Examination of Witnesses (Questions 180-199)
5 FEBRUARY 2004
COUNCILLOR SIR
DAVID WILLIAMS,
MR PHIL
DAVIES, MR
SIMON BAXTER,
DR LEITH
PENNY AND
MR PETER
LARGE
Q180 Mr Thomas: Just on one specific
example, we have also had evidence from the Environment Agency
and they mentioned what they are have been doing since 2000 when
a Sentencing Advisory Panel of the Court of Appeal said that the
standard of presentation needed to improve in environmental cases,
and the Environment Agency to this Committee set out what they
had done since the year 2000 to improve the standard of presentation.
Has there been a similar response in local authorities led by
the LGA, or could you, Southwark or Westminster, point to what
you have done to ensure your officers going into court were making
the best possible case?
Mr Large: I think the reason the
Environment Agency did that was that those comments made by the
Sentencing Advisory Panel were probably directed at the Environment
Agency rather than anybody else!
Q181 Mr Thomas: I think you are right.
Mr Large: At Westminster, we do
not prosecute environmental offences in an amateurish way at all.
We do it on a large scale and have been doing it on a large scale
for a long time, and our staff are well trained; my legal staff
train the enforcement staff; we always employ specialist counsel
to represent us in front of the magistrates, and I honestly do
not think it is the case that the reason that the people committing,
in our pet subject case, fly-posting offences are not being deterred
is because of the poor standard of presentation of prosecutions
before the magistrates. There is a range of much more complicated
reasons to do with the offences that are available and the way
in which the magistrates choose to use the powers they have.
Mr Davies: Coming back to other
local authorities and how we are all doing it, the issue is London
has a particular problem and therefore places like Southwark and
Westminster are able to realign their resources to deal with environmental
crime. For other local authorities it is not such a priority but
they still have an issue, and they have to provide solutions to
that issue. The problem they do have is that they can reinvest
and realign their budgets which are much smaller than London authority
budgets. However, if they get to court the sanction and the deterrent
they get from the court does not give them much satisfaction that
this is the right way to go, so when you are asking for budgets
and you are saying, "I would like £200,000", in
a district authority that is a lot of money and in an urban authority
such as Southwark or Westminster it is still a lot of money but
in the great scheme of things, within the £1 billion that
Southwark spends overall it is not that much money, and re-aligning
money and moving from one priority to another is a lot easier
than it is for a district authority. This is really about getting
in tune with enviro crime, and if the deterrents drive the required
priority through to our members then the budgets will be set aside
and the money re-aligned.
Q182 Mr Thomas: So, just to paraphrase,
when local members see local headlines about big hits on environmental
criminals, if you like, they will start thinking more seriously
about sending some serious money towards that in the local authority.
Mr Davies: Yes.
Mr Baxter: On the training, again
it is quite regional. On a local basis our officers have been
trained in the Police and Criminal Evidence Act, the Procedural
Investigations Act, RIPA and the Criminal Justice Act, so they
know how to put the case together and, reflecting Westminster's
work, our cases are spot on, but there is an issue for magistrates
and associations. I previously worked at Lewisham and we were
getting a very low level of fines there, and what we ended
up doing was a presentation to the Magistrates' Association on
one of their training days trying to get them to understand what
we were trying to do and why. It was not because we were draconian
or an awful borough but we were trying to improve people's lives,
reduce enviro crime and other forms of crimes, and affect the
impact that people have and their perception of the council and
the police and the criminal justice system, and once we had done
that the level of fines went up. There was even one guy there
who said, "If I messed up, I'd pay a fine of £5,000"—I
do not know if that ever happened and I am sure it was on a case-by-case
basis but that was the sort of enthusiasm we had. Now in Southwark
the level of fines can be very hit and miss, so it is about local
authorities getting to the local Magistrates' Association, doing
presentations, saying, "These are the issues, this is what
people are concerned with, and we would like you, Magistrates,
to do something about that and support the council and other agencies
in reducing this".
Q183 Chairman: Going back to something
you said earlier on about how environmental crime can lead on
to other things like arson, do you approach this whole area within
the context of the zero tolerance agenda which could have a huge
beneficial impact?
Mr Baxter: Certainly in both Lewisham
and Southwark we had a zero tolerance approach backed up by residents.
