Express Ltd. (t/a Express Dairies Distribution) v Environment Agency

LADY JUSTICE HALE: This is an appeal by way of case stated from the decision of the West Mercia Justices sitting at Evesham on 21st June 2002 convicting the appellant of an offence under section 85(1) and 85(6) of the Water Resources Act 1991, for which they were fined £5,000 and ordered to pay over £6,000 in costs. The offence in question is defined by section 85(1) as follows:

It is to be noted, as Lord Wilberforce said in Alphacell v Woodward [1972] AC 824, 834, dealing with the predecessor to this section, that this:

It is also to be noted that there are other offences defined by subsections (2), (3) (4) of section 85 which require there to be some sort of discharge causing the pollution.

A defence is provided by section 89(1), so far as is relevant to these proceedings:

The facts as found by the Justices were as follows, and I quote from paragraph 2 of the stated case:

A number of questions were stated by the Justices for the opinion of the High Court, but, as things have developed, only certain of those questions are relevant to the issues in the appeal as now presented. These are:

The appellants accept, for the purpose of this appeal only, that milk is capable of being polluting matter. They also accept that Bafflefield Brook is controlled waters. They make two submissions. The first is that there was a break in the chain of causation so that the offence was not committed at all. The secondly is that the defence under section 89(1) applied. In support of this second submission, Mr Gordon, QC, who appears for the appellants here, prays in aid the Human Rights Act in that to deny such a defence would constitute a discrimination under Article 14 in the enjoyment of the right to a fair trial under Article 6. He therefore argues that, under section 3 of the Human Rights Act, that consideration should be deployed as an aid to the construction of section 89.

Mr Gordon relies upon the speech of Lord Hoffman in Environment Agency v Empress Car Company (Abertillery) Limited [1999] 2 AC 22. This case concerned a diesel tank in a yard which drained into a river. A pipe from the tank led to a drum which was outside the spillage bund round the tank. That tap governing the outlet from the tank had no lock. The tap was opened by a person unknown. There was no finding in the court below as to whether it had been done by an employee or a stranger, although there was clearly some reason to think that it might have been done by a stranger. The entire contents of the tank ran into the drum, overflowed into the yard and passed down the drain into the river.

The appeal against conviction was dismissed by the Divisional Court, points of law were certified by the Divisional Court for the House of Lords. The leading speech was given by Lord Hoffman, with whom Lords Browne-Wilkinson, Lloyd and Nolan agreed. He began by emphasising the distinction between acts and omissions drawn by Parliament: causing an entry must require that the defendant had done something. He then considered the meaning of the concept of causation and summarised the outcome of that discussion in five propositions at pages 35F to 36C:

Mr Gordon relies upon the evidence given by Mr Irvine, who is employed as the Technical Director for the appellants and has been involved with vehicles for a great many years. He described the tanker and he described the damage to the tanker. In words of the justices' case:

The Justices found that this, "although an unusual sequence of events is not extraordinary and so the chain of causation is not broken".

Mr Gordon argues that, in reaching that conclusion, the Justices focussed only on the beginning of the chain, the tyre blow out and the damage to the spray suppression system, but not on the continuation of that chain, the detaching of the under run rail and the shearing of the delivery pipe, and he adds to that the coincidence, as he calls it, that the drains into which the milk ran had no catch pits. He argues that the only fair inference from Mr Irvine's evidence was that the event was indeed extraordinary and it was an error of law to rely on only part of the evidence given by Mr Irvine.

Against that, Mr Roger Smith, QC, for the respondent argues that Mr Irvine did not say that the events were extraordinary and, even if he had said so, the Justices were not bound to accept Mr Irvine's classification. It was, as Lord Hoffman emphasises in point 5 of his guidance in the Empress case, a matter of "fact and degree to which the Justices [had to] apply their common sense and knowledge of what happens in the area". So it was not an error of law.

It is worth noting the context in which Lord Hoffman used the term "extraordinary". It was in the context of it being "a necessary condition of the actual escape which happened that there be the act of a third party or a natural event", and he went on to say that Justices should consider whether that act or event should be regarded as a normal fact of life or something extraordinary. He was, therefore, addressing what in other contexts might be described as an ultroneous cause of an eventual outcome.

In this particular case, everything that happened flowed from the operation of this tanker on that road. That was obviously something which the appellants had done. Any vehicle's tyre may blow out. Blow outs, though thankfully rare, are certainly capable of being regarded as events in the ordinary run of things. Everything else that led to the escape of the milk from the tanker was part of the operation of that tanker on the road, and the entry of the escaped milk into the brook was finally caused by the driver pulling to the side of the road in that particular place.

