England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		14 December 2011

LORD JUSTICE PILL:

1. This is an appeal against a ruling made by His Honour Judge Andrew Campbell in a preparatory hearing at Kingston Crown Court on 10 October 2011. The hearing was held under Section 29 (1) of the 1996 Act. The judge declined to stay proceedings against Ideal Waste Paper Company Ltd and others ("the appellants") as an abuse of process of the court or to exclude disputed evidence under Section 78 of the Police and Criminal Evidence Act 1984.
2. The ground of the application is that the test to be applied in classifying the waste as prohibited or not is so imprecise as to offend common law and European Union law requirements for accessibility and certainty in criminal offences and/or similar requirements under Article 7 of the European Convention on Human Rights. Permission to appeal was given by the judge.
3. The statement of offence in each case provides:

"Transporting waste for recovery in a country to which the OECD decision does not apply contrary to Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007."

("The 2007 Regulations")

4. The particulars of offence in count 1 are that the defendants, between 11 March 2009 and 25 March 2009, transported waste specified in Article 36 (1) (b) of the European Waste Regulation 1013/2006 ("the 2006 Regulation"), and listed in Annex V, Part 3 of that Regulation, namely waste collected from households that was destined for recovery in China.
5. Count 2, in the alternative, refers to China as the country of destination and Article 36

(1) (f) is specified instead of Article 36 (1) (b) of the Regulation.

6. Counts 3 and 4 are against named individuals, alleging consent, connivance or neglect on this part in this respect as officers of the company.
7. Regulation 23 of the 2007 Regulations provides:

"A person commits an offence if, in breach of Article 36 (1), he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply."

It is common ground that China is such a country. Article 36 of the 2006 Regulation, under the heading "Exports Prohibition", provides, in so far as is material:

"1 Exports from the Community of the following waste destined for recovery in countries to which the OECD Decision does not apply are prohibited:

.....

(b) waste listed in Annex V Part 3;

.....

(f) wastes the import of which has been prohibited by the country of destination;

..... "

It is accepted that the same test will apply in relation to (f) as that in (b) so that there is no need, for present purposes, to give separate consideration to it or to count 2 of the indictment.

8. The Basel Convention came into force in 1992 as a global response to the growing trade in hazardous waste between developed and developing countries. It has been ratified by very many states, including the United Kingdom and China. Article 11 of the Convention provides that - "1 ..... Parties may enter into bilateral, multilateral, or regional agreements or arrangements regarding transboundary movement of hazardous wastes or other wastes with parties or non-parties provided that such agreements or arrangements do not derogate from the environmentally sound management of hazardous wastes and other wastes as required by this Convention."
9. The 2006 Regulation is such an agreement via the OECD Decision C (2001) 107 ("Decision 107") concerning the movements of waste for recovery (as amended). The concept of "green" listed wastes is in the Basel Convention. Decision 107 classifies waste according to a traffic light system, with non-hazardous waste appearing on a green list and hazardous waste appearing on an amber or red list. For present purposes the distinction need only be made between prohibited and non-prohibited waste.
10. Introductory Notes to Annex V of the 2006 Regulations state that it has three Parts and two Lists within each Part. Counsel are not agreed about the status of Introductory Notes to a Regulation such as this but the difference is not material in this appeal. The Note states that List A 

" ..... lists wastes which are classified as hazardous by Article 1 (1) (a) of the Basel Convention, and therefore covered by the export prohibition and List B lists wastes which are not covered by Article 1 (1) (a) of the Convention, and therefore not covered by the export prohibition."

The Introductory Notes also provide that -

" ..... an initial check must be made to ascertain whether the waste is listed in Part 1 of this Annex, and, if it does not, whether it is listed in Part 2, and, if it does not, whether it is listed in Part 3."

