Frontier spirit

Justine Thornton reviews recent rulings that clarify criminal offences in relation to the transfrontier shipment of waste.

Two recent rulings by the Court of Appeal (Crim Division) on transfrontier shipment of waste have provided important clarification on the criminal offences under the regime in EU Regulation 1013/2006 and the domestic regulations (SI 2007/1711). A third appeal is to be heard on the mental element, if any, required for the commission of the offence of exporting waste to a third country. The three appeals have emerged from two large prosecutions by the Environment Agency in Basildon Crown Court and Kingston Crown Court for illegal shipment of waste.

The KV v R & Others case

KV v R & Others ([2011] EWCA Crim 2342) concerned prosecutions for transporting waste destined for recovery in a foreign country contrary to regulation 23 of the Transfrontier Shipment of Waste Regulations 2007 (S.I. 2007/1711), which criminalise the breach of article 36 of EU Regulation 1013/2006, on shipments of waste. Article 36 prohibits exports of hazardous and other specified waste destined for recovery to non OECD countries. Regulation 23 of the domestic regulations makes it a criminal offence to breach Article 36 of the EU Regulation.

The main issues before the Court of Appeal were the width of the term ‘export’ in Article 36 of the EU Regulation and whether Regulation 23 of the domestic regulations impermissibly creates a broader offence than intended by Article 36 of the EU Regulation.

Meaning of export

The Court of Appeal held that that the prohibition in article 36 contains two simple, but key, concepts. First, the waste must be destined for recovery in the foreign country and secondly, ‘export’ means the action of waste leaving the Community. On the plain language, waste could be destined for recovery in a non-OECD decision country long before it reached the point of leaving the Community. Secondly, the action of waste leaving the community has both a transactional and temporal character. It is a process commencing once the waste is destined for that country at its point of origin, and continuing until the waste reaches its ultimate destination in the foreign country.The Court rejected the defendants’ argument that export has a narrower meaning which at its most extreme is when waste physically exits the EU.

The Court arrived at its view on the basis of the plain meaning of the words in Article 36, without the need to consider the legislative purpose of the EU Regulation. However the Court stated that had it done so, the predominant purpose of protecting the environment which underpins the Regulation would have led to the same conclusion.The defence interpretation of export (actual exit of the waste from the EU at its most extreme) would make enforcement of the Regulation virtually impossible.

The width of Regulation 23

The defence argued that Regulation 23 created a much broader offence than allowed by Art 36 of the EU Regulation on the basis that Regulation 23 makes it an offence to transport waste destined for recovery in an non OECD country and transport is defined very broadly to include the notifier of waste; any transporter; any freight forwarder and ‘any other person involved in the shipment of waste’. The Court of Appeal rejected the ground of appeal. Given the Court had found that the proper interpretation of Article 36 is that the prohibition on shipment encompasses all stages in the export chain from point of origin in the Member State of dispatch onwards and given that Article 50 of the EU regulation requires Member States to impose appropriate penalties for breach, regulation 23 faithfully transposes the UK’s obligations.

Mixtures of waste and the second appeal to the Court of Appeal

In R v I [2011] EWCA Crim 3237 the Court of Appeal held that the question whether waste collected from households was still household waste and therefore prohibited from export to China or whether it had become paper waste (see Annex V Part 3 and List B of part 1 of the EU Regulation) was a question of fact for the jury: “We are confident that a judge will be able to give sufficient directions to a jury to enable them to make a decision as to whether a particular consignment is properly described as household waste and for them to perform their task by applying that test to the facts”.

Strict liability and the third appeal to the Court of Appeal

Argument in the Court in KV v R & Others proceeded on the basis that Regulation 23 is a strict liability offence. In giving judgment the Court of Appeal noted that the point about had not been argued although it noted in passing that the phraseology of Regulation 23 supported that conclusion. Defendants in the Basildon Crown Court who were convicted following a jury trial which took place after the Court of Appeal hearing in KV & R & Others have been given leave to appeal to the Court of Appeal on whether Regulation 23 is a strict liability offence. The third appeal has yet to be listed.

Justine Thornton is a barrister at 39 Essex Street and can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.. She appeared, with David Hart QC, for the lead defendant KV in KV & R [2011] EWCA Crim 2342.