In my judgment, in those circumstances, it is quite impossible to say that the chain of causation from start to finish was broken and that the principle adumbrated by Lord Hoffman in the Empress case might operate to defeat that. This is a much stronger case than the Empress case, where there was indeed doubt about whether it was some act of a third party which had led to the escape of the liquid.

The argument, as presented in the skeleton argument, was that the "discharge" occurred in an emergency where there was a danger to life or health. The damage to the tanker constituted an emergency and the driver's response to that emergency caused the "discharge". It would have been life threatening to remain on the motorway with such an escape of milk, and hence the defence should apply.

Mr Gordon accepts that the European Convention on Human Rights allows for offences of strict liability without any intent or negligence: see Salabiaku v France (1988) 13 EHRR 379, paragraph 27. But to do so, the provision must pursue a legitimate aim, be rationally connected to and proportionate to that aim, and he cites the well known case of de Freitas v Permanent Secretary of Ministry of Agriculture Fisheries, Lands and Housing [1999] 1 AC 69, PC, which adopted the test of proportionality derived from Canadian jurisprudence and applied in both South Africa and Zimbabwe at page 80G. He accepts that the offence under consideration here does pursue a legitimate aim.

He argues, however, that Parliament did recognise that blameworthiness might indeed be relevant to whether a person should ultimately be convicted of that offence, in other words that the lack of it could in some circumstances be a defence. On the Justices' construction, if a person deliberately brings about a discharge in order to save life, he will have a defence, whereas if he innocently brings about a discharge in circumstances where the discharge has begun but he is acting so as to avoid a danger to life or health, he will not, and that, he argues, might be seen as discriminatory for the purposes of Article 14. Thus he uses that to bolster his argument that if section 89(1) is capable of bearing the meaning contended for, it should be so interpreted.

He recognised in the oral argument before us that his written argument on section 89 suffered from the egregious entry of the concept of "discharge". As the offence with which we are concerned is the offence of causing an entry, the defence with which we are concerned, equally, is only concerned with causing an entry and not with the discharge which may or may not have taken place. The same problem may be said to affect the Justices' reasons under paragraph 6(iii) below, where they quote section 89:

Discharge is not involved in the offence under discussion. It is not, therefore, involved in the defence under discussion. We are not, therefore, concerned with why the milk was discharged from the tanker. The question is whether "the entry is caused ... in an emergency in order to avoid danger to life or health".

It is argued on behalf of the respondent that there has to be a purposive connection between causing the entry and the avoidance of danger to life or health, that is the entry has to be caused in order to save life or health. The words "in order to" clearly do import a purpose, but that begs the question: at which point in the chain of causation of entry does the question why a particular act was being done have to be asked? If it is asked at the beginning of the chain, clearly the blow out was not caused in order to avoid danger to life or health. But the last element in the chain of causation, pulling into the side of the road where these drains into the brook happen to be, could well be said to have been for that very purpose.

It is pointed out for the respondents that there was no evidence of the driver's intention. He did not give evidence and we do no know whether that is why he pulled over onto the hard shoulder, but it is clear from the Justices' reasoning that they were content to assume that that was why he did so, and for the purpose of considering this argument, we similarly are prepared to make that assumption.

Causing entry is a much broader concept than discharging. As Lord Hoffman said, also in the Empress case, answers to questions of causation depend on why the question is being asked. In this case, it is being asked in order to provide a defence to an otherwise absolute offence. The context is that Parliament recognised that some of those acting in an emergency should be excused.

In my judgment, therefore, one is entitled to focus upon the chain of causation and ask whether the act which actually caused the entry was done in an emergency in order to save life or health. In this case, at least on the assumed facts, it clearly was. In other words, in my judgment, the facts of this case do fit within the language of the defence provided in section 89(1)(a) without the need for resort to the Human Rights Act as an aid to interpretation.

I would, therefore, answer question xii) in the stated case as follows:

On the other hand, my answer to question xv) on the evidence of causation is: yes, there was such evidence. To that extent, therefore, in my judgment, the appeal should be allowed.

MRS JUSTICE HALLETT: For the reasons given by my Lady, I would answer the questions which remain to be answered by this court in the same way.

MR GORDON: My Lady, I am not sure what consequential orders follow, other than --

LADY JUSTICE HALE: We have been wondering about that.

MR GORDON: -- to be quashed. That is what we would ask for because the Justices clearly assumed a set of facts to be the position and, in our submission, it would not be right to order a retrial on matters which were clearly assumed by the Justices, not found as facts.

