Fixed Penalty Notices - frequently asked questions

What is a Fixed Penalty Notice?

A Fixed Penalty Notice (FPN) provides a quick, visible and effective way of dealing with low-level environmental and community protection offences and offers the recipient an opportunity to avoid being prosecuted. They are therefore suitable for first-time offenders, minor offences, and 'one-off' incidents.

It can be issued by an authorised council officer or by the Police to a person who the officer has reason to be believe has committed a criminal offence.

These notices may be issued on-the-spot, or through the post.

The notice gives the option to avoid prosecution. By paying the fixed penalty, the recipient discharges their liability to a criminal conviction.

Why have I been given a Fixed Penalty Notice?

Sunderland residents regularly say they want their streets to be free of litter and waste. Every year the council has to spend millions of pounds picking up litter and waste, which has just been thrown, or dumped down onto the ground. From cigarette ends to chip wrappers and plastic bin bags; it all costs money to clear up. Issuing FPNs is just one of the ways the council is trying to reduce litter and waste on our streets.

You may also be issued with an FPN if you breach the council's Public Space Protection Order (PSPO), which includes offences relating to antisocial behaviour, along with dog control issues and fouling.

Do I have to provide my details to the council's officers?

Yes. For example, it is an offence under sections 88(8A) and (8B) of the Environmental Protection Act 1990 for a person to fail to give their name and address when required to do so by an authorised officer, or to give a false or inaccurate name or address.

This also applies to any offences committed under the council's Public Spaces Protection Order (Anti-Social Behaviour, Crime and Policing Act 2014), where if you knowingly give false, inaccurate, or misleading information to an authorised officer, this is an offence.

The officer must establish the identity of the person they suspect of an offence and will seek to verify the information given.

A person who does not give their name and a satisfactory address for the purpose of serving a summons, or charge is liable to arrest by a police officer.

I don't see why I should pay if there are no signs about littering in the area?

The council is not required to place signs in every street, road, highway or open park space to inform people not to litter, or to inform them that litter patrols are operating in the area. Litter legislation has been in force for many years and littering in many parts of the UK is at such levels, that councils across the country are now actively issuing FPNs to people who inappropriately discard their litter.

Why should I pay a Fixed Penalty Notice when there were no litter bins nearby at the time?

As with signage it is not feasible for the council to place litter bins in every street, road and highway, though of course every effort is made to place bins where they are most needed such as in town centres and parks and open spaces. Where bins are not available then it is up to everyone to act responsibly and make arrangements to either take their litter home or carry it until a litter bin is available.

I received a Fixed Penalty Notice for dropping a cigarette butt, surely that can't be considered littering.

Litter includes not only cigarette butts and associated materials but also chewing gum. In many ways these items are more problematic and more expensive to clean up than other forms of rubbish.

Cigarette butts cannot be placed in litter bins because they will set fire to them. What else should I do?

Smokers are responsible for ensuring they completely extinguish their cigarettes before placing them in the bin. Cigarette waste is considered the same as any other waste in terms of litter laws and you can be issued with an FPN for not disposing of cigarette butts properly.

Care should be taken to avoid any risk of fire and in particular cigarette butts should be completely extinguished before being thrown into the bin. There are also a number of portable ashtrays available on the market that can be purchased and used to store cigarette butts until they can be disposed of safely and legally.

I wasn't given a warning, surely that is not fair.

The offence of littering is a criminal offence and is something that used to only be dealt with by referral to courts. The Government brought in FPNs as a way to avoid prosecutions and criminal records unnecessarily. Unfortunately, there are still some people who do not think, can't be bothered, or litter because they believe someone else will clean it up. Our Neighbourhood Enforcement and Prosecution Policy, sets out that when an offence has been committed and witnessed, we will issue an FPN rather than prosecute every offence. This effectively is a warning.

Why was I given a fixed penalty when I offered to pick up the litter?

It is important to realise that the littering offence relates to the dropping of litter and walking away once you have dropped it. Therefore, whether or not you volunteer to pick up your litter afterwards, you have committed an offence and will be issued with a fixed penalty.

Where do the officers patrol?

The officers are tasked to areas of highest demand and will patrol wherever there is evidence of littering or antisocial behaviour.

The officers were in plain clothes - I didn't know or see them?

Authorised officers may patrol in uniform or in plain clothes. If someone suggests that they would not have committed an offence if the officer had been in a uniform, then this would demonstrate guilty knowledge, awareness of the offence and of intent to break the law.

If I put it down a drain is that an offence?

Placing a cigarette butt down a drain, or in a stream is still an offence and will result in the issuing of an FPN.

What happens if I refuse to pay the Fixed Penalty Notice?

If you refuse to pay the FPN, then your case would progress to the local Magistrate's Court. The maximum penalty on conviction can vary depending on the type of offence which has been committed, which can result in a criminal conviction, along with any associated costs in bringing the prosecution to court. 

Can I pay by instalments?

The council will accept payments by instalments for FPNs. Should you wish to apply for an extension you can do so by writing to the address on your FPN. It should be noted that the maximum extension the council can offer is up to 12 weeks.

Why was my encounter with the officer being recorded and can I obtain a copy of the footage?

Encounters between members of the public and our officers are recorded using Body Worn Video Cameras (BWVC). These cameras are not used to record the offences themselves but are used to record the subsequent encounters with members of the public. Whilst the matter remains outstanding, either by way of payment of the fixed penalty, or a pending criminal prosecution, there is no legal right to obtain a copy of the footage under a Subject Access Request (Part 3 of the Data Protection Act 2018).

The council will of course comply with its legal requirements for disclosure under Criminal Procedure Investigations Act 1996 should a case go to criminal trial.

