Possession order – Trespassers – Human rights — Applicant traveller setting up unauthorised camp in wood – Court granting possession order in respect of that and other woods vested in secretary of state — Injunction restraining applicant from entering woods – Whether injunction breaching applicant’s human rights – Application inadmissible – Declaration accordingly
The applicant new traveller, together with others, lived and travelled in motor vehicles. In 2007, they established an unauthorised camp in one of numerous woods managed by the Forestry Commission on behalf of the secretary of state for environment, food and rural affairs, who brought an action for possession against the travellers and “persons unknown”. He sought possession of all woodlands within an area extending approximately 25 miles east to west and 10 miles north to south to prevent the travellers from moving to another area of woodland if possession of their site were ordered. Further injunctions were sought against the travellers restraining them from re–entering the woods.
The recorder granted an order for possession in respect of the disputed site. However, he refused to make a wider order for possession in respect of the other woods or to grant the injunction sought, primarily because the Commission had not, before commencing the proceedings, considered guidance on managing unauthorised camping published in 2004. The Court of Appeal allowed the secretary of state’s appeal and granted the relief sought: see Secretary of State for Environment, Food and Rural Affairs v Meier [2008] EWCA Civ 903; [2009] 1 WLR 828.
The applicant and another appealed to the Supreme Court, which concluded that the rules of court did not permit the grant of a wider possession order because this would be inconsistent with the nature of such orders since the applicant did not occupy any part of the other woods. However, the court held that it had been appropriate for the Court of Appeal to have granted the injunction on the precise facts of the case: see [2009] UKSC 11; [2010] 1 EGLR 169.
The applicant complained to the European Court of Human Rights that the decision to grant the injunction violated her rights under Article 8 of the European Convention on Human Rights because it affected her ability to pursue her way of life as a traveller. By granting the injunction, the authorities had violated the positive obligation imposed on the state to facilitate the gypsy way of life.
Held: The application was declared inadmissible.
The contracting states were under a positive obligation to facilitate the gypsy way of life and any measure that affected the stationing of their caravans could affect their ability to lead their private and family life in accordance with that tradition. However, the applicant in the instant case was a “new” traveller and not a gypsy. Unlike Romany gypsies, who were recognised as an ethnic group, and Irish travellers, who were a traditionally nomadic people with their own culture and language, new travellers lived a nomadic lifestyle through personal choice and not because they had been born into any ethnic or cultural group: Beard v United kingdom 24882/94 (2001) 33 EHRR 19 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered).
The court’s previous decisions regarding the rights of travellers had all concerned applicants who were gypsies by birth. Consequently, it had not had cause to consider whether new travellers should be afforded the same protection as them. Since the court had not asked for the parties’ submissions on the issue, it was not appropriate to reach any conclusions on the extent of positive obligations owed by contracting states to new travellers. In the instant case, following the grant of the injunction the additional risk of imprisonment for contempt of court, however slight, might have deterred the applicant from camping on land that she might otherwise have camped on. However, that fact alone was insufficient to demonstrate that her ability to maintain her identity as a new traveller had been compromised.
Even without the injunction, the applicant had no right under domestic law to camp on any of the parcels of land with which it was concerned. Thus, the grant of the injunction affected her position only in as much as she could face imprisonment for contempt of court should she camp on the land in question. Moreover, Article 8 did not entitled the applicant to establish a camp on the land, neither did it require the contracting states to provide suitable sites to gypsies. Thus, even if the court were to accept that the position of new travellers was analogous to that of gypsies, Article 8 could not be interpreted as requiring the contracting states to tolerate unauthorised camping on land vested in the state.
Finally, the court was not persuaded that the injunction was sufficiently wide to interfere with the applicant’s way of life. Although it covered 13 sites in Dorset, that would have accounted only for a small proportion of land in the county. Consequently, the court did not accept that following the grant of the injunction, the applicant’s only option was to move to bricks-and-mortar accommodation. In particular, notwithstanding the shortfall of local authority sites in the UK, many travellers lived an itinerant life without recourse to official sites and the possibility that vacancies on those sites might arise periodically could not be excluded.
In any event, were the applicant to establish a camp on unauthorised land not covered by the terms of the injunction, the Forestry Commission had conceded that before 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. Accordingly, the applicant’s rights under Article 8, including by reason of any failure to protect or facilitate the applicant’s way of life, had not been violated. The complaint under Article 8 was ill founded and should therefore be rejected.
Eileen O’Grady, barrister
