PSPO 1: Dog Controls
 We look at the finale of Fylde's first Public Space Protection Order.
It seeks to regulate what the owners of dogs must and must not do when they are with their dog(s) on designated public spaces in Fylde.
But we think it's the start of something much bigger that's coming down the track at quite a pace. And it's awful.
SYNOPSIS
We begin with some Background before a quick look at What's Gone On since our last article, before our detailed look at the latest
Officer's Report to committee - what it says and what it
might mean.
Then we report what was said at the Committee Meeting - first from the Public Speakers and later as the
Committee Debate the Report, before giving Our Own Views first about
the revised dog conditions, but mostly we focus on our concern that Fylde is adopting the new PSPO provisions at all.
Having looked into them for this article, we have concluded that PSPOs are a subversion and a perversion of the tried and tested British legal system. They are wrong in principle, and we provide examples of what we think is
wrong with this Dog PSPO at Fylde, before looking at some of the awful uses to which PSPOs are being put elsewhere across the UK.
BACKGROUND
In 'A Dogs Dinner' we reported Fylde's plan to introduce new dog controls on public open spaces. The idea was to abandon the traditional bye-laws in favour of one of the new
'Public Space Protection Orders' that became available as a result of the ''The Anti-Social Behaviour, Crime And Policing Act of 2014'
The proposals were broad, and cause a great deal of anger and upset amongst dog owners (there was public speaking against the proposals at Committee , protest walks etc) as,
indeed, dog control measures had done every time the Council had implemented (or tried to implement) regulations to control dogs.
Then in 'Dog PSPO and Byelaw Update' in February 2017, we reviewed the present arrangements and tried to make sense of the patchwork of regulations that exist.
We were half expecting an item to go to the March meeting but it didn't. However there was an item on the agenda for 23 May. We couldn't be there in person, but we did
arrange a recording of the meeting for this report.
WHAT'S BEEN GOING ON?
Well, the rough and dirty answer is that much of the dog owner's anger has now gone because Fylde has modified its original proposals quite considerably.
We understand that this came about following a meeting with (chiefly) the Kennel Club, representatives of local dog owners, parish councils, and some other organisations, at
which Fylde realised it was going to alienate a lot of residents, and some of the measures it proposed would not be enforceable practically .
Most local dog owners we have spoken to are now much more happy about the proposals.
We're not at all happy, and we will explain why shortly.
THE OFFICER'S REPORT
The latest recommendations were
The original recommendation had said "to recommend to full council that existing dog related byelaws are repealed, to avoid conflicting restrictions"
The only significant difference here is that the original wording required the Full Council's authorisation. This recommendation does not carry that requirement. Whether it
is necessary for Full Council to take this decision or not we are not sure at this time. We think it unlikely because as we understand the PSPO legislation, after the
implementation of a PSPO, any byelaw covering the same conduct is suspended whilst a PSPO is in effect.
We're also told the legislation includes, - or at least appears to include - provisions that preclude the use of a Judicial Review to challenge a PSPO.
If that's correct we can now have law that is made by a Council - which cannot be challenged by a Court.
That really is the tail wagging the dog.
The original version said "a borough wide PSPO requiring the removal of dog faeces at all times."
It's right that owners should clean up after their dog defecates, and few would gainsay the principle. But what's not yet clear is whether the aim of Fylde's dog fouling
PSPO is to keep the land clean (which is what we would hope would be the case) or whether it is to generate income from penalty notices.
The meetings to debate the changes took place outside a public committee, so we're not exactly sure why this wording has been changed in the latest recommendation.
The original wording appears to create the offence of failing to pick up, and the newer wording appears to create the offence of defecating in the first place. These are
very different matters when it comes to enforcement.
On our reading, the original wording would only create an actionable offence if someone refused to clean up after their dog. We say that because, if, having been made aware
of the fouling, you remove the fouling, (either before - or even after - the issue of a fixed penalty notice) then you will have complied with the Order to remove it, and thus
as far as we can see, no penalty would be payable and no prosecution could be mounted.
But compare this for a minute with the topic of litter.
With litter PSPOs - as we have seen elsewhere - the offence is usually to drop the litter. That means once the fixed penalty notice is issued, it matters not whether you
pick up the litter or not, the fine has become enforceable by your dropping it, (not by failing to pick it up).
Fylde's new wording seems to create the offence of allowing the dog to foul in the first place (like a 'dropping litter' PSPO)
Whilst we struggle to believe that exact wording would be enforceable as it has been recommended (because dogs mostly cannot avoid defecating when moved to do so and a
regulation requiring them not to defecate would be impossible for most dog owners to meet) we do wonder if Fylde's new wording is setting out to regard the fouling offence more
like the litter one that enables a penalty notice to be issued and enforced even if you subsequently pick up the mess.
