Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[Windy]

I see that the legal experts cannot agree on this topic.

Which legal experts are you referring to ? If you maintain that the Reverend Caffyn is such an expert then his expertise should be established. The quality of legal argument contained in his published theses do not, I regret to have to say, appear to sustain a claim to such expertise.
As a historian and researcher of river use he is excellent.
As a lawyer, not.
PS. If you want my CV, then in abbreviated terms, University of Durham BA in Law 1980, Bar Finals 1982, Pupillage in Lord Rawlinson of Ewell's Chambers at 12 King's Bench Walk, thereafter 25 years solvent practice as a Barrister in various Chambers as a general common lawyer - a dying breed, these days everyone is a specialist - until a minor heart attack prematurely stopped play. I do not claim to be an expert in river or navigation law, but I know enough to be able to research, understand an analyse the basic issues.

I have no way of knowing who is right. I see that realistically, canoeists cannot be prevented from acting on their interpretation because no one is prepared to sue them.

That is the strength of the present campaign of civil disobedience. The individual case rarely causes sufficient damage in trespass to be worth suing and, if properly argued, carries with it the risk of the luckless Claimant landowner being dragged into a case with the potential of going to the House of Lords / Supreme Court as now is with £millions in costs either way.

That does not mean that the game stops there. Ha ha yah boo sucks, you daren't sue me, I can trespass with impunity....

Sooner or later sufficient landowning parties, rich toffs if you will, will club together to seek a restraining order on the basis I have previously outlined. Believe me, it will take a lot to push them into it, but once you get the mass of the Salmon and Sea Trout water owners sufficiently angry at the real threat to their income and livelihoods that they ally together to make and share the costs of it then I am damned sure that appropriate injunctions on the Stonehenge precedent basis will follow. And their combined resources mean that the costs of taking it to the end are not an issue.

So the canoeist paddling up and down a Salmon beat hired out to Japanese businessmen at £10,000 a day is, sooner rather than later, going to find himself (a) in contempt of Court, (b) liable for damages of £10,000 a day for the said Japanese businessmen's loss of sport and (c) liable to fines and imprisonment for contempt. Ditto the canoeist who disrupts the less valuable but nonetheless substantial 200 peg coarse fishing match at £50 a head plus pools.... less posh maybe, but the same £10,000 damages.

And those who encourage, counsel and procure such contempt are equally liable to proceedings, hauled up for contempt and sequestration of assets. It is no wonder the likes of the BCU and others are treading with caution and toning down their stance. Tears before bedtime await I fear.

If Anglers and Canoeists got together (99% of both communities, I assume to be perfectly reasonable people), a joint solution could be presented to the politicians. I think this position is the antithesis of Anarchy.

It isn't the 99% of reasonable people I fear for. It is the 99% of reasonable ordinary people led out of their law abiding lives into trespass, criminal conviction and risk of bankruptcy for damages and costs at the behest of politically motivated activists that I worry about.

Windy, with respect, are you going to present your assessment of the legal position impartially, or are you acting as advocate for the angling fraternity? Both are honourable objectives, but we should know your position...

As a Barrister you are never impartial.

Your duty is always first and foremost to the Court.

There, and you thought I was going to say Client didn't you ? Too many American movies.

Primary duty to Justice and the Court, never to mislead a Court, never to seek to argue a proposition which you know has no support in law or fact and to do your damndest to facilitate the proper, honourable and ethical conduct of litigation.

If you know of a case against you you must cite it and argue it, even if your opponent has missed it and fails to cite it. Believe me, it;s not easy explaining that one to a client who has paid your fees but lost the case because you have cited the case against him in those circumstances.

The and only then is your duty to your client, to follow instructions so far as not bound by the primary duty, and to do your damnedest. And losing sucks, you always want to win. But that is all in an adversarial context.

Here I am (these days) a fisherman who has a legal qualification, used to canoe, has nothing against canoeists but deeply worried at the way that it seems the canoeing fraternity is being led into a campaign of substantial and damaging civil disobedience that is politically motivated and liable to end in tears on the basis of spurious and tendentious grounds.

