APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2014] HCJAC 26
Lord Justice Clerk Lord Bracadale Lord Wheatley	Appeal No: XC38/13 and XC736/12   OPINION OF THE COURT   delivered by LORD BRACADALE   in   APPEAL   by   DOONIN PLANT LIMITED and GARY DOONIN   Appellants;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellants: Jackson QC, Mackintosh; John Pryde & Co, Edinburgh

Respondent: Niven-Smith AD; the Crown Agent

25 February 2014

Introduction
[1] On 25 February 2014 we refused the appeals against conviction by each of the appellants and the appeal against sentence by the first appellant. We indicated that we would give written reasons which we now do. It is convenient in this opinion to refer to the first appellant as "the company" and the second appellant, who was a director of the company, as "Mr Doonin".

[2] The company and Mr Doonin were indicted for trial at the Sheriff Court at Livingston on charges under section 33(1) of the Environmental Protection Act 1990. The indictment contained eight charges: a set of four charges against the company; and a similar set of four charges against Mr Doonin. On 12 September 2012 after trial the company was found guilty of charge 2, namely, keeping controlled waste in a manner likely to cause pollution of the environment or harm to human health, and charge 4, namely, keeping controlled waste without a waste management licence. Mr Doonin was found guilty of charges 6 and 8. The charges of which the company was convicted were in the following terms:

"(02) On various occasions between 17 January 2010 and 11 February 2010, both dates inclusive, at the former Woodend Colliery, Mill Road, Armadale, West Lothian, you Doonin Plant Limited did keep controlled waste, namely, a car tyre, cardboard, carpet, carpet underlay, chipboard, clothing, electrical wiring, electrical components, electrical circuit breakers, food packaging (plastic), insulation material, laminated paperwork, metal mechanism, metal wire, newspaper, plasterboard, plastic bottles, plastic buckets, plastic ducting, plastic hosing, plastic sheeting, plastic bags, plastic telephone handset, plastic video tapes, postal mail, paperwork, scissors, sofa cushions and wooden planks with hinges in a manner likely to cause pollution of the environment or harm to human health, namely that you did keep said wastes on land or in land that was not lined with an impermeable liner or supplied with an appropriate leachate collection system or landfill gas extraction system, resulting in the likelihood of leachate high in levels of Biochemical Oxygen Demand and dissolved metals making its way to groundwater and/or to local water courses, and to the likelihood of landfill gas being produced and venting freely to air, causing offensive odour and resulting in the release to atmosphere of methane and carbon dioxide, thereby impacting on both local and global air quality;

CONTRARY to the Environmental Protection Act 1990, Section 33(1)(c);

 

(04) On various occasions between 17 January 2010 and 11 February 2010, both dates inclusive, at the former Woodend Colliery, Mill Road, Armadale, West Lothian, you Doonin Plant Limited did keep controlled waste, namely, a car tyre, cardboard, carpet, carpet underlay, chipboard, clothing, electrical wiring, electrical components, electrical circuit breakers, food packaging (plastic), insulation material, laminated paperwork, , metal mechanism, metal wire, newspaper, plasterboard, plastic bottles, plastic buckets, plastic ducting, plastic hosing, plastic sheeting, plastic bags, plastic telephone handset, plastic video tapes, postal mail, paperwork, scissors, sofa cushions and wooden planks with hinges, on or in said land otherwise than in accordance with a waste management licence in that you did keep the aforesaid controlled waste on or in said land;

CONTRARY to the Environmental Protection Act 1990, Section 33(1)(b)(i);"

 

Charge 6 against Mr Doonin was in similar terms to charge 2 and charge 8 was in similar terms to charge 4.

[3] On 13 December 2012 the company was fined £200,000 in cumulo on both charges and sentence on Mr Doonin was deferred in order for him to be of good behaviour and for his behaviour as a director of any other companies to be monitored.

