Wednesday, 25 September 2013

What is Litter? An interesting question.

Litter is a menace.  Many places are littered with discarded materials.  It is unsightly; can result in unhygienic conditions and costs are incurred in cleaning it up.  The Environmental Protection Act 1990 section 87 provides for an offence of leaving litter.

Section 87(1) states - A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

The offence may be committed in any place in the area of a principal litter authority which is open to the air.   The offence may also be committed in certain covered places provided the place is open to the air on at least one side AND the public has access to it, with or without payment.  A further point is that it is immaterial whether the litter is deposited on land or in water.

There are some situations where an offence would not be committed.  On this, see section 87(4A).

The offence is triable summarily (i.e. in the Magistrates' Court) and, upon conviction, the maximum punishment is a level 4 fine (£2500).  The surcharge would be added to that and, possibly, costs.

The Daily Mail 25th September - published the story of two men who have been convicted at Thames Magistrates Court of the offence for spitting in a public place. 



The Daily Mail commences by saying:  'Yobs who spit in public can now be prosecuted for littering after a council won a landmark legal ruling.  In a test case, two men failed in their challenge of a local authority policy to impose £80 on-the-spot fines on them.  Magistrates upheld the council’s decision that spitting could be prosecuted under anti-litter legislation – giving a green light for other councils to follow suit.'

The decision of a Magistrates' Court is NOT a landmark legal ruling.  In fact, it is very arguable that the challenge to the local authority policy ought to have succeeded on the basis that 'spit' should not have been held to be 'litter.'

The Act does not exhaustively define the word 'litter' which is an ordinary word of the English language.  There is nothing in the Act to suggest that 'litter' is to be given some other special meaning - Brutus v Cozens [1973] AC  854,  [1972] UKHL 6.   However, there is a partial definition in section 98(5A) -

(5A)  “Litter” includes - (a) the discarded ends of cigarettes, cigars and like products, and (b) discarded chewing-gum and the discarded remains of other products designed for chewing.

The items listed in 5A would appear to be within the ordinary meaning of 'litter'.  The partial definition is, of course, aimed at removing any doubt which there might have been as to those items of commonplace litter.   5A was inserted into the Environmental Protection Act 1990 by section 27 of the Clean Neighbourhoods and Environment Act 2005 and the explanatory notes to the 2005 Act state that 5A was inserted to clarify the meaning of litter for practitioners.  .

The government's view as to what constitutes litter is in the Code of Practice on Litter and Refuse  at Part 1 Para 5.0. 

The meaning of 'litter' was considered by the High Court in Westminster City Council v Riding (1995) 94 LGR 489 - a case under the Environmental Protection Act 1976 - where it was held that commercial waste bagged for collection can be litter but is not necessarily so.


The Mail's article gives a further indication that the law does not extend to spitting.
 
Moves to tackle spitting have won support from ministers. Local Government minister Brandon Lewis said: ‘Spitting is a deeply anti-social and unpleasant practice.  ‘Spitting on Britain’s streets should be as socially unacceptable as dropping litter.’

Communities Secretary Eric Pickles has backed Enfield Council who want to pass a byelaw banning the habit, saying: ‘Spitting on Britain’s streets is not socially acceptable.’

Most right thinking people would probably support a byelaw specifically aimed at spitting.  However, criminal convictions should be based on conduct which is clearly prohibited.  Section 87 is not so clear.

Mens rea?

Is section 87 is a strict liability offence or is mens rea (guilty mind) required.   If it was strict liability then even accidental dropping of something might be within the offence.  'Strict liability' is an extensive topic covering many pages in the legal textbooks and the application of the law can be difficult.  'Throwing down' (section 87) is a deliberate act.  'Dropping or otherwise depositing' might be done deliberately, negligently or even accidentally.

It may be of relevance to this question that the Act makes provision for fixed penalties (section 88).   Fixed penalty notices can be issued where an authorised officer of a litter authority finds a person who he has reason to believe has on that occasion committed an offence under section 87.

As far as I am aware, the point is undecided.  Views on this are particularly welcome.

