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Thread: Legal Opinions on Dr Caffyn's Work

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    Default Legal Opinions on Dr Caffyn's Work

    Since Dr Caffyn published his thesis in 2004, has anyone seen opinions by other lawyers on this?
    Doug Dew
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    Only the Lawyers employed by the fishing/landowning people, and they do not feel able to challenge the thesis !

    That's my thinking, what do others feel, has any legal brain been brought to bare on the Doctors work ?

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    Quote Originally Posted by Hyperion View Post
    Only the Lawyers employed by the fishing/landowning people, and they do not feel able to challenge the thesis !

    That's my thinking, what do others feel, has any legal brain been brought to bare on the Doctors work ?
    My guessing is the same Hyperion.

    The fishy folk of Wales had a big and secretive meeting and since then there has been no change in their stance but no prosecutions, that they were trying to work out how to do!

    There must be a barrister within the canoeing fraternity that could study this for us. But if it's bad news don't tell anyone!!!

    Doug
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    I wonder if the BCU got a legal opinion... and if not, why not... it seems the obvious thing to do...

    I would rather know if it doesn't hold up, than have all this doubt.... this now eight years old...
    Doug Dew
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    BCU!? publish an opinion! No chance.

    Struggling at the moment getting an assistance out of them on matters they control!!!!!!

    Doug
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    Afloat in the White Canoe.
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    I don't think anyone really knows how watertight the legal case is. My MP sent a copy of the thesis to the Country Landowner's Association to ask their the opinion. They replied with a 3 page letter essentially saying that in their opinion Rev'd Caffyn had started from the premise that there was a general common law right of navigation, and that all his research had been geared towards attempting to justify that conclusion. In their opinion, his findings were erroneous and had no legal validity.

    I corresponded briefly with Rev'd Caffyn several years ago on this issue, and he was at pains to stress that he did not want his work to result in a series of negative court actions. Much as I respect him, I'm not sure that these aspirations are realistic.

    Doug Caffyn is obviously a very nice man. In my opinion, he's far too nice to fight this battle. It's like Chamberlain trying to mollify Hitler, when what we really need is a Churchill.

    I really do think that we have reached the point where in order move forward someone really has to force the hand of the anglers and the landowners.

    The Government obviously aren't interested in getting involved, and you can forget about the BCU or Canoe England doing anything of substance because they want to protect their Govt funding.

    It needs proactive action from individuals. And to my mind, the perfect venue is the Hampshire Avon.

    Not only is this river the recent scene of a bitter public dispute, the anglers are actually in a bit of a muddle over it environmentally. The whole river is a Special Area of Conservation because it hosts 5 endangered species of european significance: bullhead, brook lamprey, desmoulins whorl snail, sea lamprey, and atlantic salmon.

    The most vocal opposition to canoe access on this river comes from the barbel fishermen. Barbel are non native to the catchment and actively predate on salmon spawn, and all of the other endangered species present in the river.

    Nevertheless, the river has been systematically stocked with barbel for many years, largely at taxpayers expense.

    So it's a legal minefield for the anglers. I suspect that out of all the rivers in the country, this is the one that anglers would least like to go to court over. And yet the anglers stirred the pot last year when Martin Salter went on national radio and called for the BCU to condemn a proposed paddle down the river by a few private individuals.

    Therefore, if we're going to have a confrontation, then the battleground of my choosing would be the Hampshire Avon.

    Organise a protest paddle down that river. Go en masse, but don't waste your time trying to include the BCU, Canoe England, or the Rivers Access Campaign.

    Leave the nice guys to do their legal research, and only invite paddlers who are as hard as nails and have a skin like a rhinosaurus.
    Last edited by sobranie; 14th-April-2012 at 07:04 AM.

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    Go en masse, but don't waste your time trying to include the BCU, Canoe England, or the Rivers Access Campaign.
    Talking about the RAC, does anyone know if they have a stand at the most high profile UK paddling event we have ever had in this country, the Olympic trials?


    Muke
    Last edited by KeithD; 14th-April-2012 at 10:41 PM. Reason: fix quotes

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    Check the latest news from the River Access Campaign here. Apparently George Brown is still Prime Minister... says it all...
    Last edited by dougdew99; 14th-April-2012 at 11:09 AM.
    Doug Dew
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    I presume you guys have seen this?


    http://www.caffynonrivers.co.uk/

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    Quote Originally Posted by sobranie View Post

    I really do think that we have reached the point where in order move forward someone really has to force the hand of the anglers and the landowners.
    It needs proactive action from individuals. And to my mind, the perfect venue is the Hampshire Avon.
    I disagree over the location - A 'win' here would only prove that the 1664 Avon Navigation Act conferred a right to Navigate that specific river. It would only give rights where equivalent acts existed. The Yorkshire Derwent Trust case effectively stated the public had a right to navigate where such acts were in force anyway so opponents would have to reverse that ruling.

    What is needed is to pick a location where a ruling would show that there is a general right of public navigation on all rivers and that the recent (1889 onwards) cases were not correct in their interpretation of the law. That is what Caffyn was examining evidence for in his thesis.

