Paul Rackham Ltd., R (on the application of) v Swaffham Magistrates Court & Anor

Judicial review is generally unsuitable for interrupting a criminal prosecution where the alleged abuse, prosecutorial impropriety or statutory defence depends on disputed facts and evidence. Magistrates and the Divisional Court have concurrent jurisdiction to stay criminal proceedings for abuse of process, but magistrates should ordinarily decline to determine issues outside the narrow confines of the trial or court process.

An Article 7 challenge based on uncertainty or alleged retrospectivity must be examined in the factual context of the prosecution. The question whether material is waste may require judgment in borderline cases and is not necessarily incompatible with Article 7. The ordinary criminal trial is normally the appropriate forum for resolving such issues.

Paul Rackham Ltd. sought permission to apply for judicial review of decisions made by District Judge Healy at Swaffham Magistrates’ Court. The judge had refused to stay an Environment Agency prosecution concerning alleged waste offences and had refused to state a case for the High Court.

The claimant alleged that the prosecution was abusive because of the Environment Agency’s conduct and because the application of the law on waste following ARCO Chemie Nederland Ltd was uncertain and retrospective, contrary to Article 7 of the Convention. It also challenged the non-registration of an exemption under the waste licensing regulations.

1. Permission refused. The application was premature. The complaints about the Environment Agency’s decision to prosecute, including alleged failures to consider relevant matters, comply with policy or obtain scientific analysis, were fact-driven and required evidence at trial. Judicial review should not be used to intervene on incomplete facts.
2. Magistrates and the Divisional Court have concurrent jurisdiction to stay criminal proceedings for abuse of process. Magistrates should generally exercise that jurisdiction sparingly where the alleged rule-of-law infraction falls outside the narrow confines of the trial or court process. The present complaints could properly be considered through the ordinary criminal process.
3. The Article 7 argument did not establish a sufficiently strong case for judicial review. The issue was not true retrospectivity, since the conduct was criminally regulated when it occurred. The real question was whether the law was sufficiently foreseeable and precise. The meaning of waste could be developed by applying the legislation and Directive to the facts, guided by their protective purpose. Borderline cases and a need for judgment did not of themselves establish incompatibility.
4. ARCO Chemie Nederland Ltd was not inconsistent with the approach in Circular 11/94. A recovery operation did not automatically mean that material ceased to be waste. Whether material remained waste depended on all the circumstances, including whether it was discarded or intended or required to be discarded and the Directive’s aim of protecting human health and the environment.
5. The challenge based on non-registration of an exemption was unsuitable for preliminary judicial review. On Toulson J’s reading, exemption depended on the statutory conditions, not registration itself; whether the claimant was exempt and whether that afforded a defence were matters for trial.
6. The refusal to state a case was correct because the criminal proceedings had not been finally determined, as indicated by Atkinson v USA and Streames v Copping.

• Swaffham Magistrates’ Court: District Judge Healy refused a stay of the Environment Agency’s prosecution and refused to state a case for the High Court.
• High Court (Administrative Court): Permission to apply for judicial review was refused.