Manchester City Council have proposed granting themselves new powers to address the following problems in Manchester City Centre:
- Street drinking
- “Aggressive” Begging
- Obstructing building entrances/exits, stairwells of premises or highways after being asked to move
- Occupying a tent or other temporary structure in a manner which is likely to create a health and safety risk for other people
- Urinating or defecating in a public space (except a toilet)
- Failing to pick up and properly dispose of litter when asked to do so
- Discarding hypodermic needles or syringes in a public space (except an appropriate sharps container)
- Failing to dispose of commercial waste responsibly
Under the new proposed powers any “authorised person” including a council officer can issue a person suspected of breaching the PSPO with a fixed penalty notice and fine of £100. If not paid and prosecuted in court the fine can rise to £1000. There is no Legal Aid available to defend such prosecution.
Explaining why Manchester City Council are proposing such powers Councillor Nigel Murphy, Deputy Leader of Manchester City Council has said:
“It’s essential that everyone is able to enjoy public spaces in our city centre which are safe and welcoming. Nobody should have to put with behaviour which has a negative impact on them or their environment.
We have heeded the concerns of people living and working in the city centre, and visitors, about various anti-social behaviours and drawn up proposals for a PSPO to help address them.
While this would not be a magic wand making these issues disappear, it would give the Council and Police an extra tool to tackle these behaviours. PSPO powers would not be used indiscriminately, only where they were the most appropriate option.
It’s important to note that these restrictions are targeted at specific anti-social behaviours, some quite general in nature, not at particular groups of people.
It must be stressed that our absolute priority remains to support anyone who is in need to connect them with services which can help them improve their lives.”
This is our response to the consultation so far:
A fair and lawful consultation needs to give people enough information in order to properly respond. Before MCC asks whether they should be allowed “an extra tool” people need to know what tools already exist.
For every problem identified by MCC, criminal and civil law answers already exist, some carrying greater penalties and more solution-focussed remedies than the on the spot fines proposed. A summary of just some of the powers and punishments already available is set out in the annex attached.
So why are MCC seeking extra powers?
1. To make it easier to issue punishments and restrict the right to a fair hearing.
People often think the courts are there to punish people who have done wrong. However the most important role of the court is to protect people and stop them being punished unfairly.
The PSPO takes out or restricts the role of the court and the safeguard it provides, because punishment can be issued without evidence or trial.
This safeguard may be an inconvenience to those who would rather be free to impose punishments as they chose, but isn’t it important for everyone, and especially those who are most vulnerable and have the least power (such as the homeless and destitute)?
2. To allow flexibility and discretion in the exercise of punishment powers.
Flexibility and discretion (eg. to decide help rather than punish) can be good but can also be misused.
PSPOs allow a person authorised by the Council to act as police, prosecutor, judge and jury and issue punishments in accordance with their own policies, priorities and conscious or unconscious biases. Black and Ethnic Minority communities can already tell us about how these play out in their interactions with the police.
MCC’s proposed PSPO involves highly subjective judgments – such as deciding when the act of begging becomes “aggressive”. This brings a very real danger that a black person, a traveller or a person with mental health problems will be deemed aggressive and worthy of punishment, as a result of our widespread and institutionalise prejudices, whereas a person facing less discrimination will be viewed and treated differently.
If we genuinely want to help and make decisions sensitive to individual’s circumstances, there are already a range of options available to resolve problems ranging from offering practical help to criminal prosecution. Why do we need an additional power to fine?
3. To put punishment powers in the hands of the council
Unlike many of the existing powers which are mainly in the hands of the police, PSPOs give punishment powers to council officers.
There is clearly a risk of abuse of powers when the council, who have a duty to provide accommodation for (many) of the homeless people on our streets, are given the power to punish those who they are (unlawfully) failing.
A council officer who sees a person sleeping in a doorway or a tent and has reason to believe that they may be homeless, eligible for homelessness assistance and vulnerable, has an immediate legal duty to provide suitable accommodation for that person until they make a lawful decision about their legal rights (this duty is not met by a referral to A Bed for Every Night or other charitable help).
When the overriding problem is that there isn’t enough suitable accommodation to meet the demand, what can putting the power to punish in the hands of the council hope to achieve?
It can allow the council to insist that people accept offers of unsuitable accommodation, for one night only, irrespective of a homeless persons needs in order to clean up the streets by the use of punishment as a threat. Is this really a legitimate use of punishment powers, when so many punishment powers already exist?
4. To put punishment powers in the hands of politicians.
Being seen to succeed in political goals such as ending the need for rough sleeping is important for politicians. There is therefore a risk that punishment powers could be used to hide or displace the visible evidence such a goal has not been achieved.
There is discretion in how PSPOs are to be applied, and it will be the elected politicians who decide whether to grant themselves these powers and the policies and procedures for how and when they should be used. A PSPO is potentially a highly political tool and its use is largely unmitigated by the unelected police, CPS, or the court.
What safeguard will there be to ensure that the additional punishment power is not misused?
5. To punish uncompliant homeless people.
The proposed PSPO describes a series of “behaviours” such as sleeping in doorways and leaving sleeping bags and belongings lying around. It doesn’t specifically mention homeless and destitute people.
However, our politicians need to realise that you can’t (lawfully) pretend that you are not bringing in powers that seek to punish certain classes of people by describing “behaviours” rather than naming the people themselves.
Simply arguing that some people who beg, sleep in doorways, leave sleeping bags and belongings lying around and urinate in public places are not in fact homeless and destitute does not answer the crucial point that homeless and destitute people will find it much harder to avoid these “behaviours” than people who have homes and a decent income.
