KSL Official Response to Exeter PSPO Consultation

KSL Official Response to Exeter PSPO Consultation

Please sign our petition against Exeter City Council’s plans to criminalise homeless people and destroy their possessions. Protect civic freedoms and street culture in Exeter

azdQOSLlzGJhfaM-800x450-noPadLabour-led Exeter City Council’s new proposed ‘Public Space Protection Order'(PSPO) will give the police and council officers in that city the power to criminalise activities that they deem to be ‘antisocial’ such as rough sleeping, begging, or even busking. These proposals could also see some of the most impoverished people in the UK facing criminal charges and unpayable fines of up to £1000 just for refusing to remove their bedding when ordered to by a council official, or busking ‘without authorisation’.

The Keep Streets Live Campaign exists to advocate for public spaces that are open to informal offerings of art and music and other community uses. We are against the criminalisation of destitution and homelessness and believe that these plans, whatever the council’s underlying motivation, will have a devastating impact upon some of the most vulnerable people in society, whilst also criminalising cultural activities such as busking. The council are running an online consultation about the proposals which closes at midnight on Febuary 29thand it is vitally important that as many people as possible complete the consultation and inform the council that these draconian and authoritarian measures do not have public support.

You can complete the online consultation on the council website here:

http://exeter.gov.uk/council-and-democracy/consultations-and-petitions/public-spaces-protection-order-consultation/

We have completed our submission to the consultation and are publishing our response below for the public record. Please feel free to use our response as a reference/guide when you complete your submission. It clearly explains the reasons why we are opposed to this PSPO.

If you can, please take a few minutes and complete this consultation, it will make a big difference, and your voice does matter.

KSL Official Response to Consultation 

There are six prohibitions and actions that the council want to include in the PSPO. We will publish the proposals in bold lettering and our response will be in italics.

It is proposed that the PSPO will stipulate:

Person(s) within this area, whilst situated in the street or other public space where the public have access without payment, shall:

1. Surrender any intoxicating substance in their possession to an authorised person on request, if:

a) they are found to be ingesting, inhaling, injecting, smoking or otherwise using intoxicating substances; or

b) they are in possession of such intoxicating substances with the intent of using intoxicating subtances within this area; or

c) the authorised person has reasonable grounds to believe that such person is using or intends to use the intoxicating substance within the said area.

Intoxicating Substances is given the following definition (which includes Alcohol and what are commonly referred to as ‘legal highs’): Substances with the capacity to stimulate or depress the central nervous system.

NO

Whilst these powers could in theory apply to a young couple who had bought a bottle of Prosecco for an impromptu summer picnic on the green, these powers could easily be and will most probably be used to target vulnerable and marginalised persons, such as homeless or vulnerably housed persons, or people with mental health problems. Whilst no one could reasonably object to a person facing enforcement action if their behaviour causes alarm, harassment or distress to others, this measure, in contrast allows council officers to target people solely on the basis that they have ‘reasonable grounds’ to believe that they will use an intoxicating substance within the PSPO area. This power would allow officers to seize legally purchased and unopened bottles containing alcohol, even if the person wasn’t drinking the alcohol at the time. As such, it is an unwarranted interference with the personal freedoms of individuals. Also there is no clear mechanism for an officer to establish beyond doubt that a so-called intoxicating substance has not been obtained lawfully and for a lawful, medicinal purpose. The PSPO creates a blanket power which is open to potential misuse. It would be better for the council and the police to focus upon known individuals whose actual behaviour is having a detrimental impact on the local community. These known individuals could be targeted rather than a blanket power which applies to every person, even if their behaviour is having no detrimental impact on any person. 

 

2. Not urinate in a street or public open space

The term ‘street’ includes any road, footway, beach or other area to which the public have access without payment. It also includes a service area as defined in Section 329 of the Highways Act 1980. Other areas will include parks and retail car parks to which the public have access to without payment.

Exemptions shall apply where a person urinating is making use of an authorised temporary public urinal/toilet has been provided in accordance with any specification issued by Exeter City Council and with its agreement.

Q2.

Do you agree with Proposal 2?

