R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and another
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD HOFFMANN,LORD COOKE OF THORNDON,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 17 February 2000 |
| Judgment citation (vLex) | [2000] UKHL J0217-5 |
| Date | 17 February 2000 |
| Court | House of Lords |
And Another
[2000] UKHL J0217-5
Lord Slynn of Hadley
Lord Steyn
Lord Hoffmann
Lord Cooke of Thorndon
Lord Hobhouse of Woodborough
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Hoffmann. I agree that the appeal should be dismissed for the reasons he has given. In agreement with him and with Lord Cooke of Thorndon, I do not consider that it is necessary to refer to the Reg. v. Director of Public Prosecutions, Ex parte Kebilene [1999] 3 W.L.R. 972 in the context of this case or that a reference to the European Court of Justice is required.
My Lords,
I have had the advantage of reading in draft the speech of Lord Hoffmann. For the reasons he has given I would also dismiss the appeal. I have also had the advantage of reading in draft the further observations of Lord Cooke of Thorndon. I am also in agreement with those observations.
My Lords,
The question in this appeal is whether a person who has unlawfully deposited waste without a licence may refuse to provide information about his activities which has been requested pursuant to a statutory power by a local waste regulation authority on the ground that his answers may incriminate him or lead to the discovery of evidence which may be used against him in a criminal prosecution.
As a matter of domestic law, this depends upon the construction of the statute which confers the power to require information - in this case, section 71(2) of the Environmental Protection Act 1990. Although the contrary was argued in the Divisional Court and the Court of Appeal, the appellant accepted before your Lordships that the terms of the section impliedly exclude self-incrimination as an excuse for refusing to answer. In a prosecution under the Act of 1990 the trial judge would have a discretion to exclude the answers. He could also exclude evidence found in consequence of the answers. That discretion is conferred by section 78 of the Police and Criminal Evidence Act 1984. The discretion may be exercised on the ground that, having regard to the circumstances in which the evidence was obtained, its admission would have an unduly adverse effect on the fairness of the trial. But the statute deprives the appellant of any privilege not to answer. He must provide the information and take his chance on persuading the judge at the trial to exclude it.
Mr. Vaughan Q.C., who appeared for the appellant, submitted however that in this case the domestic construction of the statute was not the end of the matter. The Act of 1990, as amended by Article 19 and Schedule 4 of the Waste Management Licensing Regulations 1994 (S.I. 1994 No. 1056) is the instrument by which the United Kingdom has given effect to the European Waste Framework Directive (91/156/E.E.C.). It must therefore be interpreted in accordance with Community law, including the general principles of human rights which form part of the Community jurisprudence. The European Court of Justice would apply by analogy the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, (1953) (Cmd. 8969) and Mr. Vaughan submitted that upon the true application of Article 6 of that Convention, the appellant would be entitled to rely upon the privilege against self-incrimination to refuse to provide the requested information. The question therefore is whether Article 6, as interpreted by the European Court of Human Rights, has this effect.
My Lords, I must now describe the statutory scheme concerning waste disposal which contains the power to request information at issue in this appeal and the circumstances in which the authority came to invoke it. For the protection of the public health and the environment, section 33 of the Act of 1990 prohibits the deposit or keeping of "controlled waste" upon any land without a waste management licence issued by a waste regulation authority. A contravention of the section is a criminal offence punishable on indictment by imprisonment for up to two years. Similarly, a carrier of controlled waste must be registered as such with a waste regulation authority: section 1 of the Control of Pollution (Amendment) Act 1989. The Environment Act 1995 transferred the functions of waste regulation authorities to the Environment Agency with effect from 1 April 1996, but before that date those functions were exercised by local authorities. Their duties as waste regulation authorities included the protection of human health and the environment (see paras. 2(1), Table 5 and para. 4(1) of Schedule 4 to the Waste Management Licensing Regulations 1994 (S.I. 1994 No. 1056)) and the administration and enforcement of the licensing and registration system.
