The Honourable Mr Justice NEWMAN :
- This application for permission to apply for judicial review, unusually, engaged the Court for two days on the 11th and 12th May 2004. Having regard to the breadth and importance of the arguments, the Court reserved its decision to be given in writing.
- The claimant, Paul Rackham Limited, seeks permission to apply for judicial review in connection with two decisions of District Judge Healy in the Swaffham Magistrates' Court on 10th April 2003:
(1) a ruling refusing a stay of the prosecution brought by the Environment Agency; and
(2) a subsequent refusal to state a case for the High Court in relation to that ruling.
- At the commencement of the hearing the Court indicated its view that time would probably not be best spent in connection with the argument under section 111 of the Magistrates' Court Act 1980 and the correctness of the decision to refuse to state a case. It seemed to the Court then, and I remain of the view, that since the proceedings had not been finally determined the Court was right to refuse to state a case (see Atkinson v USA  AC 197, Streames v Copping  1 QB 820). Yet further since the Court had undoubted jurisdiction to grant judicial review, the argument was largely academic. As a result Lord Kingsland QC, who has appeared for the claimant, concentrated his argument upon the matters relevant to his application for permission to apply for judicial review. Although Mr Harris, who appeared for the Environment Agency, argued to the contrary, in our judgment the position, so far as jurisdiction is concerned, is that which is set out in the case of R v. Belmarsh Magistrates' Court ex parte Watts  1 Crim App Reps 188, 195. The Divisional Court and the Magistrates' Court have concurrent jurisdiction in connection with proceedings for a stay of criminal proceedings on the grounds of an abuse of process. It can be noted that at page 195 Buxton LJ observed: -
"It will however always be open to magistrates in cases that do not fall within the narrow Bennett category to decline jurisdiction, and require the matter to be pursued in the Divisional Court, whether because of the complexity or novelty of the point, or because of the length of investigation that is required".
In general terms, magistrates, as Buxton LJ observed, do not have jurisdiction or alternatively, as a matter of law, should not exercise jurisdiction where the infractions of the rule of law relied upon are outside the narrow confines of the actual trial or court process of which the magistrates are seized. That is not to say that the jurisdiction will not be sparingly exercised for the reasons given by the House of Lords in R v DPP ex parte Kebilene and others  2 AC 326 and the Court of Appeal in Hoar-Stevens v Richmond Magistrates' Court  EWHC 2660 (Admin).
- In this instance, District Judge Healy (who sadly has recently died) assumed jurisdiction in connection with two categories of alleged abuse:-
(1) The conduct on the part of the Environment Agency in bringing the proceedings and its alleged failure to take into account relevant considerations, its failure to comply with its own internal policy and practice in connection with prosecution and other matters relating to this particular prosecution which, it was submitted, bore upon the lawfulness of the decision to prosecute. The District Judge obviously had jurisdiction and indeed was required to investigate and hear the application. Whether the claimant was best advised to have made the application at the outset and before any evidence was heard is a different matter. The District Judge refused the application, observing that he had seen a range of documents, memoranda, letters, various published reports and guidance. The submission for the claimant was that the disclosed material "speaks for itself". The Environment Agency accepted that the documents were genuine, but did not accept that they showed the complete picture and indicated that, when the appropriate time arrived, evidence would be given to explain the decisions and the conclusions. In my judgment, unsurprisingly, the District Judge concluded that these issues of fact required examination on evidence.
(2) The second ground was more formidable. The issue was whether the legislation under which the prosecution was brought was incompatible with Article 7 of the ECHR. The argument was put in two ways:-
(i) that the Environment Agency, in pursuing the prosecution in respect of the activities of the claimant in 1999, was seeking to give retrospective effect to a development in the law in connection with waste, which development occurred through a decision of the European Court of Justice in the case of ARCO Chemie Nederland Limited  QB 646;
(ii) that the definition of waste, which was taken from the Waste Framework Directive, read now as it had to be in the light of the decision in ARCO, meant that the law in this regard was not formulated with sufficient precision to enable the claimant to regulate his conduct. Reliance was placed upon the decision of the European Court of Human Rights in the Sunday Times v The United Kingdom 2 EHRR 245.
- The brief facts are that the Environment Agency brought the prosecution in respect of a number of alleged offences relating to the treatment, keeping and deposit of controlled waste at a farm owned by the claimant at Camp Farm in Norfolk. The activity at the Farm, undertaken by another company, Anti-Waste Limited, involved the production of a composted product which was created by mixing a waste derived material (referred to as "Material A") with green waste and farm manure and composting it in windrows on the farm so as to produce Product A. Material A was derived from the processing of municipal solid waste in Lowestoft. It was waste collected from households in the area.
