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In London since 2012 the owner of a vehicle can be given a PCN (Penalty Charge Notice) if litter is seen dropping from his vehicle.

They are issued under the civil law.  In contrast if an FPN, Fixed Penalty Notice,  aka an on-the-spot fine,  for littering goes up-paid the offender is prosecuted in the criminal court.

It appears that the take up by the London Boroughs  has been minimal with possibly only LB Wandsworth having ever issued any PCNs for littering from vehicles.

In their Litter Strategy for England (April 2017) the Government  promised to extend these regulations across the rest of of England.

I believe that the poor take up by the London Boroughs should be investigated and the lessons leaned before they are extended.

 

Penalty Charge Notices for Litter dropped from a vehicle in London

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 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 this legislation was not enforceable until it was corrected in Section 17 of the London Local Authorities Act 2012.

London Councils produced this document to help the boroughs understand their powers:  Provisions on the Penalty Charge Notice in Relation to Littering From Vehicles – Revised Guidance December 2013

Outside London some enterprising Councils post FPN’s to the registered keeper of a vehicles from which litter has been thrown in the hope they will pay up even though they have no evidence that he or she was the perpetrator.

 

The London Experience 2102 -2017

DEFRA commissioned a Scoping Study for Research on Littering from Vehicles which was published in November 2015. Referring to London it said:

The London boroughs have been slow to enforce their ‘litter from vehicles powers’, but there is a lack of robust empirical evidence to help understand where the problems lie.

Two boroughs, who were expecting to begin piloting the new approach, had faced some delays, particularly in setting up the new appeals system. Other boroughs had mentioned difficulties in identifying littering offences using CCTV cameras or the need to reorganise their back office functions to handle enforcement of both civil contraventions and criminal littering offences

 … a witness from Wandsworth Borough Council, giving oral and written evidence to the 2014/15 House of Commons Inquiry into Litter & Fly-tipping, reported that the early problems they experienced with administering the London PCN were associated with the appeals process and in enforcing payments, as there was no standard paperwork in place to enable bailiffs to obtain a warrant from the County court (as happens with parking and emission related PCN)

… there was reluctance amongst London Boroughs to participate in the pilot but two did eventually take part. The evidence from these two respondents does illustrate the implementation issues arising from the London Local Authorities Act 2012. Only one of these authorities had started to use PCNs to enforce against littering from vehicles. The other London Borough stated they had not started to use PCNs because they did not believe that littering from vehicles was a main problem within their borough, and had higher priorities then setting up a civil process to tackle littering from vehicles.

“We haven’t used a PCN yet, it’s a relatively new legislation we are building the process into ours; obviously the warning letters are a little different so we have to make sure we understand how it works. I don’t know when we will start issuing PCNs for littering from vehicles, we have a raft of offences we want to utilise these types of notices for”. – Croydon Council

In the case of the one London Borough that had started to use a PCN system, they had experienced a lot of problems in firstly processing this type of fine, and then subsequently recovering the fine as a civil debt.

“Only last year when we started issuing controlled numbers of PCNs as part of a trial did it become apparent that no consideration had been given by the legislators to the fact that the county court cannot process cases unless they also have allocated official contravention codes. These codes are hard to come by as most are already taken for traffic contraventions. The codes have now been allocated so theoretically we can now send unpaid cases to court however no one has yet to my knowledge and it is still unclear what paperwork will have to be completed and how easy it will be to get the court to process it alongside all the other offences they already deal with. I suggested we should have individualised paperwork as the processes involved for our offences are different from parking offences but that has not happened (so far) due to red tape.” – London Borough of Wandsworth

My desk research showed that between April 2016 and April 2016 7 appeals against PCNs for littering from vehicles had been made to London Tribunals. All where for PCNs issued by LB Wandsworth.  It is possible that other London Boroughs had issued PCNs and none had been appealed. A simpler explanation is that only this one borough out of 33 is making use of these powers.

When asked DEFRA could not name any other London Borough that were using PCNs for littering from vehicles (13th Oct 2017).

 

Extending the powers to the 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.

 

Comment

We should however not simply extend the powers across the rest of the country without first fixing the issues faced by the London Boroughs.

Peter Silverman
25th September 2017

 

 

 

 

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