Environment
EC law - fuel - recycling - waste converted into fuel for combustion - point at which fuel ceased to be waste
OSS Group Ltd (appellant) v Environment Agency & ors (respondents) & Defra (intervenor): CA (Civ Div) (Master of the Rolls Sir Anthony Clarke, Lords Justice Carnwath, Maurice Kay): 28 June 2007
The appellant company (O) appealed against a decision ([2006] EWHC 3023 (Admin)) that waste material prepared for use as a fuel only ceased to be 'waste' for the purposes of Directive 2006/12 when it was actually burnt.
O sold products that were derived from waste. They marketed their products on the basis that they had ceased to be waste as a result of a particular recovery process. O's product was 'clean fuel oil', which it sold competitively to customers on the basis that it was not waste and that therefore customers would not have to be subject to the waste regime. That regime had significant cost implications.
The court below agreed with the respondent Environment Agency that O was subject to the waste regime contained in Directive 2006/12, Directive 2000/76 and Directive 75/439. Permission to appeal was granted on the limited issue of whether a lubricating oil, not originally used as fuel, that became waste could thereafter be burnt as anything other than waste. The agency submitted that if the intended end use was combustion, the materials remained waste until that was completed, regardless of any prior treatment.
Held, the agency's view was too narrow and O's products could be burnt otherwise than as waste. A review of European case law did not demonstrate a logical coherence. A fundamental problem was the European Court of Justice's (ECJ) professed adherence to the definition in article 1(a) of Directive 2006/12, even where it could be of no practical relevance. The subjective 'intention to discard' might be a useful guide to the status of material in the hands of the original producer, but it was hard to apply to the status of material in the hands of someone who bought it for recycling or reprocessing, or put it to some other valuable use. In no ordinary sense was such a person discarding or getting rid of the material. His intention was precisely the opposite.
The ECJ had understandably held that a material did not cease to be waste merely because it had passed into the possession of someone who intended to put it to a new use. That should not be because it still met the article 1(a) definition in their hands but rather because, in accordance with the aims of the Directive, material that was originally waste needed to continue to be treated as such until acceptable recovery or disposal had been achieved. Lip-service had been paid by the court to the discarding test, but case law revealed a series of objective indicators derived from the policy of the Directive. The national court was required to make a value judgment on the facts of the particular case in light of those indicators, ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (C418/97) [2002] QB 646 and Mayer Parry Recycling Ltd v Environment Agency [1999] 1 CMLR 963, Castle Cement v Environment Agency [2001] EWHC Admin 224, [2001] 2 CMLR 19 considered and Palin Granit Oy v Lounais-Suomen Ymparistokeskus (C9/00) [2002] 1 WLR 2644 applied.
A practical common sense approach was required which was consistent with the letter and spirit of the Directive. It should be enough that the holder had converted the waste material into a distinct, marketable product that could be used in exactly the same way as an ordinary fuel, and with no worse environmental effects, Scottish Power Generation Ltd v Scottish Environment Protection Agency (No1) [2005] SLT 98 and Icopower BV v Secretary of State (unreported 14 May, 2003) applied.
Appeal allowed.
Robert McCracken QC, Stephen Tromans (instructed by Sharpe Pritchard and Semple Fraser) for the appellant; John Howell QC, Dinah Rose QC (instructed by the in-house solicitor) for the respondents; Derrick Wyatt QC, Kassie Smith (instructed by the in-house solicitor) for the intervener.
Coroners
Firearms - inquests - police officers - reasonable force - right to life - self-defence - unlawful killing - verdicts
R (on the application of Ernest Bennett) (appellant) v HM Coroner for Inner South London (respondent) & (1) Officers A & B (2) Commissioner of Police of the Metropolis (interested parties): CA (Civ Div) (Lords Justice Waller, Keene, Dyson):
26 June 2007
The appellant (B) appealed against a decision ([2006] EWHC 196 (Admin), (2006) 170 JP 109) refusing judicial review of a coroner's decision not to leave unlawful killing as a possible verdict for the jury.