In all our life, we have only known one dog owner who could order their dog to defecate on command, we can't see it being reasonable for FBC to expect all dog owners to have
that level of control. So (in our view) - and, given that unlike a human litterer, a dog cannot be held responsible for dropping its defecation, the offence ought to be closer
to the original wording and require it to be removed.
Having said all that, deeper into the officers report (in the text part of the report after the formal recommendations), the officer had said:
"The following PSPOs are proposed for consideration by the committee:
A borough wide PSPO for fouling - at present dog fouling is enforced with fixed penalty notices (£50) under the Dogs (Fouling of Land) Act 1996. The introduction of a PSPO
requiring the immediate removal of dog faeces at all times will allow the FPN to be increased to £100 if breached, acting as a further deterrent"
So the wording of the formal recommendation, and this more wordy, later version are different.
We're not used to this sort of sloppy reporting at Fylde, and we don't think
what has been approved is at all clear.
The Minutes have simply taken the recommendation and turned it into a decision "To implement a borough wide PSPO for fouling"
We still think that intention does not contain wording that is enforceable so the wording on the Order will most likely differ from it, and we'll have to wait
what the actual Order says.
It may become an interesting technical matter at some future date to see if the wording that *is* used in the Order is later challenged on the
basis that the Council has not approved its explicit wording - unless, of course, it is intended that the finished Order will go before the Full Council for final approval.
The original version of this had previously said "A borough wide PSPO requiring dogs to be kept on leads on all public highways at all times" but by adding the word
"vehicular"
FBC has removed the scope to apply such orders on rural and other public footpaths not open to vehicles. In our view this is still not completely clear because some public
rights of way are open to horses and cycles and even motorcycles in selected cases, but the aim has been made clear - It is now intended to apply to roads with highway traffic,
and that must be a welcome move.
The original wording said 'a PSPO requiring dogs to be kept on leads at various locations across the borough (Appendix A)' (and appendix A was a very long list). The latest
wording lists only the two locations above by name, but has also added a new provision:
The Dogs on Leads was one of the main areas of contention and this change is very significant for several reasons. Rather that use the former sledgehammer, it now appears to
seek a solution by dealing only with those whose dog is causing a problem for others. If that's what happens then pragmatically speaking, it's a much more sensible approach. If your dog is causing a
problem you will be asked to put it on lead. A refusal to do so will generate a Penalty Notice.
Whilst most of the dog owners are happy with this change we are not. (Our explanation why follows toward the end of the article).
The original wording said "a borough wide PSPO excluding dogs from all children’s play areas"
We think this revised wording is better.
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To propose a PSPO for dogs to be excluded from ornamental water features
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To propose a seasonal PSPO for dogs to be excluded on the designated Amenity Beach
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To propose a seasonal PSPO for dogs on leads along the Promenade Gardens
Previously there was a longer list of sites, and there was quite some controversy.
Excepting for residual dissatisfaction about the amenity beach (which we report as part of the Committee meeting below), these seem to have been generally accepted by
Fylde's dog owners.
The original wording said "a borough wide PSPO limiting the number of dogs under the control of one person to a maximum of 4"
This was probably the most contentious provision in the original recommendations, and several (Conservative) councillors told a previous committee they were unable to support
it.
Again it is a more sensible direction, in that it seeks to deal with only those who cause problems. Pragmatically, as far as dog owners are concerned, it is much better.
We have concerns that it introduces the concept of licensing certain people to use what is actually public open space, and we have a problem with that concept in principle.
(Public Open Space is - and should remain - freely open to all).
Public Open Space is a distinct and important concept BECAUSE it is open to everyone. To the Public. We do not believe it is
right that this fundamental principle should be constrained by the need for accreditation or by licensing.
Fylde's officers don't seem to understand this perspective - we quote again from their new report: '.... are all public spaces where access and use by the community is
encouraged."
Access and use of public open spaces is not simply to be 'encouraged.'
It exists as of right.
Nor is access limited to any particular community.
Before PSPOs came about, it was settled law that ALL people have an absolute RIGHT to be in a public place, to have quiet enjoyment of it without challenge.
We do not have access by right to other areas - even those that appear to be public (such as shopping centres). We might be encouraged to use them, but you can be refused
access at the whim of the centre owner.
Public Open Space is different and should remain so.
We'll pause our rant at this point dear reader, before we resume it later.
Meanwhile back to the new and old wordings.....
The previous wording said "if PSPOs are subsequently approved, a recommended implementation date of 1st June 2017 will be suggested." and
"after an introductory,
educational period, a zero tolerance approach to be followed in relation to any PSPO made following the consultation"
Again the pragmatic approach, and a month of 'warnings' was welcomed by Fylde's dog owners. (though we thought the 'warning month' would do little to help inform dog owning
visitors to Fylde). In our view, the change of tone in the wording here - and elsewhere in the new report and recommendations - was also especially welcome. Fylde is not the
sort of place should threaten (or more particularly that needs to threaten) its residents and visitors with a 'zero tolerance approach' to anything. We only rarely have such a
need.
