Decision : Closed after initial enquiries
Decision date : 02 Mar 2018
The Ombudsman's final decision:
Summary: The Ombudsman will not investigate this complaint that the Council unreasonably issued a fixed penalty notice for littering. It is the courts’ role, not the Ombudsman’s, to decide if someone has committed a criminal offence. The complainant could have defended his case in a magistrates’ court if the Council had prosecuted him.
- The complainant, Mr B, complained the Council wrongly gave him a fixed penalty notice (FPN) for littering. Mr B said he did not commit the offence as he picked up the litter at the time and placed it in a bin. Mr B says the Council should cancel the FPN.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if, for example, we believe another body is better placed to consider the complaint. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered what Mr B said in his complaint and information he provided. I sent him a draft and discussed it with him before I made this decision.
What I found
- The Environmental Protection Act 1990 gives the Council powers to issue a FPN for the offence of littering. The person given the FPN is then liable to pay a fixed penalty to avoid prosecution. If the fixed penalty is not paid, the Council may pursue a prosecution in a magistrates’ court.
- A Council officer issued a FPN after seeing Mr B drop a cigarette butt in the street. This made Mr B liable to prosecution for a criminal offence but he could pay a fixed penalty of £80 to avoid prosecution.
- Mr B denied the offence because he says he picked up the cigarette butt and placed it in a bin before the officer issued the FPN.
- The FPN set out clearly that there was no appeal right. It stated:
‘If you do not agree that you have committed the offence specified in the Notice then the matter will be dealt with through formal prosecution via the courts. It will then be up to the court to determine whether or not an offence was committed and therefore whether or not any penalty should be imposed. In this way, the formal court route is the only mechanism for raising an appeal.’
- Mr B complained to the Council about the FPN. In response the Council said it considered the officer had correctly issued the FPN because Mr B had dropped the cigarette butt, regardless of what he did afterwards. The Council offered Mr B the opportunity to pay a discounted amount of £50. The Council also warned Mr B it might prosecute him if he did not pay the fixed penalty. Mr B paid £50 on receipt of the Council’s email.
- I appreciate Mr B is unhappy with the Council’s actions but I have decided we will not pursue his complaint about this issue. This is because it is not our role to decide if Mr B committed a criminal offence. That would have been for a court to consider if the Council had prosecuted him. Mr B chose to pay the fixed penalty to avoid prosecution. I consider he should have been aware that he should not have paid if he believed he had not committed the offence.
Investigator's decision on behalf of the Ombudsman