Jagger, R. v

On 13^th March 2014 in the Crown Court at Bradford the appellant was convicted of depositing controlled waste without a permit, contrary to section 33(1)(a) of the Environmental Protection Act 1990. On 4^th April 2014 he was fined £1,000 and ordered to pay £3,850 prosecution costs, as well as a £15 victim surcharge.

The case is concerned with the depositing of materials on a piece of land at Raglan Street, Halifax between 28^th and 30^th September 2010. Demolition work had taken place there since August 2010. Such work had been contracted out by the landowner. Others were prosecuted in relation to a different part of the site, but the case relating to the appellant is concerned with part of the land known as Area Three. Area Three was represented by a void created when a floor area of a pre-existing building was removed. The Crown's case was that the appellant was responsible for importing and depositing material into that void, that it was waste material, and that at the relevant time there was no permit in force for the dumping of waste.

The appellant acknowledged depositing material in the void at the time concerned. In interview he said that he had tipped some 30 to 40 loads there. He accepted that the material which he had brought to the site and put into the void had originated from a building site at Bright Street. The material had been excavated in the course of housing development and discarded from there. He had collected it and delivered it to Raglan Street. The Crown's case was that the appellant had deposited controlled waste and that he had failed to carry out proper checks as to the existence of any exemption or authority to permit him to deposit it.

The defence case raised a number of issues: first, that the material did not constitute controlled waste at the time of the deposit; secondly, that he had acted with due diligence; and thirdly, that in any event his actions had been carried out in an emergency where there was a need to deposit materials to shore up the public street adjacent to the hole and thus avoid danger to health. The appellant was supported in his contention that an emergency had arisen by evidence from an expert, Dr Hill, and by evidence given by others in the case.

The depositing of waste material in this country is subject to regulation, and offences are created by section 33 of the Environmental Protection Act 1990. Where relevant, that section provides:

Section 75 of the Act provides:

Article 3(1) of Directive 2008/98/EC of the European Parliament and of the Council on Waste (the Waste Directive) defines "waste" as any substance or object which the holder discards or intends or is required to discard. Article 3(6) provides that "waste holder" means the waste producer or the natural or legal person who is in possession of the waste.

Section 75 of the Act, which provides a definition of "waste", does not provide a comprehensive and self-contained definition since it makes reference to the Waste Directive. That is potentially important in the context of this case because an issue arises as to the circumstances in which waste may alter its character and cease to be waste. There is domestic case law which indicates that the objectives of the 1990 Act and of the Waste Directive need to be considered. Before we consider those matters further, it is necessary to return to the circumstances of the present case.

The issue which arises in this appeal is whether the judge's direction in summing up as to the meaning of "waste" was defective. It is submitted that the definition of "waste" and "controlled waste" given by the judge was too restrictive; that it paid insufficient regard to the Waste Directive, and guidance relating to it, including guidance from DEFRA, the Development Industry Code of Practice (CL:AIRE), and case law. Allied to that is the submission that the judge's direction meant that the jury could not apply the relevant meaning to the facts of this case and that the judge's direction as to the test to be applied in considering whether the material had the status of waste at the time of its deposit was defective. It is submitted that there was a failure to put into context question 3 in the Route to Verdict document provided to the jury.

At the close of the evidence, Mr Pojur raised the issue of the categorisation of material as waste in circumstances where potential re-use of the material might take it out of the category of waste provided that re-use was consistent with the aims and objectives of the 1990 Act and the Waste Directive. Counsel made particular reference to the decision of this court in R v W, C and C [2010] EWCA Crim 927, and in particular paragraph 34 of the judgment of McCombe J (as he then was).

The judge was clearly anxious not to over-complicate the jury's task by introducing matters from the European Directive or putting substantial materials deriving from that before the jury. He said that each case of this sort had to be dealt with on a case-by-case basis and he was unconvinced that the evidence required that the jury should receive anything like the level of direction suggested as to what amounted to waste. He considered the point to be very straightforward on the facts. Clearly we shall have to consider whether what he proceeded to do was sufficient, or whether it failed sufficiently to give clear guidance on relevant issues so as to render the verdict unsafe.

