O' Grady Plant and Haulage Ltd & Ors v London Borough of Tower Hamlets

An operator relying on an exemption from the licensing requirements in section 33(1)(a) and (b) of the Environmental Protection Act 1990 must satisfy cumulative conditions. The operator must hold and comply with the relevant Schedule 3 exemption, and the activity as carried out must meet the environmental and health objectives required by regulation 17(4) of the Waste Management Licensing Regulations 1994.

The fairness of a criminal trial is not undermined by judicial questions which properly clarify evidence or ensure that the jury can decide the case on a sound evidential basis. Intervention will invalidate a conviction only where its nature and effect deprived the defendant of a fair opportunity to present the case.

The company and its sole director were convicted at Snaresbrook Crown Court of depositing, and of treating, keeping or disposing of, controlled waste without a waste-management licence. The prosecution alleged that waste had been brought to the company’s haulage site, where it was stored, crushed and burned. The appellants relied on exemptions for specified waste-recovery activities.

They appealed against conviction, contending principally that the trial judge had misconstrued the exemption in regulation 17 of the Waste Management Licensing Regulations 1994. They also challenged the indictment period, the sufficiency of the evidence, disclosure to witnesses, and the judge’s interventions. They sought to adduce fresh evidence.

Separate applications concerned the director’s liability for prosecution costs and the company secretary’s costs following discharged restraint proceedings.

1. The appeals against conviction were dismissed. The exemptions from the licensing prohibitions in section 33(1)(a) and (b) of the Environmental Protection Act 1990 were subject to cumulative requirements. Regulation 17(4) of the Waste Management Licensing Regulations 1994 required the type and quantity of waste, and the method of recovery or disposal, to be consistent with the Schedule 4 objectives when the activity took place. A Schedule 3 registration and compliance with its express conditions did not by themselves preserve the exemption.

2. The judge correctly left the issue to the jury. The jury had to decide whether the appellants had obtained and complied with an applicable Schedule 3 exemption and whether their activity met the health and environmental objectives in paragraph 4(1)(a) of Schedule 4. Section 33(1)(c) did not require the court to adopt the appellants’ strained construction of regulation 17(4).

3. The amended indictment and the evidence did not cause unfairness. There was evidence from which the jury could conclude that waste had been imported and that the exemption conditions were not met. Disclosure of the prosecution case summary to complainant witnesses was improper, but the judge’s directions and the negligible risk of material contamination meant that the verdicts remained safe.

4. Applying the approach in Hulusi and Purvis (1974) 58 Cr.App.R. 378, the court held that the trial judge’s interventions did not deprive the appellants of a fair trial. A criminal judge may clarify gaps in the evidence and ensure that the jury has material needed to reach a proper verdict. The questions complained of were largely neutral, relevant, or directed to photographs available to the jury.

5. The application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968 was refused. The proposed evidence lacked a satisfactory account of how it had emerged and was not capable of belief.

6. The director’s application for an extension of time and leave to appeal against the prosecution-costs order was refused. The trial judge had not bound herself, by her earlier fine assessment, to a lower costs figure and was entitled to take account of the available assets. The company secretary’s application for an extension and leave to appeal against the restraint-costs order was also refused. The judge had a wide discretion and could assess the limited additional work attributable to her inclusion in proceedings principally directed at her husband.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 1339, the court dismissed the company’s and director’s conviction appeals, refused the director’s costs application, and refused the company secretary’s extension-of-time and costs applications.
• Crown Court at Snaresbrook. Her Honour Judge Beech tried the company and director, who were convicted on 7 August 2009. She later made the prosecution-costs order against the director and awarded the company secretary a limited contribution towards her restraint-proceedings costs.