ROYAL COURTS OF JUSTICE

STRAND
LONDON
BETWEEN:
LEIGH RAVENSCROFT
Claimant
&
CANAL AND RIVER TRUST
Defendant

INDEX TO CLAIMANTS STATEMENT OF CASE

Heading

Sub-heading

Page

Summary of Claim

Issues (a) to (c)

1-2

The Relevant Legislation

British Waterways Act 1983

2-3

British Waterways Act 1971

Issue (a) Introduction

3-4

Transport Act 1968

4-9

Canals examples

9-11

The Common Law

12-18

Secondary Legislation

18-20

International Law

20-22

British Law

22-25

BW/CaRT Acknowledgement

25-26

Legislative Background

27-32

Rules of Construction: Private Acts

32-35

Rules of Construction: All Statutes

35-37

Site Characteristics

37-40

Definition of River Waterways

Disproportionality of Action

Application of Section 8

Issue (b) Human Rights Act 1998

41-50

Extremity of Actions taken

50-57

The Lawful Objective

57

Unlawful Objectives

57-59

Article 6 of Convention Rights

59-60

The Statute of Marlborough

60-64

Issue (c)

64-71

Consequences of Misuse as Debt Recovery

Statute of Marlborough

71-72

Tribunals, Courts & Enforcement Act 2007 72-76

Presumption of Probity

Remedy under Schedule 12

76-78

Torts (Interference with Goods) Act 1977

78-80

Interference with Rights of Navigation

80-81

Introduction

81-85

Unlawful Licence Demands

85-86

Unlawful s.8 Eviction Notices

86-91

Criminal Obstruction to the PRN

91-92

Choices in legal s.8 Cases

92-94

Withdrawn Licence s.8 Cases

94-96

Fraud and Forgery

96-98

Lack of Honour

98-101

Contempt of Court

101-102

Contempt of the Sovereign

[Illegal Agreements] 102-105

Power to Board Boats

105-106

Dispensing with Data Protection Act

106

Agreeing to pay Costs

106-107

Statutory Obligation

108-109

Relevance of the History

109-110

Parliamentary Concern

110-113

Summary

Requested Declarations

Licence Requirement

114-115

Violation of Marlborough & the Human Rights Act

115

Nature of s.8 Powers

115

As to Construction of the Private Acts

Main Navigable Channel in 1971 Act

116

Effect of s.8 in 1983 Act

116-117

As to Grandma Molly/Three Wise Monkeys

Statement of Truth

117-118
118

-------------------------------

ROYAL COURTS OF JUSTICE

STRAND
LONDON
BETWEEN:
LEIGH RAVENSCROFT
Claimant
&
CANAL AND RIVER TRUST
Defendant

CLAIMANTS STATEMENT OF CASE

SUMMARY OF CLAIM

1. The facts of the matter are as set out in the Claimants Particulars of Claim. They
deal with the background history of the boat named Three Wise Monkeys [formerly
Grandma Molly], initially registered by the Claimant in July 2010, and given the
British Waterways [BW] Pleasure Boat Certificate number: 73563.

(a) It is claimed that Canal and River Trust [CaRT] have seized the boat
unlawfully, having done so upon their own unilateral definition of the extent of
the main navigable channel of the river Trent, without recourse to the
Secretary of State for defining maps as provided for in the relevant legislation.

(b) It is further claimed that CaRT have acted unlawfully - even in the event
[which is denied] that the boat was within the legislations ambit - in failing to
apply the specified sanctions for the alleged offence; instead they have
applied the most draconian and disproportionate sanction in their arsenal.

(c) It is yet further claimed that the exercise of s.8 powers, in circumstances
where the boat is causing no obstruction, is unlawful where the identity of the
boat owner is known, debt is alleged, yet no Court Order has been obtained.

THE RELEVANT LEGISLATION

British Waterways Board Act 1983

2. The power to seize and remove boats is claimed under s.8 of the British
Waterways [BW] Act 1983. This provides that

(2) The Board may remove any relevant craft after giving not less than 28
days notice to the owner of the relevant craft, stating the effects of this
section.

[As per s.8(1) relevant craft means any vessel which is sunk, stranded or
abandoned in any inland waterway or in any reservoir owned or managed by
the Board or which is left or moored therein without lawful authority . . .]

3. The question then, as to whether any boat falls within the class of craft that may be
subject to s.8(2) is determined [if not sunk, stranded or abandoned] on the grounds of
it being left on CaRTs waterways without lawful authority.

4. The only question to be resolved in this case is, as a consequence of the above,
whether or no the boat requires such lawful authority to be kept on the relevant
section of CaRTs waterways.

5. It has to be recognised that CaRTs powers to control the presence of boats on

waterways within their jurisdiction vary according to the nature of those waterways.
There are the artificial canals; the rivers enjoying public rights of navigation amended
under the 1971 Act Schedule 1 [as amended in 1974 and 1995], and tidal rivers
remaining outside of the 1971 Act. As HHJ Hildyard said in Moore v British
Waterways Board [2012] EWHC 182 (Ch) (10 February 2012):

In particular, in my view, BWB have never convincingly addressed or offered

a coherent and consistent explanation of the fact that the legislation has
distinguished between the various types of inland waterways under its
ownership or control, and BWB's powers are differently expressed in
relation to each. [my bold]

British Waterways Board Act 1971

6. The relevant waterway in this case is the River Trent, which is one of those listed
in Schedule 1 of the 1971 Act. That Act provided that from passage of the Act the
free river status of the relevant sections of listed rivers were to be subject to the
requirement to possess a current pleasure boat certificate:

Section 5(1) It shall not be lawful to keep, let for hire or use a pleasure boat
on a river waterway unless a certificate, in this Act referred to as a pleasure
boat certificate, in relation to the pleasure boat is then in force or unless
there is then in force in relation to it a licence issued by the Board allowing the
use of all inland waterways without further payment. [my bold]

7. It is CaRTs case that the boat fell into the category of relevant craft by reason of
it being kept on the Trent without a current pleasure boat certificate.

DEFINITION OF RIVER WATERWAYS

Addressing Claim (a) -

8. In order to understand the distinguishing character of the 1971 Pleasure Boat

Certificate [as differing from the universal Pleasure Boat Licence demanded under
the 1976 Byelaws], the waterways definitions therein must be referred to.

9. The part of the 1971 Act that set the requirement for registration of pleasure boats
begins by defining with clear particularity those areas of the specified lengths of
specified rivers to which the section was to apply:

s.4(1) This Part of the Act applies to the main navigable channel of each of
the inland waterways specified in Schedule 1 to this Act which channel so
specified is in this Act referred to as a river waterway. [my bold]

10. For CaRT to justify their action under s.8 of the 1983 Act then, they must first
establish that the boat was kept within the main navigable channel. It is contended
here that it was not.

11. The language of the Act is clear, and as a relatively modern Act it is to be
assumed that redundancy of vocabulary was not indulged in when drafting the
legislation [unlike the case with 18thC and 19thC private Acts, where the language
reflected the paid-by-word-count influence of the professional draftsmen].

12. Use of the adjective main then, in the description main navigable channel
sends a clear signal of the legislations intent as to the extent of the sections

application it was not to include those navigable channels that did not constitute the
main channel. Use of the word main necessarily implies the existence of secondary
navigable channels even within geographically limited waterways. It is used to
designate a fairway through the single navigable channel of even artificial canals,
where no subsidiary, physically separated alternatives/branches/tributaries exist.

13. As the pivotal point of the argument, it is needful to exam in some detail the
legislative usage of the descriptive phrase.

The Transport Act 1968

14. The Transport Act 1968 was designed to relieve BW of the costly responsibilities
they had in respect of maintenance of the Boards waterways. From the very
beginning of their formation under the Transport Act of 1962, they had been
promoting one private Act after another to remove their liability to maintain waterways
in a navigable state, these being the private Acts of 1963; 1965, and 1966.

15. Finally, the public Act of 1968 put an end to the incremental removal of the
navigation rights over particular lengths of canal by the simple although drastic step
of removing ALL public and private navigation rights over the entire artificial canal
system. It replaced those navigation rights [with the accompanying obligation to
maintain them as fully navigable] with a three part classification of the waterways
according to which those waterways were to be maintained [or not] to differing, now
limited standards.

16. The first sector of waterways was classified as Commercial Waterways; these
BW were obligated to maintain in a state useable by the size of commercial craft
accustomed to use those waterways in the nine months prior to 8 December 1967.

17. The second sector of waterways was classified as Cruising Waterways; these
BW were to be obligated to maintain only to the extent that they would be useable by
the normal size of pleasure boat accustomed to use those waterways in the nine
months prior to 8 December 1967.

18. The third sector of waterways was classified as Remainder Waterways, for
which BW had no obligation to maintain as navigable at all.

19. For each of the two navigable tranches of waterways, whether for commercial
use or pleasure use standards, that obligation was further limited. Part VII, s.104
provides:

Classification of the Boards waterways.

(1) For the purposes of sections 105 to 111 of this Act the inland waterways
comprised in the undertaking of the Waterways Board shall be divided into

(a) the waterways for the time being specified in Part I of Schedule 12 to this
Act, being waterways (in this Part of this Act referred to as the commercial
waterways) to be principally available for the commercial carriage of freight;

(b) the waterways for the time being specified in Part II of that Schedule,
being waterways (in this Part of this Act referred to as the cruising
waterways) to be principally available for cruising, fishing and other
recreational purposes; and

(c) the remainder.

(2) The description contained in the said Schedule 12 of any waterway

shall be read subject to any order made by the Minister [or, in the case of
a waterway in Scotland, the Scottish Ministers] for giving greater precision
to that description by reference to a map. [my bold]

20. Section 105 provides:

Maintenance of the Boards waterways.

(1) With a view to securing the general availability of the commercial and
cruising waterways for public use, it shall be the duty of the Waterways
Board, subject to the provisions of this section

(a) to maintain the commercial waterways in a suitable condition for use by

commercial freight-carrying vessels; and

(b) to maintain the cruising waterways in a suitable condition for use by

cruising craft, that is to say, vessels constructed or adapted for the carriage of
passengers and driven by mechanical power.

(2) Neither paragraph (a) nor paragraph (b) of subsection (1) of this
section shall impose on the Board any duty to maintain a waterway, or
any part of a waterway, in a suitable condition for use by any vessel of
the kind mentioned in that paragraph unless the dimensions of the
vessel (that it to say, its length, width, height of superstructure and
draught)

(a) correspond to, or are less than, those of a vessel of that kind which
customarily used that waterway or part during the period of nine months
ending with 8th December 1967; or

(b) if the waterway or part has been restored or improved since that date, are
such as to make it suitable for use on that waterway or part; but, save as
aforesaid, the duty imposed by that paragraph shall extend to any vessel of
the kind therein mentioned as respects the dimensions of which paragraph (a)
or (b) of this subsection is satisfied. [my bold]

21. Clarifying these limits to BWs obligation to maintain navigability, the definitions in
the aforementioned Schedule 12 confirm that the obligation was restricted to -

The main navigable channels of the following waterways: -

21. As relevant to this case, included within the Commercial category was the main
navigable channel of The Trent Navigation from the tail of Meadow Lane Lock,
Nottingham, to Gainsborough Bridge.

22. The Board were, as consequence of this Act, obliged only to keep the main
navigable channel of the relevant waterways in a suitable state for use by the type
and size of craft designated. Their obligation, in other words, was limited to
maintaining as navigable for the designated size of vessels the fairway of the
waterway, and the Schedule 12 list includes amongst the two sets of waterways both
rivers and the artificial canals.

23. It is notable that the defining vocabulary of BW/CaRTs maintenance obligation

is identical to the later 1971 legislation as to the extent of boaters registration
obligation. That is true both as to the description of main navigable channel, and to
the provision in cases of uncertainty for a Minister/Secretary of State approved map
to more precisely delineate the boundaries if necessary.

Canals Examples

24. In clear contrast to many of the main rivers, the canal system comprised more
restrictive widths. Even within those restrictive navigable channels however, a main
navigable channel to be kept clear at all times was recognised within the enabling
legislature well before the passing of Schedule 12 of the Transport Act 1968.

25. Rights under the enabling Acts invariably granted the right for riparian owners to
build facilities both for commercial wharfage and for boats to lie against, fees in
respect of which were reserved to the owners rather than to the proprietors of the
canal. The invariable restriction placed upon those rights was that neither structures
nor boats using them should impede the navigable channel.

26. It is obvious then, that these Acts acknowledged even on the wholly private
property of the canal, a distinction between a main navigable channel, and space
available for moorings and for boats to lie alongside the banks.

27. An example is that of the GJCC Act of 1793, which further defined the space to
be kept clear at all times as being that sufficient to allow two boats of the designed
dimensions for the navigation, to pass each other. This equates to the main
navigable channel of a navigation purposely designed and built to be navigable from
bank to bank. [Exhibit 1]

28. The principle is still acknowledged in CaRTs online publication of the determining
factors for private building and using such facilities [the claimed right to approve and
charge for consent to these being a contempt of statute outside the remit of this
case]. The website describes the width to be kept clear as the Minimum Operational
Channel, and it is notable that, sensibly [and in line with international law on main
navigable channels] the channel so described is dependant upon depth of water as
well, such that the middle of the waterway may not necessarily be the deepest area
[particularly on the bends], and the positioning of the Main Navigable/Minimum
Operational Channel will vary accordingly. [Exhibit 2]

29. Naturally enough, the width of the Main Navigable/Minimum Operational

channel varies according to the navigation concerned; thus the website lists
examples of relevant dimensions as being:

Lee Navigation

12.00 metres

Grand Union

10.00 metres

Stort

7.60 metres

Grand Union (Slough Arm)

5.30 metres

30. To put those figures into perspective, the Grand Union Canal as an example, was
built to 20 yards width as standard [this was the maximum they could acquire under
compulsory purchase]. The Minimum Operational Channel therefore, can be seen
to be approximately half the entire navigable channel.

31. That the concept of the operational channel being defined by the ability for two
boats to pass each other is a matter of general understanding, is illustrated by the
recent letter of Ian Lane, the new waterway manager for the West Midlands:

10

Further to my last email I have been trying to find if we have a navigation

policy regarding vegetation on both sides and unfortunately have had little
success. However whilst it appears that we do not have a set policy, there is
a clear aspiration to maintain the navigation to allow 2 boats to pass.
Unfortunately from your photos we are clearly not achieving this in some
places.

This criterion for determining the main navigable/minimum operational channel is

confirmed in the 2011 Discussion Paper published by BWs Head of Asset
Management, Mr Graham Holland. [Exhibit 3] The main navigable channel of all BW
waters has been determined by identifying the pinch points limiting craft
dimensions, then doubling that with a bit to spare to define a channel sufficing to
allow 2 boats to pass each other. This has been applied to every stretch of river and
canal and published in the WUSIG spreadsheet of 2011.

http://www.britishwaterways.co.uk/media/documents/meetings/wusig/MOCdimensions-comparison-v3-110311.xls

32. In clear distinction from the wording of the 1971 Act respecting the scheduled
rivers, the 1976 Byelaw licensing requirement for boats on all waterways NOT being
river waterways, admits of no similar limitation: regardless of whether the boats are
kept outside of the Minimum Operational Channel, they must possess and display a
Pleasure Boat Licence good for all CaRT waterways.

33. Recognition of this essential difference in the character of the requirements is key
to the issue. The 1968 Transport Act as cited previously, confirms this understanding
in including the canals in the system within the Cruising or Commercial categories
listed in Schedule 12, of which the main navigable channel only - as with the rivers was required to be maintained to the relevant standard.

11

The Common Law

34. If a main navigable channel can be distinguished within the single navigable
channel of artificial canals as in the examples above, the situation is even clearer
when dealing with natural rivers.

35. To further illustrate why this additional qualifying adjective [main] made its way
into the legislation, the distinction between tidal rivers and non-tidal rivers respecting
the Public Right of Navigation [PRN] must be apprehended.

36. It is settled law in the Courts of England that in tidal rivers the PRN extends over
the whole course of the navigation i.e. from bank to bank.

37. On non-tidal rivers, the public right does NOT extend from bank to bank; it is
confined to the central navigable channel Rowland v Environment Agency [2002]
EWHC 2785 (Ch). The right of navigation over privately owned non-tidal rivers is thus
more restricted than on tidal rivers and the rights of navigation [inclusive of the right
to both use & keep boats on the water] outside of the central channel, vest only in
the riparian owners.

38. With this understanding, it is readily appreciated why this legislation distinguished
between the navigable channel that extends from bank to bank [as on some of the
scheduled river lengths], and the public main navigable channel [as applies to most
of them] that is confined to an area falling short of the banks. BW could not grant a
licence to the public to trespass over the navigable channel belonging to third parties.

39. The Trent under CaRTs jurisdiction is tidal between Gainsborough Bridge and
Cromwell Lock. Further upstream from Cromwell Lock it is non-tidal, and certainly so

12

far upstream as Farndon, the ownership of the riverbed vests in the riparian owners.
[Exhibit 4]

40. The common law right of the riparian owner - as distinct from the general public to exercise rights of navigation respecting using and keeping boats moored over his
property outside of the main, public navigable channel, is as a consequence
designedly unaffected by the provisions of the 1971 Act. The promoters of the 1971
Act asked Parliament to amend the public rights of navigation only to the limited
extent that it did; it never purported to ask for amendment of the private rights of
navigation. That is in direct contrast to the terms, for example, of the Transport Act
1968, which - respecting the artificial canals where the rights of navigation were
expressly conferred by the Enabling Acts rather than arising from the common law
rights on rivers expressly abolished both public and private rights of navigation.

41. This inevitable conclusion is given added weight, moreover, by the Acts
recognition that circumstances could arise wherein debate over the precise
boundaries of the main navigable channel was possible. No such debate could
arise if the wording had simply referred to the whole navigable channel of the rivers.

42. Hence s.4(2): The description of any waterway contained in the said schedule
shall be read subject to any order made by the Secretary of State for further
defining the waterway by reference to a map. [my bold]

43. It is obvious that further defining the waterway as to the extremities of its length is
quite unnecessary, given that these are described with precision and need no map
for further defining as with the Trent for example, whose applicable length is
described in Schedule 1 to the 1971 Act as from the tail of Meadow Lane Lock,
Nottingham, to Gainsborough Bridge.

13

44. With start and end points of jurisdiction thus clear, the only possible area left for
further defining the waterway by reference to a map, must be the width.

45. It has been suggested by some that other navigable channels must refer to
alternate parallel cuts, canals, tributaries and marinas. If that were so, then the Act
could simply have referred to the river, or to the navigable channel of the river but
the jurisdiction of the authority is limited to the river itself in any event, and there
would be no need to refer to a map further defining the river itself in case of alleged
ambiguity.

46. Non-navigable channels/inlets/tributaries etc would, in any event, be outside of

the scope of the Act. The obligation to maintain the navigation is inherited from the
British Transport Commission and was diminished under the terms of the Transport
Act 1968 as reviewed above - to apply only to the main navigable channel of the
rivers and canals.

47. In the case of very wide waters such as in the harbours, or in tidal rivers where
knowing the navigable channels is critical, the channels both main and otherwise are
often marked out by a system of buoys, marker poles or lights [and charts are usually
available for reference to and indicating these], but where the whole of the river is
ordinarily navigable at all times, the main navigable channel is a matter of common
sense keeping to the middle avoiding moored boats &/or permanent structures
encroaching into the river; there is no precise border to it. Only if a question arose
over the technical definition for the purpose of something like the registration
requirement, would any necessity be seen for a map further defining the waterway
[already defined as the main navigable channel of the river] by reference to a map.

