WASTE PROSECUTIONS Appeals by case stated and ELV issues. a presentation by JAMES BURTON

Transcription

1 WASTE PROSECUTIONS Appeals by case stated and ELV issues a presentation by JAMES BURTON Thursday, 14 September 2006

2 1. This paper will focus on two quite distinct areas: (1) appeals from the magistrates court by way of case stated pursuant to s.111 of the Magistrates Courts Act 1980; and (2) ELVs (end-of-life vehicles). Stating a case to the High Court from the magistrates court 2. Section 111 of the Magistrates Court Act 1980 provides that: 111. Statement of case by magistrates court. (1) Any person who was a party to any proceeding before a magistrates court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; but a person shall not make an application under this section in respect of a decision against which he has a right of appeal to the High Court or which by virtue of any enactment passed after 31st December 1879 is final. (2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given. (3) For the purpose of subsection (2) above, the day on which the decision of the magistrates court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender. (4) On the making of an application under this section in respect of a decision any right of the applicant to appeal against the decision to the Crown Court shall cease. (5) If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused; but the justices shall not refuse to state a case if the application is made by or under the direction of the Attorney General. 2

3 (6) Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case. 3. The present edition of Stone s gives guidance on such appeals at onwards. Of course it will only be appropriate to state a case on a contention that a proceeding is wrong in law or is in excess of jurisdiction. 4. Stone s then goes on, at and 1-831, to make a number of suggestions as to how to go about stating a case. 5. The suggestions at are, in the main, repetition of Rule 64 of the Criminal Procedure Rules The relevant parts of Rule 64 are: 64.1 Application to a magistrates court to state a case (1) An application under section 111(1) of the Magistrates Courts Act 1980 shall be made in writing and signed by or on behalf of the applicant and shall identify the question or questions of law or jurisdiction on which the opinion of the High Court is sought. (2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates court could come to its decision, the particular finding of fact made by the magistrates court which it is claimed cannot be supported by the evidence before the magistrates court shall be specified in such application. (3) Any such application shall be sent to a court officer for the magistrates court whose decision is questioned Consideration of a draft case by a magistrates court (1) Within 21 days after receipt of an application made in accordance with rule 64.1, a court officer for the magistrates' court whose decision is questioned shall, unless the justices refuse to state a case under section 111(5) of the Magistrates Courts Act 1980, send a draft case in which are stated the matters required under rule 64.6 (content of case stated) to the applicant or his legal representative and shall send a copy thereof to the respondent or his legal representative. (2) Within 21 days after receipt of the draft case under paragraph (1), each party may make representations thereon. Any such representations shall be in writing and signed by or on behalf of the party making them and shall be sent to the magistrates court officer. 3

4 (3) Where the justices refuse to state a case under section 111(5) of the 1980 Act and they are required by a mandatory order of the High Court under section 111(6) to do so, this rule shall apply as if in paragraph (1) (a) for the words receipt of an application made in accordance with rule 64.1 there were substituted the words the date on which a mandatory order under section 111(6) of the 1980 Act is made ; and (b) the words unless the justices refuse to state a case under section 111(5) of the 1980 Act were omitted Preparation and submission of final case to a magistrates court (1) Within 21 days after the latest day on which representations may be made under rule 64.2, the justices whose decision is questioned shall make such adjustments, if any, to the draft case prepared for the purposes of that rule as they think fit, after considering any such representations, and shall state and sign the case. (2) A case may be stated on behalf of the justices whose decision is questioned by any 2 or more of them and may, if the justices so direct, be signed on their behalf by the justices clerk. (3) Forthwith after the case has been stated and signed a court officer for the court shall send it to the applicant or his legal representative, together with any statement required by rule Content of case stated by a magistrates courts (1) A case stated by the magistrates' court shall state the facts found by the court and the question or questions of law or jurisdiction on which the opinion of the High Court is sought. (2) Where one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates court could come to its decision, the particular finding of fact which it is claimed cannot be supported by the evidence before the magistrates court shall be specified in the case. (3) Unless one of the questions on which the opinion of the High Court is sought is whether there was evidence on which the magistrates court could come to its decision, the case shall not contain a statement of evidence. 6. The difficult part, though, is the content of the case. As to which Stone s gives guidance at In particular the editors advise that: 4

