Two weeks ago, I wrote about the provisions in Part 4 of the Police, Crime, Sentencing and Courts Bill that would criminalise unauthorised encampments and empower police officers to confiscate property, including mobile homes, on suspicion of such activity. Three days later, the Court of Appeal handed down its decision in London Borough of Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13. This decision is the second Court of Appeal decision dealing with anti-encampment injunctions. The term anti-encampment injunctions refers to the phenomenon, now about seven years old, of local authorities applying for interim or final injunctions to forbid encampment in any of the public spaces in the local authority area. Anti-encampment injunctions are sought with members of the Gypsy, Roma and Traveller (GRT) communities in mind. For some information about the relevant characteristics of those communities, please see my last post here.

The recent decision by the Court of Appeal, which I will call Barking, is an important development in the law relating to injunctions generally. It is particularly important with respect to anti-encampment injunctions and anti-protestor injunctions. Interesting lines of case-law have developed around these two subjects. Legal issues have arisen when injunctions have been sought against individuals whose names are unknown to the applicant (described in claim forms, application notices and judgment titles as persons unknown), and in particular when injunctions have been sought not only against a fixed group of unidentified individuals but also against a individuals who may join the group after the grant of the injunction (described in the cases as newcomers). Issues arise because injunctions are powerful coercive tools that are generally only granted against individuals that are on notice of the injunction or can be put on notice. The Master of the Rolls, Sir Geoffrey Vos, took the opportunity in Barking to survey all the cases he considered relevant and clarify the law.

The decision in Barking is of far-reaching importance. In this blog post I am only trying to explain its relevance in the original context of the proceedings, which is anti-encampment injunctions. The effect of Barking on local authorities’ ability to restrain protest or other activities, and the secondary issues decided in the case, are not explored here.

I will first summarise two cases concerning anti-encampment injunctions that pre-date Barking. I will then explain the proceedings that gave rise to the High Court’s decision in Barking, the High Court’s decision itself, the Court of Appeal’s decision, and finally my view on the impact this will have on the practice of anti-encampment injunctions.

The first case we should look at is called Harlow District Council and another v Stokes and others [2015] EWHC 953 (QB) (I will call it Harlow). This decision was handed down on 3 March 2015, and it is short enough to be worth reading in full. In this case, Harlow District Council and Essex County Council (the second claimant) applied for an interim injunction to forbid encampment on any of the public spaces in the district of Harlow in Essex. The defendants to the action, who were the subject of the injunction sought by the councils, were 64 named defendants and “Persons Unknown being members of the traveller community who have unlawfully encamped within the borough of Barking and Dagenham”. The defendants were not represented in court.

The judgment tells the story of the antisocial behaviour of “certain traveller families”, “predominantly […] members of the McGinley and Stokes family”, since their arrival in October 2013 [2]. That time had seen encampments on 109 sites in Harlow, none of which had planning permission [3]. No application for planning permission had been made in respect of any of those sites, but Harlow council had failed to provide any suitable suites for encampment. As the judge, the late Mrs Justice Patterson DBE, a planning specialist, said delicately at [4]: “the council is required to make provision for gypsy and traveller accommodation within the district, but at present there is a policy void on that particular issue.” The judge went on to say that the encampments had been on “highway verges, grass verges, schools, enterprise zone land or public amenity land” [7], before setting out at length at [10] the negative consequences of the encampments that had been reported by the two authorities. These included deposits of human excrement, piles of rubbish left on vacated sites, damage to land by fires and tyres and the removal of bollards erected by Harlow council to prevent access to sites. Further, the defendants had been accused of antisocial behaviour consisting of “the presence of loose, untethered and aggressive dogs, abandoned horses, noise from generators, loud music and nuisance caused by children, vans driving and parking on public footpaths, cycle tracks and public open space” [11]. These problems had provoked anti-GRT prejudice in the area (characterised by the judge as “community tension”) and caused temporary school closures. The judge described efforts to engage with the defendants, which had failed.

The authorities sought “a district wide injunction” [16]. It is not explicit in the judgment exactly what such an injunction would forbid, but it can be inferred that it is the establishment of any encampments by the defendants on public land. The judge said at [17]:

It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third [sic], the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.

She went on to say that the balance of convenience was “heavily” in favour of granting the injunction. She made the order, effectively requiring the defendants to leave Harlow.

Three points emerge from this case that are of broader relevance. First, the defendants were not represented. Although counsel for the authorities would under such circumstances be under a duty to raise any facts or legal principles required to enable the court to reach a just decision, there was no one to tell the local GRT community’s side of the story. Second, Harlow council was in the position of having to deal with the symptoms of a systemic problem: the “policy void” where Essex’s provision of sites for GRT encampments should have been. While antisocial behaviour of the kind described in the judgment cannot be excused, the proximity of encampments to schools and public amenity land appeared to be a result of there being nowhere more suitable to stop. Third, relatedly, in as much as the presence of unauthorised encampments represented a problem for Harlow council, requiring the campers to leave Harlow did not so much solve that problem as move it on to another local authority area, unless and until that authority either applied for and secured its own district-wide injunction or had sufficient sites on which GRT families could legitimately stop.

