Biffa loses export appeal: judges say destination contamination standards are irrelevant

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Biffa truck in London
Biffa truck

Waste management company Biffa has lost its appeal over a conviction that it illegally exported household waste to China in May and June 2015.

Judges at the Court of Appeal in London found that the convictions given out as a result were safe and the appeal therefore failed and was dismissed.

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Biffa had been charged with two offences. These were that between 13 and 15 May 2015, it had transported waste specified in Article 36(1)(b) of the European Waste Shipments Regulation 1013/2006, namely waste collected from households, that was destined for recovery in China, which is a country where OECD rules do not apply. The second count was for a similar offence that was alleged to have been committed between 17 May and 5 June 2015.

The dispute was over whether the material constituted Y46 household waste, or B3020 waste paper under the Basel Convention.

On 20 June 2019, after a trial in the Crown Court of Wood Green, Biffa Waste Services was convicted of both offences on the basis it had exported Y46 household waste. It was subsequently sentenced to fines and costs of more than £600,000.

Biffa’s lawyers argued in the subsequent appeal that it was not given the opportunity to provide evidence that the material in the containers was accepted by both the Chinese purchasers and Chinese authorities as paper waste, especially as it had been subject to frequent inspections.

They also argued that evidence about the bad character of Biffa as a company offered by the respondent to correct a positive impression given by Biffa witnesses should not have been permitted in the original trial.

At the time, China allowed up to 1.5% contamination limits, and Biffa’s lawyers said the judge in the initial case should have allowed evidence to show that the paper was recoverable in China under this standard. They also argued that evidence was not permitted that the material could be recovered in an environmentally sound manner in China.

But the appeal judges rejected this submission when dismissing the appeal.

In their judgment, the Court clarified that sorting material at the destination if it is a non-OECD country is not permitted if it does not meet a “minimal” level of contamination prior to shipping. Instead, the material must meet the Basel Convention standards prior to being loaded on a container for export, and must have this “minimal” level of contamination at this point, whether the export destination has its own minimum standards or not.

This means that effectively, the minimum contamination standards applied by non-OECD countries do not apply under UK law, and therefore the “minimal” level of contamination as set out in the Basel Convention must be seen as the UK export standard.

The judgment said: “Where, as in this case, waste has been collected as mixed recyclable household waste, it (or some of it) can only become paper by being properly sorted. In this context ‘properly sorted’ means that the sorting is sufficient to remove contaminants to the point where any contamination which remains is ‘so small as to be minimal and not preventing waste from becoming waste paper under B3020’…

“…If that minimal level of contamination has not been achieved by the time the export to a non-OECD Decision country begins, the material remains Y46 household waste: the prohibition therefore applies, even if further sorting or processing in the country of destination would remove all but a minimal level of contaminants.

“Neither the destination of the waste, nor any standard applied by the recipient of the waste or by the country to which it is exported, is relevant to the jury’s task.

“The Basel Convention and the 2006 Regulation impose a standard for determining whether waste is B3020 paper waste which applies regardless of the destination of a particular consignment of waste. The opinion of mill owners, or foreign legislatures or environmental agencies, as to how to determine what constitutes paper waste are irrelevant to the application of that standard.”

There was also clarification by the three judges on this case that it would be up to the defendant to show evidence that “the bales of paper waste produced by its sorting process could without further sorting be recycled in an environmentally-sound manner”. But again, the judges emphasised that evidence on how the material would be processed at a particular destination is inadmissible and that the jury in any case has to “determine the correct categorisation of the waste when its journey begins and regardless of precisely where it is going”.

The judges also clarified that any tests (such as by inspection agencies) conducted prior or after the material leaves the UK and carried out by the purchasers or by the regulatory authorities in a particular destination, can not be used as admissible evidence in this type of case as it would apply to the standards of the importing country and not the correct categorisation of the waste when it is exported.

Unless Biffa decides to appeal to the Supreme Court and it finds differently, or Parliament legislates on this issue, the judges’ clarification on this matter should now be considered law.

On the character of Biffa, the judges found that the original trial judge, HH Judge Auerbach, acted correctly.

The trial was conducted in the Court of Appeal (Criminal Division) on appeal from the Crown Court at Wood Green.

It was before Lord Justice Holroyde, Mr Justice Lavender and HH Judge Chambers QC.

The Environment Agency had originally inspected the material at the Port of Felixstowe and was also responsible for the prosecution.

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