11. Part 3 of Annex V lists wastes covered by the prohibition. "Y46" appears and is defined as "waste collected from households." China has prohibited the import of Y46 waste for disposal or recovery (count 2). A footnote to Y46 permits exceptions, but they are not claimed to be relevant for present purposes.
12. List B of Part 1 to the Annex includes, as waste not covered by the export prohibition, a category at B3020 under the heading "Paper, paperboard and paper product wastes":

"B3020 Paper, paperboard and paper product wastes

The following materials, provided they are not mixed with hazardous wastes:

Waste and scrap of paper or paperboard of:

— unbleached paper or paperboard or of corrugated paper or paperboard — other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass

— paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter)

— other, including but not limited to

laminated paperboard;

unsorted scrap."

13. For present purposes it is accepted that the waste in this case had been treated at a municipal recycling facility. The defendants claim that it was no longer household waste within the meaning of Y46 but was paper, paperboard and paper product wastes as defined in B3020.
14. The waste had been transported in twenty-nine 40-foot containers to Southampton. There, the containers were inspected and there is evidence that they were found to contain not only waste paper and cardboard but items of household waste, coloured and clear hard plastics, metal cans, plastic film, tetrapak cartons unopened plastic bags, a black bag containing rotting meat, polystyrene and jeans.
15. The Introductory Notes to Annex V also provide a proviso in relation to List B in Part 1 which includes B3020:

"Wastes listed in List B of Part 1 ..... are covered by the export prohibition if they are contaminated by other materials to an extent which

(a) increases the risks associated with the wastes sufficiently to render it appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EEC; or

(b) prevents the recovery of the waste in an environmentally sound manner."

We do not need to refer to Directive 91/689 because it is not suggested that hazardous characteristics are a feature of this case.

16. It is common ground that waste which began its waste life as household waste (Y46) may, by appropriate sorting, become waste paper within the meaning of B3020.
17. In Beside BV & Besselsen v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer [1999] Env LR 328, the European Court of Justice stated (paragraph 29):

"29 It must be emphasised that, for the purpose of classifying a batch of waste the origin of the waste is not in itself decisive for the purpose of its classification in one of the lists, green, amber or red, set out respectively in Annexes II, III and IV to the Regulation.

30 Thus, waste of municipal or household origin which has been collected separately and falls within sub-heading '20 01 03 small plastics' of the European Waste Catalogue may, on the basis of its composition, come under the heading 'GH Solid plastic wastes' in the green list of waste.

31 On the other hand, such waste mixed with other waste on the green list or the amber list -and therefore not collected separately - would, if appropriate, come under sub-heading '20 03 01 mixed municipal waste' of the European Waste Catalogue and would therefore, having regard to the extent to which it was contaminated, belong to category 'AD 160 municipal/household waste' on the amber list in the Regulation.

32 Therefore, 'municipal/household waste' does not cease to be 'amber waste' and therefore does not come within the green list unless it has been collected separately or properly sorted.

33 As is clear from the introduction to the green list of waste, waste may not, regardless of whether or not it is included on that list, be moved as green waste if it is contaminated by other materials to an extent which (a) increases the risks associated with the waste sufficiently to render it appropriate for inclusion in the amber or red lists, or (b) prevents the recovery of the waste in an environmentally sound manner.

34 The answer to the first question must therefore be that the expression 'municipal household waste' referred to under AD 160 in the amber list in Annex III to the Regulation, as amended by Decision 94/721, includes both waste which for the most part consists of waste mentioned on the green list in Annex II to the Regulation, mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list."

18. The Regulations may be different, but it is accepted by the respondent that the principles there stated apply.
19. Reference has been made to a press release of the Environment Agency, dated 27 October 2008, under the heading "Environment Agency clarifies stance on export paper contamination". It states:

"There is no '0% contamination' requirement for recovered paper for export the Environment Agency has confirmed."

Reference is made to a conference at which the Environment Agency's spokesman was speaking, and said:

"'We are not going to specify a percentage in any guidance we produce. We want to concentrate our efforts on poor or superficial sorting.'"

