EPA 1990 prosecutions and the Magistrates Court. I am assured that stout housing lawyers quail at the prospect. And why? Well this High Court appeal by way of case stated, although not strictly housing related, serves as a illustration.
The information laid in January 2008 stated:
On 30th July 2007, being the manager of JD Sports of 2-4 St Johns Road, SW11 and the producer of controlled waste, you failed in your duty to take all such measure applicable to you in that capacity as are reasonable in the circumstances to prevent the escape of waste from your control or that of any other person contrary to Section 34(1)(b) of the Environmental Protection Act 1990 in that your trade waste, namely a pile of about 12 refuse sacks was found on the highway St Johns Hill SW11 at the junction with St Johns Road and an offence has thereby been committed CONTRARY to Section 34(6) Environmental Protection Act 1990.
What was the problem with this prosecution? For it was thrown out by the Magistrates, with a finding that Wandsworth had abused the process?
Firstly, Wandsworth had sought, at hearing, a small amendment. To wit:
the word “and” after “SW11” should be deleted and the following words “a producer of controlled waste” should be placed in brackets.
The effect of such amendment being simply to make clear that JD Sports, not Mr Rashid was the producer of controlled waste.
The Magistrates were having none of it. They refused the amendment.
In his lead judgment, Pill LJ was baffled by this:
This appears to me to be a clear case where the amendment should have been permitted under section 124 of the Magistrates’ Court Act 1980. It had the merest technical effect and I do not accept or, with respect, understand the reasoning of the magistrates which led to their decision. It was sought only to make clear that it was JD Sports and not Mr Rashid who were the producers of controlled waste. [para 13]
As to the remaining issues raised, Mr Rashid had contended that a prosecution was an abuse of process because Wandsworth had not chosen or considered whether to ‘educate’ rather than prosecute as set out as an option on a first offence in its published waste management policy. The Magistrates had agreed.
However, Pill LJ noted that the example ‘case studies’ of possible responses by the Council in the policy, as relied on by Mr Rashid, were preceded by the statement that
However, the full facts may justify a different approach even in cases that sound similar.
On precedent case law, abuse of process in the Magistrates “should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures.” R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] 1 AC 42.
The pleaded case of R v Mondelly v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin) apparently concerned a prosecution in clear breach of an established and stated policy on trading standards cases, but actually addressed the lawfulness of a caution which would prevent proceedings in a court, rather than the power of a court to terminate as an abuse of process a prosecution. So it was not a precedent for the Magistrates finding of an abuse of process in this case.
Held:
The Magistrates were wrong in taking into account late submissions of mitigating factors in relation to the offence itself.
The Magistrates expressed a test on whether it was reasonable for the Borough to take action wrongly: “a finding that it would have been reasonable for the Borough, in line with the policy, to take another course of action, does not necessarily lead to a conclusion that the course of action they took amounted to an abuse of process.” [para 33].
Thirdly, the Magistrates were wrong on the courses of action the Borough were required to take before bringing a prosecution: “The prosecution were not required to go through each other possible course of action seriatim in order to justify a decision that the course of action they took was a lawful course of action.” [para 34]
Cranston LJ agreed.
Mr Rashid did not attend and was not represented. JD Sports neither supported Mr Rashid nor attended/made submissions.
Matter, after extended discussion, remitted to the Magistrates, but it looks unlikely to be pursued.
I make no further comment, save to observe that for the Mags to a) refuse a small amendment the effect of which, in their own words “would not be germane to the outcome of the case”, and b) find an abuse of process where the Council had simply taken the tougher option available under its own policy, would be a clear example of why so many civil lawyers quail at arguing points of law or indeed a private prosecution tout court in that venue. EPAs – who knows what the hell is going to happen? And with an individual client, on a CFA at that…