FIRST SECTION

DECISION

Application no . 60629/13 DENNIS RYE LTD against the United Kingdom

The European Court of Human Rights ( First Section ), sitting on 31 May 2016 as a Committee composed of:

Kristina Pardalos , President, Paul Mahoney , Robert Spano , judges,

and Milan Blaško , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 18 September 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Dennis Rye Ltd, is a British company based in Alfreton. It is represented before the Court by Fidler and Pepper Solicitors, a law firm based in Sutton-In-Ashfield .

A. The circumstances of the case

2. The facts of the case, as submitted by the parties , may be summarised as follows.

1. The background facts

3. Since at least 2000, the local authority environmental health department received complaints from local residents about smoke generated by the burning of waste in the yard of the applicant ’ s premises . Section 79 of the Environmental Protection Act 1990 (“the 1990 Act”) required the local authority to take such steps as were reasonably practicable to investigate complaints of statutory nuisance. S moke emitted from premises so as to be prejudicial to health or a nuisance constituted “statutory nuisance” for the purposes of the 1990 Act.

4 . O n 4 August 2010, following a complaint from A., a resident who lived nearby , a local authority environmental health officer visited the applicant ’ s premises and observed that waste material was being piled up in the yard . The officer warned the applicant ’ s staff about the consequences of a bonfire.

5 . On 1 November the officer again visited the premises accompanied by a pollution control officer. They observed and photographed a large pile of waste in the yard. The waste pile contained treated wood and plastic material in addition to waste wood. They informed the applicant ’ s staff that the waste should not be burned and should be disposed of by alternative means.

6 . On the morning of 4 November 2010 the pollution control officer returned and served an abatement notice on the applicant under section 80 of the 1990 Act (namely , a notice imposing requirements to abate, restrict or prohibit a nuisance). The notice stated that the local authority was satisfied of the likely occurrence of a statutory nuisance and prohibited the applicant from burning waste in its yard.

7 . On 5 November 2010 (“Bonfire Night”) a bonfire was lit in the applicant ’ s yard. A. saw the fire and telephoned the f ire b rigade. Firemen attended but decided that the fire was under control and departed. Following Bonfire Night , a neighbour , B., complained to the local authority that smoke from the bonfire had passed onto his property and into his house through a vent. He subsequently made a statement.

2. The court proceedings

(a) Magistrates ’ Court trial and conviction

8. The applicant was prosecuted in the Magistrates ’ Court for breach of the abatement notice. On 21 September 2011 it was convicted and sentenced to a fine and a victim surcharge.

( b ) Appeal to the Crown Court

9 . The applicant appealed to the Crown Court. The witness statements of the local authority officers who had visited the premises and a fireman who had attended on Bonfire Night were before the court. The photographs of the waste pile (see paragraph 5 above) were also admitted. B. ’ s statement was not admitted in evidence.

10 . On 20 January 2012 the Crown Court reheard the case before a recorder and two magistrates. Prosecution counsel accepted that he had to show that there had been a breach of the abatement notice which had, on the facts, caused a nuisance. Thus, in the applicant ’ s case, it was not sufficient to show that a bonfire had been lit but was also necessary to show that there had been smoke which had caused nuisance. Counsel explained:

“Frankly, my submission on that is very straightforward. Just look at the size of the fire ...[I]f I am going to burn a bonfire of that magnitude containing that amount of waste, it is crystal clear in my submission that this is going to have a much more widespread impact than simply on Bloggs next door ...”

11 . Prosecution counsel then called as a witness the pollution control officer who had visited the premises on 1 November 2010. The officer confirmed that over the years complaints had been received from a number of residents about the burning of waste in the applicant ’ s yard. When asked to elaborate on the complaints received , he said that on Bonfire Night a resident had complained that smoke had billowed across into his premises and was actually entering the premises via a ve nt. The officer described his visit to the applicant ’ s premises on 1 November 2010 and the service of the abatement notice on 4 November . He also explained that he had visited the site again on 9 November 2010 and had observed that there was no stored waste left on site.

12 . The officer was cross-examined by the applicant ’ s counsel. He was asked whether he had spoken personally to anyone other than B. who had complained about bonfires on the applicant ’ s premises and replied that he had also spoken to a woman who had declined to give her name. He explained that she had called the fire brigade on Bonfire Night . He confirmed that he had not been present at the premises on Bonfire Night itself and was unable to say whether any smoke had been emitted. Counsel pressed the officer for further details about B. ’ s complaint , and the officer reiterated that B. had complained of smoke entering his residence through a vent.

13 . The prosecution next called as a witness the environmental health officer who had visited the premises on 4 August and 1 November 2010. He confirmed that the waste pile on 1 November was bigger than the one he had observed on 4 August. He also explained that on 9 November 2010 A. had contacted him and informed him that she had seen smoke coming from the site on 9 November 2010 and had called the fire brigade. The officer was cross-examined by the applicant ’ s counsel. Counsel asked for further details of the complaints made by A. and B. The witness also confirmed that he had not been present at the premises on Bonfire Night itself.

14 . The prosecution next called the fireman who had attended the premises on Bonfire Night . He was asked to read his written statement. According to his statement, upon arrival at the premises he had observed smoke coming from behind a nearby bar and, on entering the yard, he had observed a “sizeable fire”, four metres in diameter with flames reaching four metres in height. In cross-examination, he was asked to describe the colour of the smoke and he confirmed that, at the time of his attendance, the smoke had been light in colour. He had seen no heavy, black, noxious smoke.

15 . The defence called no evidence. In his closing submissions, defence counsel accepted that it was plain from the evidence that there had been an unlit bonfire piled up in the yard from August to November 2010. He asked the judges to “disregard hearsay evidence or reference to documents which have not been produced”. He emphasised that only B. had made a statement but he had not given evidence and that there was no direct evidence before the court of any disturbance that he had suffered. The only direct evidence was, therefore, the evidence of the fireman who had attended. Having reviewed the applicable law and explained the context of Bonfire Night, counsel said:

“Against that backdrop, was the simple act of lighting the bonfire in the manner described, as it appeared to [the fireman] when he gave evidence, a nuisance in the sense of being unreasonable or not something which could be considered under the principle of ‘ give and take ’ ? There is only one answer, in my submission. In circumstances where you have heard no evidence whatsoever from any of the neighbours that they suffered on this evening in any sense that might be thought to be unduly or onerously oppressive, you must acquit.”

16 . In his closing submissions, prosecuting counsel accepted that the court had to decide the case on the basis of the evidence that it had heard. Counsel explained that direct evidence from neighbours as to the nuisance suffered was not necessary for a conviction. He argued that the court could find that the waste pile photographed on 1 November 2010 was the substance of the bonfire lit on Bonfire Night. The applicant had lit the fire in the face of an abatement notice prohibiting it from burning waste on its premises. Counsel continued:

“A fire of that size, it ’ s a massive fire, four metres wide by four metres high. It would fill this room almost. Twice the height, another metre high outside this room. The height of the fire is higher than this ceiling, beyond. It is an enormous fire. On any view, a fire like that inevitably produces sufficient smoke and particles to cause a nuisance. It is blazing away up there, it is blasting stuff up into the air and smoke ... isn ’ t just the gas, the cloud that is emitted. It includes the particulates within it and all the rest of it that comes showering down in the general area once it has cause sufficiently to fall back out of the sky. It is inevitable that that fire is large enough to cause a nuisance, and that was the evidence given to you by the environmental officers of the council.”

17 . T he Crown Court upheld the applicant ’ s conviction. The court noted that the bonfire was very large, and literally within yards of houses and people ’ s back gardens. It continued:

“Using our common sense, and giving a little and taking a little, ... we can see, in common sense, that the lighting of that bonfire would present a public nuisance to that proportion of the population that lived around it. It may be that they would just keep quiet and not complain. But those that did were, in our view, being entirely reasonable, even giving a little and even taking a little.

It is (or was) a vast bonfire in an inappropriate place, made worse, in our view, by the fact that amongst the scrub wood that we can see were substantial parts of treated wood and plastics, which would give off venomous smoke. Again, this appears to have been the subject of a complaint, at least once, to the local authority.”

