QC's legal advice proves there is no general public right to navigate non-tidal river

[binka]

While it would be good to get a reply from the canal & river trust, why not contact canoe England, the governing body for the sport?

Canal and River Trust were contacted as they govern the waters that any relative PRN/riparian ownership law applies to.

It is not unreasonable to expect the Canal and River Trust to be conversant with the law and have an obligation to uphold the law on its waterways by advising their users accordingly although it would appear from the reply I have received that there is a reluctance to do this.

Attempting to get any paddling organisation to acknowledge and adhere to David Hart QC's latest advice would be little different to asking turkeys to vote for Christmas imo.

 

[Neil Maidment]

Attempting to get any paddling organisation to acknowledge and adhere to David Hart QC's latest advice would be little different to asking turkeys to vote for Christmas imo.

Well at least the ATr have taken that step:

"The Angling Trust & Fish Legal have written to the Canoeing Governing Bodies demanding that they:

• Recognise and accept the law as it is (rather than as they would prefer it to be);
• Recognise the clear legal rights of our members;
• Stop (wrongfully) asserting that the law is unclear;
• Stop discouraging paddlers from considering or entering into voluntary access agreements or arrangements;
• Stop encouraging paddlers to ignore the legal rights of others, commit trespass, and obstruct water bailiffs, anglers, fishery owners and riparian owners;
• Contribute constructively to a position in which there are more opportunities for people to go paddling, while respecting our members’ lawful rights."

The key will be the ATr's next step if the Canoeing Governing Bodies fail to respond to or acknowledge the above demands.

If they do not respond and the ATr takes no further steps, then that will be a huge reversal for angling interests.

 

[Peter Jacobs]

I would not be at all surprised to see the canoe organisation simply ignore the legal opinion. They have shown little or no interest in bringing this matter to a conclusion, and from Steve's correspondence with the cabals trust they too appear reticent to make any positive moves.

Eventually the Angling Trust will have to initiate the necessary legal action.

 

[thecrow]

Well at least the ATr have taken that step:

"The Angling Trust & Fish Legal have written to the Canoeing Governing Bodies demanding that they:

• 
  [*]Recognise and accept the law as it is (rather than as they would prefer it to be);
  [*]Recognise the clear legal rights of our members;
  [*]Stop (wrongfully) asserting that the law is unclear;
• Stop discouraging paddlers from considering or entering into voluntary access agreements or arrangements;
• Stop encouraging paddlers to ignore the legal rights of others, commit trespass, and obstruct water bailiffs, anglers, fishery owners and riparian owners;
• Contribute constructively to a position in which there are more opportunities for people to go paddling, while respecting our members’ lawful rights."

The key will be the ATr's next step if the Canoeing Governing Bodies fail to respond to or acknowledge the above demands.

If they do not respond and the ATr takes no further steps, then that will be a huge reversal for angling interests.

While the Angling Trust are to be commended for trying to do something about this problem the first 3 points in their demands are surely why this problem is there?

If the Angling Trust are so sure that the law is on the side of anglers as would appear to be the case from their first 3 demands why are they along with the EA and the police not attempting to organise a blitz on illegal paddlers and taking them to court ? they are very ready to do the same thing to catch unlicenced anglers as the law is clear on that the trust even publishing their names so why not paddlers? It couldn't be that they are as unsure of the law as everyone else involved in this could it, if they are so sure commit to a court case and be done with it, that's if the EA could be bothered to catch an illegal paddler to take to court.

I wonder how much has been spent on all the QCs advise that means nothing unless there is a court case?

 

[Peter Jacobs]

While the Angling Trust are to be commended for trying to do something about this problem the first 3 points in their demands are surely why this problem is there?

If the Angling Trust are so sure that the law is on the side of anglers as would appear to be the case from their first 3 demands why are they along with the EA and the police not attempting to organise a blitz on illegal paddlers and taking them to court ? they are very ready to do the same thing to catch unlicenced anglers as the law is clear on that the trust even publishing their names so why not paddlers? It couldn't be that they are as unsure of the law as everyone else involved in this could it, if they are so sure commit to a court case and be done with it, that's if the EA could be bothered to catch an illegal paddler to take to court.

I wonder how much has been spent on all the QCs advise that means nothing unless there is a court case?

Graham,

The problem is that currently the actual legal position has yet to be established and created as precedent.

Until and unless that happens then it is impossible for anyone to have a 'blitz' let alone to press for prosecution.

That the Trust have obtained what appears to be a sound legal opinion it is just that, an opinion, and as such holds no official or official position.

Legally the paddlers organisation have to be granted a reasonable length of time to do their own reviews and to respond accordingly.

 

[thecrow]

Graham,

The problem is that currently the actual legal position has yet to be established and created as precedent.

Until and unless that happens then it is impossible for anyone to have a 'blitz' let alone to press for prosecution.

