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 WC2A 2LL
		5 June 2009

1. LORD JUSTICE SULLIVAN: This a prosecutor's appeal, by way of case stated, against the decision of the justices sitting at Milton Keynes Magistrates' Court on 20 February 2008 that there was no case for the respondent company to answer. As amended, by agreement between the parties, the information laid by the appellant against the respondent alleged that

"Between 1 February 2007 and 14 February 2007 at Bletchley Leisure Centre [address given] the defendant failed to take all reasonable measures to prevent commercial waste from his business escaping from its control, contrary to section 34(1)(b) of the Environmental Protection Act 1990".

2. Section 34(1) states that:

"(1) subject to subsection (2) below [which is irrelevant for present purposes] it shall be the duty of any person who imports, produces, carries, keeps, treats, or disposes of controlled waste, or as a broker has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances

(a) [irrelevant]

(b) to prevent the escape of the waste from his control, or that of any other person, and

(c) [irrelevant]".

3. Subsection 6 provides that:

"Any person who fails to comply with the duty imposed by subsection (1) above ... shall be liable

(a) on summary conviction, to a fine, not exceeding the statutory maximum and

(b) on conviction or indictment, to a fine".

4. At this stage in the judgment it would be customary to set out the magistrates' findings of fact, however, this case stated is unusual, not merely in terms of its length, (it extends to no less than 103-paragraphs) but also in the fact that the bulk of the case stated sets out in very great detail the procedural history of the submission of no case to answer, and the appellant's response to that submission. While the evidence of the one prosecution witness is set out in some detail, the magistrates do not expressly set out their factual findings having considered that evidence.
5. The magistrates pose three questions for the opinion of this court:

"1- Were we entitled to conclude that there was no case for the defendant to answer on the grounds that the defendant as employer could not be criminally liable under sections 34 and 157 of the Environmental Protection Act 1990 (the EPA) and the general guidance in the code of practice (introduced in accordance with section 34(7) of the EPA), and specifically paragraph A8 of the code, either by way of:

(a) Vicarious liability

And/or

(b) The attribution principle.

For the acts and/or omissions of its employee where the employee had breached the duty of care under section 34 (1), when acting in the course of his employment?

"2- Were we entitled to conclude that under section 34 of the EPA and the general guidance of the Code of Practice, including paragraphs A8 to A14 of the code

(a) that there is a separate and distinct duty of care for employers and employees,

(b) that the measures required of a corporate employer are different to those required of an employee in these circumstances

(c) that the burden is on the prosecution to show that the defendant employer has failed to take all such measures applicable to it in that capacity as are reasonable in the circumstances?

(d) that the prosecution had failed to establish a prima facie case against the defendant employer.

In addition, if the High Court should decide that it has jurisdiction in this case properly to address the same:

"3- (a) if a prima facie case has been established against the defendant employer, does the burden of proof rest with the defendant employer to show that all relevant measures had been taken, such that there is a reverse burden of proof under section 34 which falls to the defendant employer to discharge by way of evidence?".

6. The caveat expressed by the magistrates in respect of this court's jurisdiction in respect of question (3) was because the magistrates felt that although other points were argued at considerable length in written submissions, this point was not argued before them.
7. At 104 paragraphs the appellant's skeleton argument matches the length of the case stated. In the context of this appeal the respondent's skeleton argument, at a mere 41 paragraphs, is a model of brevity. Between them the skeleton arguments refer to over 20 authorities. What seems to have been lost sight of in this dense legal thicket is (a) what section 34 (1)(b) actually says, and (b) what the evidence was before the magistrates. Although the magistrates did not make any express factual findings, there is nothing in the case stated which suggests that they did not accept the following matters which were included in the evidence given by the appellant's environmental enforcement officer, Ms Masters. She gave evidence that she had visited the Bletchley Leisure Centre ('the centre') in October 2006

"and saw that there was rubbish at the back of the leisure centre, a lot of black bags, and cardboard and litter had escaped from the black bags. There was a large blue compactor and litter was all around it".

8. She spoke to the duty manager, and to Mr Lennon who was the general manager at the centre, and gave them certain advice which she subsequently confirmed in writing. Paragraphs 34 and 35 of the case stated refer to Ms Masters' evidence about the events in February 2007 which were the subject of the information against the respondent.