B's son (S) had died as a result of being shot by a police officer. A witness had told the police that S was carrying a gun and two officers, trained in the use of firearms, had been sent to deal with the situation. During the incident that ensued, which lasted some 30 seconds, six shots were fired by one officer, four of which struck S in the back and side, and one of which was fatal. It was not possible to say in which order the shots had been fired.
At the inquest, the coroner decided not to leave a verdict of unlawful killing to the jury, but to leave lawful killing or an open verdict. The jury returned a verdict of lawful killing.
B applied unsuccessfully for judicial review on the grounds that the coroner's direction on self-defence was not accurate, having regard to the requirement of article 2 of the European Convention on Human Rights not to use more force than was absolutely necessary, and that the coroner had not applied the correct test in refusing to leave unlawful killing as a possible verdict for the jury.
The judge went on to hold that the jury would not have returned a verdict of unlawful killing even if it had been left to them, since their verdict indicated that they had been persuaded in relation to each shot that the officer had acted lawfully.
B submitted that it had been a misdirection not to direct the jury to consider whether the officer's claim to have acted in self-defence was reasonable in light of the requirement in the relevant Association of Chief Police Officers manual continually to reassess whether it was 'absolutely necessary' to fire; the jury could logically have reached a verdict of unlawful killing.
Held, many days had been spent on the evidence as to the training the police officers had had, and the training and the Association of Chief Police Officers manual had been referred to at length in the coroner's summing up. The jury could not have been under any illusion as to the context in which they were considering the questions put to them. No point had been taken at the inquest that some further direction should have been given by reference to the manual or the training given.
The authorities recognised that there was some, if small, distinction between the position of a coroner deciding what verdict to leave to a jury after hearing all the evidence and that of a judge considering whether to stop a case after the conclusion of the prosecution case, R v Galbraith (George Charles) [1981] 1 WLR 1039 distinguished, R v Coroner for Exeter and East Devon ex parte Palmer and R (on the application of Sharman) v HM Coroner for Inner North London [2005] EWHC 857 (Admin), [2005] ACD 96 applied.
Coroners should approach their decision as to what verdicts to leave on the basis that facts were for the jury, but were entitled to consider the question of whether a verdict, if reached, would be perverse or unsafe and to refuse to leave such a verdict to the jury.
The coroner was right to take the view that a verdict of unlawful killing could not safely have been left to the jury in the present case. The incident took place in a matter of moments. There were explanations from the experts as to how the bullet wounds could be in the back or side even if S had been facing the officer when he decided to fire. All the shots were fired while S had what the officer honestly thought was a gun. If a verdict of unlawful killing was to be brought in, the jury would have to be satisfied beyond reasonable doubt in relation to each shot that the officer did not honestly believe that he was under threat, or reacted unreasonably to that honestly-held view. To bring in a verdict of unlawful killing would have been perverse, and the jury's actual verdict confirmed that view.
Appeal dismissed.
Michael Mansfield QC, Richard Harvey (instructed by Imran Khan & Partners) for the appellant; Jonathan Hough (instructed by Southward Legal Services) for the respondent; Edmund Lawson QC (instructed by Russell Jones & Walker) for the first interested party; Michael Beloff QC, John Beggs (instructed by the Force solicitor) for the second interested party.
Legal Profession
Dishonesty - Law Society - solicitors - false representations
Gregory v Law Society: DC (Lord Justice Hughes, Mr Justice Treacy): 28 June 2007
The appellant (G) appealed against a decision of the Solicitors Disciplinary Tribunal to grant the respondent Law Society its application under section 43 of the Solicitors Act 1974 to the effect that no solicitor should employ or remunerate G in connection with his practice as a solicitor.
