Rated defence solicitor who defends environmental law prosecutions
Jim Meyer is a rated defence solicitor who represents clients facing enforcement action by the Environment Agency; this includes providing advice and assistance to:
Those on the receiving end of one of the Environment Agency’s compulsory powers under section 108 of the Environment Protection Act 1995;
Those facing a potential civil sanction;
Those facing prosecution in the criminal courts.
In relation to criminal proceedings, if there is an adverse finding, the stakes are high:
A private individual may face a potential sentence of imprisonment;
Companies and unincorporated organisations face significant fines running to thousands or millions of pounds depending on turnover.
It is now more important than ever to keep abreast of key changes to the law so as to minimise the risk of non-compliance. If you are unsure of your obligations, Jim can provide you with practical advice to ensure that your business is compliant with environmental legislation.
Jim is a leading criminal defence solicitor who can help you defend an alleged environmental criminal offence
Jim has over 29 years' of experience as a criminal litigator and regulatory enforcement lawyer; whilst some businesses have an obvious potential to impact upon the environment, many others who do not fall into this category find themselves facing enforcement action. This may be following an environmental incident, such as water pollution, or due to non-compliance with complex waste or permitting regulations. Whatever the situation you find yourself in, Jim can help; instruct him and access his experience and expertise to help you defend a prosecution for:
Offences under section 33 of the Environmental Protection Act 1990:
Depositing or knowingly causing or knowingly permitting to be deposited controlled waste in or on land unless in accordance with the terms of a waste management licence (this includes the offence of so-called “fly-tipping”);
Treating, keeping or disposing of controlled waste on land or by means of any mobile plant unless in accordance with the terms of a waste management licence;
Treating, keeping or disposing of controlled waste that could cause environmental pollution or harm human health.
Operating a regulated facility or causing or knowingly permitting a water discharge activity or groundwater activity except under and to the extent authorised by an environmental permit (regulations 12 and 38 of the Environmental Permitting (England and Wales) Regulations 2020);
Transporting controlled waste without registering (section 1 of the Control of Pollution (Amendment) Act 1989);
Breaching a duty of care (section 34 of the Environmental Protection Act 1990);
Breaching an abatement note (section 80 of the Environmental Protection Act 1990);
Discharging matter into a public sewer which interferes with the free flow of wastewater (section 111 of the Water Industry Act 1991);
Offences under the Transfrontier Shipment of Waste Regulations 2007;
It is a fact that a small number of insurance-funded law firms dominate the provision of legal services to companies and unincorporated organisations facing environmental protection enforcement action. Jim does not work for such a firm but many of his clients are either recommended to him by such firms because of a potential conflict of interest or because a company is seeking the advice of a specialist lawyer who is completely independent of its insurer.
Jim is not a commercial lawyer and his firm does not undertake any commercial work; he is unique in that he has a huge amount of experience in this area of law but has no commercial arm which vies for an introduction to a potential new client. That is why other lawyers feel confident in recommending him; they know he has the experience and knowledge that will see the client right, but they also know that by referring the client to Jim they are not risking their future relationship.
Providing support to potential witnesses when they speak to the Environment Agency and in advance of them giving evidence
Because of Jim’s 29 years' experience as a defence specialist, he is often asked to advise and provide support to potential witnesses when the Environment Agency indicates it wishes to speak to them. Jim provides the reassurance that the individual’s rights, including the right not to incriminate oneself, are protected and that the witness provides the best evidence (s)he can; in advance of any meeting Jim will do his best to ensure that the format for the questioning is understood, the topics for discussion are fully appreciated and that the witness is properly prepared for these.
Jim is also able to provide familiarisation training to witnesses who are to be called to give evidence during criminal proceedings; using his 29 years‘ experience as a contentious litigator, Jim will make sure the witness has a complete understanding of the theory, practice and procedure of giving evidence and what is expected of them. This includes orientating the witness with the layout of the legal court, the sequence of events when the witness will be giving evidence and the different responsibilities of the various people at the hearing.
Relevant case law in relation to environmental law prosecutions
CA (Crim Div) (Green LJ, Julian Knowles J, Judge Wendy Joseph QC)
6 November 2020
Those who committed environmental offences should not think that multiple aspects of their wrongdoing, however grave, would receive no punishment simply because they all fell within one category of harm under the sentencing guidelines. It was not the Sentencing Council's intention to so limit or constrain the duty of the judge in assessing the features of the case before them. Further, the guidelines were not subject to the Environment Agency's Common Incident Classification Scheme, which was not an instrument designed to address sentencing by the criminal courts.