- The claimants' case is that, after careful consideration, it took the view that both Material A and Product A were recovered products and not controlled waste. The conclusion was reached after consideration of the definition of waste in the Directive and the view expressed by the government in its Circular 11/94, in particular paragraph 2.47. It has been submitted that the claimant's interpretation of the law had the support of Carnwath J. in Mayer Parry Recycling v The Environment Agency  Env LR 489 and its interpretation of the law remained correct until the decision in ARCO. Notwithstanding its conclusions, in view of the imprecisions which were seen by the claimant, no doubt on legal advice, as a precaution, the claimant applied for registration of an exemption from waste licensing under Schedule 3, para 7 of the Waste Management Licensing Regulations 1994. There is a complaint that that request was not dealt with in accordance with law.
- Before returning to deal with the Article 7 arguments in more detail, it would be convenient to set out my conclusions in connection with the proposed challenge to the decision to prosecute. The complaints were summarised in a document handed to the Court at the commencement of the applications headed "Submissions at Preliminary Hearing". Paragraphs 3 and 4 contain a number of detailed complaints which, in my judgment, may well require investigation, but I am entirely satisfied that their determination is essentially fact-driven. Like the District Judge, I cannot see that it would be appropriate to attempt, by way of judicial review, on such incomplete facts, to intervene in the progress of the prosecution at this stage. The Environment Agency is entitled to give evidence and to lay its account before the Court. Jurisdiction there may be but, as I have already observed, it is a jurisdiction to intervene which has to be exercised with caution. Brief reference to the particulars, for example, whether the decision to prosecute without taking any scientific analysis to establish whether Material A was either a waste or recovered product, even in the light of the contents of the Circular 11/94, falls to be answered by direct evidence and investigation of witnesses in connection with the relevance and significant of the testing to the facts of this case. A failure to test is the subject of an allegation made in respect of other aspects of the prosecution, namely Product A as well as Material A. In my judgment, similar considerations provide the answer to these complaints. Further, the contentions that the Environment Agency had failed to take into account relevant material before deciding to prosecute, again, must be resolved in the context of the evidence. What was or was not relevant cannot be decided in a vacuum. So far as the complaint mounted upon the failure or refusal of the Environment Agency to register the appropriate exemptions under Regulation 18 and Schedule 3 is concerned, this complaint must also be resolved in the context of the facts of the case. By the foregoing, I should not be interpreted as expressing a view on the merits of the complaints which, on any view, call for a response.
- Although specific complaint is made about the retrospectivity which it is alleged exists in connection with the summonses in connection with 1999, in my judgment, retrospectivity as it arises from the precise terms of Article 7, is not here in issue. It is not the case that what was done in 1999 was not subject to the criminal law in 1999. The substance of the complaint is that it was not foreseeable in 1999 that the law could be applied in the way in which it is now alleged the prosecution seek to utilise it and, that by reason of the development of the law in the case of ARCO, it can be seen as a form of retrospectivity. It seems to me it can be regarded as an example, by reference to specific facts, of a basis for a complaint that it was not foreseeable, for the claimant with sufficient precision to regulate its conduct in 1999. That inability is demonstrated by the change in the law constituted by ARCO. Equally since the case of ARCO imprecision in the law prevails. Therefore, any prosecution in relation to its conduct in 1999 or 2000 infringes Article 7.
- Lord Kingsland did not shrink from the implications of the submission that he made in connection with the criminal enforcement of the Environmental Protection Act 1990 and the Waste Management Licensing Regulations. Whilst it could be said that the District Judge might have regarded the breadth of the challenge to the compatibility of the legislation as one which was outside "the narrow confines of the trial", he heard the argument and concluded that the submission failed because, so far as ARCO was concerned, it represented no more than part of an ongoing process of judicial interpretation. And so far as the argument advanced on the basis of the Sunday Times test was concerned, rightly in my judgment, observed that some cases will be more straightforward than others. In many cases it will be clear that a particular material is discarded material so that no meaning of the term other than the usual one will need to be looked for and that in such situations the holder of the material will know that it is waste and that the regulatory regime will apply to dealings with it. In a series of paragraphs which I have revisited since the conclusion of the detailed argument in the case, with a growing respect for the succinct and relevant summary of the position by the District Judge, I have concluded that his assessment of the lower degree of certainty in the law being consistent with "the penumbra of doubt" which has to be accepted is perfectly tenable. There will undoubtedly be difficulties in some cases in determining whether certain materials are waste, but clarity in the law can be achieved on a case-by-case basis. The availability of advice from lawyers is also relevant for it should enable those involved to foresee the potentiality for criminal proceedings and to conduct themselves accordingly.
