The claimant, Ms Smith, is represented by Marc Willers KC and Ollie Persey of Garden Court Chambers, alongside Richard Drabble KC of Landmark Chambers.
They are instructed by Chris Johnson of Community Law Partnership (‘CLP’).
On 13 July 2023, Mr Justice Garnham granted permission for Wendy Smith, a Romani Gypsy, to proceed with her judicial review of the new enforcement powers given to the police to evict Gypsies, Roma and Travellers from unauthorised encampments.
The Police, Crime, Sentencing and Courts Act 2022 (‘the Police Act’) inserted section 60C into the Criminal Justice and Public Order Act 1994. This makes it an offence, punishable with up to three months imprisonment, for someone residing on land with a vehicle to fail to comply with a request to leave the land. The offence applies if a person is residing, or intending to reside, on land without the consent of the occupier of the land, and has, or intends to have, a vehicle (including a caravan) on the land.
The residence or intended residence must also have caused or be likely to cause significant disruption, damage, or distress. The request can be made by the occupier, a representative of the occupier or a police constable. If the person fails to leave the land or, having left, re-enters it, he or she can be arrested and his or her vehicle (which could include a caravan used as a home) can be impounded. It is a defence to show ‘reasonable excuse’ for failing to comply with a direction to leave the land.
The new offence has greatly increased the already existing powers of eviction. Parliament’s Joint Committee on Human Rights (‘JCHR’) raised serious concerns that the proposals are discriminatory and in breach of the UK’s human rights obligations. The JCHR report found that:
“The proposals self-evidently discriminate against Gypsy, Roma and Traveller people, putting at risk their right to practise their culture without being unfairly criminalised in the absence of adequate sites.”
The Council of Europe’s Advisory Committee on the Framework Convention for the Protection of National Minorities produced its fifth opinion on the United Kingdom held that:
“…criminalisation of unauthorised sites and the potential to seize property has sewn fear among communities. The Advisory Committee considers that any benefits to wider society resulting from these measures have not been adequately substantiated.”
Due to a lack of authorised sites, Ms Smith has no choice but to resort to unauthorised encampments. It is Ms Smith’s case that she, and others in her position, would always be forced to comply with a direction to leave a site in order to avoid the risk of criminalisation and the impoundment of their homes. In the absence of sufficient permanent and transit site provision, Ms Smith claims that the law has a significant “chilling effect” on the ability of Gypsies, Roma and Travellers to pursue their traditional way of life in their caravans. She argues that this is unlawful discrimination, in breach of Article 14 of the European Convention on Human Rights (‘ECHR’) read with Article 8 ECHR. The case will now proceed to a full hearing.
CLP continues to gather evidence about the discriminatory impact of the new offence on Gypsies, Roma and Travellers. If you have been impacted, please phone CLP on 01216858595.
See coverage in Local Government Lawyer.