    Brevan
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    I'm afraid I disagree with you Brevan. A 'win' here would give the militant element within the angling community a seriously bloody nose. And I think that's what they need right now.

    They've been treating paddlers like sh$t for far too long, and I think a line needs to be drawn ....

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    I wonder what the water levels in the Avon are like now?
    Doug Dew
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    I have just read some of Caffyn's work and I have to say that I'm underwhelmed...Why ?

    The premise of the argument seems to be that (a) access was always there and (b) it was never revoked. The documents (well written as they are) refer to many sources but these don't (IMHO) have any relevance as they are not 'official' or 'legal' or are an interpretation of somebody else's words. Again, the premise seems to be that access was granted through the Magna Carta ["In 1215 Magna Carta stated that all the rivers of England were to be kept free for use by vessels"] but not being an expert on the Magna Carta, I can't state if this means that it is law or simply the view imposed at the time by the feudal Barons onto the king. Further, it would seem (according to our friend Wikipedia ) that the 1215 version was superseded by the 1297 version which became statute and even then, most articles have since been repealed.

    I can see the argument from both sides - it was always there & never repealed OR it was never legally granted. Personally, I think Caffyn's work is excellent but to be used as the basis of a legal challenge, I'm not sure. As a paddler, I would love access for all but the manner in which we get there is not going to be easy.

    Just my opinion and welcome for any discussions points (probably in a new thread). It would be an interesting exercise to have a legal opinion on the Magna Carta itself as most 'modern' law / statutes come from there.
    Death is natures way of telling you to slow down.

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    MaxiP

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    Quote Originally Posted by dougdew99 View Post
    MaxiP

    Can I ask respectfully if you are you a lawyer?
    No, but I do have to deal with legal documents / contracts as part of my job so tend to quite picky when it comes to words as misunderstanding or interpretation of words can be made by different people. My comments are from a read through Boats on our river again and are just my views from trying to separate fact from supposition / heresy / comments / quotes / translations from original documents / etc. I admit, I read this with the view of "what's wrong with it" rather than "what's right with it" but would have come to the same results at some point.

    If there was substantiated proof that the Magna Carta stated access permissions in the original Latin (as opposed to a translation) and then this was made law / statute, then I don't think we would have any access worries anyway. There are too many examples of intereptation of words that lead to different conclusions (e.g. "The word navigable comes from the Latin navis a large vessel, in this booklet called a barge" whereas Oxford Dictionary attributes the origins of the word to the Latin word nāvigābilis [to sail]). Slightly different interpretation but if you take the "to sail" as navigation, the the Magna Carta & any other statute refers only to vessels powered by sail.
    Death is natures way of telling you to slow down.

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    I did once have a chat with a lawyer who thought that a contemporary court would not feel bound by decades old precedent cases decided in a different social context. Things have moved on since, for example, the case decided by Lord Denning. The Land Reform (Scotland) Act 2003 and the Countryside and Rights of Way Act 2000, while not directly applicable, are nevertheless indicative of a legal concept of privately owned land which tends to accept that responsible access by the public is not inimical to the rights of land owners. Nobody has a clue which way a court case would go and that is probably why there hasn't been one for 30 years.

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    Quote Originally Posted by MaxiP View Post
    (e.g. "The word navigable comes from the Latin navis a large vessel, in this booklet called a barge" whereas Oxford Dictionary attributes the origins of the word to the Latin word nāvigābilis [to sail]). Slightly different interpretation but if you take the "to sail" as navigation, the the Magna Carta & any other statute refers only to vessels powered by sail.
    I think you are muddling nouns and adjectives. Navigabilis is (I think) an adjective meaning navigable whereas navis means ship. For completeness, the verb is navigare.

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    Quote Originally Posted by ChrisS View Post
    I did once have a chat with a lawyer who thought that a contemporary court would not feel bound by decades old precedent cases decided in a different social context. Things have moved on since, for example, the case decided by Lord Denning. The Land Reform (Scotland) Act 2003 and the Countryside and Rights of Way Act 2000, while not directly applicable, are nevertheless indicative of a legal concept of privately owned land which tends to accept that responsible access by the public is not inimical to the rights of land owners. Nobody has a clue which way a court case would go and that is probably why there hasn't been one for 30 years.
    I have recently spoken with someone who has come into serious conflict with Fish Legal - the bewigged wing of The Angling Trust. Her comment was that, regardless of the rights and wrongs of the argument, they have a bottomless ("and I mean bottomless") pot of money with which to fight any battle they care to undertake

    In the (non-paddling) case I'm aware of, there has been a real physical effect on the river concerned - albeit that any effect on the fishing is unproven - and they have chosen to go on the offensive

    You can bet that if any change/clarification in the law was threatened, the eye of Mordor would turn and a great deal of money (or pro bono service) would be needed

    I hate conflict; I hate not knowing my rights; I hate that in the current situation the bullies and the vocal and the sly and the rich often win, because people like me back down too easily. I wish that it could be sorted out sensibly and with justice.

