Post by NigelMoore on Dec 17, 2016 15:52:53 GMT
It would be interesting to know why they prefer to prosecute using other laws rather than the bylaws, there must be some advantage for them.
They do not prosecute at all, let alone "other laws". The s.8 cases are not prosecutions, they are effectively injunction proceedings.
The explanation is, I believe, that the punishments for byelaw infringement are insufficiently severe to please the decision makers. They like the spectacular; spreading abroad the awful fear of losing one’s home and/or valuable possession.
The sole value of boat seizures at inordinate cost is the publicity and the sending of the dread message as to what happens if you cross the authority. Prosecutions for minor offences – or even major offences such as having no boat licence – lack the glamour of s.8 seizures. There is scant interest in upholding byelaws respecting use of the system because of that lack of glamour.
Even so significant a breach as that of having no boat licence where required, carries the same level of fine as breach of any of the other byelaws. As CaRT argue before the Courts, and as, perversely enough, the judges agree – the punishment is simply not severe enough for them. They would rather lose a customer than enforce the law against them.
This is most clearly spelled out in the judgment of HHJ Denyer QC in his judgment in the case of BW v Ward –
canalrivertrust.org.uk/media/library/3773.pdf
“Other than removal of the boat the only sanction provided for in the legislation in respect of a contravention of the Rules by a person such as the Claimant [sic] is that of a derisory fine. I think it has now reached the sum of £50. If they are not entitled to take these steps i.e. removal of the boat from the river they are in truth substantially powerless to enforce the obligations of those who use the waterways.”
This is such arrant nonsense that it is very obvious the judge carried over to this issue the remarks of Lord Hope that he had quoted earlier: “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 . . . The court is not equipped to make those decisions . . . 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.”
Applying this to the case before him, the judge said: “The Claimants [BW] . . . are far better equipped than I to decide what is necessary in and about their performance of their management duties.”
So BW’s pathetic argument over “derisory” punishments was swallowed whole. It is still surprising to me even so; even a County Court judge ought to be in a position to confirm the penalties and consequences of byelaw prosecutions in the Magistrates Court which now imposes fines around £1,000 if a case is unsuccessfully defended, with a minimum £150 I believe, for uncontested cases. That is before costs are awarded; the licence [if applicable] ordered to be paid, and the criminal record with gaol for contempt of Court if the Order is not obeyed.
One has to wonder also – how did this judge imagine similar navigation authorities “enforce the obligations of those who use – their – waterways”? The EA regularly takes unregistered boat owners to the Magistrates Court, even if they also, do not seem to bother with byelaw enforcement. It is pertinent that the EA has much the same s.8 boat removal powers as does CaRT, so it is not as though they have no choice in the matter.
Also – BW Scotland has NEVER had s.8 powers to remove unlicensed boats from their waterways; how have they coped?
If this judge was correct, they could never perform their management duties!
It is all too farcical, but for so long as the overworked CC judges take the same attitude that CaRT knows better than they do, for that long will this situation continue.