Agenda item

To consider the report of the Assistant Director Environment.

The Assistant Director Environment presented the report advising Members of the key features of the implementation of a Public Spaces Protection Order (PSPO), in the city centre area of Exeter; this was a discretionary power under the Anti-Social Behaviour Crime and Policing Act 2014 that a Council could adopt and shape for local circumstances to deal with persistent anti-social behaviour that had a detrimental impact on communities. He detailed the outcome of an inclusive on-line formal consultation exercise carried out over a four month period from November 2015 to February 2016 and which had resulted in over 1,200 responses. He also explained that by its very nature the inclusive on-line consultation was not confined to citizens living and working within Exeter. This online consultation had been targeted by a campaigning petitioner on Change.org who had campaigned against many other proposed PSPOs by other councils; the 12,000 individuals signing this petition had been encouraged to take part in Exeter’s online consultation, and consequently the views of those living and working in Exeter may have been diluted by others with no particular connection to Exeter, but who had been motivated by the campaign.

The Assistant Director Environment also drew Members’ attention to representation from the Green Party that had been circulated separately to the report.

Members had previously considered a proposal for a PSPO, reported to the former Scrutiny Committee Community in 2015, and this had included proposals to restrict the following activities – intoxicants, public urination, street encampments, begging, and anti-social behaviour of individuals and groups, with powers to disperse groups. Details of the responses were contained in the report, and in light of the consultation, the provisions of the proposed PSPO had been revised to remove ‘street encampments’  entirely, and change the focus from begging to aggressive begging, which was the type of intimidating begging that most people found to be anti-social.

A revision of the proposals had included an innovative use of the inclusion of an Acceptable Behaviour Contract as an option within the Fixed Penalty Notice system, so that in most cases of escalation, any recipient would also have the option of an Acceptable Behaviour Contract (ABC) with a zero penalty fee attached. The detail of an ‘ABC’ would relate to themisdemeanour and the circumstances of the individual concerned, with lead agencies being involved to assist in the drafting of the ‘ABC’ where appropriate. Discussions had already taken place with lead agencies such as RISE (Recovery and Integration Service), Julian House, St. Petrocks, Gabriel House and Exeter Community Voluntary Services to see how best this could be achieved. This should be seen as more of a positive and restorative pathway that would help change offending behaviour rather than a punitive intervention that could result in the criminalisation of an individual.

In order to establish whether the Council had got the balance right with the revised PSPO proposals, the Assistant Director Environment also highlighted a series of four open public meetings, held on dates in December 2016, for residents and businesses within the proposed PSPO area.

Councillor Musgrave attended the meeting under Standing Order 44.  He commended the Council’s decision to revise the original PSPO proposals, but urged Place Scrutiny Committee Members not to proceed with the Order. He acknowledged residents’ concern about anti-social behaviour, and that they should have the right to go about their daily business unhindered, but equally he felt that unsupported individuals, such as the street homeless should not be penalised because of their living conditions.  He felt the implementation of this Order would fail some of the poorest and most vulnerable in our society, and the Police already had all of the necessary powers to deal with any challenging behaviour.  The introduction of a zero cost fixed penalty charge for those offenders signing up to an Acceptable Behaviour Contract would have the greatest impact on members of the street community, because of  an inability to sign up to such contracts.  He also questioned what alternative provision there was for a street homeless person caught urinating in the street, when public toilets closed at 7pm until the following morning.

Councillor Musgrave suggested that the Council was setting itself up to fail by the virtue of the local authority picking up work that the Police no longer appeared to have the resources to do. He considered the risks associated with implementing this Order, including the possibility of challenge to the validity of the Order, by way of appeal to the High Court, which could be an expensive and embarrassing exercise for the City Council.  In his view, members of the street community would be disproportionately and adversely impacted by enforcement proposals. The homeless charity ‘Crisis’, had suggested that 80% of people who engaged in begging were genuinely homeless. The remaining 20% were vulnerable in some way and likely to have either mental health conditions and or drug or alcohol addictions. Exeter had established excellent initiatives such as Sleep Safe which would be impacted, by this PSPO.  

