Public Spaces Protection Orders - A need for caution?
Introduced by the Anti-Social Behaviour Crime and Policing Act 2014 for community protection, the PSPO is intended to tackle activities carried on in a public space that have or are likely to have a detrimental effect on the quality of life of a local community. It empowers a local authority to impose restrictions within any open area whether targeting individuals or groups.
Any public space in any local authority area may, if certain conditions are satisfied, be made the subject of a PSPO. An Order can last for up to three years but can be renewed any number of times for a further maximum period each time of 3 years if the conditions remain satisfied; a sort of rolling restriction.
A breach without reasonable excuse is a criminal offence and attracts a maximum penalty of £1000 or a Fixed Penalty of up to £100. It is also an offence to fail to comply with a request to cease drinking alcohol and or to surrender it, with a maximum penalty of £500.
What are the conditions? A local authority has to be satisfied on reasonable grounds that (i) the activity in the area in question has had a detrimental effect on the quality of life of those in the area or it is likely that such will take place in that area and (ii) that the effect or likely effect of the activity is or is likely to be of a persistent or continuous nature or is such that it is or is likely to be to make the activity unreasonable and in either case justifies the restrictions imposed. (s.59(2)(3))
The Order can be reactive or proactive; a problem may not have arisen but it is thought appropriate to make an Order to make sure that it does not. It can either prohibit specified things being done (do not drink or possess alcohol) or require specific things to be done (put your dog on a lead or do not walk more than one dog at a time or do not use a skateboard) or both. The activities in question can all be contained in one Order (s.59(4))
Only those restrictions that are reasonable to prevent the detrimental effect or its reduction or to reduce the risk of its continuance, occurrence or recurrence can be imposed. (s59(5)) Note however that there is no requirement of proportionality.
It can apply to everyone or to specified persons or to everyone except those specified. Thus, it can discriminate between individuals or groups of individuals. It can apply at all times or only at specified times or at all times except those specified. It can apply in all circumstances or only in specified circumstances or in all circumstances except those specified. (s59(6)) In other words the power is limitless in its application as long as the conditions are satisfied.
If you wish to challenge such an Order then challenge is restricted to someone who lives or regularly visits the area in question and must be commenced in the High Court within 6 weeks of it being made or having been made, varied in accordance with the Act. The ground for challenge is that the local authority did not have the power to make or vary the Order or to include particular prohibitions or requirements or there was a failure to comply with a requirement necessary for the Order or variation to be statutorily compliant. (s.66)
Unsurprisingly the Act makes no attempt to identify what “detrimental effect” or “quality of life” or “community” means. The local authority must first consult by publishing the order, seeking the views of the police and any representative of the local community they consider to be appropriate for example a residents group or a community group but there is a lighter touch consultation regime in order to reduce costs (thus there is no requirement to advertise in local newspapers); nor is there any government oversight of the use of such power once invoked.
One pauses only to recognise that in most cases those consulted will include the potential beneficiaries of such Orders who will no doubt be inclined to say “Yes”; particularly if the question for consultation is drafted with a bias in favour. It is likely that objection will be restricted to cases where, for example, a resident feels the brunt of the order himself for example the closure of a right of way during certain hours that gives access to an amenity such as an alleyway at night leading to a 24 hour shopping facility. Thus, there is a risk that those being consulted are largely already converted to the cause.
It is clear from available material that in a number of cases the response to consultation is very limited. As long as the mood of the consultation is in favour it does not matter how limited the response is or that it is driven by a narrow vested interest.
No one would seriously contend that such Orders do not have their place and can serve a local community well. Children playing in a public playground may indeed benefit from a dog being on a lead or banning anyone over a certain age from using playing facilities for themselves or from alcohol being consumed or profanity from taking place. Youths regularly congregating at night and abusing alcohol and or drugs should not by their activity be permitted to present a nuisance or worse. Public areas that have become a magnet for conduct that is clearly anti-social in the truest sense would be ripe for some sort of restriction. Equally a defined route for football supporters may justify a ban on the drinking or possession of alcohol and or swearing on match days.
But how comfortable should we be that local authorities have formidable powers to limit freedom of movement and activity and to effectively criminalise conduct that is either legal in all other contexts or in respect of which penal legislation or byelaws are already in place?
