Consuming Alcohol in Breach of a PSPO: When is the Offence Complete? Wycombe District Council v Snowball [2020] EWHC 1656 (Admin)
| Published date | 01 December 2020 |
| DOI | 10.1177/0022018320963558 |
| Date | 01 December 2020 |
| Subject Matter | Case Notes |
Case Note
Consuming Alcohol in Breach
of a PSPO: When is the
Offence Complete?
Wycombe District Council v Snowball [2020] EWHC 1656 (Admin)
Keywords
Anti-social behaviour, Public Spaces Protection Order, consuming alcohol, reasonable belief,
fixed penalty notice
At the time that the alleged offence was committed, a Public Spaces Protection Order (PSPO) made under s 59
of the Anti-social Behaviour Crime and Policing Act 2014 was in force. This prohibited any person from
consuming alcohol, or from having an open container for alcohol, in the restricted area. On 20 December
2018, the respondent was present in the area. He was holding an open can which bore the label ‘Foster’s
Lager’, and was seen to drink from it by two police constables. One of the constables reasonably believed that
the container had alcohol in it due to the label, and because the respondent refused to surrender it or to provide
an explanation as to its contents. He therefore warned the respondent that he reasonably believed him to be
consuming alcohol in con travention of the PSPO and ask ed him again to surrender th e can. When the
respondent refused once again, he was warned that he would be issued with a fixed penalty notice (FPN)
if he continued to refuse to s urrender the container si nce such behaviour amount ed to an offence. The
respondent’s continued refusal to surrender the can therefore led to him being issued with a FPN pursuant
to s 68 of the 2014 Act. At this juncture, he claimed that the can contained an orange coloured non-alcoholic
liquid and proceeded to pour it out. Although the contents of the can were never analysed, it was accepted by
the police constable that at this stage he had no longer reasonably believed that it contained alcohol.
Since the respondent did not pay the sum required by the FPN, he was charged with an offence under s
63(6) of the 2014 Act. Before the District Judge, whilst the respondent accepted that he had been awkward
with the police and had deliberately set out to give them grounds to think that he had been drinking alcohol in
breach of the PSPO, it was his contention that the requirement of reasonable belief was a continuing process.
Accordingly, when he had made the police constable aware that the can did not contain alcohol, the require-
ment to surrender it fell away and no offence had been committed. Since the District Judge accepted this
submission, he dismissed the information. In the present appeal by way of case stated, two questions were
posed for the High Court’s consideration: (i) was the offence complete when the police constable issued the
FPN given that at that time, he reasonably believed that the container which the respondent had been holding
contained alcohol?; and (ii) had the District Judge erred in holding that the offence was not then complete, that
the police constable’s reasonable belief was a continuing process so that the respondent was able to belatedly
show that there was no alcohol in the container, thereby enabling the offence to be dismissed?
Held, allowing the appeal, that on the findings of fact made by the District Judge, the various elements of
the s 63(6) offence had all been present at the time that the FPN had been issued and the offence was therefore
complete. There was nothing in the language of s 63 which warranted the finding that if a person served with a
FPN has a change of heart and cooperates, a previously complete offence is thereby erased. The District Judge
had therefore erred in law by holding that the events following the issue of the FPN could cast a retrospective
light on whether the offence had been committed. Discovering that the can did not contain alcohol would only
be relevant if the prosecution had to prov e that it did. However, the language of s 63, in pa rticular its
employment of the phrase ‘reasonably believes’ on three occasions, supported the view that Parliament was
not concerned with objective facts in the present context. The case would therefore be remitted to the
Magistrates’ Court with a direction to convict.
The Journal of Criminal Law
2020, Vol. 84(6) 630–632
ªThe Author(s) 2020
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DOI: 10.1177/0022018320963558
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