Stephen Tromans details a recent Court of Appeal decision confirming that, when transporting materials, ignorance of whether containers hold hazardous waste is no defence
An unfortunate consequence of the growth in recycling rates is the increased opportunity for organisations, either unscrupulous or unwitting, to transport harmful wastes to unsuitable locations in developing countries, under the guise of recycling or recovery.
Such activities can present serious risks to the local environment and to human health.
The Environment Agency has been devoting considerable effort to detecting, investigating and prosecuting such cases. As a result, new case law is emerging on how to interpret relevant legislation, including the Transfrontier Shipment of Waste Regulations 2007 and the European Waste Shipment Regulation 1013/2006.
Transporting waste
In R v Ezeemo & Others [2012] EWCA Crim 2064, the seven appellants had been convicted of 21 charges of transporting hazardous waste - as listed in annex V of European Regulation 1013/2006 - in containers destined for Nigeria (a non-OECD country), contrary to the Regulation.
In the original prosecution, the appellants were found to have illegally transported approximately 159 tonnes of hazardous waste, including cathode ray tube televisions and fridge-freezers containing ozone-depleting substances and compressor oil.
The waste had been collected from civic amenity or waste disposal sites and then taken to collecting points where they were loaded into containers. Non-hazardous waste was also found in some of the containers.
The trial judge at Basildon Crown Court had ruled that there was sufficient evidence to convict each of the appellants for intending to transport waste to Nigeria.
The judge also ruled that, under Regulation 23 of the Transfrontier Shipment of Waste Regulations 2007, the offence was one that imposed strict liability - meaning that the prosecution was not required to prove that any of the defendants had knowledge that the product being transported was waste.
The appeal
At the Court of Appeal, it was argued that the trial judge had been wrong to direct the jury that, if they were sure the owner had discarded an electrical item at a civic amenity site then:
- the item became waste within the meaning of the regulation;
- did not cease to be waste until something was done to it to stop it being waste; and
- when deciding whether something had been done to stop the item from being waste the intention of the defendant was immaterial.
It was also contended that the judge had been wrong to rule that the offence was one of strict liability, and requiring no proof that those accused knew that the product transported was waste or that they intended to transport waste to Nigeria for recovery.
Lord Justice Pitchford dismissed the appeal, finding that the trial judge had made no error of law and that the verdicts were safe.
He confirmed that there was a legal precedent which held that; once a substance, or object, had been discarded, the question of whether it had changed its status and become "waste" was one of fact - whether the holder discarded or intended to discard the items was judged by what he or she did with them.
Strict liability
Lord Pitchford also agreed that the offence of transporting hazardous electronic waste to a non-OECD country was one of strict liability, and so did not require proof of knowledge that the product transported was waste or that the intention was to transport the waste to Nigeria for recovery.
The Court of Appeal's ruling has the effect of catching those who may have no personal knowledge that a container holds waste or that its contents are destined for recovery in a non-OECD country. One reason for imposing strict liability is to promote greater vigilance among organisations who undertake activities that may cause harm to the public, such as waste recovery.
The obligation that the Regulations place on transport organisations is to take care to know exactly what is in the cargo they are transporting. If they do not, they risk breaching the Regulations.
The Court of Appeal decision will be welcomed by the Environment Agency, and by all those concerned about illegal shipments of waste to Africa and other non-OECD countries.
If regulators had to prove in each case that defendants knew that closed shipping containers held waste, their task would be impossible. The right approach is to place the onus of proper investigation and due diligence on those involved in consigning and transporting the material.
International shipments of waste
The Transfrontier Shipment of Waste Regulations 2007 supplement EU Regulation 1013/2006 (which implemented the Basel Convention on the control of transboundary movements of hazardous waste and their disposal), and the OECD Decision 107/final on the control of transboundary movements of waste destined for recovery operations.
The regulations make it illegal for: waste to enter or leave the UK for disposal, except in very limited circumstances; and for hazardous waste to be exported to non-OECD countries for recovery.
Further information and guidance is available from the Environment Agency online.
