Allensway Recycling Ltd & Ors v The Environment Agency [2014] EWHC 1638 (Admin)

Case No CO/11294/2013

[2014] EWHC 1638 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue LEEDS DISTRICT REGISTRY, Leeds Combined Court

1 Oxford Row

Venue Leeds

Date 21/05/2014

West Yorkshire

LS1 3BG

Before

MR JUSTICE BLAIR

Between

R ((1) Allensway Recycling Limited, (2) Allen Williamson, (3) Martin Williamson)Claimants

The Environment AgencyDefendant

Andrew Thomas QC (instructed by High Street Solicitors) for Claimants

Andrew Marshall (instructed by The Environment Agency) for Defendant

Hearing Hearing dates: 8 May 2014

Judgment

Mr Justice Blair :

[1]These proceedings for judicial review relate to the execution of warrants issued under the Environment Act 1995 permitting officers of the Environment Agency to enter and inspect premises occupied by the claimants. These included the claimants’ homes, as well as business premises. The warrants were granted by Leeds District Magistrates Court on 10 May 2013, and executed on 17 May 2013. The claimants’ case is that the defendant exceeded its powers of entry, and declaratory relief is sought to that effect. Permission to bring the proceedings was given by HH Judge Behrens on 22 October 2013.

[2]The three issues for decision are as follows:(1) Whether under s. 108 and Schedule 18 Environment Act 1995 it is mandatory for the defendant to give at least seven days’ notice to the occupiers before executing a warrant at residential premises, it being common ground that residential premises were included in the relevant warrants, and that no such notice was given. The claimants’ case is that the lack of written notice is fatal under the Act, whereas the defendant’s case is that notice is not required where a warrant is obtained from the court, as in the present case. This is a question of construction of the relevant provisions. The “notice” issue is the main point on which the argument proceeded at the hearing (the other points being described by the claimants as subsidiary).

(2) Whether the relevant warrant permitted the officers of the Environment Agency to enter the third claimant’s residential bungalow. The claimants say that it did not permit entry and search of the bungalow, whereas the defendant says that it did. This issue involves the construction of the scope of the warrant.

(3) Whether the warrants authorised the defendant (as the claimants put it) to search the premises and seize documents by way of a “seize and sift” search. The claimants submit that this was what happened, and that it was not permissible under the relevant statutory powers. The defendant says that there was no seizure of documents, and that once entry had been achieved under the authority of the warrants, the defendant’s powers as set out in s.108(4) Environment Act 1995 could be (and were) effected. As argued, this issue primarily involves the construction of the defendants’ statutory powers.

The facts

[3]The Environment Agency is a non-departmental public body of the Department for the Environment, Food and Rural Affairs (DEFRA). It was established under the Environment Act 1995. Its aims include the protection and improvement of the environment and to make it a better place for people and wildlife. As explained in its submissions, to do this it works closely with a wide range of partners including government, business, local authorities, other agencies, civil society groups and the communities it serves.

[4]Allensway Recycling Limited (the first claimant) is the operator of a permitted waste site in the form of a waste composting facility at Prospect House Farm in the village of Holme upon Spalding Moor in the East Riding of Yorkshire. The business was started in 1999, the company being incorporated in 2003, and is now a relatively substantial concern. Through an associated company, it also has a fleet of road tankers involved in the transportation of liquid waste, and tractors to move liquids and compost locally. Under the applicable legislation, the business is regulated by the Environment Agency pursuant to a permit.

[5]Mr Allen Williamson (the second claimant) is Managing Director of the company, and lives at Waterside Farm, which is in the same village about a mile or so from Prospect House Farm. Mr Martin Williamson (the third claimant) is Allen’s brother. He owns Prospect House Farm, which is a working farm, and lives with his family in a bungalow there. Though not an officer of the company, he is considered by the defendant to be closely connected to the business, and this has support in the evidence (which includes his business card). The claimants accept that he has a connection, but say that it is not close. For present purposes, nothing turns on this.

[6]The background to the present dispute is as follows. Allensway’s permit authorises the operation of a composting facility, a recycling facility and a biological treatment facility at Prospect House Farm. The business consists of the collection of waste, particularly food waste, from businesses which need to dispose of it, and which pay Allensway for its removal. Under the permit, the waste is turned into compost.

[7]As explained in the witness statement of Dr Paul Salter for the Environment Agency, there are two types of compost derived from such waste. Where the process meets certain strict criteria, it becomes compost which can be sold to end users. The compost is made by adding shredded wood, and it is important that the wood used is not contaminated with harmful chemicals, otherwise there is a risk that tainted compost is spread on agricultural land and the residues accumulate in soil used for food production.

[8]Where the processing of the waste is below the requisite standard, the resultant material is a compost-like waste. Where this is applied to land, there are various requirements imposed by the Environment Agency. In this case, the farmers pay nothing for the waste, and it is in effect a means of disposing of it. The evidence is that farmers may be paid for receiving the waste compost, and in one case Dr Salter asserts that a farmer charged Allensway £107,000 over a three month period. Since the charge to its customer for removing the waste was substantially more, he says that there would still be a large profit for Allensway.

[9]Dr Salter’s evidence is to the effect that there has been widespread abuse by the company, but I am not concerned in these proceedings to determine whether or not that is correct. In any case, it is not in dispute that the waste business is capable of generating substantial amounts of money. Nor is it in dispute that important public interest issues arise, for example in connection with the risk of contamination of the food chain where the rules are not observed.

