Litter Strategy for England's possible impact on waste crime

Written by: Jeremy Asher and Stephen Sadler | Published:

Jeremy Asher, senior associate, and Stephen Sadler, trainee solicitor, at Ashfords LLP take a look at the government’s Litter Strategy for England and its implications for prosecution policy

Published on 10 April 2017, the government’s Litter Strategy for England focuses on littering, fly-tipping and other nuisance behaviour that despoils the local environment. According to the Litter Strategy, street cleaning cost £778 million last year, and it is likely that a good proportion of this was spent on cleaning up litter. So what can be done?

The strategy makes it clear that environmental crime is a blight, negatively affecting people’s perception of their environment that has unseen economic effects. It is clear the government considers campaigns such as ‘Clean for the Queen’ and Keep Britain Tidy’s “#CrimeNotToCare” as useful tools in educating the public, which is a crucial part of the battle against such environmental offences.

Enforcement

The strategy also highlights the importance of enforcement in discouraging environmental crime, and did not rule out further regulation of the private sector, despite its support of voluntary change. In terms of proactive steps taken, the strategy suggested (among other initiatives): a consultation to increase the amount for which fixed penalty notices can be issued; the introduction of civil charges when rubbish is thrown from a car, and the publishing of new guidance on enforcement for local authorities. Whether the strategy results in policy, enforcement or legal changes remains to be seen. It does, however, highlight the government’s commitment to tackling environmental crime.

It is clear that the suggestions made in the strategy relating to enforcement are intended to provide local councils with more powers to combat environmental crime. The release of a new code of practice on litter and refuse which gives guidance to councils on when and how to use fixed penalty notices (FPNs) is no doubt welcome, but the release of the strategy should prompt councils to reconsider their current approach to prosecuting environmental crime.

Local authorities should also consider how appropriate and proportionate their enforcement decisions are when dealing with environmental crime in their area. For example, the new code of practice suggests that litter greater than a bin bag’s worth should be prosecuted as a fly-tipping offence, which brings with it greater sanctions and the ability to issue FPNs of greater value.
It should be borne in mind that the specific enforcement powers for different offences will only benefit councils, allowing them to accurately reflect the criminality of an offence, and therefore recover suitable amounts in fines for the offence committed.

Communication

Enforcement does not stop at simply picking the correct offence, however. To maximise the deterrent effect, and considering the strategy’s point on changing behaviour, councils should communicate effectively with residents using social media and other methods to publicise enforcement activity. This not only discourages crime, but also increases public trust in the legitimacy of the enforcement itself.

Despite the advantages of enforcement action, prevention is clearly better than cure. Sadly, this perhaps is an area where the law cannot assist. Aside from publicising enforcement action to change behaviour, most of the law relating to environmental crime is curative only, as while under the Environmental Protection Act 1990 there are ways of seizing vehicles or property from offenders (Sections 33C and 34B), they require either a conviction for fly-tipping as in Section 33C or, in the case of Section 34B, a conviction for an environmental crime or reasonable suspicion that an environmental crime is about to be, or is being, committed.

Prevention

Similarly, while local councils have powers under Section 71 to request information on pain of criminal sanction from people to discharge these seizure powers, this does not prevent crime on its own. Neither do the courts’ powers have powers to make ancillary orders requiring remediation, or banning directors from holding office or drivers from driving.

While this may seem like unfortunate news to local councils looking to take a more pro-active enforcement role in their area, that is not the case. As discussed above, the publication of successful prosecutions play their part in an overarching strategy to deter environmental crime. In any event, costs can often be recovered, and when one considers Defra’s 2015/2016 fly-tipping statistics, where 98% of prosecutions were successful, prosecutions may appear to be a very attractive option indeed.


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