Wendy Smith, R (on the application of) v Secretary of State for the Home Department

Legislation creating criminal and seizure powers concerning unauthorised encampments may disproportionately disadvantage Gypsies, but that disadvantage can be justified where the provisions pursue the legitimate aim of protecting the rights and freedoms of others and contain meaningful safeguards.

In a generic challenge, the court must assess the statutory scheme realistically, including the expected compliance of police with statutory guidance, welfare considerations and reasonable-excuse defences. A shortage of transit pitches is relevant to the fair balance but does not itself require the State to provide a home or make enforcement powers unlawful.

However, extending no-return periods from three months to twelve months was disproportionate. It compounded the disadvantage caused by the shortage of transit pitches and had not been adequately recognised or addressed.

The claimant, a Romani Gypsy living in a caravan, challenged amendments made by Part 4 of the Police, Crime, Sentencing and Courts Act 2022 to Part V of the Criminal Justice and Public Order Act 1994.

She alleged that the new offence of residing on land without consent, associated seizure powers, extended no-return periods and related amendments unlawfully discriminated against Romani Gypsies and Irish Travellers contrary to article 14 read with article 8 of the Convention. The court considered separately the new sections 60C and 60D and the extensions of the no-return periods to twelve months.

1. The claim succeeded in part. The court rejected the challenge that the amendments constituted direct racial discrimination incapable of justification. The statutory scheme was directed at unauthorised encampments and the conduct associated with them, rather than at Gypsies because of ethnic origin.
2. Sections 60C and 60D of the Criminal Justice and Public Order Act 1994 were capable of pursuing the legitimate aim of protecting the rights and freedoms of others. They were sufficiently certain. Their operation was confined by requirements concerning residence, lack of consent, significant damage, disruption or distress, a request to leave, reasonable suspicion, a reasonable-excuse defence and the duty to have regard to Home Secretary guidance under section 62F.
3. The shortage of transit pitches and the effect of seizure of caravans on article 8 interests were significant. Nevertheless, in a generic challenge to the legislation, the court was entitled to assume that police would comply with the statutory guidance, including welfare and proportionality considerations. The shortage did not make the provisions unjustified.
4. The proportionality test required consideration of the importance of the objective, rational connection, whether a less intrusive measure could have been used without unacceptably compromising the objective, and the fair balance between the rights infringement and the likely benefit. The court allowed a significant margin of appreciation in assessing whether increased provision of transit pitches was a less intrusive alternative.
5. The twelve-month no-return periods in sections 60C(3), 61(4ZA)(a), 62(1A)(a) and 62B(2) were disproportionate. The three-month maximum stay on a transit pitch meant that resort to a transit pitch could no longer secure compliance, while the shortage of pitches made movement between sites unlikely. The extension therefore compounded the particular disadvantage to Gypsies. The court made, or directed that counsel agree the terms of, a declaration of incompatibility under section 4 of the Human Rights Act 1998.