 

No

Q2.1.

Do you have any comments about Proposal 2? Please write these below

The powers could too easily be used to target vulnerable people who do not have access to public toilet facilities, especially during the nighttime hours. Existing legislation can adequately be used against persons who behave inappropriately, including public urination.

3. Clear away and remove from this area without delay (to the satisfaction of an authorised person) any unauthorised bivouac, bedding or equipment formed in a street together with any associated paraphernalia, when requested to do so by an authorised person and if that person fails to clear away and remove as directed an authorised person may then or on a future date or time confiscate and dispose of any unauthorised bivouac, bedding or encampment found within this area with or without the permission of its owner.

For these purposes, bivouac, bedding and encampment mean any portable shelter used for camping or outdoor sleeping, and include materials used for shelter against the elements, weather or ground.

For this purpose ‘unauthorised’ means without the express written consent of any owner (or any person having control over or an interest in the land in question).

Q3.

Do you agree with Proposal 3?

No

It is highly distressing to see a Labour-led local authority even considering implementing these ill-thought out and authoritarian measures. This measure would make it a summary criminal offence, punishable by a fine of up to £1000 for a homeless person to not immediately remove their sleeping bag, or blanket when ordered to do so by a council officer, and gives the council the power to confiscate and destroy the bedding and possessions of homeless people on the basis that they had the temerity to object to being moved on. The extension of summary powers such as this to the local authority wrongly conflates destitution and lack of housing with ‘anti-social behaviour’. It will cause highly vulnerable people to become less safe and to face criminal sanctions purely on account of having to sleep rough. It means vulnerable people will be subject to potential bullying at the hands of council officers who will have the power to destroy their personal possessions if they don’t comply with orders that might be unreasonable and misconstrued. At a time of rising homelessness it is a disgrace that a Labour-led council in particular should be considering measures that criminalise the most vulnerable members of society and make their lives more difficult in a misguided attempt to sanitise the public spaces of the city. The local authority would do better to urgently address the provision of housing places for those who are inadequately housed and treatment for those suffering from addiction or mental health issues, instead of creating a criminal offence which will be used to marginalise the vulnerable and the destitute.

4.

 Not make unsolicited and/or unauthorised request(s) for money (whether expressly requested or impliedly requested by conduct) in a public place from persons not known to the perpetrator.

For this purpose ‘unauthorised’ means without the express written consent of any owner (or person having control over or an interest in the land in question).

No

In common with proposal 3, proposal 4 will impact the poorest and most vulnerable members of society in a disproportionate and manifestly unjust way. The vast majority of people who beg are highly vulnerable and often destitute and are reduced to begging in order to obtain food and shelter. The proposal is world in such a way that even a person who was sat down, without causing any issues to any other person, could face a criminal fine of up to £1000 and a court action which would, in itself, be costly and would in no meaningful way change their behaviour because they would now have a fine that they could not possibly pay, as well as a criminal record which would cause them to be more marginalised and isolated from society. Additionally begging is already illegal under the 1824 Vagrancy Act which gives the police ample powers to seek to prosecute persons for begging if it was deemed to be in the public interest. Instead of giving an enormous range of new delegated powers to council officials which could see a large number of fixed penalty notices given to people with no ability to pay them and a resultant rise in costly magistrate’s court hearings and the mixing up of vulnerable people in the criminal justice system, the council and the police should focus purely on the small minority of people who combine begging with genuinely aggressive and intimidating behaviour and use existing legislation to target those individuals rather than creating a new criminal offence.

This measure as currently worded would also criminalise ‘unauthorised’ busking because playing an instrument or singing on the street could be construed as an implied request for money. This is an absurd outcome, conflating a cultural activity which brings enjoyment and colour to the public spaces of a city, with a criminal, antisocial activity. It would lead to scarce public resources being directed towards the prosecution of people playing music on the street. It is contrary to Home Office advice on the use of Antisocial Behaviour legislation and is also likely to be an infringement of Article 10 rights to Freedom of Expression under the Human Rights Act. It is fundamentally misconceived.

