Bluelight Consultancy | ‘Tough love’ PSPO – An effective enforcement solution?

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‘Tough love’ PSPO – An effective enforcement solution?

Brendan O’Brien

A ‘Tough love’ PSPO (Public Space Protection Order) is what is needed to tackle Exeter’s homeless and rough sleeping problem claimed the city’s MP Ben Bradshaw in the press recently. He described a, ‘perfect storm of homelessness’ after a visit to the streets that are now home to dozens of rough sleepers with all their associated problems. Ben believes a PSPO will help in solving some of these problems.

Exeter Council have just launched a consultation on a proposed PSPO, which would enable them to introduce legislation to criminalise certain types of behaviour.

PSPOs were created by the Anti Social Behaviour, Crime and Policing Act 2014, as a means of dealing with problems that are detrimental to a community’s quality of life within a defined area. The aim is to impose restrictions, which apply to everyone to prevent people from committing anti social acts.

What PSPOs enable councils to do is to design their own legislation to tackle issues that are very local to them, similar to their ability to create offences through the byelaw powers that have existed for decades.

Exeter’s PSPO proposals aren’t too different from those you’ll find across most of the country, which tend to be either a dumbed down version of current legislation, an attempt to make unlawful behaviours Parliament deems lawful, or a mix of both. Exeter’s PSPO proposals fall into the latter category.

From the outset my intention is to be helpful so that people who shouldn’t be criminalised do not end up so, and for officers out there to have faith that the legislation they are using is effective and will stand up in court.

Think of this as a critique as opposed to a criticism.

Exeter’s first PSPO proposal appears to have been designed to prevent the anti social misuse of alcohol and other intoxicating substances:

Person(s) within this area, whilst situated in the street or other public space where the public have access without payment, shall: 

1) Surrender any intoxicating substance in their possession to an authorised person on request, if:

  1. a) they are found to be ingesting, inhaling, injecting, smoking or otherwise using intoxicating substances, or,
  2. b)  they are in possession of such intoxicating substances with the intent of using such intoxicating substances within this area, or,
  3. c) the authorised person has reasonable grounds to believe that such person is using or intends to use the intoxicating substance within the said area.

An authorised person shall be a Police Constable, Police Community Support Officer or Exeter City Council Officer, who must be able to present their authority upon request

Although this proposal appears to be detailed and on reading it, might make sense, it ignores Section 63 of the Anti Social Behaviour, Crime and Policing Act. This section clearly provides the wording for any prohibition under a PSPO to require someone to stop consuming what an officer reasonably believes is alcohol. It then provides them with the power to require the person to surrender anything which the officer reasonably believes to be alcohol. Exeter’s proposals are a big departure from the Act’s wording.

This is where the first proposal will run into problems. In my opinion the Section 63 wording is good legislation as it makes it really clear what an officer can or can’t do. In addition it provides a balanced approach so that people can go about their business and if they want to, consume or have in their possession alcohol. Contrary to press and council PR, in many areas the possession of alcohol or drinking alcohol in a public space has never been unlawful and still isn’t.

What Exeter are attempting to do is to extend this legislation to the world of alcohol and other intoxicating substances such as ‘legal highs.’ In doing so they have:

  • Ignored Section 63 of the Anti Social Behaviour, Crime and Policing Act.
  • Used the phrase ‘request’ as opposed to ‘require’ (I can say ‘no’ to a request but not to a requirement?).
  • Not thought out how to prove the offence? Whereas proving a liquid is alcohol is relatively easy (testing strips and the container it is in) proving something is an ‘intoxicating substance’ will prove harder and will require analysis to do so (who will pay for this?).
  • Not thought out how to prove the offence when the ‘intoxicating substance’ has been used, as in the officer saw the person concerned ‘ingest’ it. This is the reason for the Sect 63 wording – there’s no way to prove someone has ‘ingested’ alcohol without blood or urine tests, and even then they could say they ‘ingested’ it earlier in a private place. Prove otherwise?
  • Not thought out the wording which would enable an officer to reasonably suspect or believe a person is in possession of an ‘intoxicating substance.’ In the absence of such wording to provide a power to ‘request’ the surrender of an ‘intoxicating substance’ the officer would have to know that the item concerned is an ‘intoxicating substance’ and that the person is in possession of it.
  • Forgotten to include a power to seize.
  • Failed to recognise the problem with proving a substance is an intoxicating ‘legal high’ – no sooner is a substance defined as such, the chemists who create it introduce a new variant. As there is no list of such substances available this part of the PSPO will be also difficult to prove?
  • Ignored the Psychoactive Substances Act 2016, which is not far from Royal Assent. This legislation will not make the possession or use of a psychoactive substance an offence, only its production and supply.
  • Failed to provide a useful definition of ‘intoxicating substance.’ The Psychoactive Substances Act 2016 defines a ‘psychoactive substance,’ while this PSPO does not define an ‘intoxicating substance’ other than to say they are, ‘substances with the capacity to stimulate or depress the central nervous system.’ As it would appear that the officer dealing has to know this before they can ‘request’ a substances surrender they would also have to be an expert witness is recognising what these substances are?

The second proposal that requires a rethink is:

Clear away and remove from this area without delay (to the satisfaction of an authorised person) any unauthorised bivouac, bedding or encampment formed in a street together with any associated paraphernalia, when requested to do so by an authorised person and if that person fails to clear away and remove as directed an authorised person may then or on a future date or time confiscate and dispose of any unauthorised bivouac, bedding or encampment found within this area with or without the permission of its owner.