 

The evidence
[4] The circumstances as they emerged in the evidence are summarised by the sheriff in his report. The company owned Woodend Colliery, a former colliery in West Lothian extending to approximately 55 acres upon which stands a bing. Neighbouring residents had complained to West Lothian Council about operations taking place at the colliery. They had seen large lorries loaded with waste material going to the colliery. One of these people, Mr Edward Grant, gave evidence that on 17 January 2010 he saw Doonin lorries dumping rubbish at the colliery and complained to the Council about the site. Another witness, Mr John Erskine, said that he saw Doonin lorries sitting at the entrance to the site over a period of days. On 22 January 2010 environmental officers from the Scottish Environment Protection Agency (SEPA) who were acting on information passed to them by West Lothian Council visited the colliery and discovered that a large amount of waste had been deposited and covered over with soil. After carrying out various investigations, they returned to the site on the 11 February 2010 when they marked out an area at the top of the bing which was not to be disturbed. On 16 March 2010 environmental officers from SEPA went to the site and dug a number of trenches using a mechanical excavator, which exposed a very large quantity of waste material.

[5] In April 2010 SEPA scientists collected samples of a liquid which had been produced at the site as a result of the effect of the water draining through the waste. This is known as "leachate". Evidence was given by scientists from SEPA as to the composition of the leachate which had been produced and as to the likelihood of gas similar to landfill gas being produced at the site. A landfill engineering specialist gave evidence as to the likelihood of waste products from the site being produced and contaminating surrounding land. A hydro-geologist from SEPA gave similar evidence.

[6] While the company accepted that it did not have a waste management licence, its position was that it did not require one because its activities were covered by an exemption to the requirement to have a licence (a "paragraph 13" exemption), and that this allowed it to manufacture a form of aggregate used in the construction industry called "6F2". In his evidence Mr Doonin said that the company was not storing any waste at the site, but was turning it very quickly into the 6F2 aggregate, and that under the relevant exemption it was legally permissible to use a certain amount of controlled waste as one of the components of the 6F2. In addition, the company claimed that none of its activities was likely to cause pollution.

 

Grounds of appeal
[7] After sifting and a hearing on an application under section 107 (8) of the Criminal Procedure (Scotland) Act 1995 leave to appeal was granted on grounds 7, 8 10 for the company and grounds 7, 8 and 9 for Mr Doonin. In addition, the company was granted leave to appeal against sentence.

 

Statutory provisions
Environmental Protection Act 1990
[8] Section 33 of the Environmental Protection Act 1990 (the 1990 Act), as it was in force at the relevant time in 2010, and so far as relevant for present purposes, provided:

"(1) Subject to subsection (2), (2B) and (3) below and, in relation to Scotland, to section 54 below, a person shall not-

...

(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of-

(i) in or on any land, or

...

except under and in accordance with a waste management licence;

(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.

...

(3) Subsection (1)(a), (b) or (c) above do not apply in cases prescribed in regulations made by the Secretary of State and the regulations may make different exceptions for different areas."

 

The Act provided a number of definitions. Section 75(2) defined "waste" as "any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard". Section 75(4) defined "controlled waste" as "household, industrial and commercial waste or any such waste". Section 29(3) defined "pollution of the environment" as:

"pollution of the environment due to the release or escape (into any environmental medium) from

(a) the land on which controlled waste is treated,

(b) the land on which controlled waste is kept,

(c) the land in or on which controlled waste is deposited,

(d) fixed plant by means of which controlled waste is treated, kept or disposed of,

of substances or articles constituting or resulting from the waste and capable (by reason of the quantity or concentrations involved) of causing harm to man or any other living organisms supported by the environment".

 

Section 29(5) defined "harm" for the purposes of section 29(3) as "harm to the health of living organisms or other interference with the ecological systems of which they form part". Section 29(6) defined the "disposal" of waste as including "its disposal by way of deposit in or on land".

 

Waste Management Licencing Regulations 1994
[9] Regulation 17 of the Waste Management Licencing Regulations 1994, as it was in force at the relevant time in 2010, and so far as relevant for present purposes, provided:

"(1) Subject to the following provisions of this regulation and to any conditions or limitations in Schedule 3, section 33(1)(a) and (b) of the 1990 Act shall not apply in relation to the carrying on of any exempt activity set out in that Schedule.

(5) In the case of an exempt activity involving the carrying out by an establishment or undertaking of the disposal or recovery of waste, paragraph (1) applies only if-

(a) the type and quantity of waste; and

(b) the method of disposal or recovery,

are consistent with ensuring the attainment of the objectives mentioned in paragraph 4(1)(a) of Part I of Schedule 4."

