Case Explained: Nowhere to Go: British Lawyer Marc Willers on Defeating the Law That Criminalised a Way of Life – Legal Perspective

03 April 2026

By Jonathan Lee

In 2022, the then-Conservative government passed the Police, Crime, Sentencing and Courts Act; a sweeping piece of legislation that, buried within its hundreds of pages, contained some of the most punishing powers ever directed at a specific ethnic community in modern British law.

Part Four of that Act targeted Gypsies and Travellers*. It gave police the power to criminalise trespass, to treat the act of stopping somewhere without permission as a criminal offence rather than a civil matter. It gave officers the power to seize property, including vehicles. For communities where a vehicle is not just transport but a home, that means officers could seize the roof over a family’s head. The Act also set a remarkably low threshold for all of this to happen: the presence of just two vehicles was enough. It also introduced penalties of up to £2,500 and imprisonment as a potential sentence.

Perhaps most controversially, it extended the period for which a family could be banned from an area from three months to twelve, meaning that a Gypsy or Traveller family evicted from a roadside camp could be barred from returning to that same land for a full year. In a country where authorised stopping sites are chronically and catastrophically scarce, a twelve-month ban left families with nowhere to go, nowhere to bide, and no lawful way to get there.

What makes this all the more striking is who opposed it. When the government consulted police forces and Police Crime Commissioners, 84% of police responses did not support the criminalisation of unauthorised encampments, and 75% stated that existing police powers were already sufficient. Police themselves said that more sites, not more punitive measures, were the answer. They were not alone. The Bill was opposed by former senior police officers, three former Prime Ministers, 700 academics, and over 350 charities. Even the Council of Europe called on Parliamentarians to reject the criminalisation of trespass. The government passed it anyway.

However, the law did not go unchallenged. A Romani Gypsy woman named Wendy Smith, represented by one of the UK’s leading human rights barristers, took the government to the High Court. In May 2024, she won. In a landmark decision, Mr Justice Swift issued a Declaration of Incompatibility — a significant and unusual step — finding that the extension of the no-return ban from three to twelve months amounted to unjustified race discrimination against Gypsies and Travellers, in breach of Article 14 of the European Convention on Human Rights, read alongside Article 8, the right to private and family life.

That ruling has now borne legislative fruit. The government has tabled an amendment to its Crime and Policing Bill to repeal the offending provisions, an amendment that has now been accepted in the House of Lords.

This is a significant victory; the twelve-month ban is going, but is this the end of the story? The criminalisation of trespass remains. The power to seize homes on wheels remains. The two-vehicle threshold remains. The fines and the risk of imprisonment remain. The question of where Gypsy and Traveller families are supposed to go — legally, safely, with dignity — remains unanswered.

To answer these questions I interviewed the barrister who led the case for Wendy Smith in the High Court, a lawyer who has spent much of his career fighting for the rights of Gypsy, Roma and Traveller communities, and has been described as a leading expert in the area of Gypsy and Traveller rights in the UK. He is a King’s Counsel at Garden Court Chambers, a trustee of Friends, Families and Travellers, and also sits on the board of the European Roma Rights Centre.

Jonathan Lee: Marc Willers, welcome.

Marc Willers: Thank you very much, Jon. Really pleased to be here with you.

Jonathan Lee: Marc, you spent most of your career at the sharp end of Gypsy and Traveller law. You’ve described Gypsy and Traveler clients as down to earth, genuine, and some of the most appreciative you’ve ever worked with. What was it that drew you to this area of work, and why does it still matter so much to you?

Marc Willers: I first began representing Gypsies and Travellers in the UK back in the 1980s. I was sent along to represent a family of Romani Gypsies for my first case, and I just empathised with their position. Many of them were illiterate and didn’t really understand the court process very well, but their lifestyle and their homes were at stake. Without proper representation, they were at risk of being evicted from their land back onto the roadside with nowhere else to go, subject to a continual cycle of eviction, being pushed from pillar to post.

Having taken on that case, I was instructed on others of a very similar nature, and it struck me that there were very few people in the legal profession representing their interests with empathy and expertise. Ultimately there was a time in my practice where the only work I was doing was representing Gypsies and Travellers because there was so much of it coming to me and such a great need for it to be undertaken.

