1. What are PSPOs?
Public Spaces Protection Orders (PSPOs) are unprecedently ‘blank cheque’ powers, which allow a single council official to ban activities in public spaces.
PSPOs are contained in the Anti-Social Behaviour, Crime and Policing Act 2014, and can be issued if a council official believes activities carried on in a public place ‘have had a detrimental effect on the quality of life of those in the locality’ (or the even lower standard that ‘it is likely that activities will be carried on in a public place within that area and that they will have such an effect’). A PSPO can impose such restrictions as are reasonable to prevent the detrimental effect, or to reduce the detrimental effect or reduce the risk of it occurring. The ‘detrimental effect’ test is already incredibly low, and with these further qualifications the test is further weakened.
The only condition is that the detrimental effect of these activities is, or is likely to be, persistent or continuing; and is, or is likely to be, such as to make the activities unreasonable.
There is no requirement for public consultation: the law defines ‘the necessary consultation’ as ‘whatever community representatives the local authority thinks it appropriate to consult’. Nor is it necessary to pass PSPOs through a vote of elected council representatives. Indeed, a previous Manifesto Club survey found that half of councils that provided the data had passed the PSPO through a single (often unelected) council officer.
PSPOs replace three previously existing orders issued by local authorities: gating orders, which allowed for the closure of alleys or other routes; Designated Public Place Orders (DPPOs), which allowed for the confiscation of alcohol; and Dog Control Orders, which could prohibit dogs from certain areas or require that dogs be on leads.PSPOs can be enforced by police or council officers. Violation is a criminal offence, and can be punished by an on-the-spot fine of £100, and if prosecuted in a Magistrates’ Court with a fine of up to £1000.
There is a formal right to appeal, but this is in the High Court and therefore out of reach of most organisations, let alone most individuals. There have only been three High Court appeals in the history of the power, all very expensive for the claimants. Liberty attempted to bring an appeal against a begging PSPO and was unable to gain legal aid.
Currently, police do not have the power to enact PSPOs, although several councils say that they have brought through PSPOs at police request. The government’s ASB Action Plan proposes giving PSPO powers to the police, as well as increasing on-the-spot penalties to £500. We strongly criticised these measures in our response to the ASB Action Plan.
2. How many PSPOs have been issued?
The Manifesto Club has researched PSPOs since 2014. In previous research, we found that 595 PSPOs had been issued between October 2014 and January 2019.
In January 2023 we sent an FOI request to 331 local authorities (some of these authorities had unified or were in the process of unification, but returned separate data for the period in question). We asked local authorities about the number and subject of their PSPOs, and any penalties issued. We received responses from 303 councils (28 did not reply, or said that the data was unavailable).
266 councils said that they had at least 1 PSPO. 37 councils currently had no PSPO, but 8 of these had previously had a PSPO that had expired. Therefore, only 29 out of 303 councils (9.6%) had never had a PSPO.
The FOI data shows that these 303 councils at present have 2,003 active PSPOs. However, this does not give a full picture of the number of restrictions involved, because different councils count orders slightly differently. For example, some councils count multiple dog zones or gating orders as separate orders, and others include the different areas under one order. If high multiples of dog or gating orders are excluded, the total number of live PSPOs is 913.
On the other hand, many PSPOs include several different restrictions; a PSPO covering a park or town centre would generally regulate a number of different activities. One of Hillingdon’s PSPOs, for example, includes 18 prohibitions and 6 requirements, while Richmond has a PSPO that includes 26 restrictions. It is very common for orders to include 5 or more conditions. As a result, the total number of legal restrictions associated with PSPOs is much larger than the figures above.
3. What has been banned with PSPOs?
The most common PSPO subjects relate to dogs or alcohol. 178 councils have a PSPO relating to alcohol, and 47 councils used PSPOs for gating orders. However, the majority of PSPOs relate to new and unprecedented forms of regulation. Indeed, there are very few activities that have not been subject to a PSPO.
Orders include bans or restrictions on activities including begging, ball games, charity collection, cycling, swearing, protesting outside abortion clinics, and others.
|NUMBER OF COUNCILS WITH PSPO REGULATING THIS AREA
|Rough sleeping/sleeping in vehicle
|Swearing or foul/abusive language
|Gatherings outside abortion clinics
If we look more closely at some of the specific PSPOs regulating new areas of life, we can see that these are taking the criminal law into an entirely new terrain. Rather than regulating activities that are causing significant nuisance or harm, PSPOs criminalise entirely normal behaviour, or at most behaviour that is slightly annoying.
