Neutral Citation Number: [2009] EWCA Crim 217
Case No: 200804120
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT
RECORDER DAVIES 

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/02/2009
Before :

LORD JUSTICE PILL
MR JUSTICE MADDISON
and
MR JUSTICE HAMBLEN
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Between :

	Trafalgar Leisure Limited	Appellant	
	- and -		
	R	Respondent	

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Mr J Goldberg QC  (instructed by Michael Henderson) for the Appellant
Mr R Bloomfield (instructed by Newcastle-upon-Tyne City Council, Legal Services Dept ) for the Respondent

Hearing date : 22 January 2009
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Judgment

Lord Justice Pill : 
1.	On 26 June 2008, in the Crown Court at Newcastle-upon-Tyne before Miss Recorder Davies and a jury, Trafalgar Leisure Limited (“the company”) was convicted, on count 2 of an indictment, of failure to control or prevent the escape of waste contrary to sections 34(1)(b) and 34(6) of the Environmental Protection Act 1990 (“the 1990 Act”).  On the following day, the company was given a conditional discharge for a period of 12 months.  There was no order as to costs.  The company was acquitted of unlawfully depositing controlled waste contrary to sections 33(1)(a) and 33(6) of the 1990 Act (count 1).  
2.	The company appeals against conviction by leave of the single judge.  
3.	The Blackett Arms public house, at Nelson Street, Newcastle-upon-Tyne, was operated by the company.  It dealt with its waste by hiring a large green bin which was kept on the street.  The company had a contract with Durham Waste Management to empty the bin weekly and dispose of the waste.  
4.	At 9.30 am on 26 September 2007, a local authority enforcement officer, Mr Elliott, when on patrol in the area, saw the green bin.  On the pavement next to it were 21 bags of rubbish and cardboard boxes.  A purple bin was also nearby the ownership and use of which has not been established.  The Blackett Arms is situated near an entrance to the Grainger Market where stallholders trade in a variety of products.  
5.	Mr Elliott examined the contents of the bags.  Many contained material, such as bottles and cans, and indeed till receipts from the public house, which had clearly come from the Blackett Arms.  Mr Elliott did not look inside the green bin.  He had the bags removed and destroyed.  He did not enter the public house or make contact with its staff.  
6.	On the same day, Mr Elliott wrote to the company’s head office requiring an explanation for the offending behaviour.  No reply was received.  On 16 October, he again wrote to inform the company that it had been reported for offences under the 1990 Act and stated that any representations should be addressed to him within seven days of receipt of the letter.  Six days after the letter was sent, proceedings were commenced.  
7.	Section 33(1)(a) of the 1990 Act provides that a person shall not: 
“Deposit controlled waste or knowingly cause or knowingly permit controlled waste to be deposited in or on land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence.”
Section 33(6) provides: 
“A person who contravenes sub-section (1) above . . . commits an offence.”
8.	Section 34(1) of the 1990 Act provides: 
“. . . it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances – 
(a)	To prevent any contravention by any other person of section 33 above; 
. . . 
(b)	To prevent the escape of the waste from his control or that of any other person; 
. . .”
Section 34(6) provides that any person who fails to comply with the duty imposed by sub-section (1) commits an offence.  
9.	Sub-sections 34(7) and (10) provide: 
“The Secretary of State shall, after consultation with such persons or bodies as appear to him representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by sub-section (1) above.
. . . 
A code of practice issued under sub-section (7) above shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.”
10.	It was conceded that sections 33 and 34 applied to the Blackett Arms as commercial property, that controlled waste was present on land at Nelson Street, and that a Waste Management Licence authorising the deposit was not in force.  The prosecution strongly argued for a conviction on count 1.  They contended that the staff of the Blackett Arms, employees of the company, put the bags and cardboard on the pavement outside the public house.  The circumstances were such that there was clearly a case to answer on count 1.  It was possible to infer, depending on the jury’s view of the evidence, that the bags had been deposited on the pavement in that way.  Witnesses were called on behalf of the company.  The jury acquitted on that count.  
11.	At the close of the prosecution case, Mr Goldberg QC, who appeared for the company at the trial as he has before this court, submitted that there was no case to answer on count 2.  It arose only upon an acquittal on count 1.  The prosecution case on count 2, inconsistent with that on count 1, had to be that other persons had removed the pub waste from the green bin, probably to put their own waste in it.  That was the only feasible alternative explanation in the circumstances.  The case on count 2 was put on the sole ground that the green bin should have been kept locked so that no waste could be removed from it.  It was alleged that by failing to lock the bin, the company had failed to take all such measures as were reasonable in the circumstances to prevent the escape of the waste from its control, contrary to section 34(1)(b).  
12.	Mr Goldberg submits that, on that case, the company should have been charged under section 34(1)(a), that is failure to take reasonable measures to prevent other persons from depositing controlled waste by removing it from the bin, and that prosecution under section 34(1)(b) was misconceived.  The word ‘escape’ means an involuntary act, such as leakage, and not a deliberate dumping by a third party, it is submitted.  It is further submitted that, in any event, there was no evidence on which a jury could properly convict of an offence under section 34(1)(b).  