[10]For some time, the North East region of the Environment Agency has been investigating this type of operation, and that investigation has included the business of Allensway. In that regard, officers of the Agency wanted to examine and investigate the operation of Allensway, and examine its records so that an accurate picture could be obtained. The Agency says that Mr Allen Williamson was aggressive and uncooperative in this respect. In a supplemental statement submitted by his solicitor on 17 April 2014, this is denied, and he says that he reasonably felt that he would need to seek advice from his solicitor prior to answering questions.

[11]The Environment Agency also alleges that it suspected that business documents were being removed from the company’s offices at the Prospect House Farm site and taken away to Mr Allen Williamson’s home address at Waterside Farm. As I explain later, this concern turned out to be justified, and the Agency says (in my view fairly) that in contrast to the position of Mr Martin Williamson, the claimants’ skeleton argument is silent about the position of Mr Allen Williamson. (According to the Agency, “It is this Claimant who deliberately removed business records from the commercial premises and secreted them in an outbuilding on his own farm. This was done in anticipation of entry by the Defendant and in order to frustrate the exercise of their lawful powers at the premises of the First Claimant”.)

[12]In any case, the Agency came to the view that cooperation would be refused, and that it should proceed under its statutory powers to enter the premises pursuant to warrants issued by the court. It considered that this would be the most efficient way of obtaining information, and avoid what it perceived as the risk of the destruction of evidence.

[13]On 10 May 2013, Mr Michael Robotham (who is an Environmental Crime Officer with the Agency) attended at Leeds Magistrates Court. The application was supported by an information which stated that the premises within the warrants included “residential property lived in by Martin Williamson” and the “home address of Mr Allen Williamson”. It explained the need for warrants by reference to the allegedly “confrontational” behaviour of Mr Williamson, and expressed the belief that if the Agency was to attempt a search without the use of a warrant, entry would be refused and the purpose of the search would be defeated, because paperwork would not be available, and evidence of unauthorised waste activities would be removed or destroyed.

[14]As requested, the Magistrates issued four warrants, of which two relate to a nearby property occupied by the Williamsons’ mother, are not relevant. The two relevant warrants are those relating to Prospect House Farm and Waterside Farm. Each was made under s.108 and Schedule 18 Environment Act 1995.

[15]The warrants were executed early on the morning of 17 May 2013. Officers of the Environment Agency and the police attended in some numbers. As well as the business premises at Prospect House Farm, the officers entered the bungalow where Mr Martin Williamson lives. There is a dispute between the parties as to what happened. Mr Williamson asserts that the officers behaved in a high handed and oppressive way, causing great distress to him and his family. The Agency asserts that such force as was used was used by the police in face of violence, and not by its own officers, and suggests that concerns were justified because Mr Williamson was known to have shotguns at the premises. This is not a dispute that can be resolved in these proceedings. (As I understand the evidence, although it was searched, no documentation was taken from the bungalow.)

[16]So far as Waterside Farm is concerned, the claimants accept that business records relating to the company had been taken there by Mr Allen Williamson. The documents were found in what the claimants call a “summer house” at the property. The Agency says that it was in the nature of a lean-to shed. It is not in dispute that it was an outbuilding. Documents in the nature of cheque book stubs etc. were taken from the house itself (banking records gave rise to a dispute which is no longer live).

[17]In the course of executing the warrants, a considerable amount of documentation was downloaded by the officers in electronic form, or taken in physical form, from the office premises. The documents were copied, and there has been a dispute as to whether all of the originals have been returned. This has I think now been largely resolved, but again that is not a matter for determination in these proceedings. The most important point to note is that claimants are aggrieved by the process by which the warrants were obtained and executed, and say that the surrounding publicity has seriously damaged their business. The Environment Agency’s investigation may involve criminal charges, but none have yet been brought.

The statutory provisions

[18]Section 108 of the Environment Act 1995 Act grants powers of entry to authorised persons to enter premises for the purpose (broadly) of ensuring compliance with pollution control legislation. Section 108(1) contains provision as to authorisation of officers as follows: "(1) A person who appears suitable to an enforcing authority may be authorised in writing by that authority to exercise, in accordance with the terms of the authorisation, any of the powers specified in subsection (4) below for the purpose—(a) of determining whether any provision of the pollution control enactments in the case of that authority is being, or has been, complied with;

(b) of exercising or performing one or more of the pollution control functions of that authority; or

[19]The powers which an authorised person may be authorised to exercise under subsection (1) are set out in s. 108(4), and are extensive. Some of them have to do with the taking of measurements, photographs and scientific and other evidential samples, and are not relevant to this case, and others have to do with taking statements, and requiring assistance. So far as relevant to this case, the powers are: “(a) to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which he has reason to believe it is necessary for him to enter; (b) on entering any premises by virtue of paragraph (a) above, to take with him—(i) any other person duly authorised by the enforcing authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and

(ii) any equipment or materials required for any purpose for which the power of entry is being exercised; ... (c) to make such examination and investigation as may in any circumstances be necessary; ... (k) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records- (i) which are required to be kept under the pollution control enactments for the enforcing authority under whose authorisation he acts, or (ii) which it is necessary for him to see for the purposes of an examination or investigation under paragraph (c) above, and to inspect and take copies of, or of any entry in, the records; ...” (i) any other person duly authorised by the enforcing authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and (ii) any equipment or materials required for any purpose for which the power of entry is being exercised; ...

(c) above,

[20]A wide definition of the term “records” appears in s. 124(1), by which “‘records’ without prejudice to the generality of the expression, includes computer records and any other records kept otherwise than in a document”.

