fined for a poo we did not commit!

ampersand

op - I BEG of you - insist on that Hearing. DO NOT PAY anything yet.

Costs cannot be added: you have nothing to fear
You show yourself here as articulate, straight and responsible. You will present yourself well.

'I think I will pay the fine this weekend before if goes over to debt recovery but then issue a formal complaint,' - NO, the horse has then bolted with your money on its back.

'i will ask GCC to withdrawn the penalty notice and to repaid the money.'

AGAIN, NO! It doesn't work this way.
A set-aside after the event would cost you more money. Some people still opt for this, if an inadvertent black mark on a credit search means losing a mortgage offer, for example.
This is different.

DeltaWhiskyHotel

I've been reading this thread with some interest.


I note that the OP quotes the Dog Fouling (Scotland) Act 2003, and that their name and further comments suggests that this alleged offence occurred in Scotland.


The OP is right (and slightly wrong at the same time). The Act does allow the alleged offender to 'request a hearing' (there is no mention of the word 'appeal'.


The Fixed original Penalty Notice is imposed in lieu of prosecution under the Act


Thus when the OP states that they "completed the section stating he wished to appeal the notice and sent it off", I'll assume that they were responding to the Fixed Penalty Notice's information about the request for a hearing (which, as noted by the OP the sending of which by post is sufficient to have effected the request).


[On the other hand, if the OP didn't specifically 'request a hearing' either by completing the form or otherwise, then any 'appeal' letter may have been ignored by the Council - there is no other appeal procedure within the Act - although it can be withdrawn under specific circumstances - basically, if the issuing officer realises the offence was not committed or the wrong person has been accused - which may be unlikely as you can guess]


So, the Council then receives the request for a hearing. The next step for the Council is to wait until 28 days have passed since the alleged offence (this is when the Fixed Penalty rises to £60 - which will be why the OP received a reminder that the 28 day period had expired - giving them a chance to pay before the next stage).


The next stage - if the Notice remains unpaid, the Council must, (if a request for a hearing has been made) then refer the matter to the Procurator Fiscal (the 'hearing' is in front of a Sheriff, or justice of the Peace, in a criminal court. Passing cases to the PF is carried out in exactly the same way any other criminal offence is reported to the PF by non-police reporting agencies.


When the case is called (if the PF proceeds - it's their choice) the accused then has a chance to argue the case/present evidence/dispute the officer's evidence.


I am aware of one such case where a fine of £100 was imposed (the maximum, if memory serves me right, is £500 under the Act. In another case the accused was admonished - i.e. technically found guilty, but no fine imposed (not even the £60 increased 'fine').


If the OP had not availed themselves of the right to request a hearing under section 8 and had just ignored the Notice the situation becomes different - the unpaid penalty becomes a civil matter (similar to an unpaid debt).


Many Councils will then pass the matter to a Sheriff Officer who may attempt to recover the money - up to and including an arrestment of wages. Some Councils will, on the other hand, just ignore the non-payment.


And, just to clarify - it is an offence under the same Act for the accused to fail, without reasonable excuse, to provide their name and address.


It is common for enforcement officers to seek assistance from the Police if this occurs.


Full details of identity are required because, at the end of it all, fouling is a criminal offence under the Act and, in theory, the matter could be reported directly to the Procurator Fiscal, completely bypassing all of the above - this is unlikely as the Scottish Govt guidelines recommend following the Fixed Penalty route. (as noted above - the Fixed original Penalty Notice is imposed in lieu of prosecution under the Act)


Sorry to be so long winded on this - possibly the OP should contact the issuing Council and ask for a fuller explanation of the matter - but I thought I'd try and give some, hopefully informed, advice.

Owain_Moneysaver

The wardens have collected the dog poo in question and made DNA analysis of it available to the defence?

No ... so how can they prove that it's your dog's poo?

DeltaWhiskyHotel

Interesting ideas about evidence being proposed here.