"(34) In February 2007 a further complaint was reported to the Environmental Health Centre Helpline regarding rubbish and rats at the rear of Bletchley Leisure Centre. Ms Masters went to the site again a few days after the complaint.

"(35) She saw a huge amount of rubbish out the back by the compactor; black bags, cardboard boxes and sports equipment. She took photographs which were exhibited to the court, and all the photographs were taken on the same day on her first visit in February, on 9 February 2007. She confirmed the date from her pocket notebook".

9. After referring to a brief return visit on 14 February Ms Masters' evidence as recorded in paragraphs 41 and 42 of the case stated was:

"(41) She indicated she felt the duty of care had been breached by Mr Lennon under section 34(1)(b) as the rubbish was not contained and was escaping, and should have been put in the compactor she believed, and as she had already had dealings with them, that they should have made her aware that they had problems. The waste belonged to them; it was under their control and was on their premises. She expected that the company should be aware of the situation as well as its employees.

"(42) In evidence in chief she stated that the defendant took reasonable measures to comply with its duty by having a compactor. Counsel for the prosecution then went on to ask

'what about so far as having the rubbish going into the compactor?'

To which she replied

'no'".

10. Ms Masters was cross-examined, it was not suggested to her that the respondent company was not the operator of the centre, nor was it suggested that Mr Lennon was not employed by the respondent as the general manager of the centre. Indeed, cross-examination proceeded on the premise that the company was the operator of the centre, and did employ Mr Lennon. Thus in paragraphs 43, 47 and 48 of the case stated we find these parts of the cross-examination:

"(43) In cross-examination Ms Masters said it was Mr Lennon who was responsible for ensuring the waste was put in the compactor on 9 February 2007 when the photographs were taken by her.

"(47) It was put to Ms Masters that she had not approached the directors of the company for an interview and that no further letters had been sent to the directors or the head office of the company. This was accepted by Ms Masters.

"(48) She was referred to the duty of care under paragraph A8 in the code of practice at page 41 that

'employers are responsible for the acts and omissions of their employees. They therefore should provide adequate equipment, training and supervision to ensure that their employees observe the duty'.

And was asked to what extent she had made enquiries of the company regarding this. She confirmed that she had not made contact with any other person within the company, just Mr Lennon. She also stated that she had not carried out any checks to see what procedures the company had in place to deal with the waste, she had not asked what training was in place ...".

11. I have set out the terms of section 34 (1)(b), so far as relevant, above.
12. On the evidence before the magistrates it was not disputed that the respondent was the operator of the centre and employed a general manager, Mr Lennon, to manage the centre on its behalf. There was no dispute that controlled waste was produced by the respondent's leisure centre business. The respondent was therefore under a duty as 'a person' who produced controlled waste to take such measures as were reasonable in the circumstances (for convenience henceforth I will refer to these as 'reasonable measures') to prevent the escape of that waste from its control.
13. On behalf of the respondent Mr Kay submitted, correctly, that the prosecution does not have to establish that an escape has taken place for the purposes of section 34 (1)(b), it has to establish that there has been a failure to exercise the statutory duty of care, namely to take all reasonable measures to prevent the escape, see London Borough of Camden v Mortgage Times Group, [2006] EWHC 1615 (Admin), per Lord Justice Latham, at paragraph 9. In the Camden case there was an issue as to whether or not there had been what could properly be described as an 'escape' of the waste. In the present case, on the unchallenged evidence of Ms Masters, there had been an escape of waste from the respondent's control, see the extracts from her evidence set out above which included her contention that "the rubbish was not contained and was escaping".
14. There was evidence therefore that the respondent had, for whatever reason, failed to prevent the escape of the waste from its control.
15. I accept Mr Kay's submission that it does not automatically follow from the fact that there will have been a failure to prevent an escape that there has been a failure to take all reasonable measures to prevent such an escape. Circumstances can be envisaged, for example, an escape of waste as the result of an explosion caused by the negligence or malice of a third party, where it would not be right to draw the inference that there had been a failure to take all reasonable steps to prevent an escape from the mere fact that there had been an escape. But this was not such a case. There was nothing in the evidence before the magistrates to suggest that this escape of waste at the back of the respondent's leisure centre could not have been prevented by the taking of reasonable measures. The mere presence of the compactor at the rear of the centre could not, on any rational basis, have amounted to the taking by the respondent of all reasonable measures to prevent the escape of waste, see paragraph 42 of the case stated above.
16. In opening its case before the magistrates the appellant had relied on the fact that an information had also been laid against Mr Lennon alleging that he had committed an offence under section 34(1)(b). He had pleaded guilty to that offence and had been sentenced on 12 October 2007. The magistrates noted at paragraph 17 of the case stated:

"It was suggested by counsel for the prosecution that the conviction of the employees supports the contention that this corporate defendant is also liable, and that the elements of the offence are made out regarding this defendant".

17. The submissions made on behalf of the appellant went somewhat further than the contention that Mr Lennon's plea of guilty to fail to take all reasonable measures to prevent the escape of the waste supported the contention that the respondent too had failed to take such measures:

"(27) It was stated that the company had not taken all reasonable measures and was vicariously liable for the manager, and had therefore committed the offence under section 34(1)(b)".

18. Whether or not the respondent was vicariously liable for the failings of its general manager, the fact that the general manager of the respondent's centre had failed to take all reasonable measures to prevent the escape of the waste was clearly relevant to the question whether the respondent itself had failed to take all such measures, assuming in the respondent's favour that it was to be distinguished from the actions of its general manager. Whatever view is taken about the wider issues of vicarious liability and liability by attribution, as a person who produced controlled waste at the centre the respondent would have had to take some measure or measures to prevent the escape of waste if it was to discharge its statutory duty to take all reasonable measures. However, apart from the information that its general manager had pleaded guilty to a breach of his duties under the Act, there was no evidence before the magistrates that the respondent had taken any measures (apart from merely providing a compactor) to prevent the escape of waste that occurred in February 2007.
19. In paragraph 85 of the case stated the magistrates explained why they had accepted the submission that the respondent had no case to answer:

"given the lack of evidence in relation to the company we did not feel able to infer a failure on the part of the company from the evidence we had heard".

