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Pro-choice? Pro-life? Pro-order and PSPOs

03 October 2019

In this article we consider Public Spaces Protection Orders and a recent Court challenge to the making of such an order.

What is a Public Spaces Protection Order (PSPO)?

The Anti-Social Behaviour, Crime and Policing Act 2014 (the ‘Act’) introduced PSPOs to deal with a particular nuisance, problem or behaviour in a particular area that is (or is likely) to have detrimental effect on the local community’s quality of life.

PSPOs are not Court orders or injunctions. They are powers given only to local authorities to issue an order where the Local Authority is satisfied that:

  • activities in a public place within their area have had a detrimental effect on the quality of life of those in the locality, or it is likely that activities will be carried on that they will have a detrimental effect; and
  • the effect, or likely effect, of the activities is, or is likely to be, of persistent and continuing, is, or is likely to be, unreasonable, and justifies the restrictions imposed by a PSPO.

The Act states a PSPO is an order that identifies the public place referred to (“the restricted area”) and prohibits specified things being done in the restricted area and/or requires specified things to be done by persons carrying on specified activities in that area.

The prohibitions or requirements must be reasonable. In considering a PSPO the Local Authority must carry out a consultation and must take account of the rights of freedom of expression and freedom of assembly in Articles 10 and 11 of the European Convention on Human Rights (ECHR).

Breach of a PSPO is a criminal offence (unless there is reasonable excuse) subject to a fine not exceeding £1000 or a fixed penalty notice.

A PSPO, or any prohibitions or requirements can be challenged by an “Interested person”, someone that lives in or regularly works in or visits the restricted area by application to the High Court of Justice.

In a recent case involving protestors, the making of a PSPO was challenged in the High Court. The High Court rejected the challenge and the Court of Appeal subsequently upheld the PSPO.

Dulgheriu and another v The London Borough of Ealing [2019] EWCA Civ 1490

This case involved protestors at the Marie Stopes UK West London Centre. The Centre provides abortion services and since around 1995 pro-life activists have demonstrated outside the Centre. Many of the pro-life activists are affiliated to a Christian organisation called the Good Counsel Network (GCN). Their main aim is to dissuade users of the Centre from having an abortion.

Members of the GCN usually attend the Centre on a daily basis. The protestors used a variety of methods to further their campaign, including handing out leaflets, displaying placards illustrating foetuses at various stages of gestation and grabbing the arms of users shouting at them and trying to prevent them entering the Centre. Local residents said it was ‘extremely stressful’ living opposite.

In 2015, pro-choice activists, including a group called Sister Supporter began to protest against the aims and methods of the pro-life supporters. They stood shoulder to shoulder with their counterparts which caused an atmosphere of tension around the Centre.

In 2017, Sister Supporter petitioned Ealing to remove the protestors. After failing to convince the opposing groups to reach a compromise, Ealing launched a public consultation in accordance with its duty under s72 of the Act including an online survey which generated over 2,000 responses.

On 3 April 2018, a substantial report (the ‘Murphy Report’) containing evidence from a broad range of sources for and against a PSPO was presented to Ealing’s cabinet recommending that a PSPO be made. The Murphy Report showed that over 80% of responses to the online consultation said the behaviour of the protestors was having a detrimental effect on the local area.

Ealing resolved to make a PSPO, which came into effect on 23 April 2018. The PSPO imposed a ‘safe zone’ around the Centre, in which the following activities were prohibited:

  • Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited to graphic, verbal or written means, prayer or counselling,
  • Interfering, or attempting to interfere, whether verbally or physically, with a service user or member of staff,
  • Intimidating or harassing, or attempting to intimidate or harass, a service user or member of staff,
  • Recording or photographing a service user or member of staff of the Clinic whilst they are in the Safe Zone,
  • Displaying any text or images relating directly or indirectly to the termination of pregnancy, and
  • Playing or using amplified music, voice or audio recordings."

The PSPO permitted a limited protest within a ‘designated area’ in the ‘safe zone’ about 100 metres from the Centre. Protests in the ‘designated area’ were subject to restrictions on the numbers of protestors (4 persons), the size of placards and shouting/amplified sound and music.

