On 14 May, the UK High Court ruled that aspects of the Criminal Justice and Public Order Act 1994 (1994 Act), which were introduced by the Police, Crime, Sentencing and Courts Act 2022 (2022 Act), violated Article 14 (prohibition of discrimination) read in conjunction with Article 8 (the right respect for private and family life) of the European Convention on Human Rights (ECHR). The court held that the 1994 Act amounted to unjustified discrimination against the “Gypsy” and Traveller communities and issued a declaration of incompatibility under the Human Rights Act 1998 (ECHR enacting legislation).
The 2022 Act changed aspects of the 1994 Act giving the police greater power to evict/remove people who occupy land without the consent of the owner and seize any property which is thought to belong to the occupier, i.e. vehicles (including caravans). Should an occupier be on the land in a vehicle and refuse to comply with a request to vacate land they can be sentenced with up to three months in prison. Once removed the occupier cannot return to the land for twelve months, this is an extension from the previous period of three months found within the 1994 Act. The claimant in the case, a Romani “Gypsy”, alleged that changes made by the 2022 Act, although not explicitly directed at the “Gypsies” and Traveller communities, amounted to indirect discrimination based on race as those in “Gypsies” and Traveller communities are the most likely to fall afoul of the law. This is because members of these communities often live nomadic lives that involve setting up prolonged caravan encampments. While the ECHR does not place a blanket ban on discrimination in any circumstance, any discrimination does need to pursue a legitimate objective. The claimant alleged that the act goes beyond the legitimate aim of protecting landowners. In particular, the claimant objected to the expansion of the exclusion period from three to twelve months. They argued that not only was no reason for the extension given but also that the expansion prevents “transit pitches” (a practice where “Gypsies” and Travellers will stay at a site for short periods before moving to a new one in a rotation of sorts). The claimant argued that this along with the increased penalties amounts to a disproportionate burden on “Gypsies” and Travellers.
In agreeing with the claimant, the High Court stated that while the increase in the exclusion period from three to twelve months was not by itself discrimination, it makes complying with the law extremely difficult and potentially even impossible as there are not enough available legal options. The judge stated, “In this way, extending the no-return period not only puts Gypsies at particular disadvantage but also and of itself, compounds that disadvantage”.
The ruling is a significant victory for those in the “Gypsy and Traveller communities. Abbie Kirkby, the Head of Policy and Public Affairs at the organization, Friends, Families and Travellers called the ruling was “triumph” as, “The new police powers are part of a wider hostile environment against Gypsies and Travellers, particularly for families who have nowhere else to stop.” Parliament will now have to review the flagged provisions and ensure their compliance with the ECHR.
Click here for the link to Smith v Secretary of State for the Home Department [2024] EWHC 1137 judgement