For two years, the Manifesto Club has been campaigning against ‘blank-cheque’ Public Spaces Protection Order powers, which allow a local authority to prohibit any activity it believes to have a detrimental effect on the quality of life. There has been some public opposition to particular PSPOs, which have led to draft orders being modified or withdrawn.

In the process of this campaign, we have become aware that other powers in the same act – Anti-Social Behaviour, Crime and Policing Act 2014 – are being used to a similar effect, but have gone beneath the radar of public discussion and debate. These powers include Community Protection Notices, an order which is targeted at particular individuals, imposing bans or requiring certain activities.

This report analyses the use of CPNs in their first year, finding that nearly 4000 CPNs and over 9500 CPN warnings were issued between October 2014 and October 2015. The CPN comes with such a low burden of proof, and such minimal procedural requirements, that there is a serious danger that it will be used to impose unreasonable restrictions upon law-abiding members of the public.

What are CPNs?

Community Protection Notices (CPNs) are powers contained in the Anti-Social Behaviour, Crime and Policing Act 2014, which allow local authorities to issue written notices banning an individual from doing things that the authority believes to have a detrimental effect on the quality of life of those in the locality. CPNs can also require an individual to do specified things, or to take steps to achieve specified results. It is a criminal offence to fail to comply with the notice, which can be punished by an on-spot fine of £100, or on prosecution a fine of up to £2500 (for individuals) or £20,000 (for businesses).

The notices can be issued by local authority officers, police and community support officers, and officials designated by the local authority. It is left to local authorities to establish their own procedures for the issuing of CPNs. Some councils provide street wardens with template CPNs that can be filled out on the spot: the decision to issue a CPN is therefore that of the warden alone. The template could be a standardised CPN (for example, for messy gardens or waste in front gardens), or it could have boxes to be filled in on spec by the officer, who defines the nature of the detrimental conduct and the measures that must be taken.

There are some procedural restrictions on the issuing of CPNs, but these are limited. The council officer must issue a written warning to an individual about their conduct before issuing a CPN (however, the Statutory Guidance allowed that this warning could also be ‘a pre-agreed form of words that can be used by the officer on the spot’). The individual’s conduct must be persistent and continuing, but the Statutory Guidance gives the example of a busker refusing to stop playing as an example of persistent and continuing activity.

CPNs replace Litter Clearing Notices, Street Litter Control Notices and Defacement Removal Notices, which were more specific powers that required a stronger test (litter clearing notices required that land was ‘defaced’ by litter or refuse so as to be detrimental to the amenity of the locality). CPNs have been applied to anything from neighbourhood disputes to feeding the birds, from busking to rough sleeping to roaming peacocks.

The CPN therefore in some ways covers a similar terrain to the former ASBO and the current civil injunction, with a key difference: the CPN does not have to go through a magistrates’ court, and the standard of proof is significantly lower (the civil injunction requires conduct that is causing harassment, alarm or distress).

CPNs therefore give council officials unprecedented powers to direct the behaviour of particular individuals, backed up by the force of the criminal law. These orders can be applied to conduct within your own home. CPNs can also impose measures which are expensive and burdensome, such as carrying out renovations to a property or disposing of materials in a particular manner.


How Have Powers Been Used?

Summary: Our FOI requests show that, between October 2014 and October 2015, 107 councils used the CPN power, imposing a total of 3943 CPNs and 9546 CPN warnings. The highest issuing councils were Newham, which issued 1486 CPNS and 8795 warnings, and Wakefield which issued 802 CPNs. Additionally, Leeds City Council said that it used the notices extensively but that the numbers were not known.

Four councils issued notices for feeding birds in gardens, three for busking, and 18 for messy gardens. Five councils issued CPNs addressing Japanese knotweed, five targeted arguing/shouting/crying in the home, while others targeted rough sleeping, street drinking and begging. Five councils issued CPNs in cases of neighbourhood disputes. Between 1 April 2015 to 31 December 2015, there were 254 prosecutions for failing to comply with a Community Protection Notice, of which 200 were successful.

Download the full dataset containing all CPNs and CPN warnings (obtained from our FOI requests issued to all 346 local authorities in England and Wales with the powers to issue CPNs).