20. In the present context, it is accepted that the waste is either Y46 household waste or B3020 waste paper. If the case proceeds to trial, it will be for the prosecution to prove to the criminal standard that it is Y46 household waste.
21. Mr Harris, for the appellants, says that he is not alleging that the 2007 Regulations are contrary to European law or are otherwise unlawful. The defendants' case, as put in written submissions, is that the absence of guidance or the setting of a standard to enable a judgment to be made upon the basis of the operator means that proceedings amount to an abuse of process. The [Environment] Agency has realised that a minimal contamination is acceptable. It is submitted that in the absence of any specification from the Environment Agency or other authoritative UK source as to what constitutes 'minimal' contamination, those engaged in the export of paper and other recovered commodities are unable to know before they embark upon a course of conduct whether their activities are likely to be treated as criminal or not. The exporter of paper is faced with an impossible task, it is submitted, in trying to ascertain whether any particular level of contaminants in the paper is likely to attract regulatory attention. He cannot find out what acts or omissions make him criminally liable. In the absence of any standard or test, there are likely to be wholly arbitrary and subjective decisions by different juries on different occasions.
22. Mr Harris refers to the background to the Regulation. Article 10 of the Convention under the heading "International Co-operation" requires parties (at paragraph 2) -

"2 .....

(a) Upon request, [to] make available information, whether on a bilateral or multilateral basis, with a view to promoting the environmentally sound management of hazardous wastes and other wastes, including harmonisation of technical standards and practices for the adequate management of hazardous wastes and other wastes."

At sub-paragraph (e), under the same Article 10 (2), parties are required to:

"(e) Co-operate in developing appropriate technical guidelines and/or codes of practice."

23. The 2006 Regulation provides at Article 49, under the heading "Protection of the Environment" that for the purposes of seeking guidance on environmentally sound management, the guidelines listed in Annex VIII may be considered.
24. These are international obligations of the United Kingdom. But, submits Mr Harris, they demonstrate that the international instruments contemplate that guidance will be given by Member States in applying the Convention. He referred to Annex VIII of the 2006 Regulation which lists guidelines on environmentally sound management pursuant to Article 49, and is listed is a series of technical and other guidelines.
25. Developing his submissions orally, Mr Harris submits that it would be possible, either by regulations or by guidance, to stipulate an appropriate standard, whether by weight or by whatever other standard was chosen. This was a subject susceptible to detailed technical guidance. Putting the general submission, Mr Harris argues that the standard by which his conduct is to be judged must be known to the citizen. In the absence of that, in this case, there can be no direction which a judge can properly give to a jury. Wherever the fault lies, there is no standard by which the judge can sum up for the fact-finding tribunal. It is the duty of the law to set the standard by which the jury decide the facts. A detailed legal standard is required. In this case the standard has been plucked from the air. That amounts to an abuse of process. An operator does not know whether he is breaking the law.
26. Mr Harris refers to domestic and European authority. In Fothergill v Monarch Airlines [1981] AC 251, Lord Diplock stated (at 279):

"Elementary justice or, to use the concept often cited by the European court, the need for legal certainty, demands that the rules by which the ..... citizen is to be bound should be ascertainable by him (or, more realistically by a competent lawyer advising him) by reference to identifiable sources that are publicly accessible."

He submits that in the present context a lawyer will have no more idea than a lay person.

27. In Belgium v Banque Indosuez and Others and the European Community [1998] 1 CMLR 653, the Advocate-General stated in a passage subsequently adopted by the court:

"27 The principle of legal certainty is a fundamental principle of Community law which requires in particular that rules imposing charges on a taxpayer be clear and precise so that he may be able to ascertain unequivocally what his rights and obligations are and take steps accordingly (Case C-143/93 Van Es Douane Agenten v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, paragraph 27)."

28. Mr Harris submits that the same principles are found in Article 7 of the European Convention on Human Rights, of which sub-paragraph (1) provides:

"(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed."

