In 1965, Michael “Mick” Jagger of the Rolling Stones sang that he could “get no satisfaction”. Earlier this year, in very different circumstances, his namesake (another Michael Jagger) succeeded in getting satisfaction from the Court of Appeal by having his conviction for illegally depositing waste quashed.
From time to time, the courts have to consider the legal definition of “waste”, normally in the context of prosecutions for the illegal deposit of waste. Where materials are re-used in building operations for ground works and site preparation, the legal position can be complicated.
In 2010, Mr Jagger was involved in a development at a site in Halifax. In order to fill a void created when a floor of a pre-existing building was removed, he took material excavated in the course of a housing development at a different site and deposited it in the void. The Environment Agency prosecuted him for depositing controlled waste without an environmental permit contrary to Section 33(1)(a) of the Environmental Protection Act 1990. In April 2014 a jury at Bradford Crown Court found him guilty of the offence and the judge fined him £1,000. He was also ordered to pay £3,850 prosecution costs and a £15 victim surcharge. He appealed against the conviction to the Court of Appeal, arguing that the judge’s directions to the jury as to the definition of “waste” were defective and paid insufficient regard to the EU Waste Framework Directive and relevant guidance, including guidance from Defra, the Development Industry Code of Practice issued by Contaminated Land: Applications in Real Environments (CL:AIRE) and case law.
Permit
The Environment Agency’s case was that the imported material was waste and that at the time it was deposited in the void there was no environmental permit in force authorising its deposit. Mr Jagger admitted bringing the material onto the site and depositing it in the void, but he denied that it was waste at the time it was deposited there.
The case raised three key issues:
• Was the material controlled “waste” at the time of its deposit?
• Had Mr Jagger acted with due diligence?
• Had Mr Jagger acted in an emergency, in that there was a need to shore up the public street adjacent to the void?
The first issue was the most significant. The Court of Appeal accepted that excavated soil that has to be discarded by its holder is capable of being waste and in any individual case ordinarily will be waste, but it did not feel that the trial judge had given adequate directions to the jury on the question of whether the material deposited still constituted waste at the time of its deposit. Although Mr Jagger’s lawyers had made representations on the relevant factors that needed to be considered in determining whether a material may have ceased to be waste, the Court of Appeal took the view that those representations did not have the same status in the eyes of the jury as the directions of a judge. The trial judge had understandably wanted to keep the case simple for the jury, but in doing so had oversimplified his directions to the detriment of Mr Jagger’s case, thereby depriving Mr Jagger of fair consideration by the jury of a significant issue. On that basis, the Court of Appeal found Mr Jagger’s conviction to be unsafe and quashed it.
The Court of Appeal’s decision was undoubtedly a lucky escape for Mr Jagger. Had the trial judge given the jury proper directions on the question of whether the deposited material had ceased to be waste, the jury may well have still reached the same conclusion and found him guilty. The case is another reminder of the difficulties faced by judges and magistrates with no prior experience of waste management law in dealing with waste cases.
R v Michael Edward Jagger [2015] EWCA Crim 348
Angus Evers is a Partner in King & Wood Mallesons’ Planning & Environment Group and is one of the Co-Convenors of the UK Environmental Law Association’s Waste Working Party
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