The second case I think we should look at is called London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12; [2020] PTSR 1043 (I will call it Bromley). This judgment of the Court of Appeal was handed down on 12 January 2020, nearly five years after Harlow. The judgment of Lord Justice Coulson, with whom the Senior President of Tribunals (Sir Ernest Ryder) and Lord Justice Haddon-Cave agreed, is long, but once again it is worth reading in full because it is an accessible and detailed treatment of some important and complex issues. The history of this case is that Bromley council applied for a borough-wide injunction, similar to that successfully sought in Harlow, prohibiting encampment on any public spaces in Bromley. The council was successful in securing an interim injunction. Nine months later, it sought to convert this into a final injunction that would last for five years. The High Court (Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge) declined to do so: [2019] EWHC 1675 (QB). The transcript of the ex parte judgment in the High Court can be read here. With the benefit of submissions from London Gypsies and Travellers, a charity that intervened in the proceedings, the judge found that an injunction prohibiting encampment would be disproportionate, but she did order an injunction prohibiting fly-tipping. Bromley appealed to the Court of Appeal, and a number of interested local authorities intervened, as well as Liberty, the civil liberties charity, and once again London Gypsies and Travellers.

Coulson LJ reported that, since the Harlow decision, there had been something of a “feeding frenzy” of local authorities applying for borough-wide injunctions against encampment. At the start of 2020, there were 38 such injunctions in place [10]–[11]. However, the hearing before Ms Mulcahy had been the first at which the GRT community had been represented (by a lawyer or otherwise). This gave her, and now gave the Court of Appeal, the opportunity to take a step back and assess the new phenomenon.

Coulson LJ set out the relevant law, dealt with the appeal before the court, and then gave general guidance on the issue. As to the first point, among other matters, he highlighted at [40]–[48] the House of Lords decision in South Bucks District Council v Porter and another [2003] UKHL 26; [2003] 2 AC 558 and the decisions of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, Connors v United Kingdom (2005) 40 EHRR 9 and Buckland v United Kingdom (2013) 56 EHRR 16. These cases, together, set out the level of protection that GRT individuals enjoy as a result of Article 8 of the European Convention on Human Rights in respect of their homes and their cultural traditions. As to the second point, the appeal was dismissed. Coulson LJ considered that there had been no error in Ms Mulcahy’s approach to the proportionality exercise and that she had been entitled to reach the conclusion that she had reached.

As to the third point, Coulson LJ made some general statements about the law in this area, avowedly reluctantly, at the request of the parties [99]. These statements can easily be read in full at [100]–[109] but can be summarised as follows:

• The lack of designated transit sites has prevented local authorities from solving their problems. The provision of such sites is the only way to resolve the tension between the Article 8 rights of the GRT community and the common law of trespass [100].
• Local authorities need to engage with their local GRT community, certainly before applying for a borough-wide injunction. If the local authority cannot demonstrate such engagement, for example in the form of an equality impact assessment for a proposed injunction, an application is likely to be refused [102]–[103] [108(d)].
• Injunctions against persons unknown are exceptional measures because of the onerous burden they place on individuals not present or represented in the courtroom [104(a)].
• Local authorities should understand and respect GRT culture, traditions and practices [104(b)].
• When considering an application for an injunction, a court will take into account the status of the GRT community as a vulnerable protected minority, the local authority’s efforts to provide suitable accommodation, and the cumulative effect of injunctions elsewhere [104(c)–(e)].
• Borough-wide injunctions, and injunctions for longer than a year, are unlikely to be granted [105]–[106].
• Evidence of criminal conduct or of risks to health and safety supports an application for a wide injunction [107].
• Applications for injunctions should evidence alternative suitable encampment sites, or run the risk of being disproportionate [108(a)–(c)].

The judgment concludes at [109] with these sweeping words: “Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”

Bromley represented a recognition of the unsustainability of the widespread adoption by local authorities of anti-encampment injunctions. If one accepts the narrative that unauthorised encampments on public land cause unavoidable problems, moving those encampments from one local authority area to another only moves the problems elsewhere and unsettles the displaced GRT community. Yet if a local authority area becomes disproportionately affected by unauthorised encampments because GRT individuals have been pushed out of other areas by injunctions, applying for a similar injunction itself appears to be the simplest solution.

