Fixed Pentaly Notice for Littering from car!

[narkedoff]

Hi All

 

As the registered keeper of our family vehicle, I have received as fixed penalty notice for £75 out of the blue for littering from our car, thing is i do not remember the committing the alleged offence ....... The FPN just states a male littering from driver window with vehicle details. any ideas on how to go about this or should i just accpet the FPN! ..... one point of interest is that the "enforcement officer" has desscribed my car as white when it is silver. could this throw doubt on his/her observational powers.

 

I find it strange and annoying that they can threaten court action without positivley identifying who the "culprit" is and just assuming it is the registered keeper.

 

any advice welcome ....... cheers

[lamma]

lots of councils trying this on from time to time. As you are sure it wasn't you deny liability, ask for evidence of who allegedly dropped this litter and what it was exactly. Do NOT go in for a chat under caution - which they will probably try to talk you into doing. They have prove their case, you have no obligation to help them do so.

Lost of newspaper stories of people being done like this and the case collapsing in the rare event in went to court. who issued the FPN and what does it say exactly (minus identfying details of course). what regs does it quote ?

[narkedoff]

Hi Ilama

 

Will check the regs when i get home and post more info, I still find it hard to beleive that a council can issue a FPN on the word of their officer! and presume my guilt without supplying me any other information. This is maddening but the options they give you are take the £75 hit now or face up to £2500 and a criminal record from the magistrates ....... annoying to say the least. even if i was "guilty" of littering i would be inclined to fight this out on a principle of No evidence!

[lamma]

google similar cases. look forward to the details

[narkedoff]

Ok, i jumped the gun a bit, what i have actually received is a form requesting details of the driver at the time of the "alleged" offence.

 

Might be a bit long winder ..... please bearwith me.

 

This form starts off giving me a caution "you do not have to respond to these questions, but it may harm your defence blah blah blah

 

Then requests personal details before going on to thequestions.

 

Question 1 - can you confirm the name and address of the person responsible for the above littering incident? please provide full name address, date of birth ect

 

Question 2 - where youthe registered keeper of the vehicle bearing reg number ***** on the datein question

 

Question - if not who was......... provide details

 

Question 4 - who else is legally allowed to drive this vehicle, in accordance with the insurance schedule. please provide full names, address anddates of birth of all such people

 

Question 5 - who was driving the vehicle on the ******* Please confirm everyone who would have access to this vehicle attheabove specified time and date. please provide full names

 

Question 6 - Who else wasin the car as apassenger at the above specified time anddate. pleas eprovide full details ect

 

Question 7 is there any information that you wish to bring to my attention. ~(this is your oppertunity to bring to the attention of the officer and court, anything you feel is irrelevent.

 

Nicley finish off with an undisguised warning

 

"I must inform you that if it is not possible to determine from youwho the person responsible for the offencewas, then section 33(5) of the environmental protection act 1990 sections 33 & 87 provides that where controlled wasteis deposited from a motor vehicle the person who controls or is in a position to control the use of the vehicle shallbe treated as knowinglycausing the waste to be deposited wether or not they gave any instructions for this to be done.

 

hope this provides more info........ no denying i was driving on the day and on the road and time, i do deny though disposing controlled waste ....... so its take the FPN or risk the magistrates and we know who theywill beleive.

 

Cheers

[JonCris]

The bit starting "I must inform you" was never intended to be used against private motorists & to do so is an abuse of process.

 

It was intended to combat commercial fly tipping so if the firm refused or was unable to ID the driver the firm itself could be held liable but as usual the councils are abusing it in much the same way they are anti terrorism laws

 

As for the rest of the questions they are attempting to obtain a statement outwith PACE. This unlawful so I should respond with the answer that you don't believe the offence took place & anyway you can't remember who was driving it on the day & time in question

 

As for all the questions about your insurance & who has permission to use it refuse to answer telling them it's not relevant & have no duty to give it & only a court could order you to do so. It's none of their business & additionaly were you to give it without consent you could be in breach of the DPA

[lamma]

some councils have tried this 'controlled waste' tack before. From what I recall they no chance as controlled waste is well defined. I think one tried it with an apple core ! (and later quietly dropped the case after waiting a few thousand quid on it). If it was me I wouldn't answer their letter at all. if they have a case against someone it up to them to prove the case. they do not have S.172 powers for this. they have improved by using S.33 (under which the Registered Keeper is presumed responsible in absence of rebuttal) but I seem to recall that an FPN can't be issued for that. The term 'controlled waste is key'. Council have latched onto being able to nail keepers by default. if you don't fight this there will a snowstorm of these being handed out. Also, you didn't do it ! S. 67 ? of pace would apply IF you went in for the interview under caution. I wouldn't go in for it. what other Regs are they quoting besides S.33. Especially on the FPN itself !! Sounds like they are trying to play hardball and may have shot themselves in the foot.

