Case No: CO/4081/2006

Neutral Citation Number: [2006] EWHC (Admin) 1615
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Monday 03rd July 2006
Before :

LORD JUSTICE LATHAM
and
MR JUSTICE MCCOMBE
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Between :

	LONDON BOROUGH OF CAMDEN	Appellant	
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	MORTGAGE TIMES GROUP LIMITED	Respondent	

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(Transcript of the Handed Down Judgment of
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Robert Lewis & Christopher Buckley (instructed by The London Borough of Camden) for the Appellant
Jose Olivares-Chandler  (instructed by Angelo Barrea of Barrea & Co) for the Respondent

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Judgment
Lord Justice  Latham: 
1.	On the 24th February 2006 the Justices sitting at the Highbury Corner Magistrates Court dismissed summonses brought against the respondent alleging three offences against Section 34(1)(b) of the Environmental Protection Act 1990 (“the Act”).  The appellant appeals by way of Case Stated.  This sets the issue out in summary form as follows:
“The appellants allege that the respondent company, as a producer of controlled waste, had failed to take all such measures as were reasonable to prevent the escape of controlled waste from its control.  The summonses issued specifically state that on each of the three dates alleged an “escape” was occasioned by the waste being deposited and left unattended on the public highway.”
2.	The relevant facts found by the justices were as follows:
“2.1.      The respondent company had on each of the occasions alleged created controlled waste.
2.2.	The controlled waste had been placed in refuse bags and deliberately deposited upon the public highway by an employee of the cleaning contractor engaged by the respondent company.
2.3.	At approximately 0700 am on each of the three dates stated in the informations Mr D Osbourne, an employee of the appellants, observed the presence of that controlled waste upon the public highway.
2.4.	On 08/03/2004 Mr R Molinari an employee of the appellants, had delivered letters to businesses in Tottenham Court Road, including the respondent company, informing them that waste was collected from that road at 10.30 a.m. and that waste could only be placed on the highway for collection between 09.00 a.m. and 10.30 a.m.”
3.	From the Case Stated, it is apparent that the appellant alleged that in depositing the controlled waste, which consisted of plastic bags containing shredded paper, before the advertised collection time, they or their agents, had allowed the waste to escape from their control. The issue which the justices believed, on the way the case was presented to them, that they had to determine was whether depositing controlled waste on the highway constituted an “escape” for the purposes of section 34 of the Act.
4.	Section 34 of the Act provides as follows:
“(1)	Subject to sub-section 2 below, 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
.....
(b)	To prevent the escape of the waste from his control and that of any other person .....
..........
(6)	Any person who fails to comply with the duty imposed by sub-section (1) above .... shall be liable  - 
(a) on summary conviction to a fine not exceeding the statutory maximum; and 
(b) on conviction on indictment to a fine.”
5.	Mr Olivares-Chandler, Counsel for the respondent referred the justices to the case of Gateway Professional Services (Management) Ltd –v- Kingston upon Hull City Council [2004] EWHC 597 (Admin).  In that case, an employee of the appellant had deposited a number of black bags containing commercial office waste on the land adjoining the appellant’s own premises.  As in the present case, it was asserted by the prosecuting authority that the deposit of the bags of waste in those circumstances amounted to an “escape” within the meaning of section 34(1)(b); the justices agreed and convicted the appellant in that case.  On appeal to this court, the issue was whether or not the deposit of waste in those circumstances could amount to an “escape”.
6.	Laws LJ robustly dismissed the respondent’s argument.  He held that linguistically the word “escape” was simply not apt to denote a deliberate act of depositing waste.  The justices in the present case concluded that that was a complete answer to the way in which the case had been put before it by this appellant.  They could see no distinction for this purpose between depositing waste on neighbouring land and depositing waste on the highway.
7.	On the basis of the way that the case was presented to the justices, I can see no answer to the respondent’s case.  Depositing waste on the highway cannot be any different from depositing it on neighbouring land for the purpose of determining whether there has been an “escape”.  In view of the way the matter was presented to the justices, it seems to me that they were bound to acquit the respondent.   There had been no “escape” of the waste in question within the meaning of section 34(1) of the Act.
8.	However Mr Lewis, on behalf of the appellant 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.  In determining whether or not it had failed to take reasonable measures, the justices were required to look at all the circumstances, including the Code of Practice issued by the Secretary of State for the Environment which includes the following in paragraph 2.7:
“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.”
9.	In my view, Mr Lewis’ submission is correct.  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.
10.	I have considered whether, in the interests of justice, the matter should be remitted for the justices to consider the correct question, but have concluded that, as they gave the correct answer to the case that was presented to them, both in the summonses and the argument, the appeal should be dismissed.

Mr Justice McCombe:  I agree.