Benyon Rejects Canoeists’ ‘Right to Paddle’ Campaign

[jasonbean1]

benny...as you can see the law is vague and disputed by both sides, paddlers know full well they will get away with it legally until a case goes to court and is won by the anglers/land owner, so this becomes a very big but simple problem for anglers and has the potential for large scale confrontaion on the banks between anglers and paddlers.

again benny this not an ideal world 50% of the paddlers may be ok but the other 50% will not give a flying **** about anglers, the river or the environment...so i'm with berty on this one and at a minimum the ATr's stance is the only way forward for anglers and there rights

cheers
Jason

 

[Berty]

But surely the key to it is what's legal ?

Benny, they have been told it's illegal to trespass, even on water, they are choosing to ignore it.

 

[bennygesserit]

Benny, they have been told it's illegal to trespass, even on water, they are choosing to ignore it.

As they believe that its not trespass and they believe they are not acting illegaly

 

[Berty]

As they believe that its not trespass and they believe they are not acting illegaly

So did Hitler.

 

[Windy]

So did Hitler.

Oh dear. Godwins law time....

 

[Berty]

Oh dear. Godwins law time....

Were they related then, or meet on a forum?..........clever bloke that Mike!

 

[Windy]

I have just spent an unedifying couple of hours reading this lot and trying to sort the wheat from the chaff. Appealing to me as an ex-lawyer to cast definitive light on this lot is a waste of time, as its not really about the legal issues as far as I can see unless someone takes the trouble to enforce the fairly clear law as it stands.

I can't really do better in the first instance than endorse the text book passage cited and quoted by BennyG at page 4 post 31 in this thread.

There are so many fudged confused and legally misconceived assertions and suggested conclusions in this thread that I find even my legendary loquaciousness inadequate to start compiling an answer to all of them in less than a thousand paragraphs, so I shan't even start trying.

But.... I have a few points I think I might helpfully make. Not necessarily in any particularly logical order or importance etc, just what comes to mind as stream of consciousness following the stream of navigation of this thread*

---------- Post added at 16:50 ---------- Previous post was at 16:43 ----------

Point one, understand your opponent and yourself. The veracity and reliability of any witness is to be understood in the context of who they are, their background, preconceptions and prejudices. "Where they are coming from" in modern parlance.

Me: Used to be a quite keen canoeist, dating back to my Scouting days and into my late 20's.
Got nothing against canoeists as a group from my position as a fisherman.

Ditto started fishing about the same age, ditto nothing against fishermen in my capacity as an occasional canoeist.

So maybe I am a reasonably neutral person considering the issue ?

What I do have a problem with is zealots. Single minded zealots and fanatics of any type, believers and advocates of anything ending in 'ism.

 

[Berty]

Will your posts run for longer than Coronation st Windy?

Remember you can't charge us £2658,64p per letter nowadays and a simple "yes it's illegal" would surfice............i'm sure it was waffling that got Hitler involved in the first place!

 

[Windy]

Second, formulate the question you want answered clearly and then ask it.

Half the posts in this thread are purported answers to questions and propositions that haven't been asked and rhetorical garbage of the "If they haven't been prosecuted then that means they are in the right..." style just makes my head hurt.

Particularly when, as Posh has pointed out, you can't be prosecuted for simple Trespass. 1st year O level law, all those "Trespassers will be Prosecuted" signs were and always have been wrong.

a simple "yes it's illegal" would surfice........

And that's the clearest possible demonstration of exactly what I am getting at in this thread.
WTF do you mean by "it's" ? There is no one single question in this thread but a mish mash of propositions and suggested conclusions that proceed on unspoken and unarticulated premises and assumptions.

 

[Berty]

Wake me when you get to the juicy bits Windy.

 

[Windy]

So, what questions can I extract from this muddle that I think people are trying to ask and then try to answer.... tho its a lot easier if I don't have to guess.

1) Is the Magna Carta good law ?