 

Regulation 18 provided for the registration of exemptions.

 

[10] Paragraph 13 of Schedule 3 to the 1994 Regulations provided:

"(1) The manufacture from-

(a) waste which arises from demolition or construction work or tunnelling or other excavations; or

(b) waste which consists of ash, slag, clinker, rock, wood, bark, paper, straw, crushed glass or gypsum,

of timber products, straw board, plasterboard, bricks, blocks, roadstone, soil, soil substitutes or aggregate.

...

(3) The storage of waste which is to be submitted to any of the activities mentioned in sub paragraphs (1) and (2) if-

(a) the waste is stored at the place where the activity is to be carried out; and

(b) the total quantity of waste stored at that place at any time does not exceed-

(i) in the case of the manufacture of roadstone from road plannings, 50,000 tonnes; or

(ii) in any other case, 20,000 tonnes."

 

Paragraph 4(1)(a) of Part I of Schedule 4 of the 1994 Regulations provides:

"(1) For the purposes of this Schedule, the following objectives are relevant objectives in relation to the disposal or recovery of waste-

(a) ensuring that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without-

(i) risk to water, air, soil, plants or animals; or

(ii) causing nuisance through noise or odours; or

(iii) adversely affecting the countryside or places of special interest;

(b) implementing, so far as material, any plan made under the plan-making provisions".

 

Ground of appeal 7
[11] Ground of appeal 7 in each of the notes of appeal relates respectively to charges 2 and 6. It is averred that the sheriff failed to give directions to the jury, or give them any guidance, on the definition of the word "likely". By failing to give such a direction the jury were left without direction on one of the essential facts required to be proved in terms of the libel.

[12] Charges 2 and 6 contain the allegation that the appellants kept waste "in a manner likely to cause pollution of the environment or harm to human health". At page 20 of his charge the sheriff directed the jury that section 33 of the 1990 Act was self-explanatory and did not really need any further explanation. In his report at page 17 he said that he came to the conclusion that there was very little to be gained in trying to define a commonplace and ordinary word of the English language and that it might be dangerous if he tried to devise his own definition of the word or phrase. It seemed to him that the phrase "in a manner likely to cause pollution" was entirely straightforward and would carry a meaning which would be well understood by members of the jury.

[13] Mr Jackson QC, on behalf of both the company and Mr Doonin, pointed out that while the sheriff had failed to define the word "likely", he had, in contrast, defined almost every other word which featured in the charge, including "waste", "pollution", "harm" and "waste management licence". While it had to be recognised that each of these words and phrases had a statutory definition, the sheriff at page 31 had offered the jury a definition of the word "keeping" which was not defined in the Act. It was important to understand that there had never been any acceptance on the part of the appellants that pollution of the site would have been caused by the deterioration of the waste. The introduction of the word "might" in the following passage of the directions was calculated further to confuse the jury:

"If you took that view, what you have to decide is whether, because of what was done during the dates, between these dates, pollution was likely, at some point it might have. It doesn't really matter whether that would have been quickly, or even over a much longer period."

 

[14] Under reference to Stroud's Judicial Dictionary at page 1656 Mr Jackson pointed out that the authorities used the word "likely" in a number of different ways. Mr Jackson submitted that the proper definition in the circumstances of this case was that there would require to be a real possibility of pollution or harm to human health occurring (Wallis v Bristol Water Plc [2010] Env LR 16 306, a case concerning contamination of the water supply). In the absence of a definition of "likely" in the directions it would be pure speculation to form a view about the basis on which the jury came to their decision. It could not be assumed that the jury would have understood the word "likely" to mean "probably".

[15] In their written submissions the Crown submitted that the word "likely" was a commonplace and ordinary word. It should be given the meaning that the normal speaker of English would understand it to mean. There was no requirement for the sheriff to direct on the meaning of the word and the absence of such a direction did not amount to a misdirection. If it was considered in the light of the decision in Wallis v Bristol Water Plc that the proper definition in the context of this case was that there was "a real possibility" as opposed to it being "more probable than not" then the definition set a lower test of likelihood than "more probable than not". Attention was drawn to paragraph 16 of Wallis in which the court referred to the earlier decision In Re H (Minors) 1996 AC 563 at 584 which concerned the phrase "likely to suffer significant harm". Lord Nicholls stated that the primary meaning of the word "likely" in every day usage was "probable" in the sense of "more likely than not". Accordingly, it was submitted that if there had been a misdirection by failure to define the word "likely" as meaning "real possibility" then the misdirection was in favour of the appellants and there had been no miscarriage of justice.

