Commentary on Provisions Littering from vehicles: civil penalties Section 18: Littering from a vehicle
95.Section 18 of the Act amends the Environmental Protection Act 1990 (“the 1990 Act”) by inserting two new sections, 88C and 88D. They add a new enforcement power in respect of an offence of littering under section 87 of the 1990 Act, where the act of littering is from a vehicle. This enforcement power is already available in England and Wales and the new provisions are designed to extend it to Scottish litter authorities (defined in section 88C(6)).
96.Section 88C(1) gives a litter authority a power to impose a civil penalty charge on the registered keeper of a vehicle in certain circumstances. An authorised officer of the authority must be satisfied on the balance of probabilities, the usual standard of proof in the civil context, that an offence of littering has been committed from the vehicle (section 88C(1)(a)) and that the vehicle was on land within the litter authority’s area at the time that the littering occurred (section 88C(1)(b)).
97.Section 88C(2) defines the keeper of a vehicle for the purposes of this section. This is the person who keeps the car at the time of the act of littering in question: for a registered vehicle the presumption is that this will be the person in whose name the vehicle is registered, but that presumption can be rebutted if there is evidence to the contrary, e.g. if the registered keeper proves that they had loaned the vehicle to someone else at the time of littering.
98.Section 88C(3) sets out the trigger for the keeper’s liability to pay the civil penalty charge, which is the giving of a notice to the keeper to that effect.
99.Section 88C(4) provides for two limitations on the authority’s ability to impose a civil penalty charge. First, there is a backstop of three months from the date of the offence (section 88C(4)(a)). Second, if criminal action or a fixed penalty is being pursued against the person who committed the offence, no civil penalty charge can be given to the keeper (section 88C(4)(b)), even if that person is not the same person as the keeper, and whether or not the criminal action is ongoing or was successful or whether the fixed penalty was paid.
100.Section 88C(5) gives the Scottish Ministers the power to make regulations which provide further detail about the civil penalty regime in various respects, which are set out in paragraphs (a) to (k). Such regulations are subject to the affirmative Parliamentary procedure by virtue of section 18(3) of the Act, which adds reference to them to section 160A(2) of the 1990 Act.
101.Section 88C(6) provides definitions that apply for the purposes of section 88C, including defining “litter authority” to mean a local authority, the Loch Lomond and the Trossachs National Park Authority or such other person as may be specified in regulations by the Scottish Ministers.
102.The second of the two new sections, section 88D, sets out the consequences of a civil penalty charge notice having been given. Section 88D(1) prevents criminal action in respect of the act of littering which was the subject of the civil penalty charge notice, so long as the charge has been paid in full. This limit on prosecution applies regardless of whether or not the person who paid the charge is the vehicle’s keeper.
103.Where any civil penalty charge is outstanding after 28 days from the date the notice was given, section 88D(2) allows the authority to pursue that debt as if it was an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom, meaning it can be enforced by way of diligence – i.e. as if a court action had been won in respect of the money, and without the necessity of any further court proceedings.