Jonathan Lee: On the point of eviction, for those who aren’t familiar with the Police, Crime, Sentencing and Courts Act 2022, could you explain in plain terms what it did and why so many human rights activists were so alarmed from the very beginning?

Marc Willers: The 2022 Act gave the police new powers — which they didn’t want, by the way, powers which they had specifically said before the Act was passed they didn’t need — to move Gypsies and Travellers on from a piece of land and to ban them from returning for a period of 12 months, on pain of prosecution, imprisonment, and confiscation of caravans.

The real problem with this 12-month period was that it was nine months longer than the period that a Gypsy or Traveller can stop on what are known as transit sites. So if a Gypsy or Traveller was banned from a piece of land for 12 months, they might be able to stop at a transit site for three months if they were lucky enough to find a space. But thereafter, they would be back on the roadside — continually moving, being pushed from pillar to post, unable to stop for any period of time and access the health, education and other services that people like you and me enjoy.

Jonathan Lee: The central figure in this case was an English Romani Gypsy, Wendy Smith. Without disclosing anything confidential, was her experience something like that? Can you tell us why her case was the right one to bring this challenge?

Marc Willers: Wendy Smith had no lawful stopping place. During COVID, she was allowed to stop on a roadside parking bay in Yorkshire for a considerable period of time. But when the pandemic was over, the local authority began putting pressure on her to leave. As soon as she was back on the road, she would be subject to these very same powers. With the aid of the York Travellers Trust and Friends, Families and Travellers, we were able to identify her needs, identify the risk she would face, and decided she would be the appropriate person to bring this case.

She was represented by a firm of solicitors called Community Law Partnership and a gentleman called Chris Johnson, who worked tirelessly for Gypsies and Travellers throughout his career. He instructed myself and my junior barrister, Ollie Persey, from Garden Court Chambers. We had our day in court up in Birmingham in front of Mr Justice Swift, who issued a Declaration of Incompatibility — a declaration that the new 12-month banning period was incompatible with the rights of Gypsies and Travellers protected by the European Convention on Human Rights.

Jonathan Lee: Is that a relatively rare step for a court to take?

Marc Willers: Yes, this is the only case where I’ve had a Declaration of Incompatibility issued, and I’ve asked for one on a number of occasions in the past. The judge clearly took the view that these powers — very much directed towards Gypsies and Travellers and their way of life — unlawfully discriminated against them in circumstances where they were being pushed out of areas with nowhere else to go and no other provision. He concluded that the Article 8 rights — the right to respect for one’s family life and traditional way of life — and the Article 14 rights — the right not to be discriminated against in the enjoyment of convention rights — were being violated. Although he couldn’t strike down the Act because our law doesn’t provide for that, he was able to issue a Declaration of Incompatibility, and that’s what he did.

Jonathan Lee: Do you think the evidence about site provision, or the lack of it, was crucial to winning this case?

Marc Willers: I do. The judge was particularly struck by the fact that whoever dreamt up these provisions had either ignored the fact that transit site provision only lasts for a period of three months, or had — notwithstanding that — extended the banning period from three months to twelve. Having declared that incompatible with the human rights of Gypsies and Travellers, it really gutted the Police, Crime, Sentencing and Courts Act of its most draconian elements. It makes it pretty much toothless.

I’ve said gutted and toothless! But I mean it’s taken away the effectiveness of the act. The provisions which the police, as I said, never wanted in the first place because they felt they had enough powers.

Jonathan Lee: I suppose the elephant in the room is that the ruling didn’t strike down all of the Policing Act powers. How should Gypsy and Traveller communities understand what the court did and didn’t decide?

Marc Willers: There are still some provisions in force which will affect Gypsies and Travellers if they’re ever relied upon. I think the reality is that the police are more likely to rely on the powers they had before the 2022 Act, because they are well known to them. But if these powers are used with any enthusiasm — particularly in circumstances where the complicated provisions aren’t properly complied with — then there will be scope for further cases. It may be that in a year or two, data shows they are being used by a particular police force in an inappropriate way, and we may have scope to bring another case.