14

48. It is important to note that no power was bestowed upon BW in respect of an

ability to unilaterally define the extent of the main navigable channel. The very fact
that any further defining by reference to a map is only to be by order of the
Secretary of State, makes it crystal clear that any such refining of the definition was
not a matter to be left to BWs discretion [nor of course to their successor].

49. It is a matter of record that no such maps for further defining the extent of the
main navigable channel have ever been made under any order of the Secretary of
State at any time. The only maps held by CaRT purport to show only the extent of
their jurisdiction over the rivers, NOT the extent of the main navigable channel; they
have quite simply never seen the need for such maps, imposing their own unilaterally
derived definition for main as embracing the whole navigable channel. As s.4(2)
demonstrates, however: no such unilateral power of interpretation is legitimately
available to them.

50. It is submitted that merging the meanings of main and whole does violence to
the plain language, and that the common-sense understanding of the statutes
application would acknowledge that most boats moored to the banks of the river on a
more or less permanent basis, must be considered as not intruding into that main
navigable channel.

51. This would likewise apply to many of those moorings that intrude yet further into
the river by way of jetties and pontoons, though probably not all. [It is a feature of
riparian rights on tidal rivers some of which are likewise embraced within this
legislation - that the right of access to their bank at all times may be accomplished by
building jetties out to the main navigable channel. In such circumstances the
licensing requirement for boats kept there would bite as the wording includes
boats kept within, and not merely using the main navigable channel.]

15

52. In short, when reading the statute as might the man on the Clapham omnibus,
the distinction between a main navigable channel and the entire navigable channel is
as obvious as BWs Information Officer evidently found it. [see paragraphs 84, 85]

53. This is no new concept; the issue was raised in the Appeal Court in the case of
BWB v Peter James in 2003:

But Mr James submitted to us that had he been in possession of the

statutory material in the lower court, there were other points which he would
wish to have taken. In particular, he would have wished to contend that at all
material times Ya Basta was not on a river waterway for the purposes of
section 5 of the 1971 Act because, as one can see from section 4(1):

This Part of this Act [which includes section 5] applies to the main navigable
channel of each of the inland waterways specified in Schedule 1 to this Act
[the River Severn is so specified] which channel so specified is in this Act
referred to as a river waterway.

He contends that it is only a part of the river which can properly be

regarded as the river waterway for the purposes of section 5. That is not
an issue which was ventilated before the magistrates, and it is in no sense
part of the material which we have to decide today. Were it necessary to
adjudicate upon it, we would have to have submissions which we have not
had the benefit of, and we make no finding about it. But we can well
understand why Mr James wishes to observe, as he has, that that was a
point that he would have wanted to have taken. [my bold]

16

54. It is a point of mild interest that BW offered no response to Mr James argument,

even though doubtless they saw it in the same light as the Appellate judges
something extraneous to the pleadings at issue. It is significant that the judge did not
belittle the argument; on the contrary he only set it aside as an issue not pleaded in
the court below, while accepting the force of the argument.

55. In all the premises above, it is submitted that whether or not a permanently
moored boat is to be subjected to enforcement [of whatever nature] on the basis of
s.5 of the 1971 Act, should in all cases be a matter dependant upon the production of
a Secretary of State approved map. This would not be too difficult or onerous a
matter for CaRT to arrange.

56. For so long as the common-sense view of the extent of main navigable channel
[assisted by comparison with the effect of the Thames Conservancy Act it was
modelled on] is to be challenged by CaRT, the absence of such maps is a serious
drawback to those wishing to know exactly where the boundaries of the applicable
legislation lies. It is wrong to continue to permit the interpretation of the Statute to be
the sole province of CaRT.

57. HHJ Hildyard concluded his judgment in Moore v BWB [2012] with the
expressed hope that consideration be given to bringing forward clearer consolidated
legislation in due course to clarify and set out in more accessible form the extent of
BWB's powers and the circumstances in which they may be exercised. [my
bold] In this instance, the production of such maps as the legislation already allows
that the Secretary of State may approve, would serve to provide that more
accessible form.

17

58. As HHJ Hildyard later commented in his subsequent judgment on the Human
Rights aspect of that case: It does not seem to me to be right that the boating
public should be faced with this morass of legislation going back to 1793 if it is to
ascertain its rights and not be left to rely on the say-so of the British Waterways
Board.

59. It is submitted however, that in this case the 1971 legislation has made clear
provision for the avoidance of reliance on BW/CaRTs say-so as to the extent of the
main navigable channel, and that therefore no action could lawfully be taken
against any boat moored to the bank [as compared with one moored to a jetty or
pontoon extending into the main navigable channel] for so long as that clear
provision has been neglected, in favour of the authoritys say-so.

Secondary Legislation

60. The recognition that there may be several navigable channels within the same
body of water [as distinct from physically separated channels flowing in much the
same direction, or flowing into the principal channel] exists in other legislation such
as Byelaws. For example, navigable channels are, in the Southampton Harbour
Byelaws 2003, distinguished as a fairway. Their definition provides:

fairway means a navigable channel which is a regular course or track of

shipping including navigable channels marked, dredged or maintained by
ABP;

61. Byelaw 19 relating to navigation in fairways makes clear that there will be boats
that can navigate outside of the designated navigable channel [i.e. within secondary
navigable channels as distinct from the main fairway], as:

18

(1) The master of a small vessel, which is not confined to the fairway,
shall not make use of the fairway so as to obstruct other vessels which can
navigate only within the fairway.

62. This accords with the definition in Websters New World College Dictionary that
gives the nautical [non-golf] meaning of fairway as: a navigable channel in a river,
harbor, etc.; often, specif., the middle of such a channel. [my bold].

63. Identical definitions to that in the Southampton Harbour Byelaws 2003 are
given in the Humber Navigation Byelaws 1990; the Medway Ports River Byelaws
1991, and the Windermere Lake Byelaws 2012.

64. Even more particularity is given to the meaning of navigable channels in the
River Hamble Byelaws 1986, which state Fairway means the navigable channel of
the river and includes those parts of the channel kept clear of moorings or other
obstructions in order to give vessels clear passage. [my bold]

65. The Port of Ipswich Byelaws 1996 putting it the other way around: navigable
channel means the fairway of the River Orwell . . . [my bold]

66. The British Waterways Byelaws for River Ouse and Foss Navigation contain a
good illustration of the use of a fairway within a wider navigable channel:

Precedence on fairway

12. (a) A vessel not propelled by power when meeting, overtaking or being
overtaken by a power-driven vessel shall so far as it is safe and
practicable keep out of the fairway.

19

(b) A vessel when meeting, overtaking or being overtaken by a vessel

of deeper draught shall so far as it is safe and practicable give the
fairway to that vessel.

67. Identical concerns are embraced within the Port of London Authority Byelaws
2012, relating to the single channel of the Thames:

14.4 A person using a personal water craft must not enter a fairway except
where crossing in accordance with Rule 9 of the International Collision
Regulations.

68. Finally, the Southampton Harbour Byelaws 2003 referred to previously, further
distinguish [byelaw 11] amongst the available fairways/channels a Precautionary
Area which means the main navigable channel . . . [my bold]

69. That there is clear intent in the legislative language, distinguishing between
navigable water and navigable channels, and further distinguishing amongst the
latter a main navigable channel, is, it is submitted, an irresistible conclusion.

International Law

70. The character of the main navigable channel [i.e. as described by CaRT as
minimum operational channel depending on depth as well] is, as noted,
commensurate with International law. Farnham Law of Waters & Water Rights
vol.I deals with Boundary rivers [pgs 30,31]

20

7. Boundary rivers - When a river forms the boundary between two states or
nations, the title to each is presumed to extend to the middle of the main
channel of the stream. In such cases the land covered by the water on each
side of the dividing line is as much the property of the bordering state as
though the water did not flow over it. This line is the middle of the main
navigable channel, and not the middle line measuring from bank to bank,
nor the line followed by vessels engaged in navigating the stream. The
navigation of the stream is of paramount importance to each state,
imperatively demanding that its rights be fixed in such a way as to give it
equal access to the navigable channel. Consequently, when applied to
boundaries between states the words middle of the river and middle of the
main channel are synonymous. [my emphasis]

71. The Treatise cites Iowa v Illinois, 147 U.S. 1, 37 L. ed.55, 13 Sup. Ct. Rep. 239.
and some 19 other cases in support. Commenting on two contrary cases, a footnote
explains:

These decisions are plainly contrary not only to the weight of authority, but to
true principle, because there are streams the character of which is such that
there are large stretches of shallow water along one shore, so that if the
middle line from shore to shore was taken the territory of the state on that
side might not reach the navigable portion of the stream.

72. The above case law does but state what common sense dictates that while the
entire width of a waterway may be navigable by vessels, those with deeper draft
and/or other size restrictions may well be confined to a particular channel within its
breadth. Determination of a main navigable channel useable by all will be a matter of
fact dictated by the individual physical characteristics of the river. For the purposes of

21

the 1968 and 1971 Acts, the main navigable channel is definable according to the
dimensions of the customary craft that used them, whether commercial or cruising.

British Law

73. The case of Rowland v Environment Agency [2002] EWHC 2785 (Ch) has
already been referred to respecting the rights of the public in tidal compared to nontidal rivers. As expounded there:

49. There are two distinctions at common law between tidal and non-tidal
rivers. (a) In the case of tidal rivers the presumption is that the bed of the river
belongs to the Crown and to establish PRN no prescriptive user is required; in
non-tidal rivers the presumption is that it is vested in the riparian owners and
a prescriptive user has to be established. In a case such as the present
where the PRN is established, this distinction between tidal and non-tidal
rivers is irrelevant. (b) In the case of tidal rivers the public rights extend over
the whole watercourse but in the case of non-tidal rivers the public rights
(at least ordinarily) are confined to the channel of the river: see Orr
Ewing v. Colqhoun (1887) 2 App. Cas. 839 at 848 per Lord Blackburn. [my
bold]

74. Even where the public right extends from bank to bank of course, there will be
many examples where the ability to navigate in certain vessels will be physically
confined to certain channels within the river. An obvious example is presented where
bridges cross the navigation, such that on the larger tidal rivers some arches will be
designated as the main navigable channel, some will be classified as minor channels
available to smaller craft, while others yet may be closed to navigation, for all that the
public right extends from bank to bank in these tidal rivers.

22

75. The principle of the public right being confined to the main navigable channel in
non-tidal rivers was upheld in several previous cases where obstructions to
navigation by bridges were claimed.

76. Reg v Betts 16 QB 1022, 1850 was a case on the river Witham [one of the
scheduled rivers of the 1971 Act], where the navigation proprietors had been
accused of the criminal action of obstructing the public right of navigation through
building a railway bridge immediately upstream of the Boston Grand Sluice Lock. The
proprietors were cleared by a jury of the accusation, considering that as the bridge
arch in front of the lock was at least as commodious as the lock and no vessel
wider than the lock could pass through anyway - the practically available navigable
channel itself was not obstructed.

77. It is incontrovertible therefore, that so far as this scheduled river is concerned, the
main navigable channel has been effectively defined - as comprising a considerably
smaller fraction of the whole width of the navigable river - for the past 165 years.

78. The later case of Orr Ewing v Colquhourn [1877] HL (Sc) likewise dealt with
the extent, if any, a bridge built across the navigable river Leven obstructed the right
of navigation. The nature of the river was an inland stream, and the tide does not
flow up to the point where the piers are erected. Thus, in the words of Lord Hatherly

we have further to consider what the navigable channel of the river is; and
I think upon that it is established beyond a doubt that except in extraordinary
circumstances, such as possibly I may have afterwards to refer to in
connection with piece of evidence, the navigable channel of the river is
from a distance of twenty-five feet . . . to the west of the easternmost pier,

23

which is the particular pier complained of in the progress of this case as

interfering with the navigation.

I think it will be found that the evidence largely preponderates to shew that
barges were never in the habit of taking any other course than the course
down the western side of the pier and in the deepest channel of the river;
and that so far were they from taking any other course, especially towards the
east of the pier, that the witnesses tell us that it was considered dangerous to
pass by on that side, because if you passed at all near to that portion of the
river which would be to the east of the pier, or which the pier itself occupies,
you would run a great risk of being carried into the lade, a result which of
course would be deprecated by those who were skilled in navigating the
river. [my bold]

79. Based upon the fact that the customary navigable channel was practically limited
to the degree described, and [again as with Reg v Betts] that the bridge arch
spanned that channel, and at a sufficient height, he declared:

. . . it appears to me to be established plainly and distinctly that there is no

interference with the right of navigation on this river.

80. He went on to explain:

The question seems to be simply this: Does this bridge interfere with that
right of navigation as exercised, or as capable of being exercised, in the
stream?

[my bold] I think we have evidence here which is beyond all

dispute . . that the right of navigation has not been exercised to the east of the
piers of the bridge.

24

81. So although it was possible for boats to navigate the river to the east side of the
river however dangerous and difficult that was under the circumstances - the right
of navigation on this non-tidal portion of the river was limited to the customary, or [as
we might put it adopting the terms of the 1971 legislation] main navigable channel.

BW/CaRT Acknowledgement

82. Apropos of a far earlier case, a request was made via the WhatDoTheyKnow
website, for copies of any Secretary of State approved maps further defining the
main navigable channel of the scheduled river waterways.

83. The answer dated 26 August 2011 was:

Maps of each of the river navigations listed in Schedule One of the British
Waterways Act 1971, as amended by the British Waterways Act 1974, which
mark the main navigable channel of each of those rivers do not exist and, for
that reason, this information is not held by British Waterways. [my bold]

84. In a follow-up to that request, reference was made to a prior incident [also on the
river Trent] dating back to 2008, wherein a marked map purporting to show the area
within which registration was required was sent to the s.8 recipient. This map was
subsequently produced, with its dotted green line as described, with the comment:

Further to your query of 28th August I am now in receipt of the map referred
to in the following correspondence between Mr Cropper and the 'Trent
boater':

25

"I attach the River layout for the Beeston Chalets area; the map shows an
intermittent green line which indicates the navigation. All craft moored on the
river (between the green lines on the attached map) require a current River
licence."

I attach a copy of this map for you now. You will see that the intermittent
green line is drawn on either edge of the section of the River Trent to
show the entire navigation and not, as you believed, drawn to indicate
the

main

navigable

channel.

Again I can confirm that maps of each of the river navigations listed in
Schedule One of the British Waterways Act 1971, as amended by the British
Waterways Act 1974, which mark the main navigable channel of each of
those rivers do not exist and, for that reason, this information is not held by
British Waterways. [my bold and underlining]

85. This is clear recognition that BW understood and acknowledged the distinction
between the entire navigation within either edge of the section of the River Trent
and the main navigable channel [even though the 2008 enforcement officer had
wrongly [&/or willfully] assumed that boats anywhere within the entire navigation
were subject to registration requirements]. [Exhibit 5]

86. It can be noted here for the sake of completeness, without actually referencing
the past stoppages programme notices by BW, that these too made mention of works
affecting some of the scheduled rivers, resulting in closure of some navigable
channels while not affecting the main navigable channel.

26

Legislative Background

87. The intent behind the legislation is abundantly clear from the Bill itself; from the
Hansard debate over the Bill and its purpose, and from the Select Committee
Minutes of Evidence. [Exhibit 6]

88. The intent was not to impose any registration requirement on boats merely kept
on the river while outside the main navigable channel, but rather to impose the
requirement on all boats that would use the channel, thereby enjoying the benefits
of the work done in maintaining the navigability of the rivers at some considerable
cost to the authority. As Mr Jupp QC for British Waterways explained to the
Chairman of the Select Committee:

The licence which a boat owner takes out and pays for makes him free of the
artificial canal system, including the locks, and gives him the free use of the
locks on the river navigations of the Board. On the rivers the situation is
different. The Board are able to, and do, charge for the use of locks and
people who have not got a canal licence because they do not keep their boats
on the canals pay when they go through locks. Commercial traffic of course
pay tolls on the goods carried by them on the river navigations so that the
Board thereby has a means of collecting revenue from the commercial traffic
and also from the pleasure traffic which uses locks. On the other hand, the
river navigation involves not only locks. You can keep a boat on the river and
by taking quite large stretches which there are where there are no locks
you need never go through a lock and therefore need never pay. But of
course a river navigation is not just locks, it consists of sluices, weirs,
maintenance by weed cutting, dredging, bank protection and the like, as well
as by the locks themselves which make the rivers navigable. Without those

27

things which are expensive and expensive to repair and maintain, the rivers
would quickly silt up, develop shoals, become overgrown, the banks would fall
in and very soon they would become unnavigable. [my bold]

89. In arguing for the desirability of the section, BW made direct comparison with the
Thames Conservancy Act 1966 which referred solely to licensing to use the river,
not to merely keeping a boat on the bank which never used the navigation. Only with
the advent of the Environment Agency (Inland Waterways) Order 2010 did it
become mandatory for boats merely kept on the Thames to be registered whether
they used the navigation or not. [Exhibit 7]

90. The caution displayed by BW in not seeking to impact upon the publics rights of
navigation more than absolutely necessary [in their opinion] was due to the sensitivity
of so many to such an imposition. Mr John Wells MP in presenting the Bill to
Parliament:

Until tonight the rivers the Bill will create charges upon have, in the jargon of
the Inland Waterways community, been called free rivers . . .

One of the main points of the river authorities is that they consider that the
charges are fiscal in character and must fetter the public right of
navigation and offer no tangible benefits in return for registration. I think I
have already dealt with the tangible benefits, which, I freely admit, are not
very great, but neither are the charges very great, nor is the revenue going to
be very great, and if there is to be speed control and patrolling, then
registration must come about and there must be some charge.

28

91. The point was emphasised by Mr Downey (Representative of the Minister of

Transport):

. . . in considering this formal application the Minister had to consider two

things: the acceptability or otherwise of the proposals to be contained in the
Bill and whether legislation was the right means of dealing with these
proposals. In considering that the Minister had to take into account the
fact that on the rivers in question there are very ancient public rights of
navigation, as the Committee is already aware, and having regard to that
rather emotive matter it was felt - and the Treasury Solicitor was consulted
before that decision was reached that it would not have been proper for the
Board to have attempted to achieve its aims by means of byelaws, that it was
necessary that legislation should be introduced for this purpose.

92. In explaining the inspiration and existence of precedence for the clauses, Mr
Wells MP commented: [my bold above and below]

The board considers that the increase of leisure activity resulting in the use
of pleasure craft on these navigable free rivers such as the Severn and
Trent whose navigation it controls necessitates making greater the
possibilities, far from those who use them, of contributions to the works and
services which the board provides on its rivers, and to achieve this the board
wants to introduce a registration scheme for pleasure craft navigating on
such rivers. It has taken as the essence of its scheme schemes already
in existence under the Thames Conservancy since the Act of 1966 and
on the Norfolk Broads since the Great Yarmouth Port and Haven Act, 1963.