If I am partial in any way it is partiality in favour of people obeying the law, not being lied to about what the law is and manipulated, and doing our best to work towards peacefully coexisting together. If that's a bias it's one I am proud of.

Fred
It was because of this response from Windy, that I asked this question... On the one hand he talks about his " opponent" and the other he talks of being "neutral"... I found this confusing.

Secondly an advocate is not required or expected to be impartial.. His job is to win his client's case... hence my question...

I am sure Windy understands this full well and will enlighten us as to his position. He might say my understanding of this wrong... I am no lawyer, so he could be right...

It's very hard to try and be neutral and I am not pretending to be. I think the activist canoeing lobby is legally in the wrong and clearly in the wrong and that they know it but don't care a stuff. Their interest is in fomenting class war and dragging a large number of otherwise well meaning members into unlawful behaviour that will have long term and damaging consequences for them personally and for the paddling sports in general.

Damage that the activists behind it simply don't care about.

Geoff I think I am being thick - who won the Andy Biddulph thing ? what was the outcome ? It looks like from his website he is still fighting the case.

I believe he dropped / did not pursue the case, as unable to risk the costs of elevating the matter to the Higher Courts. Which I entirely understand and credit, and which says nothing pro or anti the merits. Many a meritorious case has not been pursued to Appeal because of the enormous costs at stake. Worse. This often leaves an incorrect judgment standing as the precedent.... one of the weaknesses of precedent based law.

 

[geoffmaynard]

Windy. On behalf of all of us, thank you for commenting on this issue at length. In the face of all the misinformation and spin presented by the paddle-anywhere lobby, it's very good to have a clear and defined legal position expressed and to have some of the misconceptions clarified. It's one thing to 'believe' something and quite another thing to Know it. Ta.

 

[waterways]

Windy
Thanks for setting out your opinion so clearly.

Can you explain how canoeists would come to suffer the dire consequences you threaten. For example, I understand that the penalty for civil trespass by a canoeist will generally be some trivial amount because the canoeist causes no damage, and an injunction not to do it again. If he obeys the injunction, what circumstances will lead to him or others being bankrupted and so on?

Will he bound by the injunction not to paddle in the same place again, or or in another place on the same river? Will other canoeists be bound by the same injunction?

You can perform an important function in this debate by explaining to canoeists the real risks they are taking. Although if you want to get your message across might resist calling them fools or liars, (lol)

I apologize if you have already answered this question... This legal stuff can be hard to follow.

 

[Peter Jacobs]

Windy. On behalf of all of us, thank you for commenting on this issue at length. In the face of all the misinformation and spin presented by the paddle-anywhere lobby, it's very good to have a clear and defined legal position expressed and to have some of the misconceptions clarified. It's one thing to 'believe' something and quite another thing to Know it. Ta.

I would very much like to echo those sentiments as well Evan, many thanks for setting it out in a straight and relatively simple format that anyone should be able to follow.

 

[david perry]

1. Jeff, the BCU does not represent me. A large proportion of canoeists do not belong to the BCU.
2. The campaign by the BCU, I understand is to obtain new law that gives canoeists a legally stated right to canoe (at least that's my understanding of it.) like they have done in Scotland.

So at the moment there is no law that says I can, and no law that says I can't canoe.

So for the moment it's a bit like, for example, when hang gliders were first introduced. There was no law regulating them so providing you didn't infringe restricted air space and broke CAA laws you didn't need training nor a licence. But things have changed and now there is legislation.

There have been a handful of cases against canoeists. Only one I can find involved tresspass, which to succeed for the plaintiff must claim that damage was done (tresspass on it's own is not against criminal law). In the Ranson v Peters 1972 case the fishery were successful in claiming damages of .....50p.....!!!!

The only other case I know about involved prosecution by canoeist/s for disturbing spawning grounds under the Freshwater Fisheries Act 1975 which I'm sure you are familiar with.

I am quite surprised that anglers generally are not aware of the fact that the water in the fishery cannot be owned. The riparian owners may have certain rights and entitlements but you don't own the water in the river.