13.	On count 2, the evidence of Mr Elliott did not assist the prosecution.  The only potential evidence was in a letter written by the company’s managing director on 10 October 2007, though not received by the prosecution until 2 November 2007.  It was conceded that the contents of the bags “most likely originated from the [company’s] premises”.  The letter continued: 
“After receiving your letter we have investigated this matter thoroughly with our staff at the premises, the manageress has confirmed that she has had problems with our bin since the redevelopment of Eldon Square started and the Grainger Market stall holders lost their waste disposal facility which was replaced by a restricted bag collection from their stalls.  This has led to rubbish being dumped beside our bin and rubbish pulled out of our bin and dumped on the ground to make room for other persons rubbish in the bin.  
Our Manageress has complained to the market inspector about this on more than one occasion and the complaints have been prior to your letter of 26th September 2007.  Clearly as the Grainger Market is both owned and controlled by Newcastle City Council it should not be too difficult for you to verify these problems.”
Thus there was evidence of previous problems which could conceivably have permitted a conclusion that the bin should have been kept locked.     
14.	When cross-examined about the letter, Mr Elliott, rejected the reliability of that evidence on behalf of the company.  When asked why he had not made an enquiry of the market inspector on receipt of the letter, Mr Elliott said, as summarised by the Recorder in her summing up: 
“He did not regard it as one of his jobs to investigate it any further and that he was quite sure that if there had been a problem in the market, the market inspector would have rung him and told him.  It was, in a nut-shell, as he put it: ‘It was my view that the bags that were (?) taken were for the public house and not for anywhere else, and I wasn’t prepared to do any more investigating.’”
15.	In submitting that count 2, if it was to be pursued, was pursued under the wrong paragraph in section 34(1)(b), Mr Goldberg relied, and relies in this court, on the decision of the Divisional Court in Gateway Professional Services (Management) Limited v Kingston-upon-Hull City Council [2004] EWHC (Admin) 597. 
16.	The company in that case was charged under section 34(1)(b) when one of its employees had deposited a number of black bags containing commercial office waste at premises adjoining the company’s own premises.  The defence submission was that the word “escape” in section 34(1)(b) was not apt to denote a deliberate act of depositing waste.  Laws LJ, with whom Eady J agreed, stated at paragraph 11: 
“However, it would be close to unthinkable, in my judgment, if the negligent spillage of waste on to a neighbour's property were prohibited with criminal sanctions but its being deliberately deposited there were not. If that had been the apparent position, it might be open to the court to construe the term "escape" in section 34(1)(b) sufficiently widely so as to cover an act of deliberate dumping by the person charged. But in my judgment such a case is already covered and plainly covered by section 33(1)(a).”
17.	Laws LJ added, at paragraph 12:
“Where the environmental wrong is constituted by an act of deliberate dumping of waste, it would seem to be covered by section 33(1)(a).  This company was not prosecuted under that sub-section, nor under section 34(1)(a) which . . . requires a person (such as this company) to take reasonable measures to prevent any contravention of another by section 33.” (sic)
	. . . 
“The word ‘escape’ cannot be read as widely as [the prosecution] would have it read.”
18.	That approach to the meaning of the word ‘escape’ was followed on a prosecution appeal by way of case stated in London Borough of Camden v Mortgage Times Group Limited [2006] EWHC (Admin) 1615, also a decision of the Divisional Court.  Controlled waste had deliberately been deposited in the public highway.  Latham LJ, with whom McCombe J agreed, stated, at paragraph 7:    
“. . .  Depositing waste on the highway cannot be any different from depositing it on neighbouring land for the purpose of determining whether there had been an ‘escape’.”
19.	Latham LJ added at paragraph 8:
“However Mr Lewis, on behalf of the [prosecution] has submitted to us that the justices had not been asked to determine the relevant question. He points out that section 34 of the Act imposes a duty to take reasonable measures to prevent, in the present case, the escape of waste. It is the failure to take such reasonable steps which constitutes the offence. An escape is not a prerequisite of liability. The true case, he submits, against the respondent was that by depositing the waste on the highway a significant period of time before collection was due to take place, it had materially increased the risk of an escape of that waste, and had accordingly failed to take reasonable measures to prevent that escape.”
“The offence under section 34(6) is the failure to take reasonable measures as required by the duty imposed under section 34(1). The prosecution does not have to establish that an "escape" has taken place. It has to establish that there has been a failure to exercise the statutory duty of care.”
The appeal was, however, dismissed because the case had not been presented to the magistrates in that way.  
20.	Though the narrow construction of the word ‘escape’ in section 34(1)(b) was not challenged, the court accepted that a conviction under the paragraph could properly be obtained in the absence of an escape by reason of a deposit of waste at such a time which materially increased the risk of its escape.  That was no part of the prosecution case on count 2 in the present case, the alternative case, upon a failure on count 1, being based solely on a deliberate removal by third parties following a failure to lock the bin.  
21.	On that alternative case, the appropriate charge, in our judgment, would, on the evidence, have been under section 34(1)(a).  The failure to lock was, on the facts, a failure to prevent other persons depositing controlled waste, contrary to section 33.