29

93. That direct reliance on the Thames Conservancy Act is a positive indication of
what BW were aiming to achieve.

94. The draft of the Bill makes specific reference to this reliance in its footnote to the
relevant clause.

95. Mr Jupp QC drew particular attention to this in his presentation of the Bills
rationale:

The registration of pleasure boats which is provided for in Part II of the

Bill is no new thing. The Thames has already a similar system; it has had
it since 1932, in a Thames Conservancy Act of that year; the Act was reenacted with amendment in 1966, and the Thames Conservators, who are
both navigation authorities and river authority - the two functions are
combined in the Thames - control the pleasure boats there by a system of
registration.

96. As Mr John Wells MP had said:

The Board is perfectly fair in asking the House for these powers. Some who
felt that the powers appeared at first sight to be a bit draconian have been
slightly reassured by being told that most of the Clauses were taken as
model clauses, as it were, from the Thames Conservancy legislation.

97. That the clause was aimed at those actually using the navigation as distinct
from those merely keeping their boats there is evident from his rationalisations for the
registration and charges:

30

It is reasonable to point out that there must be increased patrolling,

increased sanitary facilities, increased water facilitiesfresh drinking-water
facilities, I meanand increased lock facilities. I mean not that there will be
more locks but that the locks should be open for longer hours. These are
extra services for which people will be asked to pay, and it seems to usto
me, anywaythat this is not unreasonable.
The proposed scheme is also of importance to the Board in that it will enable
the board to achieve a measure of control and management of craft using its
waterways, as the craft will then be identifiable. [my emphasis]

The real rationale of course, was that byelaws could not be effectively enforced when
there was no means of readily identifying the craft and that was the single most
driving impetus to get registration made compulsory: so that that those who used the
rivers could be nabbed for speeding etc.

98. It is evident then, that throughout the Bills preparation and passage through
Parliament [two sittings were taken on the Bill], there was concern to impact upon the
navigations rights as little as was deemed possible while still achieving their stated
objective to manage and control active use of the navigation, as had been displayed
in the fore-runner legislation for the Thames.

99. The only distinct difference from the Thames legislation is that the BW version
included boats moored [kept] within the main navigable channel [the Thames
Conservancy Act excluded boats moored in the main channel of the Thames
provided they did not use the river] but such boats would be in a considerable
minority and largely found within tidal sections for reasons of accessibility.

31

100. Although the effect of the Thames Conservancy Act has now been over-ridden
by virtue of the 2010 Order [such that ALL boats on the entire width of the river
whether using it or not must be licensed], no such amending legislation has ever yet
been passed affecting the 1971 Act.

Rules of Construction of Private Acts

101. The 1971 Act is a private Act promoted by the statutory body that was British
Waterways Board at the time.

102. The firm rule to be applied by the Court when construing all such private Acts, is
that in the event of any ambiguity, the wording must be construed against the
interests of the promoters of the Act, and in favour of the public.

103. Whilst it is submitted that use of the express qualifying adjective admits of no
ambiguity at all, for so long as CaRT argue [as they must to justify their action]
against the common-sense understanding of the applicable area, then ambiguity
must be held to exist in this instance, and the Court will be bound to apply the
invariable rule in such cases.

104. The rule has ancient precedent [often dealing with canal Acts], notably the oftcited case of Stourbridge v Wheeley, cited with approval in the case of Swanhill
Developments Ltd & Ors v British Waterways Board 1998 JPL 153 and in Moore
v British Waterways Board [2012] 1 WLR 3289, [2012] EWHC 182 (Ch): -

The canal having been made under the provisions of an Act of Parliament,
the rights of the plaintiffs are derived entirely from that Act. This, like many
other cases, is a bargain between a company of adventurers and the public,

32

the terms of which are expressed in the statute; and the rule of construction in
all such cases is now fully established to be this, that ambiguity in the
terms of the contract must operate against the adventurers, and in
favour of the public; and the plaintiffs can claim nothing which is not clearly
given to them by the Act. [my bold]

105. The relevant proposition is enunciated by Francis Bannion in Statute

Construction, under the topic of Legality. He says

Where the decision-maker is a public corporation it lacks the comprehensive

power possessed by natural persons to regulate the use of its property in any
lawful way it sees fit: see e.g. R v Somerset County Council, ex p Fewings
[1995] 3 All ER 20, following Calder and Hebble Navigation Co v Pilling
(1845) 14 M & W 76 at 88."

106. The Bournemouth-Swanage Motor Road & Ferry Co. v Harvey & Sons
[1929] 1 Ch. 686 -

The courts construe private Acts on a presumption that people should not be
prejudiced in matters they can lawfully perform without compensation, unless
that intention is clearly expressed. . . .

I approach the matter from the position that clear and unequivocal words are
necessary to derogate from common right, to deprive people of the power to
do what they were doing for profit at the passing of the Act, without any one
being able to stop them. . . .

In approaching the consideration of the Act it is necessary in my view to set

out the canons of construction of such a statute. In Scales v Pickering

33

[1828] 4 Bing. 448, 452. Best C.J. says: If the words of the statute on which
they rely be ambiguous, every presumption is to be made against the
company and in favour of private property. In Parker v Great Western Ry
Co. [1844] 7 Scott. N.R. 835, 870. Tindal C.J. says: The language of these
Acts of Parliament is to be treated as the language of the promoters of them .
. . Acts passed under such circumstances should be construed strictly against
the parties obtaining them, but liberally in favour of the public. If there be
any reasonable doubt, said Lord Cottenham L.C. in Webb v Manchester &
Leeds Ry. Co. [1839] 4 My, & Cr. 116, 120. As to the extent of their powers .
. . they must go elsewhere and get enlarged powers; but they will get none
from me, by way of construction of their Act of Parliament.

The judge later quoted from:

the case of Scottish Drainage Co. v Campbell [1889] 14 App. Cas. 139,
142 Lord Herschell said: when an Act of this description is obtained by a
company incorporated for purposes of profit, to confer upon them rights and
powers which they would not have at common law, the provisions of such a
statute must be somewhat jealously scrutinized, and I think that they ought
not to be held to possess any right unless it be given in plain terms or arises
as a necessary inference from the language used.

107. It being clear, as both BW and Parliament recognised, that rights of navigation
[both public and private] over the rivers had existed since time immemorial, any
construction of the private Act that seeks to limit those rights further than the clear
language of the Act makes necessary, must be held to be contrary to accepted legal
practice.

34

108. Any assumption of powers by the promoters must be strictly limited to those
clearly given them in the Act. They have clearly been given powers to demand
registration fees for all boats kept or used within the main navigable channel of the
scheduled rivers; they have not been given powers to demand registration of boats
that are kept or used outside of the main navigable channel, and any ambiguity
claimed in order to extend the reach of the power to cover the entire navigable
channel can only operate against them, not against members of the public.

Rules of Construction of all Statutes

109. The rights of navigation being derived in this instance from the common law, it is
further worth pointing out in any event, that statutes should be construed so as to
impact upon such common law rights no further than the Act makes expressly clear.

110. As put by the judge in Attorney-General Ex-Relatio Yorkshire Derwent Trust

Ltd & Another v Brotherton & Ors [1991] WLR 1126

There is, however, a presumption that except in so far as they are clearly
and unambiguously intended to do so, statutes should not be construed so
as to make alterations in the common law. [my bold]

111. To quote Lord Scott of Foscote from the House of Lords 2003 judgment in
Wilson & ors v Secretary of State for Trade & Industry:

Another statement of the presumption is to be found in the judgment of

Dickson J in Gustavson Drilling [1977] 1 SCR 271, 282:

"The rule is that a statute should not be given a construction that would
impair existing rights as regards person or property unless the language

35

in which it is couched requires such a construction: Spooner Oils Ltd v

Turner Valley Gas Conservation Board [1933] SCR 629, 638. The
presumption that vested rights are not affected unless the intention of the
legislature is clear applies whether the legislation is retrospective or
prospective in operation. A prospective enactment may be bad if it affects
vested rights and does not do so in unambiguous terms. [my bold]

112. In the present case it is submitted, the enactment in issue has carefully limited
the impairment of existing rights by the use of - what cannot be considered a
redundant - adjective respecting the navigable channels of the rivers that are to be
classified as river waterways for the purpose of registration.

113. Even supposing, however [which is denied], that the description admitted of any
ambiguity, that ascribed looseness of wording could not be relied upon to impair
existing rights that would otherwise remain unaffected.

114. In the premises, CaRT acted unlawfully in construing their Act so as to impair
the existing rights in circumstances where the boat lay outside of the main navigable
channel of the non-tidal river Trent.

115. It is regrettable that CaRT, as BW before them, have been allowed to apply the
legislation in the cavalier way that they have been doing for so long; the 2008 case
being in point, where the enforcement officer had declared that all boats within the
entire navigation were subject to the registration requirement, when even BWs
Information Officer acknowledged that the green lines on which he had relied did
not, and did not purport to, indicate the main navigable channel.

36

116. Such ignorance if ignorance it was on the part of such an officer might be
understandable though not excusable, but these s.8 proceedings are monitored at
the highest levels including the legal department, and the actions of the officers even
when transparently wrong, are supported as a matter of institutional policy.

Site Characteristics

117. The boat was moored along the bank of what had once been the Farndon Ferry
operation; now a private boatyard.

118. It is an inescapable feature of a ferry operation both that the width and depth of
the waterway demands such a service, and that the ferry boat will at all times be
present and moored at one side of the river or the other at the point of crossing. The
corollary will be that in granting consent for the ferry, the moored boat will not have
been considered to have intruded into the main navigable channel so as to constitute
an obstruction to the public right of navigation, but that free passage for boats
navigating the Trent at this point will have been permanently clear for those heading
in either direction simultaneously.

119. The width of the Trent at this crossing is 56 mtrs, or 183 feet.

120. The maximum width of vessel ordinarily navigating the Trent this far upstream
was 20 feet, and further downstream signs beside the waterway warned of a 40 foot
channel for boats to keep within [though these signs may no longer be in existence].
That would accord with the general principle of the main navigable channel being
sufficiently wide to allow two boats of the type ordinarily using the waterway to pass
each other.

37

121. Historically the dredged navigable channel was 50% wider; the Trent Navigation
Company had obtained an Act of Parliament in 1906, authorising them to make
improvements upstream of Newark [which includes the section relevant to this case]
to allow larger boats to navigate the river. The Act authorised dredging a channel 60
feet wide and five feet deep. [Exhibit 8]

122. This section of the Trent was recently dredged in 2014 by contractors Land &
Water, after more than ten years neglect of the statutory obligation to keep the main
navigable channel suitable for commercial use. The Works Supervisor Mr Avi Verber
was quoted as saying: We have dredged only the channel, not the whole width of
the river, because that simply isnt economically viable. [my bold]

123. Announcing that work in February 2014 the Clean Water Trust noted:

The Canal and Rivers Trust has announced that it is spending 1 million to
dredge the river to aid navigation; that is to provide a navigable channel
from Nottingham to Gainsborough . . . [my bold] They further noted: The
maintenance of the River Trent and its channel is vital . . . [my emphasis]

CaRT has confirmed that The channel dimensions dredged in order to achieve our
navigational standards were: Holme Lock to Cromwell Lock 11m X 2.3m. That
equates to roughly 36 feet width. [Exhibit 9]

124. The very latest non-tidal Trent charts published by The Boating Association
show the centre of the navigable channel as a thin red line. They note:

Because of the small scale of the charts the course of the safe channel is
necessarily exaggerated and may occasionally touch the bank. Use common

38

sense and keep at least 12 feet (4 metres) from a training wall, further from a
stone heap, and well away from a gently sloping bank. Remember that the
red line indicates the centre of the channel and, in most places, this is
around 30 feet wide or more. [my bold] [Exhibit 10]

125. Whether the width of the channel is taken as 30 feet, 36 feet, 40 feet or the
historical 60 feet makes little practical difference for the instant purpose; even the
original 60 foot wide channel would mean that the main navigable channel took up
only a third of the available width of the Trent at this point.

126. The legal obligation to maintain the requisite depth for commercial traffic is
limited under the 1968 Act to this main navigable channel, and the exact same
defining terms as to that, are those used in the 1971 Act respecting the requirement
for boat registration. Supposing CaRT was to argue that the main navigable channel
extended from bank to bank, then given these identical definitions [Secretary of State
approved maps or no] their obligations to dredge must be equally extensive - yet that
is scarcely on their agenda! As recorded above, the extent of the main navigable
channel under the 1968 statutory obligation is claimed by CaRT to be no more than
36 feet for this section of river. The identical dimensions will apply to the 1971
Act registration requirements, couched as those are in identical language.

127. The historical facts and the comparative legislation leave no room for doubt: the
main navigable channel of the Trent at Farndon is a maximum 60 feet wide by virtue
of Parliamentary statute, and considerably less in practically applied terms. With an
equivalent 60 feet of river outside of that channel on both the northern and southern
sides, all boats moored at Farndon Ferry are unquestionably outside of the main
navigable channel as provided for in the 1906 legislation; stipulated in the legislation
of 1968 and 1971, and acknowledged by CaRT in the 2013 dredging contract.

39

128. As a final note on the subject, it should be remarked that CaRT had the
opportunity to rebut argument on this very issue in the proceedings brought by them
last year against Mr Tony Dunkley [Claim No: A00NG769], in another instance of
unlawful and inappropriate use of s.8 powers. Argument on the issue was contained
within paragraphs 124 to 128 of Mr Dunkleys Defence dated 28 July 2014. In that
instance CaRT chose to discontinue their action once having read that Defence. It
may be noted as pertinent that the same Enforcement Officer [Mr Stuart Garner] was
the driving force in that case also. [Exhibit 11]

DISPROPORTIONALITY OF THE ACTION

Addressing Claim (b) -

Human Rights Act 1998

129. In this the year of its 900th anniversary, Magna Carta, often considered the
keystone document of the UKs governance, is receiving heightened attention. It is
appropriate therefore, to consider that elements of this document contain the seeds
of exactly such general concerns over the rights of the governed as have received
more particular attention in the Human Rights Act of 1998.

130. No matter that the original concerned the rights of the aristocracy rather than the
rights of the common people, the influence even of its purely symbolic character
helped formulate much of the common law and guide the drafting of statutes. This led
to Lord Dennings description of it as the greatest constitutional document of all
times the foundation of the freedom of the individual against the arbitrary authority
of the despot. It is this essential element, demanding what later European concepts
called the principle of proportionality in the application of law, that has informed the

40

European Convention on Human Rights, and prompted the UK adoption of that

Convention under the aegis of the 1998 Act.

131. That Lord Denning was right in so far as he considered Magna Carta a catalyst
for following legislation dealing with the rights of individual against their rulers, is well
illustrated by the 1276 Statute of Marlborough, three of its clauses remaining as live
today [supposing that the Law Commission recommendations have not been
approved by Parliament by the time this reaches the Court].

132. Clause IV states: Moreover, Distresses shall be reasonable, and not too great;
and he that taketh great [or undue] and unreasonable Distresses, shall be
grievously amerced for the Excess of such Distresses. [my bold]

133. This precocious statute [the very oldest remaining in force] limiting the
application of powers, is a direct precursor to the modern 1998 legislation
particularly being aligned to the test of proportionality - and is binding in the instant
case.

134. The seizure of property engages Article 1 of The First Protocol of the
Convention rights to which this country is signatory.

From the Human Rights Act 1998, Schedule 1, Part II -

The First Protocol

Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his

possessions. No one shall be deprived of his possessions except in the public

41

interest and subject to the conditions provided for by law and by the general
principles of international law.

The preceding provisions shall not, however, in any way impair the right of a
State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties.

135. This case revolves around the alleged right of the authority to forcibly remove
property and hold it subject to release only on payment of costs entirely
disproportionate to the value claimed owed.

136. It is not accepted that the relevant law [s.8 of the BWB Act 1983] does give this
as an available option to CaRT, for the purpose of securing the payment of taxes or
other contributions or penalties, but discussion on that point is dealt with under the
final point of claim.

137. At all times, however, when assessing the exercise of extraordinary power [s.8s
being always acknowledged as draconian], the HRA demands that the remedy be
appropriate and tailored to the mischief. In the words of the Statute of Marlborough:
reasonable and not too great; there is to be no Excess of such Distresses.

138. The question needs to be asked, in other words, does the remedy achieve the
legitimate purpose? - which inevitably entails the preliminary question what is that
purpose?. If the immediate purpose is ensuring that the offending boaters pay their
way, then s.8 does not accomplish that. If the statutorily authorised preliminary steps
to recover the monies owed have not been taken, then the s.8 process - far from
being employed as a 'last resort' - is an all too precipitate abuse of the law, being

42

unreasonable and excessive in its undue effect, creating greater penalties

[revenges] than the directly applicable law drafted for the purpose.

139. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries,

Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three-stage test for
determining proportionality. Lord Clyde observed, at p 80, that in determining
whether an act, rule or decision is arbitrary or excessive the court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting

a fundamental right; (ii) the measures designed to meet the legislative
objective are rationally connected to it; and (iii) the means used to impair
the right or freedom are no more than is necessary to accomplish the
objective."

140. According to EU Law (5th edn OUP 2011) 526 by P Craig and G de Burca, the
test of proportionality is generally acknowledged to comprise 4 stages:

there must be a legitimate aim for a measure

the measure must be suitable to achieve the aim (potentially with a

requirement of evidence to show it will have that effect)

the measure must be necessary to achieve the aim, that there cannot be
any less onerous way of doing it

the measure must be reasonable, considering the competing interests of

different groups at hand.

141. Without prejudice to the primary claim that CaRT had no empowerment to
require a pleasure boat certificate for a boat kept outside of the main navigable
channel and never using that channel, and without prejudice to the tertiary claim that

43

s.8 is inapplicable where the owner is known and in contact, it is nonetheless argued
that in applying the most severe sanction in their arsenal in this case, CaRT fail the
test of proportionality demanded by the Courts:

142. Judgment of the Court (Fifth Chamber) of 11 July 1989. - Hermann

Schrder HS Kraftfutter GmbH & Co. KG v Hauptzollamt Gronau Case 265/87

3 . Both the right to property and the freedom to pursue a trade or profession
form part of the general principles of Community law whose observance is
ensured by the Court. However, those principles do not constitute unfettered
prerogatives but must be viewed in the light of their social function .
Consequently, the right to property and the freedom to pursue a trade or
profession may be restricted, particularly in the context of a common
organization of the market, provided that those restrictions in fact correspond
to objectives of general interest pursued by the Community and that they do
not constitute, as regards the aim pursued, a disproportionate and
intolerable interference which infringes upon the very substance of the
rights thus guaranteed.
By virtue of the principle of proportionality, measures imposing financial
charges on economic operators are lawful provided that the measures are
appropriate and necessary for meeting the objectives legitimately
pursued by the legislation in question. Of course when there is a choice
between several appropriate measures, the least onerous measure must
be used and the charges imposed must not be disproportionate to the
aims pursued . . . . . Consequently, the legality of a measure adopted in
that sphere can be affected only if the measure is manifestly inappropriate
having regard to the objective which the competent institution intends to
pursue. [my bold]

44

143. Professeur Jean-Marc Thouvenin - European Governance 2 : The Principle

of proportionality

A Origins of the principle

As a constitutional principle and as a general principle of administrative law,

the principle of proportionality requires each decision and measure to be
based on a fair assessment and balancing of interests, as well as on a
reasonable choice of means. In other words, any action undertaken must be
proportionate to its objective.

The principle of proportionality as a legal principle is derived from German

law. It is a legal safeguard against the unlimited use of legislative and
administrative powers and considered to be a part of a rule of common
sense, according to which an administrative authority may only act to
exactly the extent that is needed to achieve its objectives.

