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Cite as: [2011] ECHR 289
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
31845/10
by Sharon HORIE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 1 February 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having regard to the above application lodged on 26 May 2010,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Sharon Horie, is a British national who was born in 1961 and lives in Dorset. She was represented before the Court by Mr C. Johnson of the Community Law Partnership, a lawyer practising in Birmingham.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, a New Traveller (sometimes known as “New Age Travellers”), has pursued a nomadic way of life since 1982. She lives in vehicles with her three children.
4. On 29 January 2007 the applicant, together with a group of New Travellers, established an unauthorised camp in Dorset on woodland known as Hethfelton Wood. Hethfelton Wood is vested in the Secretary of State for the Environment, Food and Rural Affairs (“SSEFRA”) and managed by the Forestry Commission.
5. In May 2007 SSEFRA made an application for a possession order in relation both to Hethfelton Wood and to thirteen separate woods in Dorset which were owned by it and managed by the Forestry Commission. These woods were spread over an area of Dorset around twenty-five miles east to west and ten miles north to south. In addition, SSEFRA also sought an injunction preventing the applicant and other travellers from entering or occupying any of those woodlands.
6. On 3 August 2007 a Recorder granted an order for possession against the applicant in respect of Hethfelton Wood. However, he refused to make any wider order for possession or to grant the injunction sought by SSEFRA. Although he accepted that he had jurisdiction to make such orders, and that there was a certain inevitability that the applicant would continue to trespass on Forestry Commission land, he considered it inappropriate to do so primarily because the Commission was not prepared to assure him that consideration would be given to the statutory Guidance on Managing Unauthorised Camping (see paragraphs 16 – 18 below).
7. SSEFRA appealed against the Recorder’s decision not to grant the wider order for possession or the injunction. The Court of Appeal allowed the appeal and ordered that SSEFRA “do recover” the other woods and that each of the defendants “be restrained from entering upon, trespassing upon, living on or occupying” any of the other woods. In her judgment, Lady Justice Arden followed the reasoning in the earlier decision of Secretary of State v Drury [2004] EWCA Civ 200, in which the Court of Appeal held that an order for possession could, in appropriate cases, extend to land not forming part of, or contiguous with, or even near, the land actually occupied by the trespassers. She stated that:
“The first issue is whether, under Drury, the grant of a possession order in respect of additional sites must follow if the real danger of occupation is shown or whether the court has some general discretion. In my judgment, the court has discretion. Once the Drury criterion is satisfied, there is no reason why the owner of land who seeks an order for possession of sites which have not yet been occupied, but which there is cogent evidence to show are in real danger of being occupied, should be in a better position than an owner who seeks possession of land in the case of an actual trespass. However, as where a possession order is made in cases of actual trespass, once the title of the claimant and the trespass by the defendants are proved, and the Drury criterion is satisfied, the court should in my judgment only exercise its discretion to refuse an order in exceptional circumstances.
As to what can constitute an exceptional circumstance for this purpose, there is no reason why it should not, in an appropriate case, include the failure to perform an obligation imposed by public law.
In this case, however, the highest the obligation in public law can be put is an obligation to consider the acceptability of an encampment once the encampment has occurred. The obligation is to be found in para. 5.4 of Guidance on Managing Unauthorised Camping dated February 2004, set out above. The factors which the public body must consider are factors which relate to the site occupied and not, for example, to other possible sites. It follows that the exercise of the court’s discretion should not be driven by the risk of "regular and rapid evictions" (c.f. [98] of the recorder’s judgment). The court must focus on the considerations specific to the encampment on the particular site with which it is concerned. The Guidance does not impose an obligation to tolerate the trespass where the options have been appropriately considered and toleration has been rejected.
If the court is concerned with any of the factors in the government guidance, the appropriate time for the court to consider them is when the court is considering the date for enforcement of the possession order. Accordingly, in my judgment, the recorder should have extended the possession order to the further sites and it is not a breach of his public law obligations for the Secretary of State to apply for an extended possession order at this stage.”