Jonathan Lee: Just for context, these are powers such as the ability to seize property on wheels, to lower the threshold for action, to raise the fine amount, and to introduce the option of a prison sentence.

Yes. I mean, the new powers are slightly more extensive than the old powers. They give the police the opportunity to move Gypsies and Travellers on. In fact, it’s enough if there’s only one vehicle on a piece of land, as opposed to the previous situation where I think there had to be at least two. But the reality is that most of the Gypsies and Travellers that I represent move around with a caravan and a vehicle. So, they would already fall within the threshold of two vehicles under the old legislation. And more often they travel around in more than just single-family groups. So again, I don’t think that the Police, Crime, Sentencing, and Courts Act powers that are left in place after the Wendy Smith case’s Declaration of Incompatibility are going to be the sort of powers that the police will be very enthusiastic about enforcing.

But your question, I think, was how should Gypsies and Travellers understand the provisions?

Obviously, a lot of it will be word of mouth, but the reality is that there are these NGOs that work with Gypsies and Travellers who have set out on their websites – Friends, Families, and Travellers, for example – what the new powers are and how they might be enforced.

We don’t yet have a new version or a 4th edition of the Gypsy and Traveller Law book, which I’m going to promote! But we’re going to need one because this one was published in 2020 and already we have the Wendy Smith case, we have cases involving wide injunctions, we have other cases that are coming up in the courts which make this volume, which is very thick already, a little bit out of date. So, somebody, maybe me but others I hope, will need to update that book and set out the law as it now stands in some detail for everybody to follow.

Jonathan Lee: You’re always welcome to plug legal textbooks here at the ERRC.

Okay, well, that’s good news Marc! So, you don’t foresee the need really for further legal action to have the remaining powers removed entirely, because as it stands, it’s likely that these are just not going to be necessary?

Marc Willers: I don’t think they’re going to be used very, very often or with any enthusiasm by the police, given that they were so vehemently against their introduction. But there might be the odd rogue police force or even police officer who will use these powers or threaten to use them.

The problem is often the threat of these powers. The enforcement powers the police and local authorities have are often not used, but they’re threatened. When they’re threatened, Gypsies and Travellers tend to move on because they don’t want their caravans — their homes — impounded. Rather than face those situations, they will move on and hope that the next local authority or the next police officer is a little more sympathetic.

Jonathan Lee: Do you think this will create a sense of obligation for the government to address the shortage of lawful stopping places, considering this underpinned the court’s reasoning?

Marc Willers: Well, I mean, you mentioned the elephant in the room earlier on. The elephant in the room really is the failure of successive governments to tackle the accommodation needs of Gypsies and Travellers. Since the duty on local authorities to provide sites was repealed back in 1994, local authorities have done very little to make further social provision. For those who can’t afford to buy their own land and fight the planning battle — expensive and difficult as that is — social provision may be the only alternative. Without sufficient transit sites, without sufficient stopping places, they are in that perpetual cycle of eviction. And that does nobody any good and is perhaps the root cause of the inequalities that Gypsies and Travellers face.

Jonathan Lee: I want to ask you about the Gypsy Traveller Law Network. Why is it needed now and what gap does it fill?

Marc Willers: The network was designed to bring all those representatives of Gypsies and Travellers together, but also to grow so that lawyers, planners and others could be supported and encouraged to represent Gypsies and Travellers in circumstances where there really is, in many cases, a desert in terms of the provision of advice and representation.

Over the years — and that takes me back to 1988, nearly 40 years — there have been many stalwarts amongst the solicitors’ profession, barristers’ profession, and planning consultants who have worked tirelessly for Gypsies and Travellers. A lot of those I first worked with have sadly passed away or retired. What we’re trying to do is encourage younger members of the profession to take up the gauntlet and represent Gypsies and Travellers in planning, in family law, in discrimination cases. Get them the representation they need from members of the professions who perhaps wouldn’t otherwise have thought: there’s an issue here, and it’s a really big issue, and we need to address it.

Jonathan Lee: For a junior solicitor or barrister considering getting involved, what does this work offer that other areas of practice don’t?

