Law Report: Notification need not precede sampling: Attorney General's Reference: No 2 of 1994. Court of Appeal (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Ognall and Mr Justice Gage). 27 July 1994

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An occupier of land, against whom criminal proceedings might be brought for pollution of a river, need not be notified before a water sample was taken for analysis; the statute required only that he be notifed on the occasion of the taking of the sample.

The Court of Appeal so ruled on a point of law referred to the court by the Attorney General, under section 36 of the Criminal Justice Act 1972, following the acquittal of the defendant water utility company on charges brought by the National Rivers Authority, alleging pollution of a river by effluent from sewage works, contrary to section 107 of the Water Act 1989.

Under section 148 of the 1989 Act, now re-enacted as section 209 of the Water Resources Act 1991, 'the result of the analysis of any sample taken on behalf of the (NRA) shall not be admissible in any legal proceedings . . . unless the person who took the sample (a) on taking the sample notified the occupier of the land . . . of his intention to have it analysed; (b) there and then divided the sample into three parts and caused each part to be placed in a container which was sealed and marked; and (c) delivered one part to the occupier . . . and retained one part, apart from the one submitted to be analysed, for future comparisons.'

The points of law referred were: (1) whether notification under subpara (a) must precede division of the sample under subpara (b); and (2) the meaning of 'there and then' in subpara (b).

Charles Pugh (CPS HQ) for the Attorney General; Alison Foster (Treasury Solicitor) as amicus curiae; the defendant did not appear.

LORD TAYLOR LCJ, giving the court's judgment, said the NRA used what was called the 'rope and bucket' method. In some, but not all cases, its officer informed the occupier of his intentions prior to sampling. He then filled a bucket from the effluent channel and poured three litres into a large container. He then walked to the car park by the occupier's offices and, at his vehicle, divided the large container's contents into three one-litre bottles, each sealed and marked. The occupier was then given one of the bottles and, in some but not all cases, told of the NRA's intention to analyse the contents of its own bottle. Sometimes the officer would notify the occupier prior to dividing the sample and give him an opportunity to be present.

The judge took the view that 'on taking the sample' meant the dipping of the bucket into the effluent and pulling it out or immediately after, not some time later, and that it was then that the occupier should be notified. The procedure laid down by the Act, he said, required the occupier to be invited to be present to ensure the sample was properly taken.

With respect to the judge, their Lordships thought this construction of 'on taking the sample' was too narrow. It meant 'on the occasion of taking the sample'. That accorded with the Court of Appeal's construction of the phrase 'on arrival' in Capol Clothing Ltd v Hindmarsh (1984) 1 WLR 411.

In each case it would be a matter of degree as to whether the latitude surrounding the taking the sample was exceeded or not. There might be cases where the need for surprise might prompt the NRA to notify the occupier immediately after taking the sample rather than beforehand. In other cases, reasons such as trust and comity might prompt the NRA to notify the occupier in advance. The phrase 'there and then' should also be given a wider meaning than the words might literally imply. 'Then' meant on the occasion of taking the sample, and 'there' meant at or proximate to the site.

To divide it in the laboratory or at a later time would clearly interrupt the continuity of the operation of taking the sample and would be impermissible. But to carry the large container to the car park immediately after taking the sample and to divide it there must be regarded as within the expression 'there and then'.