Ezeemo & Ors v R.

Where goods have become waste because their original owner discarded them, whether a later holder has changed that status is an objective question of fact. The holder’s abstract intention to re-use or sell the goods is not decisive. The jury must consider what was actually done to the goods, including inspection, testing and repair.

For hazardous electrical waste, re-use may constitute recovery under the Waste Framework Directive 2006/12/EC. Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 creates a strict-liability offence. Those who transport waste for prohibited export must take care to discover the nature and destination of the cargo.

Ezeemo & Ors v R concerned seven natural and corporate appellants involved in shipping containers of used electrical equipment from the United Kingdom to Nigeria. The prosecution alleged that the containers held hazardous electrical waste, including damaged cathode-ray televisions and refrigerators, destined for recovery in a non-OECD country.

At Basildon Crown Court, some appellants pleaded guilty after the prosecution case and others were convicted by the jury. The trial judge certified the case as fit for appeal against conviction after ruling that regulation 23 created a strict-liability offence. The appeals challenged the jury directions on whether discarded electrical goods remained waste, whether the Nigerian destination process was recovery, and whether knowledge or intention was required for the offence.

1. The appeals were dismissed. The trial judge’s directions were legally sufficient and fairly left the disputed factual issues to the jury.

2. An electrical item discarded by its original owner at a civic amenity or waste-disposal site became waste. Once that occurred, whether it later ceased to be waste was an objective question. The relevant inquiry was what the subsequent holder had actually done to it, viewed in light of the environmental purposes of the Waste Framework Directive 2006/12/EC. A holder’s stated intention to re-use or sell the item was not decisive. On these facts, it was proper to ask whether inspection, functionality testing and any repair had in fact changed the goods’ status before loading.

3. The jury were entitled to conclude that the appellants were passing on substantial quantities of broken and hazardous equipment for sale. The evidence supported the inference that no adequate functionality testing had been carried out and that the goods remained waste. The court did not exclude the possibility that intention might require proof in a different case, but it was unnecessary here.

4. The destination requirement was also established. Recovery under Annex II B included reclamation, recycling and re-use of waste. Goods sent to Nigeria for repair, regeneration, continued use or extraction of reusable material could therefore be destined for recovery. The evidence permitted the jury to infer that each shipment was intended for such an operation.

5. Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 imposed strict liability. Its language, the closely regulated EU shipment regime, the express mens rea requirements in other regulations, and regulation 57 showed that Parliament had necessarily excluded a requirement that the transporter knew that the cargo was waste or was destined for recovery in a non-OECD country. Applying the principles in Gammon (Hong Kong) Ltd v Att-Gen of Hong Kong, [1985] AC 1 (PC), strict liability promoted vigilance in a regulatory scheme protecting public health and the environment.

6. The breadth of the offence did not render the convictions unsafe. Prosecutorial judgment and sentencing remained capable of reflecting a genuinely innocent or minor role.

• Court of Appeal (Criminal Division) Dismissed the appeals against conviction: [2012] EWCA Crim 2064.
• Basildon Crown Court Following guilty pleas by some appellants and jury verdicts against others, convicted the appellants of offences concerning prohibited shipments of hazardous waste. The trial judge certified the strict-liability issue as fit for appeal.