[21]The powers in s. 108(4) set out above are in respect of entry to “premises”. The debate in this case has concerned s. 108(6), which makes reference to “premises used for residential purposes”. (It also applies to the situation where “heavy equipment” is to be taken on to any premises which are to be entered.) Section 108(6) provides that:

"(6) Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this section shall only be effected— (a) after the expiration of at least seven days' notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question, and (b) either— (i) with the consent of a person who is in occupation of those premises; or (ii) under the authority of a warrant by virtue of Schedule 18 to this Act." (i) with the consent of a person who is in occupation of those premises; or (ii) under the authority of a warrant by virtue of Schedule 18 to this Act."

[22]The essential issue for decision in this case is whether, as the claimants say, the word “and” in s. 108(6) means that seven days’ notice must be given in every case where entry is sought to residential premises. In the case of residential premises, is entry only to be effected after the expiration of at least seven days’ notice and either the occupier’s consent or a warrant (as the claimants say), or (as the defendant says) where the conditions for its grant are satisfied, is a warrant sufficient in itself?

[23]To continue with the statutory scheme, it is to be noted that s. 108(6) does not apply in an emergency. The term "emergency" is defined in s. 108(15) to mean a case in which it appears that there is an immediate risk of serious pollution or serious harm to human health, or that circumstances exist which are likely to endanger life or health, and that “immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy”. The parties are agreed that this does not arise in this case.

[24]Section 108(7) provides that except in an emergency, a warrant must be obtained where the use of force may be necessary to enter premises:

“(7) Except in an emergency, where an authorised person proposes to enter any premises and— (a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry, or (b) he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry, any entry on to those premises by virtue of this section shall only be effected under the authority of a warrant by virtue of Schedule 18 to this Act.”

[25]Section 108(14) is also important. It provides that, “Schedule 18 to this Act shall have effect with respect to the powers of entry and related powers which are conferred by this section”. Schedule 18 contains the other provisions that have been debated in this case. Paragraph 2 concerns the issue of warrants. It provides:

“(1) If it is shown to the satisfaction of a justice of the peace … on sworn information in writing— (a) that there are reasonable grounds for the exercise in relation to any premises of a relevant power; and (b) that one or more of the conditions specified in sub-paragraph (2) below is fulfilled in relation to those premises, the justice … may by warrant authorise an enforcing authority to designate a person who shall be authorised to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.”

[26]Paragraph 2(2) sets out the conditions for issuing a warrant, which are one or more of the following five conditions— “(a) that the exercise of the power in relation to the premises has been refused; (b) that such a refusal is reasonably apprehended; (c) that the premises are unoccupied; (d) that the occupier is temporarily absent from the premises and the case is one of urgency; or (e) that an application for admission to the premises would defeat the object of the proposed entry.”

[27]Both parties place reliance on paragraph 2(3), which specifically addresses s.108(6) (and therefore residential premises):

“(3) In a case where subsection (6) of section 108 of this Act applies, a justice of the peace … shall not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless he is also satisfied that the notice required by that subsection has been given and that the period of that notice has expired.”

[28]The defendant further points to paragraph 2(4) by which, “Every warrant under this Schedule shall continue in force until the purposes for which the warrant was issued have been fulfilled.”

[29]The claimants further point to s. 110 of the Act as creating criminal liability. It provides that it is an offence for a person intentionally to obstruct an authorised person in the exercise of his powers, and an offence (among other things) to fail to comply with any requirement imposed under s. 108 without reasonable excuse. This gives rise to liability on summary conviction to a fine (liability to imprisonment in respect of the provisions in s. 109 relating to imminent danger of serious pollution is not relevant in this case). The “notice” point General considerations

The “notice” point

[30]As I have said, the issue on the “notice” point is essentially whether, as the claimants say, the word “and” in s. 108(6) Environment Act 1995 means that seven days’ notice must be given in every case where entry is sought to residential premises. The claimants’ submission is straightforward. Parliament intended to give residential premises special protection. The terms of the statute are, they submit, unambiguous. Except in an emergency, where it is proposed to enter any premises used for residential purposes, any entry by virtue of s. 108 shall only be effected after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to be in occupation of the premises, and either with the consent of a person who is in occupation of the premises, or under the authority of a warrant by virtue of Schedule 18.

[31]Since this is what the words of the section at least on their face may be read as saying, and since no notice of the proposed entry was given, the argument so far as the homes of the Williamsons are concerned has inevitably focused on the contentions of the Environment Agency in support of entry based on the warrants alone. At the core of these contentions, has been the submission that a requirement of notice is inconsistent with Schedule 18 where it would defeat the object of the proposed entry.

[32]The Environment Agency says that the Act contemplates that in a situation in which the giving of notice might result in (e.g.) the destruction of documents, a warrant alone is sufficient. Thus, one of the conditions for the issue of a warrant set out in paragraph 2(2)(e) of Schedule 18 is that an application for admission to the premises would defeat the object of the proposed entry. This was the basis on which the warrants were obtained in this case. I have set out part of the information above, and the standard form submitted with to the court with the information had five boxes corresponding to the five conditions in paragraph 2(2). The box corresponding to (e) was ticked. It cannot have been intended, the Agency submits, that notice was required in such circumstances. It points out that the form also had boxes regarding “A 7-day notice of entry”, and the box indicating that notice had not been given was (it says appropriately) ticked.