5. Not behave either individually or in a group of two or more people in a manner that has resulted or is likely to result in any member of the public being intimidated, harassed, alarmed or distressed by that behaviour

No,

 

6. Persons within this area who breach Prohibition 5 while in a group shall when ordered to do so by an authorised officer disperse either immediately or by such time as may be specified and in such a manner as may be specified.

Q6.

Do you agree with Proposal 6?

No

Q6.1.

Do you have any comments about Proposal 5 and 6? Please write these below.

Under the Public Order Act 1986 it is already a criminal offence to behave in a manner which causes Alarm, Harassment and Distress to other people. There are existing powers that can be used to disperse people who are causing antisocial behaviour, including Section 35  dispersal notices which can order a person or persons to leave an area for 48 hours. The PSPO proposal is too broad and does not have enough safeguards. It is also unnecessary.  The police and council have no need of this summary PSPO power which would extend the power to criminalise people to ‘authorised officers’ on the basis that they have a’ reasonable belief’ IS LIKELY to result in ANY member of the public being intimidated, harassed, alarmed or distressed by that behaviour. This wording is vague and nebulous and has the effect of extending summary powers to persons without the benefit of the extensive training that police officers undertake before becoming officers of the law. This proposal would allow a person to criminalise a person, or group of people purely because they take a subjective view that their behaviour ‘is likely’ to cause distress to ‘any’ person. This is bad lawmaking and can be rightly construed as an attack on freedom of association. It will radically alter the relationship between local authority officers and the people they are paid to serve and protect. The police and council should use their existing powers to target genuine examples of antisocial behaviour using their existing powers.

Stop Swindon Council’s Attack on Street Culture

Stop Swindon Council’s Attack on Street Culture

 

Swindon’s Public Space Protection Order is an assault on the town’s civic life.

Skateboarding ‘or similar’ in an ‘annoying’ way, drawing pavement art with chalk, playing fetch with a dog without a lead, collecting money for a charity ‘assertively’, even peddling with a valid license could all become a criminal offence punishable by a fine of up to £1000 under proposals tabled by Swindon Borough Council.

Taken together these measures represent a highly heavy handed approach to the oversight of the public spaces in the town, and the unnecessary creation of vague and ambiguous criminal offences so we are constructively opposing this measure. Please take a moment to fill out your own response to this measure, the more people who complete the consultation, the more chance we have of stopping these measures.

This is the Keep Streets Live Campaign response to Swindon Borough Council’s online consultation on whether to create 

Please take the time to complete the consultation via this link: 

https://www.surveymonkey.com/r/8ZNRZQN

Feel free to use our responses as a guide

There is also a petition against this measure here: https://www.change.org/p/swindon-borough-council-stop-the-swindon-town-centre-public-spaces-protection-order#petition-letter

Swindon Borough Council (referred to hereafter as ‘the authority’) hereby makes the following Public Spaces Protection Order that applies to the public space as referred to within the marked boundary in Appendix One: 

Proposed Restrictions: 

1. Dogs on leads
Any person in charge of a dog, at any time, must keep the dog on a lead unless subject to exemptions listed in Appendix Two below.

KSL response 

It should not be a criminal offence to walk a dog without a lead. Instead dog-owners should be treated as responsible persons capable of making their own judgments about the nature of their dog and its relationship to public safety under existing legislation. This prohibition is unnecessarily wide and has the effect of criminalising harmless activities like playing fetch with a dog in a public place. It will have the presumably unintended effect of turning Swindon’s public spaces into more alienating environments, for dog-owners and non-dog-owners alike.

2. Alcohol
Any person is prohibited from, at any time, consuming alcohol or having an open alcohol container, unless subject to exemptions listed in Appendix Two below. 

KSL response 

    Once again this prohibition is framed too widely and criminalises people unnecessarily, for instance a family having a glass of wine with a picnic, two lovers having a glass of champagne in the park. A discretionary power allowing the police to request that persons surrender their drink upon request would allow the authorities to deal with any antisocial behaviour resulting from alcohol use without the need for authoritarian and catch-all measures.

3. Begging
Any person is prohibited from, at any time, placing himself in a position to receive alms for a continuing period. 

