Inquiries necessary before removing campers

LAW REPORT v 3 October 1995
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Regina v Lincolnshire County Council, ex parte Atkinson; R v Wealden District Council, ex parte Wales and ex parte Stratford; Queen's Bench Division (Mr Justice Sedley); 31 August 1995

A local authority, when deciding whether to exercise its power under the Criminal Justice and Public Order Act 1994 to make removal directions against persons unlawfully encamped on land in its locality, must have regard to various statutory and humanitarian considerations relating to the welfare, health and other needs of those affected.

Mr Justice Sedley granted a declaration that it was incumbent on Lincolnshire to take into account material considerations when issuing a removal direction but refused to quash its removal directions, and quashed removal directions made by Wealden and corresponding removal orders.

In Lincolnshire's case, the council made removal directions against travellers with vehicles following objections. No contact was made with the travellers until they failed to leave. Visits were then made by social and education welfare workers. The travellers made no requests for assistance. Complaints were then laid before justices who made removal orders.

In the Wealden cases the council gave a removal direction to all occupants of vehicles on land and obtained removal orders from the justices which were not enforced pending inquiries about health and other needs of the occupants. Following inquiries, the council decided there were no special grounds for not enforcing the removal order except in relation to a pregnant woman and her family.

The applicants, who were encamped on the councils' land, applied for judicial review of the directions and orders. The issue of whether a removal direction affected persons who arrived on the land after the date when it was given also arose.

David Watkinson and Colin Hutchinson (Firth Lindsay, Sheffield; Public Law Project) for the applicants; Patrick Ground QC and Timothy Straker (County Solicitor); Richard Langham (District Solicitor) for the councils.

Mr Justice Sedley said that sections 77 to 79 of the 1994 Act dealt with local authorities' powers to remove unauthorised campers. The considerations, to which regard must be had when a local authority exercised those powers, which were not statutory, were considerations of common humanity that could not be ignored when dealing with fundamental human needs for shelter and a modicum of security.

The statutory duties included the duty under the Children Act 1989 to safeguard and promote the welfare of children in need, to provide accommodation for children in need, the duty under the Housing Act 1985 in relation to persons who unintentionally became homeless, and under the Education Acts to provide education for school-age children.

As the local authority had an initial discretion whether or not to give a removal direction in relation to an encampment, it must necessarily apply its mind to the people who were for the time residing there and the residents in the locality and strike a balance between competing and conflicting needs. Therefore a removal direction under section 77 could apply only to persons who were on the land at the time when the direction was made, and could be contravened only by such persons.

In Lincolnshire's case, the inquiries made after the removal direction were proper and sufficient to discharge the council's obligation to inform itself of the relevant facts and nothing emerged to modify its decision. In the Wealden cases the inquiries made after the justices' removal order brought into full consideration the relevant matters.

The giving and service of a removal direction criminalised anybody who, knowing of it, failed to go or, having gone, returned to the site. It was at the initial stage of deciding whether to give the removal direction, and to whom to give it, that it was necessary for the local authority to consider the relationship of its proposed action on the various statutory and humanitarian considerations which would be called into play, and to make provision and decision accordingly.

In Lincolnshire's case a declaration would be granted and certiorari declined. In the Wealden cases, its directions and the justices' orders would be quashed.

Ying Hui Tan, Barrister