Penalty Notices were introduced in 2004 for parking offences where they are dealt with under the civil law.
Since 1990 Councils have been able to issue Penalty Notices (on-the-spot Fixed Penalty Notices) for littering. Failure to pay results in a criminal prosecution.
In London since 2012 the owner of a vehicle can be given a Penalty Notice (Penalty Charge Notice) if litter drops from his vehicle. This is dealt with under the civil law.
Elsewhere in England the Secretary of State “may” make regulations to introduce a similar regime for vehicle littering but has yet to do so.
In criminal cases the prosecution has to prove guilt beyond reasonable doubt. In civil cases the judgement is made on the balance of probabilities.
The fact that an under 18 may be given a criminal record if he fails to pay an on-the-spot litter fine means that in practice the regime is not applied to young people and they are free to litter with impunity.
Penalty Charge Notices for parking (Traffic Management Act 2004)
Penalty Charge Notices were introduced in the Traffic Management Act 2004 – Part 6 Civil enforcement of traffic contraventions. They are issued by local authority parking attendants and are backed with powers to obtain payment by civil action. What happens if a PCN is appealed or ignored. Ultimately the council can apply to have the penalty charge registered as if it were a County Court decision. Court costs are added to what is owed and the council can apply for a warrant to send round bailiffs to your home. The bailiffs may be instructed to take goods from your home or seize your vehicle.
Fixed Penalty Notices for littering (Environmental Protection Act 1990)
Under EPA S87 a person dropping litter can be subject to a criminal prosecution and fined up to £2,500.
Under EPA S88 if an authorised officer of a litter authority ( e.g. a local authority), witnesses someone committing an offence under section 87 he may give that person a notice giving him the opportunity of discharging any liability to conviction by payment of a fixed penalty.
If the FPN is not paid the offender would be prosecuted and, if found guilty, he would have to pay a fine and obtain a criminal record.
Penalty Charge Notices for Litter dropped from a vehicle
Under S61 of London Local Authorities Acts 2007 a London Borough can issue penalty charge notices for certain offences including, under Section 24 Littering from vehicles. This says that when a person inside a vehicle acts in contravention of EPA S87 (offence of leaving litter) the owner of the vehicle who is liable.
It does not to apply the rental vehicles or to taxi cabs.
If the owner feels he is not liable he can make representations to the Borough and, if these are rejected, he can appeal to a traffic adjudicator.
If a charge goes unpaid the Borough can recover it as if it were payable under a county court order.
The important point is that the owner is not prosecuted under EPA S87 and cannot receive a criminal record for committing the offence.
Interestingly due to an drafting error it was not enforceable until this was corrected in Section 17 of the London Local Authorities Act 2012.
Provisions on the Penalty Charge Notice in Relation to Littering From Vehicles – Revised Guidance December 2013 explains that the PCN route is less expensive than FPNs.
Rest of England
Section 154 – Littering from vehicles of the Anti-social Behaviour, Crime and Policing Act 2014 amends S87 of the Environmental Protection Act by inserting after Section 88 (fixed penalty notices for leaving litter):
88A Littering from vehicles: civil penalty regime
(1) The Secretary of State may make regulations under which the keeper of a vehicle may be required to pay a fixed penalty to a litter authority where there is reason to believe that a littering offence in England has been committed in respect of the vehicle”.
It goes on to say
(5)Regulations under this section may include provision—
(a)for the enforcement of penalty notices (and such provision may in particular authorise an unpaid fixed penalty to be recovered summarily as a civil debt or as if payable under an order of a court if the court so orders.
So until such a regulation is made the keeper of a vehicle is not liable to pay a fixed penalty notice if litter is dropped from his or her vehicle outside London.
If a regulation is introduced it can specify that it will be dealt with under civil law.
This section of the Act was included following assurances given to Lord Marlesford who consequently withdrew his amendment aimed a introducing such powers.
DEFRA commissioned a scoping study to obtain the evidence on which to base any regulations. They tell me is was received at then end of March 2015 but they have yet to publish
Evidence to Communities & Local Government Select Committee inquiry into litter – 25th Nov 2014
Q87 Simon Danczuk: Mr Morley, how often do you use the powers that London authorities have to issue penalty-charge notices to owners of vehicles that have thrown litter out? It is a bit different in London.
Shaun Morley, Head of Waste Management, London Borough of Wandsworth: Yes. Obviously, we have the benefit of the London Local Authorities Act and, as was mentioned by previous colleagues, we have piloted that. It has been quite successful, in that we have used it to good effect. The enforcement guys have been very successful at it. They have got to understand the likely candidates who are going to throw something out of the window.
Simon Danczuk: They know what they look like.
Shaun Morley, : They have a pattern. What we have found is that the legislation has not been in place properly for us to take it to its full conclusion. Because it is through PATAS—the Parking and Traffic Appeals Service—and it is a penalty-charge notice, there is a cycle of appeal, etc. and at the end of it, it is not in place. Yes, we have been quite successful and we have a payment rate of about 60%, but if we have to go to the next stage that mechanism is not in place to take it to its final conclusion.
Simon Danczuk: So some improvements are needed and, as a Committee, we need to learn what they are and make recommendations.
Shaun Morley: Yes.
Q88 Simon Danczuk: Would it be helpful to have this stronger power outside London as well as inside?
Sean Lawson, Head of Environmental Services, Rugby Borough Council : Yes, but not in the way that it is currently done. A previous speaker said this. Because you have decriminalised it and made it a civil matter in the same way you do parking charges, you lose a lot of the teeth and the effectiveness you have with the criminality. It does mean you ask, “Is it okay to litter from here, because it is not a criminal offence?”
I would still use it as a fixed-penalty criminal offence that we have all those tactics and powers for. We do still use it and we trace the owner. We have conversations with them and we will try to persuade them to admit the offence and take the fixed-penalty notice. We still do it. If they refuse to admit the offence, we will serve section 108 powers under the Environment Act and require them to give information to us. If, as they often do, they don’t, we do them for obstruction.
We still try to get the educative message out around, “Actually, this is not acceptable behaviour.” But it is a cumbersome way, because the legislation is not in place.
19th June 2015
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