More specifically, the principle of proportionality means that any measure by a

public authority that affects a basic human right must be: appropriate in order
to achieve the objective, which is intended, necessary in order to achieve the
objective, which is intended, i.e. there are no less severe means of
achieving the objective, and reasonable, i.e. the person concerned can
reasonably be expected to accept the measure in question . . .

144. The Outer Limits of European Union Law; edited by Catherine Barnard,
Okeoghene Odudu

The principle of proportionality is referred to in almost every case which

applies to a review of measures (well defined eg Case C-189/01 Jippes
[2001] ECR 1-5689, paras 80-101; see also C-331/88 Fedesa and Others

45

[1990] ECR 1-4023). The ECJ has adopted a three-level test (levels two and
three are often addressed together): first, measures may 'not exceed the
limits of what is appropriate and necessary in order to attain the objectives
legitimately pursued by the legislation in question'. Secondly, when there is
a choice between several appropriate measures recourse must be had
to the least onerous', and thirdly, the disadvantages caused must not be
disproportionate to the aims pursued'.

145. When the crucial test of choice between alternate appropriate measures is
applied, the actions of CaRT in this as in many such cases, becomes transparently
disproportionate. The standard presumption of the Courts that the relevant
waterways authority will act at all times appropriately, is now established to be
unjustified. HHJ Hildyard in Moore v British Waterways Board [2012] EWHC 182
(Ch) (10 February 2012):

. . . BWB did exercise its powers inappropriately . . .

146. The s.8 powers of removal of vessels were never designed as a punitive
measure against unlicensed boats; it was a power of last resort, to enable removal
of abandoned vessels in cases where the owners could not be found, and
applicable only when alternative measures failed to achieve the objective.

147. This was recognised by all parties including BW when discussing before
Parliament the proposed new measures of control during passage of the 1990 Bill.
This was highlighted by HHJ Hildyard in the above judgment:

Para 191 As previously noted, BWB has long accepted that the powers
afforded by section 8 to remove vessels are draconian and to be exercised

46

as a last resort. In his submissions (both written and oral) the Claimant drew
attention in this context to evidence given to a House of Lords Select
Committee when in 1991 the then British Waterways bill which eventually was
(with deletions and amendments) enacted in 1995 was under review. The
person in BWB then responsible for the management of BWB in the North
East, when cross-examined in respect of his evidence that BWB needed
more comprehensive methods of controlling navigation and mooring,
considered that the use of section 8 was draconian; and that even in the case
of a licensed vessel "provided it was not causing an obstruction to
navigation it would be unreasonable for us to use it, even if we could." (I
pause to record that BWB objected to the use of this material as an aid to
construing the statutory provisions; but I am not using the material for that
purpose, but rather to demonstrate BWB's own factual acceptance as to the
nature and severity of their powers.) [my bold]

148. Even though HHJ Hildyard concluded that BW were entitled in the end, to
require removal of the boats in that case [overturned on appeal], BWs conduct came
under criticism:

Para. 229 . . . I do consider that this incident, the failure within BWB to see
to it that all relevant personnel were properly informed of the Court
undertaking and the importance of it being observed to the letter, the failure to
offer me a proper explanation before I called for it, and the failure at the time
to deal with the Claimant's not unreasonable requests for an explanation, all
further suggest inappropriate haste and carelessness. BWB are given
draconian powers: and it is of particular importance that they should be,
and be seen to be, deliberate, transparent, fair and careful in
discharging their functions.

47

149. Hence in his conclusions:

viii) However, in serving section 8 notices BWB failed to abide by its own
procedures, and was in breach of legitimate expectations held by the
Claimant that in exercising a power admitted by BWB to be draconian and
to be used only as a last resort BWB would abide by such procedures;

150. The relevant objectives for implementation of the law involve the duty of the
authority to manage the waterways in the interests of the countys economy and for
the benefit of all other users. Following the precepts of Lord Clyde as quoted earlier,
use of s.8 proceedings need to be examined as to their rational connection to the
legislative objective.

151. It will be seen that s.8 proceedings against navigable boats are to the detriment
of the economy rather than otherwise, and have no positive benefit protecting the
rights and interests of others. The greatest impact on others is of a purely admonitory
nature.

152. Without doubt, a non-paying customer is damaging the economy. The remedy is
to recover the money owed, as Section 5 of the BWA 1983 provides:

(2) If any person from whom any charge is due or by whom any charge is
payable fails without reasonable excuse to pay the same, or to comply with
any requirement of the specified enactments upon compliance with which a
charge is payable, the Board may (without prejudice to any criminal
proceedings to which that person may be liable) recover from him a sum
equal to

(a)

the

amount

of

the

charge

which

is

due

or

payable;

or

(b) where charges may be paid for periods of less than one year and the

48

Board have not accepted part payment of the charge, a sum equal to the
amount of the charge which is due or payable for one year; in the manner in
which

the

charge

would

be

recoverable

apart

from

this

section.

(3) A court before which a person is convicted of an offence under any of the
specified enactments arising from or involving any failure to pay a charge
may, in addition to dealing with him in any other way, order him to pay to the
Board any sum which the Board are empowered to recover under this
section.

153. So much for the generality what is the relevant offence?

154. Under the 1971 Act [as amended], there is a penalty for permitting a boat to be
on a river waterway without lawful authority, of 50 and a daily charge of 5 per day
for all the time the offence continues from the time of summary conviction.

155. The relevant legislative objective, therefore, in respect of a vessel kept or used
within the main navigable channel of the relevant river is provided for by those
statutory powers, which are designed to achieve precisely the recovery of sums
owed, adding in the financial penalty, plus the criminal conviction. Not only does this
appropriate legislation provide for the economic well-being; by providing, additionally
to the recovery of monies owed, a perfectly adequate admonitory function ensuring
proper management of the system for the well-being of other users, it achieves both
legitimate over-riding objectives.

156. Not only cannot the s.8 process achieve the first, nor provide the only tool for
public warning, this means of allegedly accomplishing the objectives will not only be
far more than is necessary to accomplish the objective because there are less
onerous ways of doing it, the chosen means will be as a consequence both

49

arbitrary and excessive. Application of s.8 under those circumstances, therefore,

violates both the HRA and the fourth clause of the Statute of Marlborough.

157. It is accepted that the authority has the right under law to secure the payment
of taxes or other contributions or penalties. But once again: s.8 proceedings were
not designed to achieve that objective, they were designed solely to free up space on
the waterways so that their use is not impeded by boats that ought not to be there.
The payment of taxes etc can only be achieved through exercise of the s.5 power.

158. ALL of the legitimate purposes can be achieved through application of the more
appropriate legislation available to the authority. Most of those purposes CANNOT be
achieved through application of the s.8 procedure.

159. Ergo, the process in the circumstances is manifestly without reasonable

justification.

Extremity of measures taken

160. The situation is exacerbated when it is realised that CaRT have taken this step
of engendering tripled costs while recognising that their victim was in all probability in
no position to pay even one years annual licence fee an assumption they made
clear in their unnecessary submissions to the Court for the previously vacated
Injunction hearing.

161. The intent, given that assumption, was necessarily then, to deprive the boat
owner of the full value of his 30,000 plus property for the sake of an initial alleged
debt of under 400, secure in the acknowledged belief that he would be unable to
find the 8,176 plus they were demanding as a result of pursuing the s.8 procedure
in the needlessly expensive manner that they did.

50

162. A further note respecting the aim of recovering monies owed s.8(3) provides
ONLY for recovery of expenses incurred in exercising their rights in the process of
removal; it confers NO powers of recovery of sums owed in respect of the licence,
nor of any other sums owed them as a result of any extraneous Court Orders.

163. Employment of s.8(2) powers does not and cannot, therefore, address the
legitimate objective of ensuring that all boats possess the relevant consent; it exists
only as a last resort penalty upon failure of the authority to achieve that objective
through the appropriate powers available.

164. Recent publication of the options CaRT recognises with respect to unlicensed
boats throws up some light on the thought process [or not] involved. It is notable
when seen laid out in this charted fashion, that the end game necessity with all s.8
procedures is a suit for debt [under the s.5 powers of the 1983 Act]. [Exhibit 12]

165. This highlights the absurdity of not taking that action at the beginning, when
the debt sought to be recovered would have been so much less. And yet, that option
does not appear ever to have occurred to the authority. They appear to favour the
taking of excessive distress instead.

166. The flow chart moves directly from lack of response to a caution letter or Patrol
Notice, to a s.8 Notice, instead of suing for the debt as legislation specifically
provides why?

167. Having served the s.8, the flow chart moves directly from the point at which a
boater fails to comply with option [purchase a licence or disclaim the boat], to:
survey and remove said boat. Even at that point they could sue the boater for the
debt of the owed licence fee before taking action to remove the boat, and yet they do
not.

51

168. Instead of initiating suit for debt at the very beginning of this cause for action, it
is left to the very end of the process, at which stage they are only recovering the
monies expended on removal and storage fees, instead of the monies that could
positively build up their coffers.

169. If a lawsuit for sums owed STILL remains to be done at the end of the s.8
procedure, then following the s.8 procedure INSTEAD OF suing to recover the
smaller sum to begin with, is contrary to their fiduciary duty and manifestly without
reasonable justification.

170. The first issue to be examined then, is the nature of the measures of first resort
to address the identified mischief in the instant case. For so long as less onerous
appropriate measures exist - tailored to remedy the administrative mischief perceived
- then the choice to apply the most draconian measure in the authoritys arsenal
instead, must be considered a clear breach of the Human Rights Act 1998.

171. The mischief complained of is that the boat was kept on CaRT river waterways
without the appropriate lawful authority of a current Pleasure Boat Certificate as
required under the BW Act 1971, s5(1). Without prejudice to the claim that such
authority was not required in the circumstances: where such a claim is justifiable,
then the appropriate remedy has been provided for.

172. The relevant legislation describing the offence is section 5(1), and section 5(2)
provides the remedy for breach:

Any person who contravenes subsection (1) of this section shall, for each
offence, be liable to a fine not exceeding twenty pounds and a daily fine of
two pounds.

52

173. This was amended under s.7 of the British Waterways Act 1975 Act to increase
the penalty to fifty pounds and five pounds respectively. It should be noted also,
that s.7 provided that unpaid charges for the Certificate could be pursued as a civil
debt, even prior to the British Waterways Act 1983.

174. The 1983 Act provided for Recovery of Charges in section 5:

(1) In this section -

(a) charge means any sum due to the Board under any of the specified
enactments or payable to them on compliance with any of the requirements of
the specified enactment;

(b) the specified enactments means (ii) the following sections of the Act of
1971: - section 5 (Restriction on pleasure boats); section 7 (Charges for
registration of pleasure boats) . . .

(2) If any person from whom any charge is due or by whom any charge is payable
fails without reasonable excuse to pay the same, or to comply with any
requirement of the specified enactments upon compliance with which a charge is
payable, the Board may (without prejudice to any criminal proceedings to which
that person may be liable) recover from him a sum equal to

(a) the amount of the charge which is due or payable; . . .

in the manner in which the charge would be recoverable apart from this section.

53

(3) A court before which a person is convicted of an offence under any of the
specified enactments arising from or involving any failure to pay a charge may, in
addition to dealing with him in any other way, order him to pay to the Board any
sum which the Board are empowered to recover under this section.

175. It is clear therefore, that a remedy deemed appropriate to the case was
sanctioned by Parliament and available for employment by CaRT. They could [and
should, if genuinely entitled] have applied to the Court for judgment as to the alleged
offence, and on conviction they could have recovered the sums due for the licence,
with the addition of the specified fines as a discouraging penalty.

176. Such a procedure is as routine and economic as a councils chasing parking

fines. Nothing in the sections empowering civil suit for sums owed include any right
whatsoever for the authority to seize property as a lien on that debt.

177. The BW Act 1983 s.8 provisions specifically allow only for sums expended by
the authority to be recovered in order that the owner can reclaim his boat.

(3) All expenses incurred by the Board in

(a) the removal, storage or destruction of the relevant craft;
(b) the removal or storage of any furniture, tackle and
apparel of the relevant craft, or any cargo, goods, chattels
and effects on board the relevant craft; or
(c) marking, watching, buoying or otherwise controlling
the relevant craft;
may be recovered by the Board from the owner of the relevant craft.

(4) If within six weeks of its removal by the Board any relevant

54

craft cannot be proved to the reasonable satisfaction of the Board

to belong to any claimant, it shall, together with any furniture,
tackle and apparel and any cargo, goods, chattels and effects on
board, vest in the Board:
Provided that, if within twelve months of its removal a claim to
the relevant craft is made by a person who subsequently proves
that he is the owner thereof, the Board shall, if the relevant craft is
unsold, permit the owner to retake it with any furniture, tackle,
apparel, cargo, goods, chattels and effects on board upon payment
of the expenses referred to in subsection (3) of this section or, if the
relevant craft and the furniture, tackle and apparel and any cargo,
goods, chattels and effects on board have been sold, the Board shall
pay to such owner the amount of the proceeds of such sale after
deducting the said expenses, and in case such proceeds shall be
insufficient to reimburse the Board such expenses the deficiency
may be recovered by the Board. [my emphasis]

The word shall in this context, acts as an imperative: the Board must return the
boat once the costs only have been reimbursed. Taking the boat into custody under
s.8 was never designed to act as the exercising of a lien upon the boat in respect of
existing debts, as an alternative to s.5.

178. Their claim on the date of the s.8 seizure was for 1,685.20 in respect of 4
years of alleged licence payment arrears. It was unconscionable for them to have left
this action for such a period of time without taking timeous action, which [supposing
their entitlement] should have been expedited shortly after the licence expired.

55

179. What at the time of the initial alleged breach was 390, could have been
recovered under the s.5 powers, with a Court Order for the Certificate fee; 50 fine,
and 5/day until remedied.

180. Even supposing [which is denied] that 4 years of licence fees were owing at the
time of seizure, the correct procedure was still to apply to the Court for judgment on
that debt as above. Instead, they have ignored this statutory remedy, and have
chosen to apply the most draconian possible action of seizing the boat, incurring
alleged costs of 5,740.80 additional to the claimed arrears, with ongoing storage
costs of 45/week, plus additional fees amounting to 750 claimed for the attendance
of CaRT representatives including Stuart Garner the enforcement officer and an
unnamed CaRT Debt Collector. That latter adds insult to injury.

181. It is also a notable feature of the planned removal, that instead of simply towing
the boat a few miles upstream to Newark where it could have been kept under their
control, they arranged to have it taken to their contractors yard in Chester, 110 miles
away. It should be remarked in this context that there was never any need to remove
the boat from the water: the Act provides that they can simply take it into their control
as per s.8(3)(c) (c) marking, watching, buoying or otherwise controlling the relevant
craft; - which could even have been done at the immediately adjacent marina.

182. The outcome was that they more than tripled the overall alleged debt, while still
- under the terms of the 1983 Act together with those of 1995 Act - being unable to
use possession of the boat to recover the original alleged debt over the licence
fees. They were compelled, under the terms of the 1971 Act, to return the boat upon
the removal and storage costs alone, and pursue the alleged licence debt
separately as provided for under s.5 of the 1983 Act. Acting as they did: refusing to
release the boat until the alleged licence arrears had been paid also, has involved

56

CaRT and Shoosmiths in a serious offence under the Tribunals, Courts and
Enforcement Act 2007, because even IF [which is denied] they had powers to seize
goods as security for debt as does a bailiff they would STILL need a Court Order
authorising that.

The Lawful Objective

183. That brings us to the issue of the lawful objective. The only legitimate objective
CaRT can have is to obtain payment for the lawful authority [represented by the
Pleasure Boat Certificate where that applies] for the boat to be present on CaRTs
waterways.

184. The effect of the action taken in lieu of the specified statutory remedy - has no
value to administration of the waterways, nor [if CaRT restricted themselves to lawful
actions] to recovery of the licence fees. The action fails the test of proportionality on
both counts (a) it is a choice for the most severe sanction when less onerous
avenues were open to them; additionally (b) it fails to remedy the breach
complained of; it does NOT attain the objectives legitimately pursued by the
legislation in question. The effect of the seizure is purely punitive with neither
commercial nor administrative value to the authority.

Unlawful Objectives

185. Worse still, as with previous such s.8 cases that have been brought to court,
rather than apply for enforcement of the licensing requirement, it has been a
notable feature of many of them that the authority has sought and obtained
Injunctions against the boat being returned by the owner to any of their waterways, at
any time in the future, without their prior consent, so actually depriving themselves

57

of potential future income represented by the licence and/or certificate fees [should
the evictees ever choose to venture again into permission-regulated sections]. The
terms of these Injunctions are antithetical to the proper management objective. The
use of such an inappropriate sanction is purely punitive. [Exhibit 13]

186. It should be noted in relation to this that such a requirement is ultra vires;
nothing in the relevant Acts provides for such a sanction. In the case of the
scheduled rivers where the rights of navigation persist - as in the instant case expulsion of boats kept and used outside the main navigable channel and barring
their return, constitutes the criminal offence of barring boats from exercise of their
common law rights [as confirmed in Rowlands v Environment Agency].
BW/CaRTs prior consent has never been required for all of the waterways listed
under the injunction particulars. Apart from the secondary navigable channels of the
scheduled rivers listed in the Injunctions, there remain those rivers that are wholly
exempt from needing the authoritys prior consent.

188. No Court in the land has the power to repudiate the common law rights of the
public as these County Court Injunctions purport to do. By contrast, the sole High
Court judgment approving a s.8 action [quashed on appeal], although ordering that:
Mr Moore be required to move the vessel Gilgie from the waterways managed by
British Waterways . . . nonetheless included the words: . . . save in so far as Mr
Moore exercises public rights of navigation over the said tidal stretch and/or cruises
British Waterways managed inland waterways in accordance with the terms and
conditions of the licence issued in respect of the vessel Gilgie. [Exhibit 14]

189. In all the circumstances, the deployment of s.8 in place of the specific
remedies provided, has, where the owner is known and in contact, always been
both disproportionate and ineffectual to the purpose, and must therefore even if

58

accounted otherwise legitimate - be accounted an abuse of Human Rights under

Article 1 of the First Protocol, and Article 7. It is submitted that the Court should so
decree, and order refund of the associated excessive charges thus illegally extorted
and further order that they be grievously punished by amerciament [or whatever
the modern equivalent is] as the breach of the Marlborough Statute (IV) demands.

Article 6 of the Convention Rights

190. The BWA 1971, sections 5(1) & (2) provide that the failure to have a current
Pleasure Boat Certificate where required, is a statutory offence punishable by fine,
even as the failure to have a Pleasure Boat Licence where required, is a byelaw
offence punishable by fine. The lack of the required lawful authority being a criminal
offence, the stipulated sanctions can only be applied upon conviction of the offence
before a court of law.

191. As discussed above, where the owner of any unlicensed boat is identifiable,
pursuit of the civil debt and/or the criminal conviction is the measure of first resort. To
apply s.8 powers of seizure in those circumstances amounts to penalisation for the
criminal offence while bypassing the need for a trial. Such punishment without trial is
a breach of the owners Article 6 rights. Any interpretation of the extent of s.8 powers
in circumstances where the owner is known, that justifies seizure of that owners
property without trial, should be subjected to a Declaration of Incompatibility.