[16] It is clear from the sheriff's report and from the notes of evidence in appendix A to his report that there was evidence before the jury as to what happens when waste kept in the manner in which the appellants were keeping it deteriorates. This will give rise to the production of leachate and gas similar to landfill gas. The sheriff states that in April two SEPA scientists collected samples of leachate which had been produced at the site as a result of the effect of water draining through the waste. Expert evidence was also given of the means by which the leachate could make its way into the water systems in the countryside. At page 40 of the charge the sheriff put it thus:

"Now this is important but the question is, not whether pollution actually occurred, it's not whether any of the local streams, and so on were actually affected by leachate, or whether gas with or without odours was actually created from the waste. The question for you would be whether pollution by one or other of those particular methods, which are the methods the Crown refer to, in the charges, was likely because of the manner in which things were done."

 

[17] The main thrust of the defence position in the trial was that the waste was being kept on a temporary basis while it was in the process of being converted into aggregate. In these circumstances the waste would not be there long enough for leachate or gas to be produced. While senior counsel on behalf of the appellant company at the trial was critical of many aspects of the case presented by the Crown, at no point did he raise any issue in relation to what was meant by the phrase "likely to cause pollution of the environment or harm to human health". What was meant by the phrase was not an issue in the trial. This was not a case in which one party was claiming that the phrase meant "probably" and the other that it meant "a real possibility".

[18] We recognise that there may be cases in which these distinctions are of importance. We consider that in this case the issue was what the jury made of the evidence which was available as to the circumstances in which the waste material was kept and the consequences of its deterioration. In the absence of any conflict between the parties at the trial as to what the word "likely" meant it was, in our view, unnecessary for the sheriff to define a word in common usage. For these reasons we considered that this ground of appeal was not well founded.

 

Ground of appeal 8
[19] Ground 8 in each of the notes of appeal relates to all charges. In this ground it is averred that the sheriff's directions when considered as a whole were contradictory and incomprehensible. The jury could not reasonably have been able to follow the directions. Specifically, at pages 47ff of the transcript the sheriff took a confusing and contradictory approach to the interrelationship between the charges. These aspects of the directions must have been confusing to the jury as they returned a verdict that appeared to be in direct conflict with the directions, namely, the sheriff having directed the jury that to convict of charges 3 and 4 they must convict on charges 1 and 2 whereas the jury convicted on charges 2 and 4 and acquitted on charges 1 and 3.

[20] Mr  Jackson was critical of the approach of the sheriff to the interrelationship between the charges. Under reference to passages in the sheriff's charge at pages 47ff he submitted that the way in which the sheriff had linked together the charges in his directions was wrong. A juror would be liable to get the impression that a conviction on one charge equalled a conviction on the other and vice versa. The jury might have taken the view that they wanted to convict on charges 3 and 4 and because of the sheriff's directions might have felt bound also to convict of charges 1 and 2. It was impossible to know what the effect of these directions would be on the jury. It was not possible to unravel the jury's thinking.

[21] We note that the approach of the sheriff was to concentrate on charges 1 and 2. At page 47 of his charge the Sheriff said:

"... It's 1 and 2 that really are the charges, I think you should regard 1 and 2 is the charges, but charges 3 and 4 are before you."

 

He went on at page 48 to say:

"... It seems to me that charges 1 and 2 on the one hand, and charges 3 and 4 on the other hand, to a very large extent stand or fall together... If you were, for example, convicting the accused of disposing of waste or keeping waste in a manner likely to cause pollution then, no doubt, you might come to the conclusion that there was a separate offence of doing these things without a licence, because you do need a licence to dispose of controlled waste or keep controlled waste."