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To introduce new signage that is clear, polite and informative in appropriate locations across the Borough based on best practice and feedback from the dog walking
representatives, the cost of which can be met from existing approved revenue budgets
The comparable original wording had been "to recommend to full council to include a 2017/18 one off budget item of £12,000 to fund a communication campaign and appropriate
signage to support of the introduction of any dog related PSPOs made following the consultation"
The money was put into the budget so there is no need for this to be requested.
This was a new provision as far as we could see.
Previous recommendations had also said
"to approve the purchase and use of body worn CCTV cameras (subject to procedural requirements) by the Dog Enforcement Wardens as a Health and Safety measure to be funded
from existing service budgets"
We'll comment more on this shortly, but we're not clear whether Fylde thinks these were approved at the previous meeting and don't need to be reconsidered at this time, or
whether their absence from the new report means the idea has been quietly dropped, or whether it's just going to be done without telling anyone.
Another had said 'to recommend appropriate officers investigate the use of PSPO to control other ASB issues such as BBQs and public drinking and to make recommendations to the relevant
committees (Tourism and Leisure and Public Protection).'
Again we will make comment later, but even now we have to ask how a BBQ can be held to be 'anti social'. Most of the ones we went to were very
social, and intentionally so.
What the unnecessarily draconian statement probably means is that Fylde plans to class the damage to grass or park benches and picnic tables that
some BBQ's do as being anti social.
That's wrong in our view. It would not be anti social. It would be something more like criminal damage, and there are existing byelaws to control
and if necessary prosecute offenders.
WHAT WAS SAID AT THE COMMITTEE MEETING?
After a minute of silence respecting those killed in the Manchester bombing there were three public speakers.
Public Speakers
The first was softly spoken and (we think) called Eileen Preston who was pleased that Fylde was introducing PSPOs although she didn't like the idea of the officer's report saying byelaws were
bureaucratic.
(The Officer's report had actually said:
"The report provides details of the work carried out by the Working Group whose objective is to remove the existing outdated bureaucratic bylaws and implement measures that
allow responsible dog owners to continue enjoying the Fylde whilst any irresponsible owners can be appropriately managed."
and
"It was considered that the existing bylaws, which can only be enforced through criminal proceedings, are an inefficient and unwieldy mechanism for addressing any issues.")
Sadly this lady didn't speak very strongly or clearly so we don't have all the points she made, but we thought she seemed to say that rather than fence off play areas for
children, she thought there should be fenced off areas for dogs, thus leaving the bigger areas for play. She also said the constant reference to Fylde being 'dog friendly'
really annoyed her because all it did was bring more people with dogs into the town, and word had got round that the dog control measures were very lax here.
Her presentation continued in a similar vein until the Chairman called time at 3 minutes.
Next to speak was Brian Watson. We've heard from him before. This time he said they had come along way in the last six months, and began by saying he completely disagreed
with the previous speaker.
He then said "The way this exercise has been conducted has caused a great deal of upset and avoidable bad feeing in this community but at least something
has been learned about the need to consult widely when this kind of exercise is being undertaken in the future."
He went on to say that the proposals now before the committee were much more proportionate, reasonable, and enforceable and were now better - as a result of the Working Group listening to dog
walkers, dog owners, dog businesses and the Kennel Club.
He said there had been no chance of enforcing the original proposals. He thought it would have led to legal challenges
and brought the Council into disrepute.
We're less sure about the prospect of legal challenges (as we previously mentioned) because we've been told that Section 66 (7) of the Anti-Social Behaviour Crime and
Policing Act appears to seek to exclude judicial review from being applied to PSPOs.
But we're aware that courts do not like attempts to oust their jurisdiction and there is uncertainty as to just what would happen if someone tried to bring a Judicial Review
- especially say, if an interested person could not have known about the order within the 6 week period in order to oppose it because a Council had failed to properly comply
with its duty to publish details of the Order for example.
Mr Watson then turned to the matter of dogs on the beach. The latest officer's report had proposed 3 options for a seasonal PSPO for dogs to be excluded on Amenity Beach as
follows:
- Option A – as per the existing byelaw i.e. 1st May – 30th September
- Option B – commencing from Easter i.e. Good Friday – 30th September (Working Group preference)
- Option C – extending over full holiday period i.e. Good Friday – 31st October (this covers the main holiday periods and half terms when the highest number of visitors and
residents use the beach)
Mr Watson argued that less than 45% of respondents to the survey had supported the Working Group's preference and he didn't think there needed to be a ban until the end of
October.