192. It is submitted that no such interpretation is necessary or justified in any event,

and that the seizure of property without benefit of trial and Court Order, is a violation
not only of the First Protocol Article 1 rights but also of the Article 6 Convention
rights. Any construing of the 1971 legislation must accord with the subsequent
legislation and the common law. It follows that the seizure of property without a trial

59

and consequent Court Order is not only a breach of Human Rights; it remains an
offence punishable under the very oldest of our Statutes.

The Statute of Marlborough

193. Notwithstanding the current proposals for abolition by the Law Commission,
chapters I; IV XV remain live law today. Chapter XV, cited though it was in a similar
circumstance to the present [Buzzard v Capel, 5 Law J. C.P. 123] may have been
overtaken by the Tribunals, Courts and Enforcement Act 2007, Schedule 12, Part
1, section 9, but chapter one is to remain, while chapter IV it is argued here, should
not be dispensed with, as no other statute as comprehensively provides for
tempering the application of penalties under threat of penalty in return.

194. It is to be noted that as currently listed in the government legislation site,

Schedule 12 remains prospective; even chapter XV remains live at time of writing.

195. The Marlborough Statute does more than provide for control as to the
proportionality of the distress levied; it applies also to other aspects of CaRTs
actions.

196. On the premise above stated [that CaRT had no legal authority for the action
taken in seizing goods], then it is established that they did so of their own authority,
without award of the Court, in violation of chapter (I). The Statute provides that in
such a case: he shall be punished by Fine, and that according to the Trespass;
and likewise if one Neighbour take a Distress of another without Award of the
Kings Court, whereby he hath Damage, he shall be punished in the same wise,
and that after the Quantity of the Trespass; and nevertheless sufficient and full
Amends shall be made to them that have sustained Loss by such Distresses.

60

197. It has been noted already that CaRT did not content themselves with towing the
boat a few miles to the nearest yard where it could have been kept, they took it
quite gratuitously and unnecessarily - across country to Chester. Chapter IV of the
Statute expressly prohibits such behaviour: None from henceforth shall cause any
Distress that he hath taken, to be driven out of the County where it was [taken];
and if one Neighbour do so to another of his own Authority, and without Judgment,
he shall make Fine, as above is said, as for a Thing done against the Peace;
nevertheless, if the Lord Presume so to do against his Tenant, he shall be
grievously punished by Amerciament. [my bold]

198. Once again, though recommended for abolition, no current Statute replaces this
prohibition and the chapter remains live law that should be applied in this case
EVEN IF the actions taken by CaRT were in all other respects lawful. Such removal
to far-flung places of storage is a deliberate CaRT policy. Mainly, they use
contractors with premises in Chester [as in this case], but in a previous instance
[Geoff Mayers] where the boat was only 15 miles from Chester, they took it instead
125 miles away to the Sharpness Canal. The Law Commissions reference to the
nationwide extent of the legal system when making recommendations respecting this
chapter, does not address this aspect of disproportionate penalisation, pursued only
to frighten the potentially disobedient with the awesome consequences of dissent.

199. The active employment by CaRT of the tactic of removing goods far from the
owners home is both superfluously costly, and of severe practical disadvantage. The
protection of (IV) under these circumstances has a vital role still to play.

200. Given also, that even if authorised the distress was unreasonably in excess of
the appropriate statutory penalty, chapter (IV) further provides that: he that taketh
great and unreasonable Distresses, shall be grievously amerced for the Excess of

61

such Distresses. No current alternative statute has ever been applied to these
situations; the proportionality test itself, as a mere rule to be applied to the HRA
1998, is no substitute and - as has been shown in Moore v BWB [2012] in the
supplementary judgment has been set aside following verbal nods to the principle,
on the presumption that the authority is best placed to assess that proportionality.

201. Finally, without prejudice to the argument here that s.8 does not apply to the
enforcement of debts, in the instant case the distress/revenge was levied upon
property in a public highway. Until such time as Schedule 12 becomes no longer
merely prospective law, the instant action was in violation of (XV).

202. The case of Buzzard v Capel was brought in reliance upon chapter XV of
Marlborough and stands foursquare with the facts of the instant case. It should be
noted that the judgment in Buzzard v Capel rejecting the appeal, did not deny that
the boats in question were upon the Kings Highway while in the Thames, but was
decided on the basis that even so, the boats were attached to the premises
against which the distresses were to be levied, so the principle could not operate
to circumvent the legitimate distress; the boats were part and parcel of the premises.

203. In the instant case that ratio does not apply. Any alleged debt was against the
boat only; no debt has been alleged against the premises to which the boat was
attached, such that (XV) necessarily continues to apply: the boat was upon the
Kings Highway and therefore immune to seizure for the alleged debt.

204. It is further to be noted that the 2007 Act, replacing as it is intended the common
law rights [overlooking chapter (IV) of Marlborough] provides:

65 Common law rules replaced

62

(1) This Chapter replaces the common law rules about the exercise of the
powers which under it become powers to use the procedure in Schedule 12.

(2) The rules replaced include

(a) rules distinguishing between an illegal, an irregular and an excessive
exercise of a power; [my bold]

205. The only substitutionary rule in this regard is: -

Value of goods taken

12(1) Unless sub-paragraph (2) applies, an enforcement agent may not take
control of goods whose aggregate value is more than -

(a) the amount outstanding, and

(b) an amount in respect of future costs, calculated in accordance with

regulations.

(2) An enforcement agent may take control of goods of higher value on

premises or on a highway, only to the extent necessary, if there are not
enough goods of a lower value within a reasonable distance

(a) on a highway, or

(b) on premises that he has power to enter under this Schedule, either under
paragraph 14 or under an existing warrant.

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206. Without prejudice to the argument here that there was no debt as alleged, and
that s.8 powers do not entitle seizure in respect of debt, this proposed new rule fails,
by reason of 12(2) to provide the measure of protection under (IV) of Marlborough
it reduces the protection. Addressed solely to seizure for debt, it does not address
the levying of goods in instances where debt has not arisen - where the distress has
been applied as punishment only; it being arguable [as here] that revenges are
implicitly encompassed within the chapter. At all events, excessive exercise of a
power is covered by Marlborough while the 2007 Act most definitely does not
address such a general abuse; it is specific to recovery of debt by authorised agents.

207. For so long, in any event, as the 2007 Act Schedule 12 remains merely
provisional it is requested that the Court applies its discretion in imposing
appropriate penalties as it sees fit, commensurate with the sums extorted and
associated distress. The past failures to apply ANY penalty to either BW or their
successor for ANY of such crimes have led to a feeling of institutional invulnerability,
which itself promotes the burgeoning abuse of their powers. Further, as argued in
Moore v Hales & BWB, only when individual officers - and those responsible for
encouraging and defending them - are made personally accountable, will there be
any hope of a change in the abusive institutional ethos. [Exhibit 15]

THE APPLICATION OF S.8

Addressing Claim (c)

208. It is submitted that the powers described by the above section of the BW Act of
1983 are properly understood to be applicable only in circumstances where the
identity and/or contact details of the relevant owner is unknown. The section can

64

otherwise be deemed applicable only where such deeming is explicitly provided for
[as in the case of s.18 of the 1995 Act].

(2) The Board may remove any relevant craft after giving not less than 28
days' notice to the owner of the relevant craft, stating the effect of this
section.

209. For so long then, as the craft is presenting no immediate obstruction or danger
[if so it can be moved without notice under sub-section 5], the first step is to ascertain
the owner responsible.

210. It is to be presumed that where the owner is contactable, that person may be
required to sort the situation out, although where recovery costs might seem greater
than the worth, the owner might well prefer abandonment. The Act does provide,
however, for the service of notices in cases where the owner is unidentifiable:

s.17(2)(d) Any notice such as is referred to in subsection (1) of this section

may be served (d) if in the case of a notice relating to a vessel the name
and address of the person upon whom the notice is to be served cannot
after reasonable inquiry be ascertained, by exhibiting it in a
conspicuous position on or near the vessel;

211. Sub-section 4 commences with the presumption that if the boat has been
removed, it was because the owner could not be traced, and in order that the
authority not be lumbered with indefinite storage of a perhaps worthless article, it
provides:

65

(4) If within six weeks of its removal by the Board any relevant craft cannot
be proved to the reasonable satisfaction of the Board to belong to any
claimant, it shall, together with any furniture, tackle and apparel and any
cargo, goods, chattels and effects on board, vest in the Board:
Provided that, if within twelve months of its removal a claim to the
relevant craft is made by a person who subsequently proves that he is
the owner thereof, the Board shall, if the relevant craft is unsold, permit the
owner to retake it with any furniture, tackle, apparel, cargo, goods, chattels
and effects on board upon payment of the expenses referred to in
subsection (3) of this section or, if the relevant craft and the furniture, tackle
and apparel and any cargo, goods, chattels and effects on board have been
sold, the Board shall pay to such owner the amount of the proceeds of such
sale after deducting the said expenses, and in case such proceeds shall be
insufficient to reimburse the Board such expenses the deficiency may be
recovered by the Board.

212. It seems obvious that in circumstances where the owner was already known,
incurring the costs of removal rather than [if simply unlicensed] demanding the
licence fee would be a logical absurdity.

213. It is submitted that incurring perhaps considerable costs in removing and storing
an abandoned boat, or one that was viable but unlicensed, while the owner was
known and contactable for the purpose of enforcing their responsibility to address the
situation, is against all common sense. Nor can the clause have been inserted as
some form of punishment or revenge against a known offender.

214. Particularly where the boat is a relevant craft only by reason of failure to obtain
a current licence/certificate, the imperative for the Board to return the craft to the

66

owner on repayment of costs incurred - without further requirement within that

section to require the obtaining of the licence/certificate - is silent eloquence as to the
purpose of the section and its inapplicability to removal of boats belonging to a
known individual.

215. The genesis of the clause must be considered in understanding the objective.
Originally the clause existed within the precursor legislation of the British Transport
Commission Act 1958.

216. The relevant heading for s.19 of the Act was: As to vessels sunk stranded or
abandoned. There was no mention of left or moored within the Boards waterways
without lawful authority, because at that time [pre-1968] all boats had the lawful
authority to be on the waterways by virtue of the conferred rights of navigation.

217. There was, however, a separate sub-section permitting the moving of a vessel
to a convenient place in circumstances where any vessel is left in any inland
waterway without the consent of the authority. Given the lawful authority for any
vessel to be on the waterways, that can only have applied to a vessel sunk stranded
or abandoned, in clear contravention of obstruction byelaws [as per the heading],
and presumably there were circumstance in which the BTC could consent to such a
boat being left as it was. It is notable that in such a case the boat was merely to be
moved to a convenient place; there is no question of seizure and disposal.

218. At all events, the long-winded clause has been long abolished [except for
Scotland] and replaced with the s.8 of the 1983 Act. The additional qualification of
being left without lawful authority could only have become possible following the
imposition of the relevant "lawful authority" in 1971 and 1976.

219. The following subsections tend to bolster the understanding that this was an
extension of the existing powers to remove sunken boats etc where the owner could

67

not be found and made liable. If he could be, then he could be made to remove the
obstruction himself. However the Board was not to be prevented from dealing with
such boats simply because the owner could not be found or located.

220. Similarly with viable boats without lawful authority; BW was not to be hamstrung
in removing unlawful boats merely because the owner could not be traced [but where
they could be traced, more appropriate sanctions were available]. Provision was
made [as in subsection 4 above] for the vessel and contents to vest in BW if the
owner was not discovered/located after 6 weeks of the seizure, which emphasises
the point of the action being to deal with boats regardless of the owner being
traceable. Where the owner turned up at any time within a year after seizure [and
possibly disposal] BW were [and CaRT are] obliged to return the boat [or if sold, the
sums obtained for it] on the sole requirement that the costs of removal and storage
were repaid.

221. This makes absolutely clear that the boat seizure has nothing to do with
recovery of any alleged debts relating to non payment of a licence fee, nor with any
recovery of charges relating to a Pleasure Boat Certificate.

222. Absence of a Pleasure Boat Licence where required is an offence under the
byelaws, and where the owner is traceable the operational obligations of the
organisation demand that the licence fee and requirements be pursued under s.5 of
the 1983 Act NOT s.8 of the Act which allows for no financial remedy of the offence
so far as CaRT are concerned. The same principle applies to absence of a Pleasure
Boat Certificate as required under the 1971 statute, the penalty for which is laid down
in that Act. Whichever situation is applicable, when the owner is known and
contactable, the removal of the boat for such an offence is ultra vires.

223. Long time salvage contractors confirm the prioritisation of the applicable
legislation: [Exhibit 16]

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the wording in subsection (4) certainly makes more sense if it is taken that
the intention is that the 'removal' sanction is something to be applied only in
the circumstance of the owner being unknown or not contactable. That is the
way the new powers were applied and used by BW immediately after the
passing of the 1983 Act. I know this for a fact, because at that time BW's
Nottingham Office invariably gave the known owners of sunken or unlicensed
boats the opportunity to remedy the situation before taking any further action
other than that prescribed by S.7 of the 1971 Act or S.5 of the 1983 Act.

I can confirm that the seizure and removal option was only ever applied as a
last resort after all attempts to trace and contact the owner had failed. As a
locally based operator offering, along with other services, the raising and
recovery of any sunken and/or damaged vessels, I was in regular contact with
the Patrol Officers and Inspector for the area ( they weren't called
Enforcement Officers in those days) and my contact details were passed on
to the (known) owners of any immobile or sunken boats.

[A. K.

Dunkley, Canal & River Transport Services, Nottingham (Est. 1968).

224. In summary, all common sense suggests that the powers under s.8(2) are
simply powers allowing the authority to dispose of offending boats in the event that
owners cannot be located - as confirmed by BW to the 1993 Select Committee
[Ex.45]. Owners of removed boats could turn up within 6 weeks to reclaim them [on
repaying costs] without the authority being able to sell them, and could turn up within
12 months to reclaim either the boat or [if sold] any surplus sums due after costs.

225. These provisions make no sense at all if the boater owner was known
beforehand. There would be no rational purpose in incurring removal costs while an
owner was standing by available for appropriate enforcement action. The way the
section is being applied by CaRT in circumstances where the owner is known and

69

even more especially when the owner is living aboard - is in fact a form of revenge
in creating often insupportable retrieval costs for the owner, out of all proportion to
any alleged debt.

226. It is submitted that this current abuse of power is precisely why contrary to the
recommendations of the Law Commission chapter (IV) of the Marlborough statutes
ought NOT to be repealed; there are at present in the Tribunals, Court and
Enforcement Act 2007 no provisions whatsoever for offences relating to revenges
as distinct from distresses [arguably all the extant provisions could be taken to
apply to revenges as well as to distresses], and only provisional legislation
expressly prohibiting the levying of excessive distress it being pertinent also, that
removal out of the County is a preferred CaRT means of increasing removal costs.

227. The issue of proportionality in punishment [revenge] or security for debt

[distress] being tailored to and commensurate with the offence has no explicit voice
in even the Human Rights Act 1998. It has been left to the Courts to define tests of
proportionality to justify application of laws otherwise interfering with Convention
rights; The Statute of Marlborough Chapter (IV) is a magnificent example of English
statute law providing an essentially humane and just control over the proportionate
application of powers that has otherwise no modern statutory equivalent.

228. Consideration of the above statutes ancient and modern serves to highlight the
abuse of power in seizing boats where the owner is known [in preference, it may be
observed, to seizing boats where the owners are NOT known]. The section clarifies
that the action is NOT to be understood as the exercise of a lien on the vessel
against sums owed; the boat is not to be held as security for any other money claims,
nor is it to be used as a form of punishment. BW/CaRT are obligated by the section
to return the boat at any time within the year to the identified owner upon
reimbursement only, of the removal and storage costs incurred.

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229. Contrary to the above, however, CaRT and Shoosmiths insist upon s.8 as
justifying extortion of full payment on alleged debts relating to non payment of licence
fees incurred prior to the removal and storage costs. IF this was held to be correct,
then the action would undoubtedly fall within the ambit of the 2007 Act, such that ALL
s.8 seizures [not just the live-aboard cases] would have to be considered as criminal
actions under the 2007 Act, CaRT having acted as enforcement agents without court
authority and would, moreover, be criminal breaches of chapter (I) of the
Marlborough Statutes, this being still live law, as used as recently as 2011 in
Imerman v Tchnguiz [2011] Fam 116 (CA) [and which statute is to positively remain
law following the most recent recommendations of the Law Commission].

230. It being possible [in this submission compellingly] to construe s.8(2) as

applicable solely to instances where the boat owners cannot be traced, there is no
requirement to attempt a construction that would be incompatible with any prior or
even later legislation; the section stands as a sensible provision for dealing with
boats that should not be left where they are, in circumstances where the owners
cannot be made to deal with the situation. It most certainly is NOT the tool for
enforcement of boat or mooring licences that it is used for.

Consequences of Use as debt recovery

Statute of Marlborough

231. Insofar as CaRT and their solicitors Shoosmiths have been using, and have in
this instance used, s.8 as a means of enforcing debts respecting licence arrears
[especially in circumstances where, as in this instance, they have reason to believe
that the boat represents the only item of value the identified owner has], instead of for
the statutory purposes the 1983 Act provides for, they are in clear violation both of
the Marlborough Statutes and the 2007 Act. The 2007 Act criminalises the actor and
the Marlborough Statute criminalises the behaviour.

71

232. The 2007 Act, Schedule 12, Part 1, section 1(1) states:

Using the procedure in this Schedule to recover a sum means taking control
of goods and selling them to recover that sum in accordance with this
Schedule and regulations under it.

The powers under s.8 having nothing to do with debt recovery, the seizure stated to
be for that purpose is contrary even to the provisions of the 2007 Act, dealing as that
does with sale of seized goods to recover debts the ONLY purpose in distraining
the goods under that Act.

233. Enforcement by taking control of goods under the 2007 Act ONLY applies
[s.62(1)] in any event:

where an enactment, writ or warrant confers power to use the procedure

in that Schedule (taking control of goods and selling them to recover a sum
of money).

Sub-section (2) provides:

The power conferred by a writ or warrant of control to recover a sum of

money, and any power conferred by a writ or warrant of possession or
delivery to control of goods and sell them to recover a sum of money, is
exercisable only by using that procedure. [my bold]

234. If therefore, s.8 is used as a means of accomplishing that aim, such use is a
breach of the 2007 Act and of the first chapter of the Statute of Marlborough,
because goods are seized as distress without a warrant from the court. The 1983
enactment confers no power to control goods for any purpose other than recovery of
sums expended on the seizure and storage of the goods.

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The Tribunals, Courts and Enforcement Act 2007

235. It is of salutary importance in this context to realise that the Law Commission
have recommended that the first chapter of the Statute of Marlborough should be
retained because the modern Act of 2007 does NOT address the imposition of
criminal sanction for the behaviour involved in the unlawful taking of distress. As the
Consultation Paper on Law Reform states: Only chapter 1 criminalises the
behaviour of taking revenge or distress without court order. It should not therefore
be repealed. [my bold]

236. Whether overtly or subtly, the fact is that CaRT and Shoosmiths use possession
of the boat as leverage for payment of the alleged arrears in licence fees and any
other accumulated costs such as Costs Orders, instead of applying through the
courts for enforcement orders. In the instant case this was explicit: return of the boat
was made contingent upon payment of the alleged licence arrears and initially,
upon payment also of a related Court Order of Costs. Only because this Costs Order
was appealed did CaRT agree to return the boat on payment of everything else.

