What is litter?

What is litter?

Litter is not specifically defined in law, but guidance from the Department for Environment, Food and Rural Affairs (2006) states: ‘Litter is best defined as something which is improperly discarded by members of the public in an area. It includes sweet wrappers, drinks containers, cigarette ends, gum, apple cores, fast food packaging, till receipts, small bags … ’

It goes onto say: ‘Litter is something, more often than not, synthetic, which is improperly discarded by the public whilst sitting, walking, or travelling through an area.’

Defra additionally indicates that a single sack of rubbish or greater is considered not to be litter but comes under the category of fly-tipping. This is a more serious criminal offence.

Where does litter count as littering?

Littering is only legally an offence if it has been:

• dropped in a place where the public have a right of access such as publicly owned land or private land to which the public has access, such as a garage forecourt or a footpath across a field, and
• it is open at least on one side to the air. For example, if a person drops litter in a bus shelter this would constitute an offence, but the same action would not constitute an offence if dropped in a phone box.

The act of littering

An offence can only arise if it can be proven that the litter was ‘thrown down, dropped or deposited’ and left or walked away from. In other words, both ‘depositing’ and ‘leaving’ must occur and be proven for it to be an offence.

The law is unclear on whether littering is still an offence if done accidentally, although Defra guidance is clear that if accidental littering occurs, that is, something falls from a person’s pocket without them being aware of it, then a fine should not be given. In both accidental and deliberate littering, Defra advises that the offender should be given the opportunity to pick up the litter.

Laws usually used against littering

Dropping of litter in a space, as described above, is a criminal offence in law. The legislation, applicable to littering for England and Wales, is Section 87(1) of the Environmental Protection Act 1990.

As a low-level crime, it can be dealt with through the application of an on-the-spot fine in the form of a Fixed Penalty Notice (FPN). This notice requires the offender to pay a specified amount of money within a specified time to avoid court proceedings and an associated criminal conviction.

The offender can choose to take the court option by refusing to pay the FPN; the court proceedings must commence within six months of the offence taking place.

Level of fines for FPN

The minimum charge for a FPN is £65, the maximum is £150, while the default is often £100. The maximum a court can apply if the FPN is not paid is £2,500.

Litter versus fly-tipping

The law makes a distinction between litter and fly-tipping based on size. While both are criminal offences, the distinction is important as the financial penalties are greater for fly-tipping.

Litter can be as small as a sweet paper or a bag of rubbish or lots of items scattered about. A black refuse sack and/or greater amounts are considered to be fly-tipping, but the distinction may vary between local authorities, particularly if there are aggravating circumstances.