LEGAL Expenses, LITTER and LOCAL Authorities

chasm

Hi All,
Im trying to find out if any person ever found innocent/not guilty of an offence under the litter pollution act were ever awarded their costs/legal expenses.
(Having a hard job finding any actual cases where the person was found innocent/not guilty!!!!)

I ask this as i have been told that the litter pollution acts(1997-2003) do not contain legislative provision authorising local authorities to reimburse legal expenses. Surely that cant be right? Can It?

Thanks Guys

Jo King

There is case law to the effect that the successful defendant in a criminal case cannot recover his costs. The only exception is where he can prove malicious prosecution. That is extremely rare and the recovery of costs will be in a separate action for damages for malicious prosecution.

Victor

AFAIK, with litter offences, the law has been changed radically against the accused, even with the presumption of innocence changed (it's not a captial offence remember).

chasm

Why is it that with litter offences the onus is on the accused to prove that they are innocent, Does that mean we do not have the right in the eyes of the law to be "innocent until proven guilty" ?

Rhonda9000

chasm wrote:

Why is it that with litter offences the onus is on the accused to prove that they are innocent, Does that mean we do not have the right in the eyes of the law to be "innocent until proven guilty" ?

It seems you are running the presumption of innocence and burden of proof doctrines together here?

Victor

chasm wrote:

Why is it that with litter offences the onus is on the accused to prove that they are innocent, Does that mean we do not have the right in the eyes of the law to be "innocent until proven guilty" ?

There has been a problem getting convictions for littering, so they changed the rules. Just like they changed the rules for any other crime where the legal position and reality were un-reconcileable. Look at things like charges for "directing terrorism which were introduced because charges of murder, conspiracy to murder, etc. weren't able to succeed.

Of course, for petty littering, I don't think anyone is going to prison, so it is a huge errosion of rights.

johnnyskeleton

Rhonda9000 wrote:

It seems you are running the presumption of innocence and burden of proof doctrines together here?

That the burden of proof shall remain at all times on the prosecution stems from the constitutionally protected presumption of innocence. It is the golden thread that runs through our criminal justice system.

In circumstances where the offence is minor, any challenge to the constitutionality of the act would probably be settled by the state on the basis that most of the people charged wouldn't have the resources to challenge it.

Rhonda9000

johnnyskeleton wrote:

That the burden of proof shall remain at all times on the prosecution stems from the constitutionally protected presumption of innocence. It is the golden thread that runs through our criminal justice system.

In circumstances where the offence is minor, any challenge to the constitutionality of the act would probably be settled by the state on the basis that most of the people charged wouldn't have the resources to challenge it.

Hi Johnny

Yes I get that re the burden of proof. What I am at a loss about is - is there necessarily a reversal of the presumption of innocence in minor offences like littering mentioned above? Is it written into the statute? Or is it derived from the idea that e.g. if I park on a double yellow and get a parking ticket in the post my guilt is presumed until such time as I successfully challenge the ticket??

Our man in Havana

Even with a parking ticket you can go to the district court and contest it. The prosecution still have to prove your guilt beyond reasonable doubt.

The parking ticket says that you are alleged to have committed an offence specified and if you pay a sum within 21 days the prosecution will be stayed.

Rhonda9000

Yes Bond, that is how I understood the practicality of the situation.. What I'm still pondering is where the discussion went from there starting with...

chasm wrote:

Why is it that with litter offences the onus is on the accused to prove that they are innocent, Does that mean we do not have the right in the eyes of the law to be "innocent until proven guilty" ?

...?

Sometimes I tell myself I shouldn't read some of these threads as they will insert bogus knowledge into my head and exam performance will be affected!

chasm

My Apologies, I was not attempting to insert "bogus" knowledge into this thread.
TBH, regarding Legal affairs i probably know a little bit more than some but a awful lot less than Most- hence the 2 questions that i asked.
I asked my second question in response to victors answer, as his reply jogged my memory about a piece of paperwork i have that states "the onus is on the alleged offender to prove his or her innocence"
Im probably out of my league in this forum, something i will readily admit to, but what can i say-i had a question (well one initially!!) that i was interested in knowing the answer to:-)

Our man in Havana

"the onus is on the alleged offender to prove his or her innocence"

That is never the case in any court in this country. The onus is on the prosecution to prove that you are guilty.

Rhonda9000

chasm wrote:

My Apologies, I was not attempting to insert "bogus" knowledge into this thread.
TBH, regarding Legal affairs i probably know a little bit more than some but a awful lot less than Most- hence the 2 questions that i asked.
I asked my second question in response to victors answer, as his reply jogged my memory about a piece of paperwork i have that states "the onus is on the alleged offender to prove his or her innocence"
Im probably out of my league in this forum, something i will readily admit to, but what can i say-i had a question (well one initially!!) that i was interested in knowing the answer to:-)

Discuss away chasm, its what the forum is for. I enjoy reading these posts as it's helping me brush up on a wide number of areas for exams. I have this irrational fear on the other hand of having something baffle me and then be sitting there trying to think of an exam answer only being able to remember the something that confused me!!! Just need to study harder I think!

chasm

Bond-007 wrote:

That is never the case in any court in this country. The onus is on the prosecution to prove that you are guilty.

