PROCEDURE

The case originated in an application (no. 40060/08) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms Maria Buckland (“the applicant”), on 12 August 2008.

The applicant, who had been granted legal aid, was represented by the Community Law Partnership, a firm of solicitors based in Birmingham. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. Sornarajah, of the Foreign and Commonwealth Office.

The applicant alleged that the Court of Appeal’s decision to dismiss her appeal and uphold the judgment making a possession order constituted an unjustified breach of her right to respect for her home and her family life and discriminated against her, in violation of Article 8 taken alone and in conjunction with Article 14.

On 3 May 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1959 and lives in Cardiff.

The applicant is a gypsy. In 1999 she moved to the Cae Garw caravan site in Port Talbot, Wales, with her two children. The site was owned by Neath Port Talbot County Borough Council.

On 12 June 2000 Neath Port Talbot County Borough Council entered into a licence agreement with the Gypsy Council which provided that the latter would manage the site.

On 29 March 2004 the applicant entered into a licence agreement with the Gypsy Council to occupy pitch 16 on the site. It was a condition of the licence that: “The Licensee or his/her resident family ... must not create a nuisance on the sites or to neighbouring properties. The Licensee shall be held responsible if any ... person living with ... her contravenes any of these Site Rules or Conditions.”

On 30 December 2004 the Gypsy Council issued a notice of termination of licence to the applicant which expired on 6 February 2005. The notice referred to a clause of her licence agreement which provided: “The Gypsy Council or the Licensee may terminate this licence by giving the other not less than 28 days written notice to expire on a Sunday in any week.”

No further reasons justifying the termination were given.

Notices to quit were also given to her parents, who occupied a different pitch on the site.

On 18 January 2005 amendments to section 4 of the Caravan Sites Act 1968 (“the 1968 Act”) entered into force which introduced the possibility for possession orders to be suspended by a court on the application of the occupier for up to twelve months at a time (see paragraph 36 below).

On 2 August 2005 the Gypsy Council issued a claim for possession against the applicant and five members of her extended family, including her parents, in Neath Port Talbot County Court. In its particulars of claim, the Gypsy Council alleged that all six defendants were guilty of causing very substantial nuisance to the site to the detriment of other occupiers.

The applicant’s parents did not apply for suspension or postponement of the orders. On 1 June 2006, possession orders were made against them by consent.

An oral hearing took place between 24 and 26 July 2006 in Swansea County Court and 28 July 2006 in Neath County Court in respect of the claim for possession against the applicant. In a witness statement lodged prior to the hearing, the applicant indicated that she intended to leave the site when her parents left.

On 25 July 2006 Judge Bidder QC gave a judgment on the preliminary issue of whether the applicant could challenge the making of a possession order in her case. He considered himself bound by the decision of the House of Lords in Kay and Price (see paragraph 42 below), which had examined the effect of this Court’s judgment in Connors v. the United Kingdom, no. 66746/01, 27 May 2004. Thus, he concluded, the only options open to the applicant were to challenge the domestic law itself or to commence judicial review proceedings based on conventional grounds. He concluded: “58. ... I do not consider it to be arguable that the decision of the claimants to seek possession against her was unreasonable or that their decision to invoke their domestic law rights could be castigated as unreasonable ...

Moreover, the fact that parliament has amended the applicable domestic legislation to afford the gypsy occupier the opportunity to contend that any possession order should be suspended for 12 months at a time distinguishes that case from Connors, and given that that amendment was considered in Kay and Price I find it impossible to say ... that there is a seriously arguable point raised that the law which enables the court to make the possession order is incompatible with article 8 ...”

He invited submissions from the applicant as to the possible temporary suspension of any possession order. He added: “71. I should say that on the issue of suspension of the ... order against the [applicant] of possession I would invite the parties to consider the date of 4th November 2006 being the date on which the [applicant’s] parents are required to leave and on which she indicates that she would leave anyway ...”

