Environment Agency v Drake

JurisdictionEngland & Wales
JudgeSIR THAYNE FORBES
Judgment Date06 May 2009
Neutral Citation[2009] EWHC 1344 (Admin)
Date06 May 2009
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/6/2009

[2009] EWHC 1344 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Sir Thayne Forbes

(Sitting as a High Court Judge)

CO/6/2009

Between
The Queen on The Application of The Environment Agency
Claimant
and
John Christopher Drake
Defendant

Mr Gary Lucie (instructed by the Environment Agency) appeared on behalf of the Claimant

The Defendant did not appear and was not represented

SIR THAYNE FORBES
1

: This is an appeal by way of case stated in respect of the decision of the District Judge for Devon and Cornwall, sitting at the Bodmin Magistrates' Court, Cornwall on 14th July, whereby he ordered a stay of two of the offences with which the respondent was charged on that day. The District Judge stayed proceedings in respect of those two offences as an abuse of process on the basis that he was satisfied that the respondent had suffered a serious prejudice and that a fair trial was no longer possible.

2

There is an issue in these proceedings as to whether the District Judge did indeed apply the correct test but, in all the circumstances, it is not necessary for me to deal with either that ground (which is ground 1) or ground 2, which suggests that the District Judge took into account various immaterial considerations. The effective ground of challenge in this case is ground 3, which is based on the submission that the District Judge erred in law when concluding, as he purports to have done, that the respondent had suffered a serious prejudice as a result of matters to which I will refer in just a moment.

3

The respondent had been originally charged with three offences all arising out of a single incident at Higher Tregawne, Withiel, Cornwall, on 30th August 2007. The first information alleged an offence of obstruction of two of the Environment Agency's officers in the exercise or performance of their powers and duties contrary to section 110(1) and (4) of the Environment Act 1995. In due course, the District Judge found that offence proved. The second information alleged an offence of knowingly causing poisonous, noxious or polluting matter, namely silt and/or suspended solids, to enter controlled waters, namely a tributary of the River Ruthern and the River Ruthern, contrary to section 85(1) of the Water Resources Act 1981. The third information alleged an offence of removing without the consent of the Environment Agency a deposit, namely silt and/or suspended solids, that had accumulated by reason of a dam holding back the waters from part of the bottom of an inland fresh waterway by causing the deposit to be carried away in suspension in the waters contrary to section 90(1) and (3) of the Water Resources Act 1991.

4

The respondent pleaded not guilty to all three offences. In a defence statement lodged on 14th February 2008, he asserted that he denied that he had caused any pollutant to enter any controlled water. As I have already indicated, the respondent was subsequently convicted of the offence of obstruction by the District Judge. He was ordered to pay a fine of £1,000 and costs of £15.

5

This appeal relates to the decision of the District Judge on the same day to stay informations two and three as an abuse of process.

6

It appears from his written decision and from the case stated that, in his decision to stay the proceedings in respect of informations 2 and 3, the District Judge had regard to the following matters: (i) a history between January and August and the weekend before the trial which indicated initially that samples taken on the day of the incident had been lost, then that the samples had been tested to destruction and finally, that although the samples had not been tested to destruction, what remained had been disposed of without providing a proper explanation for that disposal; (ii) that late statements taken by the Environment Agency which had been served were going to be relied upon and then on the day of the trial were not relied upon; (iii) that the defendant had wanted an opportunity to test the samples, or at least be able to cross-examine on the composition of the samples, none of which was possible because of the Environment Agency's failure to deal with the issues appropriately: the judge therefore considered that the defendant was seriously prejudiced by the fact that he would not be able to establish on the basis of the samples that had been taken by the Environment Agency (and which they had originally intended to rely upon) the source and extent of the alleged pollution; and (iv) the Environment Agency had decided on the day of trial not to rely upon the scientific evidence and that this meant that the whole nature of the case that the defendant had to defend was different.

7

In that summary of the matters to which the District Judge apparently had regard in reaching his decision to stay the proceedings in respect of the second and third informations, it is the issue relating to the samples which gives rise to the third ground of challenge. Put very simply, Mr Lucie, on behalf of the Environment Agency, submitted that there simply was no information and/or evidence upon which the District Judge could properly conclude that the defendant was indeed exposed to a serious prejudice as a result of the loss and/or destruction of the samples of water that had been taken by the Environment Agency and had been retained by them and then subsequently lost or destroyed.

8

It is worth noting in this case that, so far as concerns the two informations, it is not necessary for the prosecution to prove that the polluting matter which founds the charges under informations 2 and 3 is either poisonous or noxious. It is a matter of fact or degree to be decided by the factfinding tribunal as to whether the polluting matter actually pollutes or stains the waterway in question; see the cases of R v Dovermoss Ltd [1995] Env LR 258 and Express Ltd v Environment Agency [2004] EWHC Admin 1710.

9

Mr Lucie submitted that the first...

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