CA (Crim Div) (Davis LJ, Sweeney J, Judge Katz QC)
21 August 2020
When making a confiscation order against the owners of a waste management site following their conviction for operating a regulated facility without an environmental permit, contrary to the Environmental Permitting (England and Wales) Regulations 2010 Pt 2 (1) reg.12(1)(a) and reg.38(1)(a), a recorder had not erred in including in the figure for benefit from criminal conduct an asserted pecuniary advantage from the owners' avoidance of paying the costs of removal of waste from the site. The recorder had, however, erred when determining the available amount in including one owner's share in a jointly-owned property without determining the validity of an asserted equitable charge over the property.
CA (Crim Div) (Lindblom LJ, Hilliard J, Judge Flewitt QC)
6 May 2020
On a true construction of the Environmental Permitting (England and Wales) Regulations 2010 reg.5, the consequence of any breach of the exemption requirements under Sch.2 para.3(1) was that a waste treatment company's operation was no longer an "exempt waste operation" and had ceased, on the breach, to be an "exempt facility". At that point it could only be a "regulated facility", for which no permit had been granted.
The High Court did not have jurisdiction to stay proceedings against a company in liquidation in the Crown Court for environmental offences. The court's power under the Insolvency Act 1986 s.126(1) did not extend to intervening in proceedings before another court to impose a stay. Even if it had had the power to stay the criminal proceedings it would have declined to do so, because the public interest in the prosecution of serious environmental offences outweighed the disadvantage to the company's creditors of the cost of defending the proceedings and payment of a fine if convicted.
CA (Crim Div) (Gross LJ, William Davis J, Garnham J)
26 July 2019
A fine of £2 million imposed on a water company after it pleaded guilty to an environmental offence by recklessly causing a discharge of untreated sewage into a brook was neither wrong in principle nor manifestly excessive.
Two individuals' convictions for intentionally obstructing an authorised person in the exercise of his powers or duties to prevent pollution were quashed on the basis that there had been no finding by the judge that they had crossed the line between merely reporting their employer's position and obstructing the exercise of the officers' powers by implementing that position.
A magistrates' court had been entitled to find that there had been a continuing "waste operation" for the purposes of the Environmental Permitting (England and Wales) Regulations 2010 and Directive 2008/98, consisting of the continued storage of waste following service of an enforcement notice, and that the offence under reg.12(1)(a) and reg.38(1)(b) of knowingly permitting such a regulated activity did not require proof that the defendant had taken a positive act, only that they had known that such an operation was taking place.
CA (Crim Div) (Lloyd Jones LJ, Gilbart J, Judge Cooke QC)
24 May 2017
In criminal proceedings for failure to comply with an environmental enforcement notice, the court had to consider the meaning of the term "recovery" in relation to the recovery of waste stored on a site where the words used in the defendant's environmental permit were inconsistent with those used in the enforcement notice.
CA (Crim Div) (Gross LJ, Stuart-Smith J, Judge Stockdale QC)
24 February 2017
The court considered the respective regulatory functions of the local authority and the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2010. Duality of regulation was not to be encouraged, and it determined that the Agency, and not the local authority, had jurisdiction over a company carrying on a massive operation recovering and processing multiple types of construction waste.
A determinate sentence of 12 months comprising six months in custody and six months on licence was appropriate for an offender who had pleaded guilty to four offences under the Waste and Contaminated Land (Northern Ireland) Order 1997 after he had unlawfully deposited, kept and treated controlled waste on his land.
A judge had correctly defined "commercial waste" and directed the jury as to the meaning of that phrase, so that the jury had been entitled to convict an offender for failing to transfer commercial waste to an authorised waste carrier and for failing to comply with the duty to furnish waste documents.
QBD (Goss J)
6 November 2015
A district judge had been right to order forfeiture under the Proceeds of Crime Act 2002 of cash seized during a search of the home of a claimant arrested on suspicion of money laundering, as he had been operating a business subject to the Environmental Permitting (England and Wales) Regulations 2010 but had no permit or exemption. Any misconduct by police during the operation was irrelevant, since the Act did not make forfeiture depend on the lawfulness of the seizure proceedings.
CA (Crim Div) (Davis LJ, Patterson J, Judge Aubrey QC)
9 October 2015
The court upheld a £30,000 fine and a confiscation order that included the income, not just the profit, accrued by a company that had pleaded guilty to depositing and disposing of waste without the relevant environmental and waste management permits.
