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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7507
Experience:  28 years as a practising solicitor.
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Section 87, 88 Environmental Protection 1990

Resolved Question:

Dear Sir, Madam


 


I live in scotland, my passenger left the vehicle and allegedly dropped a cigarette end on the floor, I have received a letter today iuusing me a fixed penalty notice Environmental Protection Act 1990 section 88. It says for "Deposited litter on land W Open Air outwith your control" and a fine of £50 or a threat to take me to court under section 87 of the Environmental Act 1990 and I could be fined up to £2500. I was not driving my car and it was the passenger who dropped the litter and it was qfter he left the car albeit he did go back to the car. They said I can send them details of the offender and they will write to him instead but I dont want to do this. Please can you help as it seems unfair that I am being held responsible for the actions of others just because I am the registered keeper of the car, the offence did not even happen from the car the occupant had left the car when it took place.


 


 


Thank you kindly Sharon Bray


 


Submitted: 1 year ago.
Category: Scots Law
Expert:  JGM replied 1 year ago.
Thank you for your question.

The Act contains no whistle blowing provisions, such as those s contained in Road Traffic legislation where a registered keeper can be made to disclose the identity of the driver of a vehicle where an offence has been committed.

This is not the case here. The provision states:

" 88. Fixed penalty notices for leaving litter.
[ (1) Where
(a) an authorised officer of a litter authority has reason to believe that a person has committed
an offence under section 87 above in the area of that authority; or
(b) a constable has reason to believe that a person has committed an offence under that
section,
he may give that person a notice offering him the opportunity of discharging any liability to
conviction for that offence by payment of a fixed penalty.
(1A) Where a constable gives a notice under this section to a person, he shall, no later than 24 hours
after the giving of the notice, send a copy of it to the litter authority in whose area the offence was
committed. ] 2
Page 282
(2) Where a person is given a notice under this section in respect of an offence
(a) no proceedings shall be instituted for that offence before the expiration of fourteen days
following the date of the notice; and
(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration
of that period.
(3) A notice under this section shall give such particulars of the circumstances alleged to constitute
the offence as are necessary for giving reasonable information of the offence and shall state
(a) the period during which, by virtue of subsection (2) above, proceedings will not be
taken for the offence;
(b) the amount of the fixed penalty; and
(c) the person to whom and the address at which the fixed penalty may be paid;
and, without prejudice to payment by any other method, payment of the fixed penalty may be made
by pre-paying and posting to that person at that address a letter containing the amount of the penalty
(in cash or otherwise).
(4) Where a letter is sent in accordance with subsection (3) above payment shall be regarded as
having been made at the time at which that letter would be delivered in the ordinary course of post.
(5) The form of notices under this section shall be such as the Secretary of State may by order
prescribe.
[ (5A) A fixed penalty payable in pursuance of a notice under this section shall be payable to the
litter authority in whose area the offence was committed. ] 2
(6) The fixed penalty payable [&]2 in pursuance of a notice under this section shall, subject to
subsection (7) below, be [ £50 ] 3 ; and as respects the sums received by [ a litter ] 2 authority, those
sums
(a) [&]4
(b) if received by an authority in Scotland, shall [ accrue to the litter authority ] 5 .
(7) The Secretary of State may by order substitute a different amount [ (not exceeding level 2 on
the standard scale) ] 2 for the amount for the time being specified as the amount of the fixed penalty
in subsection (6) above.
(8) In any proceedings a certificate which
(a) purports to be signed by or on behalf of
(i) in England and Wales, the chief finance officer of the litter authority; or
(ii) in Scotland, the proper officer [ for the litter authority in whose area the offence
was committed ] 2 ; and
(b) states that payment of a fixed penalty was or was not received by a date specified in
the certificate,
shall be evidence of the facts stated."

Write back, say you weren't littering and ask for the statutory provision whereby they are entitled to ask you for the identity of your passenger.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 1 year ago.

Hi, Thanks for your response but please can you help clarify as I cannot see how the response can help me. They are saying that the occupant of the car was littering and that if I do not provide details of who the occupant was then the registered keeper is liable, the registered keeper is me. I understand that I do not have to give details of who the occupant or driver was but does that still mean that I am liable under the acts mentioned and can I be fined in court?


 


If it goes to court do they need to prove who the person littering was or can they fine me as being the registered keeper of the vehicle?


 


Also if the passenger or occupant had left the Vehicle how can they associate the littering with the Vehicle.


 


Please advise.


 


Many Thanks

Expert:  JGM replied 1 year ago.
That's my point. They can't hold anyone liable for an offence of littering unless they can identify you or the occupant as being the person having committed the crime. They are asking you to identify the occupant but you don't have to do so under this legislation. That's why I reprinted the section for you to read so that you can see that. They are not saying that you are liable for the crime if you don't identify the occupant. They are saying that they will hold you liable of you don't respond. You should respond as I suggested above. They can't take this further if you tell them that you are not the person concerned, that you are not going to ID the person concerned to them and that in any event any offence had nothing to do with you or your vehicle.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 7507
Experience: 28 years as a practising solicitor.
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