A council in England has doubled down on the fining of people caught peeing in the countryside for littering, even after it emerged its own legal advice did not appear to fully support its stance.
There have been at least two cases of men handed £88 fines by Dacorum borough council in Hertfordshire after being caught in the act by council enforcers apparently lying in wait in laybys.
After the men claimed they were relieving themselves in woods by the layby, the fines have provoked a row over whether taking a wild wee amounts to littering – or whether it is even a crime at all.
Lawyers have criticised the fines, but Dacorum council officials have been defiant, saying their policy – which is not unique – has a legal basis.
Few regular visitors to the countryside will pass their lives without taking a wild wee; fewer still would expect that doing so could land them with a fine. Yet that is what happened to at least two men in the Hertfordshire borough.
Michael Mason, who has a weakened prostate, was handed a fine after he stopped at a layby on the A41 near Kings Langley to take what he described as a “discreet” wee, BBC News reported last month. Then, later in December, another man, who has asked not to be named, was caught out in similar circumstances at a layby in the area.
In both cases, the men were stopped by an employee of District Enforcement, which despite its official-sounding name is a private company contracted by Dacorum council to issue penalty fines. The council receives 22% of the fines and the company retains 78%.
The second recipient had his fine rescinded after arguing to the council that its enforcers had not seen him urinating. His uncle complained to Dacorum council, arguing that urinating in the countryside – or indeed anywhere – could not constitute littering.
Dacorum’s policy is by no means unique; many other councils also class urinating in public as a littering offence. But some lawyers disagree with the approach. Nick Freeman, a lawyer known for his defence of celebrities who calls himself “Mr Loophole” on social media, questioned the fines. He told the BBC Dacorum’s interpretation of litter “is contrary to the legislation and it is contrary to its everyday meaning and therefore, in my view, legally, they are wrong”.
In his correspondence with Dacorum council, seen by the Guardian, the man’s uncle was given short shrift, with a council barrister saying the council’s position on urination “is clear” and any further discussion would “not be an appropriate use of funds”. But he was able to use the Freedom of Information Act to extract parts of the the legal advice relied upon by the council to justify the fines.
Written by David Armstrong, a lawyer who specialises in public sector clients, the advice said: “To be litter, it must be capable of causing or leading to defacement and also must be left behind. Both of these can be very difficult to prove evidentially. If challenged, both must be proven. For example, I have no problems at all with persons urinating in streets being prosecuted under section 87 of the Environmental Protection Act.”
Jolyon Maugham KC, the director of the Good Law Project, said Armstrong’s advice clearly did not apply to individuals urinating in the countryside. “I tend to think dumping an empty nappy would be litter; dumping a full nappy, likewise; likewise a number two; but not a number one, which would not ‘lie around’,” Maugham said.
“I think the legal advice is probably wrong – and also doesn’t cover the council’s position. So if I rake up all my leaves and dump them in the street I am littering but if I drive them to a forest I am not. So the notion of ‘litter’ is context-specific. So even if – which is very probably wrong but not a bananas contention – weeing in the street is littering, I certainly don’t think weeing in the woods is littering.”
When contacted by the Guardian, Armstrong defended his classification of weeing as littering, at least in an urban context. “Clearly, urinating inside an area of woodland would not, in my opinion, fall within the bounds of the section 87 EPA offence,” Armstrong said. “This would not constitute waste lying around. However, a pool or stream of urine deposited in an urban environment is unarguably defacing and has a lingering effect.
“The words ‘defacing or tending to lead to defacement’ in the original drafting, albeit no longer present within section 87, must have great weight when determining what the offence was meant to address: that is to say, to protect the open air environment from defacement through the depositing of wastes.
“It is difficult to see how one could make an argument that urinating entirely within woodland, as described above, would fall within the ambit of that aim. However, that is not the case in relation to streets and the urban environment.”
In a statement to the Guardian, Dacorum council defended its legal position, saying: “The council has sought legal advice on the use of littering fixed penalty notices for urination and is satisfied that urination would be covered by the relevant legislation. Residents have raised concerns with the council about people urinating in some of our busy laybys. This has been backed up through visits by our officers to these laybys. We are committed to making these spaces pleasant and usable for all.
“The council does acknowledge that each case has to be assessed on its own merits, taking account of the specific location and any particular characteristics of the individual involved, and there is a right of representation for individuals to submit representations which will be duly considered. This process has resulted in fixed penalty notices being rescinded in specific circumstances.”
• This article was amended on 30 January to remove a statement that David Armstrong agreed that the council had misapplied his advice.
