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There is no reason why Highways England cannot prosecute individuals who commit Environmental Protection Act S87 –  leaving litter  and S34 – Duty of care as respects waste (e.g. for refuse falling from waste transport vehicles) offences.

Anyone can prosecute

The Environmental Protection Act makes no reference as to who can and cannot prosecute the offences it lays down. This is because under English Common Law, apart from some specific offences reserved for the Director of Public Prosecutions anyone can prosecute  any offence.  Here are the relevant sections of The Prosecution of Offences Act 1985:

Section 3 says that the Director of Public Prosecutions has a duty to take over the conduct of criminal proceedings instituted on behalf of the police and  immigration officers, those made under the Obscene Publications Act, extradition proceedings etc

Section 6. Prosecutions instituted and conducted otherwise than by the Service.

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.

Section 18 says the court can require the convicted offender to pay costs to the person or organisation bringing the prosecution.

A good example is the RSPCA who routinely prosecute people under the Animal Welfare Act 2006.

Highways England can and should prosecute

There is therefore no reason why Highways England cannot prosecute individuals who commit Environmental Protection Act S87 –  leaving litter  and S34 – Duty of care as respects waste (e.g. for refuse falling from waste transport vehicles) offences while driving on their network.

Indeed one could argue that they have an obligation to do so as, under EPA S89(1), they alone have a duty to ensure, so far as is practicable, that the motorways are kept clear of litter and refuse.

We are not a “litter authority”

I have been campaigning since February 2015 for HE to start prosecuting the operators of waste transport vehicles who spill their loads onto the motorways.  They adamantly refuse to act even when presented with incriminating video footage. They justify this stance by saying they are not a “litter authority” and therefore do not have the powers to prosecute.

The term “litter authority” was originally confined to EPA S 88 – Fixed Penalty Notices for leaving litter. Under this section on-the-spot fines can be issued by “litter authorities” in lieu of  a criminal prosecution under EPA S87. The definition of the term “litter authority” for the purposes of that section is such that Highways England falls outside of it.

In 2014 Section 88A was added to the EPA. This enables the government to issue regulations specifying that the person who has a duty under EPA section 89(1) (i.e. to keep their land / highway clear of litter) in respect of the land where the offence is committed can be made a  “litter authority” for the purposes of that section and issue civil law penalties to the registered keeper of a vehicle from which litter is thrown. Potentially therefore regulations could be made which would include Highways England. In the event this did not happen. See Littering from vehicles – defective regulations

The point here is that one does not have to be a “litter authority” (either under S88 of S88A or both) to prosecute under EPA S87 or S34.

DfT reluctantly agree

Eventually I managed to get the DfT admit that that HE could prosecute under EPA S34.

Who can prosecute

Confusion over HE’s ability to prosecute

EPA S87 offence of leaving litter – who can prosecute

Peter Silverman
29th January 2019

 

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