He argued that Option A was the closest to current arrangements and he asked the Committee to choose Option A. He also argued that the limit of the Amenity Beach
should be the end of the old Pier structure and beyond that dogs on leads should be allowed.
He concluded by saying that the primary role of the dog warden should be education, with firm action being taken against persistent offenders, and that the dog owning
community welcomed the opportunity to remain engaged with the Council in respect of improved signage and any effort that's made to encourage dog friendly initiatives, making
Fylde a welcoming place for responsible dog owners.
The third speaker was Ann DeRizzio who thanked the Committee for the meeting they had had and she was now looking forward to responsible dog owners having a good working
relationship with the Council.
But she too raised the matter of the proposed dog ban on the amenity beach and said the reason Fylde had given for the option to extend it to
October was the desire to have Blue Flag status.
She said she had done some research and the official bathing season starts on 15 May and ends on 15 September, and the criteria
for the blue flag does not state that you have to have a dog ban.
She had also looked at Councils that already had Blue Flag status and noted that with the exception of a few,
most of them had a ban from 1 May to 30th September, with a few starting at Easter. She said she didn't really see the need to change the time now.
The Committee Debate the Report
After the Chairman congratulated Cllr Sandra Pitman on her selection as Vice Chairman and his expression of thanks to Cllr Pounder for his term in the same Office, the
meeting moved into the proposed PSPO report as Agenda item 1 and the Chairman invited the Officer to present her report. She did so mostly reading from the report itself.
Readers can follow this link to download a copy of her report.
The only addition we noted from the recommendations was that if the PSPO was approved, officers would include a suitable exemption in place for users of registered
assistance dogs.
When the debate opened, Cllr Alan Clayton asked for clarification of who would become Authorised Officers. The officer said Police and PCSOs would be authorised officers
but if Fylde chose to authorise them the potential was there for traffic enforcement officers (we guess she meant traffic wardens, but maybe her use of this particular terminology
heralds an indication of something different in the future), and what she called 'other relevant officers.'
She said she did know that the Coast and Countryside Service is also
currently recruiting some Rangers to be working on the coastal areas, and she would be looking to get them accredited too, so they would have additional responsibility and
provide additional capacity if necessary.
Cllr Threlfall asked if Dog Wardens were not included in the list of Authorised Officers. The Officer said they were, and they would be the two full time officers involved,
and anybody else would be supplementary.
Cllr Harvey spoke to the alternative options for the amenity beach, and said he supported and preferred option A. He also worried that what he called the high profile parks
such as Lowther and Ashton Gardens which attracted large numbers of visitors, and he worried that having dogs running round during the summer, it could be problematic, so he
thought they should have a seasonal PSPO on these areas as well.
The Chairman said:
".... Due to the extremely wide consultation that took place, the Cross Party Working Group took all the information from the consultation and formulated the recommendations
that are with us tonight on the percentages of the consultees whereby we looked to all the recommendations that were over 50%in the replies we received. With regard to the
specialist parks that you mention, they fell below 50% and so the Working Party took the view that if we're seriously going to consult with our residents, then we should be
taking into account what our residents replied to us in coming to those conclusions."
Cllr Richard Fradley said he thought they had arrived at a pragmatic solution for the dogs PSPOs, and asked if there was future scope to add areas such as Ashton
Gardens into the Order.
Fylde's officer said:
"That was one of the reasons why we opted for, whey we're proposing the 'dogs on leads by direction' because the key test in order to be able to introduce a PSPO is to be
able to demonstrate there is regular ongoing or likelihood of this type of activity that would have a negative impact on the lives of people in the local area. And although we
do have anecdotal evidence, and we have had people that have said previously, you know, - Oh I was out in Lowther Gardens for example and there were some dogs running loose - we
haven't got consistent historic information to back up that that is a regular ongoing occurrence, therefore I think we would fall short of the test. Equally, as Cllr Eaves has
said, there was not more than a maximum of 50% in terms of public response, in favour of introducing controls in those areas.
So the thought now is that if we do the Dogs on Leads By Direction, and local intelligence indicates that there is a problem in an area at a particular time, the Dog Wardens
will arrange to patrol in those areas. If they are seeing behaviour that is unacceptable, they can then request the dogs be put on a lead. If somebody fails to do so they would
then issue them with a Fixed Penalty, and by doing that we gather potential intelligence in hot spots as you've mentioned, which, at a later date, if it was felt there was a
need, we could look to potentially introduce other PSPOs or consider seasonal options.
The advice from the Kennel Club was, given the fact that it is a large area, and there's no point in introducing proposals if you're not in a position to be able to enforce
them, rather Just look at those key ones where you have public support. Let's do those correctly, and see if we have problems anywhere else. It may be that people respect the
Dogs On Leads By Direction and it doesn't result in any further problems.
