Boston Council oversteps ASB powers

Boston Council has announced a ban on street drinking, with signs announcing that ‘drinking alcohol or carrying it in any open container in this area is PROHIBITED’.

Yet these announcements misrepresent the powers provided in the Anti-Social Behaviour, Crime and Policing Act. The powers to make ‘public spaces protection orders’ is extremely broad, but one of the few restrictions is a restriction on a complete ban on alcohol.

The Statutory Guidance accompanying the Act states clearly:

‘It is not an offence to drink alcohol in a controlled drinking zone. However, it is an offence to fail to comply with a request to cease drinking or surrender alcohol in a controlled drinking zone. This is also liable on summary conviction to a fine not exceeding level 2 on the standard scale. If alcohol is confiscated, it can be disposed of by the person who confiscates it.’

That is, councils do not have the power to introduce a complete ban on alcohol in an area. What they can do is create an area within which officers have the power to confiscate alcohol.

Indeed, legally this is the content of the Boston PSPO, which states: ‘It will be an offence for a person to fail to comply with a request from a Police Officer, Police Community Support Officer or an authorised person to cease drinking or surrender alcohol in the controlled zone’.

In practice, the distinction is not much of a protection, since the officers can confiscate alcohol at any time for any reason. But at least it is something: there is a defence of ‘reasonable excuse’ for not complying with the order to hand over alcohol. This means that somebody sitting quietly on a bench having a drink could be within their rights to refuse to hand their alcohol over to a council officer, who had made this request unreasonably (the case would be a matter for the courts to decide).

By presenting the new law as a complete ban, Boston Council has in effect removed this glimmer of a right of defence – and the glimmer of a sense that council officers should justify themselves if they want to take away somebody’s property.

The Boston ban appears to be most obviously targeted at street drinkers, who are basically being barred from public areas.

The ASB Act is an unprecedentedly open-ended and draconian piece of legislation. Matters are not helped when councils over-step these powers and misrepresent them to the public.