When he summed up, the judge correctly told the jury that there was no permit in force authorising the deposit and that the appellant accepted that he had deposited material at the site. He correctly identified the three issues of (i) whether what was deposited was controlled waste, (ii) due diligence, and (iii) the emergency defence. He told the jury that the burden of proving that the material deposited was controlled waste lay with the prosecution.

After those directions, the judge turned to the definition of "waste" and "controlled waste" as part of a Route to Verdict document provided to the jury. It provides as follows:

The judge then commented that applying that definition to the evidence in this case the Crown said that the material deposited was controlled waste. That deposited by the appellant came from another site. He continued:

He said no more on the topic but subsequently turned to a consideration of the due diligence and emergency defences which had been raised.

Having done that, the judge provided the jury with a Route to Verdict. He did not read through it but instructed the jury to consider it during their deliberations. He made further passing reference to the definition of waste already cited but said no more than that he hoped it would assist the jury in determining the issues outlined in the Route to Verdict.

Insofar as that document concerns the appellant, where relevant, it was in the following terms:

The starting point in support of the appellant's submission that the summing-up did not direct the jury sufficiently on the issues surrounding the question of waste in this case is the decision of this court in R v W, C and C. That too was a case where the appellant had moved excavated soil from one site to another without a relevant licence being in force. There the defendants' case was that the material was to be used for creating an area of hard standing for the extension of farm facilities and the construction of a new farm building on top of it. The defendants had successfully submitted at the close of the Crown's case that the Crown had failed to establish that the material deposited was waste or controlled waste. The judge had accepted those submissions and the Crown had appealed under section 58 of the Criminal Justice Act 2003 against that terminating ruling. In holding that the defence submission of no case to answer was wrongly accepted, this court made an analysis of relevant case law and materials which it is helpful to recite.

Whilst accepting the observation at paragraph 34 that excavated soil which has to be discarded by the then holder is capable of being waste within the Act and, in any individual case ordinarily will be, the appellant submitted that the judge did not give the jury any sufficient direction as to whether an event had occurred which had changed the status of the material from waste. That was a question of fact for the jury. Re-use might change the status of waste but only if consistent with the aims and objectives of the Act and the Directive. Because each case is fact-specific, a direction to the jury tailored to the facts of the instant case was needed. It had not been given in this case, despite the invitations made by defence counsel.

The approach of the court in R v W, C and C was followed in R v Evan Jones and Another [2011] EWCA Crim 3294. At paragraph 5 of R v Evan Jones, Toulson LJ (as he then was) observed that the statute was silent about the circumstances in which waste may alter its character and cease to be waste. The court cited R v W, C and C with approval, stating at paragraph 11:

Article (1) of the Directive shows those objectives as follows:

Attention was drawn to the European Commission Guidelines on the Interpretation of the Waste Directive. In particular at paragraph 1.1.2.1 concerning the term "discard", it observes that the alternative by which a holder "discards, intends or is required to discard" are not always easy to distinguish. A holder's intention is to be inferred from his actions in the light of the aims of the Waste Directive. An example is given of an item thrown in a dustbin as being discarded, and is thus waste. On the other hand

A little later the Guidelines state that it must be noted that no single factor or indicator is conclusive of what is waste and it is necessary to consider all the circumstances. Similar observations appear in the Development Industry Code of Practice (CL:AIRE). It seems to us that the Guidelines are consistent with the approach of this court.

It was submitted that the following factors should have been drawn to the jury's attention and weighed by them in considering whether what the appellant had deposited should be regarded as waste.

It is submitted that those factors identified were relevant to an assessment of whether what was being deposited by the appellant was waste at that stage. His case that what he was depositing was excavated stone and soil from works preparatory to a housing development which was to be used at Raglan Street for the emergency purpose of filling the void there which had created a serious risk of the wall adjacent to Raglan Street collapsing with resultant risk to the public. Whilst there were in evidence counter-indications to that case advanced by the appellant, the matter was for the assessment of the jury with appropriate assistance on the issues from the judge in the summing-up. The judge, it was submitted, failed to provide the necessary assistance; in the result the conviction was unsafe.