    But be careful what you wish for

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    Quote Originally Posted by David Jones View Post
    I have recently spoken with someone who has come into serious conflict with Fish Legal - the bewigged wing of The Angling Trust. Her comment was that, regardless of the rights and wrongs of the argument, they have a bottomless ("and I mean bottomless") pot of money with which to fight any battle they care to undertake

    In the (non-paddling) case I'm aware of, there has been a real physical effect on the river concerned - albeit that any effect on the fishing is unproven - and they have chosen to go on the offensive

    You can bet that if any change/clarification in the law was threatened, the eye of Mordor would turn and a great deal of money (or pro bono service) would be needed

    I hate conflict; I hate not knowing my rights; I hate that in the current situation the bullies and the vocal and the sly and the rich often win, because people like me back down too easily. I wish that it could be sorted out sensibly and with justice.

    But be careful what you wish for

    They have got NOTHING, do not let your bowels turn to water at their empty threats,if, who ever these shadowy deep

    pocketed bogey creatures are thought they had a case, legal action would be taken to keep out the great unwashed

    away, its not happening, fear of fear,is the biggest fear.

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    Quote Originally Posted by MaxiP View Post
    I have just read some of Caffyn's work and I have to say that I'm underwhelmed...Why ?

    The premise of the argument seems to be that (a) access was always there and (b) it was never revoked. The documents (well written as they are) refer to many sources but these don't (IMHO) have any relevance as they are not 'official' or 'legal' or are an interpretation of somebody else's words. Again, the premise seems to be that access was granted through the Magna Carta ["In 1215 Magna Carta stated that all the rivers of England were to be kept free for use by vessels"] but not being an expert on the Magna Carta, I can't state if this means that it is law or simply the view imposed at the time by the feudal Barons onto the king. Further, it would seem (according to our friend Wikipedia ) that the 1215 version was superseded by the 1297 version which became statute and even then, most articles have since been repealed.

    I can see the argument from both sides - it was always there & never repealed OR it was never legally granted. Personally, I think Caffyn's work is excellent but to be used as the basis of a legal challenge, I'm not sure. As a paddler, I would love access for all but the manner in which we get there is not going to be easy.

    Just my opinion and welcome for any discussions points (probably in a new thread). It would be an interesting exercise to have a legal opinion on the Magna Carta itself as most 'modern' law / statutes come from there.
    Caffyn's work is actually the thesis for a Masters Degree and a PHD, as such they would have to have been assessed by academic legal experts. While this in no way proves his views would be upheld by a court, I can't imagine that such fundemantal errors that you suggest he may have made would have been missed by such experts.

    Again I am not a lawyer, so I could be completly wrong.

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    Check out Green Laning,
    The use of motor vehicles to drive on
    BOATs byways open to all traffic
    RUPPs Road used as a public footpath (some)
    UCRs unclasified country roads
    This activity is very new but uses rights of way proven because of OS maps,
    Ancient rights of way do stand if proven they existed even though there is no modern law allowing it.
    So just because something is omitted, it doesnt mean that it doesnt exist.
    Ratty (Russ)

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    Quote Originally Posted by MaxiP View Post
    Again, the premise seems to be that access was granted through the Magna Carta
    My interpretation of the premise is that our rivers have always been navigable for those craft that could navigate them. This right was never granted any more than the right to breath the air was granted. It was confirmed in the Roman Law - the Institutes of Justinian state that “by natural law, these things are common property of all: air, running water, the sea, and with it the shores of the sea.” and then by Magna Carta and then by the 1472 Act for Wears and Fishgarths and then by the actions of the Commisioners for Sewers over hundreds of years ...... etc.. etc.

    The right to navigate our rivers was never "granted". Who would grant it? It was there long before landowners and Kings!
    Keith

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    Quote Originally Posted by ChrisS View Post
    I did once have a chat with a lawyer who thought that a contemporary court would not feel bound by decades old precedent cases decided in a different social context. Things have moved on since, for example, the case decided by Lord Denning. The Land Reform (Scotland) Act 2003 and the Countryside and Rights of Way Act 2000, while not directly applicable, are nevertheless indicative of a legal concept of privately owned land which tends to accept that responsible access by the public is not inimical to the rights of land owners. Nobody has a clue which way a court case would go and that is probably why there hasn't been one for 30 years.
    Lord Denning would have agreed with your lawyer, his book LORD DENNING THE DECIPLINE OF LAW covers this very subject. The following quote is taken from a description of the book for sale.

    [The underlying theme of this book is 'that the principles of law laid down by the Judges in the 19th century - however suited to social conditions of the time - are not suited to the social necessities and social opinion of the 20th century. They should be moulded and shaped to meet the needs and opinions of today. The Discipline of Law is a fascinating account of Lord Denning's personal contribution to the changing face of the law in this century.

    Lord Alfred Denning, Baron Denning (Dec.)]


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    "Keep Your Eyes On the Prize" was the principle behind the American civil rights movement. They faced just as many, or more, "social necessities and social opinion of the 20th century..." which kept blacks in an underclass status.

    The social necessity of the 21st century is that all should share access to the rivers. It is that necessity which will leverage social opinion. There are some things that, by their very nature, cannot be owned. Like people, and rivers.

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    Quote Originally Posted by cloudman View Post
    Lord Denning would have agreed with your lawyer, his book LORD DENNING THE DECIPLINE OF LAW covers this very subject. The following quote is taken from a description of the book for sale.

