Why was a man who took a wee in a layby fined for littering?

When a 69-year-old with a weakened prostate parked in a layby to have a "discreet" wee he ended up being handed an £88 fine for "littering". While many might consider urinating in public - however discreet - unpleasant or antisocial, is it actually littering?

Michael Mason has a weakened prostate and was 45 minutes into a two-hour journey when he needed a wee.

He was on the A41 near King's Langley, Hertfordshire, and stopped at the last layby before joining the M25.

"I managed to make it to the layby," Mr Mason, of Winslow in Buckinghamshire, says. "I made sure nobody could see me and was very, very discreet."

An officer from District Enforcement, the firm contracted by Dacorum Borough Council to deal with what it calls "enviro-crimes", was said to have tapped on his window and told him he had been "caught littering".

Accounts of the conversation that followed differ.

Mr Mason says he apologised, explained it was an emergency and told the officer he had a prostate issue. The council says it understands from its contractor that no mitigating circumstances were raised.

But why was the fine handed out in the first place?

It cited a paragraph that states: "If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies."

In its initial response to the BBC, Dacorum claimed that "urination is classified as litter by the Environmental Protection Act 1990".

But Nick Freeman, a lawyer popularly known as Mr Loophole, disagrees and says nowhere does the act classify urine as litter.

"We could argue about whether urinating actually causes 'defacement'," Mr Freeman says.

"But what we need to do is look at what Parliament intended to achieve when it passed this legislation. What was the spirit of this legislation?"

He says Section 98 goes some way to defining litter when it states litter includes "discarded ends of cigarettes, cigars and like products" and "discarded chewing-gum and the discarded remains of other products designed for chewing".

"I think most people have a good grasp of what litter is," says Mr Freeman. "I would argue as a lawyer that the very fact it does not mention urine clearly indicates that urine is not a piece of litter, it is not in any way any form of litter.

"I would say their interpretation of what litter is, is contrary to the legislation and it is contrary to its everyday meaning and therefore, in my view, legally, they are wrong.

"It isn't litter and I think if it was argued in court, in my view they would lose.

"Most people have wild wees, and it is not just men," Mr Freeman adds.

The BBC asked District Enforcement about how it collects evidence of public urination and whether it varies its approach depending on the suspect's gender. It also asked whether it had targeted this particular layby to catch people spending a penny before joining the M25.

It did not respond to the BBC's questions.

The BBC asked the council whether it accepted urine was not mentioned or classified as urine under Section 78 of the Environmental Protection Act. It did not answer.

The BBC also asked Dacorum how many fines for public urination had been issued in the past financial year. It did not provide a figure.

However, according to a council assessment of its contract with District Environment, 10 penalties were issued to people in the borough for urinating or defecating during a 10-month trial period in 2021-2022.

The same document shows how, under its contract with District Enforcement, the council takes 22% of penalty income.

Dacorum Borough Council is far from the only local authority to treat urinating in public as a littering offence.

Asked whether public urination was littering, the Department for the Environment, Food and Rural Affairs (Defra) said local authorities had powers to "put Public Space Protection Orders (PSPOs) in place for the purpose of tackling antisocial behaviour such as public urination" but added it was "for the courts to decide whether a council has used the correct powers".

In a statement, Dacorum Borough Council said it contracted District Enforcement following a "tender process" to provide "enforcement for littering and public space protection orders".

"[It] also supports the council with proactive initiatives such as hot spot monitoring, responsible dog ownership advice, leafleting in areas where there have been known problems, handing out stubby cases for cigarette ends and acting as a visual deterrent for those considering environmental crimes," the council said.

"Prior to implementing this initiative, the council sought expert legal advice from specialists in all aspects of local authority regulation and enforcement from enviro-crime and anti-social behaviour through to planning enforcement, licensing, food and health and safety. This included advice on urination."

The council added: "The council recognises that there may be circumstances where representations are made against fixed penalty notices, with the first stage heard by District Enforcement and the second stage by council officers.

"In the case of urination, if medical evidence is provided, the fixed penalty notices are withdrawn, as was the case with Mr Mason."