R (The Environment Agency) v Dean Andrew Ryder and Andrew Lawrence Green
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Keywords: waste – environmental permit – sentencing – confiscation order
Statute reference: Environmental Protection Act 1990; Environmental Permitting (England and Wales) Regulations 2010
The Facts
Ryder and Green were the owners of a site near Barnsley. They controlled a company, Grantscope Ltd, which was tenant of the site. The company obtained an environmental permit as a registered facility to store and treat waste at the site. The main activity was receiving waste from skips for storage and treatment.
In February 2012 the Environment Agency (EA) issued a notice to the company which required it to take a number of steps on the site. It did not do so. In April 2012 the EA revoked the environmental permit and required the company to return the site to a satisfactory state and to remove all waste by July 2012. It did not do so.
The company went into liquidation in September 2010. Waste activities continued on the site. These included the production of trommel fines from the waste, which were bagged up for sale to the public as topsoil. Ryder and Green accumulated a waste pile of approximately 13,000 tonnes before abandoning it.
In April 2014 Ryder and Green were charged with (1) depositing controlled waste without the benefit of an environmental permit; (2) and (3) operating a regulated facility without the benefit of an environmental permit and (4) breach of an enforcement notice. They were convicted at Barnsley magistrates’ court. They appealed to Sheffield Crown Court. The appeal was allowed on charge 3 on the basis that it had not been proved which particular company was involved. The appeal was dismissed on charges 1 and 2.
The Crown Court found that after the date of the revocation of the environmental permit, Ryder and Green had continued to operate the facility. They operated in their personal capacity as owners of the site as the people who stood most to benefit from clearing the site of waste in a way which would not only cost them significant amounts of money but which would also have made some money for them. In July 2015 the Crown Court made a restraint order against the assets of Ryder and Green and a restriction was entered at the land registry. This extended to Green’s interest in his matrimonial home.
Confiscation proceedings were held in Sheffield Crown Court in December 2017. The prosecution argued that a financial benefit had been obtained by avoiding the cost of removing waste from the site. The court ruled that Ryder and Green had avoided their legal responsibilities to dispose of the waste lawfully and the costs which inevitably would have gone with that. They had derived a benefit.
The cost of removal of the waste was stated to be £276,004. A confiscation order for £138.002 was made against Ryder and for £121,422.72 against Green.
Green was the co-owner of his matrimonial home. In February 2015 he and his wife made a written charge against the property in favour of a third party to secure a loan of £125,000/ This charge was made after the convictions in the magistrates’ court. The charge was not registered at the land registry before the restraint order had been made. The prosecution argued that this was a device to frustrate any confiscation order. The court found that the restraint order took priority over the charge and confirmed the confiscation order.
Ryder and Green were each sentenced to 12 months imprisonment suspended for 18 months and were ordered to carry out 200 hours unpaid work. The Crown Court Recorder commented that their offences were deliberate, flagrant and persistent. The reasons for suspending their prison sentences were the length of the proceedings, their age, and for the sake of their families. Ryder and Green appealed to the Court of Appeal (Criminal Division).
Decision
The appeal on the main issue was dismissed. Ryder and Green had no environmental permit at the relevant times. They had no entitlement to store contaminated waste on the site.
The saving of costs of removal was a pecuniary (financial) advantage. Ryder and Green were sparing themselves the cost of removing the waste from the site.
The restraint order was the subject of a restriction entered on the land registry. This did not make it a registered charge having, for the purposes of confiscation proceedings, priority over a previous unregistered charge. The charge of February 2015 remained valid and would need to be brought into account in valuing the available assets of Green. The critical question was whether or not the charge was genuine. This matter was remitted back to the Crown Court for determination of that issue.
Comment
A spokesperson for the Environment Agency is reported to have made the following comments:
· The confiscation order sent out a clear message to others who flout the law that waste crime does not pay.
· The Agency used not only environmental law to prosecute those who abuse the environment but also used the proceeds of crime legislation to ensure that criminals were deprived of the benefits of their legal activity.
· Waste crime undermined legitimate businesses and could have significant detrimental impacts on communities and on the environment.
· The case demonstrated how seriously the Agency took waste crime and it would continue to take action against those operating outside the law and the regulations.
The Proceeds of Crime Act 2002, Part 2, includes the following:
· A confiscation order is an order of the Crown Court which requires a convicted defendant to pay to the state a specified sum of money by a specified date.
· The Crown Court is obliged to make a confiscation order if requested to do so by the prosecutor following the conviction of the defendant of an offence from which he/she has obtained a benefit.
· The Crown Court establishes the amount of the benefit and the available amount of the defendant’s assets. The confiscation order is made for the lesser of these amounts.
· The defendant’s available amount is normally the market value of his/her assets less the amount of any liabilities secured on those assets. If the court cannot establish the available amount it must make a confiscation order for the amount of the benefit.
· The burden of proof is on the prosecution to establish the amount of the benefit and is on the defendant to establish the available amount.
· Failure to pay the amount of the confiscation order may result in an additional prison sentence.