QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE TOULSON
| THE QUEEN ON THE APPLICATION OF PAUL RACKHAM LIMITED
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|SWAFFHAM MAGISTRATES' COURT
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THE ENVIRONMENT AGENCY
Mark Harris and Richard Banwell instructed by the Interested Party
Hearing dates: 11th and 12th May 2004
Crown Copyright ©
The Honourable Mr Justice NEWMAN :
(1) a ruling refusing a stay of the prosecution brought by the Environment Agency; and
(2) a subsequent refusal to state a case for the High Court in relation to that ruling.
"It will however always be open to magistrates in cases that do not fall within the narrow Bennett category to decline jurisdiction, and require the matter to be pursued in the Divisional Court, whether because of the complexity or novelty of the point, or because of the length of investigation that is required".
In general terms, magistrates, as Buxton LJ observed, do not have jurisdiction or alternatively, as a matter of law, should not exercise jurisdiction where the infractions of the rule of law relied upon are outside the narrow confines of the actual trial or court process of which the magistrates are seized. That is not to say that the jurisdiction will not be sparingly exercised for the reasons given by the House of Lords in R v DPP ex parte Kebilene and others  2 AC 326 and the Court of Appeal in Hoar-Stevens v Richmond Magistrates' Court  EWHC 2660 (Admin).
(1) The conduct on the part of the Environment Agency in bringing the proceedings and its alleged failure to take into account relevant considerations, its failure to comply with its own internal policy and practice in connection with prosecution and other matters relating to this particular prosecution which, it was submitted, bore upon the lawfulness of the decision to prosecute. The District Judge obviously had jurisdiction and indeed was required to investigate and hear the application. Whether the claimant was best advised to have made the application at the outset and before any evidence was heard is a different matter. The District Judge refused the application, observing that he had seen a range of documents, memoranda, letters, various published reports and guidance. The submission for the claimant was that the disclosed material "speaks for itself". The Environment Agency accepted that the documents were genuine, but did not accept that they showed the complete picture and indicated that, when the appropriate time arrived, evidence would be given to explain the decisions and the conclusions. In my judgment, unsurprisingly, the District Judge concluded that these issues of fact required examination on evidence.
(2) The second ground was more formidable. The issue was whether the legislation under which the prosecution was brought was incompatible with Article 7 of the ECHR. The argument was put in two ways:-
(i) that the Environment Agency, in pursuing the prosecution in respect of the activities of the claimant in 1999, was seeking to give retrospective effect to a development in the law in connection with waste, which development occurred through a decision of the European Court of Justice in the case of ARCO Chemie Nederland Limited  QB 646;
(ii) that the definition of waste, which was taken from the Waste Framework Directive, read now as it had to be in the light of the decision in ARCO, meant that the law in this regard was not formulated with sufficient precision to enable the claimant to regulate his conduct. Reliance was placed upon the decision of the European Court of Human Rights in the Sunday Times v The United Kingdom 2 EHRR 245.
The Certainty or Uncertainty of the Law
(1) In Mayer Parry (paragraphs 46 to 51) Carnwath J. concluded that the term 'discard' is used in a broad sense equivalent to 'get rid of', but is coloured by Annex 1 of the Directive, where examples are listed, one of which is:-
"Any materials, substances or products which are not contained in the above categories".
Despite the breadth of the language, Carnwath J. concluded:-
"That broad category is however limited by the context, which shows that the purpose is to control disposal and recovery of such materials. Accordingly, materials which are to be re-used (rather than finally disposed of), but which do not require any recovery operation before being put to their new use, are not treated as waste. Similarly, materials which are made ready for re-use by a recovery operation, cease to be waste when the recovery operation is complete". (see also paragraph 48 of his judgment).
In expressing the law in this manner, Carnwath J. was formulating the conclusion he had reached as a result of applying the conventional principle of statutory interpretation, namely giving the words their meaning according to their purpose and the context of the legislation and, in particular, having regard to the rules of interpretation of European Directives.
(2) In ARCO the Court of Justice (see paragraph 94) concluded:-
"In that regard, it should first be noted that even where waste has undergone a complete recovery operation which has the consequence that the substance in question has acquired the same properties and characteristics as a raw material, that substance may nonetheless be regarded as waste if, in accordance with the definition in article 1(a) of the Directive, its holder discards it or intends or is required to discard it".
Further, in paragraph 97 the Court concluded:-
"The answer … must therefore be that the fact that a substance as a result of a recovery operation within the meaning of Annex IIB to the Directive is only one of the factors which must be taken into consideration for the purpose of determining whether that substance is still waste, and does not as such permit a definitive conclusion to be drawn in that regard. Whether it is waste must be determined in the light of all the circumstances, by comparison with the definition set out in article 1(a) of the Directive, that is to say the discarding of a substance in question or the intention or requirement to discard it, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined".
(3) In Castle Cement v The Environment Agency  Env. L.R. 46 Stanley Burnton J. referred to the ARCO judgment as "Delphic" (see paragraph 45) and stated that Carnwath J. had been superceded. At an earlier point in his judgment – see paragraph 18 - he referred to the guidance from the European Court of Justice as "less than pellucid". It has to be said that despite making these observations, upon which much reliance has been placed by the claimant in this court, the judge applied the law and concluded that the material in the case in question was waste.
(4) In Circular 11/94 at paragraph 2.47 the following appears:-
"These conclusions lead to the question of when a substance or object is waste, and is not fit for use in its present form or in the same way as any other raw material, may cease to be waste because it has been recovered within the meaning of the Directive. As indicated in paragraph 2.14 above, waste appears to be perceived as posing a threat to human health or the environment which is different from the threat posed by substances or objects which are not waste; and the Department's view is that the purpose of the Directive is to treat as waste and accordingly to supervise, inter alia, the recovery of those substances or objects which fall out of the normal commercial cycle or out of the chain of utility. It follows that the recovery of waste occurs when its processing produces a material of sufficient beneficial use to eliminate or diminish sufficiently the threat posed by the original production of the waste. This will generally take place when the recovered material can be used as a raw material in the same way as raw materials of non-waste origin by a person other than a specialised recovery establishment or undertaking".
"The essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste".
On one view the European Court of Justice concluded that the recovery process had not been completed because the toxic agents remained.
The Honourable Mr Justice TOULSON:
"How may waste cease to be waste? The Directive does not address the question of when a substance or object which is waste may cease to be waste. However, it is likely that in reaching a judgment on the Directive's definition of waste the determinant consideration would be the interpretation which in the opinion of the European Court of Justice best furthered the purpose of the Directive."
"It follows that the recovery of waste occurs when its processing produces a material of sufficient beneficial use to eliminate or diminish sufficiently the threat posed by the original production of the waste. This will generally take place when the recovered material can be used as a raw material in the same way as new materials of non-waste origin by a person other than a specialised recovery establishment or undertaking." (Emphasis added.)