Prof. Sarah Johnsen
The development of Public Spaces Protection Orders (PSPOs) in a number of towns and cities across England and Wales has provoked controversy on a number of grounds, but most especially with respect to the increased powers they provide to fine or prosecute people for sleeping rough.
PSPOs were introduced by the Anti-Social Behaviour, Crime and Policing Act last year, since when local authorities have been able to apply to prohibit activities that are having, or are likely to have, a persistent and unreasonable detrimental effect on the quality of life of those in the locality. The past few months have seen PSPO proposals, and associated media storms, proliferate.
PSPOs may ban a whole gamut of things considered to be a ‘problem’ in a defined geographical area. Prohibited activities featuring in some of the proposed or recently implemented Orders include, to name but a few examples: lying down or sleeping, depositing materials used or intended for use as bedding, begging, consuming intoxicating substances, inconsiderate busking, bird feeding, and improper use of public toilets (wherein infringements include substance misuse, vandalism or sleeping).
The perpetrators of such behaviour within an area protected by a PSPO may be given a fixed penalty notice of up to £100 or face prosecution and a fine of up to £1,000.
Local authorities have attempted to justify the inclusion of rough sleeping in their PSPOs on grounds that it is a common source of public complaint because of the environmental health implications (e.g. deposits of drug paraphernalia, human excrement etc.), associated criminal damage and/or anti-social behaviour. Authorities pursuing PSPOs also typically emphasise that some of the people targeted continue to sleep rough despite offers of help from support services.
The proposals have evoked strong opposition from local campaigning groups and national civil rights campaigning body Liberty, the latter of whom has branded elements of some proposals ‘utterly shameful’. Tens of thousands of members of the public have signedpetitions calling for the proposals to be scrapped. A number of celebrities, amongst them singer Ellie Goulding, have also publically opposed the inclusion of rough sleeping in PSPO prohibitions. Taken together, the social media reach of such parties has meant that these apparently ‘local’ initiatives have ignited a fierce national debate.
In London, these debates follow public outrage about the installation of ‘anti-homeless spikes’ (inch-high steel studs) intended to stop people from bedding down in a number of locations, including entrances to a housing development and city centre supermarket. The spikes were described as ‘inhumane’ by a number of homelessness charities and ‘deplorable’ by then Housing Minister Kris Hopkins. London Mayor Boris Johnson called for their removal on grounds that they were ‘ugly, self-defeating and stupid’, but has himself been the target of criticism for failing to arrest a rise in rough sleeper numbers in the capital despite investment in the No Second Night Outinitiative.
Homelessness charities are divided on the issue of PSPOs. Many oppose the proposals on grounds that they unjustifiably persecute and criminalise some of the poorest and most vulnerable members of our society. Others are more sympathetic toward the measures, arguing that PSPOs provide additional tools to help break patterns of behaviour that not only have a deleterious impact on the wider community, but are also highly damaging to the individuals involved.
A number of questions must be (and are being) asked of the initiatives, relating to the following issues:
- Proportionality – how proportionate are the penalties given the nature of the ‘offence’ of bedding down and/or sleeping in public space?
- Legality – are the initiatives in fact legal on human rights and Common Law grounds, especially given that other powers exist to deal with anti-social behaviour?
- Discrimination – although ostensibly equally applicable to everyone, is there not a risk that individuals whose appearance does not ‘fit’ with the desired aesthetic will be disproportionately targeted?
- Effectiveness – will PSPOs actually deter people from sleeping rough, or will those affected continue to do so elsewhere?
- Ethicality – in what circumstances might such initiatives be justified (or not) when the implications for homeless people and the wider community are taken into account?
On the latter issues, existing research indicates that any intervention affecting rough sleepers which contains an element of enforcement is ‘high risk’. In some cases they do prompt individuals to discontinue harmful behaviours and engage with support; in others they displace the problem and/or make those affected even more resistant to change their behaviour. There are things that can be done to increase the likelihood of a positive response (e.g. by carefully tailoring individual support plans), but there is no way of accurately predicting how an individual will react.
This fact, combined with most rough sleepers’ extreme vulnerability (often associated with histories of trauma) and the severity of PSPO penalties (including substantial fines and potential criminalisation of people who may never have had prior contact with the criminal justice system), raises thorny ethical questions.
Significantly, it is not clear whether, and if so to what extent, the provision of support features in most local PSPO implementation plans. The relevant legislation and government guidance is somewhat opaque as regards any requirements in this area, and existing consultation documents generally only make vague (if any) reference to ensuring that support ‘is available’ to those affected.
It is widely accepted that the provision of readily accessible and high quality support is critical in any local response to rough sleeping. Whatever happens with the proposed PSPOs, it is imperative that vulnerable individuals are not criminalised for failing to engage with support that is either non-existent or of poor quality.
It is not at all clear how this issue will play out going forward. Hackney Council has scrapped its proposed PSPO entirely given the scale of public opposition. Others have been approved even while retaining the prohibition of rough sleeping (e.g. Newport, Folkestone), while yet more are still under consultation (e.g. Liverpool). In Oxford, rough sleeping has been dropped from the list of activities to be banned, but the PSPO prohibits the consumption of alcohol and aggressive begging (the definition of which includes begging beside a cash machine).
Feelings both for and against the deployment of enforcement with street homeless people tend to be very strong. It is true that concentrations of rough sleepers can and often do have a negative impact on affected communities. It is also true that rough sleeping – especially when of a persistent nature – has a severely deleterious impact on the wellbeing and identity of those involved.
The jury is however still out regarding the most effective balance of ‘carrot’ and ‘stick’ in addressing street homelessness – especially in a context where it is acknowledged that the process of recovery from addiction and/or trauma is highly individualised, often protracted, and has a significant influence on individuals’ receptivity to support.
Until such time as we have a much better understanding of such effects on homeless people, great care needs to be exercised in the consideration of any initiative containing punitive components, and most especially where the remit may be as broad and penalties as severe as is the case with PSPOs.
This subject is a focus of the Welfare Conditionality Study, currently being conducted by six UK universities, which aims to shed light on the influence of the nature and timing of support and enforcement on outcomes for those affected – be those impacts positive and/or negative, intended and/or unintended.