237. A previous example already alluded to was the case of Mr Geoff Mayers. He
reported: http://www.canalandrivertyranny.co.uk/index.php/the-theft-of-my-boat

Steven Holder, CRT Legal Department, was there. I asked him how I could
get my boat back as I didn't owe them any money. I could not settle a debt if
there was no debt. He said there were costs. I said what costs. He said the
costs of the removal of your boat. I said then let me have my boat back
before more costs are incurred by craning it out of the water. He said there
are also court costs. I said there was no order for costs. He said they would
apply to the court for costs. I said they should have done that before they took

73

my boat and I would have challenged the costs. (They had previously got an
order, by deception, for costs which was revoked at the hearing on 28th
January). He said he wasn't prepared to discuss it.

238. It is pertinent to note that the relevant Order had specified: liability for costs is
not to be enforced without permission of this Court or the Court of Appeal. It was all
the more unlawful, therefore, in this instance, to have suggested [as in the instant
case] that Mayers could not get his boat back unless those costs were paid along
with the removal costs.

239. In fact, Judge Halbert had specifically noted at handing down:

JUDGE HALBERT: So you do not as at this moment owe them 50,000 or at

least you do owe them the 50,000 but they cannot enforce the debt.
MR. MAYERS: Right.
JUDGE HALBERT: And they cannot enforce it without either my permission,
or that of another judge at my level, or a High Court judge, or the Court of
Appeal. Okay?
MR. MAYERS: Okay.
JUDGE HALBERT: So it is technically a debt that is owed but they cannot
enforce it, and they cannot take your boat in order to enforce it either.
[my bold] [Exhibit 17]

240. Later, by email dated 11 June 2014, Steven Holder, solicitor in CaRTs legal
department wrote: the boat removal costs are entirely separate to any legal costs
associated with the court case which the CRT accepts may only be recovered by
further recourse to the court. [my bold] [Exhibit 18]

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241. Despite this belated acceptance in the case of Mr Mayers, CaRT via
Shoosmiths less than a year later, initially demanded the sum of 12,676 prior to
release of Grandma Molly/Three Wise Monkeys. This included 4,500 in alleged
Court Costs, PLUS the sum of 1,682.20 in alleged licence arrears, PLUS wages
for CaRT staff attending of 750. These costs were itemised in their email to Mr
Ravenscrofts representative of the time [Ms Tracy Thomas] dated 19 March 2015.
These costs were all additional to the stated itemised costs of 5,740.80 for removal
and storage.

242. In response to an email from Mr Ravenscroft offering to send a sum mentioned

for removal and storage costs only, of 6,630, Shoosmiths repeated their claim for
12,676 in connection with their removal of your unlicenced [sic] craft with the
same breakdown of alleged sums owing, which included alleged licence arrears and
other sums. On payment of 12,676 to the below details [they wrote] CRT will return
your boat to your requested location. [Shoosmiths emphasis in bold] [Exhibit 19]

243. This unlawful demand is clear violation of the 1971 Act; the 2007 Act, and
chapter 1 of Marlborough. It could be noted also, that their concluding comment:
You are not permitted to collect the Boat. [Shoosmiths underlining] directly conflicts
with Judge Halberts clarification to Mr Mayers: They cannot stop you coming on
with a low loader and taking it away.

244. All that aside: even IF, which is denied, s.8 powers could be relied upon as
justification for seizing a boat and keeping it under CaRTs control to enforce
payment of debts, exercise of that power for that purpose absent an appropriate
Court Order would be an offence under the provisions of Part 3 of the 2007 Act which
[as pertinent] provides:

75

62 Enforcement by taking control of goods

(1) Schedule 12 applies where an enactment, writ or warrant confers power

to use the procedure in that Schedule (taking control of goods and selling
them to recover a sum of money).
(2) The power conferred by a writ or warrant of control to recover a sum of
money, and any power conferred by a writ or warrant of possession or
delivery to take control of goods and sell them to recover a sum of money, is
exercisable only by using that procedure. [my emphasis]

Remedy under Schedule 12

245. Recourse to the Court is available where the provisions of the Act are breached:

Remedies available to the debtor

66(1) This paragraph applies where an enforcement agent

(a) breaches a provision of this Schedule . . .

(2) The breach or defect does not make the enforcement agent, or a person
he is acting for, a trespasser.

(3) But the debtor may bring proceedings under this paragraph. . . .

(5) In the proceedings the court may

(a) order goods to be returned to the debtor;

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(b) order the enforcement agent or a related party to pay damages in respect
of loss suffered by the debtor as a result of the breach or of anything done
under the defective instrument.

246. It is, besides, an offence for anyone to act in the capacity of one authorised to
distrain goods under the 2007 Act when not an authorised officer:

63 Enforcement agents

(1) This section and section 64 apply for the purposes of Schedule 12.

(2) An individual may act as an enforcement agent only if one of these

applies

(a) he acts under a certificate under section 64;

(b) he is exempt;
(c) he acts in the presence and under the direction of a person to
whom paragraph (a) or (b) applies.

(6) A person is guilty of an offence if, knowingly or recklessly, he purports to

act as an enforcement agent without being authorised to do so by subsection
(2).

(7) A person guilty of an offence under this section is liable on summary

conviction to a fine not exceeding level 5 on the standard scale.

247. It follows that the claim to entitlement under s.8 of the 1983 Act to seize and
hold goods as a lien upon debt [as CaRT and Shoosmiths claimed in the instant

77

case] is not only wrong; even if correct they would have to have obtained a Court
Order for the purpose and to have operated under the aegis of a duly certificated
Enforcement Agent none of which requirements obtained in the instant case.
The presence of the supposed CaRT debt collector on the day of seizure
for whose presence the boats owner was billed 5 hours at 66/hour demands
an explanation to the Court as to his role.

248. In all the circumstances, the utterly inappropriate use of s.8 as justification for
maintaining a lien on the boat and withholding delivery of the boat unless alleged
debts were paid first, constitutes a criminal offence of which the responsible persons
should be convicted and fined accordingly.

Torts (Interference with Goods) Act 1977

249. Seizing and holding Grandma Molly/Three Wise Monkeys being unlawful for all
and/or any of the above stated reasons, the Torts (Interference with Goods) Act
1977 is engaged.

250. Section 1 of the Act provides;

Definition of wrongful interference with goods.

In this Act wrongful interference, or wrongful interference with goods,

means
(a) conversion of goods (also called trover),
(b) trespass to goods,
(c) negligence so far at it results in damage to goods or to an interest
in goods.

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(d) subject to section 2, any other tort so far as it results in damage to

goods or to an interest in goods.

251. As at the time of writing, conversion of the goods has been a matter of threat
only; the offence is trespass to goods.

252. Section 3 of the Act provides: Form of judgment where goods are detained.

(1) In proceedings for wrongful interference against a person who is in

possession or in control of the goods relief may be given in accordance with
this section, so far as appropriate.

(2) The relief is

(a) an order for delivery of the goods, and for payment of any
consequential damages, or

(b) an order for delivery of the goods, but giving the defendant the
alternative of paying damages by reference to the value of the goods,
together in either alternative with payment of any consequential
damages, or

(c) damages.

253. At the time of commencing this action, the boat was still being held, with CaRT
via Shoosmiths refusing to allow return unless not only were the removal and storage
costs paid, but also the payment of the alleged licence fee arrears, plus the costs
order respecting the Injunction proceedings. It was proposed to send the money

79

under protest for all but the [appealed] Court costs, and that was eventually
accepted. As set out in the proposal, the unlawfulness of the claim to hold the boat
as a lien upon any debt other than the removal and storage costs was maintained,
and the solicitors held responsible for not so informing their client. It made no
difference; the comments were noted, but all except the appealed court costs were
to be paid before release was authorised, and the sum of 8,179 was consequently
forwarded and accepted. That constitutes money unlawfully demanded and obtained.
The Court is asked to order the refund of the whole sum paid plus penalties, and
even if the seizure is accounted lawful respecting s.8 powers, the Court will be asked
to pronounce the exercising of the lien on the boat for extraneous debt as a wrongful
interference with goods under the Torts (Interference with Goods) Act 1977, contrary
to the Tribunals, Courts and Enforcement Act 2007.

Interference with Rights of Navigation

251. Where s.8 powers are applied in circumstances where licences and certificates
are not required, then the action is criminal on at least two levels:

(a) The demand for tolls to use a public navigable river is an unlawful
obstruction of that right, &

(b) forced removal of boats from the areas where the right of navigation has
not been amended in any relevant way, is further violation of that right.

252. It follows that not only have goods been wrongfully interfered with in violation of
the Torts Act and the HRA etc, a further serious criminal offence has been
perpetrated against the public.

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252. In all and/or any of the above premises, the seizure and detention of Grandma
Molly/Three Wise Monkeys was unlawful and criminal in ways for which s.8 of the
BWB Act 1983 can never possibly be held up as justification.

PRESUMPTION OF PROBITY

253. There is a default presumption of the courts that bodies such as CaRT
exercising the function of public bodies affecting the lives of their clientele - should
be assumed to exercise those functions in a responsible and ethical way at all times.
This has the unfortunate effect for claimants asserting wrong-doing by the authority,
of weighting the cases against such claimants; especially unfortunate given the
inevitable inequality of arms in terms of representation. It is a presumption that
requires careful examination, therefore, if justice is to prevail.

254. As Hildyard J stated in his supplementary judgment in Moore v BWB,

paragraphs 13 & 14:

Looking first at the public authoritys justification for doing as it has done, in
many cases there will in effect be a presumption of proportionality. As
made clear in cases such as Powell and Pinnock, it is unusual for Local
Authorities to be required to justify their decision because it is ordinarily to
be assumed that everything has been done properly and for legitimate
management reasons. The flaws in BWB's approach tend to militate against
that presumption in this case. Further, BWB has been somewhat reticent in its
explanation as to why the vessel in question had to be moved on with such
haste. I have been troubled by this. Even so, it does not seem to me that
there is sufficient warrant for me to second-guess BWB's conclusion

81

that these vessels, being unlawfully moored, it should, in the exercise of its
management of the GUC, move or remove them in accordance with Section
8; nor that I should peer into that reasoning beyond being satisfied that it is
not obviously misplaced.

255. The presumption of the Courts therefore, is invariably that the authority knows
best, and that it applies its powers legitimately. The position is that quoted by the
judge in BWB v Ward, paragraph 12, page 11 [from Lord Hope in Hounslow v
Powell [2011] 2 AC 186] -

This was in respect of housing authorities, but the exact same principle applies:

Practical considerations indicate that it would be demanding far too much

of the judge in the County Court faced with a heavy list of individual
cases to require him to weigh up the personal circumstances of each
individual occupier against the landlord's public responsibilities. Local
authorities hold their housing stock for the benefit of the whole community. It
is in the interests of the community as a whole that decisions are taken as to
how it should be best administered. The court is not equipped to make those
decisions which are essentially concerned with housing management. This is
a factor to which great weight must always be given and in the great
majority of cases the court can and should proceed on the basis that the
landlord has sound management reasons for seeking a possession order.
[my bold]

256. The fact is, that even in the High Court, the same principle applies, and even
where no necessity can be demonstrated as in the case of Moore the doctrine
of proportionality is not effectively applied. In the words of Hildyard J [paragraph
213] -

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"BWB have never advanced any argument based on necessity by reason

of threat to, or obstruction of, safe navigation. They have asserted a right, but
they have been less forthcoming as to why its exercise is pressing or
necessary for the purposes of discharging their designated functions.
There is little to weigh in their favour in the scales of proportionality. My
provisional view is that the purported use of the draconian power conferred by
section 8, without prior warning and in the absence of any identified and real
threat or obstruction to safe navigation, with the effect of depriving the
Claimant of his home, is not proportionate." [my bold]

257. However, in his supplemental judgment, he decided that even this did not
warrant interference in what he regarded as an essentially managerial decision

258. A later example of the lack of any clear management rationale is in the
discontinued case against Tony Dunkley. The relevant extract from their Statement is
quoted in his following e-mail, sent to the CEO [and remaining unanswered]:

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Mr Parry
I am curious as to whether or not you are aware of, and agree with, why it has
been deemed to be necessary to remove me and the boat I live on from all
waterways under C&RT control, in order to, and I quote from a C&RT
statement to be used against me in Court . . . " to enable C&RT to comply
with it's statutory duty to ensure that the inland waterways controlled by C&RT
are safe, well managed and properly conserved." The implications of this
remarkable statement are, of course, that my continued presence, beyond
this the 50th year since I began living and working on this country's
waterways, will result in those very same waterways becoming unsafe, mismanaged and falling into decline . . . something a great many of your boat
owning customers believe to have already occurred under C&RT's
stewardship.

It may be that you sincerely believe that my continued presence constitutes a

very real and serious threat to the future of our waterways . . . after all you will
be claiming this in open Court having already submitted it in writing. If,
however, you really think, as everyone who has seen it up to now does, that it
is one of the most ridiculous statements ever made, then the question arises
of why you are intending to rely upon it in Court as credible evidence?

Please refrain from time wasting and stalling by responding with any red
herrings such as . . . "sub judice so we can't comment" . . . or any thing
similar. I am not asking questions about the expensive, unwarranted,
disproportionate and legally inappropriate action that C&RT is taking against
me, but I am questioning whether C&RT and the personnel responsible for it's
day to day operation and administration are, in fact, fit for purpose.
Signed A.K.Dunkley

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259. It is submitted here that under such circumstances, it is important for the Court
to understand that the extravagant pursuit of the boater in this case is but
representative of a sustained campaign of inappropriate enforcement nationwide,
paying little heed in certain cases to the legality of the actions; the proportionality of
their actions, or to the lawful provisions for commensurate applicable options.

Unlawful Licence Demands

260. The Court should be aware that the deliberate policy of BW and CaRT following
them [under, initially, the identical leaders in executive positions from the Chairman
on down] was to exact licence fees from any boats wherever they were on waters
under their jurisdiction, regardless of the clear legislative difference in their
powers as applied to the differing characters of the waterways within their
jurisdiction. The Hildyard J judgment earlier referred to has, as quoted, clarified that
this has been wrong. The instant case however, is an example of the official
determination to continue pursuing the policy of making no such differentiation.

261. As Lord Berkeley queried the House of Lords in the Grand Committee meeting
of Monday, 25 June 2012, dealing with the British Waterways Board (Transfer of
Functions) Order 2012: - [Exhibit 20]

I heard also from a man who is one of apparently some 200 people who are
in litigation with the British Waterways Board. I do not want to go into the
detail of individual cases, but there are allegations of criminally extracted
licence fees during the past 20 years on the Grand Union Canal and talk of
costs reaching 500 million, which seems surprising. What will happen to
cases that are pending or currently being heard in court when the transfer
takes place? It is clear that people are worried about that. The Minister said

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that the Government would provide a Written Statement on the Canal and
River Trust in two years. It might be useful to include in it a progress report on
outstanding court cases from the old regime. I hope that these matters can be
resolved without any more uncertainty. I look forward to the Ministers
response.

262. It can be observed that CaRT are still in the process of refunding these
criminally extracted licence fees, as affected boaters come to realise that they can
now make claim for them. It has yet to sink in with those boaters that, the extraction
of illegal tolls being a criminal offence, they need not confine their claims to the civil
limit of 6 years, and there is a quarter century record of this crime in the Brent area.

Unlawful s.8 Eviction Notices

263. That BW has unlawfully applied s.8 on occasion, to eject boats from their
waterways, has now been firmly established in the Hildyard judgment in Moore v
BWB [2012]. Prior to that judgment, many boats along both semi-tidal and fully tidal
sections of the River Brent/Grand Union Canal were s.8d unlawfully and that
despite clear recognition by BW that licences were not required. This was and is a
knowing interference with the public right of navigation, which is a criminal offence as
confirmed in Rowlands v Environment Agency.

264. Patrol Records reveal that BW was s.8ing boats below the Gauging Locks at
Brentford from at least 1988.

[Exhibit 21]

Cabin cruiser Gaywood II:

s.8

November 1988

Narrowboat Ruislip

s.8

May 1989

Cruiser Lady Astrid

s.8

May 1989

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Cruiser Willow Prince

s.8

May 1989

Cruiser Lancashire Witch

s.8

July 1995

Houseboat Castel Bianco

s.8

1997

Cruiser Merryweather III

s.8

May 1997

N/boat Elizabeth Blanche

s.8

July 1997

Barge Niewe Zorge

s.8

July 1997

Barge Kensing

s.8

July 1997

Cruiser unidentified

s.8

Dec 1998

Dorwen

s.8

Jan 1999

265. The Patrol officer correctly observes in April 1994 that for boats below the
Thames Lock, then consisting of 6 cabin cruisers, 3 Dutch Barges and one
Houseboat: No licence required, yet this did not stop him later, when BW wanted to
do a deal with the Ferry Quays developer alongside the relevant wharf, from refusing
licences [not required anyway] and s.8ing those same boats in the same position.

266. Then there were the boats that were s.8d in 2007, litigation over which
eventually confirmed the illegality of these actions: -

Cruiser Saifti

s.8

July 2007

N/b Platypus

s.8

July 2007

N/b Gilgie

s.8

July 2007

N/b Kamelya

s.8

July 2007

Cruiser Lilcha

s.8

July 2007

N/b Kalzar

s.8

July 2007

Over the years of that lawsuit, all but Gilgie left the waterways; the eventual cost of
persisting against that [licensed] boat was 240,000 & costs awarded against them.

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267. This same Patrol Officer [Ray Farrow], it should be noted, had made a routine
practice of serving s.8 notices on boats without bothering to find alternate means of
contacting the owners, purely as a wake up call as he explained to the Court
under the coaching of BW and their solicitors of the time, under the eye of the Legal
Director Nigel Johnson. This is itself an abuse of power and contrary to statute, thus
violating boaters Legitimate Expectations that the authority would always follow
prescribed procedures. The 2012 judgment so found. [Exhibit 22]

267. The Patrol Reports for July 1997 reveals that 5 boats were subject to s.8
Notices while in the fully tidal section below Thames Lock. Other than those listed
previously above, these included an allegedly sunk barge, and one sizeable Dutch
Barge Ambulant. Both Ambulant and Alvracht it is noted in the Report, had
previously been granted Cruising Licences valid to December 1995. Nothing
respecting s.8 appears to have been actioned at the time.

268. In 2000 a total of 7 vessels in the same area are recorded as belonging to a Mr
Mason: 2 barges, 2 workboats, 2 cabin cruisers and a narrowboat. These are listed
alongside Ambulant and Alvracht within the same Thames Creek section together
with another cabin cruiser Takes II. Of all the boats listed on that page, covering 5
other sections above Thames Locks, only one is recorded as being unlicensed
[Avelmoor at Ham Wharf]. However none of those in the Thames Creek section
are listed as having licences [the Alvracht and Ambulant licences recorded as still
having expired 5 years previously]. So it is evident that they were [once again]
recognised as not being required.

