Onus of proof: techniques and evidence – EPA 1990 s. 119
EPA 1990 s. 119: accused must prove no better technique or no measures were necessary for certain s.118 offences. Missing record entries admissible as evidence.
In any proceedings for either of the following offences, that is to say— an offence under section 118(1)(c) above consisting in a failure to comply with the general condition implied by section 112(4)(c) or (5)(c) above; or an offence under section 118(1)(d) above consisting in a failure to comply with section 109(3)(c) or (4)(c) above; it shall be for the accused to prove the matters described in subsection (1A) below. The matters referred to in subsection (1) above are— in the case of an offence under section 118(1)(c) above consisting in a failure to comply with the general condition implied by section 112(5)(c) above— that no measures, other than the measures taken by him, were necessary to prevent damage being caused to the environment from the release or, as the case may be, marketing of the organisms, or in a case where he took no measures, that no measures were necessary; and in any other case, that there was no better available technique not entailing excessive cost than was in fact used to satisfy the condition or to comply with that section. Where an entry is required by a condition in a consent to be made in any record as to the observance of any other condition and the entry has not been made, that fact shall be admissible as evidence that that other condition has not been observed.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This provision applies only to two specific offences under section 118(1)(c) and (d) of the Environmental Protection Act 1990. Those offences involve failing to comply with certain conditions implied by section 112(4)(c) or (5)(c), or failing to comply with section 109(3)(c) or (4)(c).
In proceedings for these offences, the burden of proof is reversed. The accused must show one of two things: either that the measures they took were enough to prevent damage to the environment (or that no measures were needed at all), or that the technique they used was the best available that did not involve excessive cost – known as BATNEEC.
Additionally, if a consent condition requires a record to be kept of compliance with another condition, and that record entry is missing, the court may treat the absence as evidence that the other condition was not complied with.
When it applies
- A company charged with failing to use the best available technique to prevent environmental damage from releasing GM organisms must prove no better technique existed.
- A person who took no measures to prevent damage from importing GM organisms must prove no measures were necessary.
- A missing record entry for monitoring a consent condition is used as evidence that the condition was breached.
- A research institution accused of marketing GM organisms without adequate containment must prove the technique used was the best available not entailing excessive cost.
What this section does not say
- This provision does not cover all offences under section 118; it only applies to the two specific offences listed.
- It does not define what 'better available technique not entailing excessive cost' means; that is defined elsewhere.
- It does not apply to civil claims for environmental damage; only criminal proceedings.
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This page reproduces the text of EPA 1990 s. 119 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.