Kettering Council’s draconian and unnecessary PSPO

Kettering Council has just passed a draconian and entirely unnecessary PSPO. This order (available in Appendix B here) will ban a series of activities which are in themselves not causing of public nuisance or harm. The result is that people will be fined and criminalised merely for being in a public place, for skateboarding, begging, or for swearing.

The PSPO will ban:

– ‘Loitering’ – The council’s report says: ‘The police have concerns about the number of people who use the roadways in Kettering as a place to congregate and socialise, particularly at night’. The council does not specify the actual harm involved in this action of ‘loitering': is congregating and socialising now a criminal act?

– ‘Assertive/aggressive’ charity collection or soliciting for money on the street. The council says it does not want to affect ordinary charity collectors, but this is a broadly worded prohibition. What, after all, is ‘assertive’?: unassertive collectors would not find many people to talk to. This prohibition could also potentially affect buskers.

– Under-18s out between 11pm-8am. This means that 17-year olds will now in effect be under curfew. What about young people with events or sports practices early in the morning? 17-year olds can marry and join the armed forces, but they cannot go out at night in Kettering.

– Use of skateboards, bicycles and scooters: ‘Any person is prohibited from, at any time, using a skateboard, bicycle, scooter or similar wheeled conveyance within the that part of the Prohibition Area’. The council has reduced the affected area after protests, but still it is criminalising skateboarding in large parts of the town centre. It is worth noting that only 160 out of 626 public consultation responses wanted the PSPO to apply to skateboarding.

– Begging: ‘Any person on a street in the Prohibition Area is prohibited from, at any time, placing himself in a position to beg or solicit money.’ This, again, will mean fines for begging, an entirely wrong-headed response to the social problem of homelessness and destitution. The council’s suggestion that they will use warning cards before fining hardly improves matters. At base, a person is being forced to stop begging on the streets of Kettering, with threats of fines if they fail to comply.

– ‘Foul and abusive language’ – ‘Any person in the Prohibition Area is prohibited from swearing, or shouting, in a manner causing harassment alarm or distress to any person present at the time (including an Authorised Officer)’. This means that an officer only has to say that they were offended by someone shouting or swearing for that person to be criminalised. It is likely that this order will particularly affect young people and homeless people. Shouting and swearing are not in other areas considered sufficiently harmful so as to qualify as a criminal offence.

The Manifesto Club has emailed Kettering Council to express our grave concerns with this order. If you would like to do the same, the council representatives to contact are:

shirleyplenderleith@kettering.gov.uk

lloydbunday@kettering.gov.uk

russellroberts@kettering.gov.uk


 

Here are some of the other critical responses to Kettering’s PSPO.

1. The Standing Committee on Youth Justice sent a very strong and critical letter to the council, saying that in their view the law was ‘unlawful, disproportionate’ and ‘counter-productive’. Download a copy of their letter here.

2. The solicitor Luke Gittos wrote to the council, arguing that the law was unclear and conflicting with statutory guidance:

I write with respect to the recent implementation of a Public Space Protection Order under section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 (the Act) in Kettering. We make reference to the report to the executive dated the 9th of December 2015. We have serious concerns about the impact on civil liberties occasioned by the order. We are also concerned with respect to the legality of the order, given its apparent conflict with the terms of the Home Office Guidance with regards to these orders.

The order seeks to prohibit ‘aggressive and assertive fundraising’. This prohibition is unclear. Fundraising must be ‘assertive’ in order to be successful. All charity fundraising could potentially be targeted. No guidance is given as to the meaning of either ‘aggressive’ or ‘assertive’. Given their ordinary meanings the terms could be used to describe any activity designed to elicit funds for charitable purposes. The terms of the order provide no clear limit to legitimate fundraising activity and thereby provides a significant disincentive for charity fundraisers to operate in the area. This could not possibly have been the intention of the Home Office when providing authorities with the power to make these orders.

The prohibition on begging raises similar issues. It is not clear why the police are unable to rely upon the existing criminal law as contained in the 1824 Act. It cannot be in accordance with the Home Office Guidance to deploy a PSPO to allow ordinary police duties to be delegated outside of the relevant police force. It is a fair assumption that the bar to police officers in enforcing the 1824 Act is the understandable difficulty in producing evidence that a particular individual was ‘begging’ in accordance with the Act. It appears that the PSPO is being deployed to bypass the difficulties in enforcing the criminal law with evidential force by passing an order which allows for the imposition of punishments without any judicial oversight.

Part of the justification provided for the broad terms of the PSPO is that it ‘would enable…young people to be safely returned to their homes and would address safeguarding and Child Sexual Exploitation concerns’. This is an extremely concerning aspect of the Council’s thinking. Both the statutory law and the Home Office Guidance with respect to PSPOs make clear that their purpose is to control specific nuisances under specific circumstances. A significant network of laws exist to allow for the management of safeguarding and child sexual exploitation concerns. It is not clear whether the PSPO is being justified on the basis that these existing laws are insufficient or that the council are applying the existing law badly. In either case, the management of safeguarding and child sexual exploitation concerns are an entirely inappropriate justification for the implementation of a PSPO.

It is suggested in the report to the executive that ‘any such conviction would be classed as low level, similar to a parking fine, and would be spent after a period of 5 years, or less, if the offender is a young person’. This demonstrates a serious misunderstanding of the criminal law. A parking ‘fine’ does not amount to a criminal conviction at all. A criminal conviction could arise from an offence under section 67 of the Act. Criminal convictions do become spent, but will nonetheless remain on an individual’s criminal record permanently. A conviction for an offence related to a PSPO could therefore continue to impact on a person’s life long after the conviction is spent. This is of acute concern given that skateboarders are to be targeted by the PSPO’s provisions, the majority of whom are young people. It is not known what ‘low level’ means in this context; no such term is recognised in law.

Are you able to address these concerns? I am aware that similar concerns have been raised by other interested parties and I look forward to hearing proposals as to how these will be resolved.

Luke Gittos

Solicitor

Messrs Hughmans

1st Floor, 32 Farringdon Street,

London EC4A 4HJ