Nope. It was repealed almost immediately after signature by Papal Bull. A Papal Bull had direct effect in English law at the time, was valid and final. Various provisions and clauses which were in the Magna Carta were re-enacted and re-framed in various charters and statutes thereafter. It is more than arguable that the effect of Papal Bull was to render such re-enactments void ab initio, but in any event almost all of the clauses so re-enacted have been repealed or over ruled by subsequent and more modern (ie. circa post 1700) statutes. Anyone invoking the Magna Carta in an argument about English law is IMHO just invoking a sub-division of Godwins law and loses credibility from there on.


2) Is there a general right of navigation over all the water in England and Wales that entitles you to paddle a canoe or kayak on ?

Answered in the extract posted by BennyG: No. Simples. Not so simples in application though.

---------- Post added at 17:14 ---------- Previous post was at 17:07 ----------

3) Is a canoeist / Kayaker trespassing when navigating a water in which there is no general right of navigation ?

Yes.

Terry Wright's suggestion that there is no trespass because the person doing the navigating is floating in the water above and not touching the owned property of the riverbed below is wrong and misconceived.

The owner of land in England (and a quick pardon me to any other lawyers wincing at my simplifying this complicated issue) basically owns the rights to the land to the centre of the earth below and to the furthest extents of the water, air and universe above.

(Although in an amusing (to lawyers) (sad people that we are) it is worth remembering that the only person who in fact owns any land in England and Wales is the Queen. All other "ownership" as we mistakenly call it is simply a fee or other holding held of and from the Queen as original source. She owns it but allows us permanent rights to act as if we owned it).

---------- Post added at 17:18 ---------- Previous post was at 17:14 ----------

4) Is a trespassing canoeist committing a criminal offence so that he or she may be prosecuted ?

Obviously not, as simple trespass is a civil wrong or tort which has nothing to do with the criminal courts or jurisdiction

The big weakness of simple Trespass however is that in general (a) the complainant needs proof of some actual damage (whether physical or inchoate, such as financial) to bring a suit, (b) in the absence of such damage the suit may not lie at all, or at best only nominal damages will generally be recovered and (c) nominal damages do not usually mean that the Defendant canoeist will be required to pay the Claimant's costs.

What is more important and potentially far more useful is the entitlement to obtain a general injunction to protect the legal right not to be the victim of trespass, the so called anticipatory restraining order, of the type used to prevent the uncontrolled invasion of Stonehenge every year at the solstice which used to happen. The way in which such an injunction operates is that it is addressed to one or two ringleaders advocating the trespass. Anyone not named in the order BUT who proposes to join in with or support that person in doing so is just as bound by the injunction as the named parties. That proposition was upheld in the House of Lords, remains good law, and means that the Claimant plagued by a horde of individually unidentified or anonymous activists does not need to identify the individual defendants or serve them personally with the order.



---------- Post added at 17:19 ---------- Previous post was at 17:18 ----------

5) Is it possible that a trespassing canoeist can be guilty of a criminal offence, to wit Section 5 Public Order Act and / or Aggravated Trespass ?

Yes.

A trespassing canoeist who decides to paddle disruptively through a fishing match or similar causes real damage - required for the suit, but plainly sustained by each angler who has paid a fee or subs to fish the match, only to have the enjoyment of that right damaged and reduced in value.
Equally that damage is sufficient in my opinion to found a prosecution for Aggravated Trespass.
Ditto the intent or recklessness inherent in bloody mindedly trespassing in that way is bound to fall within the harassment provisions of Section 5, even as amended (please the Lord) to delete the word "insulting".

The fact that no such prosecutions or general injunctions (see Q4 above) seem to have been brought or sought by anyone as yet is irrelevant.

If fishing on a valuable water such as the Wye has been and is being ruined then, assuming that there is no general right of navigation established in the area of that ruination (and I don't know one way or the other about the Wye, just mentioned it as it has been used as an example of damage in this thread) then it is up to the owners of those waters, banks, subsoil and fishing rights thereon to pull their finger out and pursue the appropriate injunction. If they don't then it's their problem for not enforcing their rights. Breach of an injunction* does not require proof of any damage, is a Contempt of Court, and punishable as such, by every power available to a Judge, including fine and even imprisonment.


* (or restraining order in the new jargon, but pardon me for preferring and using the old lingo with which I am more familiar)

 

[Berty]

Like it.....wide awake so far.

