London Borough of Camden v Mortgage Times Group Ltd

Under section 34 of the Environmental Protection Act 1990, liability does not require proof that controlled waste has actually escaped. The offence is failure to take all reasonable measures, in the circumstances, to prevent an escape. The assessment must consider the circumstances of the case, including whether waste was placed out substantially earlier than the advertised collection time and any applicable code of practice. Deliberate placement of waste on a highway is not itself an escape, but it may amount to a failure to take reasonable preventive measures.

The respondent was prosecuted for three alleged offences under section 34(1)(b) of the Environmental Protection Act 1990. Its contractor had placed bags of controlled waste on the public highway before the advertised collection period. The magistrates dismissed the summonses, treating the issue as whether that deliberate deposit constituted an escape.

On a case stated, the Divisional Court considered both whether the deposit was an escape and whether the prosecution could instead establish a failure to take reasonable measures to prevent an escape.

1. The appeal was dismissed. The magistrates had reached the correct result on the case as it had been presented to them.
2. Following Gateway Professional Services (Management) Ltd v Kingston upon Hull City Council, [2004] EWHC 597 (Admin), deliberate depositing of waste is linguistically distinct from an escape. Depositing waste on the highway was no different, for this purpose, from depositing it on neighbouring land.
3. The statutory offence is failure to take all measures reasonable in the circumstances to prevent an escape under section 34(1). Proof that an escape has actually occurred is not a prerequisite to liability under section 34(6).
4. The relevant question was whether placing the waste on the highway significantly earlier than collection increased the risk of escape and therefore constituted a failure to exercise the statutory duty of care. The justices should have considered all the circumstances, including the Secretary of State’s Code of Practice, which advised that waste should not be left outside longer than necessary and should be put out near the advertised collection time.
5. Although the matter might have been remitted for that question to be considered, remission was refused because the summonses and arguments had presented the justices with the different question whether an escape had occurred. On that case, acquittal was inevitable.

The case came before the Divisional Court by way of case stated from the Highbury Corner Magistrates Court, which had dismissed the summonses. The Divisional Court dismissed the appeal.