the 2008 decision at [18].

[44]Reverting to the relationship between ss. 33 and 34 of the Act: i) I can see nothing in either the 2007 or 2008 decisions which lends support to the Thames argument. There is a plain requirement of certainty of coverage, based on underlying policy objectives. The urban waste water directive applies to that which is within the system. The waste directive constitutes, in effect, the default option in respect of waste which has escaped from a sewerage network unless the escape is covered by “other legislation” as explained in the 2007 or 2008 decisions. The difficulty for Thames is that, on facts such as those here, this clear framework leaves no room for the s.34 duty “to prevent the escape” to bite until the waste has already escaped and is no longer in the control of Thames. ii) The notion, advanced by Mr. Tromans, that the urban waste water directive ceased to apply and s.34 of the Act comes into play at the earlier point in time when there is a breakdown of a non-compliant system, strikes me, with respect, as a recipe for uncertainty. It thus runs counter to the tenor of both the 2007 and 2008 decisions. It is not clear to me whether (on the Thames case) every such breakdown would result in one regime (the urban waste water directive) ceasing to apply and another (the waste directive) coming into play. If substantial non-compliance of the network is required, further questions would inevitably arise as to what constituted substantial non-compliance. The difficulties are obvious and unwarranted. iii) Against this background, while in no way decisive, it is perhaps unsurprising that the Thames case before this Court in 2008 was “not clearly articulated” (at [19]) and that Thames, on that occasion, did not contend for the application of s.34 until well after the sewage had escaped from the pipes.

[45]For these reasons, I conclude that s.34 was inapplicable on the present facts. As Mr. Harris put it: that which was in the pipes was not controlled waste; once it had escaped, it was not in the control of Thames. Accordingly, Mr. Tromans’ submissions as to the true construction of s.33(1)(a) based on a suggested overlap with s.34, fall to the ground. It is as well to underline that this conclusion in no way deprives s.34 of its effect in a wide variety of situations, in some of which, no doubt, there is indeed an unexceptionable overlap between its application and that of s.33. It is simply that in circumstances such as those of the present case, there is no scope for s.34 to bite.

[46]It is now convenient to return to the observations of Carnwath LJ (at [20] – [21] of the 2008 decision) as to unplanned escapes coming within s.33 of the Act, foreshadowed earlier. As far as it goes, the Thames submission is correct that such observations were obiter. On that occasion, this Court was concerned with the meaning of “controlled waste”, not the meaning of “deposit”. In my judgment, however, Carnwath LJ’s observations are telling and of considerable persuasive authority. They certainly suggest, at the very least, that Carnwath LJ did not view unplanned escapes as falling outside a reasonable range of meanings for the word “deposit” in s.33(1)(a) of the Act. Put another way, it must be unlikely that Carnwath LJ would have said what he did if an unintended escape was outwith the range of reasonable meanings for “deposit” in the present context. Furthermore, Carnwath LJ was of course addressing the very facts here in question. As such, Carnwath LJ’s dicta, obiter though they were, furnish significant support for the EA case.

[47](5) A penal provision: As is hornbook law, statutory language creating a criminal offence is to be construed strictly; the presumption is that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary: Sweet v Parsley

[1970] AC 132

. In the case of any ambiguity, the benefit of the doubt as to construction must be given to the defendant.

[48]It is also fair to say that such presumptions can be displaced. In Gammon Ltd v A-G of Hong Kong

[1985] 1 AC 1

(PC), Lord Scarman, giving the judgment of the Board, said this (at p.14):

“ ….. (1) there 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, and 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. ”

[49]Although these propositions are plainly not to be treated as a statute, they do, with respect, furnish a convenient and authoritative framework of reference. Having regard to the possible penalty for the contravention of s.33(1)(a) of the Act, I proceed on the assumption most favourable to Thames (in terms of proposition (2)) that the offence is “truly criminal” in character. I confess, with great respect, to some concern as to proposition (4) in this passage – on the ground that most statutes are, at least in the view of legislators, concerned with an issue of “social concern”. However that may be and whatever the true limits of proposition (4), there can be no real doubt that the Act is here concerned with an issue of social concern, namely, the protection of human health and the environment – as emphasised in the 2007 decision (albeit there dealing with Community legislation).

[50]So far as concerns propositions (3) and (5), I would conclude that the Act clearly or by necessary implication displaces the presumption. First, as already discussed and even giving Thames the benefit of any doubt, the Act, on its true construction points strongly towards the imposition of strict liability under the first limb of s.33(1)(a). Secondly, although I am unable to accept Mr. Harris’s submission that there would necessarily be a lacuna if he was wrong on this point, I am amply persuaded that strict liability will be “effective to promote the objects of the statute by encouraging greater vigilance” to prevent the escape of sewerage from the network. I do not lose sight of the Thames submission that even in the best of systems overflows or breakdowns will occur from time to time. Even so, strict liability will serve to concentrate minds at senior management levels and the regime cannot be described as draconian or unduly draconian, given the due diligence defence furnished by s.33(7).

[51]I am not deterred from this conclusion by Mr. Tromans’ “shopper” example, which it remains to mention. Mr. Tromans submitted that strict liability under the first limb of s.33(1)(a) was an unsatisfactory construction which would bring within its net the case of the shopper who slipped and “deposited” the contents of a shopping bag on the ground. Assuming (without deciding) that Mr. Tromans is right in theory, the example has, to my mind, little force. First, in many such cases, the due diligence defence would be available. Secondly, while it is in general unwise to rely or rely unduly on the discretion of prosecution authorities to prevent unjust results, the trivial nature of the postulated example suggests that prosecution in such cases would be sufficiently nonsensical to deter most prosecutors from an unwarranted excess of zeal. No doubt the Court would in any event be vigilant in this regard, not least in the exercise of its powers as to costs. Thirdly, even in a case where the prosecution did proceed and a conviction resulted, the seriousness (or otherwise) of the offence will of course be reflected in the penalty.

[52](6) Conclusions: Pulling the threads together, the answer to the question whether the unintended escape of sewage amounted to a “deposit” within s.33(1)(a) of the Act, is not to be found in dictionary definitions. However, when construed in the context both of sub-section (1)(a) and s.33 as a whole, the preponderance of the argument favours and clearly so, the word “deposit” including unintended escapes. The contrary argument, that this construction results in an unsatisfactory overlap with s.34 of the Act, falls to the ground because s.34 is inapplicable in such circumstances. Conscious though I am that s.33 gives rise to a penal provision, I am satisfied that the usual and strong presumption of a mens rea is here displaced. Having thus far approached the matter in stages, it must now be right to stand back and look at the question in the round. Doing so, I am left in no real doubt overall that the intention of the legislature was to impose strict liability under the first limb of s.33(1)(a), so that “deposit” does include an unintended escape of sewerage from the sewerage undertaker’s network.

[53]It follows that, for the reasons given, I would dismiss this claim for Judicial Review. MR

JUSTICE SINGH:

[54]I agree.