 

[geoffmaynard]

Windy: If a canoeist is paddling on a stretch of river which has no public right of navigation, and there are regular clear signs forbidding navigation due to it interfering with fishing, would his ignoring the signs make him guilty of having 'intent' to disrupt the anglers legally fishing there? i.e. aggravated trespass?
And would the company who hired him the canoe also be guilty of a related offence if they were encouraging this activity?

 

[bennygesserit]

Like it.....wide awake so far.

yes me too and I know Windy hasn't finished yet.
Firstly I have a bad habit of not always reading what I quote , so I threw that excerpt from the AT into the sotp forum just to give them an alternative view for them to read.

Windy In Jason's case if they leased their stretch from the landowner who was also the riparian rights owner , would that landlord be able to definitively decide whether canoeists had rights of passage or not ? Could that landlords decision have been already superseded by some other "higher" body or not ?

If so would Jason be able to apply for an injunction and how would that be enforced - presumably by the presence of the police or a proffesional witness , or just a witness ?

I do wonder what percentage of waterways have granted access to canoeists , it would be useful if you were fishing to know whether the landowner had asked canoeists not to traverse their water or not.

 

[Windy]

6) Does a canoeist have the right to pass and re-pass over riparian lands in order to get to and launch into water which DOES have a general right of navigation ?

No.

Even less so to get to and launch into water without a general right of navigation.

Whether it is worth the riparian owner suing is however subject to the lack of any damage problem.

That said it is not impossible to construct a reasonably arguable case for damage, in that the canoeist has deprived the riparian owner of the right and opportunity to ask for a licence fee for that access. Arguable, but not easy or a legal proposition I would risk the costs on - especially for a case liable to go as far as the Supreme Court if ever argued.

Interestingly it does occur to me that once the trespassing canoeist is afloat the riparian landowner does have the right - as do we all - to use reasonable physical force to defend his land against any further trespass. So if a canoeist, having trespassed and launched, seeks to get back to shore but finds his way barred by the landowner or his Bailiff with the end of a boat hook then it's going to be a long paddle to a legal landing area without any entitlement to complain I think. And lawful self help of that sort is plainly not going to fall within Section 5, no matter how much the canoeist might bleat.

 

[bennygesserit]

6) Does a canoeist have the right to pass and re-pass over riparian lands in order to get to and launch into water which DOES have a general right of navigation ?

No.

Even less so to get to and launch into water without a general right of navigation.

Whether it is worth the riparian owner suing is however subject to the lack of any damage problem.

That said it is not impossible to construct a reasonably arguable case for damage, in that the canoeist has deprived the riparian owner of the right and opportunity to ask for a licence fee for that access. Arguable, but not easy or a legal proposition I would risk the costs on - especially for a case liable to go as far as the Supreme Court if ever argued.

Interestingly it does occur to me that once the trespassing canoeist is afloat the riparian landowner does have the right - s do we all - to use reasonable physical force to defend his land against any further trespass. So if a canoeist, having trespassed and launched, seeks to get back to shore but finds his way barred by the landowner or his Bailiff with the end of a boat hook then it's going to be a long paddle to a legal landing area without any entitlement to complain I think. And lawful self help of that sort is plainly not going to fall within Section 5, no matter how much the canoeist might bleat.

Don't you think the talk of use of reasonable force encourages behaviour that isn't needed other than as a last resort ? I have read lots of forum posts about canoeists being assaulted sometimes with their families

 

[Windy]

Windy: If a canoeist is paddling on a stretch of river which has no public right of navigation, and there are regular clear signs forbidding navigation due to it interfering with fishing, would his ignoring the signs make him guilty of having 'intent' to disrupt the anglers legally fishing there? i.e. aggravated trespass?

I would answer yes, and recklessness sufficient even if not intent. The damages tho... tiddly push and not worth a suit ex post facto. The real remedy is the anticipatory restraining order, as I have pointed out.

The drawback to that is the cost and trouble required to get one. And even if you've got one, it's not worth the paper its written on if you don't thereafter enforce it (indeed, liable to get the order discharged if not enforced).

Though enforcing against a Contempt of Court is a looooot easier than a criminal prosecution. High Court Judges can get downright nasty when they think someone is thumbing their noses at their dignity.

