December 18th, 2023 by James Goudie KC

In TOSSICI-BOLT v BOURNEMOUTH, CHRISTCHURCH AND POOLE COUNCIL (2023) EWHC 3229 (Admin) the Claimant challenged the validity of a Public Space Protection Order (PSPO) made by the Council in October 2022 (the Order). The Council was prompted to make the Order by activities in the vicinity of a clinic in Ophir Road, Bournemouth, which provides abortion services (the Clinic). The Order designates the area around the Clinic as a “safe zone” within which it is prohibited to engage in protest related to abortion services and other specified activities. The main issues were whether the Order is unlawful because it goes beyond the scope of the Council’s statutory powers to make PSPOs or because it involves unjustified interference with individual rights and freedoms, including the freedoms of conscience and religion, expression and assembly guaranteed by Articles 9, 10 and 11 of the ECHR and is hence a breach of the Council’s duties under s6 of the Human Rights Act 1998 (HRA).

The purpose of the PSPO is to prevent antisocial behaviour in public places. This is achieved by imposing legally enforceable controls on the behaviour of individuals. Power to make a PSPO is conferred on local authorities by s59 of the Antisocial Behaviour, Crime and Policing Act 2014 (the 2014 Act). A PSPO can last for up to three years and there is power to extend during that period (ss60-61 of the 2014 Act).

A person who fails without reasonable excuse to comply with a PSPO is liable on summary conviction to a fine of up to £1,000 (s67).

Section 59(1) provides that a local authority may make a PSPO if two threshold conditions are met. The first of these is specified by a s59(2): “that (a) activities carried on in a public place within the authority’s area have had a detrimental effect on the quality of life of those in the locality, or (b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.” The second threshold condition is specified by s59(3). It is that “the effect, or likely effect, of the activities (a) is, or is likely to be, of a persistent or continuing nature, (b) is or is likely to be, such as to make the activities unreasonable, and (c) justifies the restrictions imposed by the notice.”

Section 59(4) defines a PSPO as “an order that identifies the public place referred to in subsection (2) (‘the restricted area’) and (a) prohibits specified things being done in the restricted area, (b) requires specified things to be done by persons carrying on specified activities in that area, or (c) does both of those things.” Section 59(5) limits the prohibitions or requirements that may be imposed to “ones that are reasonable to impose in order (a) to prevent the detrimental effect referred to in subsection (2) from continuing, occurring or recurring, or (b) to reduce that detrimental effect or to reduce the risk of its continuance, occurrence or recurrence.”

Section 72(1) provides that in deciding whether to make a PSPO the authority (must have particular regard to the rights of freedom of expression and freedom of assembly” set out in Articles 10 and 11 of the ECHR. Section 72(3) requires the authority to carry out “the necessary consultation” before making a PSPO. This means consulting with “the chief officer of police, and the local policing body, for the police area that includes the restricted area” and with appropriate community representatives and those who own or occupy land within the restricted area: s72(4). Section 72 allows the Secretary of State to issue guidance to local authorities about the exercise of their functions under Chapter 2. The guidance current at the relevant times identified the purpose of a PSPO as “to stop individuals or groups committing antisocial behaviour in a public place”.

Section 66 sets out a procedure by which the validity of a PSPO may be challenged. A challenge may be brought by “an interested person”, defined to mean “an individual who lives in the restricted area or who regularly works in or visits that area”. The challenge is to be made by an application to the High Court which must be brought within six weeks of the Order being made. The only ….that may be relied on are that “(a) the local authority did not have power to make the order … or to include particular prohibitions or requirements imposed by the order …; (b) that a requirement under this Chapter was not complied with in relation to the Order …” If satisfied that these conditions are met or that the interests of the applicant have been substantially prejudiced by a failure to comply with a requirement of the relevant Chapter the Court may quash the Order or any of its prohibitions or requirements.

Applications under s66 have been considered in two cases: Summers v Richmond upon Thames London Borough Council [2018] EWHC 782 (Admin), [2018] 1 WLR 4729 and Dulgheriu v Ealing London Borough Council [2019] EWCA Civ 1490, [2020] 1 WLR 609.

