Summary: The Ombudsman will not investigate this complaint about an allegation of littering. This is because he does not provide a right of appeal against allegations that a criminal offence has been committed as only the magistrates court can determine this.

The complaint

1. The complainant, who I refer to as Ms P, is making a complaint about a fixed penalty notice (FPN) issued by the Council for committing an environmental offence of littering. She says the conduct of the enforcement officer caused her to be frightened and litter a cigarette so she could get back inside quickly.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended).

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How I considered this complaint

4. I have reviewed Ms P’s complaint to the Ombudsman and considered relevant legislation. Ms P has also had opportunity to comment on a draft of my decision.

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What I found

Background

5. Littering is a criminal offence under Section 87 of the Environmental Protection Act 1990 and the Council can issue an FPN if it believes an offence has been committed. If the FPN is not paid, the Council can start court proceedings for non-payment through the magistrates’ court. The person who received the FPN can then defend themselves in those proceedings.

What happened

6. In July 2020, Ms P received a fixed penalty notice for dropping a cigarette outdoors in a public place. She says the Council environment officer caused her to feel intimidated which is the reason she dropped the cigarette.

Assessment

7. The Ombudsman’s role is to assess and remedy administrative fault. We are not an appeal body for allegations of criminal offences. Only the magistrates court can consider the evidence from Ms P and the Council and decide if an offence was not committed and whether to cancel the FPN. I do consider it would have been reasonable for Ms P to have raised her defence in court since this is the process prescribed by the law. As Ms P has already paid the FPN, she has lost her right to defend herself in legal proceedings and there does not exist a further right of appeal since by paying the notice, she has, in effect, accepted the penalty for the offence. For the reasons given, I cannot investigate.

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Final decision

8. I will not investigate this complaint. This is because I cannot provide a right of appeal against allegations that a criminal offence has been committed as only the magistrates court can determine this.

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Investigator's decision on behalf of the Ombudsman