CPNs and PSPOs: the use of ‘busybody’ powers in 2019

For the past six years, the Manifesto Club has campaigned against the over-use of powers contained in the Anti-Social Behaviour, Crime and Policing Act 2014. We particularly raised concerns about Public Spaces Protection Orders (PSPOs) and Community Protection Notices (CPNs).

PSPOs allow councils to ban particular activities if the council judges that these activities have had, or will have, a ‘detrimental effect on the quality of life of those in the locality’. PSPOs have been imposed that ban shouting or swearing, loitering, charity collecting, or standing in groups.

CPNs allow councils to impose particular legal restrictions upon individuals, if their behaviour is judged to have the same ‘detrimental effect’. CPNs have been used to impose restrictions including a ban on begging or sitting on pavements, ordering people to tidy up a ‘messy’ garden, or even a ban on one couple looking at their neighbours.

The test of ‘detrimental effect’ was an unprecedentedly low legal test for criminal intervention. This was worsened by the fact that the powers came with minimal procedural requirements for evidence or consultation, and can be appealed only with difficulty.

Each year we have published an account of how these powers have been used, showing the damaging implications for due process, state accountability, and rights of free speech and association in public spaces.

This report is an account of the use of the PSPO and CPN powers in 2019.

We sent questions to all current 338 authorities in England and Wales concerning their use of PSPO and CPN powers in 2019; 290 councils replied. Overall, the use of both of these ASB powers has risen significantly on previous years. The vast majority of councils are now using one or both of these powers – 227 out of the 290 who replied, or 78% of councils. This shows that the use of these powers has now become mainstream.


 

1a. General picture – CPNs

CPNs increased by 2526 in the year November 18- October 19, compared to the previous year, which is the largest single increase since the power was created. CPNs have now reached an all-time high level of 8760 issued in one year. In total, nearly 30,000 CPNs have been issued since the power first came into operation.

Year (Nov-Oct) No. of CPNs No. of councils issuing CPNs
2014-15 (previous Manifesto Club FOI)

3943

107

2015-16 (previous Manifesto Club FOI)

4376

125

2016-17 (previous Manifesto Club FOI)

5730

182

2017-18 (previous Manifesto Club FOI)

6234

192

2018-19

8760

202

TOTAL CPNS
 29043

 

Here are the highest issuing councils:

Nottingham City Council

1464

Durham County Council

1081

Redbridge London Borough Council

796

Leeds City Council

650

1b. The offences – CPNs

– Messy gardens and neighbourhood disputes

The largest number of CPNs are being issued for messy and untidy gardens. This was the primary subject of CPNs issued by Durham and Redbridge Councils, while Newham issued 341 CPNs for waste in front gardens, and Barking issued 135 for ‘eyesore gardens’.

We have been contacted by several of those who have received CPNs for ‘eyesore gardens’. These include a man from Nottingham who was issued with a CPW for ‘long grass’, and an artist from Barking and Dagenham who was issued with a notice by a council officer who took objection to her ‘woodland-style’ garden. He told her that: ‘all twigs, leaves, pieces of wood etc on the floor needed to be removed; All bushes needed to have lower branches removed so that one could clearly see under them; That any branches (left for wildlife habitat) should be removed and disposed of; All bushes and trees should be radically pruned.’

These cases and many others suggest that CPNs are not being issued to deal with significant anti-social behaviour, but rather to enforce the opinions and taste of officials as to how people should keep their gardens.

Another common subject of CPNs concerns neighbourhood disputes. We have been contacted by dozens of recipients of CPNs where the issue is a dispute between neighbours that gets out of hand. The dispute generally begins with an argument over a parking or access, planning issues, or animals, or some such; it is not generally clear that the CPN recipient is particularly in the wrong, and indeed in some cases it seems that the accuser and ‘victim’ was engaging in the less reasonable behaviour.

This is the result of the fact that there is no requirement for the facts of the case to be proven, or for the CPN recipient to be given a chance to explain their side of the case. CPNs can involve strict conditions being placed upon people in their own home. In our FOI responses, we found that Gedling Council issued a CPN for a neighbourhood dispute over parking; Crawley issued a CPN ordering someone to ‘Ensure TV volume is lowered after 8pm and through the night’. North Devon prohibited someone from ‘continuing to place food out on the ground near your address, and continuing to use bird feeders’. In the past year, we have been contacted by several people who were banned from feeding the birds or feeding stray cats in their own gardens.

– Punishing homelessness

The revised Statutory Guidance, published on 24 December 2017, warned that CPNs should not used against the homeless and other vulnerable groups, stating: ‘Particular care should be taken to consider how use of the power might impact on more vulnerable members of society.’ Despite this, CPNs continue to be used against the homeless. In total, 31 councils issued CPNs targeting the homeless, including CPNs preventing begging, rough sleeping, loitering, or preventing homeless people from leaving their belongings in public or sitting on the pavement. Some CPNs prevented homeless people from entering certain parts of a town centre.

