Burden of proof for techniques and evidence EPA 1990 s.25
EPA 1990 s.25 shifts burden to accused to prove no better available technique without excessive cost; missing record entry is evidence of non-observance.
In any proceedings for an offence under section 23(1)(a) above consisting in a failure to comply with the general condition implied in every authorisation by section 7(4) above, it shall be for the accused to prove that there was no better available technique not entailing excessive cost than was in fact used to satisfy the condition. Where— an entry is required under section 7 above to be made in any record as to the observance of any condition of an authorisation; and the entry has not been made; that fact shall be admissible as evidence that that condition has not been observed. Subsection (2) above shall not have effect in relation to any entry required to be made in any record by virtue of a condition of a relevant licence, within the meaning of section 111 of the Environment Act 1995 (which makes corresponding provision in relation to such licences).
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
If you are charged with failing to use the best available technique not entailing excessive cost (the implied condition in every authorisation), the law puts the burden on you to prove that no better technique was available. You cannot simply wait for the prosecution to fail.
Also, if your authorisation requires you to keep a record showing that you observed a condition, and that record entry is missing, the court can treat the missing entry as evidence that you did not observe the condition. This does not apply to records required under a relevant licence under section 111 of the Environment Act 1995.
When it applies
- A factory owner is prosecuted for not using the best available technique to reduce emissions. Under s.25, the owner must prove that the technique they used was the best available without excessive cost.
- An inspector finds that the log book for a waste incinerator has no entry for the daily temperature check. That missing entry can be used as evidence that the temperature condition was not observed.
- A company is taken to court for breaching a condition on its authorisation. The prosecution points to a missing record entry. The company cannot simply deny; the missing entry itself is admissible evidence of non-observance.
- A defendant argues that the missing record was due to a technical error, but the provision allows the court to consider the absence as evidence regardless.
What this section does not say
- This provision does not define what 'excessive cost' means. That is left to interpretation in each case.
- It does not define 'best available technique'. That term is used elsewhere in the Act and may have its own guidance.
- It does not apply to entries required under a relevant licence within the meaning of section 111 of the Environment Act 1995.
- It does not set out the penalties for the offence under section 23(1)(a).
That's the law. Now let's settle your problem.
Say what is happening. A neutral mediator hears your side and the other party's, and walks you both to a written agreement. In the advanced settings you can ask for the decision to be reasoned on the Acts of Parliament that apply in England and Wales.
Or open a session directly and invite the other party.
We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.
This page reproduces the text of EPA 1990 s. 25 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.