Considerations of Common Humanity – the use and misuse of police powers in evictions of Traveller encampments

5 January 2016
Considerations of Common Humanity – the use and misuse of police powers in evictions of Traveller encampments

Gypsy/Traveller planning law experts Chris Johnson from Community Law Partnership and Marc Willers QC of Garden Court Chambers and Doctor Simon Ruston discuss a case involving the eviction of an unauthorised encampment in 1998 and its relevance to the use and misuse of police powers today.

In previous years we have highlighted cases from different jurisdictions and different times.  However, this year, to celebrate the 20th Anniversary of the Travellers Advice Team, we have returned to one of TAT’s early cases and not one of their best known cases, but a case that has had reverberations even to the present day.  This is the case of R v Metropolitan Police ex parte Small (unreported, High Court of Justice 27th August 1998).  The case involved an unauthorised encampment by Gypsies on open space owned by the London Borough of Havering.  The Metropolitan Police served the Gypsies with a notice under Section 61 of the Criminal Justice and Public Order Act (CJPOA) 1994.  TAT applied for and obtained an interim injunction to stop their eviction on the basis, amongst other things, that the Police had not taken into account welfare considerations.  The initial hearing came before Mr Justice Collins.  The Judge quoted from Home Office Circular 45/94 which states:-

The decision whether or not to issue a direction for leave is an operational one for the police alone to take in the light of all the circumstances of a particular case.  But in making this decision the senior officer at the scene may wish to take account of the personal circumstances of the trespassers, for example the presence of elderly persons, invalids, pregnant women, children and other persons whose well-being may be jeopardised by a precipitate move. 

Mr Justice Collins went on to state:-

It seems to me that that does indicate that, this being an operational decision, the police officer must consider the matter in the round and have regard to what can be described as ‘common humanity’…  I am quite satisfied that it is arguable that considerations of ‘common humanity’ should be a factor taken into account by the police officer who is having to consider whether to make a direction under Section 61. 

In the event, having considered the facts, Mr Justice Collins refused permission to continue with a judicial review and discharged the interim injunction.  However, the Judge’s views on the use of Police eviction powers were to have a more lasting effect. The Office of the Deputy Prime Minister/Home Office Guidance on Managing Unauthorised Camping (2004) directly quoted the Small case stating, at paragraph 6.9 (after quoting Circular 45/94):- 

Case law (Small) has established that, while police officers do not have to undertake welfare enquiries as such, they must be aware of humanitarian considerations in reaching their decisions and must ensure that all decisions are proportionate.  A decision may be taken to explicitly exclude individuals or families with serious welfare needs from a s61 direction to leave. 

The policy was then developed by the Association of Chief Police Officers (ACPO) in its Guidance on Unauthorised Encampments (original version published in 2008, latest version June 2011) where it is stated at paragraph 2.4:-

Initial contact should be made with the people on the site, and an assessment made of the impact of its location, as well as the behaviour displayed by the occupants.  The occupants should be spoken to in order to establish their identities and location of last site, and to ascertain their views on desired duration of stay as well as any pressing welfare needs. 

Thus, we can see the importance of what might have appeared at the time, way back in 1998, to be a relatively insignificant case.  The Small case led to the adoption of the guidance on the humanitarian use by police of their eviction powers which has helped ensure that many (though not all) pointless evictions have been avoided ever since.

Though Police evictions under both Section 61 and Section 62 A - E of the CJPOA 1994 can be carried out very swiftly, it is very important that Gypsies and Travellers should, where possible, seek advice if they think that the Police are acting unlawfully or in an unreasonable fashion. 

At the time of the Small case TAT were part of McGrath & Company solicitors (TAT moved to the Community Law Partnership when it was  established in January 1999).  The case was run for TAT by Dr Angus Murdoch (now an independent Planning Consultant) and the Barrister for Ms Small was David Watkinson (now retired) of Garden Court Chambers. 

 

The work of ACPO (now the National Police Chiefs Council) has helped improve relations between the Police and Gypsies and Travellers though much remains to be done. Nevertheless, it is very encouraging to hear that the Gypsy Roma Traveller Police Association (GRTPA) was established in 2014 (see the article in the Guardian on 21st July 2015: http://www.grtpa.com/wp-content/uploads/2015/08/The-Guardian-21.7.2015.pdf) and that its membership and influence within Police forces up and down the country is increasing. Hopefully, the GRTPA will help tackle the prejudiced attitudes of some of their fellow officers, like that experienced by one of its members, a former decorated soldier. The Police officer’s account is taken from the GRTPA website:-

The month I left the military I visited my grandparents who had stopped at a site, taking with me my prized medals…Leaving my grandfather’s site I was stopped by the police,  they searched my car and upon finding the medal asked me:- ‘Who have you stolen this from?’.  My reply, ‘Her Majesty’, reflected the attitude of the officers.  Needless to say they appeared rather embarrassed when they found my military ID card and compared that to my name engraved on the side of the medal.

Thanks to Emma Westwood, our TAT Administrator, for typing up this blog. 

 

Postscript from Simon Ruston

As noted above this year marks the 20th anniversary of the Travellers Advice Team, and this is something that should be rightly celebrated. There have been many examples of cases such as Small where TAT have won important victories on behalf of Gypsies and Travellers. These cases have not only been of direct benefit to those involved, but also to many others. TAT have worked tirelessly over the years, not only on their cases, but also in working with the many organisations working on behalf of Gypsies and Travellers to try and effect change. Personally, TAT has had a significant impact on my own life as some years ago with no real experience I contacted Chris Johnson repeatedly for 6 months to try and arrange some work experience. Eventually he probably got tired of my repeated emails, and took me on for a couple of weeks. This was my first experience of working on behalf of Gypsies and Travellers, and some years later I find myself now providing planning services to the community. I see this as a direct result of being given that opportunity in the first place. So on my part, and on behalf of the many other people that TAT have assisted, advocated on behalf of or inspired, I’d like to wish them a happy birthday and thank them for the incredible amount of effort they have put in for the last 20 years. 

Chris Johnson (chrisjohnson@communitylawpartnership.co.uk) is the team leader of the Travellers Advice Team (TAT) at Community Law Partnership (CLP).

TAT operates a national Helpline for Travellers on 0121 685 8677, Monday to Friday 9.00 am to 5.00 pm. CLP’s website is at

http://www.communitylawpartnership.co.uk/

Dr Simon Ruston, Ruston Planning Limited, Independent Planning Consultant specialising in Gypsy and Traveller work. Simon can be contacted at simon@rustonplanning.co.uk or on 07967 308752/0117 325 0350

Marc Willers QC (marcw@gclaw.co.uk) specialises in representing Gypsies and Travellers and is a member of Garden Court Chambers’ Romani Gypsy and Traveller Team. Its website is at www.gardencourtchambers.co.uk