I am urging Highways England to prosecute offences under EPA  S87 of the Environmental Protection Act – Offence of leaving litter  and EPA S34 – Duty of care as respects waste (e.g. for refuse falling from waste transport vehicles).

Even though I raised the matter in February HE say they are still awaiting legal advice on the matter. In the meantime they continue to deny they have powers to prosecute these offences.

I believe they do have such powers – here’s why:

The Prosecution of Offences Act 1985 is the relevant piece of legislation.

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.

In other words, apart from the proceedings listed in Section 3, anyone or any organisation in England and Wales has the right to bring a prosecution against someone who they believe has committed an offence.

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

Under S18 of the Prosecution of Offences Act 1985 the court can require the convicted offender to pay costs to the person or organisation bringing the prosecution.

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

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.

I have suggested this to them in 20th February. On May 1st I was told they were seeking legal advice but so far they have not received any. In the meantime they continue to deny they have any powers to prosecute these offences in correspondence with road users.

Peter Silverman
30th July 2015