Jagger, R. v

Where excavated material was originally discarded, an intended re-use does not automatically cause it to cease being waste. Whether its status has changed is a fact-sensitive question. The assessment must take account of the environmental and human-health objectives of the Waste Directive.

Where that issue is live, the jury must receive clear directions on the relevant factual considerations. A bare statement that waste remains waste unless something alters its status, without explaining acceptable recovery or disposal in the case’s context, may unfairly restrict the defence and render a conviction unsafe.

The appellant was convicted at Bradford Crown Court of depositing controlled waste without a permit, contrary to section 33(1)(a) of the Environmental Protection Act 1990. He had deposited excavated material from another building site into a void at Raglan Street.

The prosecution contended that the material remained controlled waste. The appellant contended that it had a legitimate emergency use in shoring up land beside a public street and had therefore ceased to be waste. He also relied on due diligence and emergency defences.

On appeal, the central issue was whether the trial judge’s directions sufficiently explained how the jury should decide whether the material was controlled waste when deposited.

1. The appeal was allowed and the conviction was quashed. There was a real possibility that, with proper directions, the jury might have reached a different conclusion on the controlled-waste issue.

2. Section 75 of the Environmental Protection Act 1990 incorporates the definition of waste in the Waste Directive. The statutory definition is therefore not self-contained. Excavated soil discarded by its holder will ordinarily be waste, but its status can change. Intended or actual re-use is not conclusive. The question is whether, on all the facts, the material has undergone acceptable recovery or disposal consistently with the Directive’s environmental and human-health objectives.

3. The court applied R v W, C and C [2010] EWCA Crim 927 and noted the consistent approach in R v Evan Jones and Another [2011] EWCA Crim 3294. Whether waste has changed status is generally a question of fact for the jury. Relevant matters may include risks to health and the environment, suitability for the intended use without further treatment, certainty of that use, and whether the quantity used exceeds what is needed. These are relevant considerations, not a rigid checklist.

4. The judge correctly identified the prosecution burden and the issue of controlled waste. However, the direction that the material remained waste unless something altered that status did not explain what could amount to an alteration on the evidence. Nor did it explain acceptable recovery or disposal. Counsel’s cross-examination and closing speech could not substitute for authoritative legal directions from the judge. The omission deprived the appellant of fair jury consideration of a significant issue.

5. The Crown did not seek a retrial.

• Court of Appeal (Criminal Division) Allowed the appeal and quashed the conviction: [2015] EWCA Crim 348. The Crown did not seek a retrial.

• Crown Court at Bradford Convicted the appellant on 13 March 2014 of depositing controlled waste without a permit, and fined him on 4 April 2014.