In November 1995 the Hertfordshire County Council ("the Council") was waste regulation authority for the county. One of its inspectors, Mr. Douglas Valentine, found over 100 tonnes of clinical waste stored in trailers and a warehouse at two sites in or near Hertford. Clinical waste is "controlled waste" for the purposes of the Act of 1990. There was no licence authorising the deposit or keeping of waste on the sites in question, which appeared to have been leased or licensed to the first appellant, Green Environmental Industries Ltd. ("Green"). The second appellant, Mr. John Moynihan, was its sole director and principal shareholder. On 23 November 1995 the Council wrote to Green, with a copy to Mr. Moynihan, saying that there appeared to have been a serious breach of section 33 of the Act of 1990 and drawing attention to the possible penalties. It then requested Green forthwith to remove and incinerate the waste, failing which the Council would exercise its powers under section 59 to have the waste removed by its own contractors and recover the cost from Green or Mr. Moynihan or any other person liable under the section. On the following day Mr. Moynihan replied on behalf of Green by fax. He did not deny responsibility for depositing or keeping the waste but made certain proposals for its removal which the Council rejected as inadequate. The Council then employed contractors at a cost of over £200,000.
This was the background to the request for information served by the Council on Green a fortnight later under section 71(2), of which the material parts read as follows:
"For the purposes of the discharge of [its] functions under this Part … (b) a waste regulation authority may, by notice in writing served on him, require any person to furnish such information specified in the notice as the… authority… reasonably considers … it needs, in such form and within such period following service of the notice as is so specified."
By subsection (3), any person who fails, without reasonable excuse, to comply with a requirement imposed under subsection (2), commits an offence punishable summarily by a fine or on indictment by imprisonment for up to two years.
The request asked for particulars of all persons, companies or hospitals which had supplied clinical waste to Green; of the persons who carried waste on its behalf; of the staff which it employed in handling clinical waste at the two sites which had been found; of the companies which had employed Green to dispose of clinical waste; of the supplier or hirer of the trailers it had used; of the keepers of any vehicles used to collect waste from the producers; of the locations of any other sites used by Green and of three bins which had been seen on one of the sites but were no longer there.
Green replied by its solicitor, asking for confirmation that the answers would not be used against the company in a prosecution. He said that the use of the statutory power rather than an interview with a suspect under the Police and Criminal Evidence Act 1984, at which he would be cautioned that he need not answer, was an attempt to deprive the company of its right to silence and the privilege against self-incrimination. The Council stood its ground, offering no undertakings but insisting on the information. On 6 February 1996 it issued a summons before the magistrates alleging a contravention of section 71(2) by failure to provide the information. The summons was adjourned indefinitely when Green and Mr. Moynihan issued proceedings for judicial review to challenge the validity of the section 71(2) request. Leave to apply was granted but the application was dismissed by the Divisional Court ( Russell L.J. and Scott Baker J.) and an appeal to the Court of Appeal (Beldam, Peter Gibson and Waller L.JJ.) was unanimously dismissed. Green and Mr. Moynihan appeal to your Lordships' House.
In June 1996 Green and Mr. Moynihan were charged with offences under section 33 of the Act of 1990. They were committed for trial at St Albans Crown Court. On 25 July 1997, shortly before the judgment of the Court of Appeal in these proceedings, Mr. Moynihan pleaded guilty on two counts and on 15 September 1997 he was sentenced to a total of 18 months imprisonment. The sentences were ordered to run consecutively upon a sentence of three years imprisonment for cheating the revenue of VAT, which had been imposed at a trial on 23 May 1997. The position is therefore that the proceedings against Mr. Moynihan for the substantive offence under section 33, in respect of which he claimed that he might be incriminated, have been concluded. But he remains liable to prosecution and a maximum of two years imprisonment for failure to provide the information requested under section 71(2) if your Lordships should decide that he was bound to answer.
Although the point is no longer being pursued, I think that I should start by explaining why, in my opinion, Mr....
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Subject Index
...112, 122R v Herbert [1990] 2 SCR 151 ...........140R v Hertfordshire County Council, exp. Green Industries Ltd [2000] 2 WLR373........................................ 39, 40, 43R v Hewitt (1998) 95 Cr App R 81.... 124R v Higgins [2002] EWCA Crim 336................................................
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