    [The underlying theme of this book is 'that the principles of law laid down by the Judges in the 19th century - however suited to social conditions of the time - are not suited to the social necessities and social opinion of the 20th century. They should be moulded and shaped to meet the needs and opinions of today. The Discipline of Law is a fascinating account of Lord Denning's personal contribution to the changing face of the law in this century.

    Lord Alfred Denning, Baron Denning (Dec.)]

    so not only is the law "an ass", but it's an ass that admits to self-contradiction based on the whims of fashion and any social prejudices that may come along from "day to day" ???

    Yesterday so-and-so was appropriate, but today a few powerful landowners are fed up with it so "in keeping with changes in society (specifically the changes in the opinions of big land-owning society in this particular case) it is now entirely inappropriate.

    If that's the case why do we need judges, just let the landowners make the laws and cut out the puppet-on-a-string middle men.

    If the purpose of judges is simply to "announce social fashions" wouldn't it be cheaper, easier, quicker, and more versatile just to paste "laws" on Facebook ??

    Excuse the playful sarcasm, but there is a serious point in there somewhere (I think).....just my two cents
    and there I was thinking I was clever for learning how to paddle...my dog's been paddling for years, and without a canoe !!

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    Quote Originally Posted by springer5 View Post
    If that's the case why do we need judges, just let the landowners make the laws and cut out the puppet-on-a-string middle men.
    If we don't pay judges for these judgments, how will they stay part of the rich elite?

    Cheers,
    Mark

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    Quote Originally Posted by theMark View Post
    If we don't pay judges for these judgments, how will they stay part of the rich elite?

    Cheers,
    Mark
    lol - very good point Mark.

    Mmmhh that's got me thinking.....now I wonder if Lord Denning would like to write a book about how "judges are no longer appropriate for the context in which modern society operates"?. Oh no wait a minute, they only do stuff like that with legal structures that affect "common" people. What was I thinking ??
    and there I was thinking I was clever for learning how to paddle...my dog's been paddling for years, and without a canoe !!

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    Quote Originally Posted by ezwater View Post
    "Keep Your Eyes On the Prize" was the principle behind the American civil rights movement. They faced just as many, or more, "social necessities and social opinion of the 20th century..." which kept blacks in an underclass status.

    The social necessity of the 21st century is that all should share access to the rivers. It is that necessity which will leverage social opinion. There are some things that, by their very nature, cannot be owned. Like people, and rivers.
    Much as I support the 'cause' a comparson to Black Civil Rights Movement is ridiculous!!!

    A 'social necessity'? Utter rubbish and offensive to those who are really suffering social injustice in the UK.

    Access would be nice to have but that is all.

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    Quote Originally Posted by springer5 View Post
    lol - very good point Mark.

    Mmmhh that's got me thinking.....now I wonder if Lord Denning would like to write a book about how ??
    If Lord Denning were to write another book it would be an instant best seller, he died in 1999.

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    Paddling for the undead....

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    Quote Originally Posted by cloudman View Post
    If Lord Denning were to write another book it would be an instant best seller, he died in 1999.
    It's safe to say he definitely doesn't apply to modern society any more then.
    and there I was thinking I was clever for learning how to paddle...my dog's been paddling for years, and without a canoe !!

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    I have tested Douglas Caffyn's ideas by bringing an action against Burton Mutual Angling Association. Fish legal could produce no legal argument against my argument which may be summarised as

    1) 1472 An Act fot Wears and Fishgarths affirms a PRN on all rivers was also affirmed by Magna Carta 23. So we have it on the highest authority that between 1297 and 1472 all rivers were a PRN.

    2) Lord Lindsey [AG v Simpson] said that once a highway always a highway applies as much to rivers as it does to roads.

    3) Mr Justice Lightman [Rowland v EA} concluded that a PRN may only be extinguished by legislation or exercise of statutory powers which for unregulated watercourses does not exist. So the PRN still exists.

    Fish Legal argued

    1) The statement found in commentaries and law text books that there is no general right of navigation, is the law. Text books and commentaries are not the law. The law is found in statues and case law not the opinions of unaccountable persons. The case law usually cited [Bourke v Davis] was rejected by the House of Lords [AG v Brotherton] with Lord Jauncey declaring it misleding.

    2) The ownership of fishing rights implies control of navigation. They can present no evidence in case law or statute to support this bizarre notion.

    3) Rawson v Peters gave them the right to control navigation. Lord Denning, in fact, separated the issues of control of navigation and disturbance of fish by refusing an injunction to prevent navigation but gave leave for an injunction to be sought in the County Court.

    I had to withdraw my case because interference with a public right of navigation is a public nuisance [Tate and Lyle v GLC] and i am not a person authorised to bring a public nuisance case. The Attorney General must bring such cases and he wants £250000 up front in case he fails to win the case.

    Legal action against the fishermen and their signs is not open to us. However, action against us by fishermen would seem to be equally impossible. Any fishing club claiming to control navigation should be challenged to show from their titles to fishing rights that they have the right to control navigation in black and white in their registered titles. If they can not show that they have acquired rights to control navigation then any action taken against canoeists would be harassment which if repeated would be a criminal offence. Any such action should always be reported to the police. The rule is, if it is not lawful in the street it is not lawful on the river.