- CONGREGATING IN GROUPS
Several councils banned people from gathering in groups, or limited gatherings according to age or time. Wirral Council banned ‘Being part of a congregation consisting of 4 or more persons between the hours of 10:30pm and 04:00am within the Restricted Area without the written authorisation of Wirral Council.’ Bassetlaw Council banned under-16s from gathering in a group of three or more, if one of the group was deemed to be causing ‘annoyance’. Burnley Council banned under-16s from being out unaccompanied between 11pm-5am, and under-14s between 9pm-5am, thereby effectively setting a bedtime for young people. Meanwhile, Thanet banned groups of 20 or more on beaches:
Large gatherings are not permitted on the Council’s beaches without prior permission. Large organised groups of 20 or more need to seek permission from Thanet District Council.
- REGULATING THE HOMELESS
There are a number of different orders targeting unavoidable activities associated with street homelessness, which amounts to a criminalisation of homelessness as such. In addition to multiple bans on begging, Sunderland and Middlesbrough councils criminalised rummaging in bins. Several councils banned sleeping in a public place, which would criminalise not only rough sleeping but also anyone having a nap in a park. Rother Council specified that ‘No person shall sleep…in any public space within…the entire Rother district’, while Welwyn Hatfield made in a crime to ‘Sleep in any public place’ that is ‘open to the air’.
- CARS AND DRIVING
PSPOs have initiated a shift from targeting dangerous or illegal driving, to a criminalisation of so-called ‘anti-social’ activities associated with cars, such as sounding the horn or idling. Nuneaton and Bedworth made it a crime to sell cars on the highway. Hillingdon banned drivers from idling, and also banned learner drivers from practicing parking in public carparks, which has left driving instructors saying that they are ‘unable to teach bay parking‘. The Hillingdon PSPO states:
No person or organisation shall, except with the written permission of Hillingdon Council, use parking spaces within a designated public spaces car park for the purpose of instructing learner drivers in any manoeuvres.
- CARD TRICKS/LUCKY CHARMS/STREET GAMBLING
Blackpool Council’s PSPO banned the sale of lucky charms and participating or engaging others in card tricks. The lucky charm section of the PSPO read:
All persons are prohibited from selling, offering to sell, exposing for sale any ‘lucky charm’, ‘lucky heather’ or any other article purporting to bring ‘good luck’, or asking for a donation for any ‘lucky charm’, ‘lucky heather’ or any other article purporting to bring ‘good luck’.
Lambeth and Westminster councils brought through a PSPO prohibiting street gambling (such as ‘cup and ball’) on Westminster Bridge.
- PICKING UP STONES/CLIMBING TREES
Several councils have banned normal activities associated with childhood, such as picking up stones or climbing trees, or climbing on benches or walls. Torfaen and Rugby councils banned the climbing of trees. Canterbury banned people from climbing on any structures owned or managed by the council, which presumably would include benches as well as low park walls. Richmond Council made it a crime to ‘remove or displace any stone, soil or turf…without the express prior consent of the council’. Rugby Council banned the flying of kites and also made it a crime to remove any ‘soil, sand, shingle or rock’. Therefore, in two areas of the country it would be a crime for a child to pick up a stone. Wiltshire Council banned the possession of catapults, and also the possession of stones, making it a crime if anyone
Possesses stones, ball bearings, pellets or similar item(s) capable of being launched as a projectile, by a catapult, slingshot or similar item or by manual force, that could cause harm or damage to a person, animal or property.
There were a number of other bans on a varied range of activities. Hillingdon Council banned the use of metal detectors and noisy remote control vehicles. Stockport Council brought through an order that banned the expression of views (through images, writing or shouting/amplification) ‘relating directly or indirectly to the disapproval of COVID-19 vaccinations’, in the vicinity of vaccination clinics. Three councils – Wirral, Liverpool, and Runnymede – banned the covering of the face (with exemptions for religious or medical reasons). Meanwhile, Haringey Council made it a crime ‘to solicit another for the purpose of obtaining casual labour’.
4. The nature of PSPOs
PSPOs tend to create broad, catch-all offences, that are far wider than the purported target of harmful or nuisance conduct.
For example, several councils have PSPOs targeting car cruising, which include bans on car racing, car donuts, and other highly dangerous activities. However, the PSPOs are drafted so broadly as to include a whole range of more innocent or anodyne conduct. For example, Carlisle Council’s PSPO includes a ban on ‘sounding the horn’ and on ‘congregating in a car park for the purposes of socialisation without permission’. This is a restriction that would catch two antique car enthusiasts meeting to chat and have a look at one another’s vehicles.
