Trafalgar Leisure Ltd v R

A conviction for breach of the duty concerning waste must rest on evidence from which a jury can properly find a failure to take reasonable measures in the circumstances. A prosecution cannot fairly rely on evidence called by a defendant to defeat one count in order to create an alternative case on another count.

Under Environmental Protection Act 1990, section 34(1)(a) will normally address a failure to prevent another person deliberately depositing waste after removing it from a bin. Section 34(1)(b) may also be appropriate where removal could occur through accident, weather or non-human scavenging. A jury deciding criminal liability requires guidance directed to whether the alleged shortfall should properly be judged criminal.

The appellant company operated a public house and hired a bin kept on the street for its commercial waste. An enforcement officer found bags and boxes containing material from the public house on the pavement beside the bin.

At Newcastle-upon-Tyne Crown Court, the company was acquitted of depositing controlled waste contrary to sections 33(1)(a) and 33(6) of the Environmental Protection Act 1990. It was convicted on an alternative count under sections 34(1)(b) and 34(6), based on an allegation that it should have locked the bin to prevent others removing and depositing its waste.

The company appealed against conviction. The central issues were whether section 34(1)(b) was the appropriate provision for that alternative case, whether there was a case to answer, and whether the jury had received sufficient guidance on criminal liability.

1. Appeal allowed; conviction quashed. The Recorder should have directed a verdict of not guilty on count 2 at the close of the prosecution case. The prosecution’s primary case was that the company’s employees had deposited the waste, but the jury acquitted on that count. The alternative case depended solely on the company’s letter stating that others had previously removed waste from its bin. The enforcement officer had robustly rejected the reliability of that account. There was therefore no evidence capable of establishing that the company had failed to take reasonable measures to prevent escape from the bin.

2. It was also unfair to continue with count 2. The company had been virtually obliged to call evidence to defeat the inference supporting count 1. That evidence risked creating an alternative prosecution case on count 2. The jury’s consideration should have been confined to count 1.

3. The court considered that, where the alleged removal was by other persons who then deposited the waste, the normal charge would be under section 34(1)(a) of the Environmental Protection Act 1990. It concerns reasonable measures to prevent another person contravening section 33. A section 34(1)(b) charge may nevertheless also be suitable where the evidence could involve removal by accident, weather, animals or other forms of scavenging addressed by the statutory Code of Practice.

4. The court additionally observed that a jury deciding whether an unlocked bin constituted a criminal breach required guidance. It should consider whether the company’s conduct fell below the proper standard to an extent properly judged criminal. The court did not decide whether this deficiency alone would have made the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the company’s appeal and quashed its conviction under sections 34(1)(b) and 34(6) of the Environmental Protection Act 1990, [2009] EWCA Crim 217.
• Newcastle-upon-Tyne Crown Court: Convicted the company on count 2, after its acquittal on count 1, and imposed a 12-month conditional discharge.