But there is always that flexibility at a later date if we need to re-visit the process."
Telling, we thought.
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Cllr Threlfall said he thought it was maybe a trial period that was being suggested over a number of months, maybe 6 months, 12 months whichever the Committee felt, and they
should re-visit the recommendations and findings of the officers and they could make some minor amendments in the interests of what they were trying to pursue.
We were not at all happy with this perspective. The point being missed - by all participants - is that what they are doing with PSPOs is creating law. And it is law that can
give people a criminal record. Surely it simply cannot be just or right (or even equitable) to be able to alter the law every six months? Who would be able to keep up with
knowing what was and was not the current law? (and that's before you consider spending £12,000 replacing signs every 6 months because you have changed the law, or the area
to which it applies).
Cllr Sandra Pitman asked how many Dog Wardens were currently employed and whether it was enough to do all the parks and do on. The Officer said:
"We have two Dog Wardens.
In effect we're actually reducing the level of control across the Borough because we'll be getting rid of the existing byelaws that are in certain places, so for example,
parks that have been mentioned are currently covered under the Dogs on Leads Byelaws. The difficulty is trying to enforce under that legislation because you have to take it
through the court process. So because those byelaws are in place, they currently need to arrange their patrols to make sure that we are demonstrating presence with those areas,
even areas that are not necessarily very well frequented, but to show we are covering those areas.
If we get rid of all those byelaws and we concentrate on the areas that are specified, and then we respond reactively in areas where it has been highlighted that they are a
hotspot, by doing that we can actually concentrate our enforcement resource and as we indicated, potentially there is the... certainly with the Beach Rangers, there will
certainly be potential to authorise those officers to assist in certain locations to maximise the resource."
We regard most of this as rubbish. There is nothing other than a manager's decision as to where dog wardens are sent to patrol. There is no specific requirement to patrol
areas that have bye-laws any more or less than there is for dog wardens to patrol areas reactively in response to public complaints - to show a presence for deterrent purposes
and to advise the public of what they should and should not do.
Cllr Clayton spoke again to say the process to arrive at where they now were had been useful and informative, and having listened to Cllr Harvey's arguments to go with
'Option A' he had become persuaded by them.
Cllr Eaves responded as Chairman, saying:
"I fully concur with everything Cllr Clayton has said. With regard to the Working Group, I make no apology for it being a lengthy process. It was a lengthy process because
this Working Group wanted to get this matter right. I was delighted to be able to speak with the likes of the Kennel Club, the likes of Natural England, and to pursue the
thoughts and recommendations coming through from local professional dog walkers. It was extremely useful. I am pleased to see that the dog walkers have entered this now in what
I mentioned in the Working Group to be seen as a partnership, to be working together. And it's been mentioned this evening that rather than it being and us and them - it's
never been an us and them for me - I wanted to see it working as a partnership, and I'm delighted to see that we're going top pursue an accreditation scheme across the Fylde
Coast, to approach our neighbours in Blackpool and Wyre to make this a Fylde Coast accreditation scheme that I think will be a first within District Councils. I support that
wholeheartedly.
We do need to look to a clarification on options A, B, and C any members have anything to say on that?"
A few comments were made before the Chairman took each option in turn and asked for all those in favour of option A (3) option B (6), and no one proposed option C.
So with the inclusion of Option B, the Chairman took Cllr Clayton's proposition to approve the recommendations en bloc. This was seconded by Cllr Fradley, and the vote to
approve was carried unanimously.
OUR OWN VIEWS
So far as the control of dogs is concerned, we cannot but agree that the new proposals are - at least superficially - better.
Threats from the former report of body-worn CCTV and zero tolerance are contrary to the ethos of Fylde. It is not a police state, and steps to drive it toward one need to be
resisted with vigour. We hope that's what is happening, (but we fear it is not).
But we're also pretty much sure that what we have seen here is just 'Round One' of a much longer and wider issue than dogs.
We suspect the dog control PSPOs will be 'beefed up' over time and, even more worryingly, we can see Fylde embarking on the principle of using PSPOs as a social
enforcement tool more widely.
For evidence of this readers need look no further that the original report which called for 'officers investigate the use of PSPO to control other ASB issues such as BBQs
and public drinking' - the BBQ element of which is already likely to find its way onto the next Tourism and Leisure Committee agenda.
As we have indicated in previous articles, we have a real problem with the principle of using PSPOs as a tool for social enforcement.
We already have a well tried and tested tool to regulate behaviour. - It's called the court system.
Readers might recall our guest article by Howard Clemmow titled 'ASBO or Anarchy?'
He concluded at that time that Anti-Social Behaviour Orders "ride roughshod over legal precedent that we have fought wars to protect - but strangely no one seems to have
noticed."