Many of the car cruising restrictions include the offence not just of taking part, but also of spectating, taking photographs, or selling food or drink to those present. Broxtowe Council’s car cruising PSPO includes a prohibition on publicising car cruising events on social media or by email.
When a PSPO is justified by a serious incident, it often bans a much broader range of activity. For example, Coventry Council’s PSPO was justified by the use of the area for the ‘procurement of young people for sex’ – a very serious and specific offence. Yet the text of the PSPO prohibited ‘the congregation of groups of 2 or more persons where the behaviour of some or all members of the group has or is likely to have a detrimental effect on the quality of life of those in the community’ – an incredibly broad and anodyne restriction.
Similarly, the PSPOs restricting activities outside abortion clinics do not only prohibit activities such as obstruction, threatening conduct, or filming/photography, which would obstruct the activities of these health facilities, or invade the privacy of clients. Instead, abortion clinic PSPOs generally also restrict:
engaging in any act of approval or disapproval or attempted act of approval or disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling…
The offence of ‘aggressive begging’ is defined in a similarly broad manner. East Devon Council defined ‘aggressive requests for money’ as ‘unsolicited or unauthorised requests for money whether expressly requested or impliedly requested’. Worthing Council stated that ‘all persons are prohibited from sitting or loitering in a public place for an unreasonable time’. Denbighshire’s PSPO banned anyone from giving the impression that they were intending to engage in begging:
‘A person is prohibited from remaining seated on the ground where it may give the impression that they are engaging in or intending to engage in begging.’
The crime of dog fouling is now commonly targeted by the wider offence of failing to show possession of a means to pick up dog mess. 12 councils now have a PSPO creating this new offence. It means that a dog walker could be punished, not for dog fouling, but for having used up all their bags as they neared home.
Caerphilly Council made it a crime to ‘be in possession of a potentially dangerous item’, which is defined as an item that an ‘authorised person’ believes ‘could be used to harass, alarm or distress any person’. Such a broad definition could include hockey sticks or other sports equipment, as well as pocket knives, DIY tools, or even music equipment.
Indeed, some councils have merely created a new catch-all offence of ‘anti-social behaviour’, which is either undefined or defined broadly as anything that annoys anybody else. For example, Tower Hamlets Council bans anyone ‘behaving or likely to behave in an anti-social manner whilst in groups of two or more’: ‘No person shall congregate or be in a group of two or more persons in such a manner causing or likely to cause nuisance, alarm or distress.’ Kingston Council bans ‘anti-social behaviour…where it causes, or is likely to cause, nuisance or annoyance to any other person’.
The vagueness of PSPOs means that council and police officers are granted wide discretionary powers to decide who may continue with an activity in a public place, or even who may remain in a public place. As a result, public spaces are no longer ‘public’ in any meaningful sense, but instead become officially controlled or licensed spaces.
These new forms of official discretion fall into a number of categories.
- a. The offence of doing an activity in a way that causes annoyance or nuisance to any other person (with the official as judge of what qualifies as nuisance or annoyance).
North East Lincolnshire banned ‘playing music or creating noise (as to cause a nuisance)’. Hartlepool Council has an order that states: ‘It will constitute an offence should any person use a skateboard, bicycle or scooter in a manner likely to cause annoyance, nuisance or damage in any area identified below unless authorised.’ Southend-on-Sea Council bans ‘using bikes in a way that has a negative effect for others’.
Colchester Council bans drunk people from annoying anyone else. It prohibits ‘Any person being as a result of intoxication by ingesting alcohol or drugs be in a condition as to be considered by…an authorised person behaving in a manner that causes or is likely to cause intimidation, harassment, alarm, distress, nuisance or annoyance to any person.’ Colchester also prohibits using a pedal cycle or skateboard in a manner ’causes or is likely to cause…annoyance’.
These texts amount to a justification for officials to be able to stop someone cycling, skateboarding or playing music, on the basis that some unnamed person has been annoyed or even that they would be likely to be annoyed.
- b. The offence of carrying out a particular activity without first gaining council permission.
A number of councils brought through PSPOs that required people to gain permission before carrying out activities in public spaces. Hackney Council bans any playing of amplified music without ‘the prior and express permission of the council’. Barnet Council bans any person lighting a firework ‘unless that person, or organisation, has a licence from Barnet Council permitting this to happen in that location’. Barnet also has an order that states that ‘Any person who promotes any music event (in any way, including flyposting and handing out leaflets), or encourages other person(s) to do so, or is involved in running any music event which is not licensed by Barnet Council, commits an offence.’