[33]The claimants’ response is that Schedule 18 is of general application to premises of all kinds. The power to issue a warrant in the circumstances set out in paragraph 2(2)(e) is still relevant to, for example, an office or industrial premises. It is not inconsistent with the fact that Parliament granted additional protection for residential premises in Section 108(6). On this point, I agree with the claimants that the condition of Schedule 18 paragraph 2(2)(e) whereby a warrant may be issued where “an application for admission to the premises would defeat the object of the proposed entry” is not redundant on the claimants’ construction of the statute, since it applies with full force to non-residential premises, which are likely to be the subject of entry in most cases. On the other hand, this case shows that potentially records can easily be moved from an office to residential premises in circumstances where there may be a risk of destruction on the giving of notice. The question remains as to why notice should be required at all where a warrant is obtained on that ground.

[34]Having set out these general considerations, I return to the central question, namely as to the construction of s. 108(6). The Environment Agency suggests two routes by which its contention that a warrant alone suffices can comply with the words of that section. The first is that the word “and” as used in s. 108(6)(a) should be read as “or”, and the second is that the powers of entry granted by a warrant issued under Schedule 18 are not subject to s. 108(6). I begin by setting out the applicable principles.

Applicable principles

[35]The parties are in agreement that the correct approach to the construction of these provisions is to be found in the leading case of Inland Revenue Commissioners v Rossminster Ltd

[1980] AC 952

, which concerned search warrants obtained by the Inland Revenue in respect of suspected tax fraud. In the Court of Appeal, in quashing the warrants Lord Denning MR at p.970D referred to the constitutional authorities including the case of Entick v Carrington (1765) 2 Wils 275 outlawing general warrants.

[36]In allowing the Revenue’s appeal, the majority of the House of Lords treated the issue as one of construction. At p. 997E, Lord Wilberforce referred to the erosion of the “integrity and privacy of a man’s home, and of his place of business” by “a number of statutes passed by Parliament in the belief that this right of privacy ought in some cases to be over-ridden by the interest which the public has in preventing evasions of the law”. He said:

“The courts have the duty to supervise, I would say critically, even jealously, the legality of any purported exercise of these powers. They are the guardians of the citizens' right to privacy. But they must do this in the context of the times, i.e. of increasing Parliamentary intervention, and of the modern power of judicial review. In my respectful opinion appeals to 18th century precedents of arbitrary action by Secretaries of State and references to general warrants do nothing to throw light on the issue. Furthermore, while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation; to do so would be to weaken rather than to advance the democratic process.”

[37]Similarly, at p. 1008C Lord Diplock said:

“What has to be disclosed upon the face of the search warrant depends upon the true construction of the statute. The construing court ought, no doubt, to remind itself, if reminder should be necessary, that entering a man's house or office, searching it and seizing his goods against his will are tortious acts against which he is entitled to the protection of the court unless the acts can be justified either at common law or under some statutory authority. So if the statutory words relied upon as authorising the acts are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law. But judges in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.”

[38]I was not taken to any further authority, academic or in the case-law, because there was no dispute between the parties that the principles set out in these passages apply, and that in construing the rights of entry granted by the Environment Act 1995, the court should resolve any doubt in interpretation in the claimants’ favour, and that if the statutory words relied upon as authorising the acts in question are ambiguous or obscure, a construction should be placed upon them that is least restrictive of individual rights which would otherwise enjoy the protection of the common law.

[39]The claimants in this respect point out that

Article 8 ECHR

protects the privacy of the home. This is however subject to acts by a public authority “in accordance with the law”. In addressing this phrase, the ECHR has said that, “The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed” (Gillan v United Kingdom (2010) ECHR 4158/05 at paragraph 77, a case concerning stop and search powers).

[40]Important as these principles are, whereas the law requires that a drafting ambiguity is resolved in favour of the individual, it seems to me that different considerations may apply if it can be demonstrated that a drafting mistake has been made. If the Environment Agency is correct to submit (as it does) that a mistake has been made, the question is whether the law permits a correction. The leading authority in this regard is the decision of the House of Lords in Inco Europe Ltd v First Choice Distribution [2000] 1 W.L.R. 586, which concerned the availability of an appeal under s. 9 Arbitration Act 1996. At p 592, Lord Nicholls explained that he was “left in no doubt that, for once, the draftsman slipped up”, and that words had to be read in to the provision in question. He said:

“I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93–105. He comments, at p. 103: ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’” ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’”

[41]As to the conditions on which such correction can be made:

“This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation …”

[42]The claimants rely on a further passage at p. 592H where it is stated that, “Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler

[1977] Ch. 1

, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation”.

[43]The present case, the claimants submitted, involves penal legislation, and for that reason the court should not correct a mistake, even if the conditions are met. On this point, I agree with the Environment Agency. These provisions are only penal in the sense that intentional obstruction of authorised persons in the exercise of their powers is an offence (I have set out the provisions of s.110 Environment Act 1995 above). I do not consider that this should inhibit the court from making a correction if the strict requirements as laid down in the Inco case are otherwise met. R v C

[2008] 1 Cr. App. R. 22

, and R (SSHD) v Southwark Crown Court

[2013] EWHC 4366

is authority which supports that approach.

The parties’ contentions on the “reading-in” argument

[44]The argument advanced by the Environment Agency is that a proper reading of s. 108 would require the substitution of the word “and” with the word “or” after sub-section (a). It is submitted that there is a (minor) mistake in the wording of the statute. The intended purpose of the statute is clear – it is to make provisions for lawful entry onto property in certain situations so that the powers in the section can be exercised. By inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question. There can be certainty as to wording intended by Parliament and therefore what the substitution should be. The suggested amendment is minor – it is the substitution of one word. The section in question is not a penal section.