 

He went on at page 49 to observe to the jury that if they were convicting of charges 1 and 2 it seemed to him that charge 3 would follow on (he made no reference at this point to charge 4). On the other hand it seemed to him that it was difficult to see how the jury could acquit of charges 1 and 2 but at the same time convict of charges 3 and 4. He said that it seemed to him that the charges stood or fell together but added that the charges were before the jury and it was a matter for them.

[22] After retiring to consider their verdict the jury returned to ask a question about the relationship between the charges. The sheriff directed them that each charge must be considered separately. He went on to say that it seemed to him, qualifying that by saying "but it is always for you", that if they were convicting of both charges 1 and 2 it was difficult to see why there would not also be a conviction on charges 3 and 4. On the other hand if they were acquitting on charges 1 and 2 it was difficult to see that there would be a conviction on charges 3 and 4. Finally, he stressed again that it was necessary for the jury to consider each charge separately.

[23] The directions of the sheriff in these passages must be read not only in the context of the charge as a whole but also in the light of the issues that were live in the trial. We had the benefit of being able to read the transcripts of speeches of counsel. Both the advocate depute and senior counsel for the company approached the case very much on the basis that charges 1 and 2 were the main charges and that charges 3 and 4 followed on. At pages 108 - 109 of the transcript of the speech of senior counsel for the company it is specifically recognised that charges 3 and 4 followed from charges 1 and 2. In giving the directions that he did give the sheriff was doing no more than reflecting the way in which the case had been presented to the jury by both the Crown and the defence. In addition, he qualified his remarks by making it clear that the assessment of the evidence was a matter for the jury and that they must consider each charge separately. While, as the sheriff himself recognises, these passages of the charge might have been more clearly expressed, we are in no doubt that the jury would have understood what was being said. We note that the jury sought clarification and their discerning verdict reflects a degree of care in their approach to the interrelationship between the charges. For these reasons we considered that this ground of appeal was not well founded.

 

Grounds of appeal 10 for the company and 9 for Mr Doonin
[24] In this ground of appeal it is contended that the Crown failed to prove beyond reasonable doubt and by corroborated evidence that the company was not operating under one of the exemptions under regulation 17 of the Waste Management Licensing Regulations 1994.

[25] As noted above, while the company accepted that it did not have a waste management licence, its position was that it did not require one because its activities were covered by an exemption in terms of paragraph 13 of the 1994 Regulations which allowed it to manufacture 6F2 aggregate. To that end it was permissible to store the waste at the site provided the amount at any one time did not exceed 20,000 tonnes.

[26] Before the Sheriff the Crown argued that the onus of proof was on the defence to bring the company and Mr Doonin within the scope of the paragraph 13 exemption. The sheriff rejected this argument taking the view that this defence had similarities to special defences such as a self-defence of alibi. Accordingly, in his view it was for the Crown to prove that the paragraph 13 exemption did not apply. Having formed that view he gave the following directions:

"...you should remember that because it's the Crown that has to prove their case, it's the Crown, the Crown has to prove guilt, it's for the Crown to prove that the exemption did not apply. The Crown have the burden of proving that the exemption did not apply. So, it's effectively for the Crown to exclude the defence position. It's not, as I said yesterday, for the accused to prove anything. They don't have to prove they were working within the exemption to any ... they don't have to meet any standard. It's for the Crown to prove that they were not covered by an exemption for it and, and the Crown have to prove that beyond reasonable doubt."

 

[27] Before us Mr Jackson contended that while the Sheriff's approach to the question of onus of proof was correct he had failed to give a direction that the absence of the exemption required to be proved by corroborated evidence. In the event there was insufficient evidence to prove the absence of the exemption. At its highest there was one piece of evidence tending to suggest that 6F2 could not be made from the waste. While there was one source of evidence to indicate that no exemption was registered, the evidence indicated that the record-keeping of SEPA in relation to exemptions was not satisfactory. There was one source of evidence expressing the opinion that the amount of waste on the site was greater than the quantity of material permitted for the exemption. That evidence taken together was insufficient to prove that the appellants were not operating within the paragraph 13 exemption as they claimed.

[28] The Crown submitted that the sheriff had been wrong in his decision on the question of onus of proof and as a result had misdirected the jury. However, as that was a misdirection in favour of the appellants there had been no miscarriage of justice.

