Recent Posts

People can continue to litter from here with impunity

Summary

Since 2012 the London Boroughs have had the power to issue a civil law fine to the registered keeper of a vehicle if litter was seen being thrown from it.

In April 2018  similar powers were extended to the rest of the UK. However they were crafted in such a way as to exclude offences committed on the motorways and certain trunk roads.  I suspect this was done at the behest of Highways England so that they could continue to distance themselves from litter enforcement.

Parliament was mislead on this deficiency in the Regulations when they were approved in both the Commons and the Lords.

I have written to the Prime Minister to point out that by DEFRA minister, Therese Coffey MP, knowingly  misled MPs.

In London (from 2012)

Section 24 of the London Local Authorities Act 2007 (amended in 2012) confers powers on borough councils in London to impose a penalty charge on the owner of vehicles from which litter is thrown. Because of a drafting error in the 2007 Act these powers did not come into force until 2012.

An enforcement officer has to show, to the civil standard of proof (i.e. balance of probabilities) that litter was thrown from a vehicle. A penalty charge notice is a civil fine which, unlike a criminal penalty, does not carry the risk of a criminal prosecution, and therefore does not require the offence to be proven to a criminal standard of proof.

In the rest of England  (from April 2018)

Section 154 of the Anti-social Behaviour, Crime and Policing Act 2014  amended the Environmental Protection Act, by adding section 88A to it. This enabled the government to introduce regulations extending these powers to the rest of England.

S88 – Fixed penalty notices for leaving litter already gave the power to councils to issue on-the spot fines for conventional littering.  These notices fall under the criminal law as the penalty notices are in lieu of a criminal prosecution under EPA S87 – Offence of leaving litter.

S88A – Littering from vehicles: civil penalty regime is fundamentally different from S88 in the following respects:

It is enabling legislation. Regulations needed to be put in place before penalty notices could be issued.

Regulations can only empower “authorised officers” of bodies who have the statutory duty under S89(1) of the Environmental Protection Act to keep the highway / land where the offence took place clear of litter to issue the penalty notices.

For offences committed on the highway this means Highways England (for all motorways and some trunk roads) and the relevant local authority (for all other highways).

Following sustained pressure from Lord Marlesford the government finally drew up draft regulations in 2017. These were circulated by DEFRA’s in an April 2017 consultation document.

After approval by both Houses of Parliament they came into force as The Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018  which said:

3.  In these Regulations, a “litter authority” means—

(a) a district council in England;

(b) a county council in England for an area for which there is no district council;

(c) the Council of the Isles of Scilly.

4. – (1) A litter authority may give a penalty notice to a person who is the keeper of a vehicle if the condition in paragraph (3) is met.

(2) A penalty notice is a written notice requiring the person to pay a fixed penalty (see regulation 6).

(3) The condition is that the litter authority has reason to believe that a littering offence has been committed in respect of the vehicle on the authority’s land.

(4) The authority’s land is the land in respect of which the litter authority is under a duty under section 89(1) of the EPA 1990 (duty to keep land clear of litter etc.).

Offences committed on the motorways were excluded

However as:

Highways England does not fall under any of these three headings in section 3 above and,

They are  the sole body with the statutory duty to keep the motorways and some of trunk roads on their network clear of litter and,

Only bodies with that duty  in respect to the highway / land where the offence takes place can issue the new penalty notices.

…. the Regulations are not applicable on the motorways and those trunk roads where HE have the S89(1) duty.  Even if they were inclined to do so the relevant local authority could not act on behalf of HE.

This could have been avoided if the regulations had defined a “litter authority” as: “Any person under a duty under EPA section 89(1) in respect of the land where the offence is committed or their  authorised officer”.

Why motorways were excluded

Highways England, and their predecessor Highways Agency, have always adamantly refused to accept they have the powers to prosecute people seen littering on their network and, more importantly, the operators of waste transport vehicles who spill their loads onto it – a line consistently supported by the DfT.

HE like to claim that this is because they are not a “litter authority”. It is true that they are not a litter authority for the purposes of EPA S88 – Fixed penalty notices for leaving litter  but there is nothing to stop them prosecuting anyone under EPA 87 – Offence of leaving litter or, more importantly, under EPA S34 – Duty of care etc. as respects waste e.g for refuse spilled from waste transporters. They choose not to do this.

It’s not surprising that Highways England / DfT would not have wanted HE to become a litter authority for the purposes of the new EPA S88A. They would no longer have been able to use the mantra “we are not a litter authority – nothing to do with us“.

How could this be done without Parliament realising that the new regime would not apply to the motorways etc.

