Communicated on 10 December 2014

FOURTH SECTION
Application no. 60629/13
DENNIS RYE LTD
against the United Kingdom
lodged on 18 September 2013
STATEMENT OF FACTS
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
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The background facts
The applicant is a small company operating in the construction industry from premises which included a yard. The premises were surrounded by residential property. Waste, including wood, was stored in the yard.
Since at least 2000, the local authority environmental health department received complaints about the burning of waste by the applicant. In August 2010, as a result of a complaint from an unnamed woman (“First Complainant”), a local authority pollution control officer visited the property. Warnings were given to the applicant about the consequences of a bonfire. On 4 November 2010 an abatement notice (namely a notice served by a local authority imposing requirements to abate, restrict or prohibit the existence or likely occurrence or recurrence of a nuisance) was served on it. The notice stated that the local authority was satisfied of the likely occurrence of a statutory nuisance (smoke due to burning waste) from the property and prohibited the occurrence of the nuisance from that point in time. It required the applicant to stop burning waste.
On 5 November 2010 (“Bonfire Night”) a bonfire was staged in the yard. The bonfire contained treated wood and plastic material in addition to waste wood. It was lit at about 4.30 p.m. The First Complainant saw the fire and telephoned the Fire Brigade. It duly attended but decided that the fire was not a danger and therefore departed. Following Bonfire Night a neighbour (“Second Complainant”) complained to the local authority that smoke from the bonfire had passed onto his property and into his house through a vent.
Some months later an environment officer attended the applicant’s premises in relation to a different matter. Whilst on the premises he witnessed an employee transferring plastic from a bin containing waste into an upturned drum used as an incinerator. He spoke to one of the members of the management team who informed him that he was not aware that such incineration was taking place and that he would speak to the employee. No complaints were received on this occasion.
2.  The court proceedings
(a)  Magistrates’ Court trial and conviction
The applicant was subsequently prosecuted in the Magistrates’ Court on two counts which alleged that breaches of an abatement notice took place on Bonfire Night and 28 January 2011.
On 21 September 2011 it was convicted on both counts and sentenced to a fine and victim surcharge. It was ordered to pay a sum towards the prosecution’s costs.
(b)  Appeal to the Crown Court
The applicant appealed to the Crown Court. On 20 January 2012 the Crown Court reheard the case. It heard evidence from two local authority officers, a fireman and an environment officer. They were cross-examined by the applicant’s counsel.
After informing the court that a number of complaints from a number of people had been received since 2000, the first local authority officer gave evidence that a complaint had been received from the Second Complainant about the bonfire on Bonfire Night. Although the applicant has submitted a copy of the Second Complainant’s witness statement he has not indicated whether the witness statement was admitted into evidence.
The officer stated that the complainant had informed the local authority that:
“on the 5th of November, in particular, the bonfire was lit around, [...], 10-past-4 in the afternoon approximately, and at that time the fire wasn’t too bad, just burning away. But then, later on in the evening, when the fire had took hold, smoke was actually billowing across into his premises, and I am told that smoke was actually entering inside the premises from a vent.”
The officer stated that he had been informed by the same complainant that the latter had not heard any fireworks being let off from the premises.
The applicant’s representative did not object to the evidence given by the officer. He cross-examined the officer on the subject of the complainants. The representative also elicited from the officer that he had spoken to the First Complainant and that she had telephoned the Fire Brigade.
The second local authority officer indicated that he had spoken directly to the First Complainant. She had informed him that she had seen smoke coming from the site on Bonfire Night. Under cross-examination the officer informed the court that the First Complainant had also complained to the local authority in August 2010 and that she had not informed him about any smoke but had seen the fire from more than a mile away.
The officer also explained that he had spoken to the Second Complainant. He was not asked any further questions about that complainant.
On 20 January 2014 the Crown Court upheld the applicant’s convictions. It accepted that, although it had heard no direct evidence from the complainants, complaints had been made about the bonfire on Bonfire Night. It found that the individuals who had complained were being entirely reasonable when they did so. It noted that the “venomous” smoke which the bonfire would have given off because of its composition had been the subject of at least one complaint to the local authority. It decided that, given its position and the size and ferocity of the flames, the fire must have been a nuisance.
(c)  Request to state a case to the High Court
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?”
(d)  Case stated proceedings in the High Court
The applicant devoted a section of its written submissions on the question asked by the Crown Court to the complaints that had been made by members of the public. It noted that two complaints had been made. It argued that given the distance the First Complaint lived from the bonfire site she could not have been inconvenienced by any smoke. As to the Second Complainant’s complaint, it noted that he was not called to give evidence and that no hearsay notice had been lodged. It commented that the first local authority officer had explained what he had been told by the Second Complainant but that this was not evidence as to the truth of what he had been informed.
At the hearing the applicant’s representative informed the High Court that he had been expecting the Second Complainant 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 further stated that he had later learnt that the Second Complainant would not be called to give evidence. He submitted that little weight should have been given to the evidence of the complaint.
On 22 March 2013 the High Court decided that the applicant had been properly convicted. It found that there was evidence before the court that there had been a complaint in relation to the Bonfire Night bonfire. It found that no objection had been taken to the evidence at the time and decided that because the evidence had been given it was open to the court to take it into account. The weight to be given to the evidence was a matter for the lower court, although the High Court accepted that there was a relatively powerful argument that because of the lack of cross-examination little weight should have been given.
Finally the court observed that it had not heard argument on the issue of whether the fact of a complaint being made, as opposed to the contents of that complaint, was actually hearsay evidence.
(e)  Application for permission to appeal to the Supreme Court
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
1.  The Environmental Protection Act 1990
Section 79 of the Environmental Protection Act 1990 states what constitutes a statutory nuisance for the purpose of the Act and sets out the resulting duty on the local authority. In relevant part it provides:
“(1) Subject to subsections (1A) to (6A) below, the following matters constitute “statutory nuisances” for the purposes of this Part, that is to say—
...
(b) smoke emitted from premises so as to be prejudicial to health or a nuisance;
...
and it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with under section 80 below or sections 80 and 80A below and, 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 practicable to investigate the complaint.”
Section 80 provides the conditions under which an abatement notice is to be served:
“(1) Subject to subsection (2A) where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in the area of the authority, the local authority shall serve a notice (“an abatement notice”) imposing all or any of the following requirements—
(a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence;
...
and the notice shall specify the time or times within which the requirements of the notice are to be complied with.”
Section 80(4) stipulates that an offence is committed if the person on whom the notice is served does not comply with it.
2.  Common law principles applicable to hearsay evidence
Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony (see paragraph 20 of judgment of Lord Phillips in R. v. Horncastle and others [2009] UKSC 14). As a general rule it is inadmissible in a criminal case unless there is a common law rule or statutory provision which allows for its admission. The relevant statutory provisions applicable to the applicant are set out in the following section. Those statutory provisions are supplemented by three common law principles. First, there is an additional discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This, in turn, is supplemented by section 78 of the Police and Criminal Evidence Act 1984, which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted. Second, in a jury trial, if hearsay evidence is admitted and the jury have heard it, the trial judge, in his summing up, must direct the jury as to the dangers of relying on hearsay evidence. Third, also in a jury trial, the jury must receive the traditional direction as to the burden of proof i.e. that they must be satisfied of the defendant’s guilt beyond reasonable doubt.
3.  The Criminal Justice Act 2003
The law governing the admission of hearsay in criminal cases in England and Wales is found in the Criminal Justice Act 2003. Under section 114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. Where the evidence is admitted under section 114(1)(d) because it is interests of justice to do so, section 114(2) sets out the factors to which the court must have regard.
Another “gateway” provided for in section 114 is if another provision of the Act applies. Section 116 is one such provision and sets out when the evidence of a witness who is unavailable may be admitted.
Section 124 allows the admission of evidence to challenge the credibility of the absent witness. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe. Section 126 preserves both the common law discretion and the section 78 discretion of the trial judge to exclude hearsay evidence (see above). It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.
4.  Procedure
An offence under section 80 of the Environmental Protection Act 1990 is summary in nature. By section 2 of the Magistrates’ Court Act 1980 (“the 1980 Act”), the Magistrates’ Court has jurisdiction to try any such offence. Section 108 of the 1980 Act provides that where a person is convicted by a Magistrates’ Court, he can appeal as of right to the Crown Court against his conviction and/or sentence. Section 79(3) of the Senior Courts Act 1981 provides that customary practice and procedure as regards appeals to the Crown Court, in particular in relation to the extent of re‑hearing, shall be continued to be observed. As a result, appeals to the Crown Court are by way of a full re-hearing in which witnesses may be called.
Pursuant to section 111 of the 1980 Act, a person convicted in the Magistrates’ Court may, as an alternative to an appeal, ask that court to state a case to the High Court on the basis that the decision of the Magistrates’ Court was wrong in law or in excess of jurisdiction. Similarly, pursuant to section 28 of the Senior Courts Act 1981, he may, following an unsuccessful appeal to the Crown Court, ask that court to state a case to the High Court on the basis that the decision of the Crown Court was wrong in law or in excess of jurisdiction. When a case is stated, the High Court is asked to give its opinion on the question of law or jurisdiction involved. Section 28A of the Senior Courts Act 1981 provides that the High Court, after considering the question, either may reverse, affirm or amend the determination of the court below or may remit the matter to that court.
COMPLAINT
The applicant complains under Articles 6 § 1 and 6 § 3 (d) of the Convention that he was denied a fair trial because hearsay evidence was admitted in evidence and he was unable to cross-examine the witnesses.