At least one council issued a PSPO only to have its mind changed in the light of substantial public protest.
In 2015, following a petition of 80,000, the London Borough of Hackney was forced to make a U-turn and varied its PSPO so as to remove reference to the activity of “rough-sleeping”. If poverty drives an individual to beg or to try and sleep outside at night should such conduct be criminalised? What if rough sleeping is in an area where emergency accommodation is short and beyond reach because priority is rightly given to vulnerable women or those with mental health issues? Where are these people to go- to a PSPO free zone?
What if a local authority, in the interest of businesses and shoppers decided that it did not want areas within the vicinity of a shopping precinct to be used to hand out free leaflets or to congregate in entirely manageable numbers to demonstrate peacefully? How comfortably does such exercise of a statutory power sit with Article 10 (freedom of expression) or Article 11 (right to protest and freedom of association)?
Would it be reasonable to introduce a blanket ban on swearing in an area? One might think it right to do so on those occasions when it was used as a route for football fans to travel to and from a match. But would it be right to simply outlaw it because swearing was offensive to a limited and more genteel residential area? One man’s “Fuck off” may be another man’s “Your having a laugh!?” and in context be wholly inoffensive to those of a stronger and more street-wise disposition.
Should freedom of speech and the right to association be curtailed if the motive to do so is the product of an influential but small number of residents who take the view that property values should be protected by tranquil afternoons and peaceful nights?
The new power might be deployed, and no doubt many would say rightly so, against nuisance car racers who not only invade a public space but also dominate it with noise and associated unreasonable behaviour for example drug or alcohol abuse.
However, it could equally be used to overcome behaviour that might present merely as a constant inconvenience or nuisance to residents for example inconsiderate parking of vehicles and/or engine or other vehicle noise. Instead of issuing a parking ticket or in an extreme case towing a vehicle away the power might be deployed to make an exclusion zone for such activity; and there would be nothing to prevent it operating for the greater part of a day or even throughout the day. A resident would no doubt welcome a broadly drafted PSPO and may rebut any suggestion that it is unreasonable by describing how intolerable life had become. Potential civil dispute is resolved by the threat of penal sanction.
However, caution may be called for. Nuisance is after all a civil wrong and there are plenty of byelaws to regulate vehicle activity.
It is possible for a very long or even twenty-four hour exclusion zone to be imposed for the benefit of a relatively small and influential community. Where there is no requirement for proportionality and the context of what is or is not reasonable action to take is somewhat subjective, ought one t
It is open to a local authority to ban individuals of a certain age from gathering in certain numbers at certain times. The trouble is that the wording of the Order, if it is to avoid challenge on the street by the unruly, is likely to be sufficiently wide to render challenge pointless and thus include the perfectly well-behaved innocent group of youngsters; maybe as few as two.
What of the latters’ freedom to congregate on a Saturday night as they hang about in what unknown to them is an exclusion zone, while they decide whether to go on to a party or walk home as they each clutch a half empty can of Stella? Will their otherwise established legal right to association turn on the discretion of an enforcement officer? The risk of either a blanket “on your way” and or “ hand over your cans” or an inconsistent use of the power, is to state the obvious. And it would perhaps be a brave, as well as ill- informed young man who stepped forward to speak of it being a “free country” however polite or well-behaved he was.
There is sufficient adverse social media comment on the current exercise of this new power, as well as at least one recorded decision of a local authority reigning itself in, to warrant concern not only as to how in certain areas the power has been invoked but also how local authorities will chose to invoke it in the future. The author is not in a position to properly evaluate the merits of such widespread concern but it defies common sense to suppose that the concerns are in every case fanciful.
There is clearly a need for a power that removes or reduces the risk of anti-social behaviour in its truest sense that has or is likely to have a serious impact on local communities. The problem arises if such a power should be deployed in order to appease the sensitivities of a particular influential group or to be drafted in such wide terms as to expose the otherwise well-behaved individual to a very real restriction on the lawful exercise of coterminous rights long protected by statute.
It is perhaps difficult to objectively assess the merits of individual PSPO’s. What is clear is that local authorities have been quick to use them. Caution should perhaps be the watchword. So far it has taken public outrage to reign in one local authority. Short of wider local community pressure any legal challenge to an Order once made is only available to a very limited and defined class.
Peter Doyle QC 25 Bedford Row