    Fishermen have in general no legal basis for saying anything about navigation which is properly a matter between the owners of the soil of the river and the navigator. If a riparian owner wishes to prevent navigation he must be challenged to show the legislation or exercise of statutory powers by which the PRN has been extinguished.
    Last edited by Angut; 12th-July-2012 at 08:12 PM.

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    Angut
    May I be the first to congratulate you... you have quietly achieved a remarkable result... we are all in your debt... I guess PRN stands for "Public Right of Navigation"
    Doug Dew
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    Thanks Doug. Yes PRN is public right oof navigation. It is the usual abrieviation in law reports. I forget that others have not spent so much time sifting through these documents.

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    Quote Originally Posted by Angut View Post
    I had to withdraw my case
    How frustrated you must be. But I add my congratulations, this is most encouraging. It sounds as if we need a volunteer to go and get themselves harassed. Form an orderly queue...

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    Quote Originally Posted by David Jones View Post
    How frustrated you must be. But I add my congratulations, this is most encouraging. It sounds as if we need a volunteer to go and get themselves harassed. Form an orderly queue...
    Seb Coe is all for promoting paddling on his new site so lets get a date fixed......

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    Quote Originally Posted by Angut View Post
    I had to withdraw my case because interference with a public right of navigation is a public nuisance [Tate and Lyle v GLC] and i am not a person authorised to bring a public nuisance case. The Attorney General must bring such cases and he wants £250000 up front in case he fails to win the case.
    Good work sir. I guess the hunt is now on for a rich canoeist with £250k to 'invest'. Could the Rivers Access committee not start a campaign to raise the money? It seems like a large amount of money on the face of it, but in the great scheme of things, it isn't. Especially when you consider the number of disgruntled canoeists in England and Wales. I'll happily pledge £50 to the cause, but then I'm just one individual amongst millions of others.
    Last edited by sobranie; 12th-July-2012 at 11:20 PM.

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    Angut

    Perhaps you might explain what " interference with a public right of navigation is a public nuisance" means and what is its significance? To me, anglers are more or less powerless to interfere with paddling apart from yelling obscenities or committing crimes... I am sure there is more to it than that, but I don't know enough to be clear on what a 'public nuisance' is and how it affects us...

    Thanks again
    Doug Dew
    "The best is yet to come" My Father


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    Excellent work Angut!

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    Quote Originally Posted by dougdew99 View Post
    Angut

    Perhaps you might explain what " interference with a public right of navigation is a public nuisance" means and what is its significance? To me, anglers are more or less powerless to interfere with paddling apart from yelling obscenities or committing crimes... I am sure there is more to it than that, but I don't know enough to be clear on what a 'public nuisance' is and
    how it affects us...

    Thanks again
    A public nuisance is an act which causes a nuisance to the public at large rather than an individual member of the public or a section of the public. Only persons authorised to act on behalf of the public at large may take legal action on a public nuisance. This means Parliament who appoint one of their number to be the Attorney General. Some public nuisances have been made criminal acts by legislation. Examples are obstruction of a highway and the construction or continuance of weirs, fishgarths, and kiddles (a kind of porous dam used to direct fish into traps) without statutory authority. This is something I intend to follow up. The 1472 Act places upon DEFRA the duty to appoint commissioners to ensure that such structures obstructing navigation are removed at the riparian owner's expense. If after 3 months, the obstruction is not removed, the fine is 100Marks (£50) per month and any member of the public may collect the fine as a civil debt on behalf of the exchequer and keep a 50% commission.

    A breach of the peace is a different matter. Any member of the public has the right of arrest if a breach of the peace is taking place. Swearing in a public place is a breach of the peace. Unless the fishermen can show that the PRN on a river has been extinguished by legislation or the exercise of statutory powers a river is a public place, i.e. a place where the public has access by right. In Howells v R (1980) the judge gave an example of a footballer on the pitch swearing and said any member of the crowd could go onto the pitch and arrest him. Since the pitch is private in that the public have no general right of access to it, this would seem sufficient precedent to storm the bank and arrest a swearing fisherman. We might want to take our kids on a canoe trip and we can't have them exposed to foul language.

    OK. Carrying this through is not without risks. An essential preparation would be to have contacted the fishing club involved and challenged them to show that the PRN has been extinguished and that their registered title has a clause empowering them to control navigation. Even if they do not reply that letter and their failure to reply is evidence.

    A much better method would be to write a letter of complaint, quoting the police log number (as a responsible citizen you will have reported a breach of the peace to police) and informing them that next time foul language is used the police will be informed and an arrest may be made. This forces the fishing club committee to encourage their members not to interfere with canoeists rather than giving encouragement to criminal acts.

    If any object is thrown, this should be reported to the police. Another letter of complaint should be sent, quoting the police log number. This time they need to be informed that repetition of the event is the criminal offence of harassment and the police will be pressed to take action.

    If an object causes injury, even a red mark, then this ABH for which a citizen has the power of arrest and the police should certainly be informed.

