THE GYPSY COUNCIL and OTHERS v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicants are: 1. The Gypsy Council for Education, Culture, Welfare and Civil Rights, an organisation affiliated to the International Romany Union, has its main office in Romford, Essex; 2. Friends, Families and Travellers, an organisation based in Brighton, Sussex; 3. Thomas O’Doherty, an Irish citizen born in 1937 and resident in York; 4. Terence Green, a British citizen born in 1966 and resident in Sutton, Surrey. The first and second applicants are organisations which represent the interests of the gypsy/romany community of which the third and fourth applicants are members. They are represented before the Court by The Community Law Partnership Solicitors, practising in Birmingham. The facts of the case, as submitted by the applicants, may be summarised as follows. The Horsmonden Horse Fair is a significant cultural and social event in the life of Romany Gypsy community in the United Kingdom. It has been held at the Horsmonden Village Green in Kent on the second Sunday in September annually for the last 50 years, at least. The applicants claim that there is good reason to think that the event has taken place for the last 300 years. The majority of those who attend the fair are gypsies. On 25 April 2000, the Parish Council that occupies the Village Green decided that the fair was to be henceforth cancelled. In July, pursuant to the Public Order Act 1986, as amended by the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), the Parish Council applied to the Chief Constable for the necessary steps to be taken. In a letter dated 7 August 2000, the Chief Constable applied to the Tunbridge Wells Borough Council (“the Borough Council”) under section 14A of the 1994 Act for a prohibition order to be made. He stated inter alia that he believed that a trespassory assembly of 20 or more people was likely to be held on the Village Green and: “Based on previous years’ experience, concerns of residents and intelligence, I reasonably believe that serious disruption to the life of the community will result because of : i. Incidents related to feuding groups of ‘travellers’ in 1997, 1998 and 1999, with an escalating level of policing required to prevent serious crime (200 officers in 1999). ii. The racing of horses on the highway. iii. The illegal and indiscriminate parking of cars throughout the village... iv. Concerns over public health due to poor hygiene, litter, discarded nappies and clearing up; v. Anti-social behaviour by visitors. vi. Closure of local public houses and shops for fear of theft. vii. Necessary road closures contributing to a negative financial impact in the area. viii. The threat that ‘travellers’ will defy the cancellation. ix. Fear expressed by residents... x. A background level of increased crime which occurs over the event weekend. xi. The normal social interactions between villagers being suspended as a consequence of the sheer volume of visiting ‘travellers’.” The Chief Constable concluded that this made it necessary to apply for the prohibition order so that effective policing could be carried out. At a council meeting on 14 August 2000, the Borough Council accepted the recommendation of the director of operational services that the Borough Council should seek the approval of the Secretary of State in the making of an order. The main reason that the Borough Council gave for issuing the Prohibition Order was that the fair “may result in serious disruption to the life of the community in the vicinity of the prohibited area.” On behalf of the Secretary of State, the Home Office Minister, with the recommendation of the senior officer of the Home Office’s public order section, gave consent to the application for the Prohibition Order. The Order was then issued on 4 September 2000 in accordance with section 14A of the Criminal Justice and Public Order Act 1994 prohibiting any “trespassory assembly” within a 5 mile radius of Horsmonden Village Green beginning at 18.00 hours on Thursday, 7 September 2000 and terminating at 06.00 hours on Monday, 11 September 2000. Notwithstanding the prohibition order, on 31 August 2000, the Kent police gave consent to the conduct of a limited parade on Sunday, 10 September 2000, in Horsmonden. In response to the prohibition order, the first applicant in this case, the Gypsy Council, issued proceedings in the High Court applying for judicial review on 5 September 2000. The applicant sought to quash the prohibition order, claiming that the Secretary of State and the Borough Council had made their decision to issue the order by considering both irrelevant factors and failing to consider factors that were in fact relevant. They alleged that there had been no evidence to support claims of risk to safety or disruption to the local community and no consideration given to alternative ways in which the fair might have been staged on the site. Among the relevant factors that the first applicant claimed the respondents failed to take into account were the applicants’ rights under Articles 8, 11, and 14 of the European Convention on Human Rights and the Framework Convention for the Protection of National Minorities. The case was heard on an expedited basis before Deputy Judge Pannick QC, who granted permission to apply for judicial review and heard the application on 7 September 2000. Having heard the parties, the Deputy Judge dismissed the application seeking to quash the prohibition order. He found that sufficient relevant information was before both the Borough Council and the Home Secretary to enable them to properly exercise their discretion in deciding whether to issue the order. The letter of the Chief Constable set out the concerns that serious disruption to the community would result. He stated that Borough Council were entitled to think that the need to avoid disruption to the local settled community should take priority. He considered that the fact that the Romany Gypsy Community could go to an alternative site some 20 miles away at Dartford, which was approved by the local authority and the police, served to limit the impact upon the Romany Gypsy community. He also found that there was no basis for the argument that the European Convention on Human Rights was not taken into account. He noted that Articles 8 and 11 of the Convention recognised that a balance had to be struck between the interests of the individual, in this case, the interests of the gypsy community and the interests of society generally, but found no reason on that basis to interfere on public law grounds with the assessment reached by the Council and Secretary of State in light of the advice from the Chief Constable. He rejected the first applicant’s request for leave to appeal. The first applicant was advised by counsel that no further remedies were available. Subsequently, on Sunday, 10 September 2000, a parade took place at Horsmonden, which was limited by the police to only 60 persons while measures taken by the police controlling entry to the village severely restricted the numbers of persons from the gypsy community wishing to watch the parade. An alternative fair apparently took place peacefully the same day at Dartford attended by an estimated 1000 gypsies. Section 14A of the Public Order Act 1986 as amended by the Criminal Justice and Public Order Act 1994 “(1) If at any time the chief office of police reasonably believes that an assembly is intended to be held in any district at a place on land to which the public has no right of access or only limited right of access and that the assembly-- (a) is likely to be held without the permission of the occupier of the land or to conduct itself in such a way as to exceed the limits of any permission of his or the limits of the public’s rights of access, and (b) may result– (i) in serious disruption to the life of the community, or (ii) where the land, or a building on monument on it, is of historical, architectural, archaeological or scientific importance, in significant damage to the land, building or monument, he may apply to the council for the district for an order prohibiting for a specified period the holding of all trespassory assemblies in the district or part of it, as specified. (2) On receiving such an application, a council may-- (a) in England and Wales, with the consent of the Secretary of State, make an order either in the terms of the application or with such modifications as may be approved by the Secretary of State... ... 9. In this section and sections 14B and 14C – ‘assembly’ means an assembly of 20 or more persons; ... ‘limited’, in relation to a right of access by the public to land, means that their use of it is restricted to use for a particular purpose (as in the case if a highway or road) or is subject to other restrictions; ‘occupier’ means– (a) in England and Wales, the person entitled to possession of the land by virtue of an estate or interest held by him; ...”