Table: Activities Targeted by CPNs
Activity targeted by CPN Number of councils Examples
Feeding birds 4 East Devon Council, North Devon, Conwy, Exeter
Busking 3 Bath Council targeted busking too long in the same spot; South Gloucestershire targeted accordion noise; Ashford issued CPN warning to busker.
Messy gardens 18 Newham Council issued 1378 CPNs for waste in front gardens. Durham Council issued 298 CPNs, largely for untidy gardens; Barking and Dagenham issued 134 notices for ‘eyesore gardens’, and Kirklees issued 109 for messy gardens. Wakefield issued 802 CPNs including for untidy gardens.
Japanese knotweed 5 Waltham Forest, Nottingham, Gosport and Lambeth issued CPNs for Japanese knotweed. Bristol issued CPN warnings for non-native invasive species.
Arguing/shouting/crying 5 Great Yarmouth Council issued notices for noise/shouting/arguing; Bolsover for shouting; Exeter for shouting and door slamming; Newcastle-Under-Lyme for shouting/arguing/banging/crying noises; Tameside for shouting/swearing/banging that can be heard outside the property.
Begging 8 Burnley, North Devon, Poole, Nottingham City Council, Slough, Hackney, Barnet, Rochford
Loitering 2 Hackney issued a CPN for loitering; Barnet Council issued CPNs for loitering and loitering in stairwells.
Rough sleeping 1 Newham Council issued 96 CPNs to rough sleepers and homeless street drinkers.
Dog barking 2 South Gloucestershire Council and Braintree Council issued CPNs for excessive dog barking.
Delapidated vehicle 2 Wigan Council issued CPNs for an ‘unsightly vehicle’, Nottingham City Council for a dilapidated vehicle.
Street drinking 5 Slough, Bristol, Newham, Barnet, Lincoln issued CPNs for street drinking.
Neighbourhood disputes 5 Poole Council issued CPNs for derogatory remarks about neighbours and neighbourhood disputes; Mansfield for neighbour nuisance; Barnet for neighbour disputes and intimidating neighbour; Poole for neighbourhood disputes; Slough for nuisance neighbour.

Invading the Privacy of the Home

We asked local authorities for the texts of any issued CPNs; some provided the texts, others provided general descriptions of the subject matter.

There were a number of CPNs which gave detailed specifications for conduct in people’s own home. Newcastle-Under-Lyme Council issued several notices specified that there should be no shouting, arguing or crying that could be overheard: ‘Not to create screeching, shouting, arguing and banging noises within xxxxx or in the garden of the aforementioned address at such a level that they can be heard within the adjoining address at any time on any day.’ One of these orders included crying in the list of noises that should not be overheard from adjacent properties.

Tameside Council issued notices prohibiting ‘Shouting and swearing inside your property or 
allowing others to shout and swear to an extent 
that this is heard outside or in any other property’ and ‘Having the TV on at a level that can be heard by 
others outside your flat at any time of the day or 
night’. It also issued vague notices which prohibited ‘Doing anything that may or does interfere with the 
peace, comfort or convenience of other people or 
causes them offence’ and ‘Making noise that is or is likely to be a nuisance or 
annoyance. This can include noise from televisions, sound equipment (stereo systems), radios, musical instruments, domestic appliances and power tools’. Such blanket prohibitions would leave people unable to put up a set of shelves, listen to music or watch television.

Other CPNs have targeted people’s habits or daily routines. Four councils have specified that people cannot feed the birds in their garden. Fylde Borough Council issued the following order to a bird lover who fed birds once a day:

Fylde Borough Council is satisfied that your conduct set out below is unreasonable and is having a detrimental effect on the quality of life of others in the locality and is of a persistent or continuing nature. The conduct is the placing of food within the curtilage of *** for the purpose of attracting and feeding wild birds. AND THIS NOTICE NOW REQUIRES THAT from *** you must stop placing food which is likely to attract wild birds within the curtilage of *** and you must not allow any other person to do so.

Such orders undermine the privacy and sanctity of the home. If you cannot cry within your own house, or feed the birds in your garden, then the home has no significant meaning as a private space which is protected from the demands of the outer world. These orders also criminalise some activities commonly viewed as normal or even positive: feeding wild birds in your garden is encouraged by the RSPB.

bird-feeder

The noise restrictions specified in these orders are unrealistically low: it is rare that TVs or music cannot be overheard to some extent in adjoining properties, and a certain background noise is part and parcel of living in a flat or terraced house. It may be that some of these individuals’ behaviour would qualify as a statutory nuisance, but the issued CPNs set the conditions so low as to criminalise very ordinary behaviour.