Homeless and destitute people will therefore (as a matter of fact) be disproportionately discriminated against by this PSPO.
And by discriminating against homeless people with this PSPO, MCC will also be discriminating against those groups who, as a result of the failings of our society, are most likely to be homeless such as the mentally ill, sick and disabled, care leavers, the victims of violence and abuse, and people without secure immigration status. Are these the people that we really need more powers to punish?
6. To move homeless people elsewhere.
The proposed PSPO creates no new punishments for the behaviours targeted. It simply creates a hostile environment in the city centre, where punishment fines can be handed out quickly and without the usual evidential requirements, safeguards or independent scrutiny and protections.
If successful this will mean that homeless people, who (for whatever reason) cannot avoid the behaviours covered by the PSPO and are therefore at risk of punishment, will minimise their risk of harm by moving elsewhere. This will be outside of the city centre, away from the Council’s Homelessness Advice and Assessment Service which has the statutory duty to assist them, and the outreach officers who will now have the power to punish them and away from most of the voluntary services who are funded to provide them with services.
Why beg, sleep in a doorway or in a tent in an area where you are likely to be subject to a summary fine, when you can simply move half a mile elsewhere?
Our conclusion:
We have serious concerns about the lawfulness of this PSPO consultation. MCC have failed to give adequate information about the powers that already exist to help those living in or visiting the city centre who have genuine fears and concerns. They have failed to explain why the new PSPO’s are different and the potential risks involved. They have either misunderstood or deliberately misled the public about the disproportionate effect that the new powers will have on homelessness and have already begun to justify the use of such powers by reference to political goals.
Annex 1:
Existing powers to deal with identified behaviours:
Specific powers:
1. Street Drinking –
MCC has already got an Alcohol Restriction Zone –under the Designated Public Place Order. If someone is drinking and fails to stop or surrender their alcohol they can be given a fine of £50 and a Penalty Notice for Disorder, or arrested and prosecuted with a fine of up to £500.
S91 of the Criminal Justice Act 1967 creates a criminal offence for those who are drunk and disorderly in a public space (which covers behaviour well short of aggression) with a fine of £1000.
Binding over powers for breach of the peace – even where someone hasn’t done something wrong yet but might do, or might provoke others to do.
2. Begging
S3 Vagrancy Act 1824 creates a recordable criminal office with a fine of up to £1000.
S4 and s5 Public Order Act can be used if the beggar is aggressive, causes harassment, alarm of distress, or uses threatening or abusive words, gestures with a fine of up to £5000 or 6 months imprisonment.
3. Obstruction of entrances and exits of premises
Wilfully obstructing the Highway is an offence under s137 Highways Act 1980 – with a maximum sentence £1000 fine
4. Urination and defecation
This behaviour is generally prosecuted under S5 of the Public Order Act – with a ine of up to 150% of relevant income.
5. Disposal of needles
Environmental Protection Act – generally fixed penalty Notice (usually £75) rising to £1000 if not paid within 14 days
6. Tents and other structures
Wilfully blocking the Highway is an offence under s137 Highways Act 1980 – with a maximum sentence £1000 fine
7.Litter
Environmental Protection Act – generally fixed penalty Notice (usually £75) rising to £1000 if not paid within 14 days
8.Commercial Waste
Environmental Protection Act – Fixed penalty Notice (usually £400) rising to 5 years imprisonment and unlimited fine.
General powers which could be applied to all of the above behaviours:
In addition under the Anti-Social Behaviour Crime and Policing Act 2014– there are a variety of other powers which have been designed to be faster and more efficient to use
Civil Injunction Injunction to Prevent Nuisance and Annoyance can be used by local authorities, Police, Transport Police, housing providers and NHS and can prohibit behaviours and impose positive requirements. Breach of an injunction is civil contempt – 2 year imprisonment and unlimited fine.
Criminal Behaviour Orders– can be given alongside a conviction for a criminal offence – they can prohibit behaviours or impose positive requirements even if these are not connected to the offence for which someone is convicted. The court need to be satisfied beyond reasonable doubt that engaged in behaviour which has caused or is likely to cause harassment, alarm or distress and that the making of such an order will help prevent future antisocial behaviour is occurring. Breach of a Criminal Behaviour Order is a criminal offence max 5 years prison and/or fine and 2 year detention and training order under 18.
Community Protection Notice–can prohibit behaviour or impose positive steps. They can be imposed by the local authority, a housing provider or the police to tackle behaviour that is a) detrimental to the quality of life of local community and b) unreasonable and c) persistent. Breach of a Community Protection Notice can lead to a Fixed Penalty Notice and fine.
Dispersal powers
The police including PCSOs have the power under section 35, Anti-social Behaviour, Crime and Policing Act 2014, to disperse individuals (aged 10 upwards) or groups likely to cause anti-social behaviour in public places, or common areas of private land, people can be directed to leave a specified area and not return for 48 hours. It is a criminal offence not to comply with a fine of up to £2500 and/or 3 months imprisonment.
The police officer or PCSO can direct the person given the direction under section 35 to surrender items which the officer reasonably believes has been used or is likely to be used in behaviour that harasses, alarms or distresses members of the public, (s37). A direction under s37 must be given in writing (unless it is not reasonably practicable). The officer does not have the power to seize the item; the person’s consent is required to take the item. It is an offence for the person not to hand over the item if asked to do so.
Photo credit: David Dixon, 2018.
