Anti-social behaviour powers such as Community Protection Notices (CPNs) and Public Spaces Protection Orders (PSPOs) allow officers to impose legal restrictions if they think someone’s behaviour is having a ‘detrimental effect’ on the ‘quality of life’.
These powers are incredibly broad, but there are a number of important civil liberties protections in the Statutory Guidance. Unfortunately, these protections are generally ignored.
We are calling on the Home Office and MPs to ensure that Statutory Guidance is respected, including through amendments to the current Crime and Policing Bill.
Here is an outline of protections in the Statutory Guidance.
1. There should be no restriction on everyday sociability such as standing in groups or playing games
It is important that councils do not inadvertently restrict everyday sociability in public spaces. The Public Spaces Protection Order should target specifically the problem behaviour that is having a detrimental effect on the community’s quality of life, rather than everyday sociability, such as standing in groups which is not in itself a problem behaviour.
Where young people are concerned, councils should think carefully about restricting activities that they are most likely to engage in. Restrictions that are too broad or general in nature may force the young people into out-of-the-way spaces and put them at risk. In such circumstances, councils should consider whether there are alternative spaces that they can use.
People living in temporary accommodation may not be able to stay in their accommodation during the day and so may find themselves spending extended times in public spaces or seeking shelter in bad weather. It is important that public spaces are available for the use and enjoyment of a broad spectrum of the public, and that people of all ages are free to gather, talk and play games.
Current Statutory Guidance, p71
- IGNORED: In 2023, there were 22 bans on loitering, 4 bans on ball games and 4 bans on standing in groups or congregating. These laws are being enforced through fixed penalty notices: in 2023, 3 councils issued FPNs for loitering and 3 councils issued FPNs for standing in a group.
2. PSPOs should only target activities causing nuisance or harm
The council should give due regard to issues of proportionality: is the restriction proposed proportionate to the specific harm or nuisance that is being caused? Councils should ensure that the restrictions being introduced are reasonable and will prevent or reduce the detrimental effect continuing, occurring or recurring. In addition, councils should ensure that the Order is appropriately worded so that it targets the specific behaviour or activity that is causing nuisance or harm and thereby having a detrimental impact on others’ quality of life.
Current Statutory Guidance, p68
Further clarification by government ministers in the Lords stated:
We have made it clear in the statutory guidance for front-line professionals that they should not use the new powers to stop reasonable activities such as busking or other forms of street entertainment that are not causing anti-social behaviour.
Baroness Williams of Trafford, 12 February 2014
- IGNORED: The organisation Keep Streets Live has identified 25 councils that restrict busking through PSPOs. In total, there are hundreds of vague or trivial PSPOs that do not target behaviour causing nuisance or harm. These include: Hillingdon banned learner drivers from car parks; Blackpool banned the sale of lucky charms; Richmond banned picking up stones; Rugby banned kite flying; several councils banned face coverings; Caerphilly banned anyone from ‘being in possession of a potentially dangerous item’; several PSPOs banned anyone from causing ‘annoyance’. In addition, at least 28 councils have used PSPOs to give their officers powers to bar people from town centres: this means that someone could be fined or prosecuted merely for being in a public space.
3. CPNs should target activities causing nuisance or harm, rather than behaviour that others merely find annoying
Agencies should have sufficient evidence to satisfy themselves that the behaviour in question is genuinely having a detrimental effect on others’ quality of life, in terms of the nuisance or harm that is being caused to others, rather than being a behaviour that others may just find annoying.
Current Statutory Guidance, p53
- IGNORED: Each week we receive cases at the Manifesto Club of Community Protection Notices that target non-harmful behaviour. These include: two people received orders banning them from closing their front door too loudly; one man was banned from storing his wheelbarrow behind his shed; an 82-year-old was banned from wearing a bikini in her garden; several people received CPNs banning them from entering certain areas.
4. There should be a right to appeal a Community Protection Warning
Provision should be in place for a recipient to query the basis of a written warning, despite there being no route in the ‘2014 Act’ to do so. The issuing authority can rescind a written warning at their discretion, therefore contact details of a senior officer with oversight of the process should be made available on the written warning itself and the authority’s website. Local systems of review are encouraged.
Current Statutory Guidance, p60
- IGNORED: We have never encountered anyone who was given a CPW that included information on the right to query including contact details of a senior officer. We know several people who requested a right to appeal their CPW and were told that no such right exists.
5. Dispersal powers should be used proportionately and their use should be documented.
Restricting people’s freedom of movement is a serious matter and it is important that the dispersal power is used proportionately and reasonably, respecting individuals’ rights of lawful freedom of expression and freedom of assembly. Transparency and scrutiny: Police forces may wish to put in place appropriate arrangements for maintaining records of authorisations and use of the dispersal power and the circumstances in which it is used, and to publish data on its use. Police and Crime Commissioners have an important role in holding forces to account to ensure that officers are using the power proportionately.
Current Statutory Guidance, p47
- IGNORED: Dispersal orders are often used preemptively rather than in response to genuine problems. One officer in a Home Office report said that they used dispersal notices when people are ‘gathering around…to try and get rid of some people before anything happens’. Only 18 (out of 43) police forces were able to state the number of dispersal notices issued, and none of these forces had published data on their use of the powers. We have never heard of a PCC holding to account a police force’s use of dispersal powers.
6. PSPOs should not criminalise homelessness (REMOVED)
Public Spaces Protection Orders should not be used to target people based solely on the fact that someone is homeless or rough sleeping, as this in itself is unlikely to mean that such behaviour is having an unreasonably detrimental effect on the community’s quality of life which justifies the restrictions imposed. Councils may receive complaints about homeless people, but they should consider whether the use of a Public Spaces Protection Order is the appropriate response. Councils should therefore consider carefully the nature of any potential Public Spaces Protection Order that may impact on homeless people and rough sleepers. It is recommended that any Order defines precisely the specific activity or behaviour that is having the detrimental impact on the community. Councils should also consider measures that tackle the root causes of the behaviour, such as the provision of public toilets.
Statutory Guidance 2017, p51
- IGNORED AND THEN REMOVED: First this provision was ignored: by 2023, there were 53 councils banning begging, 7 banning rough sleeping/sleeping in a vehicle, and two councils banning rummaging in bins. Then this provision was removed in March 2023 as part of the Home Office’s ‘ASB Action Plan’.
Conclusion: Protections must be respected
The Home Office needs to ensure that the Statutory Guidance is respected. We call for –
- The reinclusion of protections for homeless people in the Statutory Guidance;
- More central government monitoring of the use of powers, and directions to local authorities and police forces to ensure the guidance is respected;
- More vigorous procedures before orders such as CPNs and PSPOs are issued, which including demonstrating that the order is compliant with guidance as well as primary legislation;
- The non-compliance of a PSPO with the Statutory Guidance should be available as a grounds of appeal of a PSPO FPN in court.