We had a citizens' panel and they were very keen that we took
a hard line on enviro crime, and I do think it does pay dividends
because certainly in Southwark there were areas we knew were crime
hot spots, and we linked in with the police and when we tackle
enviro crime in those hot spots their cleansing levels went up
so it was improving cleansing levels. I have dealt with some people
in the past—for instance, there was one guy who I was speaking
to about a highway obstruction who was repairing a vehicle on
a highway on one of our boundaries and he was wanted for burglary,
and there was another guy we spoke to who was sleeping in a van
which was an untaxed vehicle who was wanted for road traffic offences.
Clearly criminality breeds criminality and a lot of the people
we deal with in enviro crime may be and have been involved in
other forms of crime. There was a case where a licensed waste
transfer station in Lewisham was stealing containers from as far
away as Haringey and Kensington & Chelsea to supplement their
own commercial waste operation, and when we went in there with
the police he had a stolen BMW, a speed boat and a jet ski, so
these are the sort of people you are dealing with. I am not saying
everyone is like that. You mentioned the grass cuttings; I would
be reasonable about that. If the dustman has never collected it
from outside your house, or you have not got a bin, I do not think
you deserve a fixed penalty notice. However, if you have been
sneaky and tried to throw it three roads away and have been seen,
then you do deserve a fixed penalty notice. That has certainly
been my experience over the years and that is the only thing people
understand because I can have a kind word with you, you say, "It
won't happen again", and I go back three days later and we
are back where we were. In Southwark it is about a three piece
approach—education, publicity, raising awareness, getting
the area cleaned up and taking that hard approach at the end of
the day.
Mr Davies: You cannot have a zero
tolerance approach without the local authority doing their bit.
We take the view it is three way: clean it, raise the awareness
and then the zero tolerance. If you cannot do it as a local authority
and are not prepared to invest in making sure an area is clean,
how can you expect your residents to respect it and deal with
the waste in an appropriate manner. It is a local authority responsibility
as well. We have to stick our hands up and as a priority we have
to invest in all those sorts of things.
Q184 Mrs Clark: If I could grasp the
nettle of sentencing, quite early on in this inquiry we discovered
that there really is a major problem with sentencing—and
you have said it today. In fact, local authorities, widely based,
do seem to agree with the Environmental Agency whom we saw a couple
of weeks ago that the fines imposed for environmental crime are
far too low. Do you think this is partially down to the fact that
the maximum in law for fines for some offences is pitched too
low in the first place?
Cllr Sir David Williams: That
is certainly a problem but it is a wider problem than that in
that it should not just be fines but should be seriously deterrent
penalties which fines in some cases will not be if the maximum
fine is still less than the money that they saved. It is about
confiscation of vehicles, removal of people's driving licences
for offences involving vehicles and so on, and the point I made
earlier about a windscreen sticker makes enforcement that much
easier and deterrence that much easier. It comes down to deterrence
in my view, and thinking it is about fines and the level of fines
is only part of the problem.
Mr Baxter: A good example is a
bit of private land around Surrey Quays that had over £20,000
worth of fly-tip waste on it, and the individual that was caught
was only fined £500 and £500 costs because he said he
had only done the last three loads that we had a witness for!
I probably put him down for at least half of that but it is about
ability to pay and the sentence. You could say, for instance,
that the maximum fine for fly-tipping could be £50,000 but
if I am on income support I am going to be paying, what, ten pounds
a week for the next 300 years. It is about being creative, and
the magistrates and the judicial system need to be creative in
how they punish individuals. Certainly if I had been on the bench
or had the power I would be saying under I think it is Section
146 of the Powers of Criminal Courts Sentencing Act 2000, "Unfortunately,
Mr X, I am going to take your driving licence away and, by the
way, you will be help the local authority shovel that for the
next six months", because that is the only thing people understand.
They say sentencing orders is an alternative to prison but for
low level offences, if a child is caught doing graffiti, they
should be made to go and clear that graffiti off for the next
six weekends. There needs to be that creative action to make a
difference because that is the only thing people will understand.
If I have no money to pay you can award me £100 million fine
but you have no chance of getting it, and when I do get fined
£2,500 is that money then chased? In my experience it is
very rare that there is a warrant out for your arrest for non
payment. Should that fine then be connected to benefits? That
is something worth thinking about. We have the internet; we can
get to Mars; we can do all these crazy things but the DVLA talking
to local authorities, and links with business rates just do not
exist.
Cllr Sir David Williams: The sentencing
fines that are paid are alarmingly low in all this, and that indicates
a serious problem with the system.
