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Waste Transporter

I have been struggling since September 2014 to get Highways England (the Highways Agency as it was then) to accept that they can prosecute the operators of waste transport vehicles who allow their loads to fall onto the motorway. More recently MP Kevin Hollinrake has supported me in this endeavour.

Highways England continue to deny that they can act against these companies.

However under the English Common Law anyone can initiate a prosecution.  “the common law power to instigate private prosecutions is preserved under section 6(1) of the Prosecution of Offences Act 1985 and it is used by a number of organisations who otherwise do not have the statutory power to prosecute” (See 5 The Public Prosecution Landscape and Who can Prosecute).

The  RSPCA  routinely prosecute offences under the Animal Welfare Act.

This means that Highways England could prosecute anyone dropping litter on their network under Environmental Protection Act S87 (Offence of leaving litter) and any waste transport company that allows refuse to fall from its vehicles under EPA S34 (Duty of care as respects waste).

On 23rd September 2014 I wrote to their Lead on Litter pointing this out and asking if the Highways Agency had ever issued proceedings.

Someone else replied on 14th October 2014 saying ” … however duties carried out by the Highways Agency on behalf of the Secretary of State do not include duties of a  ‘Litter Authority’. Instead the Agency relies on the Police who have enforcement capabilities.”

On 11th February 2015 I wrote to the Agency’s then CEO Graham Dalton asking him if they would consider prosecuting waste transport companies under EPA S34.

Their Lead on Litter wrote to me in response to my e-mail of 11th February but failed to deal with this particular point.

I raised the matter again  at a meeting with Highways England on 1st May 2015. I was told that they were seeking legal advice on whether or not they could prosecute.

On 21st May 2015 HE confirmed that “Legal advice has been sought regarding identifying available enforcement powers for a strategic road company.” and on 15th July wrote  “…., legal advice is being sought to establish what if any, enforcement powers transferred to Highways England” (my underlining).

On 16th June 2015 HE wrote to the Information Commissioner saying “Mr Silverman is of the view that Highways England should seek powers to prosecute offending vehicles whereas it is the stated position of the Company that we are a road operator and not a civil enforcement body”.

On 4th July 2015 Andrew Edgington emailed HE Contact Centre reporting waste flying off the top of a waste transport vehicle giving the reg no. asking them to investigate and prosecute.  They replied on 5th July saying “Here at Highways England we are not an enforcement agency. The police are the sole unit in charge of enforcing the rules and regulations on the roads, and are able to prosecute drivers.”

On 22nd July 2015 HE wrote to me to say “We have sought clarification / advice on current legislation”  and again on 31st July saying “As advised previously, we have sought legal advice. I can confirm that this is being investigated but we have not been provided with the date for a response. We are aware of your interest in this area and will come back to you when we are able to do so.”

On 16th September Kevin Hollinrake MP wrote to HE Chief Executive Jim O’Sullivan, questioning why it was taking so long to get legal advice on such a straight forward matter.

He received a response on 2nd November from Mike Wilson, HE’s Chief Engineer, which said in reference to prosecuting:

“ We are currently considering this option, and it may play a part in our approach to tackling littering on the network in the future”

However when Kevin Hollinrake wrote to Jim O’Sullivan referring about this he received a reply on 14th December saying:

“I am surprised to be told that we have the authority to prosecute for litter since it was my understanding that we didn’t. I have asked our General Counsel to check the matter thoroughly and he will respond to you in the next few days”.

Kevin received an e-mail from Tim Reardon, HE’s General Counsel  on 11th January saying “Highways England is not a prosecuting authority” implying, but not explicitly saying, that they could not therefore prosecute.

Kevin has replied pointing out that you did not need to be a prosecuting authority to prosecute citing the RSPCA . He has asked Mr Reardon:

Do you not agree therefore that HE does after all have the power to prosecute offences committed on its network under both EPA S34 (duty of care as respects waste) and EPA  S87 (offence of leaving litter)?

See recent correspondence

Watch this space for episode 18 of this long running saga.

[In the meantime HE patrol officers have been issuing lorry drivers with fines for parking on slip roads.]

Peter Silverman
15th January 2016

 

 

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