The Dog Fouling (Scotland) Act 2003 allows the evidence of a single uncorroborated witness (usually an authorised officer) to be sufficient for proceedings. It would be up to the sitting Sheriff, or Justice of the Peace, to determine whether that evidence is sufficient to, in effect, find the accused guilty.

I've yet to hear of any court asking for DNA evidence.

Interestingly, refusal to give a name and address requires corroborative evidence - hence asking for police presence when details are withheld (or officers working in pairs - which is a bit of a waste of public money - as would requiring DNA evidence). Note also that a constable can also issue a Fixed Penalty Notice. The same rules generally apply.

It's also interesting to see so many people complaining about the Council seeking to enforce the legislation (and I'm not commenting on the innocence or otherwise of the OP) considering that, in my experience, dog fouling is one of the issues that residents complain about to the Councils the most.

sheramber

If the dog had just done it it would still be warm so easy to confirm whether it was his poo or not.:eek:

pogofish

DeltaWhiskyHotel wrote: »

I've yet to hear of any court asking for DNA evidence.

Not that long ago, Scottish Councils did make a lot of noise about how they could now trap poop-offenders using DNA.

So I would be very tempted to take them at their word and insist they prove it!

DeltaWhiskyHotel

I remember the calls for the use of DNA. Edinburgh Council was mentioned if I remember right. Trouble was, most of the comments were by relatively uninformed Councillors who wanted to be seen doing something... anything ... to appease all their constituents complaints about fouling! Keeps their profile high when it comes to re-election, or am I just cynical?

It was based on the idea of creating a doggy DNA database - to allow cases to be taken based on tested poo, without then requiring the event to be witnessed by an officer. Some places have tried this successfully, in the USA I believe, in gated communities with fewer dogs and the ability to require dog's DNA to be registered by each resident.

There was an opportunity to, I suppose, do the same here by linking the upcoming requirement to microchip all dogs, with a requirement to register each dog's DNA linked to the chip. Very expensive and possibly unworkable, and would need a tweak on the current legislation but .... it might have been worth a shot?

At the moment, no real need to DNA test dog and poo - as I mentioned before, the Act doesn't require it. Like it or not, an authorised officer's uncorroborated evidence is deemed sufficient for the court.

Owain_Moneysaver

But evidence of what?

Did the authorised officer see the poo leave the dog's bottom and land on the ground? No.

Did the authorised officer continually keep his eye on the poo to maintain continuity of evidence? No.

DeltaWhiskyHotel

I'm afraid I can only talk about the Act, and how it works.
Whether there was sufficient evidence in the OP case would really be up to a court to decide.
I would expect any decent statement from the authorised officer to detail distances, what exactly was observed, whether a 'deposit' was witnessed, whether it was checked afterwards, weather conditions etc.
I do note that the OP mentions that other fouling was in the area but disputes any were made by his dog - and argues that none were of the size expected by him to be excreted by his dog - not sure if that's a great argument - I have a very large dog and can confirm the size does vary.
We're then into a he says, she says, position. Would then depend on the court making that decision ... again, based on whatever evidence is presented.
I'm not taking sides here - only the officer and the OP were present and I have no bone to pick (I've tried to refrain from doggy related puns - but it's getting late and I'm half way through a glass of whisky and green ginger - goes round your heart like a hairy worm - as my father used to say)

lisa110rry

I've read this thread with interest because I've often been concerned about this happening to us (Miss Leigh Terrier and me). It first became a concern when my sister-in-law said to me 'aren't you going to pick that up'. I said 'not unless you expect me to carry a teacup, she's a b I t c h, she sits to wee'. My s-i-l knows more about dogs than the general public, having had them all her life, but she has always had males. I'd say all owners know what their dog is doing (if they have them in sight of course, as they should) as the stance is different. Perhaps council persons should be trained in this? Doubt they are. Well, getting on for 5.30, after I've finished this cheeky weekend G&T it will be time for second walk to make sure we're back before any fireworks. 🐕