18 . It concluded that, on the facts that it had heard, given the size and ferocity of the flames and the bonfire ’ s position within an area of residential housing, it could not see how it could not be a public nuisance.

(c) Case stated proceedings in the High Court

19 . The applicant requested that the Crown Court state a case for an appeal to the High Court. The court accepted its application and asked the High Court to answer the following question:

“In respect of each count charged, was there evidence that a statutory nuisance as defined by law was committed upon which we could properly convict the Appellant?”

20. In its written submissions to the court, the applicant argued that given the distance A. lived from the bonfire site she could not have been inconvenienced by any smoke. As to B. ’ s complaint, it noted that he had not been called to give evidence and that no hearsay notice had been lodged. At the appeal hearing , counsel informed the High Court that he had been expecting B. to give evidence in the Crown Court re-hearing and that he had therefore not objected to the hearsay evidence even though the prosecution had not lodged a hearsay notice. He submitted that little weight should have been given to the evidence of the complaint.

21 . On 22 March 2013 the High Court decided that the applicant had been properly convicted. As to the evidence of B. ’ s complaint, the court noted that no objection had been taken at the time and that, in those circumstances, it had been open to the court to take it into account , the weight to be attached to it being a matter for the lower court. There was, the High Court observed, no doubt a re latively powerful argument that “it should not be given the greatest of weight because it had not been cross ‑ examin ed” . The court added:

“It may well be that the fact that a complaint had been made as opposed to the content of the complaint might well arguably not have been hearsay because it is the contents which really constitute the hearsay, but I do not need to go into that question. The point has not been argued before me.”

22 . The applicant applied for the High Court to certify a point of law of general public importance and for permission to appeal to the Supreme Court. The High Court refused both applications.

B. Relevant domestic law and practice

23 . Section 79 of the 1990 Act explains what constitutes a statutory nuisance for the purpose of the Act and sets out the resulting duty on the local authority, where a complaint of a statutory nuisance is made to it by a person living within its area, to take such steps as are reasonably practicabl e to investigate the complaint.

24. Section 80 enables the local authority to serve an abatement notice where it is satisfied that a statutory nuisance exists, or is likely to occur or recur . Section 80(4) stipulates that non-compliance with the notice is an offence.

COMPLAINT

25. The applicant argued under Articles 6 § § 1 and 3 (d) of the Convention that he was denied a fair trial because hearsay evidence of A. and B. was admitted in evidence and he was unable to cross-examine them.

THE LAW

26. Article 6 §§ 1 and 3 (d) of the Convention provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A. The parties ’ submissions

27. The Government emphasised that the question whether evidence was hearsay was determined not by its content but by the purpose for which it was used in evidence. In the applicant ’ s case, there appeared to be a number of purposes for which complaints had been admitted, which did not constitute hearsay under domestic law or engage the rights in Article 6 § 3 (d). First, evidence of the complaints had been adduced to show how the abatement notice had come to be served. Second, evidence of A. ’ s complaint had been adduced to explain why firemen had attended the bonfire. Third, evidence that complaints had been made had been adduced to rebut the assertion by the applicant ’ s counsel, in support of his argument that the bonfire had not caused a nuisance, that there had been no complaints. Finally, much of the evidence as to the complaints made had been adduced as a result of questions asked by defence counsel. It was clear from the Crown Court ’ s judgment that the complaints had played no part in the conclusion that the offence had been made out.

28. The applicant disputed that any hearsay evidence had been introduced at the instigation of defence counsel. It further argued that the contention that there had been no hearsay was inconsistent with the approach of the domestic courts. It referred to the Crown Court judgment and considered it clear that the court had been heavily influenced by the evidence of the pollution control officer, including B. ’ s hearsay evidence as to smoke.

B. The Court ’ s assessment

29. Article 6 § 3 (d) enshrine s the principle that before an accused can be convicted all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Where written statements are to be admitted at a criminal trial, a defendant must be given an adequate and proper opportunity to challenge and question witness es against him (see, most recently, Schatschaschwili v. Germany [GC], no. 9154/10 , §§ 103 and 105, ECHR 2015).

