Rated defence solicitor who defends environmental law prosecutions

A protestor who had climbed into a tree which was due to be chopped down to make way for the HS2 rail network had been wrongly convicted of an offence under the Trade Union and Labour Relations (Consolidation) Act 1992 Pt V s.241(1)(c). The judge had been wrong to conclude that the felling of the tree was an act that the contractors had a legal right to do; HS2 did not provide any kind of immunity from prosecution.

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.

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.

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 power to request information under the Environment Act 1995 s.108(4)(j) could not be exercised independently from the power to enter premises.

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.

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.

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.

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.

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.

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.

The Court of Appeal gave guidance on the fines to be imposed on very large commercial organisations for environmental offences.

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.

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.

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.

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.

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.

The court gave additional guidance concerning the cross-examination of child complainants in trials concerning sexual offences.

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) .

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.

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.

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.

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.

The word "escape" in Environmental Protection Act 1990 s.34 was not apt to include the deliberate deposit of waste.

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.

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.

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.

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.

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.

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.

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.

A smoke nuisance under s.79(b) Environmental Protection Act 1990, could include the smell of smoke.

Fine against Milford Haven Port Authority in respect of Sea Empress pollution reduced on appeal.

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.

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.

Before imposing financial penalties, it was important for the court to carry out full means enquiries.