Environment Agency, R (on the application of) v Drake

SIR THAYNE FORBES: This is an appeal by way of case stated in respect of the decision of the District Judge for Devon and Cornwall, sitting at the Bodmin Magistrates' Court, Cornwall on 14th July, whereby he ordered a stay of two of the offences with which the respondent was charged on that day. The District Judge stayed proceedings in respect of those two offences as an abuse of process on the basis that he was satisfied that the respondent had suffered a serious prejudice and that a fair trial was no longer possible.

There is an issue in these proceedings as to whether the District Judge did indeed apply the correct test but, in all the circumstances, it is not necessary for me to deal with either that ground (which is ground 1) or ground 2, which suggests that the District Judge took into account various immaterial considerations. The effective ground of challenge in this case is ground 3, which is based on the submission that the District Judge erred in law when concluding, as he purports to have done, that the respondent had suffered a serious prejudice as a result of matters to which I will refer in just a moment.

The respondent had been originally charged with three offences all arising out of a single incident at Higher Tregawne, Withiel, Cornwall, on 30th August 2007. The first information alleged an offence of obstruction of two of the Environment Agency's officers in the exercise or performance of their powers and duties contrary to section 110(1) and (4) of the Environment Act 1995. In due course, the District Judge found that offence proved. The second information alleged an offence of knowingly causing poisonous, noxious or polluting matter, namely silt and/or suspended solids, to enter controlled waters, namely a tributary of the River Ruthern and the River Ruthern, contrary to section 85(1) of the Water Resources Act 1981. The third information alleged an offence of removing without the consent of the Environment Agency a deposit, namely silt and/or suspended solids, that had accumulated by reason of a dam holding back the waters from part of the bottom of an inland fresh waterway by causing the deposit to be carried away in suspension in the waters contrary to section 90(1) and (3) of the Water Resources Act 1991.

The respondent pleaded not guilty to all three offences. In a defence statement lodged on 14th February 2008, he asserted that he denied that he had caused any pollutant to enter any controlled water. As I have already indicated, the respondent was subsequently convicted of the offence of obstruction by the District Judge. He was ordered to pay a fine of £1,000 and costs of £15.

This appeal relates to the decision of the District Judge on the same day to stay informations two and three as an abuse of process.

It appears from his written decision and from the case stated that, in his decision to stay the proceedings in respect of informations 2 and 3, the District Judge had regard to the following matters: (i) a history between January and August and the weekend before the trial which indicated initially that samples taken on the day of the incident had been lost, then that the samples had been tested to destruction and finally, that although the samples had not been tested to destruction, what remained had been disposed of without providing a proper explanation for that disposal; (ii) that late statements taken by the Environment Agency which had been served were going to be relied upon and then on the day of the trial were not relied upon; (iii) that the defendant had wanted an opportunity to test the samples, or at least be able to cross-examine on the composition of the samples, none of which was possible because of the Environment Agency's failure to deal with the issues appropriately: the judge therefore considered that the defendant was seriously prejudiced by the fact that he would not be able to establish on the basis of the samples that had been taken by the Environment Agency (and which they had originally intended to rely upon) the source and extent of the alleged pollution; and (iv) the Environment Agency had decided on the day of trial not to rely upon the scientific evidence and that this meant that the whole nature of the case that the defendant had to defend was different.

In that summary of the matters to which the District Judge apparently had regard in reaching his decision to stay the proceedings in respect of the second and third informations, it is the issue relating to the samples which gives rise to the third ground of challenge. Put very simply, Mr Lucie, on behalf of the Environment Agency, submitted that there simply was no information and/or evidence upon which the District Judge could properly conclude that the defendant was indeed exposed to a serious prejudice as a result of the loss and/or destruction of the samples of water that had been taken by the Environment Agency and had been retained by them and then subsequently lost or destroyed.