- Against this approach, Lord Kingsland submitted that on a true view we had reached a position in which what was controlled waste was what the Environment Agency said was controlled waste. That the uncertainty was so great that before anybody could proceed with any safety to deal in waste and recovered products they would need clearance from the Environment Agency. The law had not appointed the Environment Agency as a licensing authority, governed by regulations, in connection with such matters and that, as a result, the position was so distorted that it amounted to the prosecution of the criminal law according to executive choice and discretion.
- In view of the decision to which I have come, I do not regard it as being helpful at this stage to comment in great detail upon the merits of this important submission. In my judgment the matter will have to be resolved in the course of a trial when all the facts are available. In my judgment the submission is potentially significant and according to the facts of the case may well be strongly arguable, but I am wholly unpersuaded that it is right for the arguments to be considered without reference to the facts. In my judgment, the journey towards a declaration of incompatibility, however persuasive the arguments may appear to be, cannot bypass the membrane of section 3 of the Human Rights Act 1998, which requires a court seized of any particular matter to seek, within the context of the case in hand, to interpret the legislation in a way which is compatible with the Convention. In response, Lord Kingsland placed great reliance upon the R v DPP ex parte Kebilene and others  2 AC 326 but in my judgment rather than supporting his submission, the judgments in the House of Lords, including Lord Steyn's, support the view that the proper approach to judicial review proceedings in connection with matters of incompatibility, leans towards the complaints being raised within the criminal trial and the appeal process from the criminal trial. I have considered the desirability of a magistrate being faced in this case with arguments as important and as broad as those which arises under Article 7 where he has no power to rule upon incompatibility, even if he was convinced that the legislation was incompatible with Article 7. He might hold the view that he should decline jurisdiction because of the significance of the issue and I express no view on what he should do. All these matters are for the magistrate to consider in the context of the case itself and when the facts are known and the prosecution's case, at least, has been supported by evidence.
The Certainty or Uncertainty of the Law
- The steps in the argument on uncertainty can be summarised as follows:-
(1) In Mayer Parry (paragraphs 46 to 51) Carnwath J. concluded that the term 'discard' is used in a broad sense equivalent to 'get rid of', but is coloured by Annex 1 of the Directive, where examples are listed, one of which is:-
"Any materials, substances or products which are not contained in the above categories".
Despite the breadth of the language, Carnwath J. concluded:-
"That broad category is however limited by the context, which shows that the purpose is to control disposal and recovery of such materials. Accordingly, materials which are to be re-used (rather than finally disposed of), but which do not require any recovery operation before being put to their new use, are not treated as waste. Similarly, materials which are made ready for re-use by a recovery operation, cease to be waste when the recovery operation is complete". (see also paragraph 48 of his judgment).
In expressing the law in this manner, Carnwath J. was formulating the conclusion he had reached as a result of applying the conventional principle of statutory interpretation, namely giving the words their meaning according to their purpose and the context of the legislation and, in particular, having regard to the rules of interpretation of European Directives.
(2) In ARCO the Court of Justice (see paragraph 94) concluded:-
"In that regard, it should first be noted that even where waste has undergone a complete recovery operation which has the consequence that the substance in question has acquired the same properties and characteristics as a raw material, that substance may nonetheless be regarded as waste if, in accordance with the definition in article 1(a) of the Directive, its holder discards it or intends or is required to discard it".
Further, in paragraph 97 the Court concluded:-
"The answer … must therefore be that the fact that a substance as a result of a recovery operation within the meaning of Annex IIB to the Directive is only one of the factors which must be taken into consideration for the purpose of determining whether that substance is still waste, and does not as such permit a definitive conclusion to be drawn in that regard. Whether it is waste must be determined in the light of all the circumstances, by comparison with the definition set out in article 1(a) of the Directive, that is to say the discarding of a substance in question or the intention or requirement to discard it, regard being had to the aim of the Directive and the need to ensure that its effectiveness is not undermined".
(3) In Castle Cement v The Environment Agency  Env. L.R. 46 Stanley Burnton J. referred to the ARCO judgment as "Delphic" (see paragraph 45) and stated that Carnwath J. had been superceded. At an earlier point in his judgment – see paragraph 18 - he referred to the guidance from the European Court of Justice as "less than pellucid". It has to be said that despite making these observations, upon which much reliance has been placed by the claimant in this court, the judge applied the law and concluded that the material in the case in question was waste.