That said, until the law changes or perhaps an angling body successfully establishes case law to the contrary, there isn't much Anglers can do about it as made clear in 'Angling & the Law', by Peter Carty & Simon Payne 1998

That said, I'd like to point out that I find 99% of anglers perfectly reasonable and polite. Equally I always ask which side I can pass, and I'll sometimes wait until it's convenient.

I try to avoid rivers & days where there might be a few to many anglers around so most of my canoeing is when it's either pouring down and/ or the rivers are in spate, outside the fishing season.

Like most problems in life, it's the small minority that spoil things.

 

[geoffmaynard]

Welcome David. I suggest you read back through the pages to Windy's statements before you dig yourself in any deeper

 

[Jeff Woodhouse]

Welcome David

the BCU does not represent me. A large proportion of canoeists do not belong to the BCU.

The BCU as I understand pays a charge, I did hear it was something like £37,000 per year for it's 50,000 members (less than £1 per member) to paddle on navigable waters. If you're not a member of the BCU what do you pay, if you don't mind me asking? Or do you register your canoe with the authority(ies) in the areas you intend to paddle?

Also, it's a bit like the argument on here about the Angling Trust, it is the representative body of all anglers even though most are not members. Makes no difference, when it comes to dealing with the Government the Trust represents them. I believe the BCU is the representative body for ALL canoeists, ergo you also whether you like it (and pay) or not. No matter, my question on what you pay for your craft stands.

I am quite surprised that anglers generally are not aware of the fact that the water in the fishery cannot be owned. The riparian owners may have certain rights and entitlements but you don't own the water in the river.

Been there already. Peter Carty, who I am in contact with quite often (works for the EA now), may refer to the water being free, if that is what you are also alluding to. However, read through the Windy posts (as pointed out by my friend above) regarding ownership of the river bed space and sky, air, into the uppermost parts of the atmosphere (wtte) and you will see what we mean. In fact Peter and the Land Management team at EA were quite helpful to me recently on the ownership of some river bed we (our assoc.) had questioned. This was important although nothing to do with navigation on this occasion.

 

[david perry]

What do I pay?
I used to be a member when I was an instructor as that way you had access to their qualifications. I'm not an instructor anymore so no need.

Pay?? = Nothing, unless you want the old red herring of taxes. I don't paddle canals so I don't need a British waterways ticket. (Too flat!) I wouldn't object to paying having said that. I guess the BCU does, or will, represent canoeing and kayaking as a sport much like the AT, whether you like it or not.

Incidentally, I've never paddled ' up and down' a peg or beat. (Windy makes that comment once or twice). Only down!!

 

[Windy]

Windy
Thanks for setting out your opinion so clearly.

....Although if you want to get your message across might resist calling them fools or liars, (lol)

I do not believe I have called anyone or any reasonable person a fool or a liar.

I do not believe political anarchist activists to be fools. To the contrary, they are very intelligent in the way in which they foment confusion, put forward and promote spurious legal bull ordure and use it to all to inflame misplaced indignation and an angry but inaccurate perception of denial of rights in otherwise reasonable and law abiding canoeists. Human shields if you like,the analogy isn't exact but fits. Twenty or thirty anarchist activists on their own aren't going to get anywhere. Their strategy is plainly to foment civil disobedience in the wider canoeing community to provoke mass protest by otherwise law abiding people who wouldn't otherwise dream of parking their car in the neighbour's drive because the Romans had no parking laws...

Reasonable people who would never otherwise dream of engaging in a campaign of civil disobedience liable to cause real upset and damage to them personally.

---------- Post added at 22:56 ---------- Previous post was at 22:50 ----------

Windy

Can you explain how canoeists would come to suffer the dire consequences you threaten.

I thought I had and as clearly as I can in post 221 above.

 

[barney20]

I never mentioned CE.

I was talking about the BCU, that is your organisation and one would have thought they have spent a considerable amount of your money already looking into this. They say you don't have the right, that is why they want a campaign to get that right.

Canoeists (et al) join the BCU to represent them (presumably) and they do this and come up with a plan to try and obtain those rights. It fails, I concede that they may try yet again later or go for appeal, but for now, the jury has sat (Mr Benyon) and has decided there will be no change to the present position, i.e: YOU DO NOT HAVE THE RIGHT TO PADDLE ANYWHERE YOU LIKE!

