Recommendation 11

HM Government · verbatim extract Accepted in Part

Public Spaces Protection Orders (PSPOs) and Community Protection Notices (CPNs) are issued where anti-social behaviour is having a detrimental effect on a community’s quality of life. It is for local agencies to determine how to operate the powers in the 2014 Act and to ensure the relevant legal tests have been met. The legislation includes various safeguards to ensure that use remains just and proportionate. Before a CPN is issued, the perpetrator must be provided with a written warning, informing them of the problem behaviour, requesting them to stop, and outlining the consequences of continuing. The individual may challenge the initial warning. A CPN will only be issued where the behaviour persists. PSPOs deal with a particular nuisance or problem in a specific area and are intended to ensure the law-abiding majority can use and enjoy public spaces, safe from anti-social behaviour. Under section 72(1) of the 2014 Act, when making decisions about a PSPO, a council must have particular regard to the rights of freedom of expression and freedom of assembly set out in articles 10 and 11 of the Human Rights Act 1998. The council must also consult the police, the owner or occupier of the land, and any community representatives they deem appropriate, ensuring the order undergoes thorough scrutiny. And, before making, varying, extending or discharging a PSPO, the council must also carry out the necessary publicity and notification in accordance with section 72(3) of the 2014 Act – this includes publishing the text of a proposed order or variation and publishing the proposal for an extension or variation. Feedback from local authorities highlights that PSPOs are extensively consulted on beyond the minimum requirements set out in the legislation. Contracting enforcement to third parties is a common arrangement, and it is for the local authority to ensure the use of powers remains just and proportionate. Contractors are bound by the same legal obligations and the same safeguards in legislation as councils themselves. Local authorities are also obliged to follow the rules set out in procurement legislation in the appointment of such companies. The Government will issue accompanying statutory guidance to emphasise the importance of the new limits being used proportionately. The guidance will also recommend that local authorities include wording on the proportionate use of FPNs in any service level agreements with contractors. “While deterring individuals from engaging in anti-social behaviour is obviously valuable, it is not clear that an increase in the fines that can be imposed by way of FPN will have such an effect. Furthermore, the lack of oversight leaves open the risk that fines up to £500 may be imposed on the spot without justification, and potentially in breach of the proportionality required under the Human Rights Act.” (Conclusion, Paragraph 86) The measure to increase the upper limit for a Fixed Penalty Notice from £100 to £500 for breaches of PSPOs and CPNs was publicly consulted on in 2023, and received majority support as an effective deterrent to anti-social behaviour. The current £100 limit does not always carry enough weight to stop offenders from committing ASB. It is expected that the prospect of a higher fine will act as a stronger deterrent, and in many cases, in itself be enough to prevent ASB. Under existing legislation, relevant agencies may already issue FPNs of up to £500 for environmental offences, such as littering, graffiti and fly-posting. To address concerns about proportionality, the statutory guidance will be updated to emphasise the importance of local agencies ensuring fines remain reasonable and proportionate to the individual circumstances and severity of each case. Local agencies, in issuing a Fixed Penalty Notice for breach of a PSPO or a CPN must, as set out in legislation, give reasonably detailed particulars of the circumstances alleged to constitute the offence, among other specific requirements. Additionally, if an individual feels their fine is not reasonable or proportionate, they can make representations to the issuing agency on receipt of an FPN. Where an individual elects not to pay a penalty, they may defend their case in a magistrates’ court if they believe the penalty should not have been issued to them.