The latest case to test the Connors, Kay and Doherty formulations on human rights defences to possession cases (see here for previous post, including the comments) has just had its Court of Appeal judgment released. I would assume that Smith (On Behalf of the Gypsy Council) v Buckland  EWCA Civ 1318 is a way-station on the path to the House of Lords. This is also something of a test case for the situation on gypsy site licence possessions after the Housing Act 2004 amendments, which were introduced as a result of the ECtHR judgment in Connors.
So, where are we now?
First, the key human rights point – the possibility of reliance on Art 8 in a defence – is shelved. Jan Luba QC for the appellant perforce recognises that the CoA held in Doherty that Kay v Lambeth meant that such that an Art 8 defence is only possible where there are no statutory protections available against a simple assertion of title. The issue is raised, here as an argument that the first order Judge was wrong to rule out an Art 8 defence where possession was based on common law, not statute, but the CoA declines to consider it and effectively leaves it up to the House of Lords.
Second, the key issue, at this stage, is that the first order Judge ruled out a public law defence, without hearing any evidence.
Third, other grounds of appeal are a) that this case is factually distinguishable from Connors in terms of the appellant’s situation, and b) that is is arguable that the amendment to the Caravan Sites Act 1968 by the Housing Act 2004 does not cure the incompatibility with Art 8 of the Convention, found in Connors.
The basis of the Connors decision
The Court of Appeal is satisfied that the lack of procedural safeguard was the predominant issue in the ECtHR decision in Connors.
The public law defence
This is discussed solely in terms that a decision to bring a possession claim by a public authority is, in the circumstances, something no reasonable person could consider justifiable, following Wandsworth BC v Winder  AC 461.
The CoA adopts Lord Brown’s view in Kay (at paras 208-211) that to bring a public law defence is to acknowledge that the claimant authority is entitled to possession under domestic property law and is therefore an argument that the authority could not reasonably invoke that right. This is a more stringent test than that usually applied when the court considers the justifiability (or reasonableness) of a possession order. It is only in an exceptional case. Lord Brown suggests, that he public law defence will succeed. Connors may have been such a case.
The CoA considers that the 2004 amendment has changed the landscape, affording the court the opportunity to consider the justification of the case for possession at hearing. This makes it even less likely that a public law defence will succeed and in the present case, the first order Judge was right to hold that it was not seriously arguable.
The factual distinction
The CoA points out that this is of no relevance to the court. Nevertheless, while agreeing that the first order Judge was wrong to consider the varying length of periods in occupation as a basis for distinguishing Connors, the Court is not persuaded that it would necessary to decide of the facts of this case and Connors are distinguishable for any future appeal to the House of Lords, but leaves it to the Lords to decide.
The 2004 Amendment
The argument by the appellant is that, firstly, despite the amendment, there is no judicial control of the termination of the right to occupy. Secondly, no special consideration is given to the gypsy lifestyle, as required by Connors – the burden is on the defendant to show why enforcement shouldn’t happen. Thirdly, the court is required to have regard to ‘whether the occupier has failed to make reasonable efforts to obtain elesewhere other suitable accommodation’, which assumes that the occupant may be evicted regardless of substantive grounds. Fourthly, enforcement can only be suspended for 12 months, requiring re-application for further stay. Lastly, the amendment does not satisfy the non-discriminatory requirement in Connors.
The Court of Appeal holds that the margin of appreciation in Connors was narrowed by the procedural safeguard issue. To the appellant’s arrgument the Court replies that firstly, the Art 8 issue is eviction, not possession and the procedural safeguard satisfies this. The Government intends to remove the difference between local authority gypsy sites and private caravan sites in the Mobile Homes Act 1983, to further narrow any discriminatory distinction. The second point falls under the court’s obligation to exercise its discretion. The third point would in any case fall under Art 8. The fourth point has weight – and is left at that.
In regard to the non-discrimination point, the ECtHR was primarily concerned with procedural safeguards, but even so, the discrimination has been lessened by the amendment. Removing the discrimination will require further amendment of the 1983 Act. However, mitigating but failing to completely remove the discrimination falls within the margin of appreciation. The likely forthcoming amendment to the 1983 Act is mentioned as the reason why the Appellant did not seek a declaration of incompatibility in regard to the amendment.
And that is pretty much it. So it appears that not only a human rights defence but a public law defence is viewed as being of vanishing exceptionality. And, it is suggested, the 2004 amendment to the 1968 Act has settled any remaining Art 8 objections to the gypsy site licence issue.
The appeal was brought by the Community Law Partnership in Birmingham. Haven’t seen you around this blog for a while, CLP people. There is no mention of leave to appeal in the Judgment. Is this one House of Lords bound?