Mr Large: We have a slightly different
problem in relation to fly-posting from an offender who does not
have the means to pay. The maximum penalty for putting up an advert
without consent, which is what fly-posting is, was £1,000
until 20 January, and it went up then under the Antisocial Behaviour
Act to £2,500. But of course a court will never impose the
maximum fine on a first offence, or even on a second or third
offence, and the reality is that, even if you prosecute a company
for a large number of fly-posting offences and they are fined
something near even the new maximum fine, it simply will not deter
them from continuing to commit those offences, partly for the
cultural reasons that were being discussed earlier—that
they do not really see it as a serious offence and something they
should not be doing—and partly because it is so lucrative
for them. So we have to think of other ways of trying to bring
to book companies who see flouting the law in that way to their
commercial advantage. What we would like to be able to do is bring
the people within those companies who are responsible for taking
those decisions to book, either by managing to get them disqualified
under provisions in the Companies Act or by having provisions
relating to fixed penalty notices, which are also being brought
in under the Antisocial Behaviour Act in relation to fly-posting
offences, applicable to company directors and not merely, as they
are at the moment, to those people who have put the advert up
on the wall.
Q185 Mrs Clark: I was going to talk about
ability to pay and fines but I think you feel so passionately
about this that I have heard answers to some of that subject before
asking the questions, so I am going to abridge a bit. We have
talked about magistrates, and I feel you are a little bit sceptical
about the way they are treating the whole aspect of environmental
crime. Do you think the reason that some of the fines are perhaps
so low and not always fitting the crime, as you would say, is
because they are taking into account a "Well, I am guilty
plea"?
Mr Baxter: Yes.
Mr Large: They are bound to do
that. Certainly in the cases that we are concerned about they
are taking into account a range of factors including guilty pleas,
ability to pay, whether it is a first offence or not. What I do
not think they are taking enough into account is the commercial
motivation of the offender.
Q186 Mrs Clark: What do you mean?
Mr Large: I mean the people who
do fly-posting do it for profit deliberately and, when the fine
is set, my view is the court should take that into account in
deciding what the level of the fine ought to be.
Q187 Mrs Clark: Would you put prostitution
in with that in terms of telephone cards, because that is for
commercial gain as well?
Mr Large: Westminster has done
quite a lot to try to avoid prostitutes' cards in telephone boxes,
and we work a lot with telephone companies to try to ensure that
does not happen, but there is an issue about fines there as well.
Q188 Chairman: The cards are all over
the place. You cannot go anywhere without seeing them, so whatever
you are doing does not seem to be working terribly well!
Cllr Sir David Williams: The other
House did stop legislation going through because they said it
should not be just London, which was a cop-out. It should be national.
Q189 Mrs Clark: There is a Private Member's
Bill coming up. I know Sally Keeble did try that and she had some
connection with Southwark in the past, as I believe, but perhaps
we ought to encourage her again. Moving on to repeat offending
in environmental crime, this is going on quite a lot and you get
that in burglary and arson and the rest, and it does seem to suggest
that the penalties and fines just are not deterring. Are you finding
that the courts are giving the same type or level of fine to repeat
offending, or is it going to be progressive? Surely it should
be progressive.
Mr Baxter: I am not allowed to
mention the person's name but when I was in my authority at Lewisham
we caught a fly-poster, and the first time we caught him he said
he was self-employed and was working for "a company"
so we did a vehicle check and that was registered to another company,
so when we put it before the courts it was withdrawn because it
was too loose. Then we discovered on the second offence that it
was all the same company and it was his father who owned both
companies, so this individual was fined £700 and £700
costs. Now we hoped that would be a deterrent but three weeks
later the same vehicle was caught on CCTV, because we had put
the word out, and, again, he got £700 fine and £700
costs. So that sends the wrong signal, in our view, and the mindset
of the people we are dealing with is that it is a risk of the
job and they are willing to take that risk. If we had the power
to, say, remove their driving licence and remove the fly-posters
from Westminster for the next ten years then we might deter them,
but this is the culture we are dealing with, and that is a good
example.
Mr Davies: Colleagues from Westminster
have said that the fiscal gains from things like fly-tipping are
larger than any fine we impose, and if you can get away with ten
tons of waste, which is standard for Southwark, it would cost
you £500-600 to dispose of in a waste facility, and if you
get away with two of them and a £500 fine you make money.
Basically these people make money and it is going to escalate
over the next ten to fifteen years with all the EU legislation
coming in. Unless we start the process of making a real issue
it is going to escalate not only in London but across the country.
