A summary of DEFRA’s guidance for local authorities on the use of Fixed Penalty Notices

To drop litter is a criminal offence.

If a fixed penalty notice is issued for a littering offence, there must be appropriate and sufficient evidence, to a criminal standard of proof, to support the prosecution of the original offence in the magistrates’ court, should a fixed penalty notice go unpaid.

The assumption should be that the final action of the issuing authority, unless there is very good reason otherwise, will be prosecution of the alleged offender for the original offence in the magistrates’ court. A lack of resources to do this should never be considered to be a valid reason.

Local Authorities should have an effectively planned, resourced and endorsed enforcement strategy in place, alongside an operational policy that translates the aims of the enforcement strategy into a set of rules for staff to follow when using the relevant powers.

This should say how the authority will deal with second offenders, vulnerable adults (homeless and mentally ill) and the under 18s.

If the authority is to offer an ‘informal’ appeals process (there is no legal requirement for one), it should set out the grounds when an appeal will be considered and how it will be decided.

If the authority is to offer deferred payment or payment by instalments for fixed penalty notices, it should set out in what circumstances these terms will be offered, along with its policy should someone default on any agreed payment scheme.

The strategy will need to set out who is to issue any fixed penalty notices, how these staff will be managed, how the back office support will be provided to ensure that any fixed penalty notices that are issued are tracked and managed, from issue to payment, or following non-payment onto prosecution and the legal staffing that will be required.

With the agreement of the chief police officer, an authority could use police community support officers to issue fixed penalty notices for some of the offences, or it could authorise contracted external staff to undertake the work on its behalf.

Authorities should monitor the percentage number of fixed penalty notices that are paid and try to achieve a minimum payment rate of 75 per cent.

Records should be kept of the number of fixed penalty notices issued, the resulting receipts and the number of cases pursued through the courts. This information is legally required on an annual basis by Defra for monitoring purposes.

The authority’s press office could issue a release to the local media, giving details of the prosecutions and the fines and costs awarded – ’naming and shaming‘ successfully prosecuted offenders.

If the policy is for officers  to work in pairs it should say so, also, if it is policy for an authorised officer only to undertake fixed penalty notice enforcement in the company of a police community support officer, again it should say so.

The wearing of a uniform, including a high visibility jacket is considered to be good practice except where there are compelling reasons for ’covert‘ enforcement.

The operational policy should set out how evidence is to be collected, managed and stored to ensure that it is done so in line with the requirements of the Police and Criminal Evidence Act (PACE) 1 and relevant Codes.

It should set out the authority’s policy for dealing with people whom the officer suspects is giving false details and threatening behaviour.

Birmingham City Council and the  London Borough of Southwark  use fixed penalty notice income to purchase uniformed police officer time. This allows enforcement officers to go out on foot patrol with a police officer and obtain the correct details of offenders and deal with any wider potential breach of the peace issues.

Written evidence should be gathered in a numbered notebook with numbered pages using a ball point pen.

The information recorded should include:

• a description of the offence that is alleged to have taken place;
• the view of the enforcement officer that witnessed the offence;
• the date;
• the time;
• the name and address of the offender;
• the age of the offender;
• a description of the offender and whether they will be recognised again; and
• the weather and light conditions at the time

In addition information should be recorded which would answer the following questions considered necessary to prove an offence was committed:

• Was a person witnessed littering?
• Did they drop, throw down or otherwise deposit litter?
• What was littered?
• Was the person identified as the person who dropped the litter?
• Was the location where they dropped litter an area where it is an offence to litter, for example, an area which is open to the air?
• Having littered, did they leave it?
• Did the person who was witnessed littering have the permission of the landowner to do so?
• Was the person of a suitable age to be issued with a fixed penalty notice?

Photographs may be used in support of written records.

It is considered good practice, having approached an alleged offender, and having obtained their name and address (and date of birth if appropriate) to caution them in all but the most straightforward of offences, as follows:

“You do not have to say anything. But it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.”

They must be asked if they understand the caution and if they do not, it should be broken down into its three main parts and each explained in simple terms.

Any answers or comments that are made by an alleged offender can then be used in the magistrates’ court should any offence end in prosecution.

Strictly speaking the unintentional dropping of litter is an offence but DEFRA advise that a notice should only be issued if, after drawing the matter to the person’s attention, he then fails to pick it up.

In practice, the overwhelming majority of environmental offences are ‘summary offences’, this is to say they are criminal offences that are tried summarily, in front of the magistrates.

On very rare occasions a few of the environmental offences will be considered to be “indictable offences”. An example of this would be a graffiti offence where the cost of the ‘criminal damage’ exceeded £5,000 and where the maximum penalty for those aged 18 or over is ten years imprisonment if tried by a jury in a crown court.