Redbridge Council bans all ‘events taking place without the approval of Redbridge Safety Advisory Group’. Blackpool Council states that publications can only be sold by registered newspaper sellers and those with ‘prior written authorisation from Blackpool Borough Council’.
The result is that councils become the curator and controller of activities in public spaces. The only permitted amplified sound is that made by the council, or with specific council permission. For example, Hammersmith and Fulham Council bans all use of microphones and speakers, except for authorised council events, and it calls this policy ‘responsible street entertaining’. Here, the ‘anti-social’ act is not one that causes nuisance or harm to others, but merely the activity that has not been authorised in advance. The free public sphere is deemed ‘anti-social’, while the officially regulated sphere is ‘responsible’.
- c. The offence of continuing with an activity when you have been asked to stop by a council official.
Several councils have given council officers the power to stop you doing any particular activity. Peterborough Council requires ‘cyclists to dismount if requested to do so by an authorised officer’, while Newport criminalises refusal to dismount a cycle/skateboard when requested.
North Somerset makes it an offence to fail to leave a library or leisure centre ‘when requested to do so by a member of staff’. Dorset Council gives council and police officers powers to evict people from shops.
Folkestone states that ‘No person shall continue to perform any type of street entertainment when directed by an authorised person to cease that activity’, while North Somerset requires that people ‘stop playing music or instruments when asked to do so’.
Here, the offence is not a particular activity that is causing a public nuisance, but rather the offence of ignoring any request from an official to cease your activity. This gives officials a power of discretion to stop any public activity whenever they please.
Indeed, 28 councils have used PSPOs in order to give dispersal powers to council officers. This means that council officers can ask you to leave a designated area and not return for a specified period. For example, East Devon Council has a PSPO that states:
‘An authorised officer is permitted to ask people within a group to disperse immediately or by such time as may be specified. A person shall be guilty of an offence if they do not disperse away from that group of people.’
Giving council officers such broad dispersal powers means that any person could be barred from a public space, if a council officer chooses to ask them to leave. This means that we have only a provisional right to be in a public space. In effect, ‘public’ space becomes councils’ private space.
5. How many penalties have been issued?
Our data shows that, aside from a fall during the period of covid restrictions, fixed penalty notices (FPNs) for PSPO violations have risen year-on-year since their introduction. Last year was the highest number of fines on record, with 3,000 more penalties issued than the previous highest level in 2019. 120 councils issued at least one FPN for a PSPO violation in 2021, and 159 issued at least one FPN in 2022.
|NUMBER OF PENALTIES FOR PSPO VIOLATIONS
|470 (Press Association)
|1,906 (Press Association)
|9,930 (Manifesto Club FOI)
|10,413 (Manifesto Club FOI)
|5,491 (Manifesto Club FOI)
|7,970 (Data below)
|13,443 (Data below)
The highest finer in 2022 was North Somerset, which issued 1904 penalties, mainly for litter, also for not having dog bags, and for dog exclusion offences. Brent Council issued 1365 FPNs, mainly for alcohol consumption, also for walking more than 4 dogs at a time, and for littering and fireworks. Hillingdon issued 1347 penalties, although the subject of these fines was not available.
It is worth noting that many of the highest finers employ a private company on commission to issue FPNs. Our previous research found that 48 councils employ a private company to punish PSPO offences, and that usually this company is paid per fine. When such broad-brush laws are punished by incentivised officials, the dangers of over-enforcement are greatly increased.
The most commonly issued FPNs were for alcohol and dog offences, with 39 councils issuing FPNs for alcohol, 54 issuing penalties for dogs on leads, and 30 for dog exclusion offences (such as walking a dog in a prohibited area). Some of the activities for which penalities have been issued are listed below.
|NUMBER OF COUNCILS ISSUING FPNS FOR ACTIVITY
|2 (Greenwich and Derby)
|Returning to area when banned
|Rough sleeping/sleeping in vehicle
|2 (Hambleton and Southend-on-Sea)
|No means to pick up dog mess
|Walking more than 4 dogs at a time
|Dogs on leads
Some specific examples of penalties issued include:
- In 2022, North Somerset issued 7 FPNs to people for swimming;
- In 2021 and 2022, Middlesbrough issued under 5 FPNs for ‘verbal abuse’, and 46 FPNs for begging;
- In 2022, Richmond Council issued 37 FPNs for ‘nuisance’ in parks, and 40 for ‘injury to animals and damage to land’ (an offence that includes displacing stones);
- In 2022 Kensington and Chelsea issued 373 FPNs for ‘nuisance vehicles’ and 5 for busking;
- In 2022 Bedford issued 417 penalties for cycling/skateboards/e-scooters;
- In 2022 an 82-year old was fined for cycling his bike in Grimsby town centre;
- In 2022 Tonbridge and Malling issued 24 penalties for unauthorised swimming;
- Canterbury Council issued FPNs for foul language (3 in 2021 and 1 in 2022);
- Dorset Council issued FPNs for wild camping and feeding the gulls;
- In 2021 Kingston Council issued 2 FPNs for noise from a loudspeaker;
- Redbridge Council issued 163 penalties under its prostitution PSPO in 2022, which included one man fined for catcalling;
- Bournemouth, Christchurch and Poole Council issued an FPN to a man for silently praying outside an abortion clinic.