Marc Willers: It’s an incredibly rewarding area of practice. Often the cases that have moved the goalposts in terms of the European Court of Human Rights’ position on discrimination are those brought by Roma and Gypsies and Travellers in Strasbourg, and the same applies in the UK courts. We have communities — Romani Gypsies, Irish Travellers, new Travellers, Roma — who have a rich history of traditions and culture which it is frankly a joy to understand or to have some understanding of, having worked with them. The clients I’ve represented from those communities have been my favourite clients of my 30 or 40 years of practice. And if you’ve had some success for Gypsies and Travellers in the higher courts, that’s the icing on the cake because that brings systemic change and changes everything for all the people in those communities.

Jonathan Lee: That’s what its all about isn’t it? Ok, I have three, sort of, big picture questions for you, The first is – when you look at the arc of Gypsy and Traveler rights –  to mangle a Martin Luther King phrase – the arc of Traveller rights from say Dale Farm to the Police, Crime, Sentencing, and Courts challenge, do you feel the law is moving in the right direction? Or is each victory kind of holding back a tide of hostility?

Marc Willers: I represented the families in the Dale Farm case. and I found that – although they were a joy to represent too, and the case was high profile, and it was hard fought – the reality was that there was absolutely no need for that eviction to take place…at great expense, I think it cost about 10 million pounds.

Jonathan Lee: The entire council budget for a year or something like that, wasn’t it?

Marc Willers: Exactly. All it achieved was moving 50 Irish Traveller families off a piece of land which had very little value but was their home onto the roadside, and the land they had been living on was dug up and left looking like World War One trenches. Much to the disgust of those very neighbours who had encouraged the council to take the action in the first place. It was a completely pointless and extremely expensive waste of time and money, which caused the families tremendous anxiety and stress and left them all homeless.

But more recently, I think courts have been more sympathetic to the arguments that I was running in the Dale Farm case. I represented another lady by the name of Smith, Lisa Smith, and we challenged the planning definition of what it means to be a Gypsy or Traveller, on the basis that it excluded all those who had ceased travelling because they were too old or too ill. The Court of Appeal upheld that argument — the definition was discriminatory, and it fell away. It has been replaced with a much wider definition by the current Labour government.

What I’m trying to say is that often what you find is that as a new government comes in — particularly before it’s elected — it will pander to the prejudices of the electorate, promise to enforce powers and force Gypsies and Travellers onto the road to nowhere, literally.

And that wins votes.

Then governments bring in new powers like the Police, Crime, Sentencing and Courts Act and we have to reactively challenge those powers and point out to judges that they are, in fact, incompatible with the rights of the convention, the rights of Gypsies and Travellers. It’s a bit of a cat and mouse game, and it depends sometimes on the political party that comes into power as to, you know, how much negative and retrogressive legislation we’re going to have to tackle.

But this is why we need the Gypsy and Traveller Law Network, because this is unfortunately a perpetual battle, but it is one that I think that many judges understand and one which many judges are ready to grapple with.

Jonathan Lee: What you’ve just described could be describing the situation in several European countries right now; even many, let’s say younger, democracies in which the notion of the prestige and uniqueness of their democracy is not so central to their idea of themselves as a country, as is the case in England or the UK. Particularly your points on how politicians stoke ethnic tensions for cheap political gains at the ballot box, and the judiciary, I mean, I’ve spoke to so many lawyers in different countries where educating the judiciary is a part of legal activism, particularly on things like indirect discrimination. We’ve had this in North Macedonia where it is literally case by case, trying to make judges understand this concept so it doesn’t have to go to the European Court of Human Rights every time.

So…from what you’re saying it sounds like progress within the judiciary is visible then?

Marc Willers: And I think amongst lawyers too, I think the legal profession – we do read the cases as they come out – and each case that explains the law and maybe advances it in some way will have an impact amongst the legal profession. The problem is that it’s not reported in that way, if at all. Successes are very rarely reported by the mainstream media. But if it is reported, it’s usually reported in a negative and inaccurate way, and then often used by those who are anti-gypsy, anti-traveller, as a kind of a stick with which to beat the Gypsies and Travellers and bang their own drum.