In some cases, councils are using these powers to intervene in the everyday negotiations and disputes among neighours, imposing one party’s position with the force of law. Five councils had used CPNs in cases of neighbourhood disputes. Poole Council imposed a CPN ordering someone ‘Not to make derogatory remarks about your neighbours': for this individual, it becomes a crime to make a derogatory remark about their neighbours.

CPNs are also being issued for cases that would be more fitting for local authority to offer help rather than criminalisation, such as invasive vegetation such as Japanese knotweed, which requires repeated treatments or excavation down to a depth of several metres. The chairman of the Invasive Non-Native Specialists Association said that it is unreasonable for councils to threaten individuals with criminal sanctions for invasive vegetation:

We question the use of already stretched resources to identify and manage disputes over invasive vegetation, especially as this can be an issue which can take many years to manifest and equally as long to eradicate. The UK has no plan to tackle invasive species, but an ever-increasing legislation to punish those unlucky enough to have it on their land.

Some CPNs concern the removal of waste goods such as sofas and electrical goods, but many merely treat overgrown gardens, such as grass that is not mown or shrubs that have not been pruned. Rotherham Council required that somebody ‘Hack back and prune all plants, shrubs, bushes and other vegetation to the front garden so as to ensure that it is in keeping with surrounding gardens’. Doncaster Council ordered someone to ‘Cut back, prune and trim, so as to create and maintain a garden in keeping with the neighbourhood…within 14 days of receipt of this Notice'; it ordered someone else that they must maintain their overgrown garden ‘by carrying out weed killing treatments’.

messy-garden

Councils can also use the measures to stifle criticism of council policy. A man in East Lancashire was threatened with a CPN ordering him to take down ‘inflammatory’ signs that criticised a new housing development sanctioned by the council. The signs were on his back gate and on a tree on the edge of his property. The council’s community protection co-ordinator said: ‘This notice would ultimately give the council the ability to enter the land and remove the signs.’

CPNs can specify not only the end to be achieved, but also the means. A West Oxfordshire CPN ordered that somebody must remove an overgrown tree in the following manner: ‘The tree to be cut down to ground level and all arising (waste) to be removed from the site by a licensed waste carrier’. Such orders impose council opinion on somebody’s management of their garden: many people do not like weed killing treatments, for example, or would prefer to drive wood to the dump rather than employ a costly licensed waste carrier.

People’s houses can be targeted merely on the basis that they are not to neighbours’ or officials’  taste. Rotherham Council ordered that somebody ‘Clean the windows both internally and externally': for this person, it is a crime not to clean their windows. South Somerset Council ordered someone to remove graffiti-style painting from their front wall, a practice which is common in Bristol but which clearly was not appreciated in South Somerset. It is a short step from this to requiring that a person paint their house a more tasteful colour which does not clash with surrounding properties. Two councils ordered people to remove or cover an unsightly vehicle which was being stored on their land: it was not that the vehicle was dangerous or causing harm, only that it looked messy to others. Mansfield Council ordered somebody not to keep collections of bicycles on their land.

Therefore, if neighbours or council officers believe that someone should clean their windows or cut their grass or not hoard bicycles, this opinion can be imposed with the threat of fines and criminal records. Yet concepts such as ‘messy’ or ‘eyesore’ gardens lack both legal precedent and objective basis: one person’s dream garden or wild haven could be another person’s eyesore.

caption

The cited justifications for particular CPNs often appear to be spurious. Several councils claimed that long grass should be cut because it can attract rats, which would be the case with any form of cover (shrubs/bushes) and any food sources (berries, or fruit or nut trees). South Somerset Council claimed that the graffiti-style paintings could ‘pose a threat to highway safety’, perhaps imagining that motorists viewing the paintings would be more likely to crash. West Oxfordshire Council claimed that leaves from the offending tree would fall on other properties and cause people to slip on their patios:

A large volume of leaves and debris would be deposited in the area. This would cause a tripping hazard to local residents where the leaves and debris land on paths patios etc. This is a particular concern in the winter when it is wet and windy.

There appears to be little respect for the rights of home ownership or the notion that your house or garden are places that you can manage as you see fit. Now it is the complainant outsider, and not the home owner or occupier, who appears to have the weight of authority and the balance of the law on their side.