This is getting a little bit like talking to brick walls. It may not have been the answer you were looking for, but until the Minister in charge at any time in the future decides there will be a change you are still not allowed to paddle where you like. You can only paddle on rivers where there is a right of navigation and others where you have first of all obtained voluntary permission.

Now that is in just about as plain English as I could think of putting it. It doesn't have to be settled by a Judge in Court. Whether you are happy with that situation or not, it is fact! Do not paddle where you shouldn't otherwise what is the point of joining your precious BCU?

What part of the above is NOT clear?

What is clear from the above is that you did not read all of my post.

You say you did not mention CE, the phrase you used was "Your Organisation" CE is the English section of BCU. It is CE who are dealing with the access situation in England. The campaign they have launched is fairly new and still in progress, so it has not "failed".

Mr Benyon is a Government minister, as such he can work with parliament to create new laws or remove old ones. He can not act as Judge and/or Jury on old ones. If the right to navigate exists it can't just be removed at his say so, if it doesn't exist it can't be granted at his say so.
All he has done is to say that he would like anglers and canoeists to get along and work together, which is a fairly standard government response to any kind of conflict or disagreement.
For clarity Mr Benyon did not say we do not have the right to navigate.

---------- Post added at 16:42 ---------- Previous post was at 16:05 ----------

Windy, You have outlined your reasoning behind your opinion that there is no right to navigate clearly and in a way that most of us understand, I am grateful for this, I realise you probably have better and more pressing things to do with your time.

There are a couple of points that you have not fully covered that are a strong part of the argument put by those who claim there is a right to navigate.

1) The Act for Wears and Fishgarths 1472 is a law created to keep all rivers clear of these obstacles, so that they could be navigated. So surely this shows that the right to navigate existed in 1472.

2) Most Navigation Acts passed by parliament, state that it is an Act to improve navigation and do not confer the right to navigate. Again this shows that the right to navigate must have already existed.

Neither of these points are conclusive evidence in their own right, but each is a piece of evidence that could be part of a wider case.

 

[geoffmaynard]

Mr Benyon is a Government minister, as such he can work with parliament to create new laws or remove old ones. He can not act as Judge and/or Jury on old ones. If the right to navigate exists it can't just be removed at his say so, if it doesn't exist it can't be granted at his say so.
All he has done is to say that he would like anglers and canoeists to get along and work together, which is a fairly standard government response to any kind of conflict or disagreement.
For clarity Mr Benyon did not say we do not have the right to navigate.

Have you actually READ any of the posts Windy has made? Or are you a Vogon poet?

---------- Post added at 01:00 ---------- Previous post was at 00:54 ----------

(Sorry, that reads as if I intend to be rude but I don't.)

 

[twotrucks]

Which legal experts are you referring to ? If you maintain that the Reverend Caffyn of Caffyn's Motors is such an expert then his expertise should be established.

You have said that you haven't had time yet to thoroughly analyse Caffyns arguments and I respect that, but to to then take cheap shots at the man's background instead is a bit weak. By all means tell me where his arguments are wrong, most things that he says that I have any personal knowledge of are observably correct so I would love to hear a substantial critical counter opinion..

That is the strength of the present campaign of civil disobedience.

Again, you are showing your bias here, there is no shadowy "campaign" of anything and characterising activity which is not unlawful and which follows a pattern of historic usage as "civil disobedience" shows a fair amount of hyperbole. Just a bunch of folks going about participating in their sport.

Sooner or later sufficient landowning parties, rich toffs if you will, will club together to seek a restraining order on the basis I have previously outlined. Believe me, it will take a lot to push them into it, but once you get the mass of the Salmon and Sea Trout water owners sufficiently angry at the real threat to their income and livelihoods that they ally together to make and share the costs of it then I am damned sure that appropriate injunctions on the Stonehenge precedent basis will follow. And their combined resources mean that the costs of taking it to the end are not an issue.