QUESTIONS TO THE PARTIES
1.  Was hearsay evidence admitted in the Crown Court re-hearing which took place on 20 January 2012 in support of the criminal charge relating to events which took place on 5 November 2010?

2.  Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, did the applicant invoke before the national authorities, at least in substance, the rights under Article 6 § 1 and 6 § 3 (d) on which it now wishes to rely before the Court (see Adetoro v. the United Kingdom, no. 46834/06, § 55, 20 April 2010 and Boyle and Ford v. the United Kingdom, nos. 29949/07 and 33213/07, § 49, 22 June 2010)?

3.  (a)  Assuming hearsay evidence was admitted, was there a good reason for the non-attendance of the witnesses at the applicant’s trial (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 122‑125, ECHR 2011; and Gabrielyan v. Armenia, no. 8088/05, §§ 81 84 and the references therein, 10 April 2012)? In particular, did the domestic authorities take adequate steps to procure the attendance of the witnesses?

(b)  If not, was there, by that fact, a violation of Article 6 §§ 1 and 3 (d) (see Al-Khawaja and Tahery, cited above, §120 and the references therein)?

4.  (a)  Assuming hearsay evidence was admitted, was the evidence the decisive basis on which the applicant was convicted (within the meaning of Al-Khawaja and Tahery, cited above, § 131)?

(b)  Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) (Al-Khawaja and Tahery, cited above, § 147)?

5.  Please provide a copy of all directions given by the recorder to the lay magistrates relating to the evidence which was admitted at trial.