KSL response 

This is a particularly problematic prohibition from an equalities act and Human Rights Act standpoint. Creating a criminal offence that catches the most vulnerable and destitute members of society is punitive and unlikely to be effective. A beggar is unlikely to be able to afford to pay a £100 spot fine and will likely end up in court where they would face a mandatory court charge of £150 before the magistrates even had chance to pass a judgment. It is conceivable that some vulnerable persons might face imprisonment as a consequence of non-payment of court fees and fines. At a time of rising poverty and homelessness a local authority should not be using these discretionary powers to punish the poor and vulnerable. Additionally, these measures would leave Swindon open to a formal legal challenge. Oxford City Council’s proposals to make ‘persistent begging’ the focus of a PSPO proposal resulted in a formal legal challenge from the Human Rights body Liberty and widespread protests: https://www.liberty-human-rights.org.uk/news/press-releases-and-statements/liberty-calls-oxford-city-council-scrap-unlawful-plans Oxford City Council subsequently adjusted the wording of their proposal to say ‘begging that could reasonably be perceived as aggressive’, which, whilst still highly problematic makes the proposal more proportionate to the potential social harms caused by begging. This measure should be removed from the PSPO.

4.) Peddling/Street Trading
Any person is prohibited from, at any time, peddling/trading goods without the written permission of the authority, even if licensed. 

  KSL response 

The criminalisation of pedlars and street traders under this prohibition, even if they hold a valid license, is punitive and unnecessary and an attack on a legitimate way of making a living. Peddling is a valid and lawful means of making a living in the UK with a history that predates the 1871 Pedlar’s Act. The working of this prohibition is also vague enough to have worrying implications for other users of public spaces such as buskers who might make CDs of their performances available to passerby.

5.) Skateboarding
Any person is prohibited from, at any time, using a skateboard or similar in a way that may damage property or cause nuisance or annoyance.

KSL response 

The wording of this prohibition is vague and open ended:  ‘Any person is prohibited from, at any time, using a skateboard or similar in a way that may damage property or cause nuisance or annoyance’

This means that a skateboarder could face a criminal record and fines of up to £1000 for causing ‘annoyance’ to someone. What definition of ‘annoyance’ is being used? What, indeed, is ‘similar’ in relation to a skateboard? A bicycle? A tricycle? A zimmer frame? A scooter?

This is an unnecessary and punitive measure that will have a disproportionate impact on young people for whom skateboarding is a hobby and pastime, and creates an unnecessary relationship of antagonism between the local authority and the skateboarding community.

It is also probably unlawful because it creates an unacceptable degree of uncertainty about what behaviour is, and isn’t lawful. For example, is riding a scooter or tricycle in a way that someone finds annoying unlawful under this prohibition?

Existing legislation relating to criminal damage and public order is more than adequate to deal with any concerns about the ‘excesses’ of the skateboarding community.

6.) Marking surfaces/chalking
Any person is prohibited from, at any time, directly marking surfaces such as walls or pavements with paints, chalk or similar without the written permission of the authority.

Street art using chalk that can be washed off by an afternoon of rainfall or a bucket of water should not be a criminal offence. In no way can it meaningfully be said to have a detrimental effect on the local area, in fact, street art, alongside street entertainment is a long established part of any vibrant street culture and should be encouraged and supported by the local authority, not subject to punitive fines and criminalisation.

7.) Aggressive Charity Collection 

Any person is prohibited from, at any time, on land detailed in Appendix One below, engaging in assertive or aggressive (commercial or charity) collection or soliciting of money. 

KSL response

Once again the wording of this prohibition is dangerously vague and open-ended and creates a potentially ambiguous criminal offence of ‘assertive’ charity collection. What objective standard of ‘assertiveness’ or ‘aggressiveness’ is being proposed to evaluate an offence which carries a criminal record and fines of up to £1000?Why is existing public order legislation such as the Public Order Act 1986 which created the offence of causing ‘alarm, harassment or distress’ insufficient to address a situation where there were concerns about the approach of a charity collector? What standard of evidence will be used to establish that this ‘offence’ has occurred?This has been poorly thought through and is most probably unlawful, and would be open to legal challenge.

