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Litter Fine
frankspencer
post Mon, 23 Mar 2020 - 22:11
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Hi,

I was in the town center today and as i stood outside a shop eating my sandwich i noticed a pigeon hobbling past me looking for food so i threw him a piece of bread which he ate.

Within 30 seconds i had an enforcement officer come over and tell me he was issuing me with a £150 for littering. I was absolutely gobsmacked and initially refused to give my details over.

He said that would be an offence which would incur an extra fine plus he would call the police i gave him my name and address.

He then issued me with a fixed penalty notice and i left.

After arriving home i have noticed on the ticket that he has written the time as 01.48. Now he hasn't written AM or PM so im treating the time as a 24 hour clock in which case he is stating the offence was committed in the early hours of the morning which is completely wrong.

Can i challenge this on the grounds that the offence(if you can even call it that) did not occur at the time written.

thank you
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post Mon, 23 Mar 2020 - 22:11
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The Rookie
post Tue, 24 Mar 2020 - 07:27
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No. What is on the fixed penalty would be irrelevant if it went to court, and a bench will decide you knew full well when it happened and could have been in no way disadvantaged anyway.

More pertinent, is throwing a piece of bread for an animal to eat (which it does) littering?
The EPA 1990 S87
http://www.legislation.gov.uk/ukpga/1990/43/section/87
QUOTE
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.

Even if biodegradable bread is litter, there was no intent or actual leaving of it, unless you've contravened a byelaw?

This should really be in the speeding and other criminal cases forum, i'll ask a mod' to move it for you.


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frankspencer
post Tue, 24 Mar 2020 - 09:38
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I wasnt really sure where i should post it but thank you for your reply and getting it moved to the right place. One thing i did discover since last night on the DEFRA website is the following:-

In practice, there is still some discrepancy among local authorities in what they classify as litter. For example, the feeding of birds seems to be viewed as littering by some council’s but not others. This situation could very easily lead to confusion and 'innocent' littering by persons feeding birds and ducks, for example. There must, therefore, be an onus on councils to make clear their position on such matters, and ensure the provision of signage to this effect in likely feeding spots. If DEFRA's guidance is followed the alleged offender should be asked to pick up the litter, and it is suggested that this request should only be as regards what is reasonable in such circumstances (for example where bread is being thrown for ducks on a lake one would not expect the perpetrator to wade into the lake).

There are over 300 councils in the UK. How are you supposed to know which ones class feeding birds as littering as which ones dont.
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Logician
post Tue, 24 Mar 2020 - 09:48
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QUOTE (frankspencer @ Tue, 24 Mar 2020 - 09:38) *
I wasnt really sure where i should post it but thank you for your reply and getting it moved to the right place. One thing i did discover since last night on the DEFRA website is the following:- In practice, there is still some discrepancy among local authorities in what they classify as litter. For example, the feeding of birds seems to be viewed as littering by some council’s but not others. This situation could very easily lead to confusion and 'innocent' littering by persons feeding birds and ducks, for example. There must, therefore, be an onus on councils to make clear their position on such matters, and ensure the provision of signage to this effect in likely feeding spots. If DEFRA's guidance is followed the alleged offender should be asked to pick up the litter, and it is suggested that this request should only be as regards what is reasonable in such circumstances (for example where bread is being thrown for ducks on a lake one would not expect the perpetrator to wade into the lake). There are over 300 councils in the UK. How are you supposed to know which ones class feeding birds as littering as which ones dont.


Were there any signs telling you not to feed the birds? If not, you could refer the Council to the DEFRA advice you have found, and the onus on Councils to make their position clear.



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frankspencer
post Tue, 24 Mar 2020 - 10:00
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No and when i asked why there wasnt any i got some sort of waffled answer that didnt really answer the question. The next council along DOES have a do not feed the birds sign so they have made their position perfectly clear.
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NewJudge
post Tue, 24 Mar 2020 - 10:39
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At least you now seem to have accepted that whatever is written on the notice regards the time is of no relevance.

The problem I see with the "do not feed the birds" notices is that no council can be expected to put them in place so as to cover their entire area. Some may put them in popular public places such as parks and squares but they will not put them in every back street. So you will have the situation where it's forbidden to feed the birds in the square but not in a road leading up to it so I think you may be on dodgy ground. I see the notices as reminders which are provided where people may be more inclined to feed the birds but not a requirement necessary to enforce the law. A letter to the Council outlining the DEFRA guidance may bear fruit. I don't know precisely what it says about feeding birds but I do recall that it mentions that "trivial" infringements should not be routinely pursued and that the overriding aim is to encourage the offender to change their behaviour. From your description your treatment seems to have fallen short on those two counts.