For these purposes, bivouac, bedding and encampment mean any portable shelter used for camping or outdoor sleeping, and include materials used for shelter against the elements, weather or ground.

For this purpose ‘unauthorised’ means without the express written consent of any owner (or any person having control over or an interest in the land in question).

The purpose of this proposal appears to enable the removal of structures used by those who are homeless and rough sleeping by council officials. I’m not going to comment on the social justice issues here only on the legislation as to do so would require another blog.

Once again I have some issues with vague or difficult to prove phrases:

There’s no definition of, ‘clear away and remove.’ To what extent? To where? How would someone be expected to carry it? What if there are no bins available? What defences could someone reasonably offer as to why they didn’t comply with a ‘request.’

To what extent is this Human Rights compliant when someone is forced out of their shelter into inclement weather?

There’s no definition of ‘without delay’ and ‘to the satisfaction.’ Is a delay 5, 10, or 15 minutes? Or should it be ‘reasonable in the circumstances?’ And how can you define ‘satisfaction?’ I know of no other legislation that requires an officer to be ‘satisfied’ with something – with good reason as vague phrases such as this have no place in the legislation of this land?

The phrase ‘requested’ appears again. I can refuse a request but I cannot refuse a requirement (see Drink Drive legislation, at no time does the word request appear, at every stage the wording used is for the officer to make a requirement)

The next proposal that is unsafe is:

Not make unsolicited and or unauthorised request(s) for money (whether expressly requested or impliedly requested by conduct) in a public place from persons not known to the perpetrator.

For this purpose ‘unauthorised’ means without the express written consent of any owner (or person having control over or an interest in the land in question).

I say unsafe as this proposal is attempting to duplicate legislation that already exists in the form of the Vagrancy Act 1824which, (it was made a recordable offence in 2003) is already a criminal offence? Why is Exeter Council trying to duplicate and amend current legislation? Surely this is not in the spirit or the purpose behind legislation of this land?

Maybe the Council are amending this legislation so that council officials can also deal with it? I suppose the point here is that if legislators intended that those other than police officers should deal with this offence they would have legislated for this by now?

The next proposal is another attempt to re-write current legislation:

Not behave either individually or in a group of two or more people in a manner that has resulted or is likely to result in any member of the public being intimidated, harassed, alarmed or distressed by that behaviour.

This proposal appears to repeat aspects of Section 5 of the Public Order Act 1986 in a dumbed down version, which raises the following legal problems:

  • Section 5 of the POA defines what types of behaviour would lead to ‘a person likely to be caused harassment, alarm or distress thereby.’ This proposal doesn’t.
  • Section 5 of the POA uses the phrase ‘caused’ as opposed to ‘resulted.’ Legislators utilise certain phrases for a reason as a good defence would explore the meaning of ‘result’ or ‘likely to result’ as opposed to cause. Different words have different meanings.
  • Section 5 of the POA does not use the word ‘intimidated,’ so why have Exeter introduced it? There have been several stated cases and amendments to the current POA around the meaning of the words used to describe behaviour. As a breach of a PSPO is a criminal offence, each point to prove must be proven beyond all reasonable doubt. How would you prove someone was or was likely to be intimidated?
  • Section 5 of the POA does not have a collective element to it as proving beyond reasonable doubt the causal links would be very difficult.

And importantly, why are the council trying to re-write legislation in the first place? If it’s not working for them in its current form with PCSOs and Police Officers, what makes them think a dumbed down version will work for PCSOs, Police Officers and council officers?

Lastly, another attempt to circumnavigate current legislation:

Persons within this area who breach Prohibition 5 (the above one) while in a group shall when ordered to do so by an authorised officer disperse either immediately or by such time as may be specified and in such a manner as may be specified

Sections 34-42 of the Anti-Social Behaviour, Crime and Policing Act 2014 already provide such powers to PCSOs and Police Officers in uniform. However, the Act is very specific about when and how these powers can be used and how they have to be authorised by an inspector. If those that legislate on behalf of us had intended for this legislation to be dumbed down in such a way I am sure they would have done so. However, they didn’t, they put together what I believe is good legislation based on the stated cases and the learning that came from years of similar powers such as Direction to Leave being available to the Police. Why aren’t the police already using this legislation as part of their problem solving approach?

The Appeals Court and civil litigation teams in forces are littered with the remnants of failed prosecutions that have often resulted in big payouts to those at the receiving end of actions by officers who failed to comply with the related legislation. In my opinion, poorly designed legislation such as Exeter’s PSPO will have similar results.

The complexity behind legislation is why it has to go through The House of Lords and Commons with several stages for consultation and consideration before Royal Assent. When it comes to byelaws a breach isn’t a criminal offence. However, what Exeter and other Councils are doing by introducing poorly worded criminal legislation as part of a PSPO is to risk people being criminalised when they should not be.

Re-writing and trying to dumb down current legislation is not the way to make enforcement work. It will harm those at the receiving end who will end up with criminal records when they should not and confuse council officers who will fail to understand the PSPO conditions. For police officers or PCSOs, they will become confused as to what legislation they should use – that already available to them that has been tried and tested in the highest courts of our land, or the dumbed down version introduced by their local council?

There are other tools out there to deal with the kind of problems Exeter are dealing with. I agree, it is a ‘perfect storm’ full of complex and ‘wicked’ problems, however, more signs and poorly drafted legislation ordering people what not to do is not the answer.

I’m aware that Exeter are already doing some great work to support those suffering from homelessness and rough sleeping problems. Now isn’t the time to sledgehammer their efforts through enforcement.

 

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