Councillor Musgrave asked Members to consider an alternative approach:- 

1. use the Council’s communication resources to highlight the underfunding across the public sector.
2. use existing legislation and the Police to deal with issues arising from anti-social behaviour.
3. open public toilets 24 hours a day and consider portable toilet solutions at late night reveller sites.
4. a reallocation of any financial and administrative resources identified for the implementation of the PSPO for prevention initiatives (such as Sleep Safe).
5. a review of existing budgets to establish whether additional funds could be identified to support initiatives such as Sleep Safe or other initiatives.
6. a meeting to be arranged with representatives from the Police, Devon County Council, the NHS and Her Majesty Courts Services (HMCS) to develop a cross department strategy, jointly funded, to tackle issues of anti-social behaviour, focusing on prevention rather than enforcement.

The Assistant Director Environment responded to some of the main points made by Councillor Musgrave:-

• the existing Vagrancy Act 1824, was an archaic and unwieldy piece of legislation that did not distinguish between passive and more aggressive forms of begging - it criminalised begging, with no option of a Fixed Penalty Notice or an Acceptable Behaviour Contract to discharge liability.
• there was currently no power to stop the use of ‘legal highs’ in a public place. The Acceptable Behaviour Contract (ABC) could be used as an additional and positive intervention tool to work with addiction services offering a positive pathway for the individual.

• concerns around the Change.org issue, should not be confused with attempts to influence the consultation by an individual making multiple submissions, as although there was evidence of the latter, this was limited, and multiple submissions by one individual was not thought to have influenced the overall results substantially.

• the four open public meetings  held in December were well-publicised, with individual flyers going to every household within the PSPO area and beyond, many posters being put up in key notice boards and shops, publicity in the Express and Echo, on the Council website, and notice being put out via key networks.  The Police had also attended those meetings.  The meetings were not part of the formal consultation, nor were they a ‘ sleight of hand’ as had been suggested, they were organised to  further explain the revised restrictions, how the revised PSPO would operate, and to answer any questions from the floor. They had been purposefully held in public venues within the proposed PSPO area to engage with local residents and businesses. There had been a robust and healthy debate at all four meetings, with some challenging questions, but in the end 89% supported the revised PSPO of those who had participated in indicating their support or opposition.

• the PSPO provisions were not a tool for replacing Police resources with Council resources, they were a flexible tool that could be crafted by a Council to deal with the local context. The Police would be the principal agency using the PSPO powers on the front-line, as a more appropriate intervention tool to the other powers they may use. In general the PSPO was likely to have a deterrent effect, and in many cases would allow a timely intervention. The inclusion of an Acceptable Behaviour Contract within the Fixed Penalty Notice would offer a positive and restorative pathway that was more likely to change offending behaviour in a sustained way, and reduce future demand on scarce resources. It avoided the use of other legislative tools that resulted in the criminalisation of an individual.

• there was a possible risk of displacement of anti-social behaviour, but both the Council and the Police would  monitor this and intervene if appropriate. The issue with St. Thomas was that residents felt that there was already chronic anti-social behaviour adjacent to the boundary of the proposed PSPO, and wanted the boundary extended to encompass these areas - they were not complaining that the PSPO would worsen the situation.
• there would be a significant cost to keeping public toilets open 24 hours a day. The report suggested piloting the extension of opening times of some city centre toilets, but that in itself would not prevent street urination. Street urination was primarily a late night time economy issue with males moving from one drinking establishment to another; although they were able to use toilets at these establishments, many chose not to do so. The Council’s public toilets were closed at night due to the high cost of dealing with misuse such as vandalism and drug litter. The £1000 cost of implementing the PSPO would only go as far as keeping the Council’s public toilets open for one day.

The Environmental Health and Licensing Manager also addressed Councillor Musgrave’s reference to the Police failure to respond to 75 cases reported to them, and these related to incidences in the city centre referred to them by the Council’s CCTV Control Room, and not as a result of a 999 call. The Police made an assessment on each of those calls on the basis of public threat, risk and harm, and sometimes it meant that resources were diverted to higher priority issues, and/or a further call was received that the incident was over, negating the need for the Police to attend.   He also referred to regular meetings that were already taking place with the Police to discuss individual cases of anti-social behaviour, which might currently result in a more punitive consequence, but which could be broadened to include other lead agencies and the more restorative pathway of an Acceptable Behaviour Contract with the PSPO powers.

