United Utilities Water Plc v Moss Rose Piggeries Ltd.

A defendant relying on an informal authorisation to discharge trade effluent bears an evidential burden of raising evidence of the authorisation. The legal burden remains on the prosecution to prove guilt to the criminal standard. Once the defence has raised the issue, the prosecution must disprove the authorisation.

An authorisation to discharge through a particular pipe does not necessarily extend to a different and larger pipe. However, the prosecution must prove the terms and limits of the authorisation sufficiently to establish guilt. The reasonableness of notice terminating an authorisation is a fact-sensitive question. An acquittal may be affirmed where the prosecution’s failure to prove its case does not justify a retrial.

United Utilities Water plc appealed by way of case stated against the dismissal of an information by the Fylde Coast Magistrates’ Court. Moss Rose Piggeries Ltd was alleged to have discharged trade effluent into a public sewer without consent or other authority, contrary to section 118(5) of the Water Industry Act 1991.

The magistrates accepted that an oral agreement or accommodation had authorised the discharge. They found that three months’ notice terminating that authorisation was insufficient, and acquitted the company. The appellant challenged the evidential burden, the scope of the alleged authorisation, and the adequacy of the notice.

1. Appeal dismissed and acquittal affirmed. The court answered the remaining case-stated questions in the affirmative.
2. The respondent had an evidential burden to raise evidence of an agreement or other authority. That burden was discharged by evidence, accepted by the Deputy District Judge, that an agreement had been made. Section 118 of the Water Industry Act 1991 did not place the legal burden of proving an element of the offence on the defence. The legal burden remained on the prosecution throughout. Having raised the defence, the respondent was entitled to require the prosecution to disprove the authorisation to the criminal standard.
3. The prosecution had not obtained findings establishing the detailed terms of the agreement. An authorisation to discharge through a two-inch pipe would not, without more, authorise discharge through a different and larger four-inch pipe. Proof that the larger pipe had caused no deterioration in the effluent was unnecessary if the prosecution could prove that the method of discharge was unauthorised. Nevertheless, the findings made did not require a conviction, because the prosecution had failed to prove the limits of the authorisation.
4. The finding that three months’ notice was unreasonable was not undermined by the absence of detailed contractual findings. The Deputy District Judge was entitled to take account of the circumstances of the substantial longstanding business and the practical consequences of termination.
5. A remittal for further findings and a further hearing was undesirable and unnecessary. The court was entitled under section 28A of the Supreme Court Act 1981 to affirm the acquittal. The court stated that the unusual case set no kind of precedent. The respondent was awarded its costs of the appeal, subject to detailed assessment if not agreed.

• Fylde Coast Magistrates’ Court: dismissed the information and acquitted Moss Rose Piggeries Ltd on 22 November 2005.
• High Court (Administrative Court): on appeal by way of case stated, answered the questions as indicated, dismissed the appeal and affirmed the acquittal.