Should you wish to obtain a copy of the footage of your encounter after you have paid a FPN, or on conclusion of legal proceedings, you can do so making a subject access request to the council. Please note that if any footage is provided, a cost will apply.  

Is there a discount if I pay my fixed penalty early?

Fixed penalties are set by the council in accordance with Government guidance, whereby in some cases we will accept a reduced amount if the full payment is received within 10 days.

I dropped my litter on privately owned land, surely the council cannot issue a fixed penalty for this.

Under the littering legislation, The Environmental Protection Act 1990, it is an offence to drop litter on any land which is open to the air to which the public have access. This is irrespective of whether or not the land is in public (council) or private ownership. There is, however, a statutory defence where a person can show that their litter was dropped with the consent of the owner, occupier or other person having control of the land on which the litter was deposited. Where a person wishes to explore this defence then they must provide the council with written evidence from the landowner of their consent to deposit litter on their land. In practice the council have found very few landowners who have been willing to allow litter to be dropped on their land.

I did not know it was an offence to drop litter. It was an accident, if I had known it was an offence, I would not have done it.

Government guidance refers to the term 'accidental littering' and recommends that officers do not issue FPNs in cases of accidental littering. The term 'accidental littering' applies to circumstances where litter is dropped without intent, for example if something falls from a person's pocket whilst they are walking along a street without their knowledge. This term does not apply to circumstances where a person did not know that littering was an offence e.g. "I did not know that a cigarette butt was litter. I would not have dropped it if I had known this." Officers are trained to assess whether or not litter was dropped accidentally, or intentionally. In cases of accidental littering officers will make the person aware of the incident, whereby they will be given the opportunity to rectify the matter. Where anyone disregards the officers request and fails to pick up their litter then a FPN may be issued.

What happens to the money you get from fixed penalties?

Paid fixed penalties fund the functions to which the FPN relates, which means a paid litter penalty pays for litter enforcement. The use of the fixed penalty receipts is covered by legislation which defines what the 'qualifying functions' are.

Fines are paid to the HM Courts & Tribunals Service and not to the council.

Are the officers paid commission for issuing FPNs?

The officers in Sunderland are not paid on commission and are salaried. Some of the issues and incidents they deal with do not result in a FPN, or are offences for which the option of a FPN is not available.

FPNs are issued by officers directly employed by the council, or by Police Officers and Police Community Support Officers.

Fines are paid to the HM Courts & Tribunals Service and not to the council.

How do I dispute an FPN I have been issued with?

Fixed Penalty Notices are designed to give an offender the opportunity to discharge any liability to conviction for an offence - which means that by admitting the offence and paying the fine, an offender can avoid being prosecuted for that offence.

There is no formal appeal process for certain FPNs. However, if the recipient disagrees that they have committed an offence, they can decide not to pay the FPN, and the matter will then be decided by a court. However, this can be expensive and time-consuming for both parties. Consequently, Sunderland City Council has developed an internal appeals process that can help to resolve disputes before they get to court.

Cases where an internal dispute might be considered favourably include, but are not limited to, instances where you can demonstrate that:

• No offence was committed, or the FPN has been wrongly issued
• The offence was committed by someone else
• The offence wasn't the fault of the person against whom the FPN was served
• The FPN should not have been issued because the offender is under 18 or is physically or mentally incapacitated or has some other incapacity that prevented the person from understanding that they committed an offence
• Serving the FPN is not considered to be in the public interest, however do not forget, the council has a duty to enforce the law. FPNs are designed to be a quick and easy way to deal with minor offences

In order to serve an FPN, the issuing officer will have evidence that an offence was committed by the person against whom the FPN was issued. Any dispute must therefore clearly show the reasons why the FPN should be cancelled. You will be required to provide evidence, such as photos, witnesses etc. so that we can fully consider the dispute.

There are a range of reasons where a dispute shall not be considered, and these include:

• Ignorance of the law - the test would be whether a reasonable person would be aware that an offence had been committed - it is common knowledge that dropping litter, fly tipping and allowing dogs to foul is wrong. It is not a defence to imply that you have not seen the signage that is clearly displayed or that you were not aware that the Public Spaces Protection Order restrictions were in force
• You didn't know an offence had been committed - the test would be whether a reasonable person would have known what had happened - for example, this includes knowing where your dog is and what it is doing so that you can clear up any mess it leaves
• You couldn't prevent the offence - the test would be whether a reasonable person could have taken steps to prevent the offence occurring, for example by keeping your dog under control so that it doesn't enter a banned area or keeping litter in your pocket until you can find a public litter bin or get home to dispose of it
• The offence was minor - that's why a FPN has been issued, as this gives the opportunity to avoid going to court. More serious offences may be prosecuted immediately
• It's not in the public interest to pursue the offence - although these are minor offences, the levels of litter, fly-tipping and dog faeces etc. are something that concern local residents and Ward Councillors. Sunderland City Council need to respond to these concerns by making sure the law is enforced. The council also spends a lot of money cleaning the streets, and anything we can do to stop litter, fly tipping, dog fouling etc, helps us to do this more effectively.

How do we deal with disputes?

If you disagree that you have committed an offence, or feel that it was unreasonable for the FPN to be issued, you can dispute it (in writing):

• by post to Neighbourhood Enforcement, Jack Crawford House, Commercial Road, Sunderland SR2 8QR
• by email to fixedpenaltynotices@sunderland.gov.uk

Every dispute will:

• be considered on its merits, based on the information and evidence provided by the appellant and by the person who issued the FPN
• receive a full written response, normally within 10 working days.

Where disputes are not upheld, the reasons for this will be fully explained.