On 28 July 2006, following the applicant’s submissions that any possession order against her should be suspended, the judge handed down his judgment on the remaining issues. Having reviewed the allegations made against the applicant by the claimant, the judge concluded: “27. ... I am not satisfied that Maria Buckland has herself been guilty of any offensive behaviour on site, or of any breach of licence, apart from the relatively minor failure to pay the water charges.”

He was, however, satisfied that her son, who resided part of the time with her, had been involved in an incident on site in which he threatened someone with a gun, although it was not clear whether the gun had been real or merely an imitation; and had dumped garden refuse on the site.

Turning to consider whether the applicant’s personal circumstances, and those of her son, justified a suspension of the possession order which he would be making in her case the judge noted: “32. In relation to Maria Buckland, while I am obliged to make a possession order, I find her only breach of site conditions has been recent and is a very modest failure to pay water charges. She has indicated in a recent statement that she intends to move from the site when [her parents] leave, that is on or before 4pm on 24th November. I do consider it appropriate to suspend enforcement of the possession order against her until the same time and date. However, I am clear that the behaviour of [her son] on this site and his attitude towards the Farrows [the family of the site manager] is such that I have to impose conditions on her continued possession, as sought in the draft order – [her son] lives half his time with his father, and I have no doubt that if he cannot live with his mother, he will be able to live with his father ...”

He made an order for possession against the applicant, which he suspended until 24 November 2006 upon the condition that her son leave the site and that she discharge the GBP 95 arrears of water charges at the rate of GBP 5 per week.

On 18 April 2007 the applicant, who was still resident at the site, was granted permission to appeal the possession order to the Court of Appeal. A stay of execution of the order of 28 July 2006 was also ordered.

In November 2007 a bill which would amend the Mobile Homes Act 1983 (“the 1983 Act”) was introduced to Parliament. The effect of the proposed amendment was to allow a defendant in possession proceedings such as the applicant to challenge before the County Court the reasonableness of making a possession order.

On 12 December 2007 the applicant’s appeal was dismissed. Considering the impact of the amendment to the 1968 Act to allow suspension of a possession order on whether the applicant could succeed in a conventional public law challenge to the decision to seek a possession order, Lord Justice Dyson noted: “42. The significance of the amendment is that a claimant’s decision to seek possession does not involve summary eviction without judicial scrutiny of the justification of the claim to possession. By issuing proceedings, the claimant submits to the jurisdiction of the court, which has power to investigate all the circumstances of the case, including the claimant’s complaints about the defendant’s behaviour.”

He continued: “43. ... It may be that, for the reasons given by Lord Brown [in Kay], a public law defence could have been raised successfully in Connors. I would suggest that this is not so much because the family had been in occupation for a great length of time, but rather because it was unreasonable and grossly unfair for the local authority to seek a possession order and obtain the eviction of the occupier merely on the basis of a termination of the licence ‘without the need to make good any underlying reason for taking such precipitate action’. The real difference between the present case and Connors is not that the appellant had been in occupation for a shorter period than was the family in Connors ... On any view, the site was her home and had been for a substantial period of time. The fact that she had not been in occupation for as long as the family in Connors is not, in my judgment, of much significance. The real difference between the two cases is that in Connors, once the licence had been terminated, the authority was entitled to an order for possession whose enforcement could not be suspended by the court.”

He concluded that since the amendment to the 1968 Act, it was difficult to conceive of a case in which a public law defence would succeed. Referring also to the fact that Judge Bidder had made a finding of misconduct on the site by the applicant’s son, for whose behaviour she was responsible under the terms of the licence, Dyson LJ considered that the judge was right to hold that the public law defence was not seriously arguable.

Dyson LJ further noted that the factual situation of Connors was not materially different from the present case in that in both cases the defendant had occupied a site as a home for a number of years. Further, in both cases the claimant had validly and properly terminated the defendant’s licence to occupy so that the defendant had become a trespasser; the claimant was entitled to an order for possession as the owner of the land; and no further justification was required to seek an order for possession. However, it was agreed by the parties that it was not necessary to decide whether the present case could be distinguished from Connors as the distinction was only relevant for any appeal before the House of Lords.