How Parliament was duped  over the exclusion of the motorways

The answer, it seems, was to imply that the local authorities would be able  to issue the new civil penalties on the whole of Highways England network (the Strategic Road Network) including the motorways when in fact they could only do this on those HE  trunk roads where the local authority retained the EPA S89(1) duty to keep them clear of litter.

So in para 4 of the consultation document DEFRA wrote:

To maintain parity, rather than give new enforcement functions to Highways England in isolation, we propose that district councils should remain responsible for all littering enforcement (criminal or civil) on the Strategic Road Network.

When MPs were asked to approve  the regulations  in Parliament on 31st January 2018 DEFRA minister Therese Coffey said:

“ …. For our highways, and particularly our strategic road network, Highways England has an arrangement with the litter authority, whereby the litter authority is still responsible for clearing the litter from that side. It is perfectly possible for councils to work closely with Highways England once they have these powers, to use the camera footage that will be available to try to tackle and identify those who litter”…..”

[Please refer to the exchange between Vick Ford MP and  DEFRA minister Therese Coffey which  can be read here ]

When the Regulations were debated and approved in the House of Lords  on 1st February 2018. Baroness Jones of Whitchurch asked:

Also, am I right in saying that responsibility for litter on the side of motorways has transferred to Highways England? If so, will it have the same powers to catch and fine drivers throwing litter out of car windows, which again is a real blot on our landscape?

The question was not answered during the debate neither did Maggie Jones receive a written response as is the normal practice in such cases.

Parliament was duped.

My complaint to the Prime Minister

I therefore wrote to Prime Minister, Theresa May, on 4th March 2019 with a formal complaint that Therese Coffey MP, misled Parliament by failing to point out that motorways etc were excluded from the Regulations. Under 1.3(c) of the Ministerial Code (issued by the Prime Minister) Ministers who knowingly mislead Parliament are expected to offer their resignation.

On 29th April, dissatisfied by the way my complaint was being given the pass-the-parcel treatment,  I wrote to Sir Mark Sedwill, the Cabinet Secretary, with a copy of all of the correspondence asking him to ensure that matter was drawn to a prompt conclusion. On 23rd May I received a letter from a Correspondence Officer at No 10  saying “we are unable to add anything further to the Department’s (i.e. DEFRA’s) reply (of 26th March)”.

Can all councils issue the new penalty notices?

I had been concerned that:  “(a) a district council in England”; and “(b) a county council in England for an area for which there is no district council” did not cover the whole country as they did not include those unitary authorities which were once, and I assumed were no longer, district councils i.e councils that are subsidiary to county councils in a 2 tier arrangement. 

Having spent a considerable time studying the evolution of local government outside London I now realise that these councils are still legally district councils.

Dash-cam footage cannot be used in evidence

Dash-cam footage even if it clearly shows the litter being thrown out of a vehicle and the number plate cannot be used as evidence of an offence unless the camera has been installed by the council.

This is because Section 20 of the Regulations says that a record produced by a recording device has to be certified by a person authorised to do so by the litter authority which installed it.

A huge missed opportunity.

How the regulations work

Public service vehicles, taxis and private hire vehicles are exempt from liability for a civil penalty notice if the offence is committed by a passenger. The Regulations also provide for businesses engaged in the hiring of vehicles to appeal a penalty charge notice in connection with one of their vehicles by providing evidence that the vehicle was not being kept by the business at the time of the offence by virtue of the relevant vehicle hire agreement.

Those who receive a civil penalty notice will have a right to first make representations to the council under a number of grounds set out in this instrument (e.g. that the person was not the keeper of the vehicle at the time of the offence, or that the offence was not committed etc.) If this does not resolve the matter they will then have a right to appeal the civil penalty notice to an independent adjudicator. The Traffic Penalty Tribunal England and Wales has agreed to act as the independent adjudicator for this enforcement regime, funded via a proportion of each civil penalty notice issued.

The default civil penalty notice will be set at the same level as the local fixed penalty for littering offences. Councils can choose to set the level for both the fixed penalty and the civil penalty notice locally, within a range of £65 to £150, with a default of £100.

Penalties are payable within 28 days. Councils may choose to offer an early-payment incentive, which reduces the civil penalty to £50 if paid within 14 days. If the penalty is still unpaid after 28 days (clock paused during any appeal proceedings), the penalty can be increased by 100%  and it becomes recoverable as a civil debt or as if payable under a county court order. This can be registered with the Traffic Enforcement Centre at Northampton Crown Court.

Recording devices can be used to collect evidence by someone authorised to do so.

The London experience 2012 – 2017

 

Comments are closed.