Links:

Information on Fixed Penalty Notices  - Criminal Law Blog

8 comments:

  1. This is a disturbing and predictable result but not one with which I agree. Only when such a matter is properly defended in court will the arguments become clearer and of course as you rightly say they will not be binding on other courts.

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  2. Several years ago I heard a colleague discussing a successful prosecution for littering by feeding pigeons. The prosecutor had relied on alternative arguments: first that even a temporary depositing was sufficient - that one might leave something somewhere without moving away - and second that the bread or whatever caused material to be left behind by the pigeons in another form. The prosecutor won the day (I am not sure on either ground or both) against an unrepresented defendant but later conceded privately that, in his opinion his case had been 'a bit thin'.

    As well as yet more evidence of how unrepresented defendants can receive appalling injustice from prosecutor or court, these minor cases also illustrate how the criminal justice system's flight from literal to purposive approach really amounts to the abandonment of the rule of law. This week's case seems in a similar vein.

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    1. The actus reus is a throwing down (etc) AND leaving. That raises the point as to when something has been 'left' and, to my mind, a fleeting / temporary deposit would not be left. Of course, IF (and I question it) spit is litter then it would remain there until washed away etc. Normally, with litter in its everyday sense, there would be some evidence of a throwing down and the person walking away or driving away. Then the court could properly say it had been left.

      Of course bread might cause pigeons to further deposit guano but it would not be right to use that as an argument. The throwing down of bread might be litter but not really if the pigeons co-operate and eat it immediately! It would not have been left - would it?

      Ethics alone demand that a prosecutor only advances proper arguments and it is particularly wrong to advance a slender case when the defendant is unrepresented especially before an essentially 'lay' tribunal.

      ' ... criminal justice system's flight from literal to purposive approach ...' - not sure about that. Will think about it.

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  3. In its non-statutory Guidance “Local environmental enforcement – Guidance on the use of fixed penalty notices”, issued in 2007, Defra states “a fixed penalty notice should only be issued where there is evidence of intent; this is to say that someone clearly meant to drop the litter in the first place”. So in Defra’s opinion, mens rea is required.

    With regard to the ambit of the term “litter”, the absence of a statutory definition adds a degree of circularity to the offence of littering now in EPA 1990 s87(1), [i.e. which might be paraphrased “the offence of littering is dropping litter”] which was less apparent in the “three component” version as first enacted, and remains applicable in Scotland,
    “If any person: throws down, drops or otherwise deposits in, into or from any place to which this section applies; and leaves, any thing whatsoever; in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall . . . . . be guilty of an offence.”
    [i.e. “the offence of littering is dropping any thing that causes defacement by litter”].

    In 2009 there was an unreported case of a woman who was issued with a fixed penalty notice by Sandwell Council for feeding bread to ducks, although she is reported to have said “they were eating the bread as quick as I was throwing it”. Either the official issuing the FPN was acting on instructions that this was a strict liability offence but ignored the second limb of “leaving”, or the woman in question availed herself of the “opportunity of discharging any liability to conviction for that offence” without questioning the official further. .

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  4. Could you please define the term 'detrimental to amenities locality' in relation to littering clearing notice for private rear garden? Is empty rabbit hutches, water bucket, wire fencing, Belfast sink, paddling pool, plastic bucket, patio table & chairs defined as litter/refuse/unwanted household items?

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    1. Environmental Protection Act 1990 s92A - the term is not defined but is addressed in the guidance to which local authorities must have regard

      Guidabce

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  5. “opportunity of discharging any liability to conviction for that offence” is this not a form of bribery. Is paying a FPN similar to paying a police officer not to arrest you. It's the same principle, just not too sure how that works in law.

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    1. The principle behind bribery and issuing the FPN may appear the same on the surface, but I would argue that there is no comparison.

      Bribery relies on a threat to do something which is likely to be in some way unpleasant, and which the person receiving the threat can do little about (other than pay the bribe - and even then, their ordeal may not be over).

      An FPN is a method by which a person can accept their guilt for a minor offence and accept a financial penalty. The person is entitled to refuse to pay, and if they don't, will have an opportunity to exercise their right to a fair trial (Human Rights Act).

      In relation to the comment about paying a police officer not to arrest, I think there is a world of difference between being issued with a fixed penalty ticket, and physically handing money to a person.

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