Brothers’ two year battle with Brent Council over litter fine was not ‘vexatious’ says ICO
PUBLISHED: 13:03 11 March 2020 | UPDATED: 13:20 11 March 2020
After a two year battle over an £80 littering fine, an official review has found that attempts to gain information from Brent Council were not vexatious.
Two brothers have sought to find out how a fine was issued, over a dropped hand sanitiser, before being abandoned ahead of a court hearing, arguing the system forces people to pay under threat of going to court.
Jatin Karia began the battle with Brent Council to find out why his brother Sandeep was sent a court summons after he was allegedly caught dropping litter in January 2018.Sandeep maintains that a bottle of sanitiser gel fell from his pocket while parking his car with the door open, and that he had no time to pick it up before an officer issued him with the on-the-spot fine.
Requests under the Freedom of Information Act (FOIA) were knocked back by the council as vexatious - but the Information Commissioner's Office (ICO) has found this is not so. In a report, the ICO expressed the importance of transparency when it comes to the issuing of fixed penalty notices (FPN) given the 'potential for injustices to arise'.
Unlike a parking offence, a littering offence is a criminal offence and can only be challenged in the court, not by appeal. The penalty is an £80 fine or risk a criminal prosecution and a £2,500 fine.
In June 2018 Brent dropped the case against Sandeep, before witnesses in court proceedings could be heard, citing 'a gesture of goodwill'. It later emerged that the council officer who issued the fine had left the country.
Jatin put in a request under the FOIA, asking for the audit and investigation correspondence to do with the case.
In its report, which concluded the request was not vexatious, the ICO noted that, while factually true, a council claim was 'misleading' in suggesting an ombudsman had reviewed the case. The Ombudsman decided not to consider the complaint as court proceedings were active.
The report said if the case had gone to court and the key witness had been able to give evidence, Sandeep 'might have been found guilty...but the more fundamental point at issue here is that the London Borough's decision making has not been subject to external scrutiny'.
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The commissioner said 'of particular concern' were the 'conflicting explanations' offered by Brent for why it dropped the case.
The report stated that Brent's chances of a successful prosecution would have been 'substantially reduced' if evidence of the key witness's absence had been given at the beginning of proceedings.
Under the ICO's ruling, Brent was required to issue a fresh response to the request under the FOIA, which does not rely on a claim that the request is vexatious.
The ruling notes, however, that the council 'must be conscious of its responsibilities to protect personal data'.
The report's author wrote that while FPNs are 'a lawful, and often efficient method of dealing with minor offences, given the potential for injustices to arise, the commissioner considers that there is considerable value in understanding the processes involved'.
Brent has since declined the request for the information a second time, citing data protection.
Jatin said he has appealed a section of the ICO report which states the council 'must be conscious of' data protection under the FOIA. He says the information requested relates to himself and his brother.
He said: 'Our belief that the council use their power and position to pressure people into paying an £80 fine or risk a criminal prosecution and a £2,500 fine. They do not have to accept representations, there is no formal appeal mechanism and they do not need to supply you evidence to support their case. All the risk is on the person receiving the FPN.
'I am very happy that I took the council to task. I was not only successful in getting them to drop their own case, but also to have an independent third party, the ICO, make such significant findings. I really genuinely feel very sorry for the people who are faced with such a choice, especially if they do not have the time or strength to deal with such matters.'
A council spokesperson said: 'We are content that our officer's conduct was proportionate, in line with expected standards, and that our complaints procedures were properly followed. Despite this, we understand that Mr Karia is now unhappy with the ruling on the matter from the Information Commissioner's Office and is appealing their decision.'
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