8. With regard to the grant of an injunction, Lady Justice Arden considered that:
“The grant of an injunction is undoubtedly discretionary but, in my judgment, in a society governed by the rule of law, the court should grant an injunction necessary to uphold legal rights against a threatened invasion unless there is some factor which is sufficiently weighty to displace this general rule. Accordingly, I start from the premise that the injunction in this sort of case should normally be granted. It follows that I consider that the recorder erred in the exercise of his discretion because he applied a different principle and because he refused an injunction principally because (in error) he had refused the wider order. Therefore it falls to this court to exercise the discretion afresh.
Have the respondents identified a factor of sufficient weight to displace the general rule? There are essentially two points. First, there are the public law obligations of the Secretary of State under para. 5.4 of the Guidance on Managing Unauthorised Camping. These are obligations which overlay, and not displace, the Secretary of State’s rights of property. I would expect the Secretary of State to have appropriate regard for his obligations and to the difficulties of travellers so that no question of enforcement arises if it would be contrary to his public obligations. However, the effect of the responsibilities in public law is a matter which can be considered by the Secretary of State and if necessary by the court at the time of enforcing any injunction (as explained by Wilson J in [23] of his judgment in Drury the occupiers will in practice have an opportunity to make an application to the court for a stay against a threatened eviction under a possession order and so the same point applied to the enforcement of that order too).
Turning to the Guidance on Managing Unauthorised Camping, I do not consider that para. 5.4 is to be interpreted as preventing the Secretary of State from obtaining orders of the court in the first place where that is otherwise appropriate: the grant of an injunction does not diminish the Secretary of State’s public law obligations. There is thus no reason to withhold the grant of an injunction on that account.
The second point is the question whether the grant of an injunction would be disproportionate and have the undesirable effect of criminalising the respondents. In my judgment, the grant by the court, in a society governed by the rule of law, of an order to protect an established right cannot, in the absence of some countervailing right (and none is asserted here), be characterised as disproportionate. As to the effect of criminalising the respondents, in fact the position is that offences under the byelaws may well already have been committed. Irrespective of the byelaws, an injunction is not directed to the traditional way of life of travellers, but at acts of trespass which are against the law. Of course it may be said that to grant an injunction against a group of travellers who have all been co-operative (except for their failure to remove their encampment) would be heavy-handed and liable to exacerbate a situation but those points go to enforcement. The Secretary of State in relation to any order for enforcement of an injunction would have a discretion, just as a prosecuting authority has the discretion, whether to proceed at all. There is no reason to think that that discretion would not be exercised in accordance with his obligations in public law. An injunction might properly be refused if it were merely duplicative of a possession order. However, the remedies are different and that is not a good objection.”
9. However, Wilson LJ dissented on this latter point on the ground that it would have been disproportionate to grant an injunction in addition to a possession order. He stated that:
“Arden LJ has set out, at [28] above, the paragraph, namely [99], in which the recorder explained his refusal to grant an injunction. Her conclusion, at [53] above, that the recorder "refused an injunction principally because (in error) he had refused the wider order" is fair so far as it goes. But perhaps we should remember that he also offered reasons for his refusal to grant the injunction even on the hypothesis that it was appropriate to make the wider order. Such reasons were that an injunction would criminalise the defendants; that, in terms of enforceability, it would add nothing but the sanction of imprisonment; and that it would thus be disproportionate. To be pedantic, the defendants already commit a criminal offence whenever they begin to camp on land managed by the Commission (see [68] above); but the recorder’s point was that the quasi-criminal sanction of committal for contempt added nothing of value for the Secretary of State to his ability to secure clearance of the land pursuant to the extended order. The recorder’s conclusion in this regard was wholly in accordance with the thinking of this court in the case of Drury; and I find myself unable to discern any ground on which this court could interfere with the way in which, on that hypothetical basis, he explained his refusal to exercise his discretion to grant the injunction. Indeed, on the contrary, had I been in his place, I would have exercised the discretion in precisely the same way and for the same reason.”
10. The applicant and another appealed to the Supreme Court. The Supreme Court concluded that the rules of court did not permit the grant of a wider possession order. In particular, it held that such an order would be inconsistent with the very nature of a possession order as the applicant was not in occupation of any part of the other woods. In this respect, the Supreme Court held that Drury had been wrongly decided.
