Did Oxford City Council just – accidentally – introduce draconian new laws that allow public officials to fine gay men on suspicion of cruising in a public convenience?
Despite protestations to the contrary, that appears to be the impact of a Public Space Protection Order (PSPO) that states: ‘No person shall remain in a public toilet without reasonable excuse.’
This order can be enforced by a range of officials, including a police officer, a police community support officer, designated council officers and even ’employees of other delegated organizations’.
A breach of the PSPO can be dealt with through the issuing of a Fixed Penalty Notice of up to £100, or a level 3 fine, of £1000, on prosecution.
Sexual activity in a public lavatory is already illegal in the UK, under the Sexual Offences Act 2003 (S71).
However, the wording of this PSPO creates an offence that is much wider than the act of having sex, and could potentially criminalise both individuals using public conveniences as a place to link up, as well as individuals who have, for whatever reason, agreed to meet a friend in that location.
The Manifesto Club, who are currently campaigning against PSPOs, and civil rights pressure group Liberty, argue that PSPOs are dangerous on other grounds. Before criminalizing an individual, traditional by-laws require Councils to take them to court, and prove that an offense has been committed: PSPOs, by contrast, criminalize individuals on the say-so of a petty, sometimes very junior, official.
According to Oxford Council, LGBTI issues were completely absent from their minds when they carried out a public consultation on the introduction of PSPO’s back in June 2015. Their focus was, rather, on drug-taking in public conveniences – and people sleeping in such places and offending local residents.
Councillor Dee Sinclair, Executive Board Member for Crime, Community Safety and Licensing, said: ‘The City Centre PSPO aims to make Oxford safer and more welcoming for everyone.
‘There is a long history of complaints from residents and visitors about our public toilets, including drug and alcohol abuse, vandalism and sleeping in these facilities.
‘Between January and June 2015 alone, 72 incidents were reported, including one death from a drugs overdose and two further serious overdose incidents.
‘While the focus of the PSPO is on tackling substance misuse, vandalism and sleeping in toilets, it has been drafted broadly to avoid loopholes and to tackle all potential misuse of these facilities.
‘It is not acceptable for anyone, regardless of their sexuality, to have sex in public toilets as this prevents them being used by members of the public.’
According to the consultation, 9% of respondents had seen people sleeping rough in public toilets. (and only two thirds of these, or 6%, considered that they had been directly affected by the issue). A clear majority were opposed to implementing a PSPO to deal with this issue (just 33% of those consulted felt there should be a PSPO with regard to the issue of misuse of public toilets).
A clear danger of a PSPO worded in this way is that even if the intention is not to target gay men, it paves the way for other councils, with a more overtly anti-LGBTI agenda, to introduce similar local legislation.
Professor Chris Ashford, of Northumbria University, has written extensively about the policing of sex in public spaces. He told Gay Star News: ‘It’s far from clear how Oxford City Council plan on enforcing this new measure. Will we see a return to the agent provocateur tactics of past decades that criminalized so many gay men?
‘PSPOs are a sweeping measure and one wonders if this is the most appropriate and effective response.
‘Also, irrespective of the motive of a council , it’s about who ends up getting caught up’.
A spokesperson for the Council adds: ‘An Equalities Impact Assessment was carried out for each element of the City Centre PSPO. The assessment concluded that being stopped from using public toilets inappropriately would not have a negative impact on someone because of their sexuality.’