QC says cavers DO have access to caves under the CROW Act

[Stu]

Stuart, courts interpret the law and as you say sometimes set precedent. So in a case of Landowner v.Caver for trespass, for example, the court would have to decide if the caver was exercising their right of access under the CRoW act. What Dinah Rose is saying is that there is a strong argument that the court would decide that a caver in a cave on access land is excising their right to roam and so is not trespassing.

It's not about a change in the law but about how the law is applied where there is ambiguity.

Yeah, get how it works cheers 

It was more directed at those who keep bandying the threat of court as a means to deter.

Westminster will either declare that caving was never meant to be excluded (didn't NCA have more to do with that exclusion?) or a precedent is set and we won't be breaking the law - though trespass is civil law, yes?

 

[Andy Sparrow]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood. 

GB is not on access land. Neither is Charterhouse, Rhino Rift or Longwood Swallet  - or indeed Longwood Valley Sink.

OK, so there's some other layer of intrigue here.  A well known Mendip caver, member of BCA council, who is very much in Graham's camp on this issue,  listed to me a number of sites that could be affected, which certainly included GB.  Would somebody in the know like to explain what the situation is and how the listed caves are perceived to be under threat?

 

[Andrew W]

but from what I gather we, the pro-access lobby, are after is a change in law. Which comes from the legislative arm of government. Similar to the process I believe to be happening in the Welsh Assembly. 

I didn't think anyone was seeking (at this stage) a change in the law. The law as it is currently written is not clear on whether or not it covers caving. It isn't specifically excluded but it also isn't explicitly obvious that it is included either. The purpose of this exercise I believe was to seek the learned opinion of a QC on whether they believed that the law (as it currently exists) allows access for cavers or does not.

Clearly Dinah has concluded that the existing law likely covers caving. DEFRA's legal department doesn't share the same view point. We do not know how carefully considered their opinion was and it is therefore possible that their opinion may change when presented with reasonable argument. It may also not change and even if it did change there is no reason why a landowner could not argue that the law still didn't cover caving. It would be ultimately for a judge to interpret the existing law, considering the arguments put to him and existing precedents.

I expect that the next step would be to use Dinah's opinion to attempt to change the official position that the various agencies involved currently hold. If that were successful then I expect it would be unlikely that a landowner would take a differing view.

My own view is that whilst I can see both positives and negatives for more open access, those issues are irrelevant. The law already exists. It either covers caving or it doesn't. If it does cover caving then it is not for those disadvantaged by that fact to stop people exercising their existing lawful rights. It would be for them to campaign to change the law to exclude caving. On the other hand, if it does exclude caving then it is for the proponents of open access to campaign for a change in the law and for the opponents to campaign for the status quo.

 

[droid]

Just a point: there's a big difference between scepticism on the importance of a QC's opinion and opposition to what that opinion is.

There's a few people (on both 'sides') that are so deeply entrenched that changing their stance is difficult to reconcile with saving face.

In practice nothing is changed by this opinion. Things may change in the future, but that won't be decided by a few protagonists on a forum that doesn't neccessarily reflect the views of cavers in general, just the argumentative sods that get on here.


Just saying.....

 

[menacer]

You can use Natural englands maps to view Crow areas
http://www.openaccess.naturalengland.org.uk/wps/portal/oasys/maps/MapSearch

 

[graham]

The reason why Graham and some other Mendip cavers are so opposed to access under CROW is, I believe, as follows....

There are major Mendip caves on access land, including GB and Upper Flood. 

GB is not on access land. Neither is Charterhouse, Rhino Rift or Longwood Swallet  - or indeed Longwood Valley Sink.

OK, so there's some other layer of intrigue here.  A well known Mendip caver, member of BCA council, who is very much in Graham's camp on this issue,  listed to me a number of sites that could be affected, which certainly included GB.  Would somebody in the know like to explain what the situation is and how the listed caves are perceived to be under threat?

Maps of access land are easily found, there is one findable on the Natural England website and a perfectly usable overlay on the excellent "Where's the Path" website. The latter one doesnlt crash as often, but the former has useful additional information.

I believe that the mysterious individual referred to by Mr Sparrow has a spreadsheet derived from mashing up the maps with the MCRA database which lists 150 odd entrances on access land on Mendip.Don't quote me on the exact figure, as I do not have the file to hand. However, even a cursory glance at the map will show that the sites I mentioned above are not affected by this legislation.

 

[tony from suffolk]

but from what I gather we, the pro-access lobby, are after is a change in law. Which comes from the legislative arm of government. Similar to the process I believe to be happening in the Welsh Assembly. 

I didn't think anyone was seeking (at this stage) a change in the law. The law as it is currently written is not clear on whether or not it covers caving. It isn't specifically excluded but it also isn't explicitly obvious that it is included either. The purpose of this exercise I believe was to seek the learned opinion of a QC on whether they believed that the law (as it currently exists) allows access for cavers or does not.

Clearly Dinah has concluded that the existing law likely covers caving. DEFRA's legal department doesn't share the same view point. We do not know how carefully considered their opinion was and it is therefore possible that their opinion may change when presented with reasonable argument. It may also not change and even if it did change there is no reason why a landowner could not argue that the law still didn't cover caving. It would be ultimately for a judge to interpret the existing law, considering the arguments put to him and existing precedents.

I expect that the next step would be to use Dinah's opinion to attempt to change the official position that the various agencies involved currently hold. If that were successful then I expect it would be unlikely that a landowner would take a differing view.