    Does this clarify the situation?

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    Hi Angut,

    Thank you for the information and all the effort you have put into looking into the access situation.

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    Thank you Angut for your effort's in trying to bring the legal situation with regard to river navigation into a

    format that even I can understand, by condensing case law into a few well chosen sentences.

    To me, your work indicates just what a 'fudge' both the fishing/landowners and ourselves have to deal with.

    We are very unlikely to get a fighting fund of £250,000+ to start the proceedings, the riparian people already

    think they hold the rights, so do not need to go to court, for a cause that they could well lose, on historical grounds

    [there is archaeological evidence of river navigation in this country going back to the Romans,and into Pre-history].

    Is it the case that disputed rivers would need to be assessed river by river, or would one case set a legal precedent ?

    As things stand, when paddling a waterway that is likely to lead to a confrontation, do not be put off by any threats

    and try and hold the moral high ground,if possible, I feel it is important to 'keep calm,and paddle on.

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    Quote Originally Posted by Hyperion View Post
    Thank you Angut for your effort's in trying to bring the legal situation with regard to river navigation into a

    format that even I can understand, by condensing case law into a few well chosen sentences.

    To me, your work indicates just what a 'fudge' both the fishing/landowners and ourselves have to deal with.

    We are very unlikely to get a fighting fund of £250,000+ to start the proceedings, the riparian people already

    think they hold the rights, so do not need to go to court, for a cause that they could well lose, on historical grounds

    [there is archaeological evidence of river navigation in this country going back to the Romans,and into Pre-history].

    Is it the case that disputed rivers would need to be assessed river by river, or would one case set a legal precedent ?

    As things stand, when paddling a waterway that is likely to lead to a confrontation, do not be put off by any threats

    and try and hold the moral high ground,if possible, I feel it is important to 'keep calm,and paddle on.
    Thank you for your kind remarks but I think you have missed the point over the court case. If it had been successful it would have set a precedent. Its main value is that it forced Fish Legal to provide a defence. They have no defence. So, we do not have to fight legal battles. We do have to challenge, fishing club by fishing club their assumption that they have any powers at all in relation to navigation. Unless they can show you something in black and white in their titles they have only bought the right to fish not control of navigation.
    Some lawyers suggest that fishing clubs obtain a letter from the riparian owner to the effect that he delegates control of navigation. If such a document is shown then the challenge is to the fishing club AND the riparian owner to show that the PRN affirmed by Parliament in 1472 has been extinguished by legislation or the exercoise of statutory powers.If not the the riparian owner has only transfered to the fishing club the right to control his personal right of navigation which he owns in addition to but not excluding the PRN.

    We have the right. They have no legal basis for taking away our rights. They must show documentation to support their claims or we will ignore their notices and threats. If they don't want us to paddle they have to prove they have the power to stop us. AND we should use the criminal law to its full extent, whenever they break it or cause a breach of the peace. Remember also that sticking notices on cars is criminal damage and the citizen has powers of arrest.

  44. #44

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    Quote Originally Posted by Angut View Post
    Some lawyers suggest that fishing clubs obtain a letter from the riparian owner to the effect that he delegates control of navigation. If such a document is shown then the challenge is to the fishing club AND the riparian owner to show that the PRN affirmed by Parliament in 1472 has been extinguished by legislation or the exercise of statutory powers.
    Yeah, ok, but how to go about mounting that legal challenge? I suspect that there are many people present in the forum who would like to take legal action against certain angling clubs. I personally would be happy to take legal action against angling clubs on the Wensum, Hampshire Avon, Teme, Great Ouse, Wye ... + many other instances where angling clubs that have failed to correspond.

    I'm prepared to put a bit of time in writing letters. But can such cases really be referred to a court on a nominal budget?

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    Quote Originally Posted by sobranie View Post
    Yeah, ok, but how to go about mounting that legal challenge? I suspect that there are many people present in the forum who would like to take legal action against certain angling clubs. I personally would be happy to take legal action against angling clubs on the Wensum, Hampshire Avon, Teme, Great Ouse, Wye ... + many other instances where angling clubs that have failed to correspond.

    I'm prepared to put a bit of time in writing letters. But can such cases really be referred to a court on a nominal budget?
    We can not bring a court case against fishing clubs or riparian owners for interference with a PRN. This is a public nuisance so we would have to ask the Attorney General to do it.

    We write to them asking them to show by reference to their registered titles that they have the power to restrict navigation or we will feel free to ignore their restrictions. In general there is no legal basis for any of their claims. Let them enjoy what they have purchased, the right to fish but make them justify any other claim they may make.

    Give them 14 days to reply then send them the follow up letter pointing out they have had a reasonable time to reply so now we will ignore their restrictions and treat any molestation, either verbal or physical as the criminal acts that they are and will report all such matters to the police.

    Similary for riparian owners, challenge them to show the PRN affirmed by the 1472 Act for Wears and Fishgarths has been extinguished by legislation or the exercise of satutory powers.

    Having failed to give a legal basis for their restrictions they would find it difficult to take legal action against us. In any case they have to act against a named individual and we have no obligation to identify ourselves to anyone except a police officer going about police business. Water bailiffs of any sort do not have any powers to demand we identify ourselves. Even EA bailiffs should not have any part to play in navigation disputes unless the EA is the navigation authority for that river.