That is exactly how it is worded on the letter that i have in front of me though!
I should state that in this case the alleged offender did not go to court- I'll try to keep this as short as possible: they hadnt lived at the address(of offending mail) for a couple of years, they contacted the Co Co in question-but the council told them to pay the fine or go to court-as accused knew that they were not guilty they wouldnt pay the fine so contacted a solicitor, who in turn got the council to accept a written submission-Council received said submission then decided not to take proceedings against alleged offender. Result: Legal Bill for the alleged offender.
That person then lodged a complaint with ombudsman who wrote back stating that the councils response was that "the council is not prepared to meet "----" legal expenses for the following reasons...(of which one is..)
There is no provision under the litter pollution acts 1997-2003 to allow local authorities to reimburse legal expenses to recipients of on the spot fines. IN FACT THE ONUS IS ON THE ALLEGED OFFENDER TO PROVE HIS OR HER INNOCENCE.
Obviously there are other ins and outs to this case but i dont think they are of any relevence.

Jo King

Litter Pollution Act 1997

26. —Where the contents of litter that has been deposited in contravention of this Act or of municipal waste that has been placed in contravention of section 3(3) gives rise to a reasonable suspicion as to the identity of the person from whom the litter or waste emanated, the contents shall, in a prosecution of the person for an offence under this Act, constitute evidence, in the absence of evidence to the contrary, that the litter or waste emanated from the person before the deposit or placement and that the person made the contravening deposit or placement.

There is no onus on an accused to prove his innocence, there is a presumption which may be drawn from the contents of the waste. So if a letter is found addressed to you in litter, you will have to produce evidence to rebut the presumption that you are the offender. This is not unusual in law. There are a number of offences which carry such presumptions. Some of them have been considered by the higher courts. Eg Hardy v Ireland [1994] 2 IR p550. and O’Leary v AG [1995] 2 ILRM p259.
The courts have upheld the constitutionality of these type of provisions subject to the proviso that the burden on the accused in no more than a persuasive burden.

Rhonda9000

Jo King wrote:

Litter Pollution Act 1997

26. —Where the contents of litter that has been deposited in contravention of this Act or of municipal waste that has been placed in contravention of section 3(3) gives rise to a reasonable suspicion as to the identity of the person from whom the litter or waste emanated, the contents shall, in a prosecution of the person for an offence under this Act, constitute evidence, in the absence of evidence to the contrary, that the litter or waste emanated from the person before the deposit or placement and that the person made the contravening deposit or placement.

There is no onus on an accused to prove his innocence, there is a presumption which may be drawn from the contents of the waste. So if a letter is found addressed to you in litter, you will have to produce evidence to rebut the presumption that you are the offender. This is not unusual in law. There are a number of offences which carry such presumptions. Some of them have been considered by the higher courts. Eg Hardy v Ireland [1994] 2 IR p550. and O’Leary v AG [1995] 2 ILRM p259.
The courts have upheld the constitutionality of these type of provisions subject to the proviso that the burden on the accused in no more than a persuasive burden.

So to confirm, the presumption of innocence is left alone [as it should be] but the burden of proof for a litter offence is shifted onto the accused for practical reasons..?

Regarding the strange claim in the letter received - could this just be down to sloppy wording by some civil service worker drone?

Rhonda9000

Supposing you had a valuable document with your name and address on it and you lose hold of it and it blows away in the wind. A litter warden picks it up off the street, and prosecutes on foot of name / address printed on document. You are relieved to hear the document has been recovered and are prepared to pay the fine for your accidental littering.

Can you claim the document back as your property? Or is it destroyed as litter in line with it becoming the local authorities property as with e.g. a wheelie bin on the pavement awaiting collection..

Our man in Havana

Of course you can claim it back.

Rhonda9000

Bond-007 wrote:

Of course you can claim it back.

So to go a little further, can you write your address on a piece of dirty rubbish, throw it on the ground / have it blown somewhere else in the wind, be prosecuted for littering when the litter warden picks it up and claim the piece of dirty rubbish back as your property?

I didn't realise there was provision to claim back the actual piece of litter - be it litter as we all understand it, dog foul, or something that you didnt intend on littering with but that just happened to leave your control..

johnnyskeleton

Rhonda9000 wrote:

So to confirm, the presumption of innocence is left alone [as it should be] but the burden of proof for a litter offence is shifted onto the accused for practical reasons..?

The presumption of innocence would have no real effect if the burden of proof in a criminal case is on the accused. Some statutes allow a court to make a presumption - if A is proved then B can be presumed in the absence of any evidence to the contrary. The prosecution must prove A, and if they do, the court is entiteld to presume B. However, the defence can, if they wish, adduce evidence to rebut B.

So evidence of one fact can be used to presume another fact. But the prosecution must at all times prove the guilt of the accused.

Our man in Havana

Rhonda9000 wrote:

So to go a little further, can you write your address on a piece of dirty rubbish, throw it on the ground / have it blown somewhere else in the wind, be prosecuted for littering when the litter warden picks it up and claim the piece of dirty rubbish back as your property?

I didn't realise there was provision to claim back the actual piece of litter - be it litter as we all understand it, dog foul, or something that you didnt intend on littering with but that just happened to leave your control..

I used to be involved in prosecutions for littering. I would give back envelopes, letters etc to people so long as the fine was paid and the items were not required for evidence in court. If they were going to court they would not be available to be returned until a case was concluded. Generally at that stage a person would not want them back.

Rhonda9000

Bond-007 wrote:

I used to be involved in prosecutions for littering. I would give back envelopes, letters etc to people so long as the fine was paid and the items were not required for evidence in court. If they were going to court they would not be available to be returned until a case was concluded. Generally at that stage a person would not want them back.

You learn something new every day; thanks for that Bond. I can understand people not wanting the stuff back etc, but presumed it would be destroyed and that an accused had no way of retrieving it ..

Victor

I think there might be a difference in treatment between a file of legal documents and a bag of rubbish that happened to contain letters.