Social Welfare Lawyers in the Centre of Birmingham

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The Criminalisation of Trespass – Latest Update

The Home Office has recently produced draft guidance for Police with regard to the new powers contained in Part 4 of the Police, Crime, Sentencing and Courts Bill. See the link here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1026903/Draft_stat_guidance_UEs.pdf

We believe that this draft guidance will be totally ineffective in avoiding the disastrous consequences of the criminalisation of trespass and we maintain the position taken in our previous blog on this matter. See link here: http://www.communitylawpartnership.co.uk/news/the-criminalisation-of-trespass

Abuse of Process

B Havering & ors v Persons Unknown & ors [2021] EWHC 2648 (QB)

When laying down very important principles for local authorities when seeking wide injunction orders against Gypsy and Traveller encampments in his judgment of 12 May 2021 ( see LB Barking & Dagenham & ors v Persons Unknown & ors [2021] EWHC 1201 (QB) – and see our article on this matter at http://www.communitylawpartnership.co.uk/news/press-release-is-this-the-end-of-the-wide-injunction), Nicklin J was also very critical of four local authorities who, having obtained interim orders, failed to progress those to final hearings. He directed that those cases (and also a case for another local authority, Test Valley BC, where only directions were required for a final hearing) should be listed for a hearing to decided whether or not there had been an abuse of process.

Challenging CRT’s New Terms and Conditions

CLP were instructed by the National Bargee Travellers Association (NBTA) to challenge the new Boat Licence Terms and Conditions that have been brought in as of 24 May 2021 by Canal & River Trust (CRT) and to also challenge the way the consultation process was carried out. Despite the best efforts of NBTA, other boat dwellers and support organisations, ourselves and our Barrister on this matter, CRT has not agreed to change any of the terms and conditions that we believe are adverse especially to liveaboard boaters.

It is unlikely that the NBTA will be able to take the case any further itself.

We are therefore looking for liveaboard boaters who are affected adversely by these changes and who are likely to qualify for Legal Aid (i.e. on a low income or on benefits) to take this matter forward.

Though CRT announced on 24 May 2021 that the new terms and conditions were coming into force, they are, of course, only being imposed on boaters when their Boat Licence comes up for renewal. If you are interested in discussing this possible challenge, please phone us on our Travellers Advice Line which is 0121 685 8677 and is open Monday to Friday 9.00 am to 1.00 pm.

Mead Lane Moorings

The Travellers’ Advice Team at CLP were instructed by a liveaboard boater who resorts to the River Avon and the Kennet and Avon Canal. She has what Canal & River Trust (CRT) describe as a ‘continuous cruising licence’ which means she has to move her boat ‘bona fide for navigation’ in terms of the British Waterways Act 1995. This means she cannot remain in the same place for more than 14 days apart from in exceptional circumstances.

Definition of Gypsy and Traveller

Lisa Smith -v- The Secretary of State for Housing, Communities and Local Government and Others [2021] EWHC 1650 (Admin) 17 June 2021

Between 2006 and 2015, planning policies included within the definition of ‘Gypsies and Travellers’ those who had either temporarily or permanently ceased to travel by reason of health, education or old age. By a revised planning policy issued in August 2015, the Department for Communities and Local Government modified the definition to remove the reference to those who had permanently ceased to travel for such reasons. Lisa Smith, a Romany Gypsy who lives with her extended family in caravans on a private site in Leicestershire, challenged the lawfulness of the 2015 policy following a Planning Inspector refusing her planning appeal because she did not come within the definition. As a result the Planning Inspector concluded that the application by Ms Smith did not benefit from the more permissive planning regime contained in Planning policy for traveller sites.

Mr Justice Pepperall dismissed her appeal. Originally Ms Smith appealed on another ground, aside from the challenge to the alleged unlawfulness of the definition, but she is no longer pursuing that other ground.

PRESS RELEASE – IS THIS THE END OF THE WIDE INJUNCTION?

Since 2015, 38 local authorities in England have obtained wide injunctions against Gypsies and Travellers effectively banning them from large swathes of land in the local authority area. We believe that most of the land identified would be the only land that Gypsies and Travellers would be likely to be able to stop on if they were resorting to the area or passing through the area.  Obviously this is in the context where there remains a totally inadequate supply of stopping places for Gypsies and Travellers who are exercising their nomadic way of life whether that be permanent pitches, temporary pitches or the use of land subject to ‘negotiated stopping agreements’. For many, many years Gypsy and Traveller organisations have argued that the answer to unauthorised encampments is the provision of sites and stopping places. If every local authority in England obtained such a wide injunction, where would Gypsies and Travellers go to?

Braintree DC v SSHCLG and Nicholls [2021] EWHC 651 (QB)

A Planning Inspector granted Mr Nicholls planning permission for a Travellers’ site. The local authority challenged this decision on the basis that the Inspector had misinterpreted the development plan and had failed to provide sufficient reasons for her decision. Timothy Mould QC (sitting as a Deputy Judge of the High Court) dismissed the appeal. If the local authority’s interpretation of their own policy had been allowed it would have meant that no Gypsy or Traveller site could ever have been given permission in the countryside. Their appeal against the costs award against them was also dismissed. See:  https://www.bailii.org/ew/cases/EWHC/QB/2021/651.html

Canal & River Trust Terms and Conditions of Licence

CRT have recently carried out a consultation on new terms and conditions for their licences. https://canalrivertrust.org.uk/national-consultations

National Bargee Travellers Association are very concerned both about the consultation process itself and about some of the proposed new terms and conditions. They are looking for boat dwellers who would be interested in potentially bringing a legal challenge. If you are interested in bringing such a challenge please phone us on our advice line which is 0121 685 8677 Monday to Friday 9am to 1pm.

The Criminalisation of Trespass

Legal Briefing on Proposals to Criminalise Trespass
By The Community Law Partnership

Thanks to Marc Willers QC and Tessa Buchanan of Garden Court Chambers and to Abbie Kirkby of Friends, Families and Travellers for their comments on this paper.

The Travellers Advice Team at Community Law Partnership are very interested in hearing from any Gypsies and Travellers who may be adversely affected by the proposed new criminal offence. We would encourage people to phone us on our Advice Line which is 0121 685 8677 Monday to Friday 9am to 1pm.