June 01, 2013

Criminalizing Spillages— A New English Invention

Andrew Waite

In March 2013, the English High Court handed down a judgment, the effect of which is that any unintentional spillage onto land is a criminal offense unless the person responsible took all reasonable precautions and exercised all due diligence to avoid it.

The decision in Thames Water Utilities Ltd v. Bromley Magistrates Court is the latest in a case that has, so far, lasted for almost ten years and has already been before the High Court twice and the European Court of Justice once.

The facts were that in 2003 sewage escaped on several occasions from the sewerage system of Thames Water (TW), the sewerage undertaker in the London region, onto land—residential gardens, allotments, and the highway. The Environment Agency brought criminal proceedings against TW under Section 33 of the Environmental Protection Act 1990 (EPA) alleging that they had deposited controlled waste on land that was not authorised by a waste management licence—now an environmental permit following a recent amendment. Section 33 provides so far as material:

(1) . . . a person shall not–
(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence [an environmental permit] authorising the deposit is in force and the deposit is in accordance with the licence [permit].

S.33(6) of the EPA provides that a person who, inter alia, contravenes s.33(1) commits an offence. S.33(7) of the EPA, then provides that:

[I]t shall be a defence for a person charged with an offence under this section to prove–
(a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. . . .

A preliminary issue arose as to whether sewage that escaped from the system was, as a matter of law, “controlled waste” (i.e., waste regulated under the EU Waste Framework Directive (WFD)). The definition of waste in the WFD was “any substance or object . . . which the holder discards or intends or is required to discard.” That definition remains virtually unchanged in the latest 2008 version of the WFD. The High Court referred the issue to the European Court of Justice (ECJ). That court followed its own earlier decision in Van de Walle [2004] ECR I-7613 that petrol that had leaked from a petrol filling station in Brussels could not be reused without processing and was, therefore, a residue that had been discarded involuntarily. On that basis, the ECJ held in the Thames Water case that sewage that had escaped from TW’s sewers was also waste.

However, the ECJ also had to decide an additional question. Article 2 of the WFD excludes from the scope of the WFD several different types of waste including waste waters, which are “already covered by other legislation.” According to the ECJ’s earlier decision in Avesta Polarit (2003) ECR I-8725, “other legislation” meant either EU or member state legislation. (That position has now been reversed by the WFD 2008 under which only EU legislation is relevant for the purpose of excluding certain waste from the scope of the WFD.) The ECJ held that waste waters that had escaped from a sewer were not covered by the Urban Waste Water Treatment Directive (91/271/EEC), which only applied to waste waters that were still in the sewerage system. It followed that escaped sewage was waste within the scope of the WFD unless it was covered by UK legislation. That issue was considered by the High Court in London, which decided that it was not. Lord Justice Carnwath (now a Supreme Court Justice), in giving the judgment of the court, explained that it was not surprising that unintentional escapes were not “covered by other legislation” since they were by definition unplanned and, therefore, outside the scope of the ordinary management regime.

Significantly, he continued:

. . . that is no reason for them not being subject to the criminal sanctions otherwise thought appropriate for deposit of controlled waste. There is nothing unfair in this. If . . . [Thames] . . . can show that it took all reasonable precautions and exercised all due diligence, it will have a defence.
Accordingly, I conclude that the alleged escapes of untreated sewage, were within the scope of s.33, and that the cases should be remitted to the magistrates’ court to determine on the merits. . . .

At the trial in the magistrates court, TW put forward two defences—first, that they had not deposited the sewage on the ground and, second, that in any event they had taken all reasonable precautions and exercised all due diligence to avoid committing the offence. Both defenses failed. District Judge Lynch held that the unintentional escape of sewage constituted depositing controlled waste. He also decided that TW had not fulfilled the requirements of the due diligence defense.

Judicial Review. As the district judge gave an unusually lengthy written judgment, TW applied to the High Court for judicial review of his decision as to the meaning of “deposit.” The usual method of appealing on a point of law is to ask the magistrates court to state a case for the High Court to rule on. There was no challenge to the district judge’s decision on the due diligence defence.

The High Court dismissed TW’s application for judicial review. Lord Justice Gross accepted the dictionary definition of “deposit,” which is “put, place(d) or set down.” On the basis that deposit is an “ordinary and uncomplicated English word,” he proceeded to consider whether an unintended escape falls within the reasonable range of meanings for “deposit.” If so, the district judge’s decision would stand.

For several reasons Lord Justice Gross held that “an unintended escape could be a ‘deposit.’” First, he considered the context of deposit in Section 33(1)(a) where “knowingly” qualifies two limbs of the offense: “cause or knowingly permit controlled waste to be deposited” but not “deposit.” On that basis he considered that the word was capable of including a deposit resulting from an unintended escape.

Secondly, he considered Section 33 as a whole and noted that the inclusion of the due diligence defense in Section 33(7) fits better with a meaning of deposit, which includes that resulting from an intentional escape. This view was supported by the view of Mr Justice Mance in Shanks & McEwan v. Environmental Agency (1999) QB 333 at 342 that the due diligence defense mitigates the strictness of section 33(1)(a).

Third, the court considered the relationship between Section 33 and Section 34, which deals with the duty of care as respects waste. Section 34(1) states:

(1). . . [I]t 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) to prevent any contravention by any other person of Section 33 above; and (b) to prevent the escape of the waste from his control or that of any other person. . . .”