That the Trust have obtained what appears to be a sound legal opinion it is just that, an opinion, and as such holds no official or official position.

Legally the paddlers organisation have to be granted a reasonable length of time to do their own reviews and to respond accordingly.

How is the legal position to be established without a court case , please excuse my ignorance of legal things I honestly don't know.

The trust can demand all it likes and its QCs advice wont stop 1 paddler from sticking 2 fingers up at them and I wonder if the money that the trust has spent on it could have been used better elsewhere on this problem?

 

[Neil Maidment]

While the Angling Trust are to be commended for trying to do something about this problem the first 3 points in their demands are surely why this problem is there?

If the Angling Trust are so sure that the law is on the side of anglers as would appear to be the case from their first 3 demands why are they along with the EA and the police not attempting to organise a blitz on illegal paddlers and taking them to court ? they are very ready to do the same thing to catch unlicenced anglers as the law is clear on that the trust even publishing their names so why not paddlers? It couldn't be that they are as unsure of the law as everyone else involved in this could it, if they are so sure commit to a court case and be done with it, that's if the EA could be bothered to catch an illegal paddler to take to court.

I wonder how much has been spent on all the QCs advise that means nothing unless there is a court case?

I agree with those sentiments and hope the ATr somehow proceed with a prosecution on behalf of their member clubs of either individual paddlers or preferably the Canoeing Governing Bodies assuming those bodies do not change their current formal stance.

However, one minor point. Whilst the ATr is recruiting volunteer bailiffs and assisting the EA, it is the EA that is prosecuting non licensed anglers, not the ATr. That point of law has been successfully upheld many times and over a very long period.

 

[thecrow]

However, one minor point. Whilst the ATr is recruiting volunteer bailiffs and assisting the EA, it is the EA that is prosecuting non licensed anglers, not the ATr.

Sorry Neil I wasn't clear about who I meant I can see that having read my post again, it was the Trust I was referring to when I mentioned publishing names.

Is the the law is established by way of a prosecution case against someone?

 

[Neil Maidment]

Sorry Neil I wasn't clear about who I meant I can see that having read my post again, it was the Trust I was referring to when I mentioned publishing names.

Is the the law is established by way of a prosecution case against someone?

The law is established but several different opinions have been expressed by interested parties supposedly casting different levels of doubt. Most of those opinions have come from unqualified individuals which when challenged, as detailed by the ATr, have resulted in individuals withdrawing from their stance and incurring costs.

This latest QC's opinion is valuable in that it reinforces the ATr's view that the Canoeing Governing Bodies are actively asserting their members should keep on paddling, ignore the legal rights of others and break the law.

It remains to be seen if those organisations respond and formally change their stance and advice to their members.

The ATr have "demanded" a response. What will the ATr do if there is no response?

 

[thecrow]

The ATr have "demanded" a response. What will the ATr do if there is no response?

IMO only 2 moves left to them, do nothing or bring a court case.

 

[The bad one]

There seems to be a little confusion happening on the above few posts. Paddling on a river that doesn't have a PRN on it, is a civil offence,a tort, which is classed as trespass. Fishing without a licence is a criminal offence.

For clarity, the EA and the police have the duty in law to enforce the criminal law if it's transgressed.

Civil Law has to be enforced by the person, body... etc who is transgressed against through the civil courts.
The crossover between the two comes when the civil tort becomes 'aggravated.'

As paddling is a tort, neither the EA or the police are going to do anything about it as it is NOT their responsibility.
At best you'd only get the police to attend if they were doing nowt when the call came in (unlikely) to observe a breach of the peace, a criminal offence, didn't take place.
I raised the spectra above of the BCU and Incitement. Hart by his opinion is strongly suggesting the BCU, by its advice on its website is clearly inciting it's members to commit civil torts by paddling on rivers with no PRN on them. I freely admit I don't know whether this type of incitement is a crossover (civil to criminal) offence and the angle the ATr is looking at to get action taken on the BCU.

 

[thecrow]

Doesn't trespass become a criminal offence if damage is caused? not sure if that has to be actual damage to property or damage to angling rights would be included either.

 

[The bad one]

Doesn't trespass become a criminal offence if damage is caused? not sure if that has to be actual damage to property or damage to angling rights would be included either.

It can be, such as the breaking of a fence, gate, etc. The evidence is visible and would then become most likely the chargeable offence of criminal damage as opposed to criminal trespass.
I'm not aware of an offence known as damage to fishing rights. Theft of fishing rights yes. But you need a rod, net, fixed line to be done on that one.

It would be very difficult if not impossible to prove to a criminal court damage of fishing rights through a canoe going down the river. Given the burden of proof being greater that in a civil court.

 

[chris osborne 2]

Where do the angling trust draw the line regarding what is a canoe and what is a boat? Just curious as they have a discounted boat license from the canal and river trust

 

[chris osborne 2]

I guess from the silence the angling trust have not received a reply, hardly supprising really.