LAW REPORT:Unmaintained sewage system caused pollution

Attorney General's Reference: No 1 of 1994. Court of Appeal (Criminal Division)(Lord Taylor of Gosforth Chief Justice, Mr Justice Alliott and Mr Justice Rix).

19 January 1995.

The running of a sewerage system in an unmaintained state is sufficient to entitle a jury to find the party responsible for the system guilty of causing pollution to controlled waters.

The Court of Appeal gave its opinion on points of law arising under the Water Act 1989.

The first respondent, a corporate body, collected and disposed of highly toxic industrial waste under a licence granted by the second respondent, the sewerage undertaker with statutory duties to provide and maintain sewerage disposal systems in the area.The third respondent, the local borough council, performed for profit the duties of the second respondent.

The third respondent operated a system whereby sewer pipes from the first respondent's site led to a pumping station operated by the second respondent who had consent to discharge sewerage in an emergency through the overflow into a stream on the condition that two pumps were maintained.

In 1991 the pumps were not operating, there was blockage in the system and a substitute pump failed. The respondents were each charged with "causing polluting matter to enter controlled water" contrary to s107(1)(a). Mr Recorder Gorman QC directed an acquittal of the second respondent and allowed the case against the first and third respondents to go to the jury on the basis that the jury could not find more than one party guilty of the offence. The jury acquitted both.

John Mason (CPS) for the Attorney-General; Benjamin Nicholls (DJ Roberts, Birmingham) for the second respondent; John Stobart (Brendan Morris, Ilkeston) for the third respondent.

LORD TAYLOR CJ, giving the court's opinion, said that, from the leading authorities, the following propositions emerged clearly. 1 - It was a question of fact in each case whether a defendant "caused" the polluting matter to enter controlled waters; 2 - The word "knowingly" was not to be implied as qualifying the word "causes" in section 107(1)(a); 3 - The word "causes" was to be given its plain meaning; 4 - The word "causes" involved active participation in the operation or chain of operations resulting in the pollution of controlled waters; 5 - Mere tacit standing by and looking on was insufficient to amount to causing.

The first question posed for the court was whether an offence of "causing" under s107(1)(a) could be committed by more than one person. Obviously if there was a joint enterprise the answer was yes. The answer was still yes where one or more persons executed different and separate acts.

The present case illustrated the impracticality of confining causation to one party. A jury faced with concurrent causative conduct by more than one party would experience difficulty and reluctance in "choosing one culprit".

Where a sewerage firm set up and owned a plant or system to carry out its statutory duties, then if sewage passing through that system polluted controlled waters, the company had participated in an "active operation or chain of operations involving as the result the pollution of the stream". A jury would be entitled to find the company guilty of causing pollution.

The practical answer to whether the failure to maintain the system was sufficient to constitute causing depended on how the question was formulated. As stated, the answer was in the negative: failure implied an omission. The question could be rephrased: was running a system in an unmaintained state sufficient to constitute causing?

Where a party had undertaken the day-to-day running and maintenance of a sewerage system, if it failed properly to maintain the system and ran it in an unmaintained state, that would be sufficient to entitle the jury to find that party guilty of "causing" pollution resulting from lack of maintenance.

Ying Hui Tan, Barrister