The Environment Agency, R (On the Application Of) v Ryder & Anor

A person who operates a waste operation without an environmental permit may obtain a confiscable pecuniary advantage by avoiding the cost of lawfully removing waste which that unlawful operation continues to store for recovery or disposal. Under Proceeds of Crime Act 2002, the connection between criminal conduct and benefit is broad. A pecuniary advantage is not confined by concepts imported from the repealed theft legislation or by a distinction between avoidance and evasion.

Potential future removal costs or a consequent reduction in land value do not make such confiscation disproportionate where there is no double recovery. A restraint-order restriction does not give priority over an earlier unregistered land charge; the charge must be considered when assessing available assets if genuine.

The appellants, owners and controllers of a waste site, were convicted of environmental offences after continuing to operate a waste operation without an environmental permit. The Crown Court found that they processed contaminated waste into trommel fines for sale and thereby avoided the cost of removing the waste.

In confiscation proceedings, the Recorder treated the avoided removal costs as benefit and made orders against both appellants. He also held that a restraint-order restriction took priority over an earlier unregistered charge over property jointly owned by Green.

The appeals raised whether avoided waste-removal costs were a pecuniary advantage resulting from the offence, whether the orders were disproportionate, and whether the earlier charge had to be reflected in Green’s available amount.

1. The appeal was allowed in part. The challenge to the benefit figure failed. Green’s appeal concerning the available amount succeeded and was remitted to the Crown Court.

2. The appellants had no environmental permit at the relevant time. They nevertheless caused a waste operation to continue as owners and controllers of the site by storing contaminated waste for recovery or disposal. On the findings made at trial, that conduct fell within the charged offence under the Environmental Permitting (England and Wales) Regulations 2010. The court approved the comparable approach in Stone v Environment Agency, [2018] EWHC 994 (Admin).

3. The avoided costs of lawful waste removal were a pecuniary advantage obtained in connection with the criminal conduct under section 76 of the Proceeds of Crime Act 2002. The statutory connection is broad. It was immaterial that the appellants had not been charged with breach of an enforcement notice, and immaterial whether their saving was described as avoidance or evasion. The court applied Wright, [2014] EWCA Crim 382, in holding that the narrower repealed Theft Act 1968 conception of pecuniary advantage could not be imported into the 2002 Act.

4. The orders were not disproportionate. The 2002 Act does not require a balance-sheet exercise which credits a possible future obligation to remove waste or a reduction in land value. The Environment Agency did not seek a further removal order, so there was no double penalty or double recovery.

5. The court had jurisdiction to entertain Green’s challenge to the section 10A determination. Section 31(5) of the 2002 Act was sufficiently broad to include a defendant who held an interest in the property. The court distinguished the possible statutory tension identified in Ghulam, [2018] EWCA Crim 1691.

6. The Recorder erred in applying section 48 of the Land Registration Act 2002. A restriction entered following a restraint order did not make that order a registered charge with priority over an earlier unregistered charge. If genuine rather than a sham or device, the charge remained valid and had to be taken into account under section 79(3) of the 2002 Act. The factual issue of its genuineness was remitted.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 1110, the court dismissed the appeal against the confiscation benefit figure, allowed Green’s appeal concerning the prior charge, and remitted that issue to the Crown Court.
• Sheffield Crown Court: Recorder Preston made confiscation orders after finding that avoided waste-removal costs were benefit. He treated the restraint-order restriction as having priority over Green’s earlier unregistered charge.
• Sheffield Crown Court (appeal from magistrates’ court): Recorder Tulk allowed the appellants’ appeal on one charge but dismissed their appeals on charges 1 and 2.
• Barnsley Magistrates’ Court: The appellants pleaded guilty to charge 4, were convicted on charges 1 to 3, and the case was committed for sentence and confiscation.