Court of Appeal decision in Biffa waste export case

On July 3, 2020, the Court of Appeal gave judgment in the case of Biffa Waste Services Ltd v The Queen. Biffa had appealed against its conviction in the Crown Court for exporting illegal waste.

The Facts

In May 2015, Biffa Waste Services Ltd (Biffa) sent a consignment of 175 tonnes of paper waste from its recycling facility in North London. The material was to be sent to processing plants in China. The company had a contract with a Chinese customer for the delivery of mixed waste paper for recycling. The contract specified 98.5% purity as an accepted level for mixed paper waste. Inspection of the consignment in Felixstowe by Environment Agency officers discovered a number of contaminants. These included soiled nappies, sanitary towels and sealed bags of excrement.

Biffa was charged with two offences under regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 (the 2007 Regulations). In outline, the prosecution case was that the consignment was not mixed waste paper, which could be legally exported, but was household waste which could not be legally exported.

The company’s defence was that the waste in question had been subjected to rigorous mechanical and manual sorting processes which had achieved a high degree of separation of the relevant elements and that any remaining degree of contamination was minimal and residual.

In June 19, it was convicted of both offences by a judge and jury at Wood Green Crown Court. It was sentenced to fines totalling £350,000, a confiscation order of £9900 and was ordered to pay £240,000 prosecution costs. It appealed to the Court of Appeal Criminal Division.

On appeal, the court outlined the relevant legal framework. The UK is a party to the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal 1989. That Convention, in summary, declared that states should take the necessary measures to ensure that the management of wastes is consistent with human health and the environment. Further, the transboundary movement of wastes should be permitted only when the transport and ultimate disposal of such wastes is environmentally sound.

In 2001, the Organisation for Economic Cooperation and Development (OECD) adopted a decision which developed the Basel Convention framework. That decision does not apply to China.

EU Regulation 1013/2006, which is directly applicable to the UK, gave effect to the Basel Convention. Article 2 of the EU Regulation defines environmentally sound management of waste as taking all practicable steps to ensure that waste is managed in a manner that will protect human health and the environment against adverse effects which may result from such waste. The EU Regulation was given domestic effect in the UK by the 2007 Regulations.

Regulation 23 of the 2007 Regulations states, in summary, that a person commits an offence if, in breach of Article 36 of the EU regulation, he transports waste specified in that Article that is destined for recovery in a country to which the OECD Decision does not apply. Waste collected from households is categorised as Y46 household waste and its export is prohibited. Paper, paperboard and paper product wastes are categorised as B3020. The export prohibition does not apply to B3020 paper.

The offence under regulation 23 of the 2007 Regulations is a struct liability offence. There is no defence of reasonable practicability or taking all reasonable precautions. On conviction on indictment, the maximum sentence is two years imprisonment or a fine.

Decision

The appeal was dismissed. The Court of Appeal ruled that the conviction was safe and made the following points.

  • The correct categorisation of waste must be determined at the point where its export begins. In this case it was when the containers left Biffa’s facility. If at that stage it was categorised as Y46 household waste, then its export to a non-OECD Decision country was unlawful.

  • The issue at trial was whether the jury were sure that, by the time the containers left Biffa’s facility, the bales of waste still comprised Y46 household waste and could not lawfully be exported. The prosecution’s case was that the contaminants were in excess of a permissible level. The waste had either not been sorted at all or had been sorted so ineffectually that it remained in the Y46 category.

  • Where waste has been collected as mixed recyclable household waste it can only become paper by being properly sorted. “Properly sorted” means the removal of contaminants to the point where the contamination is so small as to be minimal and not preventing the waste from becoming waste paper under B3020.

  • Neither the destination of the waste nor the standard applied by the recipient of the waste is relevant. Evidence as to compliance with Chinese standards or the ability of the Chinese purchasers to recycle the waste was inadmissible.

Comment

The Head of Waste at the Environment Agency is reported to have commented that the Agency was pleased with the court’s decision. The Agency wanted all producers and exporters of waste to be responsible and to make sure that they only export material which can be legally and safely exported for recycling overseas.

Illegal waste export blights the lives and environment of those overseas. The Agency continued to treat illegal waste exports as a priority and would not hesitate to take appropriate enforcement action against those found to have broken the rules.

Between 2018 and 2019 the Agency prevented the illegal export of 12,690 tonnes of unsuitable waste. It was working with the Government on a number of measures to tighten controls including increasing monitoring of international waste shipments and charging higher fees to improve compliance.

Cases on the classification of waste tend to involve questions of fact. These questions, if the case is heard in the Crown Court, depend upon the decision of the jury, having been given guidance by the judge. The law on the classification of waste is relatively clear, but its application to specific facts may cause significant problems for the waste industry.

Geopolitical factors may also be significant in relation to the enforcement of waste legislation by the Environment Agency, for example in deciding whether prosecutions are in the public interest.