We agreed with him then, and we hold even more strongly now that PSPOs are conceptually wrong, and they introduce some of the most undesirable legal concepts that we can
imagine.
Chief amongst these is that PSPOs offer broad powers that allow councils to criminalise particular, non-criminal, activities taking place within a specified area.
That is an awful concept.
In some places, they have already been used to limit freedom of speech and the right to protest.
In this matter, we agree with Liberty who say they oppose PSPOs 'because they are too widely drawn, with vague definitions of what can be criminalised, and carry
disproportionately punitive sanctions.'
We're also advised the Act seeks to exclude organisations such as Liberty from taking up cudgels on behalf of others because it limits those who may question the validity of
an order to 'Interested Persons' - and it further defines them as being an individual who resides in the restricted area or who regularly works there or visits it. It also
seems that an appeal against an order has to be made within six weeks of the date the Order was made or varied.
Frankly, this is an awful approach.
The Public Law Project tells us that 'In the last 20 years or so Parliament has provided a rash of purportedly civil remedies to address various types of nuisance or
anti-social behaviour'
These began with housing ASB injunctions under the Housing Act 1996, and were extended by the Anti-Social Behaviour Act 2003, and the ASBO provisions of the Crime and
Disorder Act 1998.
These ASBOs appear to be remedies in the Civil Court system - so they do not appear as being part of our criminal law. (Even though a few now seem to be only used in after
sentencing for criminal offences that also constituted 'Anti-Social' behaviour).
But a key difference between PSPOs and ASBOs is that the latter generally only apply to individuals, whilst PSPOs may be applied to everyone or to certain classes of people
- such as here at Fylde, where Dog Owners are being legislated about.
Guidance issued with the PSPO legislation says
'Public space protection orders are intended to deal with a particular nuisance or problem in a particular area that is detrimental to the local community’s quality of life
by imposing conditions on the use of the area that apply to everyone . They are designed to ensure the law-abiding majority can use and enjoy public spaces, safe from
anti-social behaviour.'
If you pick that sentence apart, it says that rather than target individual problem people, PSPOs have been designed,
and now set out to apply, the principle of not being Anti-Social to everyone who uses a public space.
The corollary of that is that public officials have now been given the power to order people to behave 'socially' - and what constitutes 'socially' is, in some cases, not at
all clear.
And in reality, and when you think about the definition a bit, and about how PSPOs work, they are in fact, a completely new concept, they are a form of 'locally made law'
Byelaws are different. They are proposed locally, but they then require the oversight and approval of the Secretary of State. We know as fact - from Fylde's early dog byelaw days - that SoS's approval is not
always given.
The post of SoS had seen it all before. They have a set of 'Model Byelaws' that cover almost everything that can happen on a public space and it was rare that you
were allowed to step outside the provisions of the relevant Model Byelaw to invent your own Byelaws.
But now, councils can make these 'local laws' using PSPOs without any other approval being required
They do have to consult, but as we have seen in Fylde on the Dogs PSPO, consultation can be hugely flawed, and does not have to adhere to any recognised format or quality
standard.
So what we now have is Fylde Council being able to make law of its own volition on public land.
All it has to do is to consult before doing so.
And whilst Fylde will no doubt try to play down its criminalising ability here - in reality, once it makes a PSPO, that Order is eventually enforceable through the court
system.
As the report to FBC said
'Failure to comply with a PSPO is an offence which can be dealt with by a fixed penalty notice (of up to £100) or by prosecution (maximum fine of £1000).'
But under PSPOs those who infringe the Order are usually offered the 'easy option' of paying a 'Fixed Penalty'
The 'advantage' of this is said to be that one might avoid the risk of being taken to court and prosecuted for the offence that Fylde (not the Government, and not a Judge)
has created, and for which the penalty might be 10 or more times greater than the 'Fixed Penalty'.
A further 'advantage' is that typically the Penalty is halved if you pay within a short period. In the case of Fylde's dog control measures, transgression beings a fixed
penalty of (up to) £100 which is reduced to £50 for prompt payment.
Surely we cannot be the only ones who can see the terrible dangers inherent in the disastrous direction that this legislation has set in train.
Since Magna Carta the people of these Islands have had what today have become the rights of habeas corpus (the banning of arbitrary detention) and trial by jury.
We have developed a respected and widely copied court-based legal system that, for the most part, has stood the test of time and provides checks and balances for
individuals, especially in the area of common law.
We have fought long and bloody wars to protect our traditions, our culture, and the freedoms many believe we should enjoy as of right.
But look forward into the future a bit.
Admittedly, we're not there yet, but imagine a council - Fylde will do - who decide that they don't want anyone to feed the ducks at Fairhaven or Ashton Gardens because the
bread sometimes encourages rats, and they don't want people like buskers using amplified music in the town centre, and they don't want to have to clear up leaflets that have
been handed out from one of the domes in St Annes Town Centre and dropped by people who decide they don't actually want the leaflet.
