On the 26th of September 2016, a Public Space Protection Order came into force in Moseley and Kings Heath. A copy of the published prohibitions are shown here.
The Order has presumably been made in response to residents’ concerns about anti-social behaviour, and we can all applaud the Council and the Police attempting keep our communities safe and pleasant. However, one cannot help but have serious concerns about the advertised Order.
It is terribly drafted. Solicitors have something of a reputation for pedantry, and so I will try to avoid nit-picking. However, this stuff matters. This Order gives the police the power to move people on, for example. And it gives them the power to fine people who refuse to follow their directions. It would therefore be useful if the Order was clear, easily understood, and did not contain daft mistakes. Unfortunately, that is not the case.
Let’s look at the Order:
“An adult (over 18) is prohibited from remaining (either individually or in a group of two or more people) within the restricted area after an authorised person has requested that the group disperse.”
It appears that an ‘adult’ has been re-defined to mean people who are over 18, i.e. at least 19 years old. This is a little unusual, since most people would say that an adult is someone who is 18 or over.
That person must not remain after their group has been told to disperse. A ‘group’, it appears is either an individual, or two or more people. In other words, any number of people whatsoever.
This Order purports to give the police the power to send absolutely anyone aged 19 or over out of the restricted area, at any time!
“A person is prohibited from being verbally abusive, using or threatening the use of violence to any other person within the restricted area.”
This is not just adults, but any person. Presumably they actually mean persons aged 10 or over, since in England and Wales children under 10 are not criminally responsible. However, that is not clear.
And what this person is being restricted from doing is committing a public order offence contrary to either section 4 or 5 of the Public Order Act 1986. Both of these offences are ones for which an officer can already move someone on, or issue a fixed penalty. In other words, this provision is completely pointless – the police can already do this.
“A person (over 18) is restricted from having in [sic] possession open cans, bottles or other unsealed containers containing alcohol.”
Now we are starting to get really confused. Here, ‘person’ is defined as someone over 18. This is the definition previously given to ‘adult’. So does this mean that the ‘person’ in clause 2 is actually an adult? It is not at all clear.
There is a word missing. It should presumably be, ‘having in their possession.
What does ‘unsealed’ mean? If for example, a bottle of wine has been uncorked, then later had a cork put back in it, and is being carried home from a restaurant, would the carrier be in breach of this Order? Or if someone is carrying a bottle of whisky from which the foil had previously been removed to a party, would they be in breach? Sadly, that person would be at the mercy of a police officer’s interpretation of the Order.
“An authorised officer may request that any person likely to cause alcohol related violence stops drinking alcohol. A person (over 18) is prohibited from refusing to stop drinking alcohol when asked to do so by an authorised officer.”
This power only extends to someone drinking alcohol within the protected space. There appears to be nothing (in this Order) which would prevent someone who is asked to stop drinking, from simply going around the corner and carrying on! In effect, this would shift the problem into the residential streets just outside of the protected area. This is surely not what was intended.
Happily for those aged 18 or less, they are exempt from this. So an 18 year old cannot be asked to stop drinking under this order. This is because it is only those over 18 who are considered to be persons under this clause.
“A person is prohibited from ingesting, inhaling, injecting, smoking or possessing intoxicating substances.”
We don’t know whether person means everyone (aged 10 or over) or only those who are over 18 here. Perhaps it doesn’t really matter – this is likely to be an offence anyway. I say ‘likely to’ because ‘intoxicating substances’ is not defined.
“A person is required to surrender any goods, items and materials that are being used, or are likely to be used, to engage in unauthorised graffiti related activity within the restricted area.”
This is reasonably clear, putting to one side the confusion about the age at which someone is a person. However, one does not have to be a genius to see what will happen here – the graffiti will simply happen in the residential streets and parks away from the protected space.
The map
It is worth studying the map on the notice. Just where is that red line supposed to be going? It is impossible to tell how far up Salisbury Road in Moseley the protected area extends, for example. And in Kings Heath, Station Road, Grange Road, Bank Street, York Road and Silver Street have all disappeared. Unless the person / adult is stood in the middle of the Alcester Road, it will be virtually impossible to decide whether they are within the protected area or not.
What they’re not telling you
What this notice does not tell you is that anyone who is given a fixed penalty for any offence is entitled to appeal against it to a Magistrates’ Court. The Order is badly drafted, and so must be interpreted by individual officers. There is therefore a good chance of successfully appealing against fixed penalties issued under this Order.
For more information, email info@reganpeggs.com, or call 0121 201 3765.
Regan is an accredited mediator and arbitrator. He is a member of the Chartered Institute of Arbitrators and a panel mediator for ADR ODR International. Regan has experience in mediating commercial, family and local political disputes, and representing his clients in those sessions.
Regan is a former Chair of the Board of Directors at the Birmingham Law Society and a former chair of its Criminal Law Committee. He has been a lecturer for law students at the Open University. He is the only defence solicitor in the UK to be regularly invited to address international military students at the Royal College of Defence Studies.
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