The National Bargee Travellers Association (NBTA) has recently published the transcript of hearing of the judicial review by Nick Brown of the Guidance for Boaters Without a Home Mooring on its web site. CRT claimed in response to a Freedom of Information request by Allan Richards that copyright issues prevent CRT from releasing the transcript to the public. This is misleading. The transcript is a Court document. Court documents are copyright the Court but are nonetheless public documents with licence to re-use. Transcripts are publicly available from the Court having been produced under contract by one of a number of transcription agencies. CRT has published the judgement only, not the transcript of the hearing.
The NBTA said:
Mr Justice Lewis made the following observations during the passage of the proceedings.
“The more you look at this statute, the weirder it becomes. I do not even see what it is trying to do, you know. You read it and it is obvious and then you read it again and it is de-obvious.” (page 47)
“You shift it down to the Dog and Duck, have lunch … get back on the boat and you go … back to where it has been for the last 11 months and 29 days, and you wait until the same day next year. … [This] is exactly what a pleasure boat does and all [a Continuous Cruiser has] to do is what a pleasure boat does. The rich owner goes to the Dog and Duck and has a chauffeur driver, has a gin and tonic, and comes back on Christmas Day. That is what a pleasure boat does…” … [in response to ‘…what does a pleasure boat have to do? Because if it is good enough for a pleasure boat with a mooring, it has got to be good enough for a pleasure boat without a mooring…’] …that means that the annual trip to the Dog and Duck is enough.” (page 42)
“….Looking at the Act, actually, I wonder whether there is not a different problem with the Guidance. Looking at the Act and section 17(3)[(c)(i)]: ‘[CRT is] satisfied that a mooring or other place where the vessel can reasonably be kept …’ … That says “a mooring or other place”. Mooring is a place. It may not be a mooring; it may be another place. Then you go on to [s.17(3)(c)(ii)] which says “continuously in one place”. … What [the statute is] saying there is you cannot moor it in one mooring or a place equivalent to a mooring for more than 14 days.” …. [‘Place’ in s.17(3)(c)(i)] is the same for [s.17(3)](c)(ii), in any one place, i.e. a mooring or some other place where the vessel can reasonably be kept.” (pages 28-31)
“The guidance does not give you very much guidance at all.” (page 26)
Nick Brown, claimant in the judicial review, concluded that he could not continue the action after comments made by Mr Justice Lewis. There was no enforcement action against Mr Brown. Mr Justice Lewis stated that it would be very difficult for the Court to adjudicate the matter in the abstract.
While this leaves boaters without guidance that is authoritative the observations of the presiding judge are legally accurate, greatly illuminating and thus will be influential in County Court enforcement proceedings. CRT strongly opposed Mr Brown’s application to discontinue.
You can download the transcript of the hearing here
http://www.bargee-traveller.org.uk/?attachment_id=203
You can download the transcript of the the judgement here
http://www.bargee-traveller.org.uk/?attachment_id=202
Allan Richards’ Freedom of Information Request is here https://www.whatdotheyknow.com/request/brown_v_canal_and_river_trust
Tags: 14 day rule, bona fide navigation, continuous cruising, FOI request, Judicial Review, Nick Brown, Section 17, Waterways Act 1995