And now imagine that FBC decide to solve these
problems with PSPOs:
- one that criminalise the feeding of birds in public spaces,
- one that prohibits the use of amplified music in the town centre,
- and another that prohibits
leaflets being handed out in public spaces.
We make it clear that at present Fylde has not done any of these things.
But other councils have.
And having got the principle of PSPOs agreed and set in stone with the dogs version, Fylde is now signalling its intention to use PSPOs to limit or prohibit BBQ's on public open
spaces (perhaps including the beach) in the near future.
And just staying with our imaginary situation for a moment longer, readers might wonder whether mothers with prams and small children, or pensioners with stale crusts ought
to become criminals for feeding the ducks, or whether members of the Salvation Army could be criminalised for using an amplifier during a town centre service, or whether
members of a local group protesting about a planning application could be criminalised for giving out leaflets to raise awareness of their opposition to the development.
And before Fylde says the 'Fixed Penalty' allows you to avoid being criminalised, it's worth thinking about the legal principles and perhaps even moreso about the morality encompassing those
who have the ability to pay being able to avoid what for less well-off people should become a criminal record after being prosecuted in the courts for failing to pay the Fixed
Penalty.
But we think Fylde's proposed 'Dogs on Leads as Directed' PSPO is even worse in principle
The fundamental point about the law is that it is written. So you can tell what is lawful and what is not.
But this new PSPO provision by Fylde empowers an 'Officer' who has been authorised by FBC (and that could be a Police Officer, a PCSO, a countryside ranger, a housing
officer, a dog warden, or even the employee of a commercial contracting company who may be paid according to their performance in issuing penalty notices) to DECIDE what is and
is not acceptable behaviour by a dog.
This could well result in different 'Authorised Officers' exercising different judgements about what is, and is not, acceptable behaviour.
So unless Fylde hold some regular sort of 'Rating Clinic' to standardise and homogenise the perceptions of all its Authorised Officers, then on one day, a dog owner might
find there is no problem with his dog when, say, the Police Community Support Officer is patrolling the area. But he may be held to have allowed unacceptable behaviour by his dog -
which was doing the exact same thing - when say, a Dog Warden or a Countryside Ranger viewed the same activity on a different occasion - or even later in the same day!
That has to be a nonsense.
If the view of the Authorised Officer is disputed and refuted by a dog owner, the logical outcome is a prosecution for failing to comply with the PSPO, and it will thus be
possible for someone to gain a criminal record - not on the basis of a clearly expressed and understood British law, but on the basis of one individual's personal opinion of what is
acceptable behaviour and what is not acceptable.
We think that's a terrible perversion of our trusted legal system.
Imagine for a moment that the lady who was the first public speaker at the meeting, (the one who said that constant reference to Fylde being 'dog friendly' really annoyed
her because all it did was bring more people with dogs into the town, and word had got round that the dog control measures were very lax here),
She's welcome to her opinion of course, but just imagine for a moment that
she is appointed to one of the new Coast and Countryside Ranger jobs and (although this particular example might be held to be exceptional) we think our readers will get the
picture we're painting.
Not only will the mindset and personalities of individual Authorised Officers vary, but the nature of what is and is not held to be acceptable will itself vary according to
the nature of other people in the vicinity.
So one day (say with adults around) mildly boisterous dog behaviour may be held to be acceptable, but the next day when there are children having a picnic, it may not be
acceptable.
How on earth may any dog owner know what is and is not lawful when that definition is a subjective and moveable feast of a decision inside the head of, for example, a
sub-contracted employee of a private enforcement company?
The parallel of having even the best of policemen decide what is, and is not, lawful - on the spot like this - fills us with terror.
We think it should also fill our readers with terror as well.
At the end of that path is waiting what George Orwell predicted for us.
And it's a serious and growing threat to our freedoms.
Many places now have PSPOs restricting dogs (and also the consumption of alcohol outdoors except on licensed premises), but some places are going much, much further.
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Bedford have a PSPO to restrict cyclists from riding bicycles through the main pedestrian area of Bedford Town Centre between 9am and 6pm.
There are powers under the existing legal system, but this change allows authorised Local
Authority (and Police) Officers to enforce the restriction using a fixed penalty notice regime so it's cheaper and easier to enforce than using the proper court system. And it
seems to us that is why it has been introduced as a PSPO. |
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The Royal Borough of Kensington and Chelsea introduced a PSPO "to address the excessive level of noise nuisance, annoyance, danger or risk or harm or injury caused by motor
vehicles to members of the public" in Knightsbridge. In effect (and as it says) it seeks to prohibit 'antisocial driving' |
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Sunderland Town Centre has a PSPO that prohibits amongst other things 'Bin Raking' which is the searching for and taking of 'any items whatsoever from rubbish bins, bags or
items clearly left to be disposed of or belonging to another.'