Wealden and Rother Councils issued CPNs targeting rough sleeping, while Portsmouth issued a CPN targeting ‘begging and loitering’, and Basingstoke and Deane banned someone from giving the ‘appearance of begging’. Newcastle Under Lyme issued an order to someone ‘not to obstruct footpath by sitting on pavement’. West Devon issued a CPN ordering someone not to ‘enter public toilets, leave things in public toilets’. Barnet issued an order instructing: ‘You are not to invite, or accept voluntary contributions from any member of the public.’

Indeed, CPNs have even been issued against those tolerant of the homeless. We were contacted by a Nottingham man in August 2019, who was issued with a CPN when a homeless man had pitched his tent on his land. The homeowner did not move the homeless man on; there were no complaints from neighbours and he did not want to dismantle or take away the man’s meager possessions. Yet the council’s CPN ordered him to ‘Clear all items including the tent, items of waste, and any miscellaneous items’ from his property.

–  Free speech and free association

Some CPNs present a distinct threat to rights of free speech and free association. One instance of this is the use of CPNs to ban people from certain parts of town. Newcastle Under Lyme issued an order ‘Not to visit market on tuesdays and thursdays; Not to enter the streets within Newcastle-under-Lyme town centre’. West Devon imposed a restriction on someone ‘Not to enter or remain within the designated area’. Tower Hamlets imposed a condition ‘Not to loiter or be found within 20 metres of a bus stop, train station, London Underground station’.

Another council, Lancaster, issued someone with a CPN for ‘behaviour at council meeting towards councillors’. Now it may be that the person was engaged in unreasonable conduct, but it is also possible that CPNs could be used in order to stifle criticism and free speech at council meetings. Birmingham Council issued a CPN for ‘inappropriate behaviour while protesting outside a school’; it is likely that this related to the group of parents protesting against LGBT teaching at their children’s school. (See the Manifesto Club statement on these protests.) Whatever the rights and wrongs of these protests, the use of legal orders to stifle protesting parents represents a significant restriction on free speech in public spaces.

– Miscellaneous

CPNs were issued for a wide range of other incidents, including barking dogs (including Sunderland, and Swale), bonfires (Bristol and Mole Valley), and escaping livestock (Calderdale). Bedford issued CPNs for ‘nuisance shopping trollies’ and East Riding for poaching, while Mole Valley issued a CPN to someone for keeping a large number of cats. Haringey issued a CPN to deal with street gambling, while Hackney issued three CPNs that targeted ‘groups of individuals congregating’. Pendle used CPNs to deal with ‘caravan nuisance’, while King’s Lynn and West Norfolk Borough Council banned someone from using ‘foul & abusive language and offensive hand gestures’.

 


2a. General picture – FPNs for PSPO violations

There has been a continued growth in the number of fixed penalty notices issued for violation of PSPOs, with an increase of 483 FPNs compared to the previous year, which itself had been an all-time high.

Year Number of FPNs for PSPO violation
2015 (Press Association)

470

2016 (Press Association)

1906

2018 (Manifesto Club previous FOI)

9930

2019 (Manifesto Club)

10413

Here are the highest issuing councils:

Council PSPO fines – no.
Peterborough City Council

3772

Hillingdon London Borough Council

1710

Bedford Borough Council

1083

Nottingham City Council

625

There has also been a growth in councils using private companies to issue fines for PSPOs. In our survey in 2017, only five councils employed a private company to issue fines for PSPO violations. Now, there are 22 councils employing private companies, including seven that employ the notorious Kingdom Services. The three highest finers – Peterborough, Hillingdon, and Bedford – all employ private security companies to issue fines.

2b. The offences – PSPOs

– Punishing homelessness

In total, 15 councils issued FPNs for begging. This included Bolton (which issued 40 fines for begging), Rochdale (30 fines), Enfield (25 fines) and Cherwell (10 fines). Brighton also issued a fine for the offence of ‘occupying any vehicle, caravan, tent or other structure’, which it is likely was issued to a homeless person or traveller. Dozens of councils have criminalised begging with PSPOs. This shows that these orders are actually being enforced, and that punitive financial punishments are being issued to the most impoverished section of society, on the basis that their poverty has a ‘detrimental effect’ upon others. This amounts to a failure not only of compassion but of social policy, since fining and criminalisation cannot be a solution to the problem of homelessness.

– Free speech and association

Many councils have passed PSPOs that are in effect a dispersal power for council officers, giving officers the power to bar people from a particular area. This means that a community safety warden, or a private security guard designated by the council, has the power to break up a group, and to order a group or individual not to return to a designated area for 48 hours. This use of PSPOs is highly questionable and probably illegal: these orders do not ban any particular activity (as a PSPO requires), but rather create a general power for officials to order people to disperse. The use of PSPOs to create dispersal zones encroaches on the existing dispersal power, which is another power contained in the Anti-Social Behaviour, Crime and Policing Act, which can only be used by police officers.

