Author Topic: FPN - Section s33. s87 - Name and address inside bin bag as evidence only  (Read 642 times)

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ello91

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Hello,

Few days ago I was sent a letter in the post from Newham for:

"Interview under caution" for Environmental Protection act 1990 s33, s34, s87.

Containing questions about a bin bag being placed outside, I replied to all the questions with "no comment" and that i normally dispose of all rubbish during the timed collection hours, i did not admit guilt or acknowledge the rubbish as mine.

On this occasion, Enforcement officers had gone through bin bags and found my name and address, they did not witness me place it there or directly approach me for this FPN, everything has been through post or email assuming i placed it.

Do I have any chance of appealing this due to lack of evidence? or simply having your personal details inside rubbish is enough to be at fault?

This is there response after I answered the interview questions:

on this occasion, having reviewed your answers, I have concluded this matter can be dealt with by service of a Fixed Penalty Notice (FPN),

All householders, including yourself have a Duty of Care under Section 87 of the Environmental Protection Act 1990, to ensure that any waste generated at your property is disposed of legally and responsibly, Upon looking at the evidence in exhibit JM001S you have not disposed of this legally .


Can anyone help? I've searched online and not found much information regarding this type of situation.

only way to respond to this is as "Representations" or should I just pay the fine and avoid any court issues?
« Last Edit: September 11, 2023, 05:57:06 pm by ello91 »

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cp8759

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #1 on: September 11, 2023, 06:41:17 pm »
I've sent you a PM.

If you want to contest this, you can ignore the FPN and wait for the court summons. You will then be able to plead not guilty and it will be for the council to prove, beyond reasonable doubt, that you are guilty.

I've had a local authority solicitor openly admit to me that they just try it on knowing that most people don't know the law, and if you simply turn up to court on the day they drop the charges as they have no evidence.
I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

andy_foster

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #2 on: September 11, 2023, 07:35:56 pm »
With most minor legal issues, there are 2 parts - what does the applicable law say, and when happens in practice.

For example, if in practice the prosecution invariably drop the case if you blink first, the law is of little consequence.

As has been said, there is currently nothing to appeal - you can accept their offer of an out of court disposal, or you can decline/ignore it and they can subsequently prosecute you or not.

As far as I can tell, their comment about s. 87 EPA 1990 is a big fat lie (specific legal term) - actual legislation here. However, whether or not their pants are on fire has little bearing on whether or not they can prove beyond any reasonable doubt that you committed the actual offence created by s. 87 (as opposed to the one they made up to try to intimidate you).

In a criminal trial, the court have to be certain beyond any reasonable doubt that the accused committed the offence. This is not quite the same as the flawed belief that the prosecution must prove their case beyond any reasonable doubt. The way that a trial works (in theory) is that the prosecution present their case (evidence and legal argument) and then the court decide whether or not there is a case to answer (whether they are satisfied on the balance of probabilities that the accused is guilty). The defence then present their case, and the court can take such inferences as might be proper from the accused's refusal to give evidence, although they cannot convict on inference alone. If at the end of the defence's case they are satisfied beyond any reasonable doubt that the accused is guilty, they will convict.

For future reference (doesn't help you now), if you're going to seek legal advice, do so before doing something that could potentially paint you into a corner.

"No comment" in an interview under caution can give rise to the inference that if it wasn't you, you would have said so".
However, if you had declined to answer until such time as you had obtained legal advice, that cannot be held against you.
In relation to a note inviting you to incriminate yourself, I would not consider that to be an interview until such time as I responded, which would be sometime around "never" - unless I had some defence that I wanted to set out at the earliest opportunity. I do not believe that ignoring the letter could have been held against you.

I would suggest that if material addressed to you was found in illegally deposited litter, that raises a case to answer that it was you who deposited it. On its own it is not proof beyond any reasonable doubt, but combined with inferences that a court might make of your "no comment" "interview", it could be. The obvious questions is, if you didn't deposit the litter, what reasons might you have had for declining to comment (other than bloody-mindedness).
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cp8759

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #3 on: September 11, 2023, 09:01:05 pm »
I would suggest if you're going to trial, you need to cross-examine the council witness who found the evidence. They will not be able to give any positive evidence to show that you physically placed the litter there, and I suspect that if you object to their statements being read out in court that might be enough for the council to fold.
I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

Southpaw82

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #4 on: September 11, 2023, 09:04:53 pm »
I would suggest if you're going to trial, you need to cross-examine the council witness who found the evidence. They will not be able to give any positive evidence to show that you physically placed the litter there, and I suspect that if you object to their statements being read out in court that might be enough for the council to fold.

If they canít give any positive evidence (which one would expect to be give in evidence in chief, either orally or via a s 9 statement) why would you cross-examine them? If the crucial evidence hasnít been given, you donít want to them give them the opportunity (in cross or in re-examination) to then give it.

ello91

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #5 on: September 11, 2023, 09:23:43 pm »
Thank you for all your responses,

Unfortunately I was silly not to ask for advice sooner and have never been in a legal situation, so presumed the reason they did not immediately send a FPN but instead a Interview letter, was to just scare people with these questions into admitting guilt when they lacked evidence, I thought "no comment" would protect me from saying anything to incriminate myself, weather innocent or not and they would not pursue it further. at least have learned more about the law in this thread.