CA (Crim Div) (Lord Thomas LCJ, Mitting J, Lewis J)
3 June 2015
The Court of Appeal gave guidance on the fines to be imposed on very large commercial organisations for environmental offences.
DC (Beatson LJ, Blake J)
11 March 2015
A district judge had not erred in finding that there had been non-compliance with the Police and Criminal Evidence Act 1984 Code B para.6.9 where local authority officers and RSPCA officers had entered premises under a warrant issued under the Environmental Protection Act 1990 to establish a nuisance and had used the information from the search to prosecute dog owners under the Animal Welfare Act 2006.
An appeal against a conviction for depositing controlled waste contrary to the Environmental Protection Act 1990 s.33(1)(a) was allowed as the trial judge had given insufficient directions as to whether the deposited material constituted waste.
A search warrant issued at the instigation of the Environment Agency against an individual and companies suspected of the illegal deposit of waste and money laundering was unlawful, as it failed to comply with the Police and Criminal Evidence Act 1984 s.8 and s.15; further, the search based on the warrant was unlawful, as the warrant failed to identify so far as practicable the articles being sought, in breach of s.15(6)(b).
For a defendant to be guilty of "knowingly permitting" the operation of a regulated facility on his land without an environmental permit contrary to the Environmental Permitting (England and Wales) Regulations 2007 reg.38(1)(a) the prosecution only had to establish that he knew waste operations were taking place; that he had allowed, or failed to prevent, them; and that they were not being performed in accordance with an environmental permit. The words "knowingly permit" did not relate to the existence or scope of conditions attached to the permit and there was no defence based on the exercise of due diligence.
CA (Crim Div) (Lord Thomas LCJ, Mittings J, Thirlwall J)
17 January 2014
When dismissing appeals by two companies regarding the level of fines imposed for environmental protection and safety offences, the court considered the appropriate approach to the fixing of fines and the level of fine to be imposed.
CA (Crim Div) (Pitchford LJ, MacDuff J, Jeremy Baker J)
25 July 2013
A sentence of six months' imprisonment, suspended for two years, imposed following two convictions for offences against environmental protection legislation was neither wrong in principle nor manifestly excessive. While many such offences might warrant a non-custodial penalty, the defendant's history of similar offences and poor attitude towards compliance with the law justified the recorder's conclusion that only a custodial sentence would suffice.
CA (Crim Div) (Aikens LJ, Cranston J, Judge Pert QC)
23 July 2013
A confiscation order in the sum of £156,500 which had been imposed on the appellant, who had pleaded guilty to offences concerning the unlawful deposit of waste material at an unlicensed landfill site, was not disproportionate so as to amount to a breach of the appellant's rights under the European Convention on Human Rights 1950 Protocol 1 art.1; further, the judge had been correct to assess the "benefit" obtained by the appellant by reference to the landfill tax, licence fees and other costs that he would have had to pay had the operation been conducted lawfully.
The unintended escape of sewage from a sewerage undertaker's network into surrounding properties amounted to a "deposit" within the Environmental Protection Act 1990 s.33(1)(a). A conviction under the first limb of that provision did not depend on a deliberate act because the provision imposed strict liability.
A district judge had erred in ordering an individual who had accused the local authority of causing a statutory noise nuisance to pay the local authority's costs totalling £18,000 because she had instigated and pursued an unnecessary prosecution. Her case was not so hopeless that it should never have been brought, and therefore it was unreasonable to order her to pay the local authority's costs.
The court reduced the amount of prosecution costs that a company chairman convicted of depositing silt in Falmouth harbour without a licence had been ordered to pay. In accordance with the principle of proportionality, the costs order was reduced from £44,159 to £25,000, but a £25,000 fine was not interfered with.
In the absence of an offender disclosing his financial means, it was appropriate for a court to draw a reasonable inference that he could pay a prosecution costs order from the information that was available and to make an order only against him when a co-offender had also pleaded guilty at trial to the unauthorised deposit of controlled waste contrary to the Environmental Protection Act 1990.
CA (Crim Div) (Hughes LJ, Cranston J, Hickinbottom J)
19 October 2011
The export of waste, for the purposes of Regulation 1013/2006 art.36, was a process commencing once the waste was destined for a non-OECD country at its point of origin, and continuing until the waste reached its ultimate destination in the foreign country. Any participant involved in that process was therefore liable to prosecution under the Transfrontier Shipment of Waste Regulations 2007 reg.23.