[45]The claimants do not accept that the Agency is right in its interpretation of the statutory purpose. They say that Parliament struck a balance between the need for enforcement and the private rights of citizens. There is nothing to suggest that the wording of s. 108(6) came about by way of inadvertence. It is not just the use of the conjunctive ‘and’ which makes it clear that notice is a separate pre-condition. The structure of the section also makes the intention clear. The substance of the alternative provision is not clear. The substitution of the word ‘or’ cannot be correct, because it would create in sub-paragraph (a) an unfettered power of forced entry which Parliament cannot have intended. The claimants submit that the court should not be tempted, in effect, to amend the legislation even if satisfied of the three prior Inco conditions. To do so would contravene

Article 8 ECHR

and also the common law principle identified in the Rossminster case. Reliance is placed on Haw v SSHD

[2005] EWHC 2061 (Admin)

, where the decision of the majority of the Divisional Court was based on the fact that the provision in question created a criminal offence.

[46]The claimants submit that there is an important distinction between the inspections by the Environment Agency and wider powers of search in respect of criminal activity. Under environmental legislation, operators are under a positive duty to keep relevant records such as Waste Transfer Notes. A rogue operator cannot escape the law by destroying such records to frustrate a search, because he will be in breach of the positive duty to produce the records.

[47]The claimant submits that it is not enough for the defendant to say that this statute exists for the purposes of investigation of crime or the protection of the environment. Those laudable purposes always have to be balanced against the rights and freedoms of the individual. The defendant’s case is that Parliament must have intended to give pre-eminence to the purpose of enforcement, making the rights of the individual citizen subsidiary, but there is no basis for that assertion.

The defendant’s alternative case

[48]The Environment Agency’s alternative case is as follows. Section 108(4)(a) provides a power of entry to designated persons. Schedule 18 is provided for by s.108 (14) which reads:

“Schedule 18 to this Act shall have effect with respect to the powers of entry and related powers which are conferred by this section”

. Schedule 18, paragraph 1 (“Interpretation”) provides:

“‘relevant power’ means a power conferred by section 108 of this Act, including a power exercisable by virtue of a warrant under this Schedule”

. Therefore (the Agency submits) “relevant power” is not only the express powers of entry in s.108 (4)(a) but also those provided under the Schedule itself (conferred by s.108). The Schedule therefore expressly provides for freestanding power(s) for designated persons. That power, provided by the Schedule, is a power of entry to premises according to the warrant issued under paragraph 2.

[49]The Agency submits that the restriction under Schedule 18 paragraph 2(3) for the issue of a warrant is confined to two particular circumstances only, according with the pre-conditions set out in Schedule 18 paragraph 2(2)(a) and (b). Where conditions (c), (d) or (e) apply then there is no restriction on the grant of a warrant whether or not premises are residential. The grant of a warrant in these circumstances provides a relevant power (the power of entry according to the warrant) and is separate from a power provided in s.108. Therefore officers – under the authority of the warrant lawfully issued – may lawfully enter all premises. As to the claimants’ case that s. 108(6) is a restriction on such execution, the Agency submits that s. 108(6) is only a requirement of the exercise of a power of entry under s.108 and in circumstances where s. 108(6) applies.

[50]The claimants deny that Schedule 18 provides for free standing powers. Schedule 18, they submit, is solely intended to provide supplemental provisions with respect to powers of entry under s.108. Section 108 is the source of the powers, and the form of the warrants makes clear that they were issued under s.108 and Schedule 18 Environment Act 1995, and not under the latter alone.

Discussion and conclusion

[51]In their submissions, the claimants drew attention to the debates on 14 February 1995 during the Committee Stage of the Environment Bill in the House of Lords. Assuming reference to this material is permissible, I did not find it of assistance in reaching a conclusion, since although the seven days’ notice period is referred to, there is no specific discussion of the position where there has been the grant of warrants. The debates referred to previous legislation, and the parties helpfully provided further notes in that regard after the end of the hearing. Again however, the result appears to me to be inconclusive. Whilst accepting the claimant’s submission that Parliament was concerned to strike a balance between the need for enforcement and the private rights of citizens, therefore, I put aside this additional material as an aid to interpretation.

[52]My conclusions on the parties’ contentions are as follows. First, I do not accept the claimant’s submission that the fact that there is a duty to keep records such as Waste Transfer Notes means that “a rogue operator cannot escape the law by destroying such records”. As Mr Andrew Marshall, counsel for the Environment Agency, pointed out, without a power to enter and inspect, if necessary without notice, it may be impossible to tell whether records have been destroyed.

[53]However, a powerful point made by the claimants, if correct, is that the effect of the Agency’s submission would be to give the Environment Agency a power to enter residential premises using force simply on the expiry of seven days’ notice. If the word “or” is substituted for “and”, s. 108(6)(a) becomes a standalone ground on which the Environment Agency would be entitled to exercise a forcible entry into a private home. A refusal, the claimants submit, would have no consequence whatsoever. An authorised person would not have to obtain a court warrant: “He would simply have to wait until the expiry of seven days and then he would be entitled, quite literally, to kick the door down so as to gain entry to the house”.

[54]However, I do not accept that this submission is correct. It ignores the effect of s. 108(7) of the 1995 Act which provides that (except in an emergency) a warrant must be obtained where the use of force may be necessary to enter premises. I have set this provision out above. Whilst it is correct, therefore, that the Agency is entitled to require entry on seven day’s notice, and enter with the consent of the occupier, if given, where force may be necessary a warrant is required.