20. In my judgment the magistrates' conclusion that they were unable to draw that inference on the evidence before them was not reasonably open to them. At the risk of repetition, the respondent was under a duty to take all reasonable measures to prevent an escape, on the face of it this particular escape of waste at the rear of the centre could have been prevented by the taking of reasonable measures. The respondent failed to prevent the escape, and apart from the evidence that its general manager had failed to comply with his duty to take all reasonable measures to prevent the escape, there was no evidence that the respondent had taken any measures to prevent the escape. Indeed, the cross-examination of Ms Masters had emphasised her lack of knowledge as to what, if any, measures had been taken by the respondent. She had merely said that such measures had not been taken to ensure that the waste went into the compactor, see paragraph 40 of the case stated.
21. In these circumstances the only inference reasonably open to the magistrates at the conclusion of the prosecution case was that there was a prima facie case that the respondent had failed to take all reasonable measures to prevent the escape of the waste in February 2007. It follows that regardless of the answers to the three questions posed in the case stated, the magistrates were plainly wrong to accept the respondent's submission that there was no case for it to answer. Since the appeal must succeed on this narrow ground, I, for my part, do not consider that it would be appropriate for this court to embark on a lengthy and necessarily obiter discussion of the various issues of principle that are raised by the three questions in the case stated.
22. Both Mr Butler for the appellant, and Mr Kay, agreed that if the court concluded that the appeal should be allowed on the narrow ground that I have set out above, then the appropriate course would be to set aside the magistrates' decision that there was no case to answer and to remit the matter back to the magistrates so that the case can continue. For my part that is how I would dispose of this appeal.
23. MR JUSTICE WILKIE: I agree.
24. LORD JUSTICE SULLIVAN: So, Mr Butler, the appeal is allowed. The magistrates decision that there is no case to answer is set aside, the matter is remitted to the magistrates. Now, the only other question is: should it be the same magistrates or different magistrates?
25. MR BUTLER: I discussed with my learned friend this issue, we want a fresh trial so it should be a separate bench, if not a District Judge, they do sit in Milton Keynes, because of the legal issues raised. We have agreed this, that it should not go part heard, it should be a fresh trial before a new bench.
26. LORD JUSTICE SULLIVAN: Yes. It seems to us that probably there has been such a long delay anyway since the trial you would effectively have to crank the whole thing up and start again anyway. It would be quite unreasonable to expect these magistrates just to plunge in half way through. So the order will be that it be remitted to a different bench of magistrates so that the case can be considered de novo. I do not know that we would necessarily order that it go to a District Judge, are you both agreed that it would be helpful to go to a District Judge? It does seem to me, to us, that it probably would be helpful.
27. MR KAY: Yes, I think that would be helpful.
28. LORD JUSTICE SULLIVAN: I think then I will remit it to a different bench, and associate, put in brackets 'consideration should be given to the desirability of the matter being considered by a District Judge magistrates rather than by a lay bench given the legal issues involved'. I think that is as far as we can go rather than positively ordering it, but I suspect they will take the hint if we say that.
29. Right, good. Anything else?
30. MR BUTLER: There is costs. Costs are agreed, there is no dispute. There is no dispute in the sum of costs, it is a sum of £6,509.25.
31. LORD JUSTICE SULLIVAN: £6,509.25?
32. MR BUTLER: £6,509.25.
33. LORD JUSTICE SULLIVAN: £6,509.25. That is agreed did you say Mr Kay?
34. MR KAY: My Lord, yes, the sum is agreed. The only matter that I would raise is the matter for your Lordships to consider the extent to which the appellants have actually succeeded on this matter. There were three questions asked, on the face of it none of them have been answered, let alone be answered in the appellant's favour. Your Lordships might give some consideration to that issue before awarding costs. On the sum I do not make any submissions.
35. LORD JUSTICE SULLIVAN: Yes. I think it is a nice try if I may say so, but speaking for myself -- We have answered 2D in practice, but yes, well it does seem to me that everybody was looking at everybody else to ask these questions. Yes I think we are agreed, the respondent should pay the appellant's costs in the sum of £6,509.25.
36. MR KAY: My Lord, yes. Can I raise one other additional point, that is the consideration to certify the question in relation to this. I appreciate the points that your Lordships have raised this morning in relation to what appears to be a fairly narrow point in this case, but it is, in my respectful submission, a very important point. Cases such as this are prosecuted the length and breadth of the country on a daily basis and the ruling your Lordships have given today, on one interpretation, could certainly effect the way such prosecutions are brought. In my experience it is unusual for a prosecuting authority in effect to simply prove the escape and then it be left to the defendant to prove that they have taken all reasonable steps. I have, in effect, considered drafting a question which would be in these terms at this stage along the lines of the following: in a prosecution under section 34 of the Environmental Protection Act 1990, in order to pass the Galbraith test is it sufficient for the prosecuting authority to demonstrate an escape of controlled waste, or must the prosecution prove that a measure which could reasonably have been taken was not taken? Your Lordships will be familiar, not least because it is in the bundle, the appellant's bundle, with the case of Chargot, the recent House of Lords decision in relation to section 2 and section 3 of the Health and Safety at Work Act. In that case their Lordships decided that in a prosecution under section 2 or section 3 it is sufficient for a prosecuting authority to in effect simply prove the fact of an accident in order to get home, if one likes, so far as the half time rule is concerned, in relation to the question of risk. In the closing remarks of Lord Brown in Chargot, consideration was given to the difference between a prosecution under section 2 and section 3 where the approach that your Lordships have in effect endorsed in this case would be appropriate, in other words, if the prosecution in a health and safety case simply showed the accident in order for the burden to pass. Lord Brown considered that as against the prosecution of the section 7, section 7 as your Lordships will be aware is legislation which mirrors the legislation of section 34, that being the duty shall be a duty of every employer to take reasonable care. What Lord Brown says, and I am looking at page 18 of the judgment in Crown v Chargot, which appears I think --
37. LORD JUSTICE SULLIVAN: -- it is in your authorities?
38. MR KAY: No, it is not, it is in my learned friends' authorities.
39. LORD JUSTICE SULLIVAN: Right. Can you give us the tab number?
40. MR KAY: I can not, because I have a different bundle.
41. LORD JUSTICE SULLIVAN: Chargot is tab 4.
42. MR KAY: Yes, that is the one. And it is the last page, the judgment of Lord Brown, the last page. And in fact it starts the page before, at that stage of his ruling Lord Brown is considering the effect of the earlier ruling in relation to section 2 and section 3, in relation to the prosecutions under section 7, and makes specific reference to the case of Beckingham. Beckingham, as your Lordships may be aware was the prosecution of an architect under section 7 of the Health and Safety at Work Act, following an outbreak of Legionnaires Disease. The point that Lord Brown makes at B on page 18 reads as follows;

"it is critical to that decision however, are the terms of section 7 of the act strikingly different from those of sections 2 and 3? Section 7 provides ..."

43. And he recites

"it shall be the duty of every employee while at work (a) to take reasonable care".

44. What I say in relation to that is, that is wording which mirrors section 7, therefore mirrors section 34, whereas section 2 and 3 of the Health and Safety at Work Act mirrors the early section 33. He goes on to say:

"obviously an alleged breach of duty to take reasonable care must be specified and proved"

45. So the distinction being drawn between a prosecution under section 7 which as I say mirrors section 34, and the ruling as it applies to section 2 and section 3 in which the House of Lords had earlier decided that it is appropriate, as your Lordships have indicated in this case, simply to prove the accident and then the burden passes to the defendant.
46. LORD JUSTICE SULLIVAN: I am bound to say, I do not mean to sound rude and interrupt you, I thought we had gone out of our way to say we were not deciding, as a matter of general principle, that it was enough just to prove the accident or the mistake. I recall expressly accepting that there may be circumstances in which it would not be right to draw the inference from the fact that there had been an escape that all reasonable steps had not been taken. All we were concerned with was this escape in circumstances where, apart from the information, which seemed to be a perfectly ordinary escape if I may say so, to put if neutrally, where the general manager had pleaded guilty to breach of duty, and there was no other information before the bench as to what measures had been taken. So, I mean you have set up an Aunt Sally with respect.
47. MR KAY: My Lord, I see that, but the point really is in relation to this, that the wording of your Lordship's ruling is such that in a prosecution under section 34 the prosecuting authority, following your Lordship's ruling, would not have to prove that there were steps which should have been taken, and in my respectful submission that is the way that these cases are ordinarily prosecuted. The question that I asked, on the basis that it is suitable for it to be certified, is whether that is right, and whether in all cases it should be the case that prosecuting authorities should, in effect, prove which steps they say could have been taken, should have been taken, and were not taken.
48. LORD JUSTICE SULLIVAN: If I may say so that is a different question to the one you just read out to us. If you are asking us to certify a question along the lines of whether it is necessary in a prosecution under section 34(1)(b) for the prosecution to specify the steps that would be reasonable and to specify the steps that were not taken, that is a different question, which I accept that may be a question of principle.
49. MR KAY: I would certainly adopt the question as rephrased.
50. LORD JUSTICE SULLIVAN: Right.
51. MR KAY: Because that would also seem to be in accordance with the language used by Lord Brown in Chargot that I referred your Lordships to.

"Obviously an alleged breach of duty to take reasonable care must be specified and proved"

52. That is under section 7 which I say mirrors section 34.
53. LORD JUSTICE SULLIVAN: Yes. What do you want to say about that Mr Butler?
54. MR BUTLER: As ever My Lord, it is a matter for your Lordships to decide whether to stay the case. The observation I would make, your Lordships have identified that had it not been the case, it is for the prosecution to show in this case on the facts, as they did, that there had been an escape of waste, and the prosecution would never have been able to be in a position to establish what reasonable steps could be taken. In this case we deal with simple waste, in other cases that I prosecute it does not amount to simple waste, it is very sophisticated emissions of waste, and could sometimes never be in a position to know what those steps should be. So I do not agree with my learned friend's proposition, but as to whether your Lordship stays the case, it is a matter for your Lordships.
55. LORD JUSTICE SULLIVAN: Yes. Well it is a certifiable question really. I think we will just retire briefly and consider it.
(Court rises at 3.03pm and sits again at 3.03pm)
56. LORD JUSTICE SULLIVAN: No, we are not prepared to certify it. So the question of permission to appeal must arise I am afraid.
57. Thank you very much.