Response to Royal Borough of Kensington and Chelsea Busking Consultation

Response to Royal Borough of Kensington and Chelsea Busking Consultation

The Royal Borough of Kensington and Chelsea are consulting on bringing in a busking license which will be almost as restrictive as Camden. We have taken part in their consultation and have reproduced our responses here. You can take part in the consultation which closes on October 19th by clicking on the link below and using our responses as a guide if you wish. The more people who complete this consultation the greater the chance we have of persuading Kensington and Chelsea’s Councillors not to adopt this proposed scheme.

 

http://www.rbkc.gov.uk/survey/busking/snphase2busking1.htm

 

1.) Appendix A shows the pilot area to which the Street Entertainment (Busking) Policy refers to. Do you agree with the selected pilot area?

The Greater London Authority has convened a mayoral taskforce specifically for the purpose of agreeing a code of conduct for busking across London between all stakeholders. In the light of this process alone, which Kensington and Chelsea are part of, the imposition of a statutory licensing regime is highly prematureSection V of the London Local Authorities Act is a contentious piece of legislation which empowers local authorities to criminalise street culture, impose fines and seize musician’s instruments. The local authority has other statutory powers (Environmental Protection Act 1990, Highways Act 1980) that can be used to address problematic busking. The imposition of a licensing regime is contrary to the nature of busking as a spontaneous and informal cultural pursuit.

 

2.) Busking will not be allowed in the piloted area without a licence on Fridays and Saturdays from 10.00 to 18.00. Are these controls appropriate?

 

 

In the busking tradition performers typically perform in many different localities in the course of a working season. Busking licenses create unnecessary obstacles for travelling performers and always lead to a decline in the circulation of performers and greatly reduce variety. Camden have introduced a license under these powers alongside Hillingdon. If the 30 remaining boroughs followed suit the result would be the total fragmentation of the London busking community. Very few performers will have the resources to pay for 32 separate licenses, the result will be greatly reduced variety and quality of performances and the diminishment of the cultural life of the capital. A license regime also criminalises unlicensed performers who may not have been aware of the license arrangements and will be put off from coming to the Borough to perform. It creates an arbitrary barrier to the use of public space for the arts and would be resource-intensive to enforce. The threat of instrument confiscation and punitive fines is disproportionate to the issues that can arise from busking and is an unwarranted interference with Freedom of Expression under Article 10 of the Human Rights Act. An ongoing legal challenge to Camden Council’s license regime under Section V powers is being heard by the Court of Appeal on November 13th. These restrictions will be open to a similar challenge.

 

3.) On a Friday and Saturday, during the hours of 10.00am and 6.00pm the council will issue a maximum of 6 x 70 minutes slots per day, per location. Do you feel this number of slots is appropriate?

 

Busking performances differ in length according to the nature of the performance and the context in which it takes place. The Keep Streets Live Campaign Best Practice Guide recommends that performers do not repeat material in the same location but move between locations. We also recommend that buskers swap and share pitches informally. This scheme will lead to more co The proposed scheme is too prescriptive because it will lead to performances being cut short arbitrarily and doesn’t take account of the nature of busking as a primarily informal and spontaneous activity. The proposed scheme is too prescriptive because it will lead to performances being cut short arbitrarily and doesn’t take account of the nature of busking as a primarily informal and spontaneous activity. Some musical performances will be longer than 70 minutes, some will be much shorter. The booking system does not allow the flexibility and informality that is part of the nature of busking.

 

4.) Of the 42 slots available, each busker will be able to pre-book two slots per day. is this an appropriate number of pre-bookable slots?

 

Having to pre-book slots is unnecessarily bureaucratic in the first instance. Buskers typically turn up to a location and make an evaluation as to whether a space is suitable for a performance. They will then negotiate with other performers and come to arrangements in an informal way. Requiring pre-booked slots means that inevitably people will not turn up to their allocated spot but it won’t be open to people who could otherwise have used it. The scheme will have to be administered which will be resource intensive. Keep Streets Live Campaign strongly recommends not having pre-booked slots at all and encouraging buskers to swap and share pitches on an informal basis.