Our data shows that nine councils issued on-the-spot fines to people for failing to disperse when ordered to do so by a council officer. This includes fines issued by Peterborough and Hillingdon, which employ private security companies to issue fines: Hillingdon issued three fines for the offence of ‘failing to disperse’, while Peterborough issued one fine. In addition, Mansfield issued 13 on-the-spot fines for ‘breach of dispersal order’, while Newport fined people for ‘congregating in a group of three or more persons within the restricted area after an authorised person has requested that the group disperse’. Shropshire and Bolsover also reported fines for ‘Returning to restricted area when asked to leave’ (Shropshire) and ‘failure to move on’ (Bolsover). Meanwhile, Redbridge Council issued verbal warnings to disperse on Illford lane, North Lincolnshire Council said that it had dispersed rough sleepers, and Test Valley also had issued a dispersal order.

This extension of the dispersal power to council officers and private contractors is extremely worrying: it means that, at any time, council officials have the power to bar you from a public space, and it is a criminal offence to disobey. The police dispersal power is problematic enough, but at least there are certain checks upon its use – for example, the person must be ‘causing, or likely to cause, harassment, alarm or distress’ (see a Manifesto Club briefing on the dispersal power). Dispersal powers introduced through PSPOs can be invoked whenever a council or other officer sees fit; there is no obligation that a person be behaving antisocially. This means that authorised officers are able to disperse any groups of which they disapprove, whether a political demonstration or a group of young people. This fundamentally undermines our rights of free association in public spaces.

In addition, Slough Council issued an FPN for ‘loitering’, criminalising someone’s mere presence in a public space. Bolton issued a fine for an amplifier, which undermines free speech, since amplifiers are essential for political gatherings of any size or importance. Haringey issued five FPNs to people for ‘congregating in a group of two or more persons in such a manner as to cause obstruction or give reasonable grounds for annoyance to any person in the vicinity’ – a broad category of offence that could be used against social or political gatherings of various kinds.

– Cycling

A great number of fines have been issued against cyclists, particularly in those councils employing private companies. Peterborough issued 854 FPNs for ‘unauthorised cycling’ (cycling is banned in a section of the town centre); it also issued 71 fines for people who failed to dismount when asked to by an authorised officer. Bedford also has a cycling ban in certain parts of the town centre, and issued 1064 fines for cycling. Meanwhile, North East Lincolnshire also reported issuing fines for cycling.

Spitting

Peterborough issued 336 fines for spitting, and Hillingdon issued 477. Rotherham and Ealing issued an undisclosed number of fines for the same offence.

Swearing

A couple of dozen councils have criminalised swearing or foul language through PSPOs. Our data shows that these are not merely symbolic bans; people are receiving FPNs for foul language in public. Hillingdon issued 44 fines for the offence of ‘abusive language’. Canterbury issued fines for ‘abusive language’ and Kettering issued fines for ‘foul and abusive language’. Such enforcement places local authority officers in the position of being ‘language police’, and issuing penalties for words that would not be an offence under any other law of the land.

Dogs

There were 131 incidents of local authorities fining for dog offences, including FPNs for the offence of being in a no-dog area, the dog not being on a lead, as well as dog fouling. Councils have used PSPOs to add new crimes to the traditional list of dog offences, with PSPO bans on walking more than a specified number of dogs, and the new offence of failing to show a means to pick up dog mess. Councils that issued fines for walking more than the number of permitted dogs included Pendle, Hillingdon, Hammersmith and Manchester City Council (Manchester imposed the limit of only walking four dogs at a time in a public place). Cornwall Council issued on-the-spot fines to people who took their pets on a dog-free beach; while East Staffordshire and Mansfield issued fines to people who were unable to show the means to pick up.

Miscellaneous

Hillingdon issued a large number of fines (888) for the offence of ‘idling engines’, an activity that could only have been targeted because it was a common ‘offence’ and therefore easy to punish. Wrexham issued four fines for being under the influence of alcohol or drugs, meaning that people could have been fined merely for being drunk. Tonbridge and Malling issued a fine for unauthorised swimming. Meanwhile, Richmond issued fines for its controversial PSPO that criminalised causing nuisance or annoyance to animals or people in parks and open spaces.


4. Conclusion

The Manifesto Club led the call for a change to the Statutory Guidance governing PSPO and CPN powers, which was achieved in December 2017. This guidance imposed stricter limits upon the use of these powers, and particularly upon their use against vulnerable people such as the homeless. (See our briefing on the changes in the Statutory Guidance.)

However, because these powers are rarely appealed in courts, the new Statutory Guidance has unfortunately had only a minimal effect. This is shown by the continued rise in CPNs and PSPOs as documented in this report, as well as the continued targeting of groups such as the homeless.

We are therefore calling for a fundamental review of these powers. These blank-cheque ‘busybody’ powers are the cause of immense injustice, and a fundamental threat to our freedoms. They should be removed from the statute book.