R M White Ltd and Another v Crown Court at Sheffield
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 21 April 2015 |
| Neutral Citation | [2015] EWHC 3801 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 April 2015 |
| Docket Number | CO/830/2014 |
[2015] EWHC 3801 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The Courthouse
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Mr Justice Stewart
CO/830/2014
Mr Khan QC appeared on behalf of the Claimant
The Defendant did not appear and was not represented
This case involves a challenge to the decision of the Crown Court Judge, Judge Davis QC and Magistrates made on 25th November 2013. The decision of the Crown Court was for the dismissal of an appeal against convictions of the Sheffield Magistrates on 18th July 2013, sentenced 13th August 2013.
All three applicants were convicted of the following offences:
That between 31st March 2008 and 5th April 2010 they failed to comply with an environmental permit, namely condition 1.1.1, contrary to regulation 38(1)(b) and 41 of the Environmental Permitting (England and Wales) Regulations 2007 and section 2 of and schedule 1 to the Pollution, Prevention And Control Act 1999.
That between 6th April 2010 and 28th February 2012 they failed to comply with or contravened an environmental permit, namely condition 1.1.1, contrary to regulation 38(1)(b) of the Environmental Permitting (England and Wales) Regulations 2010 and section 2 and section 7(9) of and schedule 1 to the Pollution Prevention and Control Act 1999.
That on 1st December 2011 they failed to comply with the requirements of an Enforcement Notice issued on 26th August 2011, contrary to the regulation 38(3) of the Environmental Permitting (England and Wales) Regulations 2010 and section 2 and 7(9) of and schedule 1 to the Pollution Prevention and Control Act 1999.
The first applicant, M White Ltd, is a company now in liquidation. There is a letter from the Official Receiver dated 31st March 2015 saying he does not consent to the application listed before me today, ie the oral renewal of an refusal of permission. However, the two individual claimants were convicted and sentenced and I therefore deal with their applications. The two individuals were sentenced to community orders of 120 hours unpaid work and all applicants were ordered to pay £8,810 costs by the Magistrates.
Permission was refused by Judge Kaye QC on 27th May 2014 on the basis that the claimants were offered an effective alternative remedy in the e-mail from the Sheffield Crown Court of 4th February 2014 to state the case out of time. The claimants were also informed in that e-mail how to set about that process but failed to observe the recommendations.
The background to this was that the applicants emailed the Sheffield Crown Court on 26th November 2013, asking Judge Davies to state a case. On 4th February 2014 the court responded (among things):
"The application to state a case can only relate to legal matters not issues of fact and accordingly, in the circumstances of your case, that would be confined to the interpretation of the terms of the licence.
As I mentioned in my e-mail of the 19th December 2013 your formal application must be submitted within 14 days ie by the 19th February 2014 and must specify:
(i) the decision in issue.
(ii) the proposed question of law on which the opinion of the High Court is sought
(iii) the proposed grounds of appeal."
An application to state a case had been sent by e-mail dated 18th February 2014. It was clearly not in the correct form. Nevertheless it did set out the decision in issue, the proposed question of law on which the opinion of the High Court was sought (namely the interpretation of the terms of the Environmental Licence) and the proposed grounds of appeal.
The application for renewal first came before Judge Goss QC (as he then was). He ordered on 12th August 2014:
"1. These proceedings are stayed for 56 days to enable the Sheffield Crown Court to respond to the claimant's application to state a case.
2. After the expiry of 56 days the claimants are to notify the court as to whether they seek a further hearing to renew their application for permission to pursue their claim and if they do the case to be listed for a renewal hearing on the first available date and in any event no later than 31st October 2014.
Observations
3. The claimants now being legally represented it is in their interests to comply with part 64 of the Criminal Procedure Rules in relation to an application to state a case both in terms of form and content."
On 28th August 2014 an application was made to state a case. This was on the relevant form in accordance with the Criminal Procedure Rules, rule 64.2. It was apparently done with the help of a barrister — I think Mr Khan QC who has appeared before me today.
On 7th October 2014 the Crown Court refused to state a case. The reasons for refusal were:
"No specific questions of law are raised for consideration of the High Court.
No arguable point of law arises out of the matters raised by the applicants, which are essentially questions of fact resolved by the Crown Court. At no stage in the hearing of the appeal was any submission of 'no case to answer' made.
The application is focussed on alleged 'findings of fact'.
The applicants have also raised issues relating to conduct of the hearing which are dealt with below."
The refusal then set out a detailed chronology and over two pages of "specific reasons" for the Crown Court's refusal. A number of these related to the fact that the application predominantly mentioned the Crown Court making errors in its finding of fact. Indeed, on page 3 of the application, is the quotation: "One would say that appeal is mostly against findings of fact".
The refusal to state a case also dealt with some alleged procedural irregularities.
As to the main issues raised on the licence the refusal stated:
"The applicants raise two issues namely
• the accuracy of the measurements.
This was a factual issue on which the Crown Court heard and accepted the expert evidence called by the respondent; no evidence on this aspect was called by the applicants.
• The interpretation of the licence.
The Crown Court found, on the evidence, that the terms of the licence were unambiguous and were set out in the General Considerations of that document.
The arguments raised by the applicants that the prescribed limits related to waste after sorting would have the consequence that the applicants could store a limitless amount of these waste products which would result in the potential for serious risks to health and the environment. In addition, the licence did not provide for this."
The applicants brought the matter back to the High Court and it came before Judge Heaton QC who made this order on 28th October 2014:
"Upon hearing submissions on behalf of the claimant challenging the refusal of Sheffield Crown Court to state a case for the consideration of the High Court.
Order…
(i) These proceedings are stayed for 56 days to enable the claimant to serve on the Sheffield Crown Court a refined application to state a case, clearly identifying precisely the questions of law for the consideration of the High Court and for the Sheffield Crown Court to respond to such refined application.
(ii) After the expiry of 56 days the claimants are to notify the court as to whether they seek a further hearing to renew their application for permission to pursue their claim and if they do. The case be listed for a renewal hearing on the first available date and in any event no later than 31st January 2015."
In the application to state a case which then followed the questions for the High Court were set out in paragraph 2 as follows:
"The first question for consideration of the High Court is whether as a matter of law the court correctly interpreted the terms of the Environmental Permit held by the applicants.
The second question for the consideration of the High Court is whether the court was wrong in law to accept the contradictory and arguably unreliable evidence of the witnesses as to the volume of waste stored on the site."
In relation to first question the Grounds of Appeal stated:
"The interpretation of the Environmental Permit. Crucial to the applicant's case on this appeal is the interpretation of the Permit. The applicants contend...
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