This brings us to the Barking case. These proceedings began when the Enfield council applied for an anti-encampment injunction: London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB). Mr Justice Nicklin declined to order an injunction and adjourned the application to enable the issues arising in the case and others to be properly considered. That was on 2 October 2020. Two weeks later, it was decided to join all the claims in which anti-encampment injunctions had been granted. This means that dozens of local authorities were parties to the proceedings (they can be identified in Appendix 1 of the High Court judgment). In late January 2021, there was a hearing before Nicklin J in order to review existing injunctions against new developments in the law relating to injunctions against persons unknown. These conjoined proceedings are the Barking proceedings. One of the key issues that had to be decided was whether a final (that is, not interim) anti-encampment injunction could bind newcomers. Newcomers are individuals who at the date of the judgment do not fall within the definition of those affected by the injunction, but who by their actions later come within that definition. For example, if an injunction is granted on 1 April 2021 against persons unknown forming unauthorised encampments in the borough, a newcomer is someone who forms an unauthorised encampment in the borough after 1 April 2021. The question was whether such individuals could be bound by a final injunction. This is important because interim injunctions are generally limited in time by a return date on which the court reviews the injunction, and operate in principle only until the court resolves the dispute between the parties, while final injunctions are generally in place for longer and are a substantive remedy.

On 12 May 2021, Nicklin J produced a long judgment ([2021] EWHC 1201 (QB)). On the key issue that we are concerned with, namely whether final anti-encampment injunctions bound newcomers, Nicklin J gave the answer no. Nicklin J considered that two authorities, Attorney General v Times Newspapers Ltd (No. 3) [1992] 1 AC 191 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802, established the principle that a final injunction operates only between parties to proceedings. Anti-encampment injunctions did not fall within an exception to that principle. See the judgment in summary at [121]–[124], and in detail at [161]–[189]. In the light of this and other decisions on legal points in the judgment, Nicklin J discharged a number of existing anti-encampment injunctions that he had decided were impermissible [244]. Finally, he set out, at [248], rules for claims against persons unknown generally.

The local authorities appealed to the Court of Appeal. The court was asked to deal with a number of issues, but principally the question whether final anti-encampment injunctions could bind newcomers. In a word, Sir Geoffrey Vos MR, with whom Lord Justice Lewison and Lady Justice Elisabeth Laing agreed, decided that the answer was yes. Nicklin J had been wrong to decide otherwise.

Sir Geoffrey Vos summarised a number of recent authorities at [21]–[58]. He then summarised and analysed Nicklin J’s judgment. Among other things, he said that Nicklin J had drawn a “fundamental difference” between interim and final injunctions that was not supported by the cases [74]. Rather, “there is no meaningful distinction between an interim and a final injunction” [77]. He also said that Nicklin J’s proposition that it was a fundamental principle that a court could not grant a final order against someone not party to proceedings had no basis in authority [75]. As far as the Court of Appeal’s decision in Canada Goose meant that, it was wrong. Instead, the Court of Appeal’s decisions in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Ineos Upstream Ltd v Persons Unknown and others [2019] EWCA Civ 515; [2019] 4 WLR 100 made clear that final injunctions could be granted against newcomers, and Nicklin J should have followed those cases [99]. The guidance that Nicklin J gave at [248] “requires reconsideration” as a result [108].

That was the main point established in the judgment. Of the rest of the judgment, the most relevant passage to us is at [102]–[108], where Sir Geoffrey Vos addressed the broad terms of the guidance given by Coulson LJ in Bromley with some scepticism. He said at [105] that it is GRT individuals, and not any community, that has Article 8 rights, and that those rights do not lead to an automatic conclusion in any application for an injunction, but must be balanced against other rights in the circumstances of the specific case, such as a landowner’s right under Article 1 of Protocol 1 to the peaceful enjoyment of their property. The same goes for Coulson LJ’s statement at [109] that “the gipsy and traveller community have an enshrined freedom not to stay in one place but to move from one place to another”. That right, protected by Article 8, is qualified, not absolute, and must be balanced against the rights of others and the public interest in each case [106].

What are we to make of this? First, given the contradictory judgments by the Court of Appeal, this authoritative decision by the Master of the Rolls is to be welcomed at least for the certainty that it brings to local authorities and others (notwithstanding any application for permission to appeal to the Supreme Court). Second, the emphasis on everything-depends-on-the-circumstances is legally sound but little practical guidance is offered to help courts considering applications for injunctions to balance the rights of GRT individuals in encampments with the rights of other local residents that are violated by unauthorised encampments. Even if everything depends on the circumstances, an authoritative judgment can set out a useful starting-point, a list of factors to consider and how to weigh them. Third, it is now clear that anti-encampment injunctions can apply to newcomers, meaning that their reach is not limited to those who have already unlawfully encamped on public land. Anti-encampment injunctions have not lost their sting. Although the decision in Bromley may have encouraged courts to take a more measured approach, local authorities may return to their use of these injunctions as a key tool to oppose any antisocial behaviour associated with unauthorised encampments. Between this phenomenon and Part 4 of the Police, Crime, Sentencing and Courts Bill (if passed), GRT individuals leading a traditional itinerant lifestyle will find the number of spaces on which they can safely stop continue to shrink. A real solution to this problem on a strategic level, or even a desire among policymakers to look for one, is nowhere in sight.

What I’ve been doing this week

I hope it doesn’t give too much away about my character (that readers haven’t already gleaned) if I say that I have fallen in love with Frasier. The simple stories, screamingly funny lines and loving skewering of pretentiousness is just what I need after, before or during a day of law. I’m on season 5. I have no idea how the reboot will work but I will be there for it.