Where the subject of an abatement notice served at a property where he was no longer present was prosecuted due to his subsequent failure to respond, it was unreasonable for the court to deprive him of the opportunity to respond to that criminal prosecution.
CA (Crim Div) (Toulson LJ, Davis LJ, Judge Bevan QC)
27 July 2011
A judge had misstated the law on the meaning of waste and when it might cease to be termed as such, when directing a jury in relation to waste disposal offences under the Environmental Protection Act 1990 s.33(1) .
CA (Crim Div) (Pitchford LJ, Treacy J, Judge William Davis QC)
27 May 2011
Convictions under the Environmental Protection Act 1990 s.33(1)(a) and (b) were safe as the judge had not misdirected the jury in respect of the Waste Management Licensing Regulations 1994 reg.17(4) and had not intervened in the trial in an excessive and improper manner.
SC (Lord Phillips (President), Lord Hope (Deputy President), Lord Rodger JSC, Lord Walker JSC, Lady Hale JSC, Lord Brown JSC, Lord Judge JSC, Lord Kerr JSC, Lord Clarke JSC)
11 May 2011
The entitlement to compensation in the Criminal Justice Act 1988 s.133 was not restricted to those who had established beyond a reasonable doubt that they were innocent of the crime for which they had been convicted. A new fact would show that a miscarriage of justice had occurred when it so undermined the evidence against the defendant that no conviction could possibly be based upon it.
In determining whether material was "waste" for the purposes of offences of unauthorised or harmful disposal and deposit of waste under the Environmental Protection Act 1990 s.33, a judge had erred in concentrating entirely on the defendants' intentions to put the material to immediate use. The question of whether it was waste should have been left to the jury.
A decision of a magistrates' court to commit a defendant to the Crown Court under the Proceeds of Crime Act 2002 s.70 with a view to a confiscation order being made was appropriate despite the long delay by the prosecutor in making the committal application.
A magistrates' court had been wrong to find that a prosecution under the Environmental Protection Act 1990 s.34 was an abuse of process. Although the prosecuting local authority's waste management enforcement policy allowed for courses of action other than prosecution, it was for it to decide when to prosecute, and it was only when an abuse was plainly shown that a court should intervene.
The prosecution's late decision to not rely on scientific evidence did not prejudice the defendant as the case against him had never been put on that basis alone, and so he was actually facing a case on a reduced, rather than a different, basis.
The magistrates' court had been correct to find that a company was not guilty of waste disposal offences under the Environmental Protection Act 1990 s.75, as the material that it had moved from one site to another for a customer was not controlled waste because at the time it was delivered the customer intended to use it immediately for another purpose.
A conviction under the Environmental Protection Act 1990 s.34(1)(b) and s.34(6) was unsafe where the charge was the second of two counts in an indictment and had been based on facts resulting from the rejection of the prosecution's main count. There was a danger that in calling evidence to defeat the first count, a case could have been created for the prosecution on the second count.
CA (Crim Div) (Lord Judge LCJ, Swift J, Maddison J)
6 November 2008
Fourteen months' imprisonment had been an appropriate sentence for an offender who had pleaded guilty to conspiracy to deposit controlled waste unlawfully even where the waste did not give rise to a real danger to health or the environment.
CA (Crim Div) (Maurice Kay LJ, Tugendhat J, Judge Chapman)
18 July 2007
A fine of £400,000 imposed on a large cement manufacturer for failure to comply with a condition contained in an Environment Agency permit relating to checking and maintaining plant and equipment, with the result that that a kiln door worked loose on its hinges and allowed cement dust to escape into the atmosphere, was quashed as manifestly excessive. A fine of £50,000 was substituted.
For the purposes of the offence of failing to take reasonable measures to prevent the escape of controlled waste, contrary to the Environmental Protection Act 1990 s.34(1)(b) , the prosecution did not have to establish that an "escape" had taken place.
A judge had correctly acquitted contractors of causing or knowingly permitting polluting matter to enter controlled waters contrary to the Water Resources Act 1991 s.85(1) where it had not been established that the contractors had responsibility for the pollution beyond a responsibility to carry out specific measures that they had been instructed to carry out.
A street extended to the face of a building so that in every practical sense the outer face of a display window used to amplify sound was in the street, creating an offence of operating a loudspeaker in a street for the purpose of advertising a business.
The claimant's application for permission to apply for judicial review had been premature as its proposed challenge to the Environment Agency's decision, to prosecute the claimants for alleged breaches concerning its waste management, had to be determined after investigation of the facts and in the context of the evidence. It would not be appropriate to attempt, by judicial review, on incomplete facts, to intervene in the progress of the prosecution.