[55]The claimants maintain that on their interpretation of the Act there is no “gap” in the Agency’s powers as regards situations where giving notice could result in the destruction of records. They submit that the remedy which the Environment Agency would have had, if appropriate, would have been to obtain (if they could) a warrant under s. 8 Police and Criminal Evidence Act 1984 (PACE), which would have given the householder all the statutory protections which apply to criminal investigations generally.

[56]Whilst I see the force of the submission that s. 8 of PACE would be available on the application of the police in a suitable case, and that the present case is an example of the officers of the Agency acting in conjunction with the police, I do not think that this is a complete answer to the Agency’s submission. The powers of entry under s. 108 Environment Act 1995 are distinct from those of s.8, and are in some respects narrower, and in some respects wider.

[57]In my view, the Agency is clearly right to say that the claimants’ construction has the result that the issue of the warrant is based on the fact that the giving of notice would defeat the object of the exercise, but notice nevertheless has to be given if entry under the warrant is to be effected. If correct, this is at least anomalous, and at most absurd.

[58]The parties say, and I agree, that paragraph 2(3) of Schedule 18 is important in this regard, because it deals expressly with s. 108(6) of the Act, in other words warrants issued in respect of residential premises. The provision is set out above. To take the claimants’ paraphrase, where s. 108(6) applies, paragraph 2(3) provides that the court shall not issue a warrant by virtue only of being satisfied that access has been refused (or that a refusal is reasonably apprehended), unless it is also satisfied that the seven day notice period has expired. The claimants say that this supports their case because it shows that the grant of a warrant is not inconsistent with the giving of notice. The Agency says that the provision is redundant on the claimants’ construction, since on their case seven days’ notice is always required.

[59]My view of this issue is as follows. Paragraph 2(3) in terms applies in the case of the first two conditions set out in paragraph 2(2) for the issue of a warrant. These are(a) that the exercise of the relevant power under s. 108 in relation to the premises has been refused, or

(b) that such a refusal is reasonably apprehended. Paragraph 2(3) stipulates that in such a case, the court has to be satisfied that the seven days’ notice has been given and has expired. This, as the Agency points out, distinguishes such a case from (c) and (d), which have to do with the situation in which the premises are unoccupied, and (e) which has to do with the situation in which a request to enter would defeat the object of the proposed entry.

[60]I agree with the Agency that as a matter of construction, Schedule 18 does not envisage that seven days’ notice will be required where situations (c), (d) and (e) are concerned. As has been submitted, the drafters clearly contemplated that where the ground for the warrant is that the giving of notice would be problematic because the premises appear to be unoccupied or the occupier is absent, or where the giving of notice would defeat the object of the proposed entry, there is no requirement for notice. Where on the other hand the warrant is sought on the basis that access to the premises has been refused or such a refusal is reasonably apprehended (in other words under (a) or (b)) the court has to be satisfied that seven day’ notice has been given and expired.

[61]The claimants point out that s. 123(5) of the Act has provisions to facilitate the giving of notice in particular situations (for example by leaving it conspicuously affixed to a building), but I do not think that this vitiates the above considerations. In particular, (d) applies where the occupier is temporarily absent and (albeit not an emergency in which case s. 108(6) is disapplied by its opening words) the case is one of urgency. The intention must be to enable entry under a warrant without the delay that seven days’ notice would entail. Fixing the notice to the building in lieu of actual notice to the absent occupier and leaving it there for seven days before action could be taken would frustrate the purpose of the warrant.

[62]Despite the cogency of the arguments of Mr Andrew Thomas QC, counsel for the claimants, I do not think that the claimants’ construction of the provisions can be correct. It is clear, in my view, that in the case of residential premises, the purpose of s. 108(6) read with Schedule 18 is to require seven days’ notice to be given where a warrant is to be issued under conditions (a) and (b) but not under conditions (c), (d) and (e). It will be recalled that these powers of entry have to do with pollution control. It would be absurd to require seven days’ notice where a warrant is issued on the basis that the occupier is temporarily absent from the premises and the case is one of urgency (condition (d)). It would be equally absurd to require seven days’ notice to be given where condition (e) for the issue of a warrant applies, namely that an application for admission to the premises would defeat the object of the proposed entry.

[63]Whilst I agree with much of its substance, I am not however persuaded by the Agency’s alternative argument so far as it depends on treating Schedule 18 as a standalone provision, and seeks to draw a distinction between the grant of warrants under the Schedule, and rights of entry under s. 108. I agree with the claimants that the provisions are clearly intended to be read together, with the Schedule setting out the conditions for the grant of the warrant referred to in s.108(6)(b)(ii) so far as residential premises are concerned.

[64]If the claimants are right that s. 108(6) is clear and unambiguous in requiring such notice, I would conclude that this is a case of “legislative incoherence” (see R v C, ibid, [24], Sir Igor Judge P) and a case of inadvertence. However, I do not think that this is the case. As a matter of construction, and taking the provisions of s. 108(6) and Schedule 18 Environment Act 1995 together, I do not consider that consider that the word “and” at the end of s. 108(6)(a) requires notice to be given in the cases set out in (b). In the case of residential premises, except in an emergency, any entry by virtue of the section can only be effected after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises. The effect of Schedule 18, however, is that such notice is not required where entry is effected under the authority of a warrant by virtue of Schedule 18 issued under conditions (c), (d) and (e) of paragraph 2(2) of the Schedule.