5 The content of the case includes the facts found by the court, and the question or questions of law or jurisdiction on which the opinion of the High Court is sought Where one of the questions is whether there was evidence on which the magistrates court could come to its decision, the particular finding of fact which, it is claimed, cannot be supported by the evidence, shall be specified in the case. Where a document forms a material part of the case stated, the original document or a photocopy of the whole document should be appended to the case, similarly with a computer disc where appropriate. Justice must state only facts as found by them, not the evidence upon which their findings is based, unless one of the questions is whether there was evidence on which the magistrates court could come to its decision. 7. That guidance must now be read in the context of the judgment in a case involving the Agency itself: Skipaway Ltd v Environment Agency [2006] EWHC 983 (Admin) where a Divisional Court of the Queens Bench, comprised of Newman J and Stanley Burnton J, considered an appeal by case stated against the magistrates decision to convict Skipaway of six offences under s.33(6) EPA for breach of conditions to the waste management licence governing its waste transfer plant. The key issues on the merits were the definitions of controlled waste and storage. Those are matters for another paper. However Stanley Burton J, giving the sole judgment, gave useful comment on the form of the case stated. 8. Firstly he noted the surprisingly common misconception that once an appeal by way of case stated is before the court the parties may refer to evidence, or at least undisputed evidence, that was before the lower court in addition to that set out in the case. It seems that the Agency had submitted a bundle of documentary exhibits none of which was exhibited or appended to the case stated. 9. Secondly he issued a reminder that on an appeal by way of case stated the High Court is confined to the facts set out in the case. So the parties must 5

6 ensure that the case includes all those matters that should be before the Court when deciding the issues raised on the appeal. 10. If a party considers that the case produced by the lower court omits relevant matters then he should either: (1) seek to have the case supplemented by agreement with the other party and the lower court; or (2) apply under s.28(a)(2) of the Supreme Court Act 1981 for an order for the amendment of the case stated. 11. In the Skipaway appeal there was a real issue as to the meaning of stored in conditions 3.3 and 3.4 of Skipaway s licence. Whilst those conditions were set out in the case the other terms of the licence were not, nor was the licence itself exhibited or appended to the case stated. The wording of the actual condition upon which the justices relied, condition 2.7, was summarised but not set out verbatim. Hence the Court was hamstrung in its attempts to place the words in context and had no choice but to take into account the licence as a whole despite the procedural errors. Similar points arose in relation to photographs that were not exhibited but which went to the heart of Skipaway s case on the merits; that as it was conducting operations in relations to the waste at the times charged that waste was not being stored. ELV - thoughts 12. It has been six years since the issue of Directive 2000/53/EC on ELVs, paragraph (3) to the preamble of which noted that every year ELVs in the Community generated between 8 and 9 million tonnes of waste. In the UK roughly 2 million vehicles are disposed of each year, so around 1.9 million tonnes (more than our fair share). 6

