Clive Payne [2019] EWCA Crim 1350

R v Clive Payne [2019] EWCA Crim 1350 was a renewed application for leave to appeal against conviction refused by the Court of Appeal (Criminal Division) composed of Lord Justice Simon, Mr Justice Lewis and Mr Justice Picken, with judgment given by Mr Justice Picken. The applicant also sought an extension of time of 34 days.

On 17 January 2018 in the Crown Court at Newport, Mr Payne was convicted after trial of two counts of operating a regulated facility without a permit. Count 1 related to the period from 20 January 2015 until 31 December 2016, contrary to regulations 38(1)(a) and 39(1) of the Environmental Permitting (England and Wales) Regulations 2010. Count 2 covered the period from 1 January 2017 until 2 February 2017, contrary to regulations 38(1)(a) and 39(1) of the Environmental Permitting (England and Wales) Regulations 2016. He was sentenced concurrently on each count to 20 weeks’ imprisonment, suspended for two years, with a curfew requirement.

Mr Payne owned land at Senghenydd Minerals Site in Senghenydd, Caerphilly. The prosecution case was that he operated a regulated activity at that site, namely a facility for the treatment and disposal of waste, including soils, bricks, tiles, tarmac, ceramics and other demolition wastes, without an Environmental Permit. It was never in dispute that Mr Payne had no Environmental Permit at any relevant time. However, certain waste operations are exempt from requiring an Environmental Permit, and such exemptions must be registered and last for a limited period. At trial it was not disputed that Mr Payne registered every exemption available to him. The issue was whether the exemptions he held permitted him to carry on the activities that he did. The prosecution contended that they did not; Mr Payne contended that they did.

The Route to Verdict provided to the jury identified that the first issue was whether Mr Payne was treating or processing waste in some way. There was then an issue as to whether his activities came within Exemption U1 concerned with “use of waste in construction”. This required the jury to decide whether Mr Payne was using or storing the waste for use in construction; if so, whether the construction operation was for the purposes of recovering or re-using the waste; if so, whether the waste used was suitable for the purposes of the operation; if so, whether no more waste was used than was necessary to carry on the operation; and if so, whether the waste used was “relevant waste”, with the jury having to decide whether a small amount of one type of relevant waste mixed with another type of relevant waste and other than permitted in the table constituted mixed waste. The Route to Verdict and Legal Directions were agreed as between the prosecution and the applicant. The judge ensured that Mr Payne, who was representing himself, had sufficient time to consider these documents and that he was content with their contents.

On appeal Mr Payne raised a ground that had not been suggested at trial, namely that the prosecution should have served a “statutory notice” or “compliance notice” before proceeding. He also contended that Natural Resources Body for Wales had no power to de-register any registered exempt activity based on an allegation which had not first been the subject of a statutory notice. Neither of these issues was referenced in the Route to Verdict and Legal Directions.

The court held that it was not now open to Mr Payne to raise such matters in circumstances where they had not been raised at trial. The court was also clear that there was no merit in the points which had been raised. The offences charged had as their focus Mr Payne’s activities. Those activities either contravened regulation 12(1)(a) and so amounted to an offence under regulation 38(1)(a), or they did not. Whether there was a contravention required it to be ascertained whether Mr Payne was operating a regulated facility without an Environmental Permit and without an Exemption being applicable. This was not a question which turned on the service of any notice. The issue was what Mr Payne was doing and whether he was entitled to do it. The offences charged did not require any particular notice to be served and then not complied with.

The court rejected the associated objection that Natural Resources Body for Wales had no power to de-register any registered exempt activity without first serving a statutory notice. This point lacked merit for the further reason that the issue in the case was not whether Mr Payne previously had the benefit of a registered Exemption only to have that Exemption withdrawn, but whether there was ever an Exemption which applied to what he was doing at the site at any material time. This was a matter overlooked by Mr Payne in his letter dated 24 June 2019 sent after the single judge’s refusal of leave, and in further submissions submitted in the days before the hearing. The court added for completeness that Mr Payne could not complain that he was unaware that Natural Resources Body for Wales were planning on removing the Exemption, since it was not in dispute at trial that he was told that this was what would happen in a letter dated 22 August 2016. The Legal Directions under the heading “De-Registration” referred accurately to an operator, occupier or other person registered needing to be informed of de-registration. That had indeed happened in advance of de-registration, and nowhere in the Route to Verdict was an issue identified in this regard.

In short, the renewed application for leave to appeal against conviction and the application for an extension of time were both refused, the proposed grounds having been neither raised at trial nor possessing any merit.