Sure, that could happen but I suspect that it probably won't. You see they could go to all of that expense and trouble and if they loose they loose forever but even if they then "win", which lets say is a 50/50 chance, the government would then come under significant pressure to address the issue by the resulting political backlash. I'm not an expert on all of this at all but haven't we got the long term backlash from the Stonhenge action to thank for the development of modern rights of way statute? I think that many will find it hard to sign off on a business plan with that kind of proposition.

I don't really see where you are coming from on the consequences of folks ignoring injunctions, because nobody is doing that nor would any reasonable person be likely to. Strangely, despite the clarity of the current law that everyone talks about, no such injunctions have been obtained have they?

It's very hard to try and be neutral and I am not pretending to be. I think the activist canoeing lobby is legally in the wrong and clearly in the wrong and that they know it but don't care a stuff. Their interest is in fomenting class war and dragging a large number of otherwise well meaning members into unlawful behaviour that will have long term and damaging consequences for them personally and for the paddling sports in general.

I've never met an activist of any kind that had even an inkling of self doubt much less knew they were in the wrong I do however think that you are seeing dark shadows where none exist if you think there is some class based political undertone here. One of the great things about fishing is that it seems to attract folks from every background and the areas of conflict between paddlers and anglers are just as likely to see middle class university students being sworn at on the river bank by grass roots locals on some small Welsh river which really doesn't fit your picture.

I've never really had the patience for game fishing, but know quite a few people who have and who spend a lot of time and money on it, including some close family members. Lots of them also canoe or have canoed and I've never really seen it as an area where there should be conflict. If I'm out paddling and I come across an angler, I treat them and their sport with the same respect that I would expect to be given. Listening to a few folks on both this forum and canoeing forums I'm pretty astonished at how polarised view on access are.

I believe he dropped / did not pursue the case, as unable to risk the costs of elevating the matter to the Higher Courts. Which I entirely understand and credit, and which says nothing pro or anti the merits. Many a meritorious case has not been pursued to Appeal because of the enormous costs at stake. Worse. This often leaves an incorrect judgment standing as the precedent.... one of the weaknesses of precedent based law.

The fact that he allowed the case to be struck out when it became clear that he didn't have the resources to follow through was a stroke of good fortune for the paddling cause. His case may have been a good one, we will never know, but the fact that he chose to persue it in the way that he did was in my opinion highly inadvisable.

I've actually met Andy and he is a really nice guy, but he has a real bee in his bonnet about canoe access. With good reason really, the local fishing club are willing to negotiate a VAA with, wait for it ... one whole weekend a year of Canoe access. This is taking the mickey in the extreme and no real wonder it drives people like Andy potty.

If there is ever going to be a solution other than either the current conflict or government legislated sharing on our rivers then everyone is going to have to show a lot more good faith!

 

[Peter Jacobs]

But it seems he did not withdraw because he was proven wrong ( I have just been reading his thread on sotp ) but because of legal issues and costs , very similar to the ones Windy has mentioned above.

Alternatively, he could have been advised that his case was likely to fail and therefore decided on not creating a precedent?

Just a thought . . . . . . . ?

 

[Windy]

You have said that you haven't had time yet to thoroughly analyse Caffyns arguments and I respect that, but to to then take cheap shots at the man's background instead is a bit weak.

I haven't said that at all. Don't you start trying to weasel words into my mouth.

I have had time to read both of the Reverend Caffyn's theses in full. I have had time to jot down five pages of my own colloquial notes and arguments as a preliminary to drafting what, when I was in practice, would be a formal opinion. I have thoroughly analysed what he says, read his sources and formed my own and - I believe - thorough opinion.

It's the drafting I haven't had time for as I am presently working 12 hour days trying to earn a living. Toff I ain't. I likely won't have the time until the New Year at the earliest, unless I devote the whole of Christmas Day and Boxing day to the task. Nope. That's not going to happen, not least because the other half would murder me. And then who would write it .

And gimme a break, it generally takes two years research for a Masters and three for a Doctorate. You expect me to dash off a complete reply to five years work and 400+ pages plus reams of appendixes in five minutes ? Please.