11. However, the Supreme Court held that it was entirely appropriate for the Court of Appeal to have granted the injunction. Lord Neuberger noted that:
“Obviously, the decision whether or not to grant an order restraining a person from trespassing will turn very much on the precise facts of the case. Nonetheless, where a trespass to the claimant’s property is threatened, and particularly where a trespass is being committed, and has been committed in the past, by the defendant, an injunction to restrain the threatened trespass would, in the absence of good reasons to the contrary, appear to be appropriate. “
12. With regard to the relevance of the 2004 Guidance, Lord Neuberger stated that:
“As I have already mentioned, it has been conceded by the Secretary of State throughout these proceedings that the Commission is obliged to comply with the 2004 Guidance, and that failure to do so may vitiate its right to possession against travellers trespassing on land it manages. On that basis, there is some initial attraction in the appellants’ argument that, if the 2004 Guidance ought to be complied with before the injunction is enforced, it would be inappropriate to grant the injunction before the Guidance was complied with. After all, now the injunction has been granted, the defendants would be in contempt of court and prone to imprisonment (once the appropriate procedures had been complied with) if they encamped on any of the other woods.
However, I am of the opinion that the Court of Appeal was right to conclude that, even in the light of the Secretary of State’s concession, the 2004 Guidance did not present an obstacle to the granting of an injunction in this case. The Guidance is concerned with steps to be taken in relation to existing unauthorised encampments: it is not concerned with preventing such encampments from being established in the first place. The recommended procedures in the 2004 Guidance were relevant to the question of whether an order for possession should be made against the defendants in respect of their existing encampment on Hethfelton. However, quite apart from the fact that they are merely aspects of a non-statutory code of guidance, those recommendations are not directly relevant to the issue of whether the defendants should be barred from setting up a camp on other land managed by the Commission. Accordingly, I do not see how it could have justified an attack on the lawfulness of the Secretary of State seeking an injunction to restrain the defendants from setting up such unauthorised camps. At least on the basis of the concession to which I have referred, I incline to the view that the existence and provisions of the 2004 Guidance could be taken into account by the Court when considering whether to grant an injunction and when fashioning the terms of any injunction. However, I prefer to leave the point open, as it was, understandably, not much discussed in argument before us.
Even if the 2004 Guidance was of relevance to the issue of whether the injunction should be granted, it seems to me that it could not be decisive. Otherwise, it would mean that such an injunction could never be granted, because it would not be possible to carry out up-to-date welfare enquiries in relation to defendants who might not move onto a wood which they were enjoined from occupying for several months, or, conceivably, even several years, after the order was made. As Arden LJ held, particularly bearing in mind that it purports to be no more than guidance, the effect and purpose of the 2004 Guidance is simply not strong enough to displace the Secretary of State’s right to seek the assistance of the court to prevent a legal right being infringed. Further, the fact that welfare enquiries were made in relation to the defendants’ occupation of Hethfelton by social services means that the more significant investigations required by the 2004 Guidance had been carried out anyway.
Following questions from Lady Hale, it transpired for the first time in these proceedings that, at the time of the issue of the claim, the Commission had (and has) a detailed procedural code which is intended to apply when there are travellers unlawfully on its land, and that this code substantially followed the 2004 Guidance. It therefore appears that the Commission has considered the 2004 Guidance and promulgated a code which takes its contents into account. On that basis, unless it could be shown in a particular case that the code had been ignored, it appears to me that the Commission’s decision to evict travellers could not be unlawful on the ground relied on by the appellants in this case. However, it appears to me that failure to comply with non-statutory guidance would be unlikely to render a decision unlawful, although failure to have regard to the guidance could do so.
If the defendants were to trespass onto land covered by the injunction, the Commission would presumably comply with its code before seeking to enforce the injunction. If it did not do so, then, if justified on the facts of a particular case, there may (at least if the Commission’s concession is correct) be room for argument that, in seeking to enforce the injunction against travellers who have set up a camp in breach of an injunction, the Secretary of State was acting unlawfully. It is true that this means that, in a case such as this, a defendant who trespasses in breach of an injunction may be at risk of imprisonment before the Commission has complied with the 2004 Guidance. However, where imprisonment is sought and where it would otherwise be a realistic prospect, the defendant could argue at the committal hearing that the injunction should not be enforced, even that it should be discharged, on the ground that the recommendations in the 2004 Guidance have not been followed.