The Law Society had brought proceedings against G on the basis of two allegations. It alleged that G, during the course of his employment as a practice manager of a law firm, had made false representations to the effect that he was an acting solicitor, a trainee solicitor and a solicitor.
It also alleged that he had attempted to claim costs for legal advice at a level he knew, or ought to have known, was incapable of being justified.
The tribunal held that although both allegations had been made out, G had not been dishonest. However, it found G to have been reckless and concluded that the cumulative effect of the behaviour that G had exhibited in each of the alleged incidents justified the making of the order sought by the Law Society under section 43.
G submitted that his conduct was not of a nature justifying an order under section 43, particularly in the absence of a finding of dishonesty, and he argued that the reference to 'dishonesty' in section 43(1)(a) should inform the construction
of section 43(1)(b) as to the level of conduct required. G further submitted that the reference to 'connivance' in section 43(1)(b) also assisted in assessing the level of conduct that would justify making an order.
Held, the tribunal was entitled to come to the conclusion that it did and G's conduct was capable of falling within section 43. It was true that G had not been dishonest, but there was no requirement of dishonesty in section 43(1)(b). Conduct that made it undesirable that G be employed or remunerated by a solicitor in connection with his practice was sufficient for the purposes of the provision. Section 43(1)(a) neither governed section 43(1)(b) nor assisted in its construction, but enabled a tribunal to say that a criminal offence of dishonesty might justify an order preventing an individual from being employed, even if the offence had no connection with his legal practice.
It did not follow that section 43(1)(b), which dealt with allegations arising only from legal practice, required the same level of misconduct. Nor did the reference to the word 'connivance' assist in the present matter as that word did not refer to the conduct of a respondent but to the state of mind of the principal solicitor.
Appeal dismissed.
Gregory Treverton-Jones QC (instructed by Jack Friend & Co) for the appellant; G Williams QC (instructed by in-house solicitor) for the respondent.
Housing
Administrative decision-making - priority needs - reviews - vulnerability - proper approach to medical evidence
Shala & Anor v Birmingham City Council: CA (Civ Div) (Lords Justice Mummery, Sedley, Mr Justice Lightman): 27 June 2007
The appellant (S) appealed against a decision of the respondent local authority that she was not in priority need of housing.
S had been granted indefinite leave to remain in the UK following her claim for asylum. While an asylum seeker, she had been provided with housing and support by the National Asylum Support Service, but once her claim for asylum had been accepted, she had to apply to the local authority for housing.
In support of her application, S had provided a number of medical reports indicating that she was vulnerable by reason of the fact that she was suffering from depression. Having obtained advice from another medical practitioner (K) to the effect that there was nothing to suggest that S's depression was of particular severity, the local authority had refused the application.
Before the review decision, S had produced further reports from two doctors that indicated that she had post-traumatic stress disorder and would be more vulnerable in a homeless state than would an ordinary homeless person, so that injury or detriment might result. The reviewing officer had, however, dismissed those reports on the ground that they raised no new information. The issue was whether the review decision was flawed.
Held, the review decision was flawed in that it excluded from consideration the further medical reports produced by S, which were of real and possibly decisive relevance. It was wrong to say that the reports contained no new information when both doctors had described S's condition in terms different from, and arguably graver than, those used by K.
Moreover, as well as containing a patent error in the appreciation of the medical evidence, the tone and reasoning of the decision letter displayed a want of fair-mindedness. The local authority had treated K's opinion as dependable when he had neither examined S nor discussed her case with a doctor who had, and the reviewing officer's pointed reference to K's view being impartial, which suggested that the views of S's doctors were not, was unfortunate.
K was a registered medical practitioner who offered, through a business, medical advice to housing authorities and social providers. Without casting any adverse imputation on K, it was important to state that care had to be taken by local authorities not to appear to be using professional medical advisers simply to provide or to shore up reasons for a refusal of priority need housing. While it was right that a local authority should have access to specialist advice about medical evidence produced by applicants, it would not be acceptable for it to seek out advisers to support a refusal.
