The answer is "yes". Today the High Court gave judgment in a case stated appeal from a decision of the High Wycombe Magistrates' Court. The case concerned a Respondent who had deliberately sought to mislead police officers into believing that he was drinking alcohol in a no-alcohol zone.
On arrival in the town centre (a location in which drinking alcohol was prohibited under the terms of a Public Spaces Protection Order made by Wycombe District Council), two police officers were satisfied that the Respondent was drinking from an open can of Foster's. Despite being warned that failure to surrender was an offence the Respondent declined to surrender the can or offer an explanation. The officers issued the Respondent with a fixed penalty notice (FPN) which was not paid.
The Respondent was subsequently charged with an offence contrary to s.63(6) of the Anti-Social Behaviour, Crime and Policing Act 2014. In dismissing the charges the District Judge found that the situation was akin to being issued with a parking ticket where it was later discovered that there had never been a parking restriction and consequently no offence had been committed, and the ticket had been issued in error.
Wycombe DC appealed by way of case stated, there were two questions posed by the District Judge:
- Was the offence complete when Police Constable Cummins had issued the FPN, given the finding that at that time he reasonably believed that container which the Respondent was holding had alcohol in it?
- Did the DJ err in law in holding that the offence was not then complete, that the reasonable belief of Police Constable Cummins was a continuing process so that the Respondent could 'belatedly' show that there was in fact no alcohol in the container, 'enabling me to dismiss the offence'?
Lord Justice Flaux and Elisabeth Laing J answered both of these questions in the affirmative. They held that all of the elements of the offence were present when the Respondent was issued with the FPN and at that point the offence was complete .
The Court went on to note that the Parliamentary draftsman had used the phrase "reasonably believes" three times in s.63:
"This supports our view that Parliament was not concerned with the objective facts, that is, with whether or not P is actually drinking alcohol, or actually has alcohol in his possession, no doubt because, given the likely circumstances of encounters in the street, it might be very difficult to prove whether or not alcohol was present. Instead, Parliament has focussed on the subjective, but nevertheless 'reasonable' belief of the constable or authorised person, leaving it to the good sense of the Magistrates to decide whether, in any given case, that person held a reasonable belief, or not." 
The prosecution only had to show that the required reasonable belief was held.
It is suggested that this must be right: those who enforce PSPOs must be entitled reasonably to conclude that a branded container of alcohol in fact does contain alcohol unless the contrary is shown. Without testing in a laboratory, officers have no way of telling whether a can has an alcoholic or non-alcoholic drink in it (or a combination of the two). The case was remitted back to the Magistrates' Court to enter a conviction.
Kuljit Bhogal appeared for Wycombe District Council instructed by Richard Ricks, in-house barrister.
Kuljit has appeared or advised in all of the legal challenges concerning PSPOs which have come before the courts, and has advised numerous local authorities on consultation, investigation and decision-making related to PSPOs and injunctions. The second edition of Kuljit's book, Cornerstone on Anti-Social Behaviour, which includes a chapter dedicated to PSPOs was published in May 2019.