Litter and flytipping offences - enforcement review: final report

Executive summary

Overview

Every year 250 million easily visible items are dropped as litter and 26,000 tonnes of material is flytipped in Scotland^[1]. The annual direct cost to local authorities of addressing litter and flytipping is estimated to be £60.7 million^[2]. On top of this, litter and flytipping represent a significant leak from the circular economy whereby materials are incorrectly discarded or disposed of, sending a poor message about their value and limiting opportunities for recycling. These materials are a wasted resource and do not reflect Scotland’s ambitions to become a circular nation.

Scottish Government published a new National Litter and Flytipping Strategy in June 2023, following a public consultation that was carried out late 2021/early 2022. One of the key themes of the National Litter and Flytipping Strategy consultation was enforcement, with the aim to deliver a strong and consistent enforcement model across Scotland that is fit for purpose, promotes positive behaviour, and acts as a proportionate deterrent and effectively stops people from littering and flytipping.

Enforcement in Scotland

A strong and effective enforcement model has the potential to reduce and manage occurrences of both litter and flytipping. SEPA, all 32 local authorities, Police Scotland and Loch Lomond and the Trossachs National Park Authority have enforcement powers under the current model for flytipping. Police Scotland, local authorities and Loch Lomond and the Trossachs National Park Authority have enforcement powers for littering offences. A Fixed Penalty Notice (FPN) of £80 for littering and £500 for flytipping can be issued by Police Scotland, local authorities and Loch Lomond and the Trossachs National Park Authority. SEPA has the power to issue (for flytipping) a Fixed Monetary Penalty (FMP) of £600 and a Variable Monetary Penalty (VMP) of up to £40,000. All enforcement agencies are able to refer offences to the Procurator Fiscal for criminal prosecution where appropriate.

Currently the use of penalties for litter and flytipping offences is fairly low compared to the number of recorded and perceived instances. Under a release of data under the Freedom of Information (Scotland) Act 2002, Scottish Councils were notified of 207,960 incidents of flytipping from 2019 to 2022, yet only 2,467 (1.2%) Fixed Penalty Notices were issued, and 45 cases (0.02%) passed to the Crown Office for prosecution^[3]. In 2019/20 there were 2 prosecutions for flytipping and zero for litter^[4]. A number of direct measures (e.g., a warning, fine or unpaid community work) were issued by the Police and the Procurator Fiscal in 2019/20 (15 in total for flytipping and 69 in total for litter^[5]).

This project aimed to review the current enforcement model in Scotland. It also looked at England and Wales, and other countries of a similar socioeconomic demographic to Scotland, to assess how different models, methods and actions impact litter and flytipping occurrences and enforcement effectiveness. It was challenging to draw direct comparisons between the countries reviewed due to differing models (e.g., level of fines) and the way in which data is recorded, but the benchmarking provided some scope for comparison.

An overview of the penalties used across Scotland, England and Wales is outlined below:

Country: Scotland

Litter

Fixed Penalty Notice (FPN) of £80

Where the offender is prosecuted and convicted, the maximum penalty is a fine not exceeding level 4 (currently £2,500)

Flytipping

Fixed Penalty Notice (FPN) of £500 (increased from £200 as of 1 January 2024).

Where the offender is prosecuted and convicted, the the maximum penalty on summary conviction (in most cases), is a fine of up to £40,000, or a custodial sentence not exceeding 6 months, or both. On conviction on indictment, a fine or a custodial sentence not exceeding 2 years, or both.

In relation to special waste, the maximum term of imprisonment on indictment is 5 years.

[SEPA can issue a Fixed Monetary Penalty (FMP) of £600, or a Variable Monetary Penalty (VMP) of £40,000 and is also able to accept an enforcement undertaking]

Country: England

Litter

FPN of £65 to £150

If the offender is prosecuted and convicted in court, the maximum fine is a fine not exceeding level 4 on the standard scale, which is currently fixed at £2,500.