[Rooster-UK]

Question 4 - who else is legally allowed to drive this vehicle, in accordance with the insurance schedule. please provide full names, address anddates of birth of all such people

....Not to mention anyone with insurance of their own, provided they have your permission.

 

Offer them a list of every motorist in the country.

[funkyparott]

Does PACE not state that those charged with the responsiblity of investigating an offence must state that the suspect is entitled to obtain legal advice?

 

In the Police there is something called the PACE +2 caution. This means as well as the caution, you have to tell the person they are not obliged to remain with you and that you have the right to legal advice.

[lamma]

yes. S.67 as above (from memory......)

[JonCris]

Yes they should but they will actually tell you that you don't require legal representation & legal aid is not allowed so if you want help you have to pay because if charged it will be under sec 12 which is a summary offence only trialable in the magistrates court.

 

Those actions that have reached the Crown Court have been appeals

[narkedoff]

Ok all thanks for your replys and advice, I am minded to just ignore the letter from the council requesting details ect . i presume so they can positivley identify somebodyto issue a FPN to. the missus is getting a bit twitchy though in case i do get summoned and found guilty then the penalty would probably be higher.

 

i know this will boil down to my word agains the enforcement officers . from what ive checked out on google it seems the enfforcement officers tend to be beleived over the "accused" .. so much for not living in a police state!

 

However ........ the opening paragraph to this letter is as follows.

 

an enforcement officer witnessed litter, being discarded by the male driver of a vehicle reg *****. the litter was discarded from the drivers side window. The vehicle was a white Ford******* and recent checks have idenified you as the registered keeper.

 

My issue with this statement is that my vehicle is not white it is silver

 

Any opinions on wether this could be counted as resonalbe doubt as to the correct identification?

 

I am tempted to e mail the enforcememt officer, denying the offence and stating that i do not and have never owned a white Ford ****** and request that they check thier records in case my vehicle has been cloned or suggest that their enfocement officer made a mistake in identifying the vehicle and as such could be presumed possible a mistake was made over witnessing any alleged littering.

 

Any thoughts?

[lamma]

do not offer ANY information at all.

[Rob S]

Sending out an FPN to the registered keeper is against Defra guidelines, and to try and say that it was controlled waste that was deposited is a nonsense. Take a look at the attached link as it relates to a very similar case. I started the thread on this site to assist a colleague at work.

 

FPN For Littering - Cigarette Butt Thrown Out of Window, Allegedly. - FightBack Forums

 

You should see all you need to know about this here. The local authority are trying to be crafty by describing the litter as controlled waste because there is a requirement to name the person responsible under this legislation.

[Rob S]

Just a quickie, but I am not sure if the local authority can actually deal with a section 33 offence by means of a fixed penalty. They can for a section 87 offence, but then they have no power under that offence to require the registered keeper to name the person who depositied the controlled waste.

 

Also bear in mind that littering is still a criminal offence so the burden of proof is beyond reasonable doubt.

[funkyparott]

Yes they should but they will actually tell you that you don't require legal representation & legal aid is not allowed so if you want help you have to pay because if charged it will be under sec 12 which is a summary offence only trialable in the magistrates court.

 

Those actions that have reached the Crown Court have been appeals

 

They absolutley should not be telling anyone they don't need legal representation. This would be a very serious breach of the codes of practice. Having said I doubt they would ever admit this in court if asked directly!

 

You are quite right about having to pay for legal advice if not interviewed in a Police Station. This doesn't mean people shouldn't be informed of the fundemental right to legal advice.

 

(having said that, it is not clear whether this is mentioned in the document the defendant received)

 

I wonder how the court would react to a 'litter inspector' in court when cross-examined, asked what PACE says about Contemparaneous note interviews and the requirements set out by PACE? (right to independent legal advice and not having to remain present). I know Police officers who would be tripped up by this.

 

I've not heard this issue being brought up at magistates court, but I was always taught it was a serious breach.

[JonCris]

The reason it's not brought before the magistrates court is because claimants erroneously believe what they are told by the agency. Why would they question those who they mistakenly believe have no reason to mislead them

Edited February 20, 2009 by JonCris

[nick-name]

I always got told that if you drop fruit - such as an apple core, banana skin, it is legal, because that stuff is biodegradable. Is that true that dropping apples cores or peach stones is legal? I do this sometimes, normally aiming for the gutter though.

 

By the way...

 

"I hereby bless the above situation and declare it resolved in peaceful and harmonious ways that bring only blessing and opportunity to all concerned."

 

Say it with total and 100% conviction, then click the button for good measure.

 

[narkedoff]

Hi all,

 

Thanks for your advice, just to update you on how things went.

