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#Post#: 4894--------------------------------------------------
FPN - Section s33. s87 - Name and address inside bin bag as evid
ence only
By: ello91 Date: September 11, 2023, 11:54 am
---------------------------------------------------------
Hello,
Few days ago I was sent a letter in the post from Newham for:
"Interview under caution" for Environmental Protection act 1990
s33, s34, s87.
Containing questions about a bin bag being placed outside, I
replied to all the questions with "no comment" and that i
normally dispose of all rubbish during the timed collection
hours, i did not admit guilt or acknowledge the rubbish as mine.
On this occasion, Enforcement officers had gone through bin bags
and found my name and address, they did not witness me place it
there or directly approach me for this FPN, everything has been
through post or email assuming i placed it.
Do I have any chance of appealing this due to lack of evidence?
or simply having your personal details inside rubbish is enough
to be at fault?
This is there response after I answered the interview questions:
on this occasion, having reviewed your answers, I have concluded
this matter can be dealt with by service of a Fixed Penalty
Notice (FPN),
All householders, including yourself have a Duty of Care under
Section 87 of the Environmental Protection Act 1990, to ensure
that any waste generated at your property is disposed of legally
and responsibly, Upon looking at the evidence in exhibit JM001S
you have not disposed of this legally .
Can anyone help? I've searched online and not found much
information regarding this type of situation.
only way to respond to this is as "Representations" or should I
just pay the fine and avoid any court issues?
#Post#: 4898--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ivanleo Date: September 11, 2023, 12:41 pm
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I've sent you a PM.
If you want to contest this, you can ignore the FPN and wait for
the court summons. You will then be able to plead not guilty and
it will be for the council to prove, beyond reasonable doubt,
that you are guilty.
I've had a local authority solicitor openly admit to me that
they just try it on knowing that most people don't know the law,
and if you simply turn up to court on the day they drop the
charges as they have no evidence.
#Post#: 4903--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: andy_foster Date: September 11, 2023, 1:35 pm
---------------------------------------------------------
With most minor legal issues, there are 2 parts - what does the
applicable law say, and when happens in practice.
For example, if in practice the prosecution invariably drop the
case if you blink first, the law is of little consequence.
As has been said, there is currently nothing to appeal - you can
accept their offer of an out of court disposal, or you can
decline/ignore it and they can subsequently prosecute you or
not.
As far as I can tell, their comment about s. 87 EPA 1990 is a
big fat lie (specific legal term) - actual legislation here
HTML https://www.legislation.gov.uk/ukpga/1990/43/section/87.<br
/>However, whether or not their pants are on fire has little
bearing on whether or not they can prove beyond any reasonable
doubt that you committed the actual offence created by s. 87 (as
opposed to the one they made up to try to intimidate you).
In a criminal trial, the court have to be certain beyond any
reasonable doubt that the accused committed the offence. This is
not quite the same as the flawed belief that the prosecution
must prove their case beyond any reasonable doubt. The way that
a trial works (in theory) is that the prosecution present their
case (evidence and legal argument) and then the court decide
whether or not there is a case to answer (whether they are
satisfied on the balance of probabilities that the accused is
guilty). The defence then present their case, and the court can
take such inferences as might be proper from the accused's
refusal to give evidence, although they cannot convict on
inference alone. If at the end of the defence's case they are
satisfied beyond any reasonable doubt that the accused is
guilty, they will convict.
For future reference (doesn't help you now), if you're going to
seek legal advice, do so before doing something that could
potentially paint you into a corner.
"No comment" in an interview under caution can give rise to the
inference that if it wasn't you, you would have said so".
However, if you had declined to answer until such time as you
had obtained legal advice, that cannot be held against you.
In relation to a note inviting you to incriminate yourself, I
would not consider that to be an interview until such time as I
responded, which would be sometime around "never" - unless I had
some defence that I wanted to set out at the earliest
opportunity. I do not believe that ignoring the letter could
have been held against you.
I would suggest that if material addressed to you was found in
illegally deposited litter, that raises a case to answer that it
was you who deposited it. On its own it is not proof beyond any
reasonable doubt, but combined with inferences that a court
might make of your "no comment" "interview", it could be. The
obvious questions is, if you didn't deposit the litter, what
reasons might you have had for declining to comment (other than
bloody-mindedness).
#Post#: 4906--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ivanleo Date: September 11, 2023, 3:01 pm
---------------------------------------------------------
I would suggest if you're going to trial, you need to
cross-examine the council witness who found the evidence. They
will not be able to give any positive evidence to show that you
physically placed the litter there, and I suspect that if you
object to their statements being read out in court that might be
enough for the council to fold.