Local authorities can set the specific FPN value, as long as it is within the ranges set in law (outlined above); if no amount is specified by the local authority, the penalty amount is £100.

Flytipping

FPN of not less than £150 and not more than £1000

Where a matter is prosecuted, on summary conviction, the offender is liable to a fine of any amount, or imprisonment not exceeding the general limit in a magistrates’ court, which is 6 months, or both. On conviction on indictment, the offender is liable to a fine of any amount, or an imprisonment not exceeding 5 years, or both.

Local authorities can set the specific FPN amount, as long as it is within the range set out above; where not amount is specified by the authority, the penalty amount is £200.

Country: Wales

Litter

FPN of £75 to £150

The maximum fine that can be imposed by the courts upon conviction for littering is a fine not exceeding level 4 on the standard scale which is currently set at £2,500.

Local authorities can set the specific FPN value, as long as it is within the ranges set in law (and outlined above); where not penalty amount specified, the FPN amount is £75.

Flytipping

FPN of £150 to £400

Where a matter is prosecuted, on summary conviction, the offender is liable to a fine of any amount, or imprisonment not exceeding the general limit in a magistrates’ court, which is 6 months, or both. On conviction on indictment, the offender is liable to a fine of any amount, or an imprisonment not exceeding 5 years, or both.

Local authorities can set the specific FPN value, as long as it is within the range set out above; where no amount is specified, the penalty amount is £200.

The effectiveness of enforcement

Enforcement should be used to deter potential offenders, punish offenders, raise awareness that particular actions are unlawful, address persistent environmental quality issues for which other interventions have had a limited effect, and promote positive behaviour in the long term. However, enforcement does not always act as an effective deterrent. One issue is that the level of the FPN/fine is often not comparable to the time and money spent investigating the offence and clearing it up. Alongside this, the financial benefit of carrying out the offence can be far greater than the FPN/fine itself. This might especially be the case for waste criminals and businesses disposing of waste incorrectly. The section below outlines the key barriers for enforcement under the current model.

Barriers to the use of existing powers

There is agreement among many stakeholders that there is no one solution to tackle the issue of litter and flytipping enforcement, and that a joined-up and collaborative approach is needed. There are currently a range of barriers (as identified from evidence, literature and stakeholder engagement conducted as part of this project) to the use of existing enforcement powers. Key barriers include:

• Identifying the offender – a lack of evidence around who dumps waste or who the waste belongs to prevents those responsible from facing the appropriate consequences.
• Collecting robust and appropriate evidence – there are challenges around collecting the evidence required to issue a FPN or to pass a case to the Procurator Fiscal.
• Recovering Fixed Penalty Notices (FPNs) – there is often a lack of follow up after an FPN has been issued or if an offender chooses not to pay the FPN; there can also be a lack of follow up after a case has been forwarded for prosecution. There was a feeling among stakeholders involved in this report that this lack of follow up action sends the message that individuals can get away with the crime without any punishment.
• Enforcement bodies’ priorities – those with enforcement powers have a number of competing priorities and responsibilities and litter and flytipping may not always be the top priority.
• Resources – enforcement requires resources and skilled staff, legal resources, court time and administration all of which can be challenging to secure under times of financial pressure.
• Clarity of messaging – consistent and clear messaging has a vital role to play in changing social norms and ensuring any enforcement model works well.
• Prosecutions – evidence significantly impacts prosecutors’ ability to progress a case, while some stakeholders felt court proceedings may need to compete with offences that are often more serious or perceived to be more serious (this view was not expressed by Crown Office & Procurator Fiscal Service (COPFS), Scottish Courts and Tribunals Service (SCTS) or members of the judiciary).
• Consistency of approach – a lack of clarity around the roles and responsibilities of different enforcement bodies and the way in which enforcement powers are used can lead to inconsistencies.
• Individual responsibilities – there is often a lack of awareness amongst individuals as to their responsibilities (i.e., passing waste to registered businesses).