In that context, he refers to SW and CR v United Kingdom (1996) 21 EHRR 363, where Article 7 is considered:

" ..... It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment."

At 36/34 it is added:

"However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen."

29. There is comfort for the respondent in that approach. Mr Harris submits that it is not an appropriate approach for a system of jury trial in the present context.
30. Mr Harris referred to the majority judgment of the European Court of Human Rights in Sunday Times v United Kingdom (1979-1980) 2 EHRR 245, paragraph 49:

"49 In the court's opinion the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice."

31. Mr Harris converts those statements of principle into the requirements of the law of England and Wales in relation to abuse of process by reference to R v Beckford [1996] 1 Cr App R 94, a decision of this court (Lord Justice Neill presiding). He referred to the first sentence of the headnote:

" ..... the court had power to stay proceedings in cases where it concluded that the defendant could not receive a fair trail or where it would be unfair for the defendant to be tried. Each case had to be considered on its own facts."

32. Reference was made by Mr Mehta, for the respondent, to R v Ebrahim [2001] 2 Cr App R 23, where it was recognised that a stay will not be granted where the trial process is itself equipped to deal with the matters complained of.
33. Mr Harris submits that, having regard to the guidance in the authorities and to the principle involved, the defendants cannot have a fair trial in this case in the absence of a sufficiently clear and precise statement of the standard with which operators in this field are expected to comply and to which they are expected to conform.
34. Mr Mehta first refers to the difficulties of stating an appropriate standard of general application in this field. He refers to the items on the green list of non-prohibitive substances - for example, B1100 where there is a reference to the percentage of zinc greater than 90 per cent, "(›90% Zn)" - which is required for the item to come within the category B1100. In B2040 a percentage of above 20 per cent is specified in considering the iron content required in that category. In B2110 - bauxite residue - it is stated that pH saturated to less than 11.5. Thus, he submits, the drafters of the Convention and the Regulations have not forgotten the appropriateness of percentages in some situations and, where percentages can appropriately be applied, they have been considered. Parliament too must be aware of the possibility.
35. Household waste, Mr Mehta submits, presents a particular problem. He submits that there is no abuse of process in this case. It is a question of fact for the jury whether a particular consignment is household waste. They can take into account, first, that it starts as household waste. It is collected from households. They can look at photographs of the consignment. They can hear other evidence about it. They can then consider whether the sorting which has occurred is sufficient to bring the waste out of that category. The burden is on the prosecution to establish that it is still household waste, applying the criminal standard.
36. By way of example, Mr Mehta refers to the present consignment which is relevant if the case proceeds. Rotting meat was found. There could be circumstances where one had a two per cent contamination, for example by way of cellophane or crisp packets, where that could properly be treated as de minimis and a jury could acquit the exporter on that consignment. However if the two per cent was rotting meat, that would be a different situation.
37. Mr Mehta submits that the court is expected to look at the overall picture. There is clearly difficulty, he submits, in specifying by weight or percentage what degree of contamination, if any, can be permitted. He accepts the concept of minimal contamination as not preventing the waste from being regarded as waste paper, but whether any contamination is minimal depends in part on the nature of the contamination. The quality of contamination as well as the quantum of it is a material factor. He supports the approach of the Environment Agency when not attempting, in this context, to lay down detailed standards. Even if it did, those standards would not of course be binding upon a court though they would meet the point that the appropriate operators in this field would have a clearer picture of what conduct might give rise to a prosecution.
38. In the course of the hearing there was discussion about the problem arising as to whether, if at all, to sub-divide a consignment. There could be no contamination in some of the twenty-nine bales but significant contamination in others. On the basis of a single charge (as the case is now put), the jury's task would be more difficult.
39. In our judgment there is scope by way of trial management, which would have appropriate regard to the interests of the defendants, to deal with that question, but we do not minimise the difficulties involved. They are, however, difficulties which would apply whatever standard was sought to be imposed and whether the case is to be tried by a judge alone or by a judge with a jury. In our judgment that is essentially an issue for case management and the trial process.
40. Mr Mehta stresses the importance of the reason for the waste regulations, the aims and implementation of the European Union legislation and of the domestic legislation. This originates with the Basel Convention which, in its Preamble, expresses the concerns:

"Aware of the risk of damage to human health and the environment caused by hazardous wastes and other wastes and the transboundary movement thereof.