Q190 Mrs Clark: And how about prison?
You have talked about confiscating cars and driving licences but
what about prison?
Mr Davies: Ultimately there should
be an escalation of the issue from fine through to community service
orders and maybe seizure of vehicles, and if there is non payment
of fine for repeat offences then maybe prisons would be an option,
but they are overcrowded—
Q191 Mrs Clark: For two weeks? Three
weeks?
Mr Davies: It is basically fraud
and they are defrauding the country. It is the council taxpayers
of this country who pay for cleansing to be undertaken and therefore,
by not paying their taxes and not paying for waste or fly-posting
or advertising illegally these people are defrauding the country,
and basically, if you commit fraud, you go to prison.
Q192 Mrs Clark: What about naming and
shaming?
Mr Baxter: I am all for it.
Q193 Mrs Clark: And so is the Environmental
Agency.
Mr Baxter: As long as it is proportionate.
You have got the human rights factor and it would be wrong to
name and shame someone we prosecuted last May. If you prosecuted
someone successfully in the last two months and it was for a heinous
crime—something like grass cuttings!—they should be
named and shamed. I know some authority named and shamed people
given fixed penalty notices—
Q194 Mrs Clark: Can you mention the name
of that authority?
Mr Baxter: It was Lambeth. I am
probably one of the strongest advocates of zero tolerance and
clipping these people round the earhole, and if I had my own way
I would—no, I cannot say!
Cllr Sir David Williams: Aggressive
enforcement is the point we are underlying. Progressive, as well.
Mr Baxter: Yes.
Q195 Mr Thomas: In your experience how
do the newspapers, particularly local, treat the cases you take
to court? Do you think, for example, you get the coverage that
another crime would get, and therefore there is an element of
naming and shaming in that process?
Mr Davies: It is probably proportionate
to the level of fine. If you get a good result in court they will
put it on the front page and, to be honest, it depends what is
newsworthy on the day as well. We do get, "The local authority
failed to do this", or "The local authority failed to
do that". What we would like to see is more coverage, but
we are at the whim of editors.
Q196 Mr Thomas: But do any of you specifically
with your press officers try and get the local press involved
in covering environmental crime?
Mr Baxter: Yes, but again it comes
down to people like South London Press, who are not always keen
to cover the stories because it is not their bag but it is in
people's interest. The other day in Lewisham we took a four-page
advert out and named all the people and told them what we were
going to do and what our approach was, and I think that was good
and is one way of dealing with it, and if it costs me £1,500
for a full page advert that is fine. If we are talking about the
media it needs to be far broader than that and I think we should
introduce it into Coronation Street and East Enders
and Crossroads and Emmerdale and all these other
programmes so that it starts getting on people's radar that this
is unacceptable. They have themes around drink driving and rape
and so on, and I do think this is as important. We need to get
the producers and the scriptwriters to start thinking about enviro
crime because it does impact on people's lives, and people want
things to change.
Cllr Sir David Williams: Yes,
and The Archers on rural tipping. My experience with local
press is they are more interested in picture stories of appalling
graffiti that yet again they say the local council has not done
anything about, or an awful amount of dumping. Even if it is in
those cases the local councils' responsibility we are the Aunt
Sallies, I am afraid.
Q197 Mrs Clark: I can see you all have
an absolute passion for this and I really wish I could transport
all five of you over to my local authority in Peterborough so
we could get things done, but that is not going to happen! Can
I truncate a few questions into the situation with the magistrates,
because it does seem that the buck is stopping with them. What
would you suggest? Are they not getting adequate information about
the severity of these crimes and the progressive nature of it
into criminality? What would you suggest on training? I believe
Westminster is planning to meet with the magistrates to try and
coalesce ideas.
Mr Baxter: It is a sensible idea
for local authorities to meet with their local magistrates to
try and get them to understand what the local authority is trying
to achieve and the impact on people's lives on a day-to-day basis,
and get them to support that authority. They are key partners—as
are the police and the other agencies. I am not sure, apart from
taking magistrates out on the street and showing them what the
real issues are, what else we can do.
Dr Penny: Perhaps Mr Large could
comment more on our relationship with the magistrates. We must
not lose sight, though, of the fact that it is a very small proportion
of total environmental crime which ever finds its way to court,
probably a ratio of 9:1. The vast bulk of work done in combatting
environmental crime comes in the form of service of statutory
notice or fixed penalties, and it is a tiny proportion of the
total crime that ever ends up in a Magistrates' court. From our
perspective, the major problems we have are not with what happens
in the court but what happens before and after in terms of the
enforcement of penalties.