[65]I do not agree with the claimants that this involves the reconstruction of the statutory provisions. The above gives a sensible construction to the provisions read as a whole, and in my respectful view this reading can be reached as a matter of construction. In the alternative, I would conclude that the court can be “abundantly sure” of the three matters set out in the passage from the Inco case set out above, and the provision interpreted by reading words into the section. As to the substance of the provision Parliament would have made had the error in the Bill been noticed (explained in Inco to be a matter of crucial importance), as it was put in Pollen Estate Trustee Co Ltd v Revenue and Customs Commissioners [2013] 1 W.L.R. 3785 [49] (Lewison LJ), “We are not parliamentary draftsmen; and it is sufficient that we can be confident of the gist or substance of the alteration, rather than its precise language”. In my view, the gist or substance is as set out above.

Whether the warrant permitted entry to the third claimant’s residential bungalow

[66]The second issue (which the claimants have described as subsidiary to the central issue) is whether the relevant warrant permitted the officers of the Environment Agency to enter the third claimant’s residential bungalow. The claimants say that it did not permit entry and search of the bungalow, whereas the defendant says that the warrant was properly executed. This issue involves the construction of the scope of the warrant.

[67]The claimants’ case is that that there are two distinct properties at Prospect House Farm. There is Prospect House Farm itself, which comprises office premises. Next door is a residential bungalow occupied by Mr Martin Williamson, his wife and two children. The buildings are separate and distinct, and clearly marked by signs. Local officers of the Environment Agency were frequent visitors to the premises and aware of the fact that the bungalow was a private residence. The warrant issued by the Leeds Magistrates Court authorised the search of “Prospect House Farm, Outbuildings and Vehicles”. It made no reference to the bungalow. Officers of the Environment Agency purported to use the warrant as justification for a search of the bungalow, and did so in a particularly intrusive and disruptive manner by attending early in the morning and effecting a forced entry. They interpreted the warrant as giving them lawful authority to carry out a room-by-room search of the entire bungalow without the permission of Mr and Mrs Williamson. The manner of execution caused considerable distress to their family.

[68]The Environment Agency’s case is that the bungalow has no separate name or description, and physically falls within the area permitted to be used for waste processing purposes. The information provided to the justices made it clear that Prospect House Farm included the residential premises of the third claimant and his family, and the justices were informed that residential properties were included. The Agency believes the third claimant to be closely involved in Allensway’s business, and has produced a business card in his name as “Director”. He was on the company’s website as one of the “key personnel”, described as “Managing Director Recycling Plant”, though mention of him has since been removed from the website. Other evidence in relied on, but I need not set it out.

[69]As I have said, this point depends on the construction of the warrant. The claimants refer to authority in the context of search and seize warrants that “while it will always be difficult to say precisely what documentation may be recovered …, the warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it” (Energy Financing Team Ltd v Director of the Serious Fraud Office

[2005] EWHC (Admin) 1626

at [24] sub-para (5). This was in the context of a request for assistance by a foreign prosecuting authority. I would accept that a similar principle applies to identify premises within the warrant.

[70]In the present case, the information in support of the application for the warrants referred to Prospect House, and “also residential property lived in by Martin Williamson, wife”. The warrant as issued was a warrant to enter and inspect “Prospect House Farm, land, outbuildings & vehicles. Howden Road Holme on Spalding Moor”. There was, in my view, no lack of clarity in the terms of the warrant, which clearly extended to the bungalow. I do not accept the claimants’ case in this respect.

The “seize and sift search” point

[71]The third issue raised by the claimants is whether the warrants authorised the defendant (as the claimants put it) to search the premises and seize documents by way of a “seize and sift” search. The claimants submit that this was what happened, and that it was not permissible under the relevant statutory powers. The defendant says that there was no seizure of documents, and that once entry had been achieved under the authority of the warrants, the defendant’s powers as set out in s.108(4) Environment Act 1995 could be (and were) effected.

[72]The claimants also described this issue as subsidiary to the central issue as to notice. It was explained that the issue was maintained as a matter of principle (there no longer being live issues as to the return of original or copy documents taken by the Environment Agency). As argued, this issue primarily involves the construction of the defendants’ statutory powers, and the parties’ factual cases are significantly different.

[73]At the outset, I set out an important passage cited by the claimants from the decision of Underhill J in R (on the application of C) v Chief Constable of A

[2006] EWHC 2352 (Admin)

at [9]:

“It is common ground that the execution of a search warrant is a serious interference with the liberty of the subject, and the statutory conditions for the issue must be conscientiously complied with. Mr. Jones referred me to the observation by Lord Widgery CJ in Williams v. Summerfield [1972] 2 QB 512 (at p. 518) that: Generations of justices have, or I would hope have, been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case. That observation was repeated with approval by Bingham J. in R v. Crown Court at Lewes, ex p. Hill (1991) 93 Cr App R 60 (at p. 66).”

Generations of justices have, or I would hope have, been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject, and a step which would only be taken after the most mature careful consideration of all the facts of the case.

[74]That case concerned a search warrant issued under s. 8 of PACE. In the present case, both parties are agreed that warrants issued under s. 108 and Schedule 18 Environment Act 1995 are not search warrants. However, the principle that the statutory conditions for the issue of a warrant must be conscientiously complied with applies just as much to s. 108 warrants as to warrants under s. 8 PACE.

[75]As previously noted, the powers of entry under s. 108 are distinct from those of s.8, and are in some respects narrower, and in some respects wider. The particular powers that are relevant in this case are those in s. 108(4)(c) and (k). These are set out above, and consist of power to make such examination and investigation as may in any circumstances be necessary, and, so far as records are concerned, power to require the production of records (or extracts from records) which are required to be kept under pollution control enactments, or which it is necessary for the authorised person to see for the purposes of an examination or investigation, and to inspect and take copies of, or of any entry in, the records.