(4) In Circular 11/94 at paragraph 2.47 the following appears:-
"These conclusions lead to the question of when a substance or object is waste, and is not fit for use in its present form or in the same way as any other raw material, may cease to be waste because it has been recovered within the meaning of the Directive. As indicated in paragraph 2.14 above, waste appears to be perceived as posing a threat to human health or the environment which is different from the threat posed by substances or objects which are not waste; and the Department's view is that the purpose of the Directive is to treat as waste and accordingly to supervise, inter alia, the recovery of those substances or objects which fall out of the normal commercial cycle or out of the chain of utility. It follows that the recovery of waste occurs when its processing produces a material of sufficient beneficial use to eliminate or diminish sufficiently the threat posed by the original production of the waste. This will generally take place when the recovered material can be used as a raw material in the same way as raw materials of non-waste origin by a person other than a specialised recovery establishment or undertaking".
- It is true that there is a measure of absolutism in the statement by Carnwath J. that materials which "are made ready for re-use by recovery operation, ceased to be waste when a recovery operation is complete". But in my judgment what the judge was saying was to be read in the context of the issues of fact which he had to resolve in that case. The paragraph from the Circular about which no complaint has been made, but which it was said was an illuminating guide to the law, stated that the product will cease to be waste "generally when the recovered material can be used as a raw material". In ARCO the European Court of Justice were concerned to deal with the facts presented by that case, which were that the wood which was to be used as fuel, was impregnated with very toxic substances and, for that reason, should be treated as hazardous waste. The wood had been transformed in a recovery process into chips and the chips reduced to powder but the composition of the substance, whilst the composition or nature of the substance had changed, had still retained the toxic agents. Applying the third recital of the preamble to the Directive, from which it was able to discern a relevant aim, it felt compelled to follow it:-
"The essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste".
On one view the European Court of Justice concluded that the recovery process had not been completed because the toxic agents remained.
- In my judgment, the argument advanced by the claimant in this Court has overstated the difference between the Mayer Parry position and paragraph 2.47 of the Circular and the judgment in ARCO. With respect to Stanley Burnton J., the difficulties that he saw about the lack of clarity did not prevent him applying the law to the facts of that case. It seems to me that the judgment in ARCO can be seen as an example of how the law develops by reference to particular facts, which facts can call for particular interpretations to be allied to legislative provisions.
- It will be a matter for the District Judge who has to try this case to apply the terms of the legislation and the Directive. He must consider the meaning of waste guided by the aim and purpose contained in the preamble to the Directive and apply it to the facts of this case. That is not to say that the task will be easy, but I have endeavoured to state very briefly what in my judgment is the essential area for attention in an endeavour to provide some guidance. In addition, it will serve to explain the conclusion to which I have come, namely that the real force and potential of this argument must be worked out within the context of the facts of this particular case and that this is not a case where the Court can simply interpret a statutory provision and test its compatibility against an established principle or doctrine of law without regard to a factual matrix.
- I have deliberately limited the extent of my comment on the various arguments which have been adduced because they have yet to be determined in their proper context. The fact that I have concluded that permission to apply for judicial review should be refused should not, at a later date, be seen as reflecting on the merits. I consider this application is premature. In my judgment the case must proceed.
The Honourable Mr Justice TOULSON:
- I agree and add some comments because of the detailed arguments which were advanced.
- Lord Kingsland's major arguments were founded on Article 7 of the Convention. He said that there would have been no complaint under that Article but for the decision in ARCO, which he submitted had two consequences. First, it made the test for determining what is "waste" within the meaning of the Council Directive 75/442 as amended ("the Directive") and The Waste Management Licensing Regulations 1994 ("the Regulations"), which follow the Directive, so uncertain that conviction of the claimant of any of the offences for which it is being prosecuted would contravene the Article. Secondly, it had the effect that the scope of the law as generally understood at the time of some of the alleged offences has been enlarged retrospectively in such a way that conviction of the claimant of those offences would contravene the Article.
- The claimant is being prosecuted for four alleged offences in December 1999 and four alleged offences in November 2000. ARCO was decided by the European Court of Justice in June 2000. Without going into the details of the different alleged offences, a crucial issue in the case is whether "material A" in the form that it was delivered to Camp Farm in late 1999 and late 2000 was waste within the meaning of the Directive and the Regulations. If it was not, no offence was committed. If it was, the claimant has other potential defences.
- The claimant's case is that "material A" had ceased to be waste and was "recovered product". Lord Kingsland referred to the Government's guidance published before ARCO in circular 11/94, particularly the paragraph cited by Newman J (in paragraph 12(4)). The preceding paragraph began:-
"How may waste cease to be waste? The Directive does not address the question of when a substance or object which is waste may cease to be waste. However, it is likely that in reaching a judgment on the Directive's definition of waste the determinant consideration would be the interpretation which in the opinion of the European Court of Justice best furthered the purpose of the Directive."