It is worth noting in this case that, so far as concerns the two informations, it is not necessary for the prosecution to prove that the polluting matter which founds the charges under informations 2 and 3 is either poisonous or noxious. It is a matter of fact or degree to be decided by the factfinding tribunal as to whether the polluting matter actually pollutes or stains the waterway in question; see the cases of R v Dovermoss Ltd [1995] Env LR 258 and Express Ltd v Environment Agency [2004] EWHC Admin 1710.

Mr Lucie submitted that the first issue to be determined with regard to whether the loss of samples amounted to an abuse of process was whether the investigating authority had a duty to obtain and/or retain the material in question and, if so, whether there was a breach of that duty; see R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP [2001] 2 Cr.App.R 23. In that case, the Divisional Court also confirmed the correct test for the imposition of a stay, the defendant has to show on a balance of probabilities that he would suffer serious prejudice such that a fair trial could not take place.

The second matter which has to be established is that, if there was a breach of a duty to obtain or retain the material, have the defence shown on a balance of probabilities that, owing to the absence of the relevant material, the defendant would suffer prejudice to the extent that a fair trial could not take place. In considering that issue, I accept Mr Lucie's submission that the court should bear in mind that the trial process itself is equipped to deal with the bulk of complaints upon which applications for a stay are commonly grounded. It is also relevant to take note of the fact that where there has been a bad faith on the part of the prosecution the circumstances are more likely to result in a finding of an abuse of process. In the present case, however, there is no suggestion or finding of bad faith on the part of the prosecution.

Furthermore, a decision as to whether an abuse of process is made out is not an exercise of discretion by the court but is a "considered judgment" on the facts and circumstances of the case; see Aylesbury Vale DC v Kahn [2005] EWHC 841 (Admin). Mr Lucie submitted that in the present case there was no duty on the Environment Agency to take the samples of water in question. The case could, for reasons to which I shall turn in just a moment, have been proved without any scientific analysis of the water or indeed without any reference to any samples whatsoever. Mr Lucie, however, perfectly properly accepted that in this case, having taken the samples, the Environment Agency should probably have retained the remaining portions of those samples. In fact it appears that the samples were, contrary to standard work instructions, destroyed by the laboratory after testing had been carried out on them.

I am satisfied that those submissions are correct. In my view, this was not a case where there was any duty on the part of the Environment Agency to take samples of the water in question. I accept Mr Lucie's submission that there was ample evidence in this case by way of DVD footage, photographs and the eye witness testimony of agency offers that the river in question was polluted on the days in question by way of silt. That fact was obvious to the eye and there was evidence to that effect.

The analysis of the samples of the water that were taken on the day in question confirmed that which was seen by the eye but I accept Mr Lucie's submission that the results of testing were not essential to proving the case on either informations 2 or 3. As Mr Lucie pointed out at the start of the hearing before the District Judge, the prosecution agreed not to rely on the results of the test that had been carried out, thus demonstrating their confidence in the claim that the results were not essential to the case but were merely corroborative of the other clear evidence which the prosecution was in a position to present and which I have summarised above. It is trite law that it is up to the prosecution how it presents its case and in this case I am satisfied from the material before me that it was a perfectly proper decision on the part of the prosecution to abandon any reliance on the corroborative evidence relating to the test carried out on the samples and to rely solely on the evidence of the DVD footage, photographs and the eye witness testimony of the agency officers.

I also accept that, if the prosecution had not taken the perfectly proper course of abandoning any reliance on the results of the tests of the samples, the District Judge could have then exercised his discretion under section 78 of PACE and excluded those results from the trial on the basis that it would be unfair in all the circumstances for the prosecution to rely upon them. As Mr Lucie observed, that power on the part of the District Judge is a good example of how the trial process is equipped to deal with the bulk of complaints that found an application to stay for abuse of process.