269. The following year, however, in 2001, BW developed a Waterside Strategy in

concert with the Ferry Quays developer, which included proposals for pontoon
moorings alongside the northern bank of the river Brent/Grand Union Canal

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downstream of the Thames Locks. BW leased half the riverbed [that they did not
even own] to Ferry Quays, to facilitate what promised to be a lucrative long term
business arrangement. The problem was dealing with the barges that had moored in
that area for many years: Ambulant and Alvracht and the motley of Mr Masons
boats, all of which boats had been listed in April 1994 as needing no licence, and
causing no obstruction to navigation. [Exhibit 23]

270. BW commissioned a Report on navigation safety respecting the boats

moorings, to include an assessment of the impact of the proposed pontoons. The
Report dutifully assessed the current mooring arrangements as dangerous and
unsuitable [and ironically found the pontoon proposals to be worse]. Armed with that
expert assessment BW refused in 2003 to re-license the Barges [that had never, of
course, required such licences] and served s.8 Notices on them. [Exhibit 24]

271. Following a failed County Court challenge against the s.8s [obviously decided
wrongly in light of the 2012 judgment], the barges and cruisers were threatened with
bailiff action and they were forced out onto the Thames, mooring at Watermans Park
as best they could. [Exhibit 25]

272. One might ask: what compensation or redress was ever offered to the owners of
these illegally seized and/or evicted boats, once the 2012 judgment had confirmed
the licence demands to be unlawful [and criminal in the circumstances]? What
sanction has BW/CaRT ever had imposed on them for that gross and irremediable
violation of Human Rights? Certainly any surviving boats from the Thames Creek
evictions cannot return to their previous moorings, because the Ferry Quays
developer has finally built his pontoons there and leased the berths to permanent
houseboats able to afford his high rates. [Exhibit 26]

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273. What is worse, and inconceivably to normal thinking people, CaRT continue to
s.8 boats on this section of waterway despite the Hildyard judgment, and that, with
even less respect for Legitimate Expectations and Human Rights than they were
criticised for in that judgment.

274. Around the 2 April 2014 a vessel Kupe entered the mainstream channel below
Thames Lock in Brentford, moored to the bank, and within two days the owner found
a CaRT Enforcement Officer clambering onboard, affixing a s.8 Notice for not having
a Pleasure Boat Licence. No reasonable enquiry as to the owner; no pre-sectioning
notice, no request for permission to board just a criminal boarding of a vessel in a
public navigable river needing no licence to be there, to post an illegal eviction notice.

275. The officer in question, a Mr Neil Swann, did not even purport to know what
legislative requirements there might be relative to the situation. Such appalling and
unforgivable ignorance in an officer vested with such powers is one thing; worse still
was the attitude of Londons Regional Manager who happened to be in the area
when the Thames lock-keeper criminally refused entry through the lock for Kupe.

276. Playing the part of an amiable ingnue, Mr Jon Guest the London Manager,
accompanied by Mr Sam Thomas the Maintenance Manager, resisted entry through
the lock and extracted a promise that the owner would remain downstream of it until
the issues resolved. There was, of course, no resolution of issues needed: Jon
Guest had already gone public the year before in a CaRT press release dated 15
February 2013 [but in essence responding only to the prior 2012 judgment] stating:
This case relates to a tidal stretch of the Grand Union Canal in Brentford and, as a
result of this Judgment, we will need to look at how we treat this stretch differently.
Two years down the line it is evident that he had and has no intention whatsoever of
taking any notice of that Court decision. [Exhibit 27]

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277. The snatch it ethos condemned by Mr Justice Hildyard remains the driving
force to this day and it will remain so for so long as upper management give their
unqualified backing to actions they know full well to be illegal.

278. These decades of historical and current criminal abuse of the s.8 power simply
have to be factored in to any appraisal of the authoritys trustworthiness in applying
such draconian power. They provide powerful grounds for setting aside the standard
presumption of probity, and for discounting the standard assumption that the
authority makes its decisions based on sound managerial reasons, and with good
understanding of the relevant lawful framework. [If, of course, as was asserted in the
Hildyard trial, the legal department DID have a good understanding of the legal
framework, then so much the worse.]

Criminal Obstruction to the PRN

279. For all that the case of Moore v BWB exposed the less than perfect manner in
which enforcement was conducted in that case [and the contempt of court that was
glossed over as having done no real harm], the central finding that pleasure boat
licences were NOT required over that tidal section overlooked, in consequential
terms, the fact that the quarter century conduct of BW in extracting those tolls over
the public highway was unquestionably a criminal offence of long standing.

280. BW and CaRT following them, have always been forward in [correctly] stamping
evasion of licences as a criminal offence, yet have blithely ignored the fact of their
own criminal actions and have taken NO pro-active steps to even offer refund, let
alone compensation, to the victims of their crime.

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281. As mentioned above, over the past few years CaRT have been approached by
one boater after another as those boaters became alerted to the consequences of
the Hildyard judgment, and have quietly acceded to requests for re-imbursement with
interest for the previous 6 years of paid licence fees.

282. That is simply not good enough. Not only should the repayments extend to the
entire period over which those payments were illegally extracted there is no statute
of limitations on the proceeds of crime but the repayments should be actively
pursued on their own part, not only respecting the existing boaters, but to all their
victims [of which they will have meticulous records]. In the case of Ipswich Borough
Council v Moore, the Council had to seek out all those from whom they had illegally
extracted licence fees over the years, in order to repay them. [Exhibit 28]

Choices in legal s.8 Cases

283. Aside from the above examples where s.8 has been applied in clearly illegal
instances, there remains to be considered the choices made to apply s.8 powers in
instances where [in live-aboard cases] the County Courts have decreed that seizure
of the boats was legal.

284. Such Court approval still leaves open the question of how appropriate or not
the choice to exercise the power has been. Bearing in mind that in not a single one of
these cases was the specific prescribed sanction under statute applied, the
institutional ethos underlying the choice to seize peoples homes as a warning to
others with no financial advantage nor positive enforcement of the legal
requirement to be licensed is revealed to be distinctly unsavoury.

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285. The present mindset is a far cry from the assurances to Parliament back in
1993. The current application of s.8 as the sole measure of enforcement of ANY real
or imagined infringement of rules is a ringing indictment of the follies of an
organisation ever more dependant upon the good will of the public if it is to survive
under present management.

286. The CaRT website currently lists 20 cases where peoples home have been
seized since CaRT took over the waterways. It is to the enduring credit of some
County Court judges that they have mandated agreed terms of payment of sums
owed rather than authorising seizures regardless, but these constitute a minority of
such Judgments/Orders. [Exhibit 29]

287. Without belabouring the point at length, recent examples of pointless seizures of
their customers homes include the case of George Ward, who had offered to pay
even disputed sums for his licence but was prosecuted regardless over a 170 debt
at a cost of 75,000 [Exhibit 30]; Geoff Mayers, who had his historic wooden
narrowboat seized and sunk even while in the process of complying with a judges
advice as to obtaining a licence [with CaRTs steadfast refusal to act according to the
undertaking given to the court]. That was at a cost of 50,000 [Exhibit 31], and the
distressing spectacle of Leslie Horne being left on the towpath mid-winter in nothing
but what she stood up in. That was at a cost of 20,000 [Exhibit 32].

288. It should be noted that the quoted costs above were only the Court ordered
costs. Leaving aside the costs of CaRTs own personnel time, the actual expenditure
in the Mayers case amounted to: 100,808.94. [Exhibit 33]

289. None of these people presented any threat to the authority; sufficiently severe
penalties were legally available for enforcing licensing requirements, and the ONLY

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merit in these management decisions was presenting an awesome threat to others

of what could happen if non-compliant with their wishes. Barely a fraction of the
150,000+ spent on external QCs and their legal teams over those 3 boats alone,
could ever be recovered from sale of the seized boats. The Mayers boat Pearl for
example, due largely no doubt to the condition after sinking, is currently advertised
for only 4,950. The cost claimed for removal and storage of that one boat alone,
quite independently of the legal costs, was 10,135.20 exclusive of VAT. [Exhibit 34]

290. It is submitted that these actions constitute revenges wrongfully applied under
the Statute of Marlborough; they are NOT the application of the appropriate statutory
remedy. They are doubly vile in that the waterways do not even profit from them; as
CaRT themselves pointed out in complaining of Mayers part the costs represent
money that is sorely needed for maintenance of the waterways, but which is
squandered in pursuit of this grossly disproportionate malevolence.

Withdrawn Licence s.8 Cases

291. Further to the criminal cases, and further to the utterly inappropriate cases,
there are the cases arising because the authority itself has revoked the licence for
perceived failures to abide by their unilateral interpretation of the rules governing
licence issue.

292. In reviewing these, the Court should bear in mind the acknowledgment
published by CaRT that: The British Waterways Act 1995 limits to three specific
criteria our ability to refuse to licence a boat. [my bold]

https://canalrivertrust.org.uk/media/library/1127.pdf

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293. There is the case of Paul Davies, who was hounded off the waterways for
cruising the Kennet and Avon in a pattern that would now be accounted even by
CaRT as acceptable; that case resulted in a re-write of the guidance for such licence
holders, although Mr Davies himself was banned from the waterways on the basis of
the reasons for his movement, rather than the factual extent of his movement.

294. At least in that instance the revocation of the licence was grounded on
interpretation of the relevant clause of the 1995 Act. Other cases where boaters
challenged the revocation of their licences for alleged non-compliance with General
Terms and Conditions were those of Andy Wingfield and Tony Dunkley.

295. Pursuing Andy Wingfield cost CaRT 38,388.20; pursuing Tony Dunkley cost
CaRT 16,485.60 without it ever coming to Court. The only Court appearance
following withdrawal of their case against Tony Dunkley was in order to argue that
they should be able to do so without being held liable for his costs. That only added
to the irrecoverable costs, CaRT having spent far more on lawyers to argue they
should not pay their victims costs, than those costs could ever have amounted to.
Based on the claims over discontinuance in the instant matter, those will have been
around 5,000; extra attendance only costs for the first adjourned hearing in Tony
Dunkleys case, themselves amounted to over 1,000 on top of that. [Exhibit 35]

296. In each of these cases one after 2 days of trial hearing, and the other after
consideration of the filed Defence before ever reaching court CaRT retracted from
their misguided stance and reinstated the licences. In the case of Andy Wingfield
they conditioned the settlement upon agreement to non-disclosure of the terms of the
settlement. In the case of Tony Dunkley where such agreement could not be
obtained, they pretended to have relied on the statutory issue being satisfied, rather
than dealing with their original General Terms & Conditions issue.

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297. This dishonesty and lack of transparency speaks volumes as to their knowledge
that what they are attempting to accomplish is simply wrong, and that the current
campaign - to convince their customers that licences can be revoked for perceived
breach of general terms and conditions is fundamentally in opposition to the law.

298. These are examples of the continued stated policy of the now retired Mr Nigel
Johnson [former Legal Director for BW and CaRT], to bring such actions for the
express purpose of obtaining incremental court approved precedent decisions over
the validity of their interpretations. It is submitted that the seizure of customers
homes as validation of such objectives is itself highly inappropriate.

299. The worst aspect of the case with Mayers, was that although the original dispute
was over interpretation of the statute vis--vis the Terms and Conditions, once the
licence had been revoked, with Mayers having misguidedly remained in place simply
in order to provoke the litigation, CaRT declined to rely on their interpretation of the
law, such that the opportunity of obtaining any precedent decision was lost anyway.

300. It should also be noted that the County Court decisions will not, in any event,
provided binding precedent; they can only provide persuasive findings. If CaRT
genuinely intended to obtain binding findings on the law, the appropriate place to
take these cases would be the High Court.

Fraud and Forgery

301. The institutional attitude to their own crimes is nowhere more evident than in the
case of their applications to the Land Registry, for ownership of all previously
unregistered land in and alongside the national waterways.

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302. In at least one known instance, the true owner came to hear of such an illegal
registration of their land [with accompanying eviction of their tenants] and was
eventually able to obtain rectification of the Register. But it took the considerable
weight of the Crown Estate Commissioners to obtain that result. [Exhibit 36]

303. No censure over this fraudulent action was ever visited upon either BW or the
Registrar; as per usual, the actions were classified as mistakes due to oversights.

304. In another instance where the Registrar again omitted to inform the Crown
Estate Commissioners of a BW claim to tidal land, BW had produced a forged
document to bolster their claim to part of the application, in the absence of any
genuine documented evidence. It is notable that absolutely no compunction or regret
was ever expressed by BW/CaRT when this was exposed, despite even their own
firm of solicitors acknowledging to the High Court that it had been a mistake.

305. The document could only have been produced by those with access to the
original document held by the property department in their archives, the then secondin-command in the department had acknowledged personal knowledge of the original
and therefore knew without question when personally presenting the altered
document as proof of BWs ownership, that the altered version was a forgery.
[Exhibit 37]

306. It is not merely that their own solicitors acknowledged the mistake: the High
Court Deputy Master Jefferis, who viewed copies of the original and amended
versions together, remarked: The cross-hatching does look rather less neat, does it
not? The cross-hatching on the land is drawn with a ruler and . . . But your later plan
showed no sign of it at all. . . . I can see why you are upset about that and I have
great sympathy. [my bold] [Exhibit 38]

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307. The most disturbing aspect of the administrative attitude is that even with the
advent of a new CEO, appointed from outside the organisation, the situation has, if
anything, worsened. When confronted with the evidence of the Property
Departments forgery and the accusations of fraudulent associated land registration
applications, CEO Richard Parry brushed them aside with the comment: use of the
terrier plan as background evidence of its title was abandoned by British Waterways
a long time ago so the issue of their use is irrelevant.

308. Quite how the issue of his Property Department officers indulging in fraud and
forgery could ever become irrelevant in any conceivable circumstances especially
given the employees continuing pre-eminence in his Executive personnel defies all
comprehension. This was the rejoinder of a profoundly cynical and dishonourable
man. [Exhibit 39]

Lack of Honour

309. This characteristic is nowhere more explicitly revealed than in Mr Parrys

response to the Breach of Contract suit brought against CaRT [as successor to BW]
over their previously accepted offer to withdraw objection to registration of a marine
company to their mooring site.

310. Approached even before he took up office, he declined the invitation to discuss
the possibility of doing the honourable thing rather than relying on a legal technicality
to have the claim struck out [CaRT argued that the contract was with the company
they had sent into liquidation, not with the former Director bringing the claim].

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311. While the High Court somewhat reluctantly ruled that CaRT were correct to
assert that the wrong claimant was bringing the case, the issue of Mr Parry declining
any form of alternate dispute resolution came under criticism: -

MR. MOORE: The main thing that I could say is that this was always
something that was open to discussion. I have bent over backwards to try and
reach this over more than a year and has been flatly turned down. It reached
the point where I had to either give it up or file a claim. I say that it was never
necessary to have been brought in the first place if we could have come to
some discussion and, even at an early stage, having filed it to be within time,
there was the opportunity to sit down and talk about it.

I did take the step of sending the court notice to that effect to the Chief
Executive and suggest some alternative dispute resolution. He, on advice,
chose not to do so and said that he saw no merit in an alternative dispute
resolution. I think that that very conscious choice to refuse discussion and
refuse any alternative, and to go down this route, should be reflected in the
order that you make as to costs.

312. Counsel for CaRT upheld the correctness of Mr Parry declining to discuss
matters, again insisting that it was all down only to the legalities of standing. The
response was: -

DEPUTY MASTER JEFFERIS: What about the letter to the director saying,
"Why don't we talk?" You are saying that you are perfectly entitled just to say,
"It is an all or nothing claim. I am not going to talk"?

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313. Counsels answer was: -

Mr. Parry did in fact offer to meet Mr. Moore in Brentford but Mr. Moore was
unavailable on that occasion, although it is fair to say I think by that time
these proceedings had started so Mr. Parry said he would not have on the
agenda these proceedings. So it is not a question of him saying, "I am not
prepared to discuss matters".
DEPUTY MASTER JEFFERIS: Hang on. He has if he said, "These are not on
the agenda".
MR. STONER: These proceedings because ---DEPUTY MASTER JEFFERIS: Post the issue of proceedings that is just
when an ADR should take place surely?

314. The closing arguments on the issue were: -

MR. STONER . . . But, in my submission, the test is this, Master, it

is speculative but if there had have been ADR when one of the parties'
positions was, "I am entitled to specifically enforce an agreement from April
2007", and the other party's position was, "You have no entitlement to bring
that claim; that claim, if it exists, is vested in another legal person", it is
difficult to see how that was a dispute which was easily capable of resolution.

MR. MOORE: I would say on that score that one does not need, in an
alternative dispute resolution, to rely on what is the legal ins and outs and
possibilities. One can reach an amicable resolution based on one's sense and
fair play and by what is right and proper rather than what is legally possible or
not.

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315. Doing the honourable thing, however, was never on Mr Parrys agenda, and in
ruling in CaRTs favour the Master commented: -

I have considerable sympathy for the claimant, who, from my looking at the
documents has not been treated well, but I consider that it would be right to
strike out the statement of case . . . [Exhibit 40]

Contempt of Court

316. It has already been pointed out that breach of the Court Undertaking, although
censured by Hildyard J, was nonetheless dismissed on the basis of no harm done.
This, despite the eventual discovery that all parties had been well aware both of the
situation and the potential consequences of any breach, and that the new Patrol
Officer also, [Peter Palmer] had been made aware of the terms of the Undertaking.

317. In the later case of Geoff Mayers, the judge had firmly impressed upon CaRT
that he would hold them to their undertaking that they would not pursue Mayers if he
obtained a home mooring and applied for a renewed licence. Mayers obtained such a
mooring [verified by CaRT] and sought reinstatement of his licence, but had his boat
seized even while he was seeking the new licence. [Exhibit 41]

318. Only the usual and understandable ignorance of a layman regarding effective
recourses to justice in such circumstances [with perceived costs issues and
representation options] allowed CaRT to not only get away with their contempt, but to
continue pursuing the allegedly legitimate debt so incurred, despite the ruining of the
boat. Mayers lost his only home of many years because of this.

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319. It is understood that Mayers continues to attempt restitution and/or

compensation and is taking advice on how to pursue the Contempt of Court issue.

320. CaRTs predecessor BW had been convicted in at least one known case of
Contempt of Court, in Seymour v BWB in 1986 at Leeds Crown Court. It is evident,
however, that the Courts are more reluctant these days to so brand the authority,
albeit ready to so brand their customers [and to gaol them for the offence, as with the
case of the boater David DeVere in Brentford].

Contempt of the Sovereign

321. A recent customer furore has been engendered over the announcement of
revised Terms & Conditions of boat licences. These seek to dispense with statutory
rights both general and waterways specific, via the device of holding compliance with
the T&Cs as being a condition of licence issue [contrary to statute], and by holding
all customers to be bound by these as an enforceable contract. [Exhibit 42]

322. CaRT has an obligation under the terms of the 1995 Statute, to issue licences to
all who apply for them and meet the pre-conditions laid out in that legislation. This
duty they both have and are breaching, and seek to gain customer consent to such.

333. This attempted circumvention of the statutory imperative was the basis of
CaRTs claim against Tony Dunkley, as previously referred to. In that case they
revoked his licence on the basis that he was not abiding by the Terms & Conditions
as they saw them, even though he was at all times in compliance with the statutory
terms of s.17 of the 1995 Act. Specifically, he was accused on not cruising according
to the demands of s.17(3)(c)(ii), despite his licence being based on s.17(3)(c)(i).

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334. Only when they had read his robust Defence against that illegality did they
backtrack and eventually restore his licence on the strictly statutory basis, rather than
for compliance with their view of the enforceability of the Terms & Conditions. It was
following this debacle that they have re-drafted the Terms & Conditions to include
[3.1]

You must cruise on the Waterways whilst you are away from the Home

Mooring . . . cruising more clearly being defined by them now, as equating to the
requirements of s.17(3)(c)(ii), as explained in detail in their Guidance for Boaters
Without a Home Mooring.