.....

Aware also of the growing international concern about the need for stringent control of transboundary movement of hazardous wastes and other wastes, and of the need as far as possible to reduce such movement to a minimum."

He referred to Recital 1 to the European Union Regulation:

"(1) The main and predominant objective and component of this Regulation is the protection of the environment, its effects on international trade being only incidental."

Later, at Recital 28 it states:

"(28) ..... In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes the waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste."

41. Recital 2 of the Waste Framework Directive 2006 [states]:

"(2) The essential objective of all provisions relating to waste management should be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste."

An operator in this field, he submits, must apply the highest standards or he takes the risk of falling foul of the standards as implemented in the law of England and Wales.

Conclusions

42. We accept that a very high standard is required of operators in this field. We are mindful of the difficulties faced by commercial operators conducting what is an important and valuable business, not only for them but in the public interest. We are mindful of the extreme difficulty, to which reference has been made, in setting a helpful test of general application when considering and deciding what comes within the definition of household waste. We are not unmindful of the difficulties involved in juries deciding this issue. Juries are familiar with having to decide issues of fact, what evidence to accept. They are accustomed to considering the state of mind of witnesses and defendants, whether they were acting dishonestly, whether there was consent. A decision as to whether household waste has been converted into waste paper is a decision of a somewhat different kind from those they are normally called upon to make.
43. There are those who take the view that juries are not the most appropriate forum for trials in environmental cases such as this. We express no view about that, but we do not understate the difficult task of a jury in making a decision and the difficult task of a judge in summing up the case to them.
44. Having said that, we are quite unpersuaded that to proceed with a trial as to whether this particular consignment is proved to be household waste is an abuse of the process of the court. The judge will have regard to the 2006 Regulation and the 2007 Regulations when giving his directions to the jury. We would contemplate his raising the possibility of a breach being so small as to be minimal and not preventing waste from ceasing to be household waste and becoming waste paper under B3020. That will depend on the circumstances, including the nature and the quality, of the contamination and the amount of it. We are confident that a judge will be able to give sufficient directions to a jury to enable them to make the decision as to whether a particular consignment is properly described as household waste and for them to perform their task by applying that test to the facts.
45. We have referred to the possibility in the trial process of ventilating whether there should be more counts than one, and other issues. For us to say more would be inappropriate. We have no wish to interfere with or prejudice the trial process.
46. In our judgment it is within the capacity of a judge to deliver a proper summing-up to the jury and it is within the capacity of a jury to make a fair decision on it. The law is clear, that if waste to be exported is proved to be household waste then an offence is committed.
47. In saying what we have, of course, we do not rule out the possibility of co-operation between the Environment Agency and operators in this field to the mutual benefit of the public interest and the interest of the operators. In the end it is for the courts to apply the law. But we see scope for co-operation which will assist operators in knowing what they can reasonably expect to do without enforcement action being taken against them.
48. For the reasons we have given, this appeal is dismissed.
49. Are there any applications?
50. MR MEHTA: No. Suffice to say that my friend and I are both of the view that so far as any costs in the case are concerned, they can be dealt with in the trial process.
51. LORD JUSTICE PILL: Very well, yes. No directions as to when the trial [is]. That will all be dealt with at Kingston.
52. MR MEHTA: There is a hearing listed for early next year at which the trial date will be set.
53. LORD JUSTICE PILL: You have not changed your views about the absence of any need to impose reporting restrictions.
54. MR HARRIS: Confirmed in the view that they are not necessary, my Lord.
55. LORD JUSTICE PILL: No reporting restrictions.