England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		29th June 2006

1. LORD JUSTICE LAWS: This is an unusual and in some ways a troublesome case. It is a prosecutor's appeal by way of case stated against the decision of Deputy District Judge Hopkinson sitting in the Fylde Coast Magistrates' Court, by which on 22nd November 2005 he dismissed an information laid by the appellants against the respondents. The information alleged that between 26th September 2003 and 4th December 2003 the respondent company discharged trade effluent into the public sewer without consent or authority, contrary to section 118(5) of the Water Industry Act 1991.
2. The appellants are the sewerage undertakers for the Blackpool area. Their statutory predecessors before privatisation of the water industry in 1991 were the North West Water Authority. The respondent company operates a pig farm at Moss Rose, Dickies Lane, Marton, Blackpool.
3. It was not disputed that trade effluent was discharged into the public sewer by the respondents between the dates alleged. However the crime of which the respondents were accused was the discharge of effluent without consent or other authority. Consent within section 118(5) means a consent obtained by a statutory procedure provided for by section 119. Section 121 contains detailed provisions as to conditions which may be attached to a statutory consent. Section 122 provides for an appeal procedure in relation to consent applications. Section 124 deals with variation of consents. It is clear that no consent within this statutory code was given; and it is not contended that it was. The respondents' case before the Magistrates' Court was that they were "otherwise authorised" to discharge the effluent. The authorisation was said to consist in an oral agreement made in 1980 "or thereabouts" (as the Deputy District Judge put it) between the respondent and the appellants' predecessors' officials or agents. The agreement authorised the respondent to discharge trade effluent in the public sewer. The judge found in his narrative judgment, of which we have a transcript, as follows:

"I am prepared to accept that on the balance of probabilities in 1980 or thereabouts there is evidence of some sort of agreement or accommodation between the Defendant Company and officials either from the Water authority or acting as agents for them."

4. This finding is reflected in the case stated, where it is asserted at paragraph 2(c):

"there was however in 1980 or thereabouts an agreement or accommodation (outside of the statutory framework) between the respondent and the appellant's officials or its agents. My reasons for this finding are as follows:

• A number of retired officials were mentioned as being present. Whilst not produced as witnesses, their existence at the relevant time as people in authority was not challenged.

• The respondent carried out extensive work over the years in an effort to comply with some sort of standard which was being set by others.

• There was support for this contention in the letter from the NRA dated 19th Sept. 1995.

It seems inevitable that the authorities were aware of the continuing discharge into the sewer as it continued for a long period without prosecution from 1980 to 1995, some 15 years, without hindrance, and without charging, save for a small standing levy which was paid briefly and then cancelled."

5. The appellants accept (see counsel's skeleton argument, paragraph 3.1) that "there was ample evidence on which the District Judge could find as a fact that there was an oral agreement or accommodation permitting the Defendant to connect to the public sewer." This then was said to constitute "other authorisation" within section 118(5). The Deputy District Judge found (see case stated, paragraph 2(c)) that:

"This agreement satisfied the requirements of section 129 of the Water Industry Act 1991 and its statutory predecessor section 7 of the Public Health (Drainage of Trade Premises) Act 1937."

6. Before the Deputy District Judge, however, the appellant prosecutor had another string to its bow. They contended that if such authority had been given by means of such an agreement, it had been awfully terminated by notice given by letter dated 23rd June 2003. There was no evidence that the agreement alleged contained any express provision as to termination of notice. There was some dispute in the court below as to whether the appellants were entitled to terminate the agreement in the events which had happened. Mr Leolin Price QC for the respondents maintained the position that there was no entitlement to terminate the agreement at all.
7. Somewhat surprisingly, and importantly in light of the course the argument has taken, the Deputy District Judge at page 7 of his narrative judgment said that it was "not within my remit to make detailed findings on what the terms of any agreement may have been." It is not however contended on this appeal that the appellants were not entitled to terminate the agreement by notice (see paragraph 18 of the respondents' skeleton argument). But there is an issue whether the notice given by the letter 23rd June was on the facts reasonable. The letter stated:

"If, which is denied by United Utilities (Water) plc there has ever been an agreement capable of coming within the terms of Section 129 of the Water Industry Act 1991 entitling you to discharge trade effluent into the public sewer that this letter serves as 3 months notice determining such agreement."