A Magistrates' Court had erred in holding that there was no case for the respondent to answer in respect of an alleged statutory nuisance and breach of an abatement notice in circumstances where there was clear evidence from environmental health officers that the nuisance had been committed.
The Environment Agency had no power to vary the terms of the exemption to the prohibition on the deposit of controlled waste without a waste management licence contained in Sch.3 Waste Management Licensing Regulations 1994 SI 1994/1056.
On an allegation of an offence contrary to s.33(1)(a) Environmental Protection Act 1990, the burden lay on the prosecution to prove not only that controlled waste of any type had been transported but also that the controlled waste was of a specific type, such as waste contaminated with more than 10 per cent calcium hydroxide.
Where the water authority had committed four breaches of s.70 Water Industry Act 1991 a total fine of #119,000 was manifestly excessive and was quashed and substituted with a total fine of #80,000. The Court of Appeal outlined the considerations a court should have in mind when imposing financial penalties for such offences.
CA (Civ Div) (Pill LJ, Chadwick LJ, Buxton LJ)
8 December 2000
Where the clear words of a statute stated what was lawful there could be no application of any general principle that a person should not gain from his own criminal conduct and accordingly, in the present case, notwithstanding the commission of a criminal offence under s.33 Environmental Protection Act 1990, a local planning authority was entitled to grant a certificate of lawful established use under s.191 Town and Country Planning Act 1990 where the time limit for bringing enforcement proceedings had expired and the Act provided that in those circumstances the operation was rendered lawful. * Leave to appeal to the House of Lords refused.
HL (Lord Slynn of Hadley, Lord Steyn, Lord Hoffmann, Lord Clyde, Lord Millett)
29 November 2000
The layout of a house could not, without more, fall within the statutory words "state of the premises" in s.79(1)(a) Environmental Protection Act 1990.
DC (Rose LJ, Rafferty J)
25 July 2000
The provisions of s.160 Evironmental Protection Act 1990 were permissive and not mandatory. Service of an abatement notice pursuant to s.82 of the Act could be affected upon the company or its secretary at its registered office or upon its secretary or clerk at its principal office. The magistrates erred in finding that an abatement had not been properly served.
DC (Laws LJ, Silber J)
8 May 2000
An abatement notice served by the council on the respondent was not invalid for failing to specify the "works" and "steps" to be taken since the council had not chosen to include in the notice a requirement for works to be done or steps to be taken.
DC (Lord Bingham of Cornhill LCJ, Astill J)
11 April 2000
An abatement notice served by a local authority did not breach the rules of natural justice but merely suffered from superfluous words. The local authority successfully appealed against the dismissal of an information that notice had been breached.
CA (Crim Div) (Swinton Thomas LJ, Butterfield J, Rafferty J)
10 April 2000
The fact that a person who had been granted a waste disposal licence had exceeded the permitted disposal on a landfill site or was in breach of other conditions of the licence did not mean that there was no longer a licence in force and the licensee was still liable to landfill tax.
DC (Kennedy LJ, Butterfield J)
31 March 2000
A smoke nuisance under s.79(b) Environmental Protection Act 1990, could include the smell of smoke.
CA (Crim Div) (Lord Bingham of Cornhill LCJ, Alliott J, Newman J)
16 March 2000
Fine against Milford Haven Port Authority in respect of Sea Empress pollution reduced on appeal.
HL (Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon, Lord Hobhouse of Woodborough, Lord Slynn of Hadley)
17 February 2000
A person who had unlawfully deposited waste without a licence could not refuse to provide information about his activities, which had been requested by a local waste regulation authority pursuant to s.71(2) Environmental Protection Act 1990, on the ground of self-incrimination. This conclusion was not affected by Art.6 European Convention on Human Rights, which did not apply to extra-judicial enquiries.
CA (Crim Div) (Evans LJ, Scott Baker J, Goldring J)
16 February 2000
In an appeal against sentences of eight months' imprisonment for offences of knowingly causing controlled waste to be deposited without a licence, in view of the fact that the appellants' actions had resulted only in an unsightly display of old lorry tyres and had not had an adverse effect on the environment, the sentences would be regarded as wrong in principle and would be quashed. No other order was made in view of the fact that prison sentences had been served.
CA (Crim Div) (Pill LJ, Judge Rant QC)
27 November 1998
Before imposing financial penalties, it was important for the court to carry out full means enquiries.