Local authorities have urged the Sentencing Council to increase fines for fly-tipping significantly, so they act as a suitable deterrent, and for repeat offenders to be given suspended custodial sentences.
The call was made in a letter co-signed by the Local Government Association, 158 local authorities and 10 professional bodies to the Sentencing Council, which is carrying out a review of the Sentencing Guideline for Environmental Offences.
The LGA noted that, currently, the Sentencing Guideline sets out a 12-step process to determine the sentence for a fly-tipping offence. “A deliberate fly-tipping offence designated to incur ‘minor’ environmental harm brings with it a fine with a starting point of Band F, which is 600% of weekly earnings. Based on average UK earnings, this should amount to over £3,000, but from the 2,671 court fines issued in 2019/20, the total value of these was £1,170,000 – an average of £438 per fine."
The LGA claimed that current sentences handed down failed to match the severity of the offence committed and did not act as a suitable deterrent, “highlighted by the fact that almost 20,000 incidents of fly-tipping occur each week in England”.
The letter says amongst other things that:
- In cases where a defendant opts to go to court and loses, it seems logical that in order to encourage the use of FPNs [fixed penalty notices] and reduce pressure on the courts, court fines should exceed the maximum FPN available currently set in legislation at £400. “Such an approach should also take into account costs incurred by the public purse in bringing the case to court including local authority related costs, as well as any costs incurred by the police
especially where warrants for arrest have had to be issued for previous no shows.”
- When relevant aggravating factors related to fly tipping on private land are present including costs related to clear up and restoration these should be included as a default and therefore reflected in any such judgements.
- There was little evidence to suggest whether means declarations were being adequately tested by the courts. “A number of local authorities have found in practice that little is done by the courts to test means declarations beyond the defendant’s sworn assurance and this is despite [statements in the Guideline]…..Much more needs to be done to reinforce the need for courts to undertake robust checks of means declarations in line with the existing guidance.”
- A number of local authorities had observed that around 80% of people prosecuted for fly tipping offences already had previous varied court convictions underlining that their assumed integrity should not be taken for granted. “The issue is further compounded by some defendants declaring low official income levels but often benefitting from large undeclared sums of the type that can be gained through fly tipping.”
- If someone does not have the ability to pay a fine in full then ‘payment plans’ should not be used to tacitly discharge their liability to the extent that the defendant incurs no practical significant inconvenience or penalty that would hopefully motivate correct behaviours in the future. “At the moment such plans often have the practical consequence of relieving defendants of their responsibility for the negative impacts of their actions. A situation which is then exacerbated when defendants choose to stop paying, with the ‘court system’ unwilling to pursue such matters when the costs of doing so quickly outweigh the level of fine(s) and cost(s) involved. As a result the courts often look ‘soft’ on fly tipping, which can only encourage more defendants to opt for the court route as opposed to accepting an FPN.”
- Fly tipping offences should be looked at as the offence in the first instance, not the person who committed it, or their ability to pay. [Emphasis in the letter] "Arguably, all fines could be set like this i.e. in line with the Guideline but before a means test. Based on this approach we would suggest means testing should therefore be used to ascertain what type of fine(s) to give, and never how much."
- Arguably, all fines could be set like this i.e. in line with the Guideline but before a means test. “Based on this approach we would suggest means testing should therefore be used to ascertain what type of fine(s) to give, and never how much. Under this context we also suggest that a review of the Definitive Guideline needs to consider how can a Section 33 (fly tipping) offence be anything but deliberate?”
- If a defendant cannot pay the fine in full, or in part, then the letter’s signatories would ask that consideration is given to changing to the Guideline to allow for a much wider use of community based sentences as a matter of redress; “such as the recent example in April of this year from Basingstoke where a defendant was ordered to pay £784 in costs and was also given a community punishment order requiring 80 hours of community service”.
- There was opportunity to align any revisions to the Guideline with wider anti-social behaviour legislation including specifically the use of criminal behaviour orders.
- Evidence arising from 793 convictions secured in Buckinghamshire suggested that the single most effective deterrent to reoffending by even the most aggressive serial fly-tippers had been a suspended prison sentence with Buckinghamshire suggesting that such an approach had prevented 20 case offenders from reoffending. “More specifically it is suggested that whilst a 24 month suspension is preferable to 12 months, the prospect of possible incarceration works as a worthwhile deterrent. As such we suggest that anyone convicted of a fly tipping offence for a second time is not given another suspended sentence.”
Cllr Darren Rodwell, environment spokesperson for the Local Government Association, said: “Fly-tipping is inexcusable. Councils are working tirelessly to counter the thousands of incidents every year and are determined to crack down on the problem. However, prosecution requires a high threshold of proof and even when found guilty, the current fines fail to act as a deterrent.
“Fly-tipping currently costs local taxpayers almost £50m a year to clean up which could be better spent on other vital services in our communities, but until the fine matches the crime, the burden will continue to fall on residents.
“We are eager to work with government to update its sentencing guidelines to ensure that those caught and prosecuted for fly-tipping receive significant fines that help to offset the huge costs to councils and ensure they never offend again.”