#Post#: 4907--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: Southpaw82 Date: September 11, 2023, 3:04 pm
---------------------------------------------------------
[quote author=cp8759 link=topic=520.msg4906#msg4906
date=1694462465]
I would suggest if you're going to trial, you need to
cross-examine the council witness who found the evidence. They
will not be able to give any positive evidence to show that you
physically placed the litter there, and I suspect that if you
object to their statements being read out in court that might be
enough for the council to fold.
[/quote]
If they can’t give any positive evidence (which one would expect
to be give in evidence in chief, either orally or via a s 9
statement) why would you cross-examine them? If the crucial
evidence hasn’t been given, you don’t want to them give them the
opportunity (in cross or in re-examination) to then give it.
#Post#: 4914--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ello91 Date: September 11, 2023, 3:23 pm
---------------------------------------------------------
Thank you for all your responses,
Unfortunately I was silly not to ask for advice sooner and have
never been in a legal situation, so presumed the reason they did
not immediately send a FPN but instead a Interview letter, was
to just scare people with these questions into admitting guilt
when they lacked evidence, I thought "no comment" would protect
me from saying anything to incriminate myself, weather innocent
or not and they would not pursue it further. at least have
learned more about the law in this thread.
It also mentioned if I did not respond within 7 days, they would
send a Fixed Penalty notice instead.
#Post#: 4918--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ivanleo Date: September 11, 2023, 4:07 pm
---------------------------------------------------------
[quote author=Southpaw82 link=topic=520.msg4907#msg4907
date=1694462693]
If they can’t give any positive evidence (which one would expect
to be give in evidence in chief, either orally or via a s 9
statement) why would you cross-examine them? If the crucial
evidence hasn’t been given, you don’t want to them give them the
opportunity (in cross or in re-examination) to then give it.
[/quote]
We'd want to see the statement first, but I'm sort of assuming
(dangerous I know) that they'd claim the rubbish was placed
there by ello91 because of the contents they found, so you'd
then want to ask them how they know that ello91 personally put
the items there rather than some other person in their
household, a disgruntled neighbour or whoever else. If in answer
to a direct question about that the prosecution witness can't
give a credible answer, their case should fall flat on its face.
Of course I'm starting from the premise that the officer isn't
going to just lie and claim he's seen something he or she hasn't
seen at all.
#Post#: 4920--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: Southpaw82 Date: September 11, 2023, 4:13 pm
---------------------------------------------------------
[quote author=cp8759 link=topic=520.msg4918#msg4918
date=1694466445]
We'd want to see the statement first, but I'm sort of assuming
(dangerous I know) that they'd claim the rubbish was placed
there by ello91 because of the contents they found, so you'd
then want to ask them how they know that ello91 personally put
the items there rather than some other person in their
household, a disgruntled neighbour or whoever else.
[/quote]
Just make the submission that there’s no evidence beyond the
presence of the defendant’s name and address in the bag. It’s
all tactics and experience but that’s probably the route I’d go
down, all other things being even.
#Post#: 4922--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ivanleo Date: September 11, 2023, 4:15 pm
---------------------------------------------------------
[quote author=ello91 link=topic=520.msg4914#msg4914
date=1694463823]
Unfortunately I was silly not to ask for advice sooner and have
never been in a legal situation, so presumed the reason they did
not immediately send a FPN but instead a Interview letter, was
to just scare people with these questions into admitting guilt
when they lacked evidence, I thought "no comment" would protect
me from saying anything to incriminate myself, weather innocent
or not and they would not pursue it further. at least have
learned more about the law in this thread.
[/quote]
In other countries it is indeed safe to say nothing as there is
no law on adverse inference, there is much information online
about how it's best to say nothing at all and that is good
advice for instance in the US.
Over here, it's far safer to avoid being interviewed under
caution in the first place, which is why the police have a power
to arrest people in order to interview them (but obviously the
council has no such powers).
I'm not sure that a paper questionnaire could be relied upon for
the purposes of an adverse inference. Looking at section 34 of
the Criminal Justice and Public Order Act 1994 it mentions "on
being questioned under caution by a constable trying to discover
whether or by whom the offence had been committed", presumably
there's something somewhere the disapplies the constable
requirement for local authority investigations?
#Post#: 4923--------------------------------------------------
Re: FPN - Section s33. s87 - Name and address inside bin bag as
evidence only
By: ivanleo Date: September 11, 2023, 4:17 pm
---------------------------------------------------------
[quote author=Southpaw82 link=topic=520.msg4920#msg4920
date=1694466802]
Just make the submission that there’s no evidence beyond the
presence of the defendant’s name and address in the bag. It’s
all tactics and experience but that’s probably the route I’d go
down, all other things being even.
[/quote]
I don't disagree, but I'd want recommend that once the summons
comes through [member=564]ello91[/member] asks for the initial
details of the prosecution case so that we can confirm this is
the best tactic.
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