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

The claimant 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 (notably sections 60C and 60D, and changes to sections 61, 62A, 62B and related provisions) as incompatible with Convention rights under the Human Rights Act 1998, relying on article 14 read with article 8. The court accepted there is a prima facie case of indirect discrimination affecting Romani Gypsies and Irish Travellers and considered whether the measures were justified.

The court held that the new criminal offence in section 60C and the seizure power in section 60D are, in their terms and read with the statutory guidance in section 62F, a proportionate means of protecting the rights and freedoms of occupiers and the public and were justified. In contrast, the extension of the no-return period from three months to twelve months (in section 60C(3), section 61(4ZA)(a), section 62(1A)(a) and section 62B(2)) was disproportionate because it was not adequately justified in light of the persistent shortage of transit pitches and the maximum lawful stay of three months on a transit pitch; the extension therefore compounded disadvantage to the travelling community.

This is a first-instance judicial review in which the claimant, a Romani Gypsy, sought relief under the Human Rights Act 1998 challenging amendments to Part V of the Criminal Justice and Public Order Act 1994 made by Part 4 of the Police, Crime, Sentencing and Courts Act 2022. The principal relief sought was a declaration of incompatibility and other relief directed to the compatibility of the statutory scheme with article 14 read with article 8 of the European Convention on Human Rights.

Background and parties:

• The amendments added a new offence of residing on land in or with a vehicle without consent (section 60C) and a power to seize vehicles and property (section 60D), and required Home Secretary guidance (section 62F). The 2022 Act also extended certain post-direction no-return periods from three months to twelve months in provisions including sections 61 and 62B. The claimant has experience of living in caravans and relies on the shortage of authorised transit and permanent sites as relevant context.
• The Secretary of State opposed the claim. Friends, Families and Travellers and Liberty intervened in support of the claimant. Permission for judicial review had previously been granted on the article 14 ground by Garnham J (21 July 2023). The substantive hearing took place on 23–24 January 2024.

Issues framed by the court:

• Whether the amendments amounted to unlawful discrimination under article 14 read with article 8 (direct or indirect), and if indirect discrimination was established whether it was justified.
• Whether the provisions (in particular sections 60C and 60D and the extension of no-return periods) were sufficiently precise and whether their interference with private and family life was justified and proportionate, having regard to statutory guidance and the shortage of transit pitches.

Reasoning and conclusions:

• The court rejected the submission that the measures were direct discrimination targeted at Gypsies. The consultation history and legislative context showed the measures addressed unauthorised encampments generally; the fact the measures affect Gypsies disproportionately established an arguable case of indirect discrimination which required justification.
• On the merits, the court accepted that sections 60C and 60D impose significant interferences with interests within the ambit of article 8, particularly because seizure powers can affect caravans used as homes. However, those provisions were sufficiently clear, contained material thresholds (residence/intention to reside and significant damage, disruption or distress), and were to be applied by the police having regard to statutory guidance (section 62F) and operational advice. Taking those factors together, and the legitimate aim of protecting the rights and freedoms of occupiers and the public, the court found sections 60C and 60D were justified and proportionate.
• The court reached a different conclusion in relation to the extension of the no-return period from three months to twelve months across a number of provisions (including section 60C(3), section 61(4ZA)(a), section 62(1A)(a) and section 62B(2)). The extension was held to be disproportionate because it conflicted with the statutory framework for transit pitches (maximum three-month stays), and the persistent under-supply of transit pitches made compliance unduly difficult for the travelling community. The legislature had not adequately addressed or justified that compounded disadvantage in consultation or evidence.

Remedy: the court granted a declaration of incompatibility limited to the 12-month no-return period in the specified provisions. The remainder of the claim failed.

This is a first-instance judicial review. The claim succeeds in part. The court concluded that sections 60C and 60D of the Criminal Justice and Public Order Act 1994 (as amended by the Police, Crime, Sentencing and Courts Act 2022) are compatible with the claimant’s Convention rights when applied in the light of the statutory guidance in section 62F, but that the extension of the no-return period to 12 months (in section 60C(3), section 61(4ZA)(a), section 62(1A)(a) and section 62B(2)) is disproportionate and incompatible with article 14 read with article 8. The court made a declaration of incompatibility limited to those no-return provisions and invited the parties to agree the terms of the declaration.

Permission to apply for judicial review was granted by Garnham J on 21 July 2023. This judgment is a first-instance determination in the Administrative Court (hearing dates 23–24 January 2024).