- This prediction was accurate for in ARCO the court emphasised that what is waste must be determined having regard to the aim of the Directive. Similar regard to the purpose of the Directive underlay the general guidance given in paragraph 2.47 of Circular 11/94, which concluded:-
"It follows that the recovery of waste occurs when its processing produces a material of sufficient beneficial use to eliminate or diminish sufficiently the threat posed by the original production of the waste. This will generally take place when the recovered material can be used as a raw material in the same way as new materials of non-waste origin by a person other than a specialised recovery establishment or undertaking." (Emphasis added.)
- In ARCO the Court rejected an argument that a recovery process listed in Annex 11 B to the Directive would necessarily result in the material ceasing to be waste. Otherwise (as I understand the reasoning) there could be circumstances in which the holder might intend to discard a large quantity of recovered material in a way which would be environmentally damaging, without the Directive being capable of applying.
- I have reservations whether the district judge was right to entertain the challenge to the prosecution based on Article 7 and the uncertainty of the meaning of waste, because a decision to uphold that challenge and to stay the prosecution on that ground would have involved a judicial decision that the relevant statutory criminal provisions were incompatible with the Convention. It seems to me that any such challenge ought to have been made to this Court, which has jurisdiction to make a declaration of incompatibility, rather than to the district judge, who did not. However, this point was not argued in detail before us, although it formed part of the submissions of the prosecution before the District Judge.
- Subject to that, I am not persuaded that valid criticism can be made of the way in which the district judge decided the issue.
- Because I doubt whether the district judge was right to entertain the issue, I am prepared to approach the matter as if this were an application to this court for permission to apply for judicial review to stay the prosecution on grounds of abuse of process, rather than an application for judicial review of the district judge's decision (which would strictly involve consideration whether his decision was unreasonable in the Wednesbury sense).
- I am not persuaded that the claimant has shown a sufficiently good case (that the meaning of waste is so vague as to contravene Article 7) to merit giving permission to apply for judicial review at this stage of the proceedings. In relation to the question when waste ceases to be waste, it seems to me that Circular 11/94 takes a sensible and helpful approach in its suggestion that recovery of waste occurs when its processing produces a material of sufficient beneficial use to eliminate or diminish sufficiently the threat posed by the original production of the waste (i.e. sufficiently to achieve the essential objective of the Directive, namely the protection of human health and the environment against harmful effects caused by the collection, etc. of waste).
- I can see nothing in ARCO which is inconsistent with that approach. It admittedly requires an element of judgement, and there may be borderline cases; but if the evidence leaves the matter open to real doubt, the claimant will be entitled to be acquitted. (It is to be noted that in ARCO the Court observed in paragraph 41 of its judgment that, in the absence of Community provisions, the member states are free to choose the modes of proof of the various matters defined in the Directives which they transpose, provided that the effectiveness of Community law is not undermined.)
- For similar reasons I am not persuaded that the decision in ARCO has put the claimant at risk of conviction for activities in 1999 which could not then have been reasonably supposed to carry any such risk. In any case I do not see how a decision to the contrary could be reached without evidence, which the district judge did not have, about what those activities were and how the decision in ARCO may on the facts have exposed the claimant to a risk of conviction to which it would not otherwise have been exposed.
- As to the complaints about the decision to prosecute, it is generally undesirable that criminal proceedings should be held up by collateral challenges. In this case, although the complaints about the decision to prosecute are put in a number of ways, essentially the claimant asserts that the prosecution has been brought without proper thought and without proper consideration of the available evidence. Even if that were so, it would not follow that it would be just or in the public interest to stay the prosecution if in fact there is proper evidence to justify it; but in this case that could only be satisfactorily determined through the ordinary process of trial. Questions about what led the Environment Agency to bring the prosecution may arise during the trial, but I agree with Newman J. that it would be wrong for the trial process to be delayed. The district judge's decision to refuse a stay was therefore not only justifiable but was the only decision properly open to him.
- The issue about the non-registration of an exemption appeared to me at the end of the argument to be a red herring, because registration (on my reading of the Regulations) does not confer an exemption. If the claimant's activities were exempt from waste management licensing under Regulation 17 and Schedule 3, para 7, it has a defence to the offences for which it is being prosecuted, and that defence is not defeated by the fact of non-registration. Whether or not it was exempt on the facts will be a matter for exploration as part of the trial. I agree with Newman J. that it is not suitable for investigation by way of preliminary judicial review proceedings.