'Pop Bottling' to redeem the coppers for refundable deposits per glass lemonade bottle recycled from bins in Blackpool and returned to the appropriate shops when we were
young used to be a good source of pocket money.
It was also a very green initiative (although we didn't know that at the time) and most especially it set many youngsters on path to
understanding what the word entrepreneur meant - even before we could have spell it. But today, it seems it's not acceptable in Sunderland. |
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Oxford City Council wants a PSPO for the Thames, Cherwell and the Oxford Canal. It would ban people from mooring boats at riverbanks without the
landowner's permission, and other measures.
Boat owners say the order would criminalise normal and necessary boating activities. |
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In East Devon The deliberate feeding of seagulls on or near seashores and promenades is prohibited under a PSPO.
The ban, covers the town beaches of Exmouth, Budleigh Salterton, Sidmouth, Beer and Seaton.
Anyone found guilty of breaching the PSPO by providing or depositing food for consumption by seagulls can be issued with a fixed penalty notice, which carries
a fine of £80. |
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One of the more controversial PSPOs we saw was this one from Havering. It defines an area where people may not collect or drop off children at school and
says....... - any vehicle seen stopping to drop off or pick up school children during the prohibited hours within the designated zones will be monitored
by cameras or Enforcement Officers, which may result in the issuance of an FPN for £100
- Unlike a Parking Penalty Charge Notice, there is no right of appeal to the Council or Tribunal, although you may be given the opportunity to explain
why a prosecution should not arise
- If you challenge the allegation, a date for the case to be heard by magistrates will be sought and sent to you by summons
- Details of how to pay or contest your fine can be found on the FPN given to you, or received through the post
-There will be no prosecution if paid within 14 days of being issued
-People who do not pay FPNs, and those who offend persistently, may be prosecuted and face a fine of up to £1,000 and a criminal record |
We also found some places that are using a comprehensive framework of multi-faceted PSPOs - as one might have used a set of byelaws in the past.
In Christchurch for example, a car park, no less, has been protected by an Order that fills a sheet of A4 with at least 10 separate specified offences, many of which have
sub categories of prohibition as well. The prohibitions on this car park include:
- No person shall play or participate in any game, sport or recreation in the car park, unless with permission from the council.
- No person shall take part in any activity that may disturb other persons by way of unreasonable noise levels.
- Other prohibitions include
- Obstructing Public Officers from carrying out their duties
- Noise from engines running;
- Playing of music;
- Congregation of groups;
- Anti-social driving,
- Any activity clearly prohibited or restricted by a sign erected by the land owner or council.
In East Dorset a PSPOs address:
- Not to consume alcohol by direction
- Excluding Dogs
- Littering
- Graffiti
- Damage to Structures and Plants
- Hunting of Wildlife
- Camping
- Fires
- Shooting or Throwing of Missiles
- Horse Riding
- Cycling
- Driving and Parking of Motor Vehicles
- Skateboarding
- Ball Games
- Archery
- Field Sports
- Flying Model Aircraft
- Trading of Goods
- Causing Excessive Noise
- Public Shows and Performances
- Aircraft Landing and Taking off
- Flying of Kites
- Use of Metal Detectors
- Obstruction Public Officers from carrying out their duties
- Anti - Social Behaviour
Now readers might say, well, that list is not much more than an updated set of byelaws. - And we agree.
BUT, the only logical reasons to move away from byelaws and use PSPOs are either to generate fine revenue that the Council can keep, or to avoid or reduce the costs of mounting a prosecution.
And designing a locally-made PSPO law that:
- has not been tested against model byelaws and not been subjected to the checks and balances of the Secretary of State;
- requires a much lower standard of evidence (as we have seen, a personal opinion is sufficient) to make an accusation and issue a Penalty Notice that is ultimately enforceable
in a court;
- damages the established rights of anyone so accused by not having a clear definition of what is and is not allowed
- fails to subject an accusation to the rigours of our tried and tested
court system
makes justice unjust, and it weakens public respect for the value of right and wrong by commercialising 'wrong' - (If you can afford it, you can simply do it, pay the penalty and go home)
The trajectory that this change brings to our established legal system is subverting the proper requirements of our long established, tried and tested court process, and we think it is awful.
So we will have no truck with Fylde's awful Public Space Protection Orders and, like Liberty, we expect to argue against every one that is brought forward.
They are not, as some claim, an evolution of the British legal system, they are a dangerous subversion and perversion of it.
They should be abandoned, and Fylde should have had more sense than seek to adopt one.
Dated: 4 Jun 2017 
CAMPAIGNING AGAINST PSPOS
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