Mr Large: In relation to our relationship
with the magistrates it is reasonably good and we do work well
with them on a lot of issues—we are working with them on
a Licensing Act transition process at the moment—but when
it comes to training I think they are a little bit sensitive about
local authorities coming to them and purporting to train them
on how they ought to exercise their judicial functions. I do not
think they see that as our role.
Cllr Sir David Williams: Especially
if they are councillors!
Q198 Mrs Clark: What, for example, can
central, national government do on this? You may have a very good
channel of communication in Southwark and in Westminster with
the magistrates working together all from the same hymn sheet
but what is going on in places like Peterborough and Birmingham?
It is no good if it is fantastic in just two authorities regarding
sentencing and penalties and crime-fighting and terrible everywhere
else. Is there a role for central government here?
Cllr Sir David Williams: There
is a role for the Local Government Association, which has as one
of its functions to disseminate best practice. We have 410 local
authorities in the country as well as police authorities and combined
fire authorities and so on, so it takes good co-ordination between
not just local authorities but also the police, the Environment
Agency and so on. It is a very wide spectrum of crime. I do think
that one good aspect that will come from this is that your sub-committee
is trying to raise the profile of this at central government level,
because initiatives have to come from central government in all
of this. We are getting pressure from below from the public: but
it is patchy and different in different places. If you get some
anti fly-posting obsessive or anti fly-tipping obsessive then
you can have a quite surprising effect within that single local
authority, but that is not the way it should be happening. It
is connected to all the other environmental improvements that
we are trying to do right across the ministries as well as across
local authorities, and all these problems that come up now are
multi-faceted and multi-authority, and somebody hopefully at central
government has got to grasp the nettle and say, "These are
the four key elements we have to go for; initiatives must be provided,
if necessary with financial incentives", and off we go. Someone
has to say, "This is what Westminster are doing, this is
what Southwark are doing, this is the best way, this is how they
have saved a lot of money and improved the environment".
You have to have a proactive campaign right across the range of
public services in this. It is not just the local authorities;
it is the Health Service and everybody else.
Mrs Clark: It seems we have quite a lot
of work to do but you have given us a bit of inspiration.
Q199 Paul Flynn: Perhaps we can do a
bit of naming and shaming ourselves now. In the City of Westminster
memorandum which we greatly valued you pointing out that the business
development manager of Ansell, the owners of the Mates brand of
condoms, was quoted in Mediaweek as saying that fly-posting
gives his brand "more credibility", and I see in the
list you have given us many organisations—Polydor Records,
the Ministry of Sound—which are substantial businesses,
not small enterprises, and the fines were derisory—under
£400 in each case. Do you think there should be some better
way to deal with the directors of corporate companies, particularly
in companies like Ansell, who boast about environmental crime?
Dr Penny: Yes, that is right.
In a number of instances the effect of this naming and shaming
is perhaps questionable and, indeed, with some of the companies
on the list you have there we could positively be feeding their
communications machine and assisting them because they seek positively
to promote the brand values of youthful rebellion and so on which
are associated with low level criminality, if you like. We have
considered in terms of that approach, if coverage in the local
or, indeed, the United Kingdom national newspapers would serve
no real purpose in terms of embarrassment to the company, whether
perhaps, if they have a Japanese parent company, coverage in the
Japanese media might have influence at head office which could
make life a little more uncomfortable for the United Kingdom directors.
There is always scope to be creative but, as I think you will
see, the general thrust of our argument in relation to corporate
environmental crime is, as Mr Large was saying earlier, to create
some sense of personal responsibility and, indeed, exposure to
risk on the part of the directors to whom the marketing departments
and advertising agents are ultimately responsible. It is they
who in the end are commissioning what are nowadays very large
sophisticated media campaigns that embrace not only fly-posting
but also regular press advertising, TV campaigns and so on. As
an example of how fly-posting has become almost a respectable
part of the advertiser's armoury, I would point to a campaign
that ran in London and other parts of the country a couple of
years ago which was associated with the launch of MoreThan Insurance,
the "Where's Lucky?" campaign, which you may recall.
A large amount of money was spent on television and press advertising
and associated with that there was a very extensive fly-posting
campaign showing how fly-posting has entered into the media mainstream.
We must push it back out again.
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