[76]Whilst these are not powers of search, they are clearly very wide powers. This is shown by the case of Cantabrica Coach Holdings Ltd v Vehicle Inspectorate

[2001] 1 WLR 2288

, which concerned a similar statutory provision by which, “An officer may … require any person to produce, and permit him to inspect and copy… (bb) any record sheet …”. It was held by the House of Lords that where the documents that an authorised officer wished to inspect and copy were so numerous or of such character that proper inspection and copying could only be done with equipment not immediately available at the operator’s premises, the officer was entitled to remove them from the premises for such period as was reasonably required for their inspection and copying. The claimants accept that the same principle applies in the case of the analogous powers in the Environment Act 1995, and no issue arises in relation to the present facts in this regard.

[77]The claimants submit that the officers treated the warrants as search warrants. To quote the claimants’ skeleton argument, rather than “require production” of records as contemplated by the act, the officers went through the premises room-by-room searching for documents and seizing them where the saw fit. Further, the claimants contend that the officers treated the warrants as permitting a “seize and sift” exercise. They seized records (in particular computer records) without detailed review and took them away for review at their own premises. The claimants acknowledge the evidence of the officers that they did exercise some review of documents before taking them away, and say that it is difficult in the circumstances for the claimants to go behind such assertion. However, they submit that in the absence of any adequate statement of the purposes of inspection in the warrant it is impossible to judge the lawfulness of the Agency’s actions.

[78]The Agency submits that it has provided clear evidence about the discriminating nature of the inspection. It submits that documents were not seized at all, but were temporarily uplifted for copying, and then returned, which was a lawful exercise (see Cantabrica, ibid). Further, documents were not uplifted arbitrarily. Only those documents it was considered necessary to copy were uplifted, and it was impossible at the time reasonably to analyse all documents. Difficulty was encountered accessing electronic information, but once gained, only matters that appeared to have a bearing on the business activities of Allensway and were pertinent to the enquiries being undertaken were copied. The Agency also asserts that waste transfer notes at the premises covered the period of April and May 2013, but that earlier notes could not be found, and despite formal notice to produce, have still not been produced. These matters are set out in some detail in the defendant’s skeleton argument of 1 December 2013.

[79]In expressing my conclusion, I note that there was relatively little argument at the hearing on this issue. Nevertheless, the claimants made it clear in oral submissions that a declaration is sought to the effect that the search and seizure of material from Mr Martin Williamson’s bungalow and from Waterside Farm was unlawful in that it was outside the powers given by s. 108, which does not give a power of seizure, and should not be operated in that manner. From the claimants’ oral submissions, I did not understand the declaration sought to extend to the office premises of Allensway at Prospect House. I add that the Environment Agency says that no documents were removed from the bungalow.

[80]So far as the standard form of the warrants are concerned, in a box under the heading “Items/articles sought and found/seized”, is a handwritten entry saying, “Electronic and printed documents to assist enquiries into Allensway Recycling Limited”. The claimants say that this wording sets out what was authorised on entry. (The form of the warrant suggests that it was an “endorsement to be made by officer executing warrant”, but this may refer to the box beneath, where the handwritten entry says, “Paper records, electronic records & waste samples seized or recorded”.) As a matter of principle, I do not think that the wording of the warrant was inadequate, and in any case, I am inclined to agree with the Agency that generally speaking the examination of the premises is confined by the terms of the statutory powers, subject to what the court may have ordered in issuing the warrant.

[81]It is to be noted that there is no challenge to the validity of the warrants themselves. However, despite the submissions of the Environment Agency, in my view there are clear indications that its officers understood that they had the power of entry “in order to search for evidence where criminal offences are believed to have been committed”. This is stated in the information in support of the application for the application for the issue of warrants. Insofar as the officers considered that these were search warrants, they were mistaken. It is accepted on behalf of the Environment Agency that the warrants were entry warrants and not search warrants. Wide though the powers in s. 108(4) are, it is important that the limits are observed, and insofar as the officers went beyond them, then in my view they were acting unlawfully.

[82]As to the width of the powers, it is common ground that the powers in s. 108(4)(c) and (k) (which are the powers particularly relevant to this case) are wide, as is apparent when the provisions are read against the analysis in the Cantabrica case (see above). Ultimately, however, the question whether the officers made such examination and investigation as necessary, and required the production of records, as they were empowered to do, or went beyond their powers, is one of fact. The claimants’ case is set out in the statement of grounds by their solicitor. The Agency’s case is set out in witness statements from ten of its officers (not including Dr Salter). (The supplemental statement of the claimants’ solicitor of 10 April 2014 deals mainly with other issues.)

[83]In deciding as to the appropriate course, I have taken into account the fact that in the Rossminster case (ibid), in refusing to quash warrants and grant the declarations sought, the House of Lords referred to the fact that there was a conflict of evidence as showing that this course would be inappropriate: see p.1000F and p.1014G. I consider that similar considerations arise in this case. I do not regard the claimants’ case that the officers went beyond their statutory powers as made out on the material before the court. However, as was indicated in Rossminster, it is possible that this may remain an issue in other proceedings, in which case it can be determined on such investigation of the facts as is appropriate.

Outcome

[84]For the above reasons, the claimants’ claim for judicial review does not succeed. I am grateful to the parties for their assistance, and any consequential matters arising from this judgment can be dealt with subsequently.