[29] Paragraph 16 of schedule 3 of the Criminal Procedure (Scotland) Act 1995 provides:

"Where, in relation to an offence created by or under an enactment any exception, exemption, proviso, excuse, or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse or qualification need not be specified or negatived in the indictment or complaint, and the prosecution is not required to prove it, but the accused may do so."

 

It is an offence under section 33(1)(b) to keep controlled waste except under and in accordance with a waste management licence. Sub-section 33(3) provides for the making of regulations with regard to exceptions. Provision for exceptions and exemptions is made in the 1994 Regulations. We were told that there were around sixty possible exemptions. Thus the offence under section 33(1)(b) is an offence to which exemptions are expressed to have effect. The particular exemption of interest for present purposes is the exemption provided in paragraph 13 of schedule 3 to the 1994 Regulations for the manufacture of aggregate. Under this exemption it was permissible to store the waste at the place where the activity was to be carried out, provided the total quantity of waste stored at any time did not exceed 20,000 tonnes.

[30] In our opinion this exemption is clearly one which falls within paragraph 16 of schedule 3 to the 1995 Act. The exemption need not be specified or negatived and the Crown did not require to prove that it did not apply. It was open to the appellants to prove that they came within the exemption.

[31] This approach is in accordance with the decision of the court in Cunningham v HM Advocate 2012 SCCR 605 with which we respectfully agree. In that case the appellant was subject to an order made by the Chancery Division of the High Court of Justice in London that he should not "without the leave of the court" be a director of a company or engage in certain activities. Before the sheriff counsel made a submission in terms of section 97 that there was no case to answer because it was necessary for the Crown to prove by corroborated evidence that leave had not been granted by the court to the appellant to carry out the activities libelled in charge. The sheriff repelled the submission. An appeal against that decision was refused. The court held that the case came within paragraph 16 of schedule 3 to the 1995 Act. The passage at paragraph 12 of the opinion of the court delivered by Lord Eassie is instructive:

"However, we think it important to appreciate that paragraph 16 of schedule 3 is a statutory reflection of an underlying, and perhaps wider, principle respecting the onus of proof. While the decision in Muir v Grant & Co [1948 JC 42] turned very much on the particular wording of the wartime emergency legislation in issue in that prosecution, we note in particular the observations of the Lord Justice General (Cooper) respecting section 19 (3) of the Summary Jurisdiction (Scotland) Act 1908, which contained a provision approximately equivalent to that found in paragraph 16 of schedule 3 to the 1995 Act. The Lord Justice General said:

'the typical case for the application of section 19 (3) is where the accused is, or ought to be, able instantly to verify or readily to establish the exception, &c, on which he relies to exclude the inference of guilt.'

The principle underlying such statutory provision is expressed by the court of King's Bench in R v Turner [(1816) 105 ER 1026]. The criminal charge brought in that case was brought under statute and was one of being in possession of game by a person who was not in any manner qualified or authorised to kill game. The issue before the court was whether the prosecutor required to prove a negative, namely that the accused was not qualified to kill game. Ellenborough CJ held, on largely pragmatic reasons, that it was not for the prosecutor to negative the qualification of the offence. Bayley J said, 'I am of the same opinion. I have always understood it to be a general rule that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it and not he who avers the negative.' Holroyd J was of the same opinion. The court therefore held that the burden was on the defendant to prove that he possessed the qualification (to kill game) required by the Act."

 

The court held that the appellant not having the possible exemption envisaged in terms of the disqualification order to which he was subject in the formulation "without leave of the court" constituted a negative averment made by one party which was peculiarly within the knowledge of the other. Whether the appellant had sought and obtained the leave of a competent court was clearly a matter within his knowledge. This conclusion was not altered by the possibility that with inordinate diligence the prosecutor might search every possible source of information and lead potentially innumerable witnesses to testify to the fruitless nature of their searches for evidence which might support the accused having the benefit of the exemption.

[32] In our opinion whether the appellants were operating within a paragraph 13 exemption was clearly a matter within their knowledge. It was open to them to prove that they came within the exemption. It was not necessary for the Crown to prove that they did not come within the exemption. In directing the jury that the onus was on the Crown to do so the sheriff misdirected the jury. This was, however, a misdirection in favour of the appellants and no question of a miscarriage of justice arises.