22.	However, we acknowledge the difficulty the prosecution may face in deciding under which paragraph to frame the charge in circumstances such as the present.  The Secretary of State issued a Code of Practice under section 34(7) of the 1990 Act.  It was entitled “Waste Management the Duty of Care”.  Under the heading “Keep the waste safely” it was stated: 
“2.1	All waste holders must act to keep waste safe against:- 
	(a)	corrosion or wear of water containers; 
(b)	accidental spilling or leaking or inadvertent leaching from waste unprotected from rainfall; 
(c)	accident or weather breaking open contained waste and allowing it to escape; 
(d)	waste blowing away or falling while stored or transported; 
(e)	scavenging of waste by vandals, thieves, children, trespassers or animals.”
23.	The first sentence of paragraph 2.2 provides: 
“Holders should protect waste against these risks while it is in their possession.”
24.	Under the heading “Waste left for collection”, it is stated, at paragraph 2.7: 
“Waste left for collection outside premises should be in containers that are strong and secure enough to resist not only wind and rain but also animal disturbance, especially for food waste.  All containers left outside for collection will therefore need to be secured or sealed.  For example, drums with lids, bags tied up, skips covered.  To minimise the risks, waste should not be left outside for collection longer than is necessary.  Waste should only be put out for collection on or near the advertised collection times.”  
There is no mention in the Code of locked bins.
25.	Thus the Code contemplates that keeping waste safe against scavenging by trespassers or animals, or (Mortgage Times) the possibility of such scavenging, may amount to a failure to take reasonable measures under section 34(1).  The removal and depositing of the waste could be by some other person (paragraph (a) of section 34(1)) or it could be by accident, the weather or scavenging by animals, in which case paragraph (a) would not apply and resort to paragraph (b) of the section would be necessary.  There may be cases in which the evidence available to the prosecution requires that an offence is charged under paragraph (b) instead of, or as well as, a charge under paragraph (a).
26.	In circumstances such as the prosecution’s alternative case, we would expect the charge normally to be under paragraph (a) of section 34(1) but a charge under paragraph (b) may also be appropriate so that both the possibility of removal by human hand and removal in other ways contemplated in paragraph 2.1 of the Code of Practice are covered.  
27.	In the present case, the alternative prosecution case (count 2) depended, in the event, solely on the contents of the letter of 10 October.  Not only was the count based on facts which involved a rejection of the prosecution’s main case (count 1) but the only evidence which potentially supported it, the contents of the letter, was robustly rejected by the council’s enforcement officer.  
28.	The Recorder should have directed a verdict of not guilty on count 2 at the close of the prosecution case.  On the jury’s acquittal on count 1, a case could arise on count 2 only on the assumption that the company’s employees had put the rubbish in the green bin.  On the evidence at the close of the prosecution case, there was nothing to suggest a failure to take reasonable measures to prevent the escape of the waste from the bin.  On that evidence, the same result would have followed if the charge had been under section 34(1)(a).     
29.	The verdict on count 2 is unsafe by reason of the failure to stop the case.  On count 1, the company was virtually obliged to call evidence to defeat the inference, which almost certainly would otherwise have made, of depositing by their employees.  The jury’s attention should thereafter have been confined to count 1.  There was a danger that in calling evidence to defeat count 1, a case could be created for the prosecution on count 2.  It was unfair to proceed on count 2 and the conviction on that count is unsafe.    
30.	That is sufficient to dispose of the appeal but we consider the subsequent events because we share the Recorder’s concern about the way the case was conducted by the prosecution.  Criticism was made at the trial of the failure by the enforcement officer to make enquiries of the staff when he saw the rubbish on the morning of 26th September (the day on which the green bin was due to be emptied), especially given the absence of evidence of any previous convictions or complaints, and given the good character and excellent reputation of the company’s employees at the public house, including the manageress, as to which evidence was called.  His explanation, as summarised by the Recorder, was that he knew or assumed that the manageress was not a director of the company or holder of the waste management licence, an unsatisfactory explanation in our view.  
31.	The Recorder stated, when summing up:
“The Defence have also suggested, and you may think, that the prosecution was swift, to say the least, that the tone of the letter, you might think, the tone of the letter was peremptory and unreasonable, and the Defence suggest, you may think, that as a response to a single occurrence the Prosecution, coming so very rapidly upon a letter in terms (inaudible), is quite disproportionate.”
32.	However, in the next paragraph, the Recorder rightly added: 
“Members of the jury, you should put such thoughts as those to one side, because they are not relevant to the question has the Prosecution proved its case on one or other of these counts?”
33.	In her ruling refusing costs to the prosecution, the Recorder stated, amongst other things: 
“Fourthly, this Prosecution was, in my view, clearly unnecessary.  A warning letter would have achieved the Council’s perfectly proper objective to keep the streets of Newcastle clean without the time and expense entailed in a four day trial.”
	. . . 
“Fifthly, and furthermore, the Prosecution issued summonses against the company before the Council said they would in their curt and pre-empting letters . . .”
	
