Falsely accused of fly-tipping residential waste

BatterseaBoy

Sorry if this is the wrong place to ask...

I live in a south London flat above a shop with my two flatmates. At the end of October 2018 I received a fixed penalty notice through the post accusing me of fly tipping and demanding £400. The letter included a photograph of the offence - a recycling bag containing recyclable material, some of which had my name and address on. The recycling had been left in the same spot outside our flat where our bin bags have been collected from for the last 3.5 years.

Confused, I decided to contact Wandsworth Council by phone. They informed me an offence had been committed because the recycling had been put out on the wrong day (Saturday). I explained that I personally had not put the bin bag out on this occasion and that it must have been one of my two flatmates. I said, therefore, that I should not be held responsible for it. I did, however, admit that my flatmates and I were not aware we had a collection day. Our rubbish has always been collected within 24 hours, leading us to assume that we had daily collections; the lady I spoke to explained that the shop below our flat (owned by our landlord) does have daily collections and that was why our waste was being collected so quickly. I remained courteous throughout the conversation and the lady informed me that I should put what I explained in writing. I emailed it to them that evening, explaining that I had not put the rubbish out on this occasion, I appreciate that they are trying to keep the borough clean and they have raised our awareness to our mistake and that a fine is not necessary and asked for it to be dropped. I did not hear back.

Fast forward to today, I received a letter inviting me to a formal interview under caution at Wandsworth Council. They intend to prosecute me. It advises that I attend with legal council.

My questions are the following:

1. Should I attend the interview with legal council?
2. How much typically would it cost for legal council to attend this with me?
3. What would the prosecution need to prove at court?
4. Based on what I've explained here, is it likely that they would be able to prove this? In other words, is "I didn't put the bins out, my flatmates must have done." likely to stand up in court?

ethank

Not being funny, but when I moved into a property, I set myself up for all my utilities, council tax, and electoral record on my first day. I also found out what day is bin day. Every Council lists the bin days on their website. It took me 30 seconds to find the Wandsworth page at https://www.wandsworth.gov.uk/rubbish-and-recycling/find-your-recycling-and-waste-collection-day/

Somebody or anybody in your house could have checked this and you would not have ended up being fined. I think you should not have wasted time arguing about rubbish which has clearly come from your house and should have taken it on the chin with your flatmates.

Your question comes across as looking to find a way to get out of paying the fine on a technicality. Being frank, your rubbish was where it should not have been, and you should take responsibility for that.

In answer to you questions -

1 - You don't legally have to attend an interview with them but they can take you to court
2 - Who knows, but lose your case and you could end up with more costs.... it is not worth fighting!
3 - The evidence provided demonstrates that it contained rubbish which can be linked to you personally. It depends on whether it is was a criminal or a civil case as to the level of evidence that needs to be provided. If it is a civil matter, it will be on the balance of probabilities (what does the judge think happened)
4 - It depends on the judge

It is not worth getting into legal disputes with local authorities, they are not known for their pragmatism and they have a legal duty to treat every citizen the same.

zagubov

I used to live in a flat above a shop in the same borough as you. We didn't rely on the shop to get our waste collected.

You seem to be picking a battle you can't win. I'd pay the fine if I was in your shoes and make sure your flatmates don't land you in it again.

sevenhills

BatterseaBoy wrote: »

I remained courteous throughout the conversation and the lady informed me that I should put what I explained in writing. I emailed it to them that evening, explaining that I had not put the rubbish out on this occasion, I appreciate that they are trying to keep the borough clean and they have raised our awareness to our mistake and that a fine is not necessary and asked for it to be dropped. I did not hear back.

You seem to have admitted guilt, then you just did not reply to the fixed penalty notice.
You have not dealt with this very well.

eddddy

Not knowing the collection day probably isn't a defence.

However, if it wasn't you that left the bag on the pavement (i.e. did the fly-tipping), then you are not guilty of an offence.

I suspect the key question that they want to ask you at interview is... who left the bag on the pavement - so that they can fine them instead of you.

You don't have to attend the interview - but if you don't, they might summons you to court instead.