[33] We do not consider that it is necessary to examine in detail the case of Environment Agency v ME Foley (Contractors) Ltd [2002] Env LR 27 675 to which both the Crown and the appellants made reference. The decision was reached on a case specific basis and without reference to section 101 of the Magistrates' Courts Act 1980 which contains a similar provision to paragraph 16 of schedule 3 to the 1995 Act.

[34] For these reasons we concluded that grounds of appeal 9 and 10 were not well founded.

 

Appeal against sentence by the company
[35] In his report the sheriff recognised that the fine which he imposed was a very substantial one. He expressed the view that this was a large scale operation which involved a serious and significant breach of the legislative provisions with the real potential for danger to the environment and consequences for public health. The sheriff noted that the company had a number of previous convictions. These included contraventions of the Control of Pollution Act 1974 and the 1990 Act. In 2007 the company was convicted of contraventions of the Water Services (Scotland) Act 2000. The most significant previous conviction was dated 21 October 2009 when on indictment in the sheriff court the company pled guilty to a contravention of section 33(1)(c) of the 1990 Act. It was fined £8000 discounted from £10,000 to reflect the stage at which it had intimated its intention to plead guilty. On a Crown appeal the fine was quashed and a fine of £90,000 discounted from £100,000 was substituted (HM Advocate v Doonin Plant Ltd 2011 JC 81). The sheriff took the view that the current offence was more or less identical to the last previous conviction.

[36] In mitigation the sheriff was told that the company's financial situation had deteriorated; it had been making losses; it had ceased trading; the redundancy process would cost about £186,000. The period covered by the charges was short. The company may have misinterpreted the legislation. There was no evidence of any pollution having actually occurred. The previous fine had not been increased at the time of the commission of the current offence. As the company had stopped trading any deterrent effect of a large fine would be limited.

[37] The sheriff noted that the company had suffered badly in the recession and was to cease its main operations. The cash in the bank had reduced from £650,000 in 2009 to £50,000 at the time of sentencing. On the other hand he noted that the accountants instructed by the Crown had reported that the company continued to have a strong balance sheet, owning land and other assets worth £2.6 million with some £580,000 of these assets being described as "investment property" which could be realised. It continued to pay quite substantial salaries to its directors. It had been able to make a substantial loan to one of its directors and repayment of that sum would make more cash available for the company. Against that background the sheriff considered that very substantial assets were available from which a fine could be paid.

[38] Mr McIntosh, junior counsel for the company, recognised that the company had a number of previous convictions. Mr McIntosh submitted that at the time when the current offence was committed the last previous conviction had resulted in a headline fine of £10,000. The significant increase did not occur until some six months later. It was against that background that the offence was committed rather than the background of a much larger fine. It was unjust for the sheriff to double the fine from the previous conviction without taking into account the fact that when the offence was committed the previous fine had been substantially smaller.

[39] The current offence could be distinguished from the 2007 offence. The offence in 2007 covered a period of seventy two days while the current offence took place over a five-day period. The 2007 offence appeared to involve significant separate deposits viewed by surveillance teams from SEPA while the current offence was for keeping waste and did not involve an operation on a similar scale.

[40] The company had been making losses over the previous three years. It had now ceased trading and was therefore unable to commit further offences. This in itself would have a significant deterrent effect on other companies. Many of the assets of the company were not liquid and a forced sale in the current economic climate would result in sales at below market value with losses.

[41] In our opinion this offence represented a serious breach of the 1990 Act. The evidence before the sheriff made it clear that this was a large-scale operation driven by a desire to make profit. The evidence indicated that the products of the waste would be likely to find their way into the surrounding land and groundwater causing harm to the environment. The company had a significant record of analogous convictions. The most recent conviction was of a particularly serious nature. We do not consider that the stage at which the fine was increased by the court is a matter of great significance. It is clear from the information before the sheriff as to the financial condition of the company that it was in a position to pay a substantial fine. The sheriff took into account the various matters which were advanced in mitigation. In all the circumstances we were unable to say that the sentence imposed was excessive and we refused the appeal against sentence.