On 27 April 2018, two pro-life protestors applied to the Court to quash the PSPO on the grounds that:

  1. there was insufficient evidence for Ealing to be reasonably satisfied that the protests had had a detrimental effect on those in the locality;
  2. the terms of the PSPO were too extensive; and
  3. the PSPO constituted an unjustified interference with their rights under Articles 9 (freedom of thought, conscience and religion), 10 (freedom of expression), 11 (freedom of assembly and association) and 14 (prohibition of discrimination).

Mr Justice Turner heard the application and undertook a structured proportionality review and concluded that Ealing’s decision to make a PSPO should not be quashed in whole or in part. In coming to this decision the Judge found that:

  • the meaning of “those in locality” included occasional visitors, such as the Centre’s users;
  • on the evidence of the protestors’ activities Ealing had reasonable grounds to conclude that the behaviour had a detrimental effect on those in the locality;

On the ECHR issues, the Judge accepted that there had been a significant interference with the rights of the protestors under Articles 9, 10 and 11. However in making the PSPO Ealing had pursued a legitimate aim, namely protecting the Centre users’ rights which aim was necessary in a democratic society. The Judge rejected the argument that Ealing could have employed a less restrictive alternative and held that the PSPO did not amount to a disproportionate interference with the protestors’ rights.

In the Court of Appeal the protestors submitted that the Judge was wrong to find that "those in the locality" included occasional visitors to the area and that he failed to form his own view on the justification for the PSPO and merely followed Ealing’s assessment.

In relation to the ECHR, the protestors submitted that the Judge was wrong to find that the Centre users’ rights to respect for private and family life under Article 8 were engaged and that the Judge did not give sufficient weight to the protestors Article 9, 10 and 11 rights and failed to consider whether the PSPO could have been less restrictive.

The appeal came before Sir Terence Etherton MR, Lady Justice King and Lady Justice Nicola Davies on 16 and 17 July 2019. In a unanimous judgment, (see here) the Court of Appeal rejected the appeal and upheld the decision not to quash the PSPO.

In relation to “those in locality” in section 59 of the Act, the Court found that it was clear from the Act that Parliament had deliberately decided not to limit the scope of “those in locality” and there was no reason for the Court to do so. Ealing correctly interpreted this phrase as capable of including occasional visitors and was entitled to decide on the facts that it included the Centre users, their family members and supporters. The Court also considered that it was unrealistic to think that the Judge did not utilise the correct approach to the justification of the PSPO as he clearly considered all the evidence and information available to him at the time.

Court also held that the Article 8 rights of the Centre users were engaged. Abortion is a private and sensitive matter and is undoubtedly covered by the notion of private life under Article 8. The fact that activities were conducted in a public place did not prevent this conclusion.

In relation to the protestors’ Article 9, 10 and 11 rights the Court held that those rights were engaged, but the activities outside of the Centre constituted a serious invasion into the privacy of the Centre users and had a detrimental effect on the quality of the users’ lives. The Judge was entitled to conclude on the facts of the case that the Article 8 rights of the Centre users outweighed the Article 9, 10 and 11 rights of the protestors and the PSPO constituted a proportionate and justifiable restriction on those rights.


Whilst this case relates to PSPOs only available to a Local Authority it is relevant to any business faced with protestors and considering legal action to limit the effect of demonstrations on their business activities. In this case the Local Authority imposed an exclusion zone around the clinic which was upheld by the Court of Appeal despite the fact that peaceful protest is lawful and breach of the PSPO for example being the 5th peaceful protestor in the ‘designated area’ is a criminal offence.

Any business considering legal action against protestors will need to consider the protestors’ rights to peaceful protest and assembly and that any interference with those rights must be necessary and proportionate. Consideration should therefore be given to all of the options available to deal with the protestors’ actions including a PSPO. If the Local Authority is not prepared to make a PSPO this may be relied on when seeking an injunction order, for example under the Protection from Harassment Act 1997, to prove that there is no alternative and the injunction is necessary and proportionate.

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