KV & Ors v R.

For the prohibition on exports of waste to non-OECD countries, “export” is a continuing process. It begins when waste at its point of origin is destined for recovery in the foreign country, and continues until delivery. It is not confined to the physical crossing of the Community boundary.

Transfrontier Shipment of Waste Regulations 2007, regulations 23 and 5, faithfully give effect to that prohibition by criminalising those involved in the prohibited transport. Their scope is neither incompatible with EU law nor ultra vires. An assumed strict-liability offence is not disproportionate merely because it can attract imprisonment: sentencing discretion and the regulated nature of waste handling permit culpability to be reflected in sentence.

KV & Ors v R. was a defence interlocutory appeal under section 35(1) of the Criminal Procedure and Investigations Act 1996. The appellants faced trial at Basildon Crown Court on charges under regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 concerning waste destined for recovery in a non-OECD country.

At a preparatory hearing, the judge held that the prohibition in article 36 of EU Regulation 1013/2006 covered all stages of the export chain from collection and storage onwards. The judge also rejected challenges that regulation 23 was incompatible with EU law, ultra vires, or disproportionate. The central issue was when an export begins and whether the domestic offence could lawfully extend to all persons involved in the prohibited transport.

1. Appeal dismissed. The Crown Court was correct to construe article 36 of EU Regulation 1013/2006 as prohibiting the export process, rather than only the physical exit of waste from the Community.

2. Article 36 requires that the waste be destined for recovery in a non-OECD country and that there be an action of waste leaving the Community. Waste may acquire that destination well before it reaches the boundary. The action of leaving has both transactional and temporal features. It commences at the point of origin once the waste is so destined, and continues until the waste reaches its foreign destination.

3. The different definitions of import, transport and shipment did not support the appellants’ narrower construction. Export is a form of shipment defined by its destination. The provisions concerning environmentally sound management throughout transport, enforcement penalties and spot checks reinforced that conclusion. If recourse to purpose had been necessary, the Regulation’s predominant environmental-protection purpose would have produced the same result. The contrary construction would make evasion and enforcement of the prohibition substantially easier.

4. Regulations 23 and 5 of the Transfrontier Shipment of Waste Regulations 2007 faithfully implemented the United Kingdom’s EU obligations. Every prohibited export involves transport, and the domestic definition validly includes the persons identified in regulation 5. The Regulations neither enlarged the EU prohibition nor created disharmony with it. The ultra vires challenge under section 2(2) of the European Communities Act 1972 therefore failed.

5. Assuming regulation 23 creates a strict-liability offence, that feature did not make it disproportionate. Sentencing is discretionary and can reflect a defendant who has acted without fault. Waste handlers are subject to substantial duties of supervision and enquiry because of the environmental and public-health risks. The breadth of those potentially caught by regulation 5 was consequently lawful.

• Court of Appeal (Criminal Division): dismissed the defence interlocutory appeal and upheld the preparatory rulings.
• Basildon Crown Court: at a preparatory hearing, held that regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 applied throughout the prohibited export chain and rejected the compatibility, ultra vires and proportionality challenges.