Extension in no return period to 12 months for sites covered by request to leave incompatible with Human Rights Act, High Court finds

The High Court has ruled that new police powers introduced by the Police, Crime, Sentencing and Courts Act 2022 are incompatible with the Human Rights Act 1998 as they constitute unjustified race discrimination against travellers and gypsies.

In Wilkinson, R (On the Application Of) v London Borough of Enfield [2024] EWHC 1193 (Admin), Mr Justice Swift dismissed all of the claimant's challenges except for one ground that contested a change that increased the non-return period for gypsies and travellers directed to leave a site from three months to 12 months.

The case was brought by a Romani Gypsy who presently lives in a caravan on a layby, with the agreement of the local authority. 

The arrangement is not settled, and she fears that if the agreement were to be withdrawn, she would be forced to resort to unauthorised encampment.

She was supported by the submissions of two intervening campaign groups, Liberty, and Friends, Families and Travellers.  

Her claim contended that amendments to provisions in Part V of the Criminal Justice and Public Order Act 1994 (the 1994 Act) by Part 4 of the Police, Crime, Sentencing and Courts Act 2022 (the 2022 Act) were incompatible with the Convention rights protected by the Human Rights Act 1998 because they give rise to discrimination that either cannot be justified, or is not justified. 

It also argued that the provisions added to the Act were not justified for the following reasons:

1. They do not pursue a legitimate objective. 
2. There is insufficient evidence of the need for further measures going beyond those already in Part V of the 1994 Act. 
3. The new measures are unnecessarily wide and, so far as concerns sections 60C and 60D, are insufficiently certain, rendering them vulnerable to misuse. For example, requests by occupiers of land to leave might be made maliciously or motivated by discrimination. It is further submitted that the width of sections 60C and 60D will have a "chilling effect" on Gypsies, deterring them from their nomadic life. 
4. Overall, the amendments do not represent a fair balance between the rights and freedoms of Gypsies and the rights and freedoms of others, in particular, given the present shortage of transit pitches and the lack of progress in increasing the number of transit pitches. The provision of additional pitches would be an obvious alternative and less intrusive means of addressing the problem of unauthorised encampments. 

The judge dismissed the challenge, except for the argument relating to the change to the non-return period from three to 12 months.

Section 60C 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. 

Under section 60C, a person issued with a request to leave by an owner or occupier of land will commit an offence if they re-enter the land with the intention of residing there within the prohibited period of 12 months.

The claimant also challenged amendments to section 61 and section 62A of the CJPO Act that similarly extended the prohibited period of return to land covered by requests to leave under those provisions from three to 12 months.

Describing their argument, the judge said: "The Claimant submits that the decision to extend the non-return periods is largely unexplained, and that the mismatch between the 12-month period and the 3-month maximum stay at a transit pitch is a matter calling for explanation as it means that Gypsies will no longer be able to avoid the risk of criminal penalty by resort to transit pitches.

“The position might be different if transit pitches were readily available: moving between several different pitches over the course of a 12-month period would be a feasible option. But the evidence shows this is not the position."

As such, the increased protection to land owners given by the 12-month no-return periods "places a disproportionate burden on Gypsies," the claimant argued. 

They added that it expands the scope of the criminal penalties and at the same time makes it more difficult to comply with the law.

The judge accepted the submission, noting that: "The point here is not simply that the no-return periods have been extended. That of itself does revisit the balance struck between the property rights of landowners and occupiers and the interest of Gypsies, but if this point stood alone, the likely success of the submission that the change produced a disproportionate outcome would be in the balance."

He added: "The matter that is decisive in the claimant's favour is that the extension of the no-return period of itself narrows the options available to comply with the new requirement. 

"Resort to a transit pitch will no longer suffice as the maximum stay on a transit pitch is 3 months. The under supply of transit pitches renders it much less likely that the opportunity exists to move from one to another. 

"In this way, extending the no-return period not only puts Gypsies at particular disadvantage but also and of itself, compounds that disadvantage."

The judge found that the claim succeeded but only so far as concerns the submission on the duration of the no-return periods. The remaining part of the claim failed. 

"I will make a declaration of incompatibility directed to sections 60C(3), 61(4ZA)(a), 62(1A)(a) and 62B(2) of the 1994 Act in so far as they identify a 12-month no-return period," he said. 

Marc Willers KC, lead counsel for the claimant, said: "This is a hugely significant judgment. In granting the declaration of incompatibility, the Court recognised that there is a lack of lawful stopping places for Gypsies and Travellers and that unless the government increases provision, the law as currently drafted will amount to unjustified race discrimination."

Chris Johnson, the claimant's solicitor, commented: "I am delighted for Ms Smith. Key parts of the enforcement powers introduced by the Police Act have been found to be unlawful race discrimination against Gypsies and Travellers. The National Police Chiefs Council never wanted these new powers and following this judgment, it is hard to see what the new powers will add in practice. I hope that Parliament takes this opportunity to look again at the new powers as a whole."

Adam Carey