Biffa Waste Services Ltd v R.

The classification of waste for the export prohibition is fixed when its journey begins. Waste collected from households becomes B3020 paper only if sorting leaves contamination at a minimal level. The jury must assess the quantity, nature and quality of contaminants. A destination country’s standards, and its particular recycling processes, cannot affect that classification.

General evidence about whether contaminants impede environmentally sound paper recovery may be admissible, but evidence of tests or standards applied by a particular foreign purchaser or regulator is not. Evidence of previous convictions may be admitted under the Criminal Justice Act 2003 only to the extent necessary to correct a false impression.

Biffa Waste Services Ltd was convicted by a jury at the Crown Court at Wood Green of two strict-liability offences under regulation 23 of the Transfrontier Shipment of Waste Regulations 2007. It had sent bales described as paper waste from its Edmonton facility for recycling in China, a non-OECD Decision country. Inspections at Felixstowe found substantial contaminants in sample bales.

An earlier appeal concerning a preparatory ruling was dismissed in Biffa Waste Services Ltd v R [2019] EWCA Crim 20, [2019] Env. L.R. 31. At trial, the judge excluded evidence of Chinese acceptance and recycling standards, and admitted limited previous-conviction evidence to correct an asserted false impression. The appeal challenged both rulings.

1. Appeal dismissed. The convictions were safe.
2. Under Article 36 of EU Regulation 1013/2006 and regulation 23 of the Transfrontier Shipment of Waste Regulations 2007, the relevant classification is that of the waste when export begins. A consignment which remains Y46 household waste at that point cannot lawfully be exported to a non-OECD Decision country. Its classification cannot depend on its intended destination, on subsequent treatment there, or on local standards imposed by a purchaser or regulator.
3. Household waste becomes B3020 paper only through proper sorting. Sorting is sufficient only if residual contamination is so small as to be minimal. The jury must make an overall factual assessment of the quantity, nature and quality of the contaminants. More than a small quantity prevents the waste from becoming green-list paper. Where the quantity is small, evidence that contaminants would not prevent or impede environmentally sound recovery as paper may assist the assessment. It is not determinative.
4. A defendant may adduce factual or expert evidence about its sorting process, its own contaminant testing, and general paper-recycling processes. It may not rely on the standards or testing of a particular destination country, purchaser or foreign regulator. Such destination-specific evidence concerns an irrelevant standard. A defendant intending to rely on general recycling evidence must identify the issue in its defence case statement and at the plea and trial preparation hearing.
5. The trial judge’s exclusion of evidence about Chinese standards and the Chinese mills’ ability to recycle the waste was therefore correct. The appellant was not prevented from adducing properly admissible general evidence and suffered no unfair prejudice.
6. The judge was also entitled to find that evidence portraying the appellant as environmentally responsible could create a false impression that it was not the sort of company to commit environmental offences. The limited admission of environmental regulatory convictions, while excluding health-and-safety convictions, properly corrected that impression without unfair prejudice.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction in [2020] EWCA Crim 827.
• Court of Appeal (Criminal Division) — dismissed an earlier appeal against a preparatory ruling in the same proceedings: Biffa Waste Services Ltd v R [2019] EWCA Crim 20, [2019] Env. L.R. 31.
• Crown Court at Wood Green — on 20 June 2019, a jury convicted the appellant of two offences of prohibited waste export and the court imposed fines, a confiscation order, surcharge and costs.