Finally, in respect of the applicant’s argument that the amendment to section 4 of the 1968 Act did not remedy the incompatibility with Article 8, Dyson LJ emphasised that, in principle, a wide margin of appreciation was left to the national authorities in such matters. However, he accepted that the vulnerable position of gypsies as a minority meant that “some special consideration should be given to their needs and different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases” (citing Connors, § 83). He found that the main reason for the narrowing of the margin of appreciation in Connors itself was that the complete absence of any procedural safeguards was a serious interference with the applicant’s Article 8 rights in that case, which called for particularly weighty reasons of public interest in justification. However, the precise scope of these safeguards was in his view, a matter for the national authorities to determine. He considered that provided that a reasonable degree of protection was afforded by the domestic law, the Strasbourg Court would not interfere, even if a greater degree of protection could have been afforded. He accordingly rejected the applicant’s submissions, noting: “60. The objectionable feature of the legal regime in place before the amendment was that the court was bound not merely to make an order for possession, but to order the eviction of an occupant such as the appellant provided that the 4 weeks’ notice was given. Absent a public law challenge, the occupant had no opportunity to challenge the reasons given by the local authority for seeking possession and the court had no jurisdiction to take the reasons into account in deciding whether to order the occupant’s eviction. The local authority’s reasons were irrelevant as were the occupant’s personal circumstances. Nor did the court have power to suspend an order for possession even in circumstances of extreme hardship which indicated that eviction would not be justified under article 8(2). In short, there was no opportunity for the court to make any assessment of the justification for eviction in order to determine whether the interference with an occupier’s rights under article 8(1) was justified on an application of article 8(2). Provided that the relevant formal requirements had been satisfied, the role of the court was purely mechanistic.

The amendment has introduced procedural protections which ensure that the role of the court is no longer a mechanistic one even when a local authority seeks to evict a licensee from a caravan site. Summary eviction has been replaced by judicial examination. Section 4(1) now provides that the enforcement of a possession order may be suspended for such period up to 12 months ‘as the court thinks reasonable’. The court has a wide discretion under subsection (2) to impose conditions when making an order for suspension. By subsection (3), the court may extend the suspension of the possession order for up to 12 months at a time. Subsection (4) requires the court to have regard to ‘all the circumstances’ in deciding whether to exercise its power to suspend. The court is, therefore, required to conduct an examination of all the circumstances of the case ...”

He concluded: “63. In my judgment, the decision to provide the procedural safeguards introduced by the amendment of section 4 of the 1968 Act was within the margin of appreciation available to the United Kingdom. More generous safeguards could have been introduced (and they will be when the 1983 Act is amended). But the amendment goes far enough to meet the real thrust of the criticisms made in Connors.”

As to the applicant’s argument that the legislation discriminated against gypsies, Dyson LJ found that although the discrimination point was one of the features of the Court’s reasoning in Connors, it was not the main reason for the decision. Even if that was wrong, Dyson LJ considered that by addressing the lack of procedural safeguards for gypsies of local authority sites, the amendment had also gone a long way to meeting the discrimination point. While discrimination would not be cured completely until the 1983 Act was amended, it had been much mitigated. Thus to the extent that the discrimination persisted, the decision not to eliminate it altogether fell within the margin of appreciation accorded to the contracting States.

On 18 February 2008 the House of Lords refused the applicant’s request for permission to appeal.

In May 2008 the applicant left Cae Garw caravan site for alternative accommodation on land owned by her brother. She claims that her departure was the result of the refusal of leave to appeal and in the face of further threats of eviction The land owned by her brother has no planning permission for residential use and its occupants, which include the applicant’s brother, his six children and the applicants’ parents, share minimal facilities, namely one toilet and one sink with cold running water in a shed with no lighting.