30. In the present case, the Court is satisfied that no hearsay evidence was admitted at trial. It is clear that no written statements by complainants were introduced in evidence at the Crown Court and that the prosecution case was based not on the evidence of complainants as to the extent of the nuisance caused (see paragraphs 9-10 and 16 above). Thus, in opening his case, prosecuting counsel summarised his “straightforward” submission that there had been a nuisance based on the magnitude of the bonfire itself (see paragraph 10 above). He led evidence as to the amount of waste material being accumulated for the bonfire in the preceding months (see paragraphs 11 and 13 above). He called a fireman who had attended the premises to speak to the size of the fire (see paragraph 14 above).

31. Reference by the local authority witnesses during oral evidence to complaints by residents was not made in order to adduce evidence of the content of the complaints. Rather, such references were intended to show that complaints had been made and had prompted action by the local authority pursuant to its obligation under section 79 of the 1990 Act (see paragraph 23 above); and that A. had called the fire brigade on Bonfire Night and firemen had accordingly attended the premises. The pollution control officer ’ s mention of the complaint by B. about Bonfire Night was initially in response to a request by prosecuting counsel for further details as to the complaints received about burning waste in the applicant ’ s yard in the context of elucidating the motivation behind the officer ’ s 1 November visit to the applicant ’ s premises (see paragraph 11 above). It appears that it was defence counsel, and not prosecuting counsel, who pressed the local authority witnesses for more detail as to the content of the complaints that had been made (see paragraph 15 above).

32. In his closing submissions, prosecuting counsel again emphasised the “massive” size of the fire and insisted that, on any view, a fire of that size inevitably produced smoke and other particulates such as to cause a nuisance. He did not refer to any complaints from local residents (see paragraph 16 above). Counsel for the defence invited the court to ignore any hearsay evidence and subsequently proceeded on the basis that no hearsay evidence had been admitted: he argued that in the absence of any evidence whatsoever from any neighbours as to the inconvenience suffered on Bonfire Night, there were no grounds for finding nuisance (see paragraph 15 above).

33. The Crown Court, for its part, clearly did not rely on the content of any complaints made by neighbours concerning the events on Bonfire Night. In concluding that the bonfire had caused a public nuisance, it referred exclusively to the size and ferocity of the flames and the bonfire ’ s position in a residential area (see paragraph 18 above). It is true that it spoke of “venomous smoke”, which, it said, appeared to have been the subject of a complaint (see paragraph 17 above). It did not clarify to which complaint it was referring. However, even assuming that the reference was to B. ’ s complaint about smoke entering his home via a vent, it is plain that it was not relying on B ’ s statement for its conclusion that there had been such “venomous smoke”. The court ’ s comments show that the “venomous” nature of the smoke was a conclusion drawn by the court from the photographs of the waste pile, and the fact that it contained treated wood and plastics; there is no suggestion that B. ’ s statement had anything to say in this respect. As to the fact that there was smoke at all, the indirect evidence of B. ’ s complaint added nothing to the extensive evidence before the court as to the size of the fire and the resulting scientific inevitability of the existence of smoke and, according to the fireman, the fact that the fire did indeed produce smoke.

34. Finally, the fact that the High Court appeared to proceed on the basis that B. ’ s statement was before the Crown Court does not assist the applicant since it has now been clearly demonstrated that B. ’ s statement was not admitted in the Crown Court proceedings (see paragraph 9 above). Further, having disposed of the challenge on the basis that no complaint had been made at the time, the High Court expressly observed that it had not heard any argument on whether the fact that a complaint had been made, as opposed to its content, was in fact hearsay evidence (see paragraph 21 above). By contrast, this Court has had the benefit of the parties ’ observations on that question and for the reasons given above has concluded that no hearsay evidence was admitted.

35. The applicant has accordingly failed to demonstrate that it was denied the opportunity to challenge and question witnesses whose evidence was admitted at trial. It therefore follows that the applicant ’ s complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 23 June 2016 .

Milan Blaško Kristina Pardalos Acting Deputy Registrar President