Plus which I am fully well aware of the fact that any minor infelicity in phrasing, possible ambiguity or irrelevant error will be seized upon and sought to be used as a way of avoiding the truth of the matter and to continue asserting that there is some merit in a claim to a right which there is not. Though you will anyway, regardless, we both know it. Repeat something loud enough and often enough and people will fall for it. Sad but true.

Plus which a formal opinion takes some time to draft and wouldn't, I think, be appropriate in this instance either.

A formal opinion is drafted for the use of one's professional client (ie. the Solicitor instructing), so lawyer to lawyer. It does not therefore need to include endless explanation of legal basics, so the advice can often be put quite shortly, trusting and leaving the Solicitor the task of interpreting it to the Lay Client.

To be of any help here I think that I need to draft something in more accessible language with explanations of concepts that I wouldn't normally include,

eg. the fact that Roman law played no part in the foundation of the Anglo Saxon Common law in Britain, as modified by the addition of Norman French concepts after 1066. That anyone trying to found a modern right on the suggested miraculous survival and revival of a Roman law 1968 years after the Romans left is frankly more than a little bit barking. Little things like that.

So pardon me if I take the time to do the job properly.

Not that it matters, I know full well that whatever I say and however well I put it you and our other new members of the forum will keep on endlessly banging on about it being ambiguous, arguable, infringement of rights etc etc relying on the fact that if you repeat something over and over loud enough and often enough some people will come to believe it.

---------- Post added at 11:59 ---------- Previous post was at 11:52 ----------

I've never met an activist of any kind that had even an inkling of self doubt much less knew they were in the wrong

You said it.

With their slogans to the fore, By Any Means Possible and the Ends Justify the Means.

 

[Peter Jacobs]

relying on the fact that if you repeat something over and over loud enough and often enough some people will come to believe it.

Probably due to the fact that they may well be followers of the Snark?






















"What I tell you 3 times is True"

 

[Windy]

...to then take cheap shots at the man's background instead is a bit weak.

What background ?
Precious little or nothing.
I would have expected to find even a brief CV setting out his qualifications on his own website at the very least. I was very surprised not to.

What cheap shot ?
When assessing what weight and reliance to place on any legal opinion the qualifications, background, experience and eminence (or not) of the author couldn't be more relevant. Hence why I summarised mine, tho I am frankly very cautious about going too far down the biographical path, given the behaviour of activists in recent years. Huntingdon life sciences and digging up Granny's corpse anyone ?

Anyway, why rely on a couple of degree theses in the first place ?

If the argument has merit where is the BCU and other canoeing bodies Q.C.'s Opinion on the subject and why hasn't it been published ?

'twould far outweigh and trump any opinion of mine. I'm not a specialist in the field and never even close to the dizzy heights of Silk.

I suspect the answer is fairly obvious.

 

[Jeff Woodhouse]

I just read a BBC report on the Revd Caffyn and found this -

The Rev Caffyn said: "My view is that the earth was created by the lord and everyone should have the right to appreciate the beauty of the countryside.
"People should not be allowed to purchase a piece of land and exclude the general public all of the time. I think that is wrong."

I just wondered if he owns any land at all. I know I wouldn't like people walking all over my front garden as and when they please and after that it's just a matter of size.

 

[Berty]

His religious thoughts could also be argued by many! But that's probably all I should say.

 

[Lord Paul of Sheffield]

I just read a BBC report on the Revd Caffyn and found this -

The Rev Caffyn said: "My view is that the earth was created by the lord and everyone should have the right to appreciate the beauty of the countryside.
"People should not be allowed to purchase a piece of land and exclude the general public all of the time. I think that is wrong."

I just wondered if he owns any land at all. I know I wouldn't like people walking all over my front garden as and when they please and after that it's just a matter of size.

can a similar thought be applied to women :wh

 

[Fred Bonney]

Brilliant Windy
Now, how many times have I mentioned on these forum about the loud shouters, and the nit pickers ?

I do not accept, that just because somebody keeps shouting out their answers that they are the correct answers, and when the nit pickers start, their only purpose is to try to throw one off the track of the original subject as their argument has failed.

Thanks you again Windy for having the ability to sort the wood from the chaff.


I rest my case your Lordships!