Which is where these canoeists are heading with all this stupidity, they may be having a nice run of it at the moment stealth bombing, turning up at no notice, relishing their anonymity and thinking they are secure against suit as no substantial damages are sustained.

They're going to get a very very painful awakening when a Judge starts confiscating canoes and the cars used to get to the waterside and facilitate the Contempt, plus fines and even some time inside to reflect about the folly of sticking two fingers up at a Judge.

It does however require someone to get their act in gear with said anticipatory restraining order in place.

And would the company who hired him the canoe also be guilty of a related offence..

Simply hiring, No. No more than the seller of kitchen knives is guilty of the subsequent murder.

....if they were encouraging this activity?

Now you're getting ahead of a post to come; wait with patience for the tome on tortious conspiracy to come

---------- Post added at 18:07 ---------- Previous post was at 18:03 ----------

Don't you think the talk of use of reasonable force encourages behaviour that isn't needed other than as a last resort ? I have read lots of forum posts about canoeists being assaulted sometimes with their families

Reasonable force is reasonable force. Ask Tony Martin about the perils of using it. Or not. I'm not advocating it, simply pointing out that the entitlement is lawful and exists.

Assaulting a canoeist isn't reasonable force unless it is necessary to do so in order to prevent them trespassing or continuing to trespass.

I see no problem at all with fending a canoeist away from the bank with a boat hook, nor with refusing him access back over my land to recover any car, vehicle or trailer illegally parked on my land. Although I might see a problem if the river were suddenly and dangerously to go into spate conditions or the canoeist had symptoms of a heart attack or other grounds of necessity to land.

Assaulting someone as punishment is a different matter altogether.

---------- Post added at 18:10 ---------- Previous post was at 18:07 ----------

Now, where had I got to.....

 

[jasonbean1]

benny...i fish the oxford canal week in week out...beleive me, normal people that get given powered or paddled boats with no training become total idiots that would in any other situation in life be told to **** off at least and to be physically assulted a real possibility...

and i will say it again me and the guys i fish with are reasonable people...go the canoeists way and it will end in confrontation.

cheers
Jason

 

[Windy]

6) Is membership of the BCU or similar organisation of any relevance ?

Nope.

Joining the Caravan club doesn't give you the right to drive your caravan on any road you choose without paying your Road Fund Licence, holding an MOT and Driving licence.

See Post 52 and Terry's rhetorical reference to the "rights to paddle" conferred by membership of the BCU. Misconceived, inaccurate and confusing membership of the BCU with his central thesis that everyone has said "right to paddle" anywhere, any time, regardless of membership of any body.

I found the link in that post of interest as well. http://canalrivertrust.org.uk/media/library/1192.pdf
Bears repeating. The answer to the canoe / portable question someone asked is at the bottom of that page and the footnotes, they fall within the category of "Portable Unpowered".

That would seem to require that each canoeist / kayaker should be paying £46.57 per year to the Canal and River Trust.... tho I haven't, for the purposes of this exercise, so far had the inclination time or opportunity to investigate the legal underpinnings of the C&RT and their entitlement to require these fees. Seems fairly clear tho, if they are entitled to these fees from navigators then canoeists should at least be ponying up their equivalent of the Angler's Rod licence fees to them.

 

[Jeff Woodhouse]

The owner of land in England (and a quick pardon me to any other lawyers wincing at my simplifying this complicated issue) basically owns the rights to the land to the centre of the earth below and to the furthest extents of the water, air and universe above.

Thank you Windy. BUT - unless there are mining rights involved... I have come across that one before in the house we first started in.

I seem to remember something about Manhattan whereby the authority would only allow builings up to a certain height. However, the big city developers who wanted to build the Crysler, Trump, Woolworth and Empire State Buildings could do was approach a local church who would never use all of their alloted air-space and buy up their rights of unused air-space from them to stack on top of their own. Hence the buildings got taller than they were originally intended to be.

It's all money for the lawyers though, isn't it? Perhaps that's what the 'aggrieved' (put in quotes as that's how they may feel) canoeists are counting on - catch me if you can... Until then - Can't touch me....

Perhaps Hitler had an answer to that? The Panzerfaust!