My own view is that whilst I can see both positives and negatives for more open access, those issues are irrelevant. The law already exists. It either covers caving or it doesn't. If it does cover caving then it is not for those disadvantaged by that fact to stop people exercising their existing lawful rights. It would be for them to campaign to change the law to exclude caving. On the other hand, if it does exclude caving then it is for the proponents of open access to campaign for a change in the law and for the opponents to campaign for the status quo.

A very sensible post. Having been involved with a legal matter over a rights of way issue, I would guess one of the first questions that will be considered is, what is the intended purpose of the Act? It appears to be aimed at allowing access for recreational purposes, but not for those pursuits that might damage or cause loss. One can imagine several possible pastimes that may be undertaken on CRoW land that aren't mentioned as being either excluded or included.

As has been posted by others, it's very unlikely the law will be changed to consider caving; rather the outcome of any legal action will set the precedent.

 

[David Rose]

Yes Andrew W, that is indeed a very sensible post. Stuart: yes, trespass is a civil law.

There is a criminal offence known as "aggravated trespass" under the 1994 Criminal Justice and Public Order Act, but this rarely used provision is intended to allow the prosecution of people who organise illegal raves or disruptive or physically damaging political protests.

It could never be applied to cavers.

 

[bograt]

There appears to be quite a bit of mention here about a case coming to court to set a precedent, has anyone thought of the sense of taking such a case to court in the face of the legal opinion stated by a learned QC?
I assume that folks are thinking of landowners prosecuting cavers using CRoW legislation. To hope for a positive outcome to such a prosecution the landowners must challenge the decision of QC. Dinah, hence getting their own QC opinion to contradict that already given, I very much doubt they could justify the expenditure.
Similarly, if the landowner tries to refer the case to the CPC for publicly funded prosecution as a breach of law, the CPC is likely to ask for clarification of the rules, they usually ask a QC to clarify, the only higher powers are the Law Lords, do you really think they could be bothered?

Once again, thank you very much Dinah for providing us with this very valuable article to help in our process, I only hope that all cavers respect its context and allow BCA to follow it up with a sensible system to protect caves whilst still allowing less controversial access arrangements.

 

[droid]

Has it not occurred to you. Bograt, that some landowners may be able to secure the services of a QC in the same way that cavers have?

 

[bograt]

Has it not occurred to you. Bograt, that some landowners may be able to secure the services of a QC in the same way that cavers have?

Certainly did occur to me, but then I thought of all the volunteers who helped compile the dossier presented to Dinah to help in her research, and thought a landowner would have difficulty accessing this research free of charge.

 

[Ian Adams]

Has it not occurred to you. Bograt, that some landowners may be able to secure the services of a QC in the same way that cavers have?

Let them do so.

Bograts post is excellent, the work done to benefit cavers is excellent and the result is excellent.

If you don't agree, get a grip.

For years the "anti-access" people have held cavers to ransom with their interpretation of CRoW (The status quo now being found to be faulty). Now the tide has turned and the "anti-access" people can no longer shout "illegal".

We had to put up with being mis-directed (knowingly or not) for years. Now, some of us intend to enjoy the sport we all subscribe to and go CAVING ....



Ian

 

[martinr]

Has it not occurred to you. Bograt, that some landowners may be able to secure the services of a QC in the same way that cavers have?

We should not be too surprised a QC hired by cavers has given an opinion that favours cavers, that's what a QC does

The award of Queen?s Counsel is for excellence in advocacy in the higher courts. .....The advocacy may be in written or oral form but must relate to developing and advancing a client?s or employer?s case to secure the best outcome for the client in a dispute.

If a landowner who is opposed to open access goes to a QC, they will get a QC opinion which favours the landowner.

I'm sure something like the Country Landowners Association would have sufficient funds to pay for a QC of their own

Where does that leave us?

 

[graham]

Bograt

You may think you have a QC' soul opinion, but a landowner who challenged you can still rely on the advice given by Defraud, otherwise known as the government.

 

[Ian Adams]

You can't "direct" a QC to find in your favour lol

 

[martinr]

Now, some of us intend to enjoy the sport we all subscribe to and go CAVING ....

I take it that means you are not waiting for the outcome of discussions with NE (or whoever) to see if they agree with our QC's opinion?

 

[peterk]

Has it not occurred to you. Bograt, that some landowners may be able to secure the services of a QC in the same way that cavers have?

I hope your not alleging that the Country Landowners Association would seek to be influential in this? http://www.cla.org.uk/latest/lobbying or their small (???) team of solicitors?
http://www.cla.org.uk/contacts/advisers
Can we move on from the legal opinion on caves and CROW to the next stage of the argument - Bathing in non-tidal waters is banned under CROW so the CDG had better get their act together,  Dr Bannister needs to address his hand basin drainage and can we get a quick change to the OED and its definitions of "bathe"?  :halo:

 

[martinr]

You can't "direct" a QC to find in your favour lol

I think you'll find you can

 

[graham]

You can't "direct" a QC to find in your favour lol

You brief them and ask if there is an interpretation of the law which favours your case. Given that government advice does, that should not be difficult to find.

Remember, it is no criticism of Ms Rose to say that her view was partisan.  Lawyers in the UK are.

 

[graham]

Now, some of us intend to enjoy the sport we all subscribe to and go CAVING ....

I take it that means you are not waiting for the outcome of discussions with NE (or whoever) to see if they agree with our QC's opinion?

An interesting point and one which leads me onto he next one. Leaving aside the permits system in the Dales, most controlled caves have gates. If the owner refuses to remove the lock then, well criminal damage remains .... a crime.