    We have all grown up in an atmosphere of fear and intimidation. This has made us defensive and go around asking others to allow us our rights. I recall the chilling words of de Tocqueville. "When tyrany arises in a democracy it will be worse than the old tyrany that broke men's wills. In a democracy tyrany will control men's wills." We need to set our wills free and demand of others who seek to control us that they should show us the paoperwork that give them their pretended rights.

    We need a cultural change. First among ourselves. We demand that fishy folk and self-empowering riparian owners put up or shut up. Secondly, Fishermen need to understand that they are irrelavent to navigation and since Magne Carta and 1472 make navigation superior to fishery they must conduct their fishing ina manner that does not interfere with navigation.

    Cry freedom! and stop appologising for our existence.

  46. #46

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    Quote Originally Posted by Angut View Post
    We write to them asking them to show by reference to their registered titles that they have the power to restrict navigation or we will feel free to ignore their restrictions. In general there is no legal basis for any of their claims. Let them enjoy what they have purchased, the right to fish but make them justify any other claim they may make.

    Give them 14 days to reply then send them the follow up letter pointing out they have had a reasonable time to reply so now we will ignore their restrictions and treat any molestation, either verbal or physical as the criminal acts that they are and will report all such matters to the police.

    Similary for riparian owners, challenge them to show the PRN affirmed by the 1472 Act for Wears and Fishgarths has been extinguished by legislation or the exercise of satutory powers.
    OK, I'll send a request out to the Norfolk Anglers Conservation Association on the Wensum, who's website continues to maintain that canoeists have no right to access the river :

    http://norfolkanglers.co.uk/fisherie...hams-news.html .

    I reckon the Royalty Fishery on the Hampshire Avon might also be worth a look.

    I hope someone is communicating a similar message to the Angling Trust at a national level?

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    Quote Originally Posted by sobranie View Post
    OK, I'll send a request out to the Norfolk Anglers Conservation Association on the Wensum, who's website continues to maintain that canoeists have no right to access the river :

    http://norfolkanglers.co.uk/fisherie...hams-news.html .

    I reckon the Royalty Fishery on the Hampshire Avon might also be worth a look.

    I hope someone is communicating a similar message to the Angling Trust at a national level?
    I think we leave out the Angling Trust; it is the individual fishing cliubs we want to influence. Let them contact their national body. It is like the Reader's Digesr marketing technique. The more we give them to do the greater our impact. They need to be involved with and take ownership of their defeat.

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    You're probably right. It's just that I'm coming at this from the perspective of a barbel fisherman who is dismayed by what his colleagues are doing.

    The Angling Trust are supporting the wrong legal position.

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    I would suggest doing what Angut has suggestes. He has put a lot of time, effort and personal sacrifice into his research and case and he knows what he is talking about. He's been there and done it.

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    Quote Originally Posted by Angut View Post
    I have tested Douglas Caffyn's ideas by bringing an action against Burton Mutual Angling Association. Fish legal could produce no legal argument against my argument ........... I had to withdraw my case because interference with a public right of navigation is a public nuisance [Tate and Lyle v GLC] and i am not a person authorised to bring a public nuisance case. The Attorney General must bring such cases and he wants £250000 up front in case he fails to win the case.
    Quote Originally Posted by dougdew99
    May I be the first to congratulate you... you have quietly achieved a remarkable result... we are all in your debt...
    Quote Originally Posted by David Jones
    But I add my congratulations, this is most encouraging.
    Quote Originally Posted by Sobranie
    Good work sir.
    Quote Originally Posted by ChrisS
    Excellent work Angut!
    Quote Originally Posted by Angut
    Its main value is that it forced Fish Legal to provide a defence. They have no defence.
    Well done Angut. You have provided a very valuable service in exposing that Fish Legal have no viable argument to support their notion that the public right of navigation that undoubtedly existed in 1472 has in some was lapsed or been removed. I suspect that the process of bringing this case and then being forced to withdraw it has involved you in significant personal expense. Just how much are you personally out of pocket in order to make this advance?
    Keith

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    Quote Originally Posted by KeithD View Post
    Well done Angut. You have provided a very valuable service in exposing that Fish Legal have no viable argument to support their notion that the public right of navigation that undoubtedly existed in 1472 has in some was lapsed or been removed. I suspect that the process of bringing this case and then being forced to withdraw it has involved you in significant personal expense. Just how much are you personally out of pocket in order to make this advance?
    Hi Keith,

    So far it has cost me £1,173.20 in the barrister's costs and £145 in court fees. Fish Legal appear not to be pursueing their claim for costs which they would find difficult to get past the District Judge involved.

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    Quote Originally Posted by Angut View Post
    So far it has cost me £1,173.20 in the barrister's costs and £145 in court fees.
    That wouldn't be much for a national body like Canoe England but it's a lot of expense for one man to bear in the service of the whole paddling community. Please PM me with enough detail for me to send you a cheque for a (modest) £50 contribution towards these expenses. Hopefully there will be others who feel similarly.
    Keith

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    Thanks Angut for doing something worthwhile, and spending £1,318 of your own money in such a public spirited way.