Small littering offences such as a dropped crisp or bread dropped while feeding ducks are best ignored as pursuing them might bring the process into disrepute.

Repeat offenders should, it is felt, be prosecuted and not offered a fixed penalty notice. If the notices are issued by post then a check for any previous offence can be made before the notice is issued and appropriate action taken. If the notices are issued on the spot then officers would need to be able to access a database of previous offenders by phone or with a hand held device.

If someone is non-cooperative, for example is unwilling to give their details, they should be reminded that failing to do so constitutes a further offence and, should they fail to cooperate, that they will be prosecuted in the magistrates’ court for the offence that they are alleged to have committed, along with the further offence of failing to provide their details. If they then cooperate, it is considered appropriate to issue a fixed penalty notice.

However, if they don’t, the details of the offence should be recorded, enquiries as to their identity undertaken, and prosecution pursued where possible.

Those who are violent or  aggressive  should not be offered a fixed penalty notice. If their identity can be secured, without the enforcing officer putting themselves at risk, this should be obtained. The details of the offence, along with a full account of the exchange that took place when challenged, should be recorded in the notebook and prosecution pursued in the magistrates’ court where the events of any ‘confrontation’ should be put before the court so that the magistrates are aware of the aggravating circumstances

The Clean Neighbourhoods and Environment Act 2005 makes it an offence for a person, who an enforcement officer proposes to give a fixed penalty notice to, to fail to give their name and address when required to do so, or for them to give false or inaccurate name or address details.

A fixed penalty notice should only be offered where the enforcement officer is confident that the correct details have been provided.

By attempting to mislead an enforcement officer an offender would have effectively lost the ‘convenience’ of a fixed penalty notice.

Enforcement officers should  always ask for an alleged offender’s home postcode first, as this is often harder to make up and if they do go on to give a false name and address there is every chance that the postcode was correct and follow up enquiries can be made.

Further, an enforcement officer can ask an alleged offender if they have any identification on them – however, this does not have to be provided.

Newcastle City Council has a system where an enforcement officer can phone into the office to check someone’s details against the electoral register or with council tax records.

When Gedling Borough Council are enforcing around a school, enforcement officers go into the school and check a young person’s identity with the staff.

Enforcement officers do not have the power to require someone alleged to have committed an offence to give their date of birth.

The Vehicle Licensing Agency (DVLA) Web Enabled Enquiry System (WEES) provides authorised local authorities round the clock access to the DVLA’s vehicle keeper databaseto gain offender details.

The only circumstances when it is going to be appropriate to issue a fixed penalty notice to someone alleged to have thrown litter from a car is when they have been properly identified as responsible for the litter, or if at some later date they admit to the offence under caution.

Gedling Borough Council has taken a tough line on litter from vehicles.  If  an officer  is able to get a good description of the alleged offender, having obtained the vehicle keeper details from the WEES, they will visit the address where the vehicle is registered and see if there is someone at the address that matches the description. If there is they will interview them. Subsequently, a fixed penalty notice is issued through the post. If the registered keeper is from outside of the Borough, rather than visit the address a letter ‘under caution’, detailing the alleged offence and the potential consequences, along with a series of questions, is sent to the keeper’s address. If the registered keeper replies and admits the offence then a fixed penalty notice is issued; if not, the authority considers its next step.

Reference should be made to  Defra’s publication, ‘Issuing Fixed Penalty Notices to Juveniles”.

Enforcing against children under ten, is simply not an option. A child under ten is below the age of criminal responsibility, and in the eyes of the law, has committed no offence

It is  a political decision for the authority to decide if it will take e enforcement action against people  under 18.

Authorities have a duty to ensure that they are acting in accordance with the Children Act 2004; this requires children’s service authorities, including local authorities, ‘to discharge their functions having regard to the need to safeguard and uphold the welfare of children’.

Magistrates are often reluctant to give a young person a criminal record, particularly for the more minor of offences.

However, as with the issuing of any fixed penalty notice, if an authority goes down the route of issuing them to young people and they go unpaid, prosecution in the youth court should always be the presumed next course of action, unless there is good reason not to do so.

Parents and guardians are not responsible in law for paying a fixed penalty notice issued to a young person in their care. If, however, a young person is successfully prosecuted in the youth court and they are punished with a fine, the parent or guardian becomes responsible for payment

It is considered sensible practice to develop separate approaches to those aged 10-15 years of age and those aged 16 and 17.

These notes are based on DEFRA’s Guidance on the use of fixed penalty notices

Also see Offence of leaving litter, prosecution and Fixed penalty Notices – S87 & S88 of the EPA