CPNs can be used to impose costly works or renovations to a property; if the person fails to carry these out, the council can carry out ‘remedial action’ in the garden or on the outside of the property without the owner’s consent, and then bill them for the costs of the works. (The council can carry out works inside the house only after obtaining your consent or a court order). This means that local authorities can carry out works on the outside of your home against your wishes, without having to obtain a court order or prove that the works are justified. Furthermore, if someone has been convicted of violating a CPN (for example, by playing music) then the magistrates’ court can order that items such as speakers or instruments be seized and destroyed.

In the long run, such interventions could be counterproductive and damaging to neighbourhood relations. By intervening in relations between neighbours, CPNs short-circuit the informal ways in which neighbours negotiate issues such as overhanging trees, noise or broken guttering, issues that are much better dealt with by a conversation rather than legal orders which inevitably create conflict and ill will. Once neighbours are getting legal notices served for the conditions of their gardens, this impairs people’s ability to negotiate such matters in a reasonable manner.


Micromanaging Behaviour in Public

CPNs are also being used to control people’s conduct in public places, including requirements that they do not beg, sleep rough, busk or loiter. In these cases, CPNs can be used to give on-the-spot directions specifying the conduct of particular individuals. The notices cover some of the same areas as other powers, such as civil injunctions, statutory public nuisance powers, or public spaces protection orders (PSPOs), but are easier to apply and can be used on a case-by-case basis targeting particular individuals.

busking

This means that councils can use CPNs to fine people for rough sleeping or begging, without the publicity associated with enacting a public spaces protection order banning these activities. CPNs are more likely to pass beneath the radar of public criticism and debate; they can also be used to target the individuals of which officials disapprove rather than stating restrictions that are nominally applicable to everyone.

For example, the London Borough of Newham hasn’t enacted a PSPO restricting begging or rough sleeping, but has systematically used CPNs to enforce this as a de facto restriction in the borough. In the year October 2014–15, the council issued 189 CPN warnings and 96 CPNs for rough sleeping and street drinking, running a joint operation with the police to to ‘target priority hotspots and enforce repeat rough sleepers, street drinkers etc’. This systematic targeting of rough sleepers (which has led to the issuing of 7 FPNs) has been carried out without any significant public debate.

Hackney Council was forced to withdraw a PSPO banning rough sleeping, loitering and begging, after widespread public protest, yet the council has enforced some of these restrictions against particular individuals within the borough by using CPNs – issuing five notices for begging, one notice for ‘Erecting encampment and loitering’ and another for ‘Sleeping in bin stores’. Meanwhile, Barnet has issued CPNs for loitering, meaning that for these individuals it is a crime to stand still in a public space.

Other CPNs targeted music and art. Newham issued a CPN banning ‘Street sculpture/entertainment’. In the case of buskers, a CPN can deprive someone of their livelihood, as was the case with a young Retford musician banned from busking in Retford town centre.

Some CPNs are being issued to people who appear to be disturbed and requiring of help rather than criminal sanction. A Doncaster homeless man with mental health problems was issued a CPN banning him from sleeping in woods on hospital grounds, which he said he did because it made him feel safe. The man was subsequently found in the woods and convicted of violating a CPN: he now has a criminal record. One Hackney Council notice targeted a rough sleeper for ‘screaming and shouting persistently’ in public. Criminal sanction cannot be the most suitable council response to someone who is clearly disturbed and whose activity is not actually causing public harm.

These measures are often presented as ‘support’, but ultimately are a criminal restriction with criminal penalties. One homeless man was fined £2,330 for violating a series of CPNs by continuing to drink in public in Leighton Buzzard. It is worth noting that his offence was not causing public nuisance or harm, but merely sitting on a bench and drinking alcohol.

Some councils are using CPNs against young people: Warwick Council issued a CPN for door knocking, while Wiltshire issued three CPNs to under-18s for town-centre-based youth nuisance. Here the formal legal order supplants a telling off or ordinary discipline in response to youth misdemeanour, meaning that a young person could find themselves with a formal criminal record for door knocking. While door knocking is annoying, it is also a relatively run-of-the-mill childhood misdemeanour and hardly warranting of a criminal record.

In another case, Maldon District Council issued a CPN banning free-roaming peacocks in the village of Mayland, Essex. In spite of local demonstrations and petitions in favour of the peacocks, the owner had to rehouse the birds in order to avoid committing an offence.