While it was the duty of the local authority to decide whether the statutory tests of priority were met, there was no harm, and some good, in medical advisers addressing those matters within their professional competence which the local authority had to make a decision about, so long as both they and the local authority recognised that it was for the latter to make its own appraisal of every opinion in the light of the available diagnostic and evidential material.
K was not a psychiatrist and the limited extent of his expertise had to be borne in mind by those using his services. Moreover, he had not examined S and account had to be taken of the absence of any examination. In such circumstances, the local authority could consider asking the applicant to be examined, or could ask that its medical adviser speak to the applicant's doctor about matters that needed discussion.
Appeal allowed.
E Fitzpatrick (instructed by Community Law Partnership) for the appellant; C Rowlands (instructed by the local authority solicitor) for the respondent.
Criminal Procedure
Bad character - credibility - jury directions - previous convictions - propensity - relevance - use of Judicial Studies Board specimen directions
R v Kenneth George Campbell: CA (Crim Div) (Lord Chief Justice Lord Phillips, Mr Justice Henriques, Mr Justice Teare): 26 June 2007
The appellant (C) appealed against his convictions for false imprisonment and assault occasioning actual bodily harm.
The Crown's case was that C, who had had a sexual relationship with the victim (V), had shut V in her bedroom in a flat; that he had threatened and frightened her; that on one occasion, when she had attempted to escape, he had dragged her back upstairs by her hair; and that when V had escaped, he had banged her head against a wall and had tried to strangle her.
The Crown obtained permission under section 101(1)(d) of the Criminal Justice Act 2003 to adduce evidence of two of C's previous convictions for violence, on the ground that the evidence showed a propensity to commit acts of violence towards women. The trial judge directed the jury that the previous convictions could be taken into account in determining whether C had a propensity to be violent towards women and in deciding whether C had been truthful when giving evidence.
C submitted that, in directing the jury as to the relevance of evidence of bad character, the judge should have had regard only to the gateway under section 101 through which the evidence was introduced, or any other gateway through which the evidence could have been introduced. C submitted that since his previous convictions had been admitted under section 101(1)(d), the important matter in issue being whether he had propensity to commit offences of the kind with which he had been charged, the judge should not have directed the jury that the previous convictions might have relevance to his credibility.
Held, where evidence of bad character was introduced, the jury should be given assistance as to its relevance that was tailored to the facts of the individual case. Once the evidence had been admitted through a gateway under section 101, it was open to the jury to attach significance to it in any respect in which it was relevant. It would be unsatisfactory to direct the jury only to have regard to it for a particular purpose and to disregard its relevance in other respects, R v Highton (Edward Paul) [2005] EWCA Crim 1985, [2005] 1 WLR 3472 applied. In considering the inference to be drawn from bad character, it was usually unrealistic to draw a distinction between propensity to offend and credibility. If the jury learnt that a defendant had shown a propensity to commit criminal acts, it may conclude that it was more likely that he was guilty and that he was less likely to be telling the truth.
The question as to whether a defendant had a propensity for being untruthful would not normally be capable of being described as an important matter in issue unless telling lies was an element of the offence in question. Even then, the propensity to tell lies was only likely to be significant if the lying was in the context of committing criminal offences. In the rare case where propensity to be untruthful was an important issue, the direction should always explain the relevance of the evidence with reference to the particular facts that made the matter important. Propensity for untruthfulness would not, of itself, go very far to establishing the committal of criminal offences.
It was undesirable for the Judicial Studies Board specimen directions in relation to bad character to direct the judge to identify the gateway or gateways through which bad character had been admitted by reference to the wording of the Act. If the jury was told in simple language and with reference, where appropriate, to the particular facts of the case, why bad character evidence might be relevant, that would necessarily encompass the gateway by which the evidence was admitted. Where evidence of a criminal or blameworthy act on the part of the defendant was adduced and the evidence had no bearing on the defendant's propensity to commit the offence, that should be made plain to the jury.