On behalf of the respondent it was submitted that paragraphs 3 and 4 of the definition of waste were accurate and reflected paragraph 34 of R v W, C and C. Whilst the four factors contended for by the appellant were not specifically mentioned in the summing-up, they had been referred to by counsel for the appellant in cross-examination of the Environment Agency Officer and covered in counsel's closing speech. (Counsel for the respondent did not submit that the factors, which can be derived from the Directive and guidance, and which seem to us to be consistent with the approach in R v W, C and C, were not relevant in this case). The respondent went on to submit that the judge had been rightly concerned not to over-complicate the case by references to the Directive or guidance given in relation to it. It was further submitted that in any event the state of the evidence was such that the conviction can be regarded as safe.

We accept that there was a genuine issue for the jury to resolve as to whether what was deposited by the appellant constituted waste at the time of its deposit. Although the material constituted waste at the time it left the original site, it was accepted on all sides that its status was capable of change. The essential question for us is whether the judge did sufficient in his summing-up to put that issue before the jury.

We accept that the judge was entirely correct in his approach to try to avoid over-complication of matters for the jury. His view that to provide extracts from the Waste Directive or guidance upon it would be helpful is entirely understandable. On the other hand, if he was not to provide such materials, the question arises as to whether he should at least have referred to the effect of them in order to be consistent with the approach taken in R v W, C and C.

If there was such a requirement on the judge in the circumstances of this case, we do not think that it is an answer that defence counsel had referred to any relevant considerations in cross-examination or in his closing speech. Those do not have the same status in the eyes of a jury as the directions of a judge whom the jury will understand is the sole arbiter of the law and whose legal directions are provided to the jury as definitive. The submissions of counsel in this context have the disadvantage of appearing partisan unless they have the imprimatur of the judge.

Considering the written definition of waste provided to the jury, we note that at paragraph 3 the judge stated that material remained controlled waste unless something happened to alter that. The judge did not then go on to assist the jury in any way by reference to the facts of this case by indicating to them factors which might have a bearing on the question of whether such altercation had taken place. We also note that at paragraph 4 the judge referred to the possibility that material was not controlled waste if it had been acceptably recovered or disposed of. Again there was no reference to what that might mean in the context of this case. It seems to us that it was far from self-evident what that phrase meant.

We note that at page 102 of the summing-up, in summarising the appellant's evidence , the judge quoted him as follows:

That evidence potentially provided a factual basis for the defence submissions on this point. This came at a late stage of the summing-up significantly after the judge's legal directions, and indeed on the day after those directions had been given. In reciting the appellant's evidence, the judge did not refer back to his legal directions in any way or draw attention as to how this evidence might fit in with the directions given as to the definition of waste. Equally, when he summarised the evidence, the judge did not specifically identify factors which might have supported the prosecution's case that the material remained waste. We note, however, that the thrust of the definition provided in paragraph 3 was that material would ordinarily remain waste unless something happened to alter that.

We do not underestimate the task of the judge in this case. He had other defendants to deal with and a number of other issues to cover in relation to them, as well as those pertaining to the appellant's case. As has previously been observed, this is not a straightforward area of the law, and the question of what is waste at any given time is not clear-cut. This perhaps underlines the need for a judge to give the jury sufficient directions on what is a fact-sensitive decision. We have come to the conclusion that there is considerable force in the argument that as a result of his understandable desire to keep the case simple for the jury, the judge oversimplified his directions to the detriment of the appellant's case. The effect of this was unduly to restrict the jury's consideration of valid arguments available to the appellant on the question of waste. The result was that he was deprived of fair consideration by the jury of a significant issue. As the Route to Verdict shows, if the jury could not answer the third question in the affirmative they would have to find the appellant not guilty.

We have considered the Crown's fall-back position which is that the conviction can nonetheless be regarded as safe because of the nature of the evidence available to contradict the appellant's case. We do not intend to lengthen this judgment by an analysis of the respective sides of that argument. We deal with that point by stating that we consider that there was sufficient in the points raised by the appellant to mean that, had they been more fully deployed before the jury in the summing-up, there was a real possibility that the jury might have found differently. In those circumstances the Crown's alternative arguments must fail.

Our conclusion is that this conviction was unsafe and that it must be quashed.

Mr Ageros, is it the intention of the respondent to seek a retrial?