(A guest post by Dr Ben Stanford, Coventry University). In the 2019 Reith Lectures, former Supreme Court judge Lord Sumption described what he perceived as the law’s expanding empire into every corner of our lives. Whilst some of the law’s intervention is forced upon us, Sumption argues that two of the reasons for its expansion are down to collective choices – the growing moral and social pressures to produce conformity but also the constant quest for greater security and to reduce risk in our daily lives. Public Spaces Protection Orders (PSPOs), introduced by the Anti-Social Behaviour, Crime and Policing Act 2014, are prime examples of this expansion. This Act followed the Conservative Party’s pledge in the build up to the 2010 General Election to launch the ‘Big Society’, which would involve an ‘unprecedented redistribution of power and control from the central to the local’, but also the pledge to ‘put victims first’ when responding to anti-social behaviour.
PSPOs are a type of hybrid ‘civil preventive order’ which have become commonplace in the ‘preventive state’. These types of powers are often used when suspected criminal activity or nuisance, or the risk of such activity, cannot be subject to prosecution. The 1990s saw a significant growth of civil preventive orders, most famously with the so-called ASBO. These powers impose considerable restrictions and/or obligations upon individuals under civil law procedures with a low burden of proof, but carry criminal sanctions such as fines or even a prison sentence if violated.
The purpose of a PSPO is ‘to deal with a particular nuisance or problem in a particular area that is detrimental to the local community’s quality of life, by imposing conditions on the use of that area’. They have attracted considerable scrutiny in recent years owing to the breadth of activities restricted in some areas such as dog fouling and control, street racing, the consumption of alcohol and intoxicating substances, and urinating. More controversially, some PSPOs have restricted behaviour causing harassment, alarm and distress, congregating in groups, begging and rough sleeping.
Whilst PSPOs share some features with other well-known civil preventive orders such as Football Banning Orders, Serious Crime Prevention Orders and TPIMs to name just a few, they also differ in significant ways.
Firstly, PSPOs are imposed by local authorities acting alone without the need for court scrutiny. As these powers are imposed solely at the local level and lack any judicial oversight unless challenged by an affected individual, it is almost inevitable that they will be used inconsistently and perhaps discriminately between different authorities, often on political or other ideological grounds.
Secondly, an authority merely needs to demonstrate that it is ‘reasonably satisfied’ that activities have a ‘detrimental effect’ on the ‘quality of life’, rather than point to the activities of any one particular individual. If we assume that a high burden of proof of wrongdoing such as that ‘beyond reasonable doubt’ reduces the range of people who could be affected, then a low burden of proof such as that required to impose a PSPO produces the opposite effect and broadens the net considerably.
Thirdly, perhaps the biggest difference between PSPOs and other civil preventive orders concerns who may be affected. PSPOs are spatial powers as they apply to defined areas, rather than any one individual due to their suspected or potential wrongdoing. In other words, PSPOs can potentially regulate the conduct of unspecified and infinite individuals in a certain area. This inherently leads to blanket bans, with the prospect of criminal sanctions for breaching the conditions imposed, irrespective of any prior individual wrongdoing.
Some safeguards do exist however. The effect or likely effect of the prohibited activities must be ‘persistent’ and ‘unreasonable’. The conditions can be imposed only if reasonable to prevent the ‘detrimental effect’ from occurring, or to reduce the effect or the risk. PSPOs must be published in accordance with regulations produced by the Secretary of State, the local authority must have particular regard to the freedom of expression and the freedom of assembly and association, and the authority must consult and inform the public.
Regardless, two recent cases demonstrate that local authorities enjoy considerable discretion and the courts will not intervene to quash a PSPO if the authority has followed procedure and consulted fully. In both Summers v London Borough of Richmond Upon Thames and Dulgheriu v London Borough of Ealing the High Court ruled that the respective PSPO had been imposed lawfully. The Dulgheriu case in particular demonstrated that human rights can be significantly affected by far-reaching PSPOs. In this case, the High Court acknowledged that a ‘safe-zone’ prohibiting protest near an abortion clinic restricted the protestors’ rights to demonstrate, but this was justified by the clinic users’ right to privacy.
Clearly, local authorities enjoy considerable discretion as to why, when and how it can restrict behaviour. Such powers may lead to the emergence of localised criminal codes, as certain conduct may be prohibited in one area, even in a particular street, whilst remaining lawful in other neighbourhoods. This obviously bears some resemblance to bylaws, but these are limited in scope and must be subject to approval from a Secretary of State, therefore providing a boundary and some measure of consistency and government oversight.
Ultimately, PSPOs signify both an evolution and devolution of the preventive state. On the one hand, they demonstrate evolution as they apply to spaces rather than individuals, thus imposing localised criminal codes that affect all individuals, as opposed to personalised criminal codes created by other civil preventive orders. On the other hand, PSPOs embody devolution as they are imposed solely at the local level, without any judicial supervision, which can vary from city to city and even from street to street. This arguably reflects, to some extent, what Lord Sumption described as the expanding empire of the law, prompted by the growing trend towards conformity by eliminating difference and dissent, but also the quest to reduce perceived risks in our daily lives.
Dr Ben Stanford is a Lecturer in Law, specialising in human rights, at Coventry University.