Supplanting Other Powers

CPNs are being used in a broad series of circumstances, in many cases crossing into terrain which is already covered by existing powers and procedures.

Some councils have issued CPNs targeting offences covered by established branches of the criminal law. Poole Council issued a notice specifying that somebody was ‘not to smoke cannabis in your home'; Tameside banned someone from using or possessing controlled drugs; while Nottingham City Council issued a notice for malicious communications. Several councils targeted individuals for alleged harassment, which is also an offence. In these cases, it appears that local authorities are preferring CPNs as a quick-fix response, avoiding the effort and burden of proof required for a successful prosecution.

CPNs are also being used for areas that are already covered by statutory nuisance powers such as Noise Abatement Notices. Statutory nuisance powers impose a stricter requirement for proof and justification before restrictions can be imposed. Noise Abatement Notices, for example, require that noise be ‘prejudicial to health or a nuisance’ (a nuisance is not an annoyance, but must represent an ‘unlawful interference’ with someone else’s use or enjoyment of land). The precise meaning of these terms has been established through precedent in the courts.

It is a principle of law that more specific powers should be preferred to more general ones. That means that a specific criminal law prohibiting harassment (with the accompanying specification and legal precedent), or a specific statutory nuisance power such as a Noise Abatement Notice, should be preferred to an all-purpose CPN. In fact, we are seeing the opposite: the more general CPN power is being preferred to more specific powers. A quick-fix, all-purpose measure is being used in areas where other powers could be used, which means that the punishment of offences such as neighbour nuisance is occurring beyond the purview of formal law and procedure.

This means that nuisance offences start to lack general definition and standards of legal proof. We are seeing a shift from the enforcement of a defined criminal law, to vague and personalised directions of conduct issued by specific council officers to specific individuals. This also takes council officers – and council subcontractors – further into the terrain of pseudo-policing, a coercive role which should require a more exacting training and stricter lines of control and command.


Making Up the Law

Councils have dramatically differing levels of CPNs, according to the policies of their community safety or environmental health departments. For example, Newham Council has issued 1486 CPNs, while comparable London boroughs have issued only a handful or none at all. As a result, there is no consistent point at which a CPN intervention will be triggered. An overgrown garden would be a crime in one borough but not in another.

The erratic way in which this power is enforced is shown by some councils’ CPN forms, which leave blanks for council officers to write in the offending behaviour and the measures required. Barnsley Council provided a form for officers to fill in which read:

By this Notice you are required: To stop doing specified things, namely…(blank)

To do specified things, namely…(blank)

To take reasonable steps to achieve specified results, namely…(blank)

Such ‘fill in the blank’ measures go against all notion of legal procedure: the legal injunction is supplied on the whim of the council officer, depending on what they decide to write in the box. This council officer might be a street warden or enforcement officer, or even subcontracted parties such as housing management companies or private contractors.

In some cases, councils are using CPNs to enforce their own policies as a legal injunction. For example, Tameside Council issued a CPN ordering a householder not to overuse their black bin:

You must use the green recycling bin for (glass, tin and plastic), brown bin for garden waste/food waste and blue bin (paper, catalogues, telephone directories, cardboard etc.) to their full capacity in order to minimise the waste that goes to the black general waste bin.

The over-use of the black bin becomes a criminal offence for this person: particular council policies can be imposed not by persuasion but under duress.


What Can be Done?

There is a grave need to subject CPNs to a greater degree of oversight and control, to limit such broad and intrusive application. There is a strong argument for limiting CPNs to waste removal issues, since this is the primary function which is not already covered by other powers. CPNs should certainly not be used as a quick-fix measure in areas already covered by more specific parts of the criminal law.

We urge councils to publicise their use of CPNs, so these can be subject to local public debate and discussion – and for individuals who have been affected by CPNs to come forward. It is our view that the Home Office should investigate and record how these powers are being used, and consider whether they should not be more significantly restricted.

Finally, we note that CPNs can be appealed in Magistrates’ Courts on grounds such as that the conduct was not unreasonable, or has not had a detrimental effect, or is conduct that the person cannot reasonably be expected to control or affect. Our FOI requests suggest that only 11 CPNs were appealed between 1 April 2015 to 31 December 2015. We hope that more CPNs can be challenged in court and would encourage the recipients of unreasonable CPNs to get in touch in order to attempt such a challenge.