Summary: Mr X complained about the Council issuing him with a fixed penalty notice for littering and changing the officer’s statement before threatening prosecution. The Ombudsman cannot investigate this complaint. This is because the complaint relates to criminal proceedings and the Council exercised its discretion not to prosecute Mr X in the Magistrates Court.

The complaint

1. Mr X was issued with a fixed penalty notice for littering which he disputes. He says the enforcement officer changed the wording of his statement after the penalty was served. He says that this would have amounted to perjury had the matter gone to the court.

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The Ombudsman’s role and powers

2. We cannot investigate a complaint about the start of court action on civil or criminal proceedings or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

3. I have considered all the information which Mr X submitted with his complaint. Mr X has commented on a draft copy of my decision.

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What I found

4. Mr X says the Council served a fixed penalty notice on him for littering which he disputed. He said the officer who served the notice threatened to call the police if he did not accept the penalty. Subsequently the officer wrote a statement with different wording from the penalty notice issued.
5. Mr X says he was prepared to go to the court to defend himself against the penalty and that the statement would have amounted to perjury. The Council says the statement has to be worded in the way that it was to substantiate the officer’s evidence that he witnessed the incident. It would be for the magistrates to decide whether or not the penalty notice was appropriate.
6. The Ombudsman cannot consider the circumstances relating to the issuing of a fixed penalty because this is a criminal matter. The penalty notice is an invitation to settle the case before it progresses to a court hearing.
7. Following Mr X’s complaint, the Council exercised its discretion not to progress to a court prosecution and the penalty notice was withdrawn. We expect councils to serve notices proportionately and to consider submissions by the recipient before prosecuting. In this case the Council has done so.

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Final decision

8. The Ombudsman cannot investigate this complaint. This is because the complaint relates to criminal proceedings and the Council exercised its discretion not to prosecute Mr X in the Magistrates Court.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman