Environmental Protection Agency v Swalcliffe Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kearns |
| Judgment Date | 21 May 2004 |
| Neutral Citation | 2004 WJSC-HC 3944 |
| Court | High Court |
| Docket Number | [2003 No. 739SS] |
| Date | 21 May 2004 |
2004 WJSC-HC 3944
THE HIGH COURT
BETWEEN
AND
Synopsis:
- [2004] 2 IR 549 - [2005] 1 ILRM 120
Facts: The EPA brought prosecutions against three accused. The accused contended that a waste licence audit report was not admissible on the basis that the records maintained by the accused were not maintained voluntarily but pursuant to the Waste Management Act 1996 and if they were admitted it would constitute the admission of involuntary confessions against an accused person in a criminal trial. The District judge stated a case for the High Court on whether the reports were admissible.
Held by Kearns J. in answering the question in the affirmative that the waste licence audit report and records could not properly be characterised as "confessions" for the purposes of the confessions rule.
Reporter: R.W.
Mr. Justice Kearns delivered the 21st day of May, 2004.
This matter comes before the court by way of case stated by Judge Michael Connellan sitting at District Court No. 20, Dolphin House in the City of Dublin, pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961.
At a sitting of the District Court on 16th September 2002, prosecutions were brought on foot of three summonses brought by the Environmental Protection Agency ( EPA) against the three above named accused. The first summons sets out 14 counts of alleged breaches of a waste licence against the first named accused, contrary to ss. 39(1) and (9) of the Waste Management Act, 1996. The second and third summonses allege five counts against the second and third named accused respectively, that each being a director of the first named accused, did consent to or connive in or permit by their neglect the commission of certain offences by the first named accused.
The matter came on for hearing in the District Court on 7th February 2003. On that date, evidence was taken under oath from a single witness for the prosecution, Dr. Kevin McDonnell, in relation to the substance of the complaints against the three accused. Dr. McDonnell referred the court to the waste licence held by the first named accused, and to site inspections which had been undertaken by officials of the prosecutor in order to ascertain whether the first named accused was complying with the conditions of the said waste licence. He also gave evidence that on inspection of the first named accused's facility at 116, Upper Sherrif Street in the City of Dublin by officials of the prosecutor on 22nd and 29th January, 2002, breaches of certain conditions of the waste licence held by the first named accused were observed. Dr. McDonnell also stated that subsequent to the dates of those inspections, a notice of non-compliance dated 27th February 2002 was issued to the first named accused. Dr. McDonnell further gave evidence of alleged breaches by the first named accused in relation to the maintenance of records in respect of waste arriving at and departing from the said facility of the first named accused. In particular, Dr. McDonnell referred to a Waste Licence Audit Report dated 15th January 2002, a copy of which was handed into court. At this juncture, and before the judge read the report and before evidence was tendered by Dr. McDonnell in relation to the contents thereof, an objection was made by counsel for the three accused as to the admissibility of the said Waste Licence Audit Report on evidence adduced in relation thereto. Counsel contended on behalf of the three accused that the said Waste Licence Audit Report and the oral evidence to be adduced thereon were inadmissible on the basis that the statements or details contained in the records upon which the material part of the audit was based were not maintained voluntarily by the accused but were maintained pursuant to statute, namely the Waste Management Act, 1996.
In particular, it was submitted on behalf of the accused that:-
(a) insofar as keeping records was concerned, the said audit report was based on a review by the officials of the prosecutor of the waste records kept by the first named accused;
(b) the keeping of such records was compulsorily required by statute, namely the Waste Management Act, 1996;
(c) to the extent that any of the said records contained details or statements which suggested that a breach of conditions contained in the waste licence had taken place (which suggested that the accused had committed a criminal offence under the Waste Management Act, 1996), they constituted in law an involuntary confession by the accused so that the same were not admissible in evidence against the accused in the absence of statutory authority to the contrary;
(d) the provisions of the Waste Management Act, 1996do not authorise the admission of involuntary confessions against an accused person in a criminal trial;
(e) further, there was no difference (for the purposes of the rule that a confession was not admissible unless it was voluntarily made) between a full confession and an admission falling short of a full confession; and
(f) accordingly, the said Waste Licence Audit Report and oral evidence adduced in reliance thereon were inadmissible insofar as the same relied upon the records maintained by the first named accused pursuant to the requirements of statute.
It was contended on behalf of the prosecutor in reply that the said Waste Licence Audit Report and oral evidence in relation thereto were admissible. In particular, the following submissions were made:-
(a) the requirement to keep records was an essential part of the waste licensing process and was expressly provided for by statue and by the terms of the waste licence;
(b) the first named accused had furnished records on request to the officials of the prosecutor without demur;
(c) it was a condition of the said waste licence that records be kept;
(d) the first named accused had applied to the prosecutor for a waste licence and this had been granted subject to the conditions therein contained. The first named accused accepted the waste licence on those conditions and did not challenge any of the conditions, nor did it seek a review of the waste licence in that regard and did furnish reports as requested.
(e) If the records, and statements and details contained therein, are inadmissible, the only alternative would be to have an inspector on behalf of the prosecutor on site at every waste management facility and the entire waste licensing scheme would be unworkable
(f) The records, and the statements and details contained therein, are not "confessions" in a legal sense, as they did not arise as a result of questions asked or as a result of an inquiry.
Having heard the submissions from both sides, Judge Connellan ruled that the material parts of the waste licence audit report, and oral evidence to be adduced in relation thereto, were admissible, whereupon an application was then made by counsel for the accused that he state a case for the opinion of the High Court. Judge Connellan acceded to this request and adjourned the hearing of the summonses pending the determination of this case stated.
In the premises, the opinion of the High Court is sought in the following questions:-
1. Was the District Judge correct in rejecting the submission that the statements and details contained in the said records could never be regarded as voluntary statements in circumstances where the said records are compulsorily required to be maintained by statue, namely the Waste Management Act, 1996, and in accordance with the conditions of waste licence register no. 97-1; and
2. Was the District Judge correct in determining that the said Waste Licence Audit Report, and oral evidence in respect thereof, was admissible in the proceedings before him, given the fact that all parties accepted that the records were maintained pursuant to the provisions of the Waste Management Act, 1996, and pursuant to the conditions contained in the waste licence register no. 97-1.
The Waste Management Act, 1996was enacted on 20th May 1996. The long title to the Act provides as follows:-
"An Act to make provision in relation to the prevention, management and control of waste, to give effect to provisions of certain acts adopted by institutions of the European Communities in respect of those matters, to amend the Environmental Agency Act 1992and to repeal certain enactments and to provide for related matters."
The whole purpose and intent of the Act of 1996 was to prevent, manage and control waste. Accordingly, under the Act there is a requirement that a person shall not dispose of or undertake the recovery of waste at a facility save in accordance with a licence under the Act. This is provided for at s. 39 of the Act which provides as follows:-
"(1) subject to ss. (4) and (7) a person shall not dispose of or undertake the recovery of waste at a facility, on or after such date as may be prescribed, save under and in accordance with a licence under this part (in this Act referred to as a "waste licence") that is in force in relation to the carrying on of the activity concerned at that facility
(9) a person who contravenes ss. (1) or a provision of regulations under ss. ( 4) or (6) shall be guilty of an offence".
The offences with which the accused have been charged are all offences pursuant to s. 39(1) and 39(9) of the Act of 1996.
The EPA is the licensing authority under the Act of 1996. Section 40(1) of the Act provides as follows:-
"(a) on application being made in that behalf to...
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