7 13. Members States were to have implemented the ELV Directive by April Although the UK was late it is now almost three years since the End-of-Life Vehicles Regulations 2003 ( the 2003 Regs ) came into effect for England and Wales (3 rd November 2003) and the End-of-Life Vehicles (Producer Responsibility) Regulations 2005 ( the 2005 Regs ) (which also amended the 2003 Regs) have had a year-and-a-half to bed in. 14. I propose to focus on a handful of issues arising in relation to treatment facilities. 15. The 2003 Regs define authorised treatment facility as: any establishment or undertaking carrying out treatment operations which holds a site licence that meets the requirements of Part VII of Schedule 5 to these Regulations in compliance with Article 6 of the Directive and Articles 9, 10 and 11 of the Waste Directive. 16. The ELV Directive does not give a definition of authorised treatment facility as an entire phrase in the interpretational Art. 2 but does define treatment as meaning: any activity after the end-of life vehicle has been handed over to a facility for depollution, dismantling, shearing, shredding, recovery or preparation for disposal of the shredder wastes, and any other operation carried out for the recovery and/or disposal of the end-of life vehicle and its components 17. Art. 6 of the ELV Directive provides, in summary, that: (1) ELVs must be stored and treated in accordance with Art. 4 of the Waste Directive (75/442/EC) and the requirements of Annex I to the ELV Directive; (2) any establishment or undertaking carrying out treatment operations must obtain a permit or be registered in compliance with Arts 9, 10 and 11 of the Waste Framework Directive; (3) derogation from permit as per Art.11(1)(b) of the Waste Framework Directive may apply to recovery operations concerning waste of ELVs after they have been treated in accordance with Annex I(3) of the ELV 7

8 Directive provided there has been an inspection by the competent authorities, repeated annually, to verify types and quantities of waste, technical requirement and safety precautions; (4) any establishment undertaking carrying out treatment operations must, as a minimum, ensure that ELVs are stripped before further treatment, hazardous materials and components and removed and segregated so as not to contaminate subsequent shredder waste and that stripping operations and storage shall be done in such a way as to ensure the suitability of vehicle components for reuse and recovery, in particular for recycling; (5) treatment operations for depollution of ELVs as per Annex I(3) of the ELV Directive must be carried out as soon as possible; (6) permitting shall include all the conditions necessary to ensure compliance with the above; and (7) the introduction of certified environmental management systems by establishments or undertakings carrying out treatment operations shall be encouraged. 18. Annex I of the ELV Directive lays down the minimum technical requirements for treatment in accordance with Article 6(1) and (3). Case of the missing CoDs 19. The 2003 Regs begin to deal with ATFs at Part V, with provision of the issue of certificates of destruction ( CoD ). By Regulation 27 an ATF must issue a CoD to the last owner or holder of a vehicle when it accepts delivery of an ELV transferred to it for treatment. No charge shall be imposed on the last holder/owner for the issue of a CoD. Regulation 29 requires that a CoD contain at least the information required by Schedule 3 to the Regulations. 20. Proper issue of CoDs is the first issue. 21. Only 160,000 certificates of destructions (CoDs) were submitted to the Driving and Vehicle Licensing Agency by the end of April, so only a quarter of the 600,000 expected in that period. This could either be because ATFs are 8

9 not issuing CoDs properly, itself an offence, or because illegal operators are scrapping the vehicles. A third possibility suggested is that insurance firms are asking for the more immediate notifications of destruction from their recovery contractors, who then believe they have fulfilled their obligations. 22. Perhaps the biggest concern here, though, must be that raised by Chris Davies MEP. He points out that as the DVLA allows last owners to tick a box on their vehicle registration form to state that they have scrapped their car themselves the system is ripe for abuse. Mr Davies points out that if illegal operators can simply tick a box on the log book then dodgy dismantlers are free to avoid their responsibilities. Certainly it removes a very important check on compliance and makes prosecution more difficult if the rogue traders can claim to have thought they were taking in depolluted ELVs. 23. The second issue concerns tyres. Wheels coming off? 24. Part VII and Schedule 5 to the 2003 Regs deal with ATFs and permissions. It is worth remembering that their provisions apply to all waste motor vehicles and not simply those defined as ELVs in the Directive. However the recovery targets and performance indicators required by the Directive only apply to ELVs as defined by it. The UK did, of course, fail to meet the Directive s target for recovery of 85% of ELVs by 1 st January The DTI has said that it expects the reuse and recycling of materials extracted during depollution such as tyres to rise so as to lift the percentage from 76% or so to around 80%. Apparently the major concerns, like Cartakeback and Autogreen, are fairly confident that they can meet 85%. 26. However it is worth bearing in mind that there may be real issues concerning tyres from now on. Of course paragraph 4 of Part 2 to Schedule 5 provides, as a condition to be included in site licences, that in order to promote its subsequent recycling no treatment of an ELV shall prevent the removal of, amongst other things, the tyres. 9