Members also made the following comments:-

• engagement with Sleep Safe had revealed that despite having accommodation available, some individuals still chose to sleep outside. The number of street homeless sleeping rough was 42 at the last official count. The lowest number sleeping in Sleep Safe was 9 and the highest sleeping there in a single night was 29.
• fear for one’s personal safety was a consequence of aggressive begging, particularly for women in the city centre who felt unsafe when approached.

·         a pilot for opening toilets 24/7 would be welcome, but it was acknowledged that  people would likely only be prepared to walk a short distance for a toilet - temporary toilet provision in hot-spots on particularly busy nights might prove useful.  He felt that toilets being closed from 7.00pm to 7.00am were potentially penalising the street homeless community. (The Assistant Director Environment advised that street urination was not seen as a problem of street homeless, rather it was people overtly relieving themselves as part of the night time economy; people discretely relieving themselves in the early morning when no one was around were unlikely to cause offence and face an intervention under the PSPO).

·         St David’s Ward had traditionally always been a challenging area.

·         the City Council made a valuable contribution to the efforts made to assist the homeless in the city, and that whilst the Member originally had some concerns for the potential for social injustice, those concerns had now been put to rest - he had found the report to be objective and well written, and thought the PSPO offered an additional, non-criminalising tool for the Police to use.

At the invitation of the Chair, Police Inspector Simon Arliss advised that the existing powers of the Police were sometimes unwieldy, and often did not allow an early intervention to defuse things because a higher threshold of harm had to be reached for those existing powers. This inevitably resulted in the criminalisation of an individual for non-compliance, which may not be the most beneficial outcome for the individual nor society. They had to use their powers proportionately, appropriately and compassionately, and they would do so with the PSPO.  Although the Police had limited resources, the emphasis now was on partnership working, including the local authority and others, and he welcomed the opportunity for a positive outcome that the PSPO could bring in diverting offenders on a different pathway from one that criminalised them.

It was noted that this report would go to Executive and then to Council for consideration in February.  If approved, the PSPO would be given a commencement date of June 2017, in order to allow time for the necessary publication, signage, and development of a joint protocol for interventions under the PSPO, together with joint training of authorised persons.

Place Scrutiny Committee supported the proposals for the Implementation of a Public Spaces Protection Order and requested Executive support and recommend to Council the approval of the following :-

(1)     implementation of a Public Space Protection Order, in the area defined by the map (attached at Appendix 1A), with the restrictions (contained in the attached Appendix 1B), for a period of three years from the commencement date of 1 June 2017;

(2)     this Order would replace the Designated Public Places Order that currently exists in the City Centre to control the problematic consumption of alcohol within public places, and which is contained within the boundary of the proposed Public Spaces Protection Order;

(3)     officers work with the Police and Exeter Community Safety Partnership in the development of an enforcement and positive/restorative pathway protocol for the Public Spaces Protection Order, together with a supporting training programme. The purpose of this is to provide clear guidance on what action is deemed appropriate, proportionate, reasonable and compassionate, with particular regard given to the rights of freedom of expression and freedom of assembly as set out in articles 10 and 11 of the Convention on Human Rights;

(4)     the adoption of a zero penalty fee where a recipient of a fixed penalty notice issued for a breach or the PSPO commits to the option of an Acceptable Behaviour Contract contained within and offered by the respective fixed penalty notice;

(5)     that any funding received by the Council from fixed penalty notices issued for a breach of any PSPO will be ring-fenced for programmes to address anti-social behaviour and the funding administered by the Exeter Community Safety Partnership; and

(6)     officers to report back to Place Scrutiny Committee after six months of any Order being implemented as to its operation and effectiveness in reducing the problematic anti-social behaviour it seeks to manage together with any negative or unforeseen impacts that it may develop, and any recommendations for varying or discharging the Order.