6. What is the driver for PSPOs?
PSPOs are in many cases so broad that they are not capable of being systematically enforced, and perhaps that is not even their intention. In practice, the odd person will get fined for swearing, or for annoyance, but not everyone who swears or annoys someone within an area will be punished.
Rather than a serious attempt at criminal law, it is more likely that PSPOs are often being brought through as a gesture to show that a council is improving an area. Rather than open a new playpark, or do something constructive to make an area ‘nicer’, the local authority instead bans swearing or some other ‘unpleasant’ activity. Banning things becomes the quintessential public service.
At the same time, PSPOs serve to give police and council officers a free hand to move on anyone they please. The law is drafted so broadly that officers always have the capacity to act against somebody, if they see fit to do so. The broadening of the range for official discretion is seen as a positive thing, which supposedly increases the efficiency of enforcement and allows officials to improve communities and public spaces. This view is based on a blind faith in officialdom, to always act correctly and in the public interest. Such blind faith is not only misplaced, it is also not fitting for any country that operates according to the rule of law and the accountability of public power.
The wider effect of PSPOs is much greater than the numbers of people issued with on-the-spot fines. Thousands of people have been fined, but it is likely that many thousands more will have been moved on, or stopped from carrying out their activity – an intrusion upon public freedoms that unfortunately is not very easy to document. Exeter Council said that between 4 October 2021 and October 2022, its officers issued 278 PSPO dispersal notices. However, most councils did not provide the numbers of formal dispersal orders issued, let alone informal ‘moving on’ requests.
Public Spaces Protection Orders represent a deleterious infringement upon the liberties of citizens in public spaces in England and Wales. Where used widely, it is arguable that these orders have served to undermine the very definition of public space, as a space for the free use and enjoyment of the public. Instead, our town centres and parks become officials’ private space, managed according to their preferences and priorities.
The redrafted Statutory Guidance regulating PSPOs contains certain restrictions, for example stating that PSPOs should not be used against vulnerable groups such as the homeless. However, this guidance has never been respected, and the homeless community remains one of the prime targets for the use of PSPOs and FPNs. The current regulatory regime for PSPOs is not working: there are no meaningful procedural requirements for scrutinising orders, and the High Court appeal system is entirely out of reach and non-functional.
Our view is that PSPOs should be scrapped. The existence of this catch-all power is largely an excuse for lazy and excessive law-making, and has led to some of the worst laws ever to have entered the statute book. It may be that PSPOs could be replaced by specific powers, each to regulate a particular activity, and each subject to tighter controls. Certainly, any power of local law-making should require higher conditions, and more stringent processes, than is the case with the PSPO.
With this in mind, we most strongly oppose current proposals to extend PSPO powers to the police. This would mean that the police have the power to write laws as well as to enforce them, which is not normal practice in democracies with the separation of powers. If police had the power to create PSPOs, it is likely that they would create new offences that would make it easier for them to police an area. Public spaces should not be organised around the convenience of the police. We also most strongly oppose plans to increase PSPO penalties to £500, a punishment that would be out of all proportion given the anodyne nature of most PSPO offences.
It is our view that the government should go back to the drawing board on the question of local law-making powers. Whatever power exists to allow for local law-making should be invoked on a higher benchmark, and it should be subject to scrutiny, proper public consultation and voting by elected council representatives. Finally, this power should have a cheap and easily available system of appeal, perhaps in a local tribunal rather than a court, or a lower level court rather than in the hugely expensive High Court. We would welcome the chance to consult with the Home Office as to how such a power might work.
- Funding was received from the Joseph Rowntree Reform Trust. The Joseph Rowntree Reform Trust has supported this work in recognition of the importance of the issue. The facts presented and the views expressed in this report are, however, those of the authors and not necessarily those of the Trust. www.jrrt.org.uk