Summary: The Ombudsman found no fault on Mr D’s complaint that the Council failed to follow the correct procedures and guidance when it investigated him and his family for fly tipping. The officer did not question his wife before cautioning her. Nor was there evidence that vindictiveness was a motive for changing the venue of the interview as claimed.

The complaint

1. Mr D complains the Council failed to follow the correct procedures and guidance when it investigated him and his family for fly tipping; as a result, they were caused a great deal of anxiety, stress, inconvenience, and frustration.

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What I have investigated

2. The paragraph at the end of this statement explains why I have not investigated any complaint Mr D may have that the Council carried out surveillance in breach of the Regulation of Investigatory Powers Act 2000.

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The Ombudsman’s role and powers

3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)

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Council’s Environmental Crime Enforcement Policy

6. The Council will ensure all enforcement action accords with the Police and Criminal Evidence Act 1984, the Criminal Procedures and Investigations Act 1986, and the Regulation of Investigatory Powers Act 2000, for example. (paragraph 8)
7. It does not give detailed procedures about how it will deal with individual incidents of environmental crime (paragraph 9) which includes fly tipping. (paragraph 18)
8. The purpose of enforcement is to ensure preventative or remedial action is taken to protect public health and the environment. (paragraph 16)
9. The principles of enforcement include proportionality, consistency, transparency, accountability, and targeting. (paragraph 19)
10. In deciding what method of intervention to use, officers consider: the seriousness of the offence; the impact on individuals and the community; the history of the activity; the confidence in achieving compliance; the consequences of non-compliance; and the likely effectiveness of the various types of intervention. (paragraph 23)

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How I considered this complaint

11. I considered all the information received from Mr D, the notes I made of our telephone conversation, and the Council’s comments on my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr D and the Council. I considered their responses.

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What I found

12. In March 2018, Council records show a plastic envelope used by delivery firms was found in fly tipped waste. This showed the names of Mr D’s daughter and her husband but addressed to his house. They had lived there with Mr D and his wife 2 years before.
13. In June, Mr D saw a man knock on his front door. He was on a call so could not answer. Mr D saw the man walk round to the back of the house. These events are confirmed by the officer’s case notes.
14. The officer then got back into his car and reversed up the hill. The notes record the officer returning to his car parked further up the road. The officer recorded carrying out some paperwork while in the car as he thought the resident of the property might be picking up children from school. This was 2pm.
15. The notes record while carrying out the paperwork, the officer observed someone enter the property. Mr D says this was his youngest daughter who returned home. She had noticed a man sitting in his car at the end of the road watching her as she passed. Mr D believes the officer carried out unauthorised surveillance of his property and family.
16. The notes record the officer knocking on the door again and the daughter answering it. As Mr D says he was on the telephone, he asked his daughter to see what he wanted.
17. The officer said he was from the Council and wanted to speak to her mother. The notes state he showed her his identification and gave a business card with his contact details on to pass to her mother so she could call him. The officer reversed up the street and left at about 2.13pm.
18. The notes state about 1 minute later, the officer received a call from Mrs D. He told her he was investigating a fly-tipping incident and said he would need to interview her under caution. He said he could either interview her at a nearby police station 3 km away, or at home carrying out a ‘pocket notebook interview’. Both interviews would be under caution. He told her she had the right to have a solicitor present. Mrs D then asked whose name was on the envelope. When told, she said that was her other daughter who lived in another town. The officer said he still wanted to speak to her to establish why the envelope ended up in the fly tipped waste. He would then speak to the daughter named on the envelope. Mrs D agreed to him visiting 2 days later at 6pm.
19. Two days later, before 9am, the officer called Mrs D as he needed to cancel the visit due to ‘personal issues’. He called a couple of times but there was no answer. Shortly afterwards, Mrs D called him back. He explained he could not visit that day but asked whether they could rearrange it for 3 days later instead. They both agreed and he would visit at 6pm.
20. Mr D contacted the officer and invited him to interview him instead. He queried whether the officer followed proper procedure. Mr D raised this as the officer gave his wife details of the allegation during their telephone conversation and allowed her to respond when she was not under caution. This was despite the officer making it clear he wanted to interview her under caution. Mr D believes this breached the Police and Criminal Evidence Act 1984 (PACE) and its codes of practice. PACE, for example, is concerned with the rights of suspects and the admissibility of evidence.
21. Mr D believes it was because of his challenge the Council re-arranged the interview at a police station in Barnsley centre, about 7 kms away.
22. The officer later interviewed Mr D under caution. Mr D read out a pre-prepared statement. The case notes record Mr D claiming his house was burgled more than once which could explain the presence of the envelope with this waste. The officer concluded there was insufficient evidence to pursue the case.
23. In response to my enquiries, the Council said:

• the officer had not carried out surveillance. He waited in his car completing paperwork;
• the interview was re-arranged because of personal problems and arranged to take place in a suitable setting. All interviews for environmental offences are carried out in a police station. The team is based in the police station because of partnership links;
• the officer allowed pre-disclosure as documented in emails between him and Mr D; and
• the Regulation of Investigatory Powers Act 2000 did not apply. This was because there was no Directed (covert carried out in a public place) or Intrusive (covert in residential premises or vehicle) surveillance.

Analysis

24. The Council found evidence at the scene of fly tipping which caused officers to have a reasonable suspicion that Mr D, or his family, might have been responsible for some or all the waste found.
25. Where there are grounds to suspect a person of committing an offence, they must be cautioned before questioning about that offence. (part 10, Code of Practice-Code C Detection, treatment and questioning of persons by police officers). A letter needs sending to invite a suspect to an interview.
26. On balance, I found no fault on the complaint the officer breached procedure during his telephone conversation with Mrs D about the allegation. The officer’s notes do not show he questioned her. He simply explained the nature of the allegation and his wish to speak to her under caution. It was reasonable to expect the officer to give her basic details of the allegation at this early stage. The officer explained the interview could take place at a local police station or her home.
27. In response to my enquiries, the Council said this type of interview is done in a police station. If this is correct, it is unclear why the officer suggested her home. In response to my draft decision, the Council agreed it could make it clearer in its communication about where PACE interviews will take place. It will ensure these interviews are always done within a controlled environment.
28. I note Mrs D was not formally interviewed and there was no prosecution. I also note that had the Council prosecuted her, she could have challenged the admissibility of any evidence obtained when she was not cautioned anyway.
29. I considered Mr D’s claim the change of police station was a vindictive act by the Council because he had challenged whether the officer followed procedure. Again, on balance, I found no fault on this complaint as the evidence does not support this claim. The Council responded to Mr D’s initial email about what had happened during the officer visit. It also responded to his queries about the officer’s knowledge and experience, for example. Mr D emailed the Council on the day of the re-scheduled visit to his home. His email ended by saying he was happy to make contemporaneous notes during it or to make an audio recording.
30. In response, the Council said the officer would take notes but, if Mr D preferred, the officer could interview him at a local police station instead. Mr D responded repeating previous concerns but said he was happy for the interview to be carried out at his house. Later the same day, the Council replied saying it was better to re-schedule this interview at a police station. Mr D queried why, and the Council replied this was to ensure it had a full audio recording. Mr D asked about the complaints process. The following day, the Council sent him a letter inviting him to attend the city centre police station.
31. From the Council’s response, it is unclear why the offer of a home interview was made in the first place. Nor has the Council provided evidence to show what the usual procedure is when proposing to interview a suspect under caution. On balance, I consider the decision to carry out the interview at a police station was most likely to have been in response to Mr D’s emails but not for the reason he thinks. Mr D’s emails showed the depth of his unhappiness with the process to date and his wish to make his own contemporaneous notes. The Council’s decision to hold the interview in a police station was a sensible one. Officers could carry out the interview in a controlled environment and produce a clear record of what all parties said.
32. There is no evidence showing why the police station initially suggested was not used. Whatever the reason, I am not satisfied travelling a further 3-4 km caused Mr D a significant injustice to justify investigating this part of his complaint further.
33. I am not satisfied wanting to interview Mr D under caution was a disproportionate response. There is no requirement under PACE that a person must be interviewed under caution before any decision is taken to prosecute. Before any decision is taken to prosecute, a suspect is expected to have the opportunity to answer allegations and give their own account. An interview under caution may provide important evidence against a suspect, information revealing other lines of enquiry, and relevant information that is considered before deciding whether to prosecute. The Council was entitled to decide to carry out this type of interview which gave Mr D the opportunity to respond to the allegation which he did.

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Final decision

34. The Ombudsman found no fault on Mr D’s complaint against the Council.

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Parts of the complaint that I did not investigate

35. I did not investigate any complaint Mr D may have that the Council carried out covert surveillance of him or his family in breach of the Regulation of Investigatory Powers Act 2000. This is because he can complain to The Investigatory Powers Tribunal if he believes the Council carried out unlawful intrusions by Directed or Intrusive surveillance.

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Investigator's decision on behalf of the Ombudsman