Jonathan Lee: Considering the way politics is moving in the UK at the moment – well, in Europe at the moment – but let’s concentrate on the UK for now, do you think that the rule of law has a greater role right now in preserving progress against the direction of travel of far-right politics in Britain?

I’m just thinking that there was: the UN Committee on the Elimination of Racial Discrimination calling on the UK government to repeal the remaining powers of the Police Act. There was a High Court ruling, there were years of civil society pressure to bring about this partial reversal of the Act…or is that my occupational habit, kind of reading too much into things and seeing democratic backsliding at every corner?

Marc Willers: The rule of law and its preservation is crucial to the existence of a democratic society and should be fought for with every weapon we have. We see certain sections of the media trying to undermine it in this country, in the US, encouraged by President Trump and his cohort. And across Europe there is definitely a copycat approach taken by politicians in countries like Hungary, where they effectively think that might is right, rather than what is lawful is right.

In the Wendy Smith case, we asked that the whole set of provisions aimed at Gypsies and Travellers be declared incompatible. The judge wasn’t prepared to go that far. He saw the strength of some of the arguments, but not all of them. And it’s taken nearly two years for a government — one more sympathetic than the last — to put provisions before Parliament to repeal those incompatible sections. Declarations of Incompatibility, when they are issued, still take some time to filter through to a change in the legislation.

When it comes to the rule of law, we need to be vigilant, whatever the legislation being put before Parliament and whichever party is putting it there. I mean, one only has to think of the new provisions that this Labour government are putting before Parliament and have already put before Parliament relating to protest and restrictions on the rights protest. Many of those provisions, I would say, are incompatible with the European Convention on Human Rights. Some are almost certainly already the subject of litigation and may be ruled unlawful. Others already have been. The prohibition of Palestine Action and others have been challenged in that case successfully.

So, you know, it doesn’t really matter whether it’s a Labour government or a Conservative government. Governments like to restrict protests which will be aimed at them and also will often feel under pressure or sometimes be quite happy to pander to the needs of those who elect them, but also who are quite discriminatory when it comes to Gypsies and Travellers.

Jonathan Lee: Final question. No one likes making predictions, least of all lawyers, but do you think we’re looking at a world where, ten or fifteen years from now, we won’t have the European Convention on Human Rights to fall back on?

Marc Willers: I think we’ll still be in the Convention. The current Labour government will keep us in it. I think there may be some, dare I say, some tinkering with some of the provisions to satisfy some of those who are particularly critical of the scope of the convention, but the European Convention on Human Rights protects rights which all of us would want to have.

The right, not to be killed.

The right to respect for one’s family life, the right to marriage, the right to a fair trial.

These are rights which, you know, are pretty much intrinsic in our common law as well as our as well as the European Convention on Human Rights. I mean, after all, it was the Conservative government of the day back in the, I think it was in the 1950s, who helped draft the Convention.

And I don’t see that – unless we have a Reform government and even then, they may have difficulty pushing it through – that there will ever be a majority in parliament who will want to get rid of the Convention, notwithstanding the attention that is put on, that the mass media, particularly the right wing newspapers, you know, have put on the Convention and what they perceive to be its prohibition on the immigration rules that we have in place.

The reality is that the Convention and the Strasbourg Court rarely rules against the UK government, it very rarely rules against the UK government. And when it does so, it’s only usually in circumstances where there’s been a flagrant breach of the convention rights, which is really indefensible.

I think what we need to do is talk up the convention, explain and educate those who still think it’s part of it’s something to do with the EU, which it’s not. Explain to them exactly what rights it protects and how it would be detrimental to individuals’ rights if it were ever removed from the statute books.

Jonathan Lee: Marc Willers, thank you very much.

Marc Willers: Thank you, Jon.

* The term Gypsies in the United Kingdom is the self-identifier used by Romani people and does not carry racist connotations. Travellers refers to an indigenous, nomadic group who originate mostly from Ireland and Scotland and share some cultural traits with Gypsies despite being a different ethnic group. Roma in the UK refers to Romani people who have emigrated to the country in modern times, usually from Eastern European countries. The government often uses the term GRT (Gypsy, Roma, Traveller) in policy to refer to these communities collectively.