Accordingly, on this point, I conclude that, even assuming (in accordance with the Secretary of State’s concession) that the Commission’s failure to comply with the 2004 Guidance may deter the court from making an order for possession against travellers, it should not preclude the granting of an injunction to restrain travellers from trespassing on other land. However, at least in a case where it could be shown that the claimant should have considered the 2004 Guidance, but did not do so, the Guidance could conceivably be relevant to the question whether an injunction should be granted (and if so on what terms), and, if the injunction is breached, to the question of whether or not it should be enforced (and, if so, how). In the event, therefore, the grant of an injunction was appropriate as Arden and Pill LJ concluded (and the only reason Wilson LJ thought otherwise, namely the existence of the wider possession order, no longer applies).”
13. On confirmation by the Supreme Court of the injunction, and for the sake of her children’s education, the applicant moved to bricks and mortar accommodation. However, she retained her living vehicle with a view to returning to a nomadic way of life once her children’s education was completed.
B. Relevant domestic law and practice
1. Quia Timet Injunctions
14. Quia timet injunctions are designed to restrain wrongful acts which are threatened or imminent but which have not yet been commenced. Consequently, the quia timet injunction does not require that some right of the applicant has been affected, only that there is a risk of it being affected. Such an injunction is usually only granted where there is a real risk of detriment: “a mere vague apprehension is not sufficient to support an action for a quia timet injunction. There must be an immediate threat to do something” (Graigola Merthyr Co. Ltd. v Swansea Corporation [1929] AC 344, § 353).
15. In a case such as the present a quia timet injunction would be most usually enforced by imprisonment and/or the sequestration of land. However, the domestic courts have generally been slow to make such orders in situations where they would not be willing to enforce the injunction by imprisonment (South Buckinghamshire District Council v Porter [2003] UKHL 26).
2. Guidance on Managing Unauthorised Camping (2004)
16. The overall objective of the Guidance is to assist local authorities, police and others to tackle unauthorised camping and to minimise the disruption it can cause.
17. The report notes that:
“There are three main Gypsy/Traveller groupings in England: traditional English (Romany) Gypsies, traditional Irish Travellers, and New Travellers. The first two groupings are accepted as ethnic minorities for the purposes of race relations legislation.”
18. With regard to the provision of sites, the Guidance notes that:
“4.1 Local authorities do not have a duty to provide sites for Gypsies. They do, however, have the power to do so (under s24 of the Caravan Sites and Control of Development Act 1960). Circulars 1/94 and 18/94 both encourage authorities to consider the need for site provision. Local Planning Authorities essentially control the creation of new public and private authorised sites through development plan policies and development control.”
19. The report further notes that:
“5.4 Unauthorised encampments are almost always, by definition, unlawful. However, while there are insufficient authorised sites, it is recognised that some unauthorised camping will continue. There are locations, however, where encampment will not be acceptable under any circumstances. Each encampment location must be considered on its merits against criteria such as health and safety considerations for the unauthorised campers, traffic hazard, public health risks, serious environmental damage, genuine nuisance to neighbours and proximity to other sensitive land-uses.
... ... ...
5.7 Local authorities may have obligations towards unauthorised campers under other legislation (mainly regarding children, homelessness and education). Authorities should liaise with other local authorities; health and welfare services who might have responsibilities towards the families of unauthorised campers. Some form of effective welfare enquiry is necessary to identify whether needs exist which might trigger these duties or necessitate the involvement of other sectors, including the voluntary sector, to help resolve issues. The police and other public bodies who might be involved in dealing with unauthorised encampments do not have comparable duties but must still, as public servants, show common humanity to those they meet.
5.8 The Human Rights Act (HRA) applies to all public authorities including local authorities (including town and parish councils), police, public bodies and the courts. With regard to eviction, the issue that must be determined is whether the interference with Gypsy/Traveller family life and home is justified and proportionate. Any particular welfare needs experienced by unauthorised campers are material in reaching a balanced and proportionate decision. The human rights of members of the settled community are also material if an authority fails to act to curb nuisance from an encampment.