I do not know if my learned friend has any other submissions to make?

MR SMITH: I am not sure about that. Indeed, in the case as it is stated that assumption is made --

MRS JUSTICE HALLETT: Yes. Did they ever go on to deal with the matters?

MR SMITH: -- with no evidence at all in relation to why the man Pinches drew onto the hard shoulder and that, in the light of my Lady's judgment, is crucial.

LADY JUSTICE HALE: One can speculate, Mr Smith, if it is a question to which one's common sense may be directed.

MR SMITH: I am not sure that common sense, with respect, is the appropriate benchmark. Fundamentally, the matter boils down to a question of evidence.

LADY JUSTICE HALE: You are inviting us to remit it to the Justices to rehear, that is if the Agency feels it --

MR SMITH: If we felt it appropriate, yes. That would be the appropriate order, if we thought it appropriate.

LADY JUSTICE HALE: Yes.

We are anxious, Mr Smith, not to produce a situation in which everything is left hanging the air in the event, which I would imagine is by no means improbable, that the Agency decides to take no further action --

MR SMITH: I have received --

LADY JUSTICE HALE: I am not obviously saying what you should do.

MR SMITH: Yes. I have received brief and muttered instructions along the lines the second limb of section 89(1) was never truth investigated because the matter was not thought to be in issue then.

LADY JUSTICE HALE: There are two other limbs. We were aware of that and that was one reason.

We wondered whether it would be a possible disposition to make a sort of unless quashing order, that is quashing the conviction unless within, say 14 days or something of that nature -- at least when I shall still be sitting in this court so that will be convenient -- the Agency decides that it does wish to have the matter remitted to the Magistrates for them to investigate those other aspects of the defence.

MR SMITH: I would be content with such an order.

LADY JUSTICE HALE: That means it is not left?

MR SMITH: Yes, quite.

MR GORDON: My Lady, I will not resist that order now, but perhaps I can reserve any further submissions to contingent action taken, but I will only say that unless all the matters had been assumed in section 89(1), it would have been otiose to have asked the question of this sort court, so we have been litigating away needlessly.

LADY JUSTICE HALE: I take that point and that was why of course we were completely content to answer the question, even though some of the relevant facts in a sense have not been established, but no doubt the Agency will bear that all in mind in considering their position.

MR GORDON: My Lady, yes. So, on that basis, we fully accept --

LADY JUSTICE HALE: So we will make an order quashing unless.

MR GORDON: My Lady, the only other matter is that of costs. I do ask for our costs.

There are some schedules that we have, but my learned friend has indicated that he would, I think, prefer the matter to go to detailed taxation.

MR SMITH: Personally, I would not, but the Agency are of course a public body, and therefore I am constrained to make that application.

LADY JUSTICE HALE: We do not have a counter schedule from you, do we?

MR SMITH: Yes.

LADY JUSTICE HALE: Have we? I certainly had one from Mr Gordon.

MR SMITH: Forgive me. My Lady does not have it, but I do.

LADY JUSTICE HALE: Unless my Lady is very anxious summarily to assess the costs, I think we will order a detailed assessment.

MR SMITH: Thank you.

MR GORDON: My Lady, the point is raised that on taxation we assume that costs here and below will be addressed.

MR SMITH: Again, I am told that the costs below should come from central funds, but I am not sure of the basis for that.

LADY JUSTICE HALE: If you cannot tell us, we are not going to pluck it out of the air, Mr Smith.

My Lady, who is much more familiar with this area of the law than I am, thinks that it probably should be from central funds.

MR SMITH: My learned junior tells me that that is the way that the Justices at any rate would --

LADY JUSTICE HALE: Would have dealt with it?

MR SMITH: Would act, yes.

LADY JUSTICE HALE: Had you lost in the court below, that is what they would have done?

MR SMITH: Yes.

LADY JUSTICE HALE: But have we any power to deal with that matter? That is the other matter that is concerning me, or is that something that --

MR SMITH: Dimly in my memory, I can remember orders of this sort being made -- not with any precision or in which case. I cannot remember that.

LADY JUSTICE HALE: So it is not one of these cases where it has never been done before?

MR SMITH: Not as far as I am aware.

LADY JUSTICE HALE: Although we do not mind innovations.

MR SMITH: Certainly, in some cases of crime, such an order is made.

LADY JUSTICE HALE: As is so often the case, the Associate knows everything. There is an appropriate form of order, which we will term a Defendant's Costs Order, which we will make in respect of the costs, both here and below.

MR GORDON: Thank you.