While enforcement has a clear role to play, an effective enforcement model needs to be underpinned by initiatives that promote good behaviour and act as a deterrent in preventing litter and flytipping at source through a change in public behaviour via increased awareness and individual accountability.

Across the countries reviewed as part of this report (England, Wales, Sweden, New Zealand and Spain), a number of enforcement measures are used. They do, however, all focus around base level fines for minor offences that generally increase with the severity of the offence. Littering and flytipping is not a challenge that is unique to Scotland, nor are the barriers to enforcement. Scotland is also not the only country where the number of fines issued, and the number of cases prosecuted is generally low in relation to occurrences of both litter and flytipping.

This report reviewed evidence, and considered the views of key stakeholders, to assess the effectiveness of litter and flytipping enforcement and understand the key barriers to successful enforcement. The emerging theme from the review was that the current enforcement model and underpinning legal system for litter and flytipping offences is not working as effectively as it could or should.

This report puts forward a series of recommendations, based on stakeholder input that should be taken forward to ensure the future enforcement model is more effective. A full review of the legal model and the changes that can feasibly be made is likely required. This should consider how a future model can ensure that the punishment matches the crime and that any action taken is followed through to ensure the system is robust and that actions have consequences.

Recommendations and Next steps

A range of recommendations for areas to be explored to help overcome the barriers to effective enforcement of litter and flytipping offences are outlined below. These are informed by the evidence gathered for this project and take into account the Scottish context.

As outlined in the report, effective enforcement is only one element to tackling litter and flytipping, with education, awareness and behaviour change playing a significant role. The following recommendations therefore consider the issue of litter and flytipping as a whole, with some recommendations addressing specific barriers to enforcement and some recommendations representing wider complementary action to support enforcement measures.

Recommendation 1

Look to adequately fund and protect funding for enforcement bodies so they can conduct robust investigations and, where appropriate, carry out enforcement actions for litter and flytipping offences.

Recommendation 2

As proposed in the National Litter and Flytipping Strategy create a “Framework for Enforcement” (guidance document) for all enforcement bodies clearly outlining the roles and responsibilities of each body. This recommendation will require ownership upon being taken forward.

Recommendation 3

Create an “Enforcement Manual” for ‘on the ground’ enforcement officers so they clearly understand all the existing powers that can be used for litter and flytipping offences and evidential requirements. This recommendation will require ownership upon being taken forward.

Recommendation 4

Create a collaborative approach that provides guidance and support to encourage local authorities, Police Scotland and Loch Lomond and the Trossachs National Park Authority etc to report cases to COPFS where appropriate to do so.

Recommendation 5

Increase publicity around the number of FPNs issued, cases taken forward for prosecution and convictions to show that there is a robust system in place for tacking illegal behaviour in Scotland.

Recommendation 6

Further promote (e.g., through a future “Enforcement Manual”) the use of innovative non-legislative tools at enforcement bodies’ disposal such as designated initiatives to educate offenders (e.g. community litter-picks).

Recommendation 7

As proposed in the National Litter and Flytipping Strategy pursue proposals for the Circular Economy Bill around a new enabling power that will allow a Fixed Penalty Notice (FPN) to be issued to the registered keeper of the vehicle when a littering offence has been committed from that vehicle.

Recommendation 8

Develop role of Flytipping Forum to help promote and facilitate national oversight and drive a more effective and consistent enforcement model for flytipping.

Recommendation 9

Utilise the Flytipping Forum to enhance collaboration and information sharing between enforcement bodies, the courts, sheriffs, COPFS and other bodies to ensure a shared understanding of evidential requirements for prosecution and so all stakeholders understand the full impact (on amenity, health, environment, legitimate business etc.) and clean-up cost associated with flytipping when issuing FPNs, fines and/or sentencing.