8. The Deputy District Judge found that three months was not reasonable notice. In his judgment he said:

"Mr Bradley argues that it was adequate, given the defendant's knowledge of the water company's concerns. In addition he argues that the concession offered in the notice to allow the defendant to apply for consent to bring him within the statutory frame work (or face prosecution) makes it more so. I have had no guidance as to what is a reasonable period. I note that six months features in the two cases relied on. I heard evidence from Mr Baguley. This is a substantial business which has been operative since the 1950s. There are about 2000 pigs that would have to be disposed of. The livelihoods of the extended Bagley family depend on the Piggery. I therefore find that 3 months notice is insufficient. It naturally follows that in my view at the date mentioned in the charge insufficient notice had been given to terminate the authorisation and that the discharges remained authorised. I therefore find the company not guilty of this charge as it stands. It will be equally clear that in my view had adequate notice been given the finding of this court on the same facts would have been one of guilty."

Accordingly, the Deputy District Judge found that the discharge had been authorised by agreement and the authorisation had not been lawfully terminated.

9. The questions for the opinion of this court set out in the case stated are:

"(a) was there sufficient evidence for me reasonably to determine that there was an agreement entitling the respondent to discharge trade effluent into the public sewer?

(b) was my decision that three months notice period to terminate an agreement was not reasonable, one that a reasonable tribunal could have made in this case?

(c) was I correct in ruling that the respondent had the evidential burden to establish the existence of an agreement or other authority and that having done so it was for the appellant to prove that the discharges were not in accordance with the agreement, to the usual standard?"

10. These questions are reflected, albeit in reverse order, by the grounds of appeal which are in these terms:

"1. In finding the Defendant not guilty of an offence of discharging trade effluent to a public sewer contrary to section 118(5) of the Water Industry Act 1991 on the grounds that there was an agreement or accommodation entitling the Defendant to discharge trade effluent to a public sewer compliant with section 129 of the Water Industry Act 1991 the Court erred in law because the discharge was not made in compliance with the agreement or accommodation.

2. The Court erred in law in holding that three months was not a reasonable period to terminate an agreement or accommodation entitling the Respondent to discharge trade effluent to a public sewer.

3. There was no evidence to support the Court's conclusion that the agreement or accommodation was an agreement made pursuant to section 7 of the Public Health (Drainage [of Trade] Premises) Act 1937 (the statutory predecessor to section 129 of the Water Industry Act 1991) as opposed to being an agreement to permit a connection to the public sewer pursuant to section 34 of the Public Health Act 1936 or some other power."

11. This third ground (reflecting as it does question (a) in the draft case) has been abandoned by Mr Bradley for the appellants. So he informed us this morning. It is therefore not necessary, as I see the matter, to travel into the details of the statutory provisions contained in section 129 of the Water Industry Act 1991 or the predecessor provision in section 7 of the 1937 Act, and I say no more about ground 3 and question (a).
12. I turn to ground 1, reflecting question (c). As to this, it is convenient first to set out the appellants' written submission, appearing at paragraph 4.2 and following of counsel's skeleton argument:

"4.2 The Court declined to make findings as to the terms of the agreement or accommodation. Without making findings as to the terms of the agreement or accommodation the Court could not find that the discharge was authorised.

4.3 The evidence before the Court was that the discharge was to be in accordance with the plans submitted to the local authority. The plans showed the discharge via a 2 inch pipe. Mr Thornton [he I understand was an official] examined the 2 inch pipe in place. Therefore, the 2 inch pipe was removed so that at the date of the offence the discharge was being made via a 4 inch pipe.

4.4 In the Case Stated at paragraph 2(d) the District Judge states that there was no findings that changes made in the 1980 installation (the substitution of the 4 inch pipe) caused deterioration in the quality of discharged effluent. That is not the point. The discharge was not in accordance with the consent. A vastly greater quantity of effluent can be discharged via a 4 inch pipe. In addition a different quality can be discharged. It was not for the prosecution to prove that there was a deterioration in the quality of the discharge as a result of these changes. The fact is that the changes discharge was not made in accordance with the agreement or accommodation."

13. Mr Bradley this morning has laid particular emphasis on paragraph 4.2. It is central to this case, as I see it, that the court did indeed decline to make findings as to the terms of the agreement which it held had been entered into in about 1980. The crucial question for us is where that circumstance leads in determining the answers to the questions posed by the learned Deputy District Judge, and indeed in determining the appeal.
14. Mr Price has emphasised the absence of any complaints for 15 years, and the fact that the respondents made changes to achieve a better quality of discharge and did so to the appellant's knowledge. It may be, I suppose, that there were no complaints because nothing was perceived to be amiss until 1995, when Mr Ireland, then a regulatory controller with the appellants, received complaints about smells in the system. The respondents also assert that there was no evidence that a greater quantity of effluent was discharged through the 4-inch pipe that was substituted in (we understand) January 1981, than through the earlier 2-inch pipe. The Deputy District Judge held, as I have indicated, that:

"There was no finding that changes made in the 1980 installation (the substitution of the 4 inch pipe) caused deterioration in the quality of the discharged effluent."

