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On an allegation of an offence contrary to s.33(1)(a) Environmental Protection Act 1990, the burden lay on the prosecution to prove not only that controlled waste of any type had been transported but also that the controlled waste was of a specific type, such as waste contaminated with more than 10 per cent calcium hydroxide.
HELD: (1) The question in respect of site one was whether it was for the prosecution to prove that F had delivered contaminated soil without prior written permission, or whether it was for F to prove that the soil was not contaminated or that it had prior written permission. The question for decision in respect of site two was whether it was for the prosecution to prove that F had delivered and N had accepted contaminated soil, thus taking it outside the exemption, or whether it was for F and N to prove that it was not contaminated soil, thus preserving the exemption. (2) In the case of site one, it was for the prosecution to prove that F had delivered contaminated soil without prior written approval. In the case of site two, it was for the prosecution to prove that the waste contained contaminated soil, thus taking it outside the exemption. (3) Before resorting to s.101 Magistrates' Court Act 1980 a court should consider the particular exemption in play, the way in which it would apply and the issues of fact to be determined. Thus, there should be a case-specific approach rather than a blanket s.101 approach to complex statutory provisions involving exceptions and, as in this case, exceptions to exceptions. (4) The Department of the Environment Circular 6/96 was concerned with waste producers. Section 33 of the 1990 Act was concerned with more than producers and included those who delivered, managed and received waste. (5) Audit trails available to defendants that might assist their cases evidentially should also be available to the prosecution. The absence of such documents, culpable or otherwise, was not a basis for finding a defendant guilty under s.33 of the 1990 Act. (6) A pointer against the policy argument was that s.33(7) of the 1990 Act provided a defence to those charged with a s.33(1)(a) offence. Parliament was unlikely to have imposed a burden of proof on defendants at the same time as providing a defence on the issue of whether they had deposited controlled waste of a type and in circumstances that were prohibited otherwise than in accordance with a licence or exemption.
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