West Law Report

Jail justified for flytipping

Posted in Times Law Report by mrkooenglish on December 1, 2008

From The Times
November 25, 2008
Jail justified for flytipping

Court of Appeal, Criminal Division

Published November 25, 2008

Regina v Kelleher

Before Lord Judge, Lord Chief Justice, Mrs Justice Swift and Mr Justice Maddison

Judgment November 6, 2008

A custodial sentence could be appropriate for an offence of commercial flytipping even where aggravating features, such as depositing waste of a dangerous or offensive nature, were not present.

The Court of Appeal, Criminal Division, so stated when dismissing an appeal by James Gerard Kelleher against a 14-month prison sentence imposed by Judge Philpot at Inner London Crown Court on June 12, 2008, following his plea of guilty to conspiracy to deposit controlled waste unlawfully, contrary to section 33 of the Environmental Protection Act 1990.

Mr Nicholas Hinchliffe, QC, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Andrew Colman and Mr Howard McCann, solicitor, for the Environment Agency.

MRS JUSTICE SWIFT, giving the judgment of the court, said that the appellant and his codefendant were the organisers, over an 18-month period, of a wide scale operation unlawfully to deposit controlled waste material.

The disposal of waste in accordance with the law involved significant costs. Those individuals or companies who were prepared to make a business out of collecting waste and disposing of it unlawfully stood to make large profits at the expense of the environment and of those whose sites had been polluted.

As a result, commercial flytipping had become a serious problem. Penalties imposed for breaches of the law in that area had to be sufficient to deter such profiteering.

It was significant that Parliament had considered it appropriate, in the Clean Neighbourhoods and Environment Act 2005, to increase the maximum penalty for the deposit of waste which did not constitute special waste to five years imprisonment, the same level as that for special waste.

That strongly suggested that it was contemplated that significant sentences, including custodial sentences, were appropriate even without endangering human health or dumping noxious substances.

A custodial sentence might be appropriate if, as here, the breach concerned was deliberate, repeated, large scale, highly organised, financially motivated and highly profitable or combined any of those features.

Solicitors: Mr Daniel Wiley, Bristol.

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