From these decisions the Divisional Court drew the following propositions of relevance to the present case:
(1) The term “in the locality” in s59(2)(a) of the 2014 Act is capable in law of embracing not only local residents but also those who regularly visit or work in the locality and occasional visitors such as women attending a clinic and their family members and supporters; a local authority has a wide discretion to decide who falls within that term on the facts of the case;
(2) A local authority also has a wide discretion to determine what activities are troublesome and are having or likely to have a “detrimental effect” on the “quality of life” of those whom it considers to be “within the locality”;
(3) Whether prohibitions or requirements are “reasonable” to deal with the detrimental effect of the relevant activities is a matter of judgment for the local authority, taking into account the particular needs of and circumstances pertaining to the local area;
(4) In a challenge under s66 the Court exercises a supervisory jurisdiction in accordance with ordinary judicial review principles;
(5) But where the case requires consideration of fundamental human rights the Court has to identify the rights at stage and form its own judgment on the extent of any interference with those rights and whether such interference is justified rather than merely considering whether the local authority reached its decision by a proper process.

The Court observes that it is inherently likely that some PSPOs will interfere with the exercise of the rights guaranteed by Articles 10 and 11 of the ECHR. It is therefore understandable that s72(1) of the 2014 Act highlights and requires a local authority tohave “particular regard” to the right guaranteed by those Articles. The statutory language is similar to that of s12(4) of the HRA which requires a Court to have “particular regard” to the importance of the right protected by Article 10 when it is considering whether to grant any relief that may affect the exercise of that right. There are four uncontroversial points to be made:
(1) Firstly, it is not every PSPO that will affect the freedom of expression or assembly;
(2) Secondly, the rights granted by Articles 10 and 11 are both qualified rights; measures that interfere with freedom of expression or assembly can be justified where that is necessary in a democratic society in pursuit of one of the legitimate aims specified in the Article, and proportionate to that aim;
(3) Thirdly, a requirement to have “particular regard” to a specified Convention right is not a duty to have regard “only” to those rights: it does not relieve a public authority of the duty imposed by s6 of the HRA to avoid acting incompatibly with other human rights that are relevant in the circumstances of the case;
(4) Finally, a requirement to have “particular regard” to a qualified ECHR right does not give it any presumptive priority over another qualified right; such rights as such are of equal value; any conflict between them falls to be resolved by focussing intensely on the comparative importance of the specific rights in play and the necessity and proportionality of any interference with them.

At paragraph 79/80, the Court recalled that, where a statute identifies something that has to be done by the holder of a named office, it can be inferred that the act must be performed personally buy the office-holder. However that need not be so. Context is important.

The Court concluded that Parliament did not, when enacting s72(4)(a) of the 2014 Act, intend thereby to compel local authorities to secure a personal response from the Chief Constable as a precondition to making a valid PSPO. The Chief Constable was not the person charged with decision whether to “create new crimes”, if that is an appropriate description. That responsibility lay with the Council. The Chief Constable was no more than a consultee. The legislative aim of imposing this duty of consultation is tolerably clear: to enable the Council to factor into its decision-making an expert professional policing assessment of the implications of the measures which it was proposing. As Parliament can be taken to know, a Chief Constable bears overall responsibility for the conduct of policing in his or her area but it is most unlikely to possess the relevant local knowledge. Delegation to an appropriate person was legally permissible. This being essentially a matter of neighbourhood policy it was not improper for the response to come from the Chief Inspector in charge of that aspect of Dorset’s policing function.

When making the Order the Council lawfully followed the democratic and consultative procedures prescribed by the 2014 Act. The decision-maker was entitled to conclude that the threshold conditions for making an order were satisfied. The detailed provisions of the Order are consistent with s59(5) of the 2014 Act and with the Council’s duty under s6 of the HRA. To that extent that the Order interferes with the human rights of the Claimant and those of non-parties on which she has relied in support of her claim the interference is justified by the legitimate aim of protecting the rights of women attending the Clinic, their associates and the staff. The claim and another like claim were dismissed.

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