34.	We agree with the Recorder’s remarks.  A more measured approach may achieve better results in keeping clean the streets of Newcastle-upon-Tyne. 
35.	A further matter, of a different kind, has given us concern in relation to the Recorder’s direction to the jury in her summing up on count 2.  There was evidence that of the customers of Durham Waste from whom the company had hired the green bins, about 15% had lockable bins and about 25% of those operating in public houses.  Many large respectable companies did not have such bins.  On the evidence for the defence, there had been two previous occasions when rubbish from the public house had been taken out of the bin and put on the floor.  The manageress said that, on the telephone, she had asked for a lockable bin.    
36.	The Recorder correctly and helpfully set out the ingredients of an offence under section 34(1)(b).  We commend the care with which the Recorder summarised the evidence and conducted the trial.  She added that the sole allegation was that a lock should have been put on the bin, and summarised the case for prosecution and defence.  The Recorder then stated:
“It is a matter for you, and take into account also the fact that the application to a dustbin of a lock is not something that anywhere is apparently specifically encouraged or mentioned in the Environmental Protection Act, nor in that jolly lengthy code of practice that you have.  So, members of the jury, you set the standard.”
The expression ‘you set the standard as to what is reasonable’ had been used earlier.  
37.	In our judgment, a jury required to “set the standard” were entitled to further guidance as to how to do it.  This was not a negligence case but a criminal charge.  In R v Adomako [1995] 1 AC 171, the nature of the case was quite different, and much more serious.  The House of Lords considered the test to be applied by a jury in a case of involuntary manslaughter which involves the jury deciding whether the breach of duty alleged should be characterised as gross negligence.    Lord Mackay of Clashfern L.C, at page 187C, stated that the jury would have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care was such that it should be judged criminal.  In assessing the meaning of dangerous driving, it has been found expedient to lay down a detailed statutory test to be applied by juries in making their decision (Road Traffic Act 1988, Section 2A(1)).  
38.	On count 2, given the very limited number of previous incidents which might have alerted the company to the desirability of a lock, and the small percentage of commercial premises, including public houses, with locked bins, the prosecution case that the company was guilty of an offence under 1990 Act was thin.  Guidance was required as to how to approach the evidence.  There was a danger, for example, that, without guidance, the jury would conclude that, since the bin was unlocked when a lock had been requested, it inevitably followed that the company was guilty.  Further, in a case of this kind, the jury should at least have been told that they would have to consider whether the company’s conduct fell below a proper standard to the extent that it should be judged criminal.  The jury were not required to consider general standards for rubbish control in Newcastle-upon-Tyne but whether a particular defendant was guilty of a specified criminal offence.  However, we have decided to allow the appeal on other grounds, on which we heard fuller argument, and do not propose to rule on whether the lack of guidance would have been fatal to the conviction.    
39.	The appeal is allowed and the conviction on count 2 quashed.