In the present case, the trial judge had given the Judicial Studies Board's specimen directions without relating them to the facts of the case, which could not have assisted the jury. It was also unhelpful to include a part of a specimen direction that referred to a person with bad character being less likely to tell the truth. However, the terms of the summing-up had no impact on the safety of the verdict reached by the jury.
Appeal dismissed.
R Fortson for the appellant; R Bendall for the respondent.
Employment
Agency workers - fixed-term contract for less than three months - entitlement to statutory sick pay
Revenue & Customs Commissioners v Thorn Baker Ltd & ors: CA (Civ Div) (Lords Justice Auld, Moses, Lady Justice Hallett): 27 June 2007
The appellant commissioners appealed against a decision ([2006] EWHC 2190 (Ch)) that an agency worker, supplied to do work in a factory, was not entitled to statutory sick pay.
The respondent (T) was an employment business providing workers to others. A worker (P) engaged by T under an 'agency workers' agreement', who had been working as a factory operative for one of T's clients, had been advised by his doctor to refrain from work for just under one month due to abdominal strain.
P was deemed to be an employee for the purposes of section 151(1) of the Social Security Contributions and Benefits Act 1992, and his earnings were subject to deduction of Class 1 National Insurance contributions. P asserted that T was liable to pay him statutory sick pay. T refused on the grounds that P was excluded from statutory entitlement to such payments under paragraph 2(b) of schedule 11 to the 1992 Act because he had entered into a contract of service for a period not exceeding three months.
The commissioners took the view that the exclusion from entitlement to statutory sick pay under paragraph 2(b) had been repealed by regulation 11 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The judge held that the effect of regulation 19 was to exclude agency workers from the scope of the repeal.
The appellant commissioners submitted that the exclusion from the scope of the 2002 regulations contained in regulation 19 was limited by the words 'in relation to employment under a fixed-term contract' and that regulation 11 did not have effect in relation to employment under a fixed-term contract at all, but repealed part of the 1992 Act, and thus conferred an entitlement to statutory sick pay on those who were hitherto excluded from entitlement by virtue of their short-term contracts of service; and that even if regulation 11 fell within the scope of regulation 19, it only did so in cases where an agency worker was in employment under a fixed-term contract which was a contract of employment, and that P's contract was a contract for services and not a contract of service.
Held, agency workers were only entitled to statutory sick pay pursuant to section 151(1) of the 1992 Act because they were deemed to be employees and because they had suffered days of incapacity in relation to deemed contracts of service with an employer. If agency workers had not been brought within a category of earners deemed to be employees under contracts of service, no entitlement to sick pay would have arisen at all. The repeal of paragraph 2(b) of schedule 11 conferred an entitlement to statutory sick pay but did not alter or in any way encroach upon the statutory category that deemed an agency worker to be an employee under a contract of service. Given that entitlement to statutory sick pay depended upon a statutory assumption that an agency worker was an employee under a contract of service, it was plain that regulation 11 was within the scope of regulation 19, notwithstanding the words 'in relation to employment under a fixed-term contract'.
Contrary to the commissioners' submission, regulation 19 did not have the effect that, in the case of those with contracts of less than three months, entitlement to sick pay depended upon whether they entered into contracts of service or contracts for services.
For the purposes of entitlement to statutory sick pay, all agency workers were assumed to be employees serving under contracts of employment. In so far as the 2002 regulations modified the conditions for entitlement by repeal, they did not affect the statutory assumption contained within the 1992 Act. It was not necessary to examine the precise relationship between the agency workers and T, or those to whom they were supplied. Regulation 11 fell within the scope of regulation 19.
Appeal dismissed.
Ingrid Simler QC (instructed by the Revenue & Customs Solicitor) for the appellant; Gerard Clarke (instructed by Sharpe Pritchard) for the respondent.
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