... ... ...
5.19 Decisions about what action to take in connection with an unauthorised encampment must be made in the light of information gathered. Decisions must always be:
‘Lawful’ - that is in line with local policy and procedures, taking into account relevant considerations and not taking into account the irrelevant.
‘Reasonable’ in the legal sense of not being perverse or irrational in the light of the evidence available.
‘Balanced’ in that they take account of the rights and needs of both the settled community and Gypsies and Travellers.
‘Proportionate’ - what is proportionate will vary according to the precise circumstances of each encampment, including the nature of the location and the behaviour and needs of the unauthorised campers.
6.23 Case law has determined that all enforcement measures must be proportionate in the context of the Human Rights Act, and in particular the Gypsy/Traveller’s rights under Article 8. Guidance on using planning enforcement powers is available in Circular 10/97, Planning Policy Guidance 18: Enforcing Planning Control and Enforcing Planning Control: Good Practice Guide for Local Planning Authorities.”
COMPLAINTS
20. The applicant complained that the decision to grant the injunction violated her rights under Article 8 of the Convention as it impacted on her ability to pursue her way of life as a New Traveller. She argued that Article 8 imposed on the State a positive obligation to facilitate the gypsy way of life (Chapman v. the United Kingdom [GC], no. 27238/95, BAILII: [2001] ECHR 43, ECHR 2001 I and Connors v. the United Kingdom, no. 66746/01, BAILII: [2004] ECHR 223, 27 May 2004) and in granting such a wide-ranging injunction the authorities were acting in violation of this obligation.
21. The applicant further complained that the domestic courts failed to consider the issue of proportionality before granting the injunction. In particular, she submitted that the House of Lords upheld the Court of Appeal’s decision in relation to the grant of an injunction without express consideration of proportionality.
THE LAW
22. The applicant complained that the granting of an injunction violated her rights under Article 8 of the Convention. Article 8 provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. General principles
23. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued. While it is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to review by the Court for conformity with the requirements of the Convention (see, among other authorities, Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, BAILII: [1999] ECHR 72, 27 September 1999, § 88, ECHR 1999 VI).
24. In this regard, a margin of appreciation must, inevitably, be left to the national authorities, who by reason of their direct and continuous contact with the vital forces of their countries are in principle better placed than an international court to evaluate local needs and conditions. This margin will vary according to the nature of the Convention right in issue, its importance for the individual and the nature of the activities restricted, as well as the nature of the aim pursued by the restrictions. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, BAILII: [1981] ECHR 5, § 52, Series A no. 45; Gillow v. the United Kingdom, judgment of 24 November 1986, § 55, Series A no. 109). On the other hand, in spheres involving the application of social or economic policies, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that “[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation (Buckley v. the United Kingdom, judgment of 25 September 1996, BAILII: [1996] 23 EHRR 101, § 75 in fine, Reports of Judgments and Decisions 1996-IV). The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Hutten-Czapska v. Poland [GC], no. 35014/97, BAILII: [2006] ECHR 628, § 166, ECHR 2006 VIII; Mellacher and Others v. Austria, judgment of 19 December 1989, BAILII: [1989] ECHR 25, § 45, Series A no. 169; and Immobiliare Saffi v. Italy [GC], no. 22774/93, BAILII: [1999] ECHR 65 , § 49, ECHR 1999-V). It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v. the United Kingdom, cited above, § 55; Pretty v. the United Kingdom, no. 2346/02, BAILII: [2002] ECHR 427 , § 61, ECHR 2002-III; Christine Goodwin v. the United Kingdom, no. 28957/95, BAILII: [2002] ECHR 588 , § 90, ECHR 2002-VI). Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton and others v. the United Kingdom [GC], no. 36022/97, BAILII: [2003] ECHR 338, §§ 103 and 123, ECHR 2003 VIII).
25. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see Buckley, cited above, § 76, Chapman v. the United Kingdom [GC], no. 27138/95, BAILII: [2001] ECHR 43, § 92, ECHR 2001-I).
26. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (Buckley judgment cited above, §§ 76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein).
27. However, the mere fact that the number of gypsies is greater than the number of places available on authorised sites does not mean that any decision not to allow a gypsy to occupy land would, without more, constitute a violation of Article 8 of the Convention (Chapman v. the United Kingdom, cited above, § 98). Consequently, the Contracting States are not under any obligation to make available to the gypsy community an adequate number of suitable sites.
2. Application in the present case
28. The Court recalls that the Contracting States are under a positive obligation to facilitate the gypsy way of life (see Chapman, cited above, § 96 and the authorities cited, mutatis mutandis, therein) and any measure which affects the stationing of their caravans could potentially affect their ability to lead their private and family life in accordance with that tradition (Beard v. the United Kingdom at § 84) However, the Court observes that the applicant in the present case is a New Traveller and not a gypsy. Unlike Romani gypsies, who are widely recognised as an ethnic group, and Irish Travellers, who are a traditionally nomadic people with their own culture and language, New Travellers live a nomadic lifestyle through personal choice and not on account of being born into any ethnic or cultural group.
29. The Court’s previous decisions concerning the rights of travellers have all concerned applicants who are gypsies by birth. Consequently, it has not had cause to consider whether or not New Travellers should be afforded the same protection as gypsies. In the present case, as it has not asked for the parties’ submissions on this issue, the Court does not consider it appropriate to reach any conclusions on the extent of Contracting States’ positive obligations towards New Travellers. However, in view of the findings set out below, the Court does not consider that it is necessary to decide on this issue.
30. The Court accepts that following the grant of the injunction the additional risk of imprisonment for contempt of court, however slight, may have deterred the applicant from camping on land that she might otherwise have camped on but the Court does not accept that this fact alone is sufficient to demonstrate that there has been an interference with her ability to maintain her identity as a New Traveller.
31. First, the Court notes that even without the injunction, the applicant had no right under domestic law to camp on any of the parcels of land covered by it. In fact, Wilson LJ specifically recognised that had she done so, she would have been committing a criminal offence. Thus, the only change in her position effected by the grant of the injunction was that there was a risk she could face imprisonment for contempt of court if she were to camp on the lands in question. However, in the course of the domestic proceedings the courts expressly indicated that the risk of imprisonment was low.
32. Secondly, the Court also notes that she had no right under Article 8 of the Convention to establish a camp on the land. The Court has consistently held that Article 8 did not require the Contracting States to make suitable sites available to gypsies (Chapman v. the United Kingdom, cited above, § 98). Thus, even if the Court were to accept that New Travellers were in an analogous position to gypsies, it follows that Article 8 cannot be interpreted so as to require the Contracting States to tolerate unauthorised camping on land vested in the State.
33. Finally, the Court is not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered thirteen sites in Dorset, this would only have accounted for a small proportion of land in the county. Consequently, the Court does not accept that following the grant of the injunction, the applicant’s only option was to move to bricks and mortar accommodation. In particular, the Court notes that notwithstanding the shortfall of local authority sites available in the United Kingdom, many gypsies and other travellers still live an itinerant life without recourse to official sites and the possibility that vacancies on these sites might arise periodically could not be excluded.
34. In any event, the Court would note that were the applicant to establish a camp on unauthorised land not covered by the terms of the injunction, it had been conceded by the Forestry Commission that before any eviction proceedings could be brought it would be obliged to comply with its procedural code based on the 2004 Guidance and failure to do so could vitiate its right to possession. As to the applicant’s possible defiance of the injunction by any future encampment on the land covered by that order of the court, it is to be observed that if the Forestry Commission did not comply with the relevant procedural code before seeking to enforce the injunction, the applicant could argue that it was acting unlawfully (see paragraphs 90 and 91 of Supreme Court judgment, quoted at paragraph 12 above).
35. The Court therefore finds that there has been no appearance of a violation of the applicant’s rights under Article 8 of the Convention, including by reason of any failure to protect or facilitate the applicant’s way of life. Accordingly, the Court finds the complaint under Article 8 to be manifestly ill-founded. It should therefore be rejected under Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President