 

5.) If all the slots have not been filled in advance, then on the day before noon a busker can take up an additional slot provided that they have not already used that same site on the same day. Is this restriction appropriate to allow fair distribution of slots?

 

 

Some buskers will have a large repertoire which would allow to play different performances at the same location on the same day. Pre-booking slots is unnecessary and will, in itself, lead to an unfair and uneven distribution of slots. Existing statutory powers can be used against buskers who cause issues by not moving. The introduction of a licensing regime with pitch allocations and pre-booked slots will greatly reduce the vibrancy and circulation of performers.

 

6.) Do you agree that the council should allow street buskers to apply for an additional street trading license?

 

 

This question relates to CDs of busker’s music. Having recordings available to the public enhances the busking experience by allowing performers to make their music available to a wider audience and allowing the public to enjoy a tangible souvenir of the busker’s performance. Nonetheless, CDs are a secondary element to busking and should therefore be made available on a voluntary basis to those who wish to take one. Best Practice Guidance agreed between Liverpool City Council and the Keep Streets Live Campaign recommends that CDs be made available for a ‘suggested and voluntary contribution’. It is emphasised that members of the public are free to take a CD without making payment, just as they are free to enjoy the performance without making payment. Requiring an additional street trading license for busking is another layer of unnecessary bureaucracy which will put off performers from registering under the scheme, and discourages buskers from making their music available to the public to the detriment of the busking experience. Whereas for a market trader the sale of stock is the primary purpose of their business, for a busker CDs are a secondary aspect of the busking performance. This is an important difference that needs to be recognised.

 

7.) If you are a busker will you be willing to pay the initial £15 fee for a period of 6 months?

 

Whilst the £15 fee in itself is not prohibitive it accompanies a huge range of terms and conditions and restrictions that, taken together, greatly inhibit the ability of working musicians to make a living on the streets. It criminalises an informal cultural pursuit, it creates obstacles for travelling performers and it attempts to impose a highly formalised set of regulations upon an informal cultural pastime which has always relied on spontaneity and democratic access to public space. Busking adds vibrancy and colour to public spaces, increases dwell time for local businesses and is an enormous part of the visitor economy to London. Musicians should not have to pay for the privilege of providing free entertainment to the general public whilst enhancing the shared public spaces of the borough. The license scheme is a misconceived attempt to address problems that have been caused by a small minority of performers who could be dealt with using existing statutory powers. We recommend that Kensington and Chelsea engage with the Greater London Authority taskforce and agree a code of conduct for busking that works for all parties. If the aim is to attract high quality performers into the borough, this scheme will achieve the opposite. It will create a narrow pool of performers who are willing to sign up to the restrictions (who may well not be buskers in the traditional sense, and will predominately only perform within the Borough), and will deter many other performers from ever visiting. Over time it will greatly diminish the vibrancy and variety of street performances on offer in this part of London

 

8.) If you are a busker would you pay £40 for a period of 4 weeks to sell associated items?

 

Whilst we welcome the fact that RBKC recognise that ‘associated items’ are a legitimate aspect of busking, we recommend that buskers do not sell CDs but make them available for a suggested and voluntary donation. A street trading licence is unnecessary to that end and the cost of it is prohibitive relative to the amount of time slots RBKC are making available for busking.

 

 

9.) Do you have any further comments concerning this draft Street Entertainment (Busking) Policy?

 

On behalf of the Keep Streets Live Campaign of which I am the founding director I will send you a PDF document containing the best practice guidance agreed between the City Council, Business Improvement District and the busking community in Liverpool over a period of five months. It aims to give businesses, buskers and residents the resources they need to resolve disputes and to allow street culture to flourish. It could be adapted for use in Kensington and Chelsea at a fraction of the cost of the imposition of the Licensing Regime that is proposed. Keep Streets Live is part of the Mayoral taskforce for busking alongside RBKC and would be very happy to work alongside your officers and other bodies such as the Musician’s Union to agree a scheme that works for all parties.