Or you could attend the interview and refuse to answer some/all of the questions.

From the council's perspective, the interview will be to gather evidence that proves your guilt.

trevormax

BatterseaBoy wrote: »

Sorry if this is the wrong place to ask...


My questions are the following:

1. Should I attend the interview with legal council?
2. How much typically would it cost for legal council to attend this with me?
3. What would the prosecution need to prove at court?
4. Based on what I've explained here, is it likely that they would be able to prove this? In other words, is "I didn't put the bins out, my flatmates must have done." likely to stand up in court?

I am not a solicitor but have some experience with things like this. I am not giving you this information as legal advice and if you use it or rely on it, you do so at your own risk.

Q1. The council are giving you the chance to give your side of the story under caution. It is up to you if you want to do this. If you fail to take up this offer, you are potentially causing problems later as you are refusing a reasonable chance to give your side of the story, and if you then go to court and give your side, the court may draw any inferences as are proper (i.e. they may think you had a chance, didn't take that chance and will possibly not believe you in court). This is why the UK caution includes "you do not have to say anything, however it may harm your defence if you do not mention, when questioned, something which you may later rely on in court"

Q2. I believe fly tipping is a criminal offence as opposed to a civil matter. Therefore certain rights become available to you, including (i believe) free and independent legal advice. I would first suggest you call a local solicitor firm and ask them to confirm this and if so, arrange to speak to them and provide them with the details needed to review your case.

Q3. Normally, in a criminal offence, the burden of proof is on the prosecutor to prove beyond reasonable doubt that
1 - You possessed the necessary Mens Rea (guilty conscience)
2 - That you had the Mens Rea when the Actus Reus (criminal action) took place. i.e. you had the thought in your head that you would commit the offence at the time you committed the offence.

With fly tipping however, I believe this is an offence of strict liability, or in layman's terms, you do not need to have had the guilty intent when committing the offence. So you don't need to intend to put the rubbish out on the wrong day to commit the offence of putting the rubbish out on the wrong day. If you do it, you are guilty pretty much. Another example of an offence of strict liability is speeding. If you are driving 35 in a 30 zone and you go past a speed camera, then the deed is done and you get a speeding ticket. It doesn't matter if you intended or even knew you were speeding.

Q4. Your line of defence is that you did not put the rubbish out on the curb. The council will probably counter by saying you allowed another person to put your rubbish out on the curb on the wrong day or did not take reasonable stept to prevent it from happening (something you have already admitted on the phone).
The fly tipping legislation is S33 Environmental Protection Act 1990. The part you will possibly have trouble with is part (a)

S33 Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste.E+W
(1)a person shall not—
(a)deposit controlled waste or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the licence;

Potentially you have allowed a flatmate to put your rubbish out potentially committing the offence. The council can not prove which flatmate did it but they can prove that your rubbish was included.

I doubt you were cautioned when speaking to the lady on the phone, so it is quite possible (highly) that what you said to her would not be admissible in court. You may also get away with whatever you said in your email too, however the council may argue that what you sent them or said on the phone were unsolicited statements so it may be up to the court to decide to exclude these as evidence under S78 PACE.

My advice to you is do not say anything more to the council until you phone a solicitor as you may be incriminating your self further.

PasturesNew

This is the annoyance of modern life. "System says no". There's no simple way to speak to somebody, laugh, get it sorted out and move on.... all these "fines" are just crazy these days.

Yes, you should've found out which day was bin day, but as what you'd done had worked in the past you didn't know you were getting it wrong. A simple "Oi, don't" note first time would've sufficed.

But no. System says no these days.

I'd go and not have legal representation and stick to the facts.
1/ Wasn't me.
2/ Don't know who it was.

Those are the facts. It's not your job to speculate who it might've been, or to ask the others, or to enquire if their visitors/guests grabbed it and offered to put it out for them.

Did you do this? No.
Do you know who did this? No.
Do others live there? Yes
Who? Bob and Dave
Have you asked Bob and Dave? I am not their mother, so no.

I'm not sure when the world switched over to "System says no", but it's not bl00dy ridiculous.