A suggestion, which has had some press coverage recently, is that we may in future be subject to criminal sanctions if our bins contain material of the wrong kind. The “thinking” behind this is to encourage recycling. No sensible person would be opposed to recycling.

However, it is essential that this idea be thought through before it becomes law. Knee-jerk legislation is very often bad, simply because it has not been considered carefully.

Preliminary questions would be:

Who would prosecute this offence? It would be unusual for the complainer, in this case, the local authority, also to be the prosecutor.

If the local authority is not to be the prosecutor, one assumes that the householder would be reported to the police, and so, it would be necessary for the refuse collectors to have photographic evidence, or some kind of corroboration of the alleged offence. Is Police Scotland so awash with resources that it can take task on? The newly-appointed chief constable, if consulted, would say, “No.”

Is there as danger, perhaps a significant danger that prosecutions could give rise to an increase in fly-tipping. Highly likely and who will clean up the detritus? Yes, the local authority who would have created the problem in the first place.

Leaving these matters aside, it is important to ask what form the offence would take. if it were to take the usual form of requiring the Crown to prove, beyond reasonable doubt, that I put the wrong rubbish in a bin, that would be impossible to prove because the Crown would require to demonstrate “evil intent” – in other words be able to show that I knew that the offending items ought to have been put in the X-coloured bin, but I deliberately put them in the Y-coloured bin. I might say that I looked at the local authority website and could not find which bin my stuff should be in and so I put it in the general rubbish bin. Local authorities cannot be expected to produce a comprehensive list of what should go where. End of Crown case!

To make life easier, the offence might be one of strict liability, and such offences are common under the Health and Safety Act etc Act and its multiple progeny. Strict liability puts the onus on the accused to demonstrate that “reasonable precautions” or a formal not unlike that, were taken. Again, I had a look at the local authority list. End of Crown case!

The final possibility is to make the offence one of absolute liability. Such offences are rare and, in this case, that course of action would be unjust. Why? Let us assume that in my family, no one eats fish suppers, perhaps for heath or medical reasons. If some passer-by disposes of the packaging in my bin, I would have committed an offence. I would have no control over that, unless I am expected to stand guard over my bin, until the refuse disposal operatives arrive. In any event, hopefully, my family and I would be regarded as both creditable and reliable witnesses about not eating fish suppers, but, under absolute liability this is irrelevant, because even if believed the offence has been committed. End of me. Fly-tipping here we come!

It is to be hoped, and sometimes the hope is forlorn, that someone might ask whether this is all worth the candle, Festive Season or not.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.