 

I ignored the letter asking me for details "under caution" and did not hear anything for a number of weeks, i then receieved another letter asking me to attend an interview "under caution" failure of me to do this or provide details of the driver then it would be passed to their legal department for prosecution stating ""I must inform you that if it is not possible to determine from youwho the person responsible for the offencewas, then section 33(5) of the environmental protection act 1990 sections 33 & 87 provides that where controlled wasteis deposited from a motor vehicle the person who controls or is in a position to control the use of the vehicle shallbe treated as knowinglycausing the waste to be deposited wether or not they gave any instructions for this to be done."

As i do not respond well to threats i did reply, declining the oppertunity to attend an interview and pointing out that it was up to the "council" to prove who commited the sed offence not me to prove my innocence. Felling annoyed by the threat of prosecution of depositing a controlled waste i rightly or wrongly stated that if a prosecution was to be brought against me i would be defending on the basis of a "missuse" of legislation and an abuse of power. I pointed out that i was well aware that councils were pushing for the same powers that hold the owner responsible when a speeding offence is commited but at the moment they do not have them!!!

 

anyway, another few weeks passed with me waiting for my court summons, when i recevied a letter reminding me that the council consider littering as a zero tolerance. However on this occasion they were not going to proceed and even though they consider i did commit the offence i was to consider this a "warning not to do it again"

 

so thanks guys for your advice, i didnt roll over and pay up, sometimes standing for principle can work ......... point of interest the same week in my local rag a driver was fined £400 with £360 costs for "depositing a controlled waste" nameley a cigarette butt. The same week a local yob was fined £150 for causing £4000 worth of damage to parked cars, nice to see justice working well in our good country.

[lamma]

various councils have tried this on from time to time - falling back, completely erroneously, to the EPA when their victim doesn't play along with their deception. They are just trying to create a new money machine. Well played narkedoff. I would be tempted to write back and go to town on them for the "they consider i did commit the offence i was to consider this a "warning not to do it again"" That is outrageous, there is no court case and no conviction where and how do they get off making statements and accusations like this. Demand that they withdraw these statements and issue a full apology. And maybe even say that in the absence the council recanting in a clear and unequivocal manner (with 14 days or receipt) that you reserve the right to bring action against them. They are not judge and jury. Head the letter with "Without Prejudice" at the top. Just an idea - but it is completely outrageous that they make these statements and they deserve to be brought to book over them. Arrogance in the extreme and a complete disregard for the law and due process - typical council behaviour in other words.

[JonCris]

This law was never intended to be used for such offences. It was intended to be used in cases of fly tipping but like the police with stop & search the councils are overstepping the mark & abusing the law - give the jobsworths an inch & they'll take miles

[crem]

I agree with lamma on this. Don't accept their "well we think you did it but we'll let you off" stance.

 

I recently had a bank charge applied (£35 !) for a DD going out the same day a credit went in. They implied it went overdrawn because the debit was processed before the credit.

 

They were going to remove the charge "as a gesture of goodwill". I answered no thank you! She was a bit taken aback why I didn't want it so I continued, "you won't credit it back as goodwill, you'll remove it because it is wrong."

 

She took the details again and said she'll check again. So I said fine, I'll leave it with you but I don't expect to see the charge on my account and I don't expect to receive a letter from you saying we'll let you off this time, but don't do it again.

 

I felt much better doing it that way than them being nice to me.

[JonCris]

I think what we citizens should do is set up a sort of neighbourhood watch only instead of watching out neighbours it should be dedicated to watching both the council employees and the police. Then should they commit an offence such as speeding, disregarding yellow lines or even littering the evidence could be submitted to the local media

 

So if anyne decides to do this remember to carry some form of camera at all times (councils & police love photo's;)) & record the date & time of the incident then submit evidence through your new neighbourjhood watch scheme

[lamma]

In areas were councils try this on go to the local councils offices and check to see if the smokers (council employees) are outside dropping fag ends all over the place. This actually happened at one council when a victim videod the council employees littering outside their own office and then marched in to see her accuser and confronted them on the issue. We should not let then get away with this "judge and jury but the council is innocent" rubbish.

[narkedoff]

I am definately inclined to write back to the council, undecided yet wether to demand an appology and a reraction of their letter or to question wether or not they are abusing their powers with their threatograms they send out.

 

Clearly their letter "under caution" demanding that i either admit the alleged offence or tell them who did it and accept a £75 fixed penatly or be charged under a different section of the environment protection act and face a £5000 fine or up to 6 months in jail is purley and simply designed to intimmidate "citizens" into coughing up £75 ......... incidently the revenue raised by the FPN's go staight into council coffers so no vested interest there!! (i think not) whereas if they prosecute through the court then the fine goes to the treasury ... I feel a freedom of information request coming up just to see how many people they do prosecute and how many fpns they get paid in full .......... could be a nice can of worms to open i think