Recommendation 10

Look to carry out a detailed review into the use of technology (e.g., AI) for combatting flytipping in terms of the benefits for collecting robust evidence to allow for FPNs to be issued and cases passed on for prosecution where appropriate. This could include a cost benefit analysis of the use of such tools to assess their cost and effectiveness in flytipping enforcement.

Recommendation 11

As proposed in the National Litter and Flytipping Strategy, increase the FPN for flytipping from the current level of £200, using existing secondary legislation or additional legislation as required (it is noted that the FPN could be raised by secondary legislation to a maximum of £500).

Recommendation 12

Develop a broader ‘removal of waste’ power for local authorities given they are at the forefront of flytipping enforcement to ensure an equalisation of powers between enforcement agencies.

Recommendation 13

Engage with local authorities to consider the benefits (and challenges) of the introduction of FPN powers for local authorities for duty of care offences, for both businesses and householders.

Recommendation 14

Further explore the use of civil penalties for flytipping offences by local authorities and Loch Lomond and the Trossachs National Park Authority and whether this could add to the suite of existing powers on offer to enforcement bodies.

Recommendation 15

As with littering, further promote (e.g., through a future “Enforcement Manual”) the use of non-legislative tools at enforcement bodies’ disposal for flytipping offences to help reduce re-offending by making offenders think about the act of flytipping.

Recommendation 16

Look to further promote intelligence sharing between enforcement bodies, and others, to help build a more effective enforcement model. This recommendation will require ownership to be taken forward.

Recommendation 17

Encourage waste management services that host online marketplaces to carry out due diligence on businesses that advertise waste collection services. This could involve requiring marketplaces to check SEPA’s Register of Waste Carriers and Brokers prior to the advert going “live” and collaboration with SEPA to carry out regular audits/checks.

Recommendation 18

Look to increase collaboration with less formal marketplaces who receive significant volumes of traffic from “man with a van” type operators to increase the flow of information from such operators to SEPA, trading standards and other relevant bodies so these agencies can follow up on cases more efficiently and effectively.

Recommendation 19

Carry out clear and consistent national messaging and public education on the importance of householders and businesses checking their waste carriers are registered, legitimate businesses, and how to carry out such checks.

Recommendation 20

Ensure a consistency of approach across agencies and Scotland for vetting, identifying, and taking enforcement action against businesses that offer waste collection services without the required authorisations.

Recommendation 21

As discussed in the National Litter and Flytipping Strategy further consider the introduction of unified reporting for flytipping instances across Scotland to make it simpler for those reporting flytipping (including private landowners) to allow for trends to be identified quicker and enforcement targeted more effectively.

Recommendation 22

Building on the recommendations in the National Litter and Flytipping Strategy, implement a data sharing agreement to support the gathering of data and work with enforcement bodies, private landowners, and other key stakeholders to improve consistency of data collected across Scotland. Further exploration of why data is not currently shared across different regions, enforcement bodies and stakeholders will help to ensure this barrier is addressed.

Recommendation 23

Further consider the benefits and disadvantages of making it a statutory duty versus a collective agreement for enforcement bodies to report consistently on flytipping instances and the number of enforcement actions taken (e.g., FPNs issued, paid and reports passed on for prosecution).

Recommendation 24

Report annually on Scotland-wide figures for flytipping (with detail on regional variations – it is recognised that the ability to do this is closely linked to Recommendation 23).

The future enforcement model needs greater consistency in approach, with clear roles and responsibilities for the organisations involved, with education and behaviour change being built in from the start. Any changes must empower those that have enforcement powers to ensure that strong action, backed by the law, can be taken.

There are still a number of key barriers to the use of existing enforcement powers, with enforcement failing to be used to its full extent and therefore act as a deterrent to littering and flytipping. A more consistent enforcement model that is fit for purpose and acts as an effective deterrent to litter and flytipping behaviour is clearly needed.