Biffa Waste Services Ltd, R v

Where a prosecution for unlawful export of waste relies solely on Article 36(1)(b) of the Waste Shipment Regulation, it need prove only that the waste was a prohibited Article 36(1)(b) category. If it proves that the consignment was Y46 waste collected from households, no additional proof is required under paragraph 3 of the introductory notes to Annex V.

Whether a consignment is Y46 household waste or B3020 paper waste is a question of fact and degree for the jury. The categories are mutually exclusive. The original household source does not determine the classification at export, because proper sorting may produce a different waste category.

The appellant waste-recycling company was charged with two offences of transporting waste contrary to regulation 23 of the Transfrontier Shipment of Waste Regulations 2007. The prosecution alleged that consignments described as mixed waste paper and exported to China were in fact Y46 waste collected from households, whose export was prohibited by Article 36(1)(b) of the Waste Shipment Regulation.

At a preparatory hearing, Judge Auerbach ruled that B3020 paper waste and Y46 household waste were mutually exclusive. He also held that the prosecution, which relied only on Article 36(1)(b), did not have to prove the additional contamination conditions in paragraph 3 of the introductory notes to Annex V. The company appealed that ruling.

1. Appeal dismissed. The Crown Court was right to reject the argument that the prosecution had to prove the conditions in paragraph 3(b) of the introductory notes to Annex V in addition to proving that the consignments were Y46 household waste.

2. The prosecution relied solely on Article 36(1)(b) of the Waste Shipment Regulation. Its case was that the waste was listed in Annex V, Part 3 as Y46 waste collected from households. If the jury was sure of that classification, the export prohibition applied and the prosecution case succeeded. If it was not sure, the company was entitled to an acquittal.

3. Paragraph 3 of the introductory notes may be relevant in another case, including one concerning B3020 waste paper contaminated by other materials so as to prevent environmentally sound recovery. It was irrelevant here because the prosecution did not advance such a case and did not rely on Article 36(1)(g).

4. B3020 paper waste and Y46 household waste are mutually exclusive classifications. The explanatory footnote to Y46 confirms that position. Whether the consignments had been sufficiently sorted to cease to be household waste was a question of fact and degree for the jury, consistently with I, N and B [2011] EWCA Crim 3237. Introducing the paragraph 3 issue would distract from, and complicate, that factual inquiry.

5. The case was to be relisted promptly in the Crown Court for trial.

• Court of Appeal (Criminal Division): dismissed the company’s appeal and upheld the preparatory ruling.
• Wood Green Crown Court: Judge Auerbach ruled on 18 October 2018 that the prosecution need not prove paragraph 3 of the introductory notes to Annex V where it relied solely on Article 36(1)(b).