Biffa Waste Services Ltd [2019] EWCA Crim 20
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Biffa Waste Services Ltd v R [2019] EWCA Crim 20 concerned an appeal against a preparatory hearing ruling at Wood Green Crown Court relating to the interpretation of Article 36(1) of Regulation (EC) No 1013/2006, the Waste Shipment Regulation. Lord Justice Davis, Mr Justice Jay, and His Honour Judge Dean QC sitting as a Judge of the Court of Appeal dismissed the appeal.
The appellant company operated a large waste recycling facility in Edmonton, North London. It faced two counts under Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007. In May 2015, two consignments totalling 175 tonnes had been shipped from the facility, destined for recovery facilities in China. One consignment comprised two containers, the other comprised five containers. The transportation documentation described the contents as “mixed waste paper”, which if accurate would have been lawful as category B3020 waste under the Regulation. The containers formed part of a larger consignment of 448 containers in total. Environment Agency officials intercepted and examined them at Felixstowe. The prosecution alleged that examination revealed significant contamination including soiled nappies and sanitary wear, sealed bags of excrement, clothing, food packaging, and plastic bottles. This meant, the prosecution contended, that the consignments were in reality household waste classified as Y46 under Annex V, Part 3 to the Regulation, which was prohibited from export to non-OECD Decision countries such as China under Article 36(1)(b). The defendant’s case was that rigorous mechanical and manual sorting processes at Edmonton had achieved a high degree of separation, and any remaining contamination was residual and minimal.
The preparatory hearing concerned what the prosecution was required to prove. It was common ground that waste originally collected from households did not necessarily retain that classification after processing. The judge held that categories B3020 and Y46 were mutually exclusive: waste could not be both at the point of export. The central issue before His Honour Judge Auerbach was whether, in addition to proving that the consignments comprised Y46 household waste, the prosecution was also required to prove that the waste was contaminated by other materials to an extent which prevented recovery in an environmentally sound manner, as stated in paragraph 3 of the Introductory Notes to Annex V (described by the parties as the “chapeau”). The defence argued that paragraph 3(b) of the chapeau formed a fundamental part of what the prosecution had to prove in every such case, and could not be disaggregated from the test.
Judge Auerbach rejected that contention. He found that the prosecution had made clear throughout that its case rested solely on Article 36(1)(b), namely that the waste was listed in Annex V, Part 3 as Y46. The prosecution had not relied on other sub-paragraphs of Article 36(1) such as Article 36(1)(g), which concerned wastes believed unlikely to be managed in an environmentally sound manner. The prosecution had not sought to argue that the consignments were essentially B3020 waste paper contaminated by other materials so as to prevent environmentally sound recovery. On that basis, if the prosecution proved to the criminal standard that the waste was Y46 household waste, the offence was made out. If the jury concluded the waste was or might have been B3020 paper waste, the chapeau could only potentially apply if contamination met the chapeau test, which was not the prosecution case. The chapeau was therefore irrelevant for the purposes of this prosecution.
The appellant advanced two principal grounds. Ground 2 challenged the judge’s treatment of footnote 2 to Y46, which stated “Unless appropriately classified under a single entry in Annex III”. The appellant argued that the status and effect of the footnote required detailed examination. The Court of Appeal disposed of this ground swiftly. It was common ground on appeal, even if not below, that the judge had been right to find B3020 and Y46 mutually exclusive. Debate about whether the footnote was descriptive or of legal effect was therefore arid. Lord Justice Davis held that the footnote was in any event intended to be explanatory and confirmatory of the position arising under the structure of the Regulation itself. Ground 2 was thus of no substance or relevance.
The substantive ground concerned the role of the chapeau. The appellant contended that paragraph 3(b) was an essential element of the offence in every case. The Court of Appeal rejected that submission. Lord Justice Davis, giving the judgment of the court, accepted for present purposes that paragraph 3 of the chapeau might in a particular case come into play and be the proper subject of evidence and directions to the jury. The chapeau was undoubtedly part of Annex V, and paragraph 3 could be said to be of substantive, even if clarificatory, effect. However, the court agreed with the judge that this was not such a case. The prosecution had never sought to contend that the consignments were essentially B3020 waste paper but nevertheless contaminated by other materials not collected from households (for example, corrosive fluids or dangerous metals) so as to prevent environmentally sound recovery. The prosecution relied solely on Article 36(1)(b) and solely on Y46 as the relevant waste listed in Annex V, Part 3. The question for the jury was thus simply whether that classification was proved. If Y46 was proved, the waste could not be B3020 waste paper, which was on the permitted green list. If Y46 was proved, that fell within Article 36(1)(b), and that was the end of the matter. If the prosecution failed to prove Y46, the defendant was entitled to acquittal. The court held that this approach accorded implicitly with the earlier decision in I, N and B [2011] EWCA Crim 3237, accorded with the policy and objectives of the Regulation, and involved no unfairness to the defendant. Indeed, the appellant’s approach would tend to undermine the objective of Article 36(1)(b) in providing a specific list of prohibited wastes and the objective of providing, by Annex V, Part 1, List B, a list of permitted green wastes.
The court emphasised that whether there was sufficient household waste contamination for the consignments properly to be classified as Y46 household waste, rather than the B3020 mixed paper designation given in the export documentation, was a matter of fact and degree for the jury. To introduce the subject-matter of the chapeau into a case of this particular kind, given the nature of the prosecution undertaken, would be to introduce an irrelevant and complicating distraction. Lord Justice Davis noted that Mr Travers QC for the appellant had struggled when pressed in argument to formulate appropriate jury directions. The court considered the judge had been right to reject the argument.
The court took the opportunity to refer to the decision in KV and others [2011] EWCA Crim 2342, which set out a full exposition of the underpinning objectives and scheme of the Regulation, and confirmed that the Regulation was to be read purposively or teleologically. Reference was also made to the decision in I, N and B, in which Pill LJ had given valuable guidance on the required approach. That case had rejected an argument that the Regulation was so uncertain and imprecise that prosecution constituted an abuse of process, holding instead that a very high standard was required of operators in the field and that the trial judge could give sufficient directions to enable a jury to determine whether a particular consignment was properly described as household waste by applying that test to the facts.
In short, the Court of Appeal held that where the prosecution relies solely on Article 36(1)(b) by proving that waste is listed in Annex V, Part 3 as Y46 household waste, it is not additionally required to prove that contamination meets the test in paragraph 3 of the Introductory Notes to Annex V, and whether waste has been sufficiently sorted to escape classification as household waste is a matter of fact and degree for the jury.
BV v Minister van V olksh uisingv esting [1993] Env LR 328
KV & Ors [2011] EWCA Crim 2342
Ideal Waste Paper Company Ltd [2011] EWCA Crim 3237