Download `Depositing` Waste - a summary of the law Depositing Waste: Where

'Depositing' Waste - a summary of the law
Depositing Waste: Where does the law stand?
- Determining the courts approach to 'deposit' of controlled waste.
- The mens rea necessary to prove a 'deposit' offence.
Rather curiously it took twenty-one years since the passing of the Environmental Protection Act
1990 for the courts to rule on what amounts to a deposit of waste within Section 33 of that Act and
then , like buses, we suddenly had two cases in quick succession.
Part of the difficulty is that environmental legislation has to cover an almost infinite variety of
situations, both protecting the environment but also attempting to provide, as criminal law requires,
a degree of certainty and common sense such that the ‘man in the street’ can understand and
comply with it. The area of environmental law is underpinned by considerable public policy
considerations.
The consequent development of legislation to do with pollution and the wider environment,
particularly through the implementation of European Directives, and the interpretation of such
legislation by the criminal court has always run contrary to ‘normal’ criminal principles that criminal
statutes are to be restrictively interpreted. Environmental policy in relation to waste for example,
determines that everything from the definition of waste, to the activities to do with waste once it
has been created, need to be capable of broad interpretation if wider environmental protection is to
be maintained.
Does the current state of the court’s interpretation of ‘deposit’ within Section 33 EPA 1990 strike
the necessary balance?
I start with the case of Milton Keynes Council v Fuller and McVeigh [2011] EWHC 1967 (Admin) which
was the first reported case directly dealing with the interpretation of deposit.
Mr Fuller was the director of a farm and Mr McVeigh his employee. Mr Fuller noticed that a pile of
waste material including asbestos had been fly-tipped into the gateway of a field that they needed
to gain access to in order to spray a crop growing in the field. He notified the local authority of the
presence of the waste, and then directed Mr McVeigh to move it to the side of the gateway so that
access to the field could be achieved. Following hearing evidence on the matter, the Magistrates
found that the movement of the waste in these circumstances did not amount to a ‘deposit’ of the
waste.
The appellant council sought to appeal the decision, arguing that notwithstanding the fact that
‘deposit’ was not defined within the EPA 1990, it applied to any person who had taken control of the
waste by picking it up and placing it down in a different location. They argued that the court ought to
have followed the definition of deposit in Scott and another v Westminster City Council [1995] RTR
327 in which it was found by Waite J that “The verb ‘to deposit’ is a term of wide connotation, apt to
describe any state of affairs in which one object is placed upon another.” The appellant’s argument
continued that based upon the defendant’s admitted control and movement of the waste, albeit for
a short amount of time and for a distance of a few metres, the Magistrates had no option but to
return a guilty verdict; they had erred in not so doing. They went so far as to argue that anyone
placing waste down or moving waste would commit an offence of depositing controlled waste and
that anyone in such a situation could only rely on the discretion and good sense of the prosecuting
authority in making its prosecutorial decision in the public interest.
The respondents argued that ‘deposit’ should be given its ordinary meaning, and that it was open to
the tribunal of fact to decide whether what had occurred was in fact a deposit. It was argued that
this was entirely consistent with a broad possible interpretation of what amounted to a deposit; an
interpretation which was consistent with the general approach towards criminal environmental law,
but which also permitted for common sense. It was submitted that as Brutus v Cozens [1973] AC 854
dictated in relation to statutory interpretation of words that were not defined in an Act, the word
‘deposit’ should be given its ordinary meaning as applied to the facts of each case.
It was argued that should a person whose neighbour’s rubbish had fallen and blocked his driveway
not be permitted to move it aside in order so that he can leave his house? The interpretation sought
by the appellant council would mean that they had to call the council and wait for someone to come
and remove it or risk becoming a criminal by taking it upon themselves to move it. Does a
shopkeeper who sweeps discarded cigarette ends from the pavement in front of his shop into the
gutter in the street commit an offence of depositing that waste? Both of these examples were
premised (as were the facts of the case) on circumstances where the initial deposit had been made
by others.
The Court determined that courts do retain a discretion as to how they interpret the word ‘deposit.’
Aitken LJ saying : “To my mind the justices’ conclusion, that the act of the respondents did not
amount to a deposit, was a perfectly reasonable one. It was open to the justices to so conclude on
the facts found by them.” He continued “The argument that the justices’ conclusion will drive a
coach and horses through the section is not sound. There may be cases where a second movement
of controlled waste does amount to a ‘deposit.’ Each case has to be decided to the particular facts
raised and found.”
So, if the physical requirements of ‘depositing’ waste are fact specific, what mens rea is required
to commit an offence?
Between the 10th February and the 24th April 2003 sewage escaped from the sewer system operated
by Thames Water Utilities onto land. It poured into people’s gardens, their allotments and the
highway.