335. The published rationales for the Terms and Conditions attempt to persuade their
unschooled customers that in accepting a boat licence, they agree to set aside the
statutory rights and protections under the Acts. CaRT rely on the theory that in
accepting the licence, you are legally bound to the terms under contract law. As
incorporated into the new Terms and Conditions respecting any on the fly changes
to them [such changes since removed]: You will be deemed to have accepted the
changes by keeping the Boat on the Waterways.

336. This reliance on the notion that customers are bound by such involuntary
contractual terms is wrong in law. Attorney-General -v- Wilts United Dairies Ltd;
CA 1921 [subsequently upheld by the House of Lords]: -

"It makes no difference that the obligation to pay the money is expressed in
the form of an agreement. It was illegal for the Food Controller to require
such an agreement as a condition of any licence. It was illegal for him to
enter into such an agreement. The agreement itself is not enforceable
against the other contracting party;" [my bold]

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337. Contrary to this precept and to their obligation under the 1995 Act, the preamble
to the 2015 version states: boat licences are subject to the conditions which
apply to the use of a boat on any waterway which we own or manage. These are
necessary to protect third parties and to help us manage the waterways well for the
benefit of all our users. Numbered paragraphs below are legally binding general
conditions.

338. This is altogether wrong: boaters use of their licensed boats is to be subject to
the rules of the road as set out in the Byelaws; retaining the licence for the boat
itself is not dependant on the boaters behaviour, except where, in the case of
continuous cruisers, the pattern of use itself is a breach of the statutory precondition.

339. Section 8.3 provides:

In the case of a serious or persistent breach of these conditions, or where we

reasonably believe that the breach may endanger the health and safety of
other people, we reserve the right to immediately suspend your Licence
pending an internal investigation to determine whether the breach is capable
of remedy. If we decide that it is not capable of remedy, we may terminate
your Licence without further notice. No refund will be payable.

340. Section 8.5 provides:

We reserve the right to refuse to issue you with any Licence in the
future. You have no right under these Conditions to the renewal of a
Licence.

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341. This is directly contrary to their obligation to issue a licence providing only that
the terms of s.17 of the 1995 Act are complied with. BW/CaRT have always
recognised this, as acknowledged in their Overview of statutory framework
https://canalrivertrust.org.uk/media/library/1127.pdf : -

The British Waterways Act 1995 limits to three specific criteria our ability to
refuse to licence a boat. [my emphasis] [Exhibit 43]

342. It is submitted here that these attempts at over-riding the Parliamentary Acts
respecting licence issue are not merely ultra vires; they are a contempt of Statute.

343. The same applies to a number of the individual Terms, which purport to
overthrow statutory protections. Some have been included for many years; the
amendments do but clarify the extent to which these clauses directly contradict the
law.

Examples are:

344. The power to board boats for reasons other than the single rationale provided
for in the 1983 Act. In the 1983 version of the Licence conditions, giving boarding
permission was restricted to a one-off consent in order that the Board be able to
inspect the boat prior to first issue of the licence; since then the scope has been
broadened to ostensibly permit CaRT to enter at any time on a number of pretexts:
7.7
You agree that: (i) we can board the Boat, and/or any land you own or
occupy which is adjacent to the Boat, in order to affix or place on the Boat,
correspondence, contractual or statutory notices or court papers; and (2) we
can come on board the Boat to inspect it where we need to check you meet

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these Conditions and we can cross the Boat for the purpose of accessing
any adjacent boat that cannot reasonably be accessed from the bank. We will
give you reasonable notice if we consider it is practical to do so.. . . We may
board without notice if we believe the Boat may be unsafe or if it is
unidentifiable.

345. This is clear subversion of the BW Act 1983 which restricted such power to
circumstances where emergency safety issues were apparent. If no immediate
grounds for concern existed, notice HAD to be given - and that was never down to
whether any officer considered it practical or not.

346. Dispensing with the Data Protection Act whereby licence holders are deemed to
agree to the sharing of their information whether agreeing that CaRT can give that
to third parties, or whether CaRT can demand your details from third parties (7.8)

You agree that we may provide your personal details including your contact
details such as your name and address to any person (or the insurer of any
person) who we believe has a reasonable interest in an incident or alleged
incident . . . and (7.9) You agree that where we believe that you have failed
to comply with the Conditions, we may exchange information relating to you
and/or the Boat with third parties who are assisting us in managing the
situation such as contractors, mooring providers, individuals or organisations
with a legitimate interest or duty in exchanging information about you.

347. Agreeing to pay costs where this prohibited by Statute

6.5

We may recover from you any reasonable costs, charges and/or expenses that
we may incur as a result of your failure to comply with the Conditions.
Examples of what we may seek to recover from you include but are not
limited to:

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(i)

legal costs;

(ii) daily charges which may be applied for staying longer than the
maximum time allowed at any particular location;
(iii) other administrative charges, which are costs for our time and the
costs of contractors we may instruct in enforcing the Conditions
including costs incurred for moving the Boat to a different location
on the Waterway or removing the Boat from the Waterway;
(iv) all costs arising out of any third party claims made against us as a result
of your breach of the Conditions.

348. This is an expansion of the previous draft which stated only:

In some cases we may use powers under s.8(5) of the British Waterways Act
1983 to move boats that are causing an obstruction. An overstaying boat is
causing an obstruction at a mooring since it means that the mooring is not
available for other boats to use. If we do need to move the boat, you agree to
repay our costs.

349. This directly countermands the finding of the Court in Taylor v BWB as to
construction of the 1983 Act. As to the supposed agreement to pay penal daily
mooring charges and any other administrative charges, this is directly contradictory
to all court findings on the principle exemplified in McCarthy and Stone
(Developments) Limited v Richmond upon Thames London Borough Council
[1992] 2 AC 48.

350. It is simply not permissible to unilaterally impose such removals of statutory

rights under the pretext of enforceable contract law. In seeking to subvert the rights
of their customers in this fashion, CaRT as BW before them, are acting against
general law and against the specific protections of the various BW Acts. The National
Association of Boat Owners has published a challenge to such conditions which is
largely pertinent. [Exhibit 44]

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351. Statutory Obligation. Halsburys states [Vol.96, s.721] Every person to whom
an Act applies is under a legal duty to comply with it. . . . It is of the nature of
legislation that the persons to whom it applies, whether individuals, private
corporations or public officials or bodies, should have a legal duty to obey it. Thus
CaRT are themselves obliged to comply with their obligations under their enabling
Statutes, and cannot legally make issue of the boat licence conditional upon
acceptance of the Terms and Conditions - in reliance on an illegal contract contrary
to their statutory obligation.

352. There exists a serious imbalance in the legislation in that while the 1995 Act
provides for sanctions against the public for failing to comply with mandatory
requirements for obtaining a boat licence, there is no sanction provided for against
BW and its successor for failing to comply with the mandatory requirements on them,
obligating them to issue the licence when the relevant pre-conditions are met.
The only avenue for public enforcement of statutory obligations against BW/CaRT is
that of s.106 of the Transport Act 1968 and that pertains only to the duty to
maintain the main navigable channel of the Commercial and Cruising waterways.

353. As Mr Etherington of the 1993 Select Committee commented:

Do you know what this reminds me of? It reminds me of the Master's and
Servants Act, where when the employer did anything wrong, the employee
had to seek a civil remedy, but when the employee did something wrong, the
employer could invoke the criminal code. It is an imbalance and in many ways
it spoils, in my view, many of the admirable clauses and the admirable
philosophy behind many of the clauses in this Bill and I think it is regrettable.

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354. It is submitted here that the failure to obey the relevant statute is, nonetheless,
an offence at common law, involving as such behaviour does, defiance of that which
has received the Royal assent. The offence therefore consists of Contempt of the
Sovereign and that this applies to actions contrary to statutory duty, and failure to
abide by statutory duty, is established in the last known case where such an
indictment was brought: the case of The Queen v Price [1840] 11 Ad & E 727. After
175 years, it is high time the offence was actioned once more, as it should have been
in CaRT v Dunkley.

Relevance of the History

355. The cardinal point being made here is not so much the crimes committed; the
utterly inappropriate and malign choices; the dishonourable behaviour, and the
conscious overriding of the law, but the continuing and current institutional attitude
towards all this, and the evident [justifiable] feeling of total immunity from effective
censure let alone penalty. For so long as the presumption of probity aligns with the
overlooking of serious crimes committed against the public, for so long will
overbearing wielding of their draconian powers increase.

356. In so far as this is relevant to the Human Rights angle, it is submitted that all this
provides ample warrant for the Court to open the gate to serious questioning of the
basis of the managerial decision making, and as to whether the decisions taken truly
are designed for the appropriate carrying out of CaRTs legitimate statutory
objectives and duties.

358. It is submitted that the prior history of enforcement, as demonstrated in the

appalling abuses in the instant case, more than suffices to demonstrate that the

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inappropriate use of s.8 powers has been manifestly without reasonable

justification.

Parliamentary Concern

359. Such concerns have never been far away from those in Parliament debating the
conferring of relevant powers. During debate over provisions of the 1990 Bill that
became the 1995 Act [with amendments and omissions], the Chair of the Select
Committee noted their caution over conferring powers to criminalise boaters:

Mr Drabble [for BW] We seek to have a criminal offence, that is right. You
make it sound as if we are going to go to court every time a boat is moored,
which is an obstruction, which is plainly not the Boards intention.
Chairman: But you will accept that my colleague said that to Mr Dodd I think
it is not you we are worried about, or the present enlightened Board, but it is
their successor who we do not know. [S.C. Minutes, 1 July 1993. Exhibit 45]

360. It is remarkable, given the jocularly expressed concerns as to the character of

any future organisation, that the same year this Bill became the 1995 Act, a BW
official was gaoled for 5 years at Coventry Magistrates Court for extorting thousands
of pounds from boat dwellers on the Grand Union Canal. Once again, it is not so
much the individual bad apple that is of concern: the Inspector [one James Kent]
claimed that the practice of harassing boat dwellers prior to demanding cash is
widespread throughout the canal system. The BW spokesman Ray Carlow said:
Waterways have known of this problem for some time but its difficult to stamp
out. It is that institutional lack of resolve to address corruption within that has led to
the state of affairs today given all the more room to flourish with the removal of all
practical accountability in their new guise of a non-governmental charity. [Exhibit 46]

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361. In fact, the Select Committees fears over future management of the authority
were reprised when much the same concern was expressed by the House of Lords
over the exemption in the Public Bodies Bill permitting the successor to BW to retain
powers of promoting secondary legislation.

http://www.publications.parliament.uk/pa/ld201011/ldselect/lddelreg/108/10803.htm

British Waterways Board and the Environment Agency

20. The Minister's letter does not explain the rationale for Government
amendment 99A on the revised eighth marshalled list. The amendment,
expressed as a note to Schedule 5, appears to be intended as a substantive
provision to the effect that, contrary to the general position under the Bill,
functions of the British Waterways Board consisting of powers to make
subordinate legislation, powers of forcible entry, search or seizure, powers to
compel the giving of evidence and powers whose exercise will necessarily
affect the liberty of an individual may all be transferred to a private sector
person who does not otherwise exercise any public functions. If a transfer
takes place to such a person, the Environment Agency's powers of a similar
kind may also be transferred to that person. Especially in the absence of a
convincing explanation, it is not appropriate for an existing power to make
subordinate legislation to be transferable to another, unidentified, body. This
renders the powers in clause 5 in relation to these bodies especially
inappropriate. The Committee draws the attention of the House to
amendment 99A. [Lords emphasis in bold]

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362. It is regrettable that their recommendation was not followed, as the ensuing
years under CaRT have seen growing efforts to uselessly micro-manage the boating
use of the system, with exponential increases in the application of s.8 powers in
utterly inappropriate circumstances.

363. Whether the retention of powers to promote secondary legislation has made any
difference of course, is perhaps moot because instead of following that legitimate
path to the making of rules, they have been proceeding to unlawfully impose such
rules, and remove statutory limitations of their power, by the illegal means of
supposed contractual terms via their Terms & Conditions.

364. The Court should be reminded of the judgment cited previously in AttorneyGeneral -v- Wilts United Dairies Ltd -

it might be thought that pursuing such

illegal means while fully aware of this judgment would be anathema to any ethical
institution exercising powers over the public. It ought to be, but the only conclusion
on the facts available is that this is not an ethical organisation, and that the executive
and their legal and enforcement departments have grown confident in their ability to
impose upon the public in defiance of the law.

365. This is nowhere more evident than in the instant case, where valuable property
has been illegally seized, in the absence of any remotely justifiable managerial
objective, based upon an arbitrary and unilateral interpretation of the relevant law
the further defining of which is by specific statutory provision to be made only under
the authority of the Secretary of State.

366. It has been considered necessary to itemise the above instances of institutional
and executive-approved irregular conduct by the authority, because the Court
presumption in favour of them, and against any challenger, is so strong.

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367. That is well illustrated by the mind-set even of Mr Justice Hildyard, who even
while finding that BWs conduct has not seen them at their best, nevertheless
commiserated with them as to the Claimants challenge to their authority. In his first
draft judgment he wrote:

I appreciate and take into account that the Claimant has been stubborn and
relentless, and sometimes, no doubt, difficult to deal with; he has obviously
tried their patience. I appreciate also that BWB have a difficult task; and for
the most part, their publications suggest a constructive and open relationship
with the boating public;

368. On protest that: I question the accuracy and appropriateness of describing me

as difficult to deal with and trying their patience. those words were removed, but
they well illustrate the judicial sympathy for a beleaguered national authority with a
multi-million pound annual enforcement budget, having to cope with an indigent
individual boater challenging their authority to deprive him of his home and property.
[Exhibit 47]

369. What such sympathy gave rise to in that judgment, was a finding that anything
not expressly permitted by the authority rendered a boater unlawful and subject to
s.8; that unconstitutional travesty of justice was properly overturned by the Appeal
Court, and the same thinking/feelings should not be permitted to subvert the course
of justice once more in the present case.

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SUMMARY

Licence Requirement

370. The statutory requirement for Pleasure Boat Certificates is limited to the main
navigable channel of the rivers listed in Schedule 1 of the 1971 Act. The meaning of
the term had already been defined in the terms of the Transport Act only three
years earlier.

371. Section 105(2) effectively defined the term main navigable channel as that
portion of the rivers and canals which BW were obligated to maintain in a suitable
condition for use by any vessel of the kind mentioned in that paragraph [para.105(1)
referencing commercial freight-carrying vessels and cruising craft] which need only
be those vessels whose dimensions: (a) correspond to, or are less than, those of a
vessel of that kind which customarily used that waterway or part during the period of
9 months ending with 8th December 1967.

372. Those relevant dimensions were recorded in the 1975 Fraenkel Report which
outlined a methodology for determining the maintenance standard of width and depth
in compliance with the 1968 Act.

373. While the dimensions of this Minimum Operating Channel are being constantly
diminished [absent the requisite Ministerial authority], the original sizes of the main
navigable channel are still on record within modern BW spreadsheets, and any
further refinement as to where, within any waterway, the channel of those statutory
dimensions might be located, will be a matter for the Secretary of State if needed.

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374. The same term must bear the same meaning in the 1971 Act; the main
navigable channel for the relevant section of the Trent according to the 1968 Act, is
on record as being 11.5 metres width - within the overall width here of 56 metres.
There is no conceivable device whereby a vessel such as the 2 metre wide
Grandma Molly/Three Wise Monkeys moored to the bank, could be understood as
encroaching anywhere remotely near the main navigable channel.

375. In all or any one of the premises above, CaRT and their employees and subcontractors have wrongfully interfered with valuable goods, having absolutely no
legislative authority nor legitimate reason to do so, and have thereby committed a
series of crimes under both statutory and common law.

378. The failure to perform their statutory duties, and the positive attempts to
overturn the statutory rights of their customers, is a malign misprision.

Violation of Marlborough and the Human Rights Act

379. Regardless of whether CaRT was entitled to employ the s.8 powers, and
regardless of whether those powers embrace rights to seize goods as a lien on debt,
the procedures followed were in clear violation of the Human Rights Act and the
precursor Statutes of Marlborough.

380. The process was instigated without having first employed the specified sanction
for the alleged offence; without benefit of a Court Order, and was carried out in a
manner that incurred grossly excessive costs.

381. Seizing the boat on a public highway and removal out of the county more than
120 miles away were violations of the law, and unwarranted inflation of the costs.

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Nature of s.8 Powers

382. The evolution of the powers under s.8 illustrate amply that the intention was to
provide means for clearing the navigation of boats which for various reasons
occupied the waterways unlawfully, in circumstances wherein the owners could not
be traced in order that they be compelled to take remedial action.

382. The legislation is clear that seizure and holding of the boats under s.8 was NOT
to facilitate action over debt, nor to be used as a lien on debt, nor an enforcement
tool for boat licences/certificates, nor a punishment for lack of those.

REQUESTED DECLARATIONS:

As to construction of the private Acts: -

As to meaning of main navigable channel in the 1971 Act: -

* That the term main navigable channel bears the same meaning in both the
1968 Act and the 1971 Act;

* That the main navigable channel of the BW waterways does not extend
from bank to bank; it is limited to the dimensions of an obligatory navigable
channel suitable for such vessels as used them in the 9 months prior to
December 1967.

* That neither Pleasure Boat Licence nor Pleasure Boat Certificate is required
for boats kept out of the main navigable channel of the scheduled rivers.

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As to effect of s.8 under the provisions of the 1983 Act: -

* That s.8 is not intended for the taking of a lien on debts, whether as to
licence fees, payment of Court costs, or any other.

* That s.8 is not intended to be used as a punitive measure by way of taking

revenges against known individuals;

* That s.8 does not dispense with the need for a Court Order to take
possession of any boat belonging to known individuals;

* That s.8 for lack of lawful authority is not exercisable in any event, where
the owner is a known individual, unless and until the prescribed sanctions for
Licence/Certificate evasion have been applied without success.

As to Grandma Molly/Three Wise Monkeys: -

* That the boat was kept outside of the main navigable channel of the river
Trent, and so did not require a Pleasure Boat Certificate, such that seizure of
the boat was unlawful under the terms of the British Waterways Act 1971;

* That seizure of the boat was unlawful under the Statute of Marlborough
chapters (I); (IV), and (XV).

* That seizure of the boat was unlawful under the terms of the Torts
(Interference with Goods) Act 1977;

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* That seizure of the boat was a violation of the Human Rights Act 1988;
Articles 6 & 7 of the Convention Rights, and Article 1 of the First Protocol.

* That seizure of the boat was unlawful under the terms of the Tribunals,
Courts and Enforcement Act 2007;

* That seizure of the boat was a criminal offence at common law, being an
unlawful denial of and interference with the common law rights of navigation.

* That for all the above offences in denial of statutory rights and obligations,
CaRT are guilty of the common law offence of Contempt of the Sovereign.

STATEMENT OF TRUTH

The Claimant believes that the facts stated in this Statement of Case dated 26 April
2015 are true.

Full Name:

Leigh Ravenscroft

Signed:

.........................

Date:

26 April 2015

Claimants address for service:

Leigh Ravenscroft
The Croft, Moor Lane, Newark, NG23 5QD

Email: midlandlogs@hotmail.com

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