Ideal Waste Paper Co Ltd & Ors, R. v

A criminal waste-export offence is sufficiently certain where the governing legislation establishes a factual classification capable of jury determination. Waste initially collected from households may cease to be household waste and become B3020 waste paper after proper sorting. No fixed percentage of contamination is required. Whether residual contamination prevents that reclassification depends on its nature, quality and amount, and a minimal breach may not do so. The absence of published detailed guidance or a numerical threshold does not itself make proceedings an abuse of process where the judge can direct the jury on the legislation and the prosecution must prove that the consignment remained household waste.

The company and two officers were charged with transporting waste for recovery in China, a country to which the OECD Decision did not apply. The prosecution alleged that the exported material was prohibited household waste within Y46 of Annex V to the European Waste Regulation 1013/2006. The appellants contended that sorting at a municipal recycling facility had converted it into B3020 waste paper.

At a preparatory hearing at Kingston Crown Court, the judge refused to stay the proceedings for abuse of process and declined to exclude disputed evidence. The appeal concerned whether the absence of a published contamination percentage or other detailed standard made the offence insufficiently accessible and certain, or prevented a fair jury trial.

1. Appeal dismissed. The absence of a fixed contamination percentage or detailed official guidance did not make the prosecution an abuse of process. The applicable law gave a sufficiently clear issue for trial: whether the prosecution could prove beyond reasonable doubt that the consignment remained household waste.

2. Under Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007, read with article 36 of the European Waste Regulation 1013/2006, an offence is committed if waste destined for recovery in a non-OECD country is proved to be prohibited household waste. Waste which began as household waste may, after appropriate sorting, become B3020 waste paper.

3. The classification is fact-sensitive. A court or jury must consider the overall condition of the consignment, including the nature, quality and amount of any contamination. A small amount of contamination may be minimal and not prevent reclassification, but contamination of a materially different character may have a different effect. The law did not require a universal numerical threshold.

4. The practical difficulties of deciding a mixed consignment, including whether separate containers should be charged separately, were matters for trial management. They did not show that a judge could not give adequate directions or that a jury could not fairly decide the issue. The court left the conduct of the trial, including any further counts, to Kingston Crown Court.

5. The court noted that co-operation between the Environment Agency and operators could assist compliance and enforcement, but the courts remained responsible for applying the legislation.

• Court of Appeal (Criminal Division): dismissed the appeal against the preparatory ruling.
• Kingston Crown Court: on 10 October 2011, refused a stay for abuse of process and declined to exclude disputed evidence.