In an earlier case on Section 34 Gateway Professional Services (Management) Ltd v. Kingston upon Hull CC (2004) Env LR 43, Lord Justice Laws held that “escape” in Section 34(1)(b) did not extend to the deliberate dumping of waste, which was covered by Section 33(1)(a). However, Lord Justice Gross did not consider that it followed that “deposit” in Section 33(1)(a) does not include the result of an unintended escape. Following the decisions of the ECJ and the High Court in 2007 and 2008 respectively, he held that sewage was covered by the Urban Waste Water Treatment Directive while it remained in the sewer and therefore not by the WFD. The latter only applied at the point of escape at which time the sewage became controlled waste. The duty under Section 34 to prevent an escape could not, therefore, apply in those circumstances. It followed that there was no legislative framework which allocated deliberate deposits to Section 33 and escapes to Section 34.

Fourth, the court considered that the obiter dicta of Lord Justice Carnwath (set out above) provided significant support for the view that unintentional escapes are caught by Section 33(1)(a).

Finally, the court did not consider that its conclusion was precluded by the presumption that mens rea is an ingredient in every criminal offense unless excluded for some good reason. In this case, the true construction of the statute pointed strongly to strict liability in the case of the “deposit” offense. Such a result was effective to promote the objects of the statute by encouraging greater vigilance. Given the due diligence defence, Lord Justice Gross did not consider that the regime was unduly draconian.

Criticisms. The High Court decision now represents the law, but it also demonstrates several weaknesses that may lay it open to attack in the future.

First, the court ignored entirely TW’s arguments on the construction of Section 33(1)(a). As indicated above, there are three limbs to the offence in Section 33(1)(a): depositing waste, and knowingly causing or knowingly permitting waste to be deposited. If the first limb “deposit” includes all unintentional escapes from a sewer, it would render the second limb “knowingly causing” superflows. This is because such escapes have been held to be caused by the operator of the system in Alphacell Ltd v. Woodward [1972] AC 824, a House of Lords case on water pollution which would also be applicable in construing Section 33. Because Parliament has expressly limited the second limb to knowingly causing, the legislative intention cannot sensibly have been to apply the offense to unintended escapes through the first limb.

Further, according to R v. Leighton and Town and Country Refuse Collections Ltd. (1997) Env LR 411, the three limbs of Section 33(1)(a) are three ways of committing the same offence, rather than separate offenses. It follows that the term “deposit” must mean the same thing in each limb. It would be impossible to knowingly cause or knowingly permit an unintentional escape. Accordingly, it is unlikely that Parliament intended “deposit” to refer to such escapes.

Second, the court’s analysis of Section 33(1)(a) relies on the fact that the second and third limbs are qualified by “knowingly.” However, the case that first emphasised the distinction between the first limb of the offense and the second and third limbs, Shanks & McEwan (Teeside) Ltd. v. Environment Agency (1999) QB 333, does not deal with an unintentional escape, but rather with knowingly causing a discharge of liquid waste into a bund in circumstances which were in breach of a license condition. The word “knowingly” qualifies “cause.” It does not affect the meaning of “deposit.” Indeed, there must be a deposit of waste as a logical antecedent to a charge that a person has caused it, knowingly or otherwise.

Third, the court’s view that the existence of the due diligence defense supports the broad view of “deposit” ignores the fact that none of the earlier cases that considered the meaning of “deposit” relies on or refers to the due diligence defense as a factor that affects the interpretation of that term. Indeed, in Shanks & McEwan, a case which was relied on by Lord Justice Gross on this point, the strictness of Section 33(1)(a) related not to a meaning of “deposit” that includes the result of an unintentional escape, but rather to the fact that a person may be guilty of a depositing offense even in the absence of knowledge that the deposit was not authorised by a waste management license (now an environmental permit).

Fourth, in dealing with the application of Section 34 to escapes, Lord Justice Gross overlooked an earlier decision of the High Court, Mountpace Ltd v. Haringey LBC (2012) Env LR 32, to the effect that the duty of care is prospective in nature and may apply before the waste has been generated. In any event, even if the duty of care did not apply in the present case, due to the particular legislation governing sewers, the court should have considered the application of sections 33 and 34 more generally in deciding which provision applies in the case of an unplanned escape of material on to the ground.

Fifth, undue weight was given to the remarks of Lord Justice Carnwath (quoted above) at the end of his judgment in 2008, which did not concern the meaning of “deposit.” Indeed, his remarks did not directly consider the meaning of the term and were made in the absence of any argument on the point by counsel.

Further Appeal. A further appeal against the decision of the High Court is only possible direct to the Supreme Court. However, in order to do so, it is necessary to obtain a Certificate of Public Importance (CPI) from the High Court and leave to appeal from the High Court or, if the High Court refuses, from the Supreme Court. However, there is no appeal against a refusal of a CPI and the High Court does not have to give reasons. In the event, TW have not sought to appeal.

Effect of the Decision. The High Court’s decision obviously has a major impact on the sewerage industry. However, it also has much wider implications not only for industry generally but for any person who accidently drops or spills material onto land. Although many spillages may contravene the conditions of an environmental permit, many more will have been criminalized for the first time.

Recognizing that its decision involves an extension of liability, the court pointed to three mitigating factors: the existence of the due diligence defense, the discretion of the prosecuting authorities, and the courts’ powers to impose a proportionate penalty. However, experience suggests that it is difficult, in practice, to establish a successful due diligence defense—and the good sense of the prosecuting authorities and the courts may not align with the views of the corporate manager or the man in the street.

Andrew Waite

Mr. Waite is a Consultant Solicitor at Keystone Law in London, England, and a member of the editorial board of Natural Resources & Environment.