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Green Environmental Industries Ltd was asked by Herts CC to provide information about its clininal waste depositories, after the discovery of large amounts of such waste on unlicence sites. The request was made under s.71(2) of the EnvironmentalProtectionAct1991 (EPA), which allows a waste regulation authority to demand information from any person that it reasonably believes is necessary to fulfil its duties. The CC would not give Green an assurance that the information would not be used to found a prosecution, and Green therefore refused to supply it. The CC issued a summons to the magistrate's court, and Green challenged the legality of the notice by means of judicial review. Both the Divisional Court and the Court of Appeal rejected the application.
What were the grounds of Green's application? First, it was suggested that s.71(2) was incompatible with other UK law on the grounds that it compromised the RightToSilence and the privilege against Self-incrimination. This challenge was subsequently withdrawn, as it was obvious that s.71(2) would be meaningless if fear of prosecution were good grounds for non-compliance. Parliament's intention in this section was clearly to allow the collection of information that would allow the Act to be enforced. Second, more substantially, Green alleged that s.71(2) was incompatible with Article 6 of the EuropeanConventionOnHumanRights, which guarantees a right to a fair trial. This right encompassed, it was suggested, the right to silence and the right to avoid self-incrimination. In SaundersVUnitedKingdom1996 it had already been decided that provisions in the CompaniesAct1985 that compelled the provision of information for prosecution were incompatible with the ECHR. In this case, however, the court ruled that the EPA did not fall into the same trap as the Companies Act, as it did not automatically render the information admissible. The trial judge would still have the discretion to exclude the information if it was deemed to have been gathered unfairly (see: ExclusionOfEvidence). In addition, it was argued that in Saunders the evidence extract by statutory powers was clearly part of a criminal prosecution, whereas in this case it was purely investigatory. Article 6, it was suggested, applied to criminal proceedings, not to investigation.
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