Councils such as Wrexham have adopted a “Zero Tolerance” approach to littering offences described in the Environmental Protection Act 1990, section 87. Crucially they have based that on the following statement from Kingdom Security:
â€œCrucially, section 87 of the EPA states that it is a criminal offence for a person to drop, throw down, leave or deposit litter in a public place.â€�
Whereas the actual legislation states:
â€œA person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.â€�
The difference in these two statements is glaringly obvious – the misplacement of the term â€˜and leaves itâ€™ in Kingdomâ€™s statement above completely removes the statutory intent of the legislation, ie to commit the offence you must leave said litter and refuse to pick up when asked.
The EPA s87 expressly requires the defendant to leave the litter in order to complete the offence. The actus reus, to use legal jargon, is a throwing down (etc) AND leaving. In Defraâ€™s current guidance â€œLocal environmental enforcement â€“ Guidance on the use of fixed penalty noticesâ€�, issued in 2007, it is stated that â€œa fixed penalty notice should only be issued where there is evidence of intent; this is to say that someone clearly meant to drop the litter in the first placeâ€�.
So in Defraâ€™s opinion, mens rea (another legal term meaning to have a guilty mind) is required. In Kingdomâ€™s statement however, the actus reus is dropping, throwing down, leaving or depositing and leads to an incorrect interpretation that littering is a strict liability offence, and hence Zero Tolerance is applicable.
However, if it was a strict liability offence, even accidental dropping of something would have to be included and, again, Defra states in both its current guidance and revised draft statutory guidance, that â€œa FPN should not be issued â€¦ if the litter offence is accidental â€“ for example if something falls from someoneâ€™s pocket.â€�. This is further proof that the statutory intent of the legislation is to prosecute someone who has littered with intent and is therefore not a strict liability offence.
The concept of Zero Tolerance cannot therefore be applied to this legislation. If the words â€œâ€¦. and leave itâ€� and the corresponding Government Issued Guidance did not categorically state examples of when FPNs should not be issued, then it could be argued to the contrary, due to both the wording of the act indicating strict liability and the offence carrying a small penalty (Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong  AC 1) but this is not the case. The legislation and supporting guidance clearly indicate that proof of mens rea is required.
It is argued that the subtle rewriting of a piece of statutory legislation on (arguably the market leader) Kingdomâ€™s website has been taken as gospel by local authorities throughout the UK.
The concept of Zero Tolerance has been incorrectly applied to littering offences based on this rewritten legislation, which is contrary to the statutory intent of the legislation and its supporting government guidance and has further been used as an alleged means of raising money from innocent members of the public.