This post has been edited by NewJudge: Tue, 24 Mar 2020 - 10:40
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The Rookie
post Tue, 24 Mar 2020 - 10:43
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Not to mention that the 'litter' was picked up (all be it by the pigeon) so there was no 'leaves it' involved, as such by any sensible measure the statute was not contravened.

I would say that if the council has no 'no feeding the birds' signs anywhere in the locality AT ALL then they are on a sticky wicket WRT the DEFRA guidance.

This post has been edited by The Rookie: Tue, 24 Mar 2020 - 10:44


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frankspencer
post Tue, 24 Mar 2020 - 10:58
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QUOTE (NewJudge @ Tue, 24 Mar 2020 - 10:39) *
At least you now seem to have accepted that whatever is written on the notice regards the time is of no relevance.

The problem I see with the "do not feed the birds" notices is that no council can be expected to put them in place so as to cover their entire area. Some may put them in popular public places such as parks and squares but they will not put them in every back street. So you will have the situation where it's forbidden to feed the birds in the square but not in a road leading up to it so I think you may be on dodgy ground. I see the notices as reminders which are provided where people may be more inclined to feed the birds but not a requirement necessary to enforce the law. A letter to the Council outlining the DEFRA guidance may bear fruit. I don't know precisely what it says about feeding birds but I do recall that it mentions that "trivial" infringements should not be routinely pursued and that the overriding aim is to encourage the offender to change their behaviour. From your description your treatment seems to have fallen short on those two counts.


Thank you for your reply. The reason i brought up the time issue is because i have seen PCN's that have been cancelled due to the office putting the wrong time on the PCN and i wasnt sure if this could also work on a FPN.

Ive tried to look for the 'trivial' infringements part but cant seem to find it(i hope this hasnt been updated/removed) although i am not doubting you for 1 second and will add that part in the letter to the Council.
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southpaw82
post Tue, 24 Mar 2020 - 11:13
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I would have expected feeding the birds to be dealt with (if at all) under a specific by-law rather than as a littering offence. I have some difficulty with the concept of feeding the birds being littering.


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frankspencer
post Tue, 24 Mar 2020 - 11:25
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QUOTE (The Rookie @ Tue, 24 Mar 2020 - 10:43) *
Not to mention that the 'litter' was picked up (all be it by the pigeon) so there was no 'leaves it' involved, as such by any sensible measure the statute was not contravened.

I would say that if the council has no 'no feeding the birds' signs anywhere in the locality AT ALL then they are on a sticky wicket WRT the DEFRA guidance.


Interesting you brought that up because i argued for a while with the officer about this. He said i threw the bread then turned and left. I said no i saw the pigeon actually eat it although i didnt understand at the time the significance of what he said. Now i realise that he is interpreting the guidance as i threw the bread to the ground and then turned and walked away(which i didnt anyway) thus leaving it there and im interpreting it as a person must not throw bread to the ground and leave it there in the 'hope' that a pigeon or pigeons comes along some time during the day and eats it.
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southpaw82
post Tue, 24 Mar 2020 - 12:06
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The offence under s 87(1) of the Environmental Protection Act 1990 is 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.

For some reason, Parliament saw fit to amend s 98 of the Act to specify that “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


I'm still struggling to see how (a) a piece of bread thrown to a bird which then eats it is "litter" (an otherwise ordinary word) and (b) how you "left" it when you were stood right there (and, presumably, could have picked it up if the bird didn't eat it).


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Jlc
post Tue, 24 Mar 2020 - 12:42
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I would guess there's more than a passing coincidence that many councils now employ private companies to issue such fines. They may have an incentive to issue as many fines as possible...

It would seem there's a good chance in defending the matter. (Caveat understanding the risks)

This post has been edited by Jlc: Tue, 24 Mar 2020 - 12:58


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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NewJudge
post Tue, 24 Mar 2020 - 12:53
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Have a read of this document:

https://assets.publishing.service.gov.uk/go...t-guidance1.pdf

You will see that in para 11A.5 and a lot of 11B there is much talk of "proportionality" and consistency. It could be that the particular venue where you were alleged to have offended a problem with birds is evident (guano, etc.) and the council is using the litter laws to prevent feeding. But the law you have been penalised under is not designed to prevent bird feeding; it is designed to prevent littering. I think technically you have committed the offence. You could not be sure your litter would be taken by the birds and it could have remained there but in any case I believe the offence is complete as soon as you deposit the litter, regardless. I note that SP, above, thinks differently. I can only go on the anecdotal evidence I have read in the press of people being issued with penalties in similar circumstances but I don't know whether the principle has been challenged.