    I'll stand by my pledge of £50. On condition that this money goes into a fighting fund, rather than a compensation fund.
    Last edited by sobranie; 23rd-July-2012 at 01:48 AM. Reason: got the guy's name wrong (spelling)

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    Hi Angut, I can't afford to pledge £50 currently but If you PM me your Paypal details I'd like to contribute a little or put them in the public domain and I'm sure others will contribute a little too. Cheers, Lee
    Hang onto your paddle. And if you hit any rocks, don't hit 'em with your head.

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    Quote Originally Posted by sobranie View Post
    Thanks Angut for doing something worthwhile, and spending £1,318 of your own money in such a public spirited way.

    I'll stand by my pledge of £50. On condition that this money goes into a fighting fund, rather than a compensation fund.
    I'm with you all the way. I have set up a bank account for a fighting fund to finance my future activities. I felt uneasy about a compensation fund. Currently I am working to get the EA to rewrite their guidance for water bailiffs to be in accord with the EA having no remit for navigation unless they are the navigation autrhority and recognising that fishermen have no powers concerning navigation. Also I have a petition to Parliament rquiring DEFRA to change their policy to be in accord with current legislation (1472) An Act for Wears and Fishgarths. And I am trying to pin down Natural England to tell me the precise limits to their powers. I will be meeting the BCU next Monday to discuss the way forward. I will leave no stone unturned.

    The account details are

    Bank Lloyds TSB
    Sort Code 77-85-76
    Account name Navigation
    Account number 34161960

    Thanks, all of you for your support and kind words. Last time I did something like this I was all alone but the police national intellegence model is what I suggested to the West Midlands Police and their national mission statement is my campaign slogan Quality of Life Policing. With backup to keep me going, I am sure I will win.

    Andy

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    Quote Originally Posted by Angut View Post
    Also I have a petition to Parliament rquiring DEFRA to change their policy to be in accord with current legislation (1472) An Act for Wears and Fishgarths.
    Not to be confused with the e-petitions to the government that require 100,000 signatures to be eligible for a debate. This is how Petitions to Parliament work.
    Government departments are expected to offer observations on all substantive petitions, these are also printed in Hansard.
    Keith

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    Quote Originally Posted by Angut View Post
    I will be meeting the BCU next Monday to discuss the way forward. I will leave no stone unturned.
    Good. Thanks for your efforts. I just left a little deposit in your fighing fund.

    So, out of a combined population in England and Wales of 56 million people, we need to find about 5,000 likeminded canoeists that are thoroughly pissed off with the present legislative framework, and who are prepared to put their money up (5,000 x 50 = £250k). That seems do-able to me.

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    Quote Originally Posted by sobranie View Post
    Good. Thanks for your efforts. I just left a little deposit in your fighing fund.

    So, out of a combined population in England and Wales of 56 million people, we need to find about 5,000 likeminded canoeists that are thoroughly pissed off with the present legislative framework, and who are prepared to put their money up (5,000 x 50 = £250k). That seems do-able to me.
    Thanks for the donation I will use it wisely. The current legislative framework looks Ok to me it is just that it has been corrupted and hidden by the machinations of self-interest groups. It is the same rotteness that keeps popping up all over the place. We have tax laws don't we?

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    Quote Originally Posted by Angut View Post
    Thanks for the donation I will use it wisely. The current legislative framework looks Ok to me it is just that it has been corrupted and hidden by the machinations of self-interest groups. It is the same rotteness that keeps popping up all over the place. We have tax laws don't we?

    Hi Angut,

    you have put together a remarkable achievement from my point of view i.e. something I could clearly understand and quote to any idiot giving me hassle together with a course of action I could also understand, execute and support.

    I know I don't really have the problem being rarely in the UK these days but I am more than happy to offer some support in the form of coins of the old realm. Could you PM me an address where I can send a UK cheque for you to deposit or a paypal account. I know you gave the account details but it is a sod of a job to set up on-line banking for one transfer and I can't go into a local branch.

    I will make it out to "Navigation" I assume.

    PS Moderators, I suggest that this thread be distilled (in conjunction with Angut) into a series of "background" and "suggested actions" together with some standard text and be included as a sticky somewhere where all can see and follow it - I assume in the Access Forum.

    Well done mate - I wish you well.
    MarkL
    www.canoemassifcentral.com
    Open Canoe hire/outfitting in the Massif Central
    ”We will make your trip work”

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    Hi Angut. Very well done for standing up and representing us all in this issue, and in turning the argument around.

    There do appear to be other similar acts which support the existence of the Public Right of Navigation, such as the 1531 Fish Act (See http://riveraccessrights.blogspot.co.uk/). Interestingly these acts were also to protect the fish which were getting caught and killed in these contraptions, as well as those navigating the rivers.

    I hope this will mean fewer objections to responsible paddlling, and a better river environment for all to enjoy.
    Brevan
    Brevan,
    The truth (about Rights of Navigation) is out there
    Romsey, Hampshire
    Twitter: BrevanM
    Follow my blog at http://riveraccessrights.blogspot.com/

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