10 27. The issue arises because as of 16 th July 2006 the EU Landfill Directive banned the landfilling of shredded tyres (having banned the landfilling of whole tyres three years earlier). Hence there is now a total ban in force and so a lot of tyres to be dealt with other than by landfill. 28. In advance of the 16 th July 2006 cut off the British Metals Recycling Association ( BMRA ) announced that as from 7 th July 2006 its members would no longer accept tyres for shredding save where there is an identified end-market and the shredder operator agrees in advance to take delivery of the tyres. BMRA shredder operators have also agreed that suppliers found to deliberately conceal tyres in loads or bales in an attempt to flout the 2003 Regs depollution process requirements will not be tolerated. 29. Whilst the Used Tyre Working Group point out that tyres used by the cement sector increased by 13,000 tonnes to 85,750 tonnes in 2005 and that tyres used for landfill leachate drainage blankets increased from 29,000 tonnes to 59,000 tonnes the reality is that arisings are increasing year on year and that even if the current applications for permission for new landfill cells using tyres are allowed then the recovery rate will still fall short of 100%. More importantly landfill demand should drop away markedly over the next five years not only because the number of operational landfills falls but because of competition from recycled aggregate. Note that retreading of tyres actually fell from 2004 to 2005 and recycling stayed static. Flycapture results for April 2005 to March 2006 showed that dumping of tyres increased significantly, from 22,068 tonnes to 26, So I identify tyres as likely to pose an increased problem requiring enforcement in the future. 31. Which leads me, somewhat inelegantly, to my third issue. Where prosecutions should be targeted. 10

11 Where to direct enforcement? 32. The Agency brought its first successful prosecution in June Most to date for the basic failure to have a licence 1. Only a couple of reported cases have concerned an operator actually with a licence in place that was failing to comply with it. These include the particularly embarrassing recent prosecution of Redcorn in North London, particularly embarrassing given that the company had received a commendation for Business Commitment to the Environment in 2003 from the then DTI minister Stephen Timms. 33. The question is whether or not the focus should now be shifting away from traders operating outside the system or those nominally within it but breaching licence conditions. Given the CoD issue I think it must be fair comment to take the view that there are an awful lot of wholly unlicensed individuals out there to be targeted. 34. However, the advent of full producer take-back responsibility from 1 st January 2007 could change the landscape here as more and more cars are disposed of through producer ATF networks. Which would suggest the focus should now shift increasingly to those nominally within the regime. James Burton 39 Essex Street, WC2R 3AT 1 The early reported prosecutions being: John Keeling of Trentham, Staffs for scrapping cars without a licence contrary to s.33 EPA; Mohammed Aslem of Headingley Terrace, Leeds, for operating without a waste management licence and keeping vehicles in a manner likely to cause pollution, both contrary to s.33 EPA; John Metcalfe of Hamp Bridge, Bridgwater, Somerset for trading in scrap vehicles without a waste management licence and failing to comply with an Agency notice, s.33; Bashir Hussain of Headfield Road, Dewsbury, for dismantling cars without a licence, s.33; Robert Leach of Ringstone Royd Farm, Barkisland, for keeping scrap cars without a valid waste management licence, s.33; Adrian David Ling; for storing and breaking up cars without a licence s33(1)(a); Leonard Smith of Chesterfield trading as JW Hardy Motor Dismantlers, for breaking vehicles without a waste management licence); Michael Hodges, owner of scrap yard in Attercliffe, Sheffield, for keeping scrap vehicles without a waste management licence, s