15. I should refer in passing to two pieces of evidence given by Mr Baguley of the respondents concerning the 4-inch pipe. First in chief he said:

"The 4" pipe was substituted in Jan 81."

And then a little later:

"Mr Thornton [he was the official] came after we started to discharge. I cannot recall telling him. He looked at the installation to see if everything [was] in order. He was very happy the whole system worked. The 2" pipe was alcothene. The 4" pipe was plastic."

16. Then in cross-examination Mr Baguley said this:

"Had to dig trench out again to lay 4" pipe. I did not communicate that to Thornton."

17. The reason that I cite those passages is that there is a potential question in the case whether, even if there was an authorisation for discharge through a 2-inch pipe, there was later also authorisation for discharge through a 4-inch pipe. Certainly it seems to me to be clear that authorisation of a discharge through a 2-inch pipe would not of itself authorise discharge through a pipe of a different and larger size; and proof that there was no such authorisation for the 4-inch pipe would not require proof that discharge through such a pipe had deleterious consequences. So far I would agree with Mr Bradley's submissions to that effect.
18. In the result here there is in truth no finding as to the method of discharge which was authorised by the agreement which the Deputy District Judge had found to exist. There may well be pointers in the evidence that any such authorisation constituted by the agreement went only to a 2-inch pipe, but there is finding about it one way or the other. We have to consider very carefully what the consequences are. Mr Price for the respondents submits that the contract did not need to condescend to the details of its terms: it was lawful to grant a general authorisation. That may perhaps be right, but here the judge has not I think found a general authorisation; he has found that there was an agreement but then declined to make findings as to its detailed terms. Mr Price has other points, to which I have referred, as to the want of any complaint for 15 years and no suggestion that the agreement was thought to have been repudiated so far as the authority was concerned.
19. In the result it seems to me that the issue whether the judge should have found detailed terms of the agreement is capable of telling as readily in favour of the defendant as the prosecution. The Deputy District Judge was right in my view to hold that there was an evidential burden on Mr Price's client to raise evidence of an agreement which it was contended amounted to an authorisation. That was in my judgment done. Mr Baguley gave evidence (and the judge accepted it) to the effect that an agreement had been made. That is so notwithstanding the fact that the detailed terms of the agreement were not found. Mr Bradley says that it was for the defendant to establish whatever details would demonstrate that the agreement constituted an authorisation. It does not seem to me that that is necessarily so. It is plain from section 118 (which I need not set out) that the legal burden of proof rests on the prosecutor throughout: the ordinary rule in criminal cases. It is not a statutory provision in which the burden of proving some element in the issue is placed upon the defence. There is a pragmatic evidential burden on the defence to raise material placing his defence, whatever it be, before the court. But then - and this is no more than elementary - the prosecution have to refute the defence if they are to prove to the criminal standard and in accordance with the burden resting on them, the guilt of the accused.
20. It seems to me that here the prosecution did not obtain findings from the judge which justified or required a verdict of guilty. On the findings he made the conclusion to which he arrived - namely that guilt was not made out - was I think justified. I have considered very carefully what the correct recourse for this court is in those circumstances. But first we should answer the questions posed by the case. Question (c) I will repeat for convenience:

"was I correct in ruling that the respondent had the evidential burden to establish the existence of an agreement or other authority and that having done so it was for the appellant to prove that the discharges were not in accordance with the agreement, to the usual standard?"

As the question is framed I would answer it in the affirmative, although it seems to me that a different question might have been asked concerning the need to go into the details of the agreement. Although as I understand it attempts were made to persuade the Deputy District Judge to draft the case somewhat differently from the draft initially prepared, they did not prosper and no separate question was asked about the failure to find details of the agreement, albeit that the matter is raised in counsel's skeleton argument. In the circumstances as I have said I would answer it in the affirmative.