It also mentioned if I did not respond within 7 days, they would send a Fixed Penalty notice instead.

cp8759

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #6 on: September 11, 2023, 10:07:25 pm »
If they canít give any positive evidence (which one would expect to be give in evidence in chief, either orally or via a s 9 statement) why would you cross-examine them? If the crucial evidence hasnít been given, you donít want to them give them the opportunity (in cross or in re-examination) to then give it.
We'd want to see the statement first, but I'm sort of assuming (dangerous I know) that they'd claim the rubbish was placed there by ello91 because of the contents they found, so you'd then want to ask them how they know that ello91 personally put the items there rather than some other person in their household, a disgruntled neighbour or whoever else. If in answer to a direct question about that the prosecution witness can't give a credible answer, their case should fall flat on its face.

Of course I'm starting from the premise that the officer isn't going to just lie and claim he's seen something he or she hasn't seen at all.
I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

Southpaw82

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #7 on: September 11, 2023, 10:13:22 pm »
We'd want to see the statement first, but I'm sort of assuming (dangerous I know) that they'd claim the rubbish was placed there by ello91 because of the contents they found, so you'd then want to ask them how they know that ello91 personally put the items there rather than some other person in their household, a disgruntled neighbour or whoever else.

Just make the submission that thereís no evidence beyond the presence of the defendantís name and address in the bag. Itís all tactics and experience but thatís probably the route Iíd go down, all other things being even.

cp8759

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #8 on: September 11, 2023, 10:15:19 pm »
Unfortunately I was silly not to ask for advice sooner and have never been in a legal situation, so presumed the reason they did not immediately send a FPN but instead a Interview letter, was to just scare people with these questions into admitting guilt when they lacked evidence, I thought "no comment" would protect me from saying anything to incriminate myself, weather innocent or not and they would not pursue it further. at least have learned more about the law in this thread.
In other countries it is indeed safe to say nothing as there is no law on adverse inference, there is much information online about how it's best to say nothing at all and that is good advice for instance in the US.

Over here, it's far safer to avoid being interviewed under caution in the first place, which is why the police have a power to arrest people in order to interview them (but obviously the council has no such powers).

I'm not sure that a paper questionnaire could be relied upon for the purposes of an adverse inference. Looking at section 34 of the Criminal Justice and Public Order Act 1994 it mentions "on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed", presumably there's something somewhere the disapplies the constable requirement for local authority investigations?
I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

cp8759

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #9 on: September 11, 2023, 10:17:19 pm »
Just make the submission that thereís no evidence beyond the presence of the defendantís name and address in the bag. Itís all tactics and experience but thatís probably the route Iíd go down, all other things being even.
I don't disagree, but I'd want recommend that once the summons comes through @ello91 asks for the initial details of the prosecution case so that we can confirm this is the best tactic.
I practice law in the Traffic Penalty Tribunal, London Tribunals, the First-tier tribunal for Scotland, and the Traffic Penalty Tribunal for Northern Ireland, but I am not a solicitor nor a barrister. Notwithstanding this, I voluntarily apply the cab rank rule. I am a member of the Society of Professional McKenzie Friends, my membership number is FM193.

Quote from: 'Gumph' date='Thu, 19 Jan 2023 - 10:23'
cp8759 is, indeed, a Wizard of the First Order

Southpaw82

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #10 on: September 11, 2023, 10:33:33 pm »
I'm not sure that a paper questionnaire could be relied upon for the purposes of an adverse inference. Looking at section 34 of the Criminal Justice and Public Order Act 1994 it mentions "on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed", presumably there's something somewhere the disapplies the constable requirement for local authority investigations?

Section 34(4): ďThis section applies in relation to questioning by persons (other than constables) charged with the duty of investigating offences or charging offenders as it applies in relation to questioning by constables; and in subsection (1) above ďofficially informedĒ means informed by a constable or any such person.Ē

andy_foster

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #11 on: September 11, 2023, 10:53:03 pm »
To back up a few posts, and perhaps surprisingly to those of you familiar with "witness statements" from Private Parking Companies, a witness statement consists solely (other than the declaration(s)) of statements of fact witnessed b directly by the witness, or in certain cases where clearly identified as such, provided by a third party.

If a witness statement said that the witness knows that X done it because he (the witness) found an envelope with X's name and address in the bag, that is evidence of two things - that the witness found an envelope with X's name and address on it in the bag, and that the witness has a demonstrable disregard for truth as evidenced by the declaration on the witness statement.

You do not need to call a witness to challenge what is clearly conjecture.
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H C Andersen

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Re: FPN - Section s33. s87 - Name and address inside bin bag as evidence only
« Reply #12 on: October 13, 2023, 10:29:53 am »
IMO they are incorrect as regards the law and its enforcement.

https://www.gov.uk/government/publications/household-waste-duty-of-care-fixed-penalty-notice-guidance/guidance-for-local-authorities-on-household-waste-duty-of-care-fixed-penalty-notices

https://assets.publishing.service.gov.uk/media/6274d74bd3bf7f5e3ade6090/Waste_duty_of_care_code_of_practice.pdf

Householders' Duty of Care as regards waste is s34(2A) (which actually applies to 'occupiers' not householders), not s87, which is litter-related.