There was a subsequent prosecution by the Environment Agency that, via a circuitous route,
resulted in a judicial review of a District Judge’s finding that the escape of sewage did amount to a
deposit of waste. The Judicial review was ruled on in Thames Water Utilities v Bromley Magistrates’
Court [2013] EWHC 472 (Admin) - 10 years' later.
In that case the appellants argued that the wording of Section 33(1)(a) “shall not deposit controlled
waste” imported a deliberate act of depositing s as opposed to an unintentional escape of waste
from its control. The restricted interpretation was urged on the basis that the section gave rise to
criminal liability and ought therefore be restrictively interpreted.
The Environment Agency responded by arguing that deposit was an ordinary English word, and that
whether intentionally or not a person could still ‘deposit’ something. They contended that the
District Judge was correct in finding that “whenever or however sewage escapes from the
defendant’s system, it has been put, place(d) or set down’ by them within the ordinary linguistic
meaning of the word deposit...”
In considering this narrow question whether the escape of sewage could be a deposit, Gross LJ
approving Aitkens LJ in Milton Keynes DC v Fuller and McVeigh found that the word deposit was to
be given its ordinary meaning. He then turned to the question “whether an unintended escape falls
within a reasonable range of meaning for ‘deposit’.”
Historically, the common law position has been that there is a presumption that mens rea was an
essential ingredient of every offence unless some reason can be found for holding that it is not
necessary Sweet v Parsley [1970] AC 132 (A case involving the use of a premises for drug taking
where there was no dispute that the premises had been so used, and agreement that the defendant
while retaining control over the address was unaware of that use.) Gross LJ however considered the
criteria for displacing that assumption as set out in the case of Gammon Ltd v A-G of Kong Kong
[1985] AC 1, and found that so far as the Environmental Protection Act 1990 as a whole finding that
because “there can be no real doubt that the Act is here concerned with an issue of social concern,
namely the protection of human health and the environment” that “I conclude that the Act clearly or
by necessary implication displaces the presumption.”
Gross LJ went on to conclude that the first limb of Section 33(1)(a) EPA (to deposit controlled waste
as opposed to knowingly cause or permit controlled waste to be deposited) “on its true construction
points strongly towards the imposition of strict liability.”
In reaching this conclusion Gross LJ was aware that “even in the best (sewerage) systems overflows
or breakdowns will occur from time to time. Even so, strict liability will serve to concentrate minds at
senior management levels and the regime cannot be described as draconian or unduly draconian
given the due diligence defence furnished by Section 33(7).”
Those conclusions were hardly surprising given the wider public interest, and also European cases in
this area of law. In Van de Walle (Contaminated Soil) C1-03 [2004], for example, the ECJ found no
difficulty in finding that the unintentional spillage of hydrocarbons that contaminated soil and
groundwater were waste within Directive 75/442/EEC. The requirement of mens rea, or guilty
knowledge, prior to proving a 'deposit' had occurred within Section 33 of the EPA would emasculate
the purpose of the legislation and would afford protection to the negligent and reckless.
At first blush the decisions in Fuller and McVeigh and in Thames Water Utilities, even though the
latter approved the earlier decision, appear to be mutually contradictory. This is particularly so when
one thinks through the multitude of circumstances that might arise it quickly becomes clear that the
types of situation that permitted Fuller and McVeigh's acquittal are likely to be extremely rare, and
turn on their own facts as to whether a specific alleged act amounts to a deposit. It is clear that in
reaching their decision, the court does not have to find actual knowledge that a deposit has taken
place.
It is likely that the law in this area will evolve on a case by case basis, similar to that involving
offensive weapons, where examples of different types of weapons were considered with
judgements being used to guide future courts on their application of the law. In an area of 'strict
liability' there could still be considerable scope for advocacy.
So where does that leave the law in relation to the old lady that slips and lets her shopping bag fall
discarding the contents onto the street, an example discussed in the Thames Water case? Gross LJ
was to say that firstly the due diligence defence would likely apply to her, secondly “while it is in
general unwise to rely or rely unduly on the discretion of prosecution authorities to prevent unjust
results... the trivial nature of the postulated example suggests that prosecution in such cases would
be sufficiently nonsensical to deter most prosecutors from an unwarranted excess of zeal.” or finally,
that the sentence would reflect the seriousness of the offence.
There are clearly sound public policy reasons behind withdrawing the requirement of mens rea for
the commission of a deposit. As the law stands the court retains a discretion to look at the quality of
the act in deciding whether or not there has been a deposit of waste. There is always the potential
to argue that the elderly lady that slips and drops her shopping (even if she had not been paying
attention as to where she was walking and thereby avail herself of the due diligence defence) could
still persuade a court that dropping a bag in those circumstances was not a ‘deposit’ of waste,
whereas a person throwing a bag of rubbish from a car window would have greater difficulty in
arguing that the quality of the act did not amount to a deposit of waste.
Brendon Moorhouse is a barrister at Guildhall Chambers, Bristol. He is co-chair of UKELA South West
group and was counsel for Messrs Fuller and McVeigh.