Private prosecutions under section 82 of the Environmental Protection Act (‘EPA’) 1990 have become an increasingly popular tool for tenants, neighbours and residents frustrated by statutory nuisances including damp, mould, noise, smoke and odours. The proceedings are seen as a way of leveraging action quickly and offer a route to a court hearing without necessarily relying upon statutory authorities or third parties to take any decisive action.
For many facing the issues covered by the section, particularly litigants in person, section 82 EPA proceedings can appear at first sight to be a straightforward extension of a complaint process. The prospective litigant has experienced a problem, they have gathered evidence, and they want a court to intervene to stop the perceived nuisance.
However, there is an intrinsic difficulty for litigants in person, especially when commencing such actions in the magistrates’ court: once an individual starts a section 82 prosecution, they stop being only a complainant. They become the prosecutor. That role matters more than most can imagine.
A prosecutor owes duties to the court which go far beyond the obligations imposed on a party in civil litigation. Perhaps the most important, and most frequently overlooked, is the duty of candour.
It's Not Just Your Complaint Anymore
One of the fundamental principles of criminal proceedings is that prosecutors have duties to assist the court in reaching the correct outcome. An individual claimant wants a specific result (repairs done, compensation, or a finding of guilt). The moment they step into the role of the prosecutor, they must detach themselves from purely personal motives. They owe the same duties to the court as a Crown Prosecutor. The fact that someone may have suffered from damp, mould, noise or anti-social behaviour does not relieve them of the obligation to present the court with a fair and balanced account of the facts.
Those who have the conduct of prosecutions must observe the highest standards of integrity and of regard for the public interest and understand their duty to act as a "Minister for Justice", owing a duty to the court to ensure that the proceedings are fair.
It is an unfortunate fact that section 82 EPA cases often arise in circumstances where relationships have already broken down. There may well be a landlord-and-tenant dispute, a long-running neighbour disagreement that goes back many years, allegations of retaliatory conduct and/or previous litigation. In those circumstances there can be a temptation to present only the material that supports the prosecution. That is precisely what the duty of candour is designed to prevent.
What Does “Candour” Actually Mean in EPA Proceedings?
At its simplest, candour means telling the court the whole story, not just the parts that help your case. If a tenant is prosecuting a landlord for damp, that may mean telling the court:
- that repair works were carried out;
- that contractors attended;
- that conditions improved after the works;
- that an expert disagreed with parts of the complaint;
- that access was refused on certain occasions.
Similarly, if a neighbour is being prosecuted for noise nuisance, candour may require disclosure of evidence showing that complaints reduced significantly after mitigation measures were introduced. A prosecutor does not have to agree with that evidence, but they cannot pretend it does not exist.
Why This Matters So Much in EPA Cases
The reality is that section 82 EPA prosecutions are often heavily dependent on factual rather than forensic evidence; there is rarely a single event. Instead, the court is usually asked to consider a long history.
Questions that the magistrates may have to decide include: whether damp was caused by structural defects or condensation, whether a noise issue was persistent enough to amount to a nuisance, whether odours were severe enough to be prejudicial to health or whether remedial works were reasonable and effective. These are often finely balanced questions. A magistrates’ court cannot answer them properly if it only receives one side of the story.
The Summons Stage: Where Problems Often Arise
The duty of candour is particularly important when a prosecutor first applies for a summons, as this is an ex parte application.
The court will often see only the complainant's evidence. That makes the prosecutor's responsibility especially important.
The High Court has repeatedly stressed that a private prosecutor seeking a summons must provide sufficient information to allow the court to make a properly informed decision. In R (Kay) v Leeds Magistrates Court [2018] EWHC 1233 (Admin), the court emphasised the importance of candour, stating in its ruling: “…the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated.”
For EPA prosecutions, that means a complainant should think carefully before omitting:
- inspection reports;
- local authority findings;
- correspondence showing improvements;
- expert evidence which is not wholly supportive;
- evidence of works undertaken by the landlord or neighbour.
The importance of candour was reinforced by the decision in R (Kay) v Leeds Magistrates Court where the court referred to the various authorities that described the duty of candour as including “full and frank disclosure” which “necessarily includes a duty not to mislead the judge in any material way” and which requires the disclosure to the court of “any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge’s decision, including any matters which indicate that the issue….might be inappropriate”.
What Happens If the Duty Is Breached?
If a court finds that a prosecutor has failed to comply with the duty of candour, it has powers to:
- refuse to issue a summons;
- set aside a summons that has already been issued;
- stay proceedings as an abuse of process;
- make adverse findings about credibility;
- award costs against the prosecutor.
The costs point is often overlooked. In section 82 EPA cases the defendant will frequently be represented by solicitors and counsel. Defence costs can become substantial in a relatively short period of time. A prosecutor who has been found to have failed to act candidly may find not only that the proceedings have been set aside, but also that they are facing a significant costs order made against them personally.
The Candid Truth
Once someone commences a section 82 EPA prosecution, they are no longer simply a victim of nuisance. They have assumed a public role within the criminal justice system. The courts expect private prosecutors to behave as prosecutors first and foremost with all the duties that the role entails.
The decisions in matters such as R (Kay) v Leeds Magistrates' Court and related rulings all come to the same conclusion: a prosecutor must assist the court by providing a balanced and accurate account of the facts, including material which may weaken their own case.
For those bringing nuisance prosecutions under the EPA, that is perhaps the most important point to remember. The strongest cases are rarely those where ‘inconvenient’ documents are hidden away. The most robust prosecutions are those where the court is trusted with the whole picture and can see that, even after every qualification and every contrary fact has been considered, a statutory nuisance still existed. That is what the duty of candour requires, and it is what the courts expect.
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