When it comes to enforcement, the same document says this:

"Enforcing authorities should be motivated to work to keep cases out of the court where possible, as court processes are time consuming for all parties and can be expensive. To prevent unnecessary cases reaching the courts, it is therefore good practice for enforcing authorities to operate a process through which an alleged offender may offer evidence in mitigation, lines of defence or other relevant information that may not have been available to the enforcing authority at the time the fixed penalty notice was issued, and which may influence the authority’s decision whether to issue a fixed penalty or take other enforcement action in that case. As this is an informal process, there are no fixed grounds on which such a challenge may be made."

and importantly this:

11N.16 The basis on which an alleged offender might dispute their liability might include, but are not limited to:
.
.
.
d. if evidence is provided that enforcement would, for any other reason, not be considered to be in the public interest


I should think at present the last thing a local authority would wish to get involved with is a court case involving prosecuting you for feeding the pigeons. For that reason I think a carefully worded letter mentioning the apparent disproportionate nature of the sanction compared to the offence, and that you have been "educated" in the error of your ways may well bear fruit. But you can never tell with local authorities, even in these troubled times.

This post has been edited by NewJudge: Tue, 24 Mar 2020 - 12:56
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southpaw82
post Tue, 24 Mar 2020 - 13:18
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QUOTE (NewJudge @ Tue, 24 Mar 2020 - 12:53) *
I think technically you have committed the offence. You could not be sure your litter would be taken by the birds and it could have remained there but in any case I believe the offence is complete as soon as you deposit the litter, regardless. I note that SP, above, thinks differently.

That would be to ignore "and leaves it" at the end of s 87(1) though. We've seen numerous reports in the press of people issued with a penalty notice for putting, e.g., an ice lolly stick down on a wall next to them. I think that's challengeable, as they did not "leave it". Otherwise, taken to the extreme, placing any object down (your shopping? A parcel?) in the open air would be an offence of littering. Of course, that also raises the question of what "litter" is. I believe it was in Felix v DPP that the court said the article had been deposited without any intention to remove it, then the Court may conclude that after a short time it has been left there.


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The Rookie
post Tue, 24 Mar 2020 - 13:20
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QUOTE (NewJudge @ Tue, 24 Mar 2020 - 12:53) *
I believe the offence is complete as soon as you deposit the litter

But the statute clearly disagrees? (my bold)
QUOTE
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

I can't believe the 'and leaves it' was inserted either be accident, or on purpose and was intended to have no effect at all.


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NewJudge
post Tue, 24 Mar 2020 - 13:41
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But the statute does not say how long it must be left for. It could be argued that, in this instance, the OP had not intention of retrieving it if a bird did not take it and, as far as he was concerned, it would be left completely. However, I think the OP should see his request for leniency is received before he gets bogged down in legalities.
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southpaw82
post Tue, 24 Mar 2020 - 13:44
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QUOTE (NewJudge @ Tue, 24 Mar 2020 - 13:41) *
But the statute does not say how long it must be left for.

Felix v DPP. The OP might not want to get bogged down in legalities but he will have a much better idea of how strong his hand is if he does.


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NewJudge
post Tue, 24 Mar 2020 - 13:46
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QUOTE (southpaw82 @ Tue, 24 Mar 2020 - 13:44) *
Felix v DPP. The OP might not want to get bogged down in legalities but he will have a much better idea of how strong his hand is if he does.

Very true and a valid point.
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madandy
post Tue, 24 Mar 2020 - 14:53
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You should have denied it. If the evidence is not there it is not litter.

My own (personal view) is that litter is what you place on the ground and walk away from and leave. You threw the "litter" down for the pigeon and the pigeon took it. It would be no different from someone dropping a morsel of food on the ground for their dog on a lead. If the dog eats it is that littering?

However, that is not THE issue to me. After all, suppose the pigeon (or dog) did not take it or was startled and flew off. If you pick it up then that is hardly littering. If you walk off and leave it there then it is littering.

Littering is a process which should involve abandoning the litter. Since you did not abandon it as litter but remained to see it removed that is hardly littering (and I would concede that had you thrown a load of stuff on the ground to a load of pigeons and walked off without ensuring all beaten up that could be construed as littering), but placing it on the ground for it to be used for a specific purpose and end ensuring it is before leaving or clearing up what is left over is not.
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The Rookie
post Tue, 24 Mar 2020 - 15:21
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QUOTE (madandy @ Tue, 24 Mar 2020 - 14:53) *
You should have denied it. If the evidence is not there it is not litter.

Right there is why he should ignore your post.

Perhaps read up on what can and can't be evidence.


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