In creating PSPOs, the coalition government provoked a significant shift in the regulation of public spaces. Long-established byelaw procedures were sidelined in favour of a power that allows for the criminalisation of a very broad range of conduct with no central government oversight. Although purportedly reflecting a localism agenda, it is extremely difficult for local residents to prevent or challenge an unwanted PSPO. The Legal Aid Agency’s (LAA’s) current position on funding for such challenges is a further, unwelcome obstacle.

These statutory provisions have now been in force for four years. Hundreds of PSPOs have been created. Some have been relatively mundane: for example, many PSPOs simply transfer and incorporate alcohol restrictions, which were already in force under the now-defunct designated public place order regime. Many have tended towards the absurd: for example, a PSPO prohibiting the use of ‘foul and abusive language’ in Salford Quays was ridiculed for amounting to a swearing ban on the route to and from the Old Trafford stadium. Hillingdon Borough Council has also attracted attention for introducing eight separate PSPOs, which all prohibited gathering in groups of two or more people. North East Derbyshire District Council made it an offence to be in possession of golf equipment within the area of its PSPO. There has also been controversy where private companies have been financially incentivised to issue PSPO fines, under contractual arrangements with local authorities. It was recently reported that a private enforcement company has collected over £80,000 from cyclists fined for breaching a PSPO in Peterborough.

Here at Liberty, we have been most concerned with PSPOs that target vulnerable and marginalised communities, particularly the homeless. Initially, such measures were often plainly expressed, with PSPOs explicitly criminalising rough sleeping in certain areas. We managed to persuade some local authorities to abandon such provisions before they were enforced, but a significant number proceeded, often in the face of substantial local objections. Concerned by this, and alongside a number of other organisations, we lobbied the Home Office for changes to its statutory guidance on the ASBCPA. Since December 2017, the statutory guidance has stated that: ‘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’ (Anti-social Behaviour, Crime and Policing Act 2014: anti-social behaviour powers. Statutory guidance for frontline professionals, Home Office, page 51).

For those who wish to challenge a local authority’s decision to introduce a PSPO, ASBCPA s66 created a specific statutory appeal route, which must be followed by ‘interested persons’ (those who live in, work in or regularly visit the relevant area). The deadline for issuing a challenge is six weeks from the date the PSPO is made, and the relevant venue is the High Court. There is no permission stage. The grounds for such a challenge can be: (a) that the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order; or (b) that a requirement under the statute was not complied with in relation to the order. The Act explicitly prohibits interested persons from challenging a PSPO by any route other than the s66 procedure, but the standard judicial review jurisdiction is not ousted for those who do not have interested person status.

Despite the number of PSPOs that have been created, the breadth of the powers and the controversy that they have attracted, there have been only two reported cases challenging PSPOs, and both were decided in the past few months. Both cases were brought by interested persons under the statutory appeal route, rather than by way of judicial review.

The first was Summers v Richmond upon Thames LBC [2018] EWHC 782 (Admin), a case supported by the Kennel Club. Ms Summers challenged certain aspects of a PSPO in place for Richmond: first, a limit on the maximum number of dogs that could be walked by one person and, second, a prohibition on dogs not being under proper control, causing annoyance or causing damage. She also argued that the exemptions for assistance dogs were too restrictive and in breach of the Equality Act 2010.

As the first case to decide on the legality of a PSPO, the judge was required to interpret s66 and establish the level of review to be applied. The parties agreed that the level of review was akin to judicial review, rather than a merits-based assessment, and that Wednesbury principles applied. A significant issue in dispute between the parties was whether, when considering whether the statutory criteria for making a PSPO are satisfied, each specific activity prohibited (or required) by the PSPO must have caused, or be likely to cause, a detrimental effect on the quality of life of those in the vicinity. The judge held that the local authority was only required to have been satisfied that ‘dog-walking’ in general was having (or was likely to have) such an effect before using a PSPO to outlaw specific activities related to dog-walking. As such, it did not matter that there was little evidence to demonstrate that people walking too many dogs at one time was problematic – it was sufficient that the local authority had evidence to show that dog-walking in general was having a detrimental effect. If correct, this interpretation waters down what is already a very low evidence threshold for the creation of PSPOs.

Ultimately, Ms Summers was partly successful in her challenge. The judge ruled that the annoyance provision added nothing to the provision on keeping a dog under control, and that there was insufficient evidence to demonstrate a need for the prohibition on causing damage. However, the bulk of the PSPO remained intact.

The second PSPO case has drawn more attention: Dulgheriu and Orthova v Ealing LBC [2018] EWHC 1667 (Admin) (see November 2017 Legal Action 12 and May 2018 Legal Action 7). This was a challenge to Ealing’s abortion protest buffer-zone PSPO, which has created an area around the local abortion clinic within which any form of protest activity relating to abortion services is prohibited. The claimants were anti-abortion activists who wanted to protest outside the clinic. One of the claimants stated that she had herself been offered assistance by a protest group outside an abortion clinic and, as a result, had continued with the pregnancy. The judge recognised that the case engaged the article 8 rights of patients attending the clinic on the one hand, and the article 9, 10 and 11 rights of the protesters on the other, and accordingly conducted a proportionality analysis. His conclusion was that there was sufficient evidence available on the extent to which the protesters’ activities were interfering with the privacy of the clinic users to justify imposing the PSPO, both in European Convention on Human Rights terms and according to the criteria set out in the ASBCPA. This case is subject to appeal, and a number of other local authorities are considering introducing similar PSPOs pending an announcement from the Home Office on a national regime of abortion clinic protest buffer-zones.

Furthermore, anyone seeking to challenge a PSPO faces a significant risk of a hefty adverse costs order if they lose. The LAA, in an application by a Liberty client, has taken the position that statutory appeals under ASBCPA s66 are not within scope for legal aid purposes. This has absurd consequences: when these provisions were debated in parliament, it was clear that the government intended s66 to represent an enhanced mechanism by which local residents could scrutinise and challenge the creation of PSPOs.1See, for example, Parliamentary Debates, House of Commons Official Report, Public Bill Committee: Anti-social Behaviour, Crime and Policing Bill, ninth sitting, Tuesday 2 July 2013, cols 279–281. It was to be speedier than judicial review with no permission stage, and as such would only be available to those individuals with a clear connection to the local area. Local people would be enabled to hold local authorities to account for local decisions. If it is right that legal aid is not available for s66 challenges, then the opposite is in fact the case: anyone with a connection to the local area, and thus meeting the definition of an interested person, is obliged to use the s66 procedure for which they cannot get legal aid funding. Anyone without a local connection can avail themselves of the normal judicial review process, which will be in scope for legal aid purposes.

Liberty is looking to reverse the LAA’s position, with the hope that this will open the door to more PSPO challenges in the future. We will also continue to try to persuade local authorities to abandon the worst of their PSPO proposals, while calling on the government to get rid of these over-broad and under-scrutinised powers.