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Simon
Simon, Solicitor
Category: UK Law
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Experience:  I'm a solicitor specialising in criminal defence work. I have been in private practice for 5 years.
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I was prosecuted for allowing my dog to foul contrary to article

Resolved Question:

I was prosecuted for allowing my dog to foul contrary to article 3(4) of Litter Order (NI) 1994. Surely this was not the correct legal vehicle. Although I contested this matter in court I was nevertheless convicted and fined £50 with costs. I did not have any legal representation. Can I appeal this conviction.
Submitted: 3 years ago.
Category: UK Law
Expert:  Jo C. replied 3 years ago.
Hi

Thank you for your question. I will try to help with this.

What do you think would be the correct vehicle?
Customer: replied 3 years ago.
i hoped you would answer that
Expert:  Jo C. replied 3 years ago.
Im sorry about the delay. I think you opted me out by accident.

can you please tell me why you think this is the wrong vehicle?
Customer: replied 3 years ago.
Very unhelpful - if you dont know just say and I will go elsewhere for advice
Expert:  Jo C. replied 3 years ago.

Opting out for others if you are not going to give me the reasons for your claim that this is the 'wrong vehicle'.
Customer: replied 3 years ago.

I FIND YOUR QUESTIONS RATHER UNHELPFUL. ARE YOU SEEKING MY OPINION OR AM I SEEKING YOURS. DO YOU NOT HAVE THIS LEGISLATION?. SURELY THIS PARA REFERS TO A COUNCILS DUTY TO PROMOTE ANTI LITTER CAMPAIGNS AND HAS ABSOLUTELY NOTHING TO DO WITH PROSECUTION.

Expert:  Jo C. replied 3 years ago.
I've opted out of this question as a result of your responses.

I cannot say why nobody else has picked it up.
Customer: replied 3 years ago.
GREAT !!
Expert:  Simon replied 3 years ago.

Hi

 

I'll try to assist if I can.

 

s.3(4) provides for local authorities to take action over littering - essentially it gives the the power to draft their own littering policy and enforce it 'with a view to promoting the abatement of litter.' All s.4(3) does is enable local authorities to publicise the offence and take action themselves in the event of littering. It enables them to take action on their own account rather than rely on the police to do so.

 

This is extremely common in national legislation, for instance the granting of powers to local authorities to create their own alcohol-free zones under bylaws and enforce them themselves/with the assistance of police.

 

The reason for the prosecution citing s.3(4) is to justify enforcement by the local authority and further may refer to local bylaws that they have enacted themselves.

 

You're absolutely correct that it looks a little clumsy and for preference the summons should cite s.3(4) and s.3(1) in conjunction to ensure clarity.

 

However, I don't believe that any appeal on the nature of the summons would find much favour with an appeal court as the nature of the offence was presumably made pretty clear in the witness statements etc.

 

You are entitled to appeal this conviction if you choose to - you need to ensure that you file the notice of appeal with the appeal court, court of conviction and prosecuting authority within 21 days and thereafter you'll be notified of the date of appeal.

 

I hope that assists but please feel free to ask any follow up questions that occur.

 

Regards

 

Simon



Edited by Simon on 2/7/2011 at 9:44 AM EST
Customer: replied 3 years ago.
Thank you for your helpful reply. While I understand your explanation surely any prosecution must necessarily be under the correct legal authority. Are you saying it does not matter that the council did not quote the specific article in the legislation under which they can prosecute dog foul littering offences. If this was a murder trial I think it would matter. By the way I am not guilty of the alleged offence but it seems council dog wardens are always believed by magistrates despite quite compelling evidence to the contrary. That is why I asked the question about the legal basis for prosecution. Do you still believe an appeal would be unsuccessful.
Expert:  Simon replied 3 years ago.

Hi

 

I'm not saying that it doesn't matter which section of the statute they quote in the summons. Clearly if the offence alleged is dog-fouling and the summons says assault then there's a problem, albeit one that can be rectified by the prosecution if they apply to amend the charge.

 

The core here is that section 3(4) gives local authorities power to curb littering. s.3(4) is therefore cited on the summons a) to establish their authority to prosecute the offence and b) to identify the offence to be prosecuted. The most important thing is that the alleged offence is clearly identified.

 

My view remains that, if you pursued an appeal solely on the basis of this point, you wouldn't find a lot of sympathy with the appeal court.

 

On the other hand, a straight appeal on the facts (i.e. essentially a retrial in the appeal court) may well be worth a go particularly if you have evidence to contradict that of the wardens. A judge (assisted by two magistrates) will tend to be more inclined to assess the strength of the evidence more accurately.

 

Regards

 

Simon

Simon, Solicitor
Category: UK Law
Satisfied Customers: 58
Experience: I'm a solicitor specialising in criminal defence work. I have been in private practice for 5 years.
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