Turning to the facts and circumstances of this case, it is important to note that no evidence was submitted to the District Judge by the defence upon whom the burden lay of demonstrating the serious prejudice on a balance of probabilities which suggested that the missing samples might have assisted the defence case in any way. It is true that the advocate appearing then for the defence did make submissions about the suggested prejudice but no evidence was called and in particular no expert evidence was called or submitted as to how the samples, had they still existed, might have assisted the defence case or undermined the prosecution case. As Mr Lucie pointed out, it was for the defence to prove on the balance of probabilities that such was the case.

I therefore accept his further submission that the various suggestions made by the advocate for the defence amounted to no more than speculation with regard to potential unfairness. It is also noteworthy that in his original ruling the District Judge did not expressly deal with the issue of "serious prejudice". On a fair reading of his ruling it appears that he identified two particular matters as being relevant to his conclusion that there was indeed serious prejudice to the defendant by reason of the loss or absence of the samples in question. The first matter identified by the District Judge was that the failure to preserve the samples and allow the defence to have them analysed "has resulted in on the day of trial the defence having to answer the allegations on a different basis than that they had anticipated". A second matter upon which the District Judge appeared to rely was this:

On analysis, both those reasons by which the District Judge appears to have supported his conclusion that there was serious prejudice to the defence do not stand up. Turning to the first matter, the defendant was not faced with allegations on a different basis than that which had been anticipated. The case had never been put on the basis of the analysis of the samples alone. As I have already indicated, the samples corroborated the other direct clear evidence provided by DVD footage, photographs and the eye witness testimony of the agency officers. All that evidence, ie the DVD footage, photographs and eye witness evidence, had all been served on the defence as part of the prosecution case and it was made clear that that was evidence which was relied upon to prove the case. As I have also indicated earlier, that point was reinforced by the decision taken by the prosecution not to rely on any of the evidence that flowed or resulted from the tests that had been carried out on the samples taken. As Mr Lucie observed, the fact that the prosecution abandoned reliance on the samples meant that the defendant had to face a case not on "a different basis" but in truth on a reduced basis. This was plainly to the defendant's advantage and not to his prejudice, as apparently the District Judge thought to be the case. To the extent the District Judge thought that to be the case, he was plainly in error.

So far as concerns the second matter upon which the District Judge apparently relied, if the defendant had taken samples on the same day as samples taken by the Environment Agency, then he would still have been in a position to have those samples analysed. The results that he obtained from his analysis could then have been compared with the results obtained by the Agency. I agree with Mr Lucie's submission that it is difficult, if not impossible, to understand what the District Judge meant when he was saying that there "would be clear evidential problems in reconciling the samples". I simply do not agree with that apparent conclusion, which seems to me to be wholly ill-founded. I accept Mr Lucie's submission that no prejudice was caused to the defendant by reason of the matters apparently relied upon by the District Judge for the reasons I have just given, let alone serious prejudice.

Accordingly, for those reasons, I find myself unable to accept what the District Judge has stated in paragraph 10(iii) of the statement of case to the following effect:

For those reasons, therefore, this appeal is allowed and the answer to the question posed in paragraph 12 of the statement of case is therefore "no". Having regard to that conclusion, it would seem to me, subject to anything further that Mr Lucie wishes to submit, that the District Judge's ruling that there was an abuse of process must be quashed, the stay must be lifted and there must be a direction that there be a retrial of informations 2 and 3 before a different constituted bench.

MR LUCIE: Can I answer, my Lord, no. There is nothing I would ask in terms of those orders and there is no order for costs sought on this occasion.

SIR THAYNE FORBES: Sorry, would you mind repeating that, Mr Lucie, I did not quite catch it.

MR LUCIE: Sorry, yes. You said subject to what I had to say about the orders that you proposed. I am happy with those that you proposed.

SIR THAYNE FORBES: Right. in that case I will make the orders that I have just indicated.

MR LUCIE: I am obliged, and there is no order for costs sought in this case.

SIR THAYNE FORBES: Thank you. There is no order for costs. Thank you.

MR LUCIE: Thank you, my Lord.