21. Question (b) - which is the only remaining outstanding question - goes to the finding as to the three months' notice. Mr Bradley's submission is again that the judge was not entitled to find that three months was inadequate absent findings as to the details of the agreement.
22. Here I disagree with Mr Bradley. It is not clear to me what kind of findings as to an agreement's terms would crucially touch the question whether three months was adequate notice or not. It seems to me therefore that the judge's failure to find such detailed terms does not undermine his conclusion that three months was insufficient. His reasoning given in the narrative judgment is not undercut by that failure, and so I would answer question (b) in the affirmative.
23. Mr Bradley has urged us that in the circumstances we should send the case back for the judge to fill the gap left by his failure to find detailed terms of the agreement. In my judgment I would not propose to take that course. I think in the circumstances here we are justified in holding that the acquittal falls to be affirmed. That is an order open to us, pursuant to section 28A of the Supreme Court Act 1981. A retrial has obvious drawbacks and disadvantages. The position is that the prosecution did not prove that there was no authorisation. It is to be noted that on 4th January 2006 the prosecutor notified the respondents' solicitors of their intention to seek a stated case, but they added this:

"Please note that our client may be prepared to abandon the appeal if your client will agree to cease discharge by no later than 31st December 2006."

The next day they wrote another letter which constituted a further (effectively a substitute) notice to terminate the agreement. It states:

"If (which is not admitted) there ever was an agreement capable of coming within the terms of Section 129 of the Water Industry Act 1991 entitling the company to discharge trade effluent into the public sewer, then this letter serves as 12 months notice determining such agreement with effect from the 13th January 2007."

24. Mr Bradley's clients - if they will allow me to say so, very responsibly - are interested less in the process of prosecution for its own sake than in obtaining an outcome to the practical problem of the continuing discharge from these premises. That it seems to me will ultimately fall to be achieved pursuant to the letter of 5th January 2006 which no doubt will be acted on.
25. In all the circumstances in this unusual case - which to my mind sets no kind of precedent - I would answer the questions as I have indicated, but affirm the acquittal.
(Judgment of Mr Justice Walker)
26. MR JUSTICE WALKER: I agree. As it seems to me our decision in this case turns on the very particular facts as to what happened before the Deputy District Judge and in the course of the case stated procedure. It cannot be successfully claimed on the part of the appellant that there was only one finding of fact open to the Deputy District Judge, namely a finding that the authorisation was limited to a 2-inch pipe.
27. In those circumstances, the only course open to us, if we were to accede to the remainder of the appellants' submissions on this aspect of the case, would be to send the matter back to the District Judge. Neither side are content with the matter simply going back to the District Judge with a request or a direction that he should answer the question as to what the terms of the authorisation were, merely by reference to the evidence that he had heard at the two-day hearing that had already taken place. It is the common position of both parties that if the matter went back to the Deputy District Judge there would have to be a further hearing with yet further evidence. When one adds to that that there is in the offing a further criminal proceeding in relation to the 12 months' notice now given, it seems to me that the course of sending the matter back to the District Judge would be wholly undesirable. For the reasons given by my Lord, it does not seem to me that such a course is necessary.
28. MR PRICE: So your Lordships answer the questions in the way indicated, and my only need is to refer to the question of costs.
29. LORD JUSTICE LAWS: Yes.
30. MR PRICE: My Lord, there was not prepared a schedule of the costs, or there has been before my client, but I assume that in the circumstances of the length and unusual quality of this case, your Lordships will simply order that my client's costs are to be paid by the prosecutor, the appellant, if not agreed.
31. LORD JUSTICE LAWS: If we make the order in principle, they be subject to a detailed assessment --
32. MR PRICE: Detailed assessment.
33. LORD JUSTICE LAWS: -- as it is now known. You apply for the costs.
34. MR PRICE: I apply for the costs.
35. LORD JUSTICE LAWS: Mr Bradley?
36. MR BRADLEY: My Lords, that costs order would usually follow but I ask your Lordship to consider the general discretion in the light of the letter particularly of 4th January 2006, which was essentially an effort to bring this matter to an end without any further litigation.
37. LORD JUSTICE LAWS: Was there a reply?
38. MR BRADLEY: I am instructed there has been so substantive reply.
39. LORD JUSTICE LAWS: It was to the solicitors, was it not?
40. MR BRADLEY: It was to the solicitors.
41. LORD JUSTICE LAWS: So what are you saying, no order for costs?
42. MR BRADLEY: My Lord, yes. (The Bench conferred)
43. LORD JUSTICE LAWS: While we have some sympathy with Mr Bradley's client's position and the unusual events which have happened here, we do not think the letter of 4th January is a good enough reason to displace the usual costs order. So we will order the respondent to have their costs of the appeal from the prosecutor, to be subject to a detailed assessment if not agreed.
44. I am very grateful to both counsel.
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