VIP caving trip to GG - press release

[bograt]

I seem to recall that in Ms Roses analysis, she said something along the lines of :- "there seems to be no indication that caving was intended to be excluded from the legislation".

All we are pursuing at the moment is clarification of whether or not it is, should be, or is not included, all this talk about court test cases is, in my opinion, complicating the issue unnecessarily. Surely the way forward is to enlighten the law makers as to what the issues are and persuade them that caving should not be excluded, no change, no amendments,  just clarification from the highest level. This initiative is part of that process and I applaud all involved in it!!

P.S. Just read Wayland Smiths post and would remind him that Natural Resources Wales are currently considering adopting the Scottish system which does specifically include caving---
Also to remind him that DEFRA consists of civil servants only, who can be advised/instructed how to interpret the rules.

 

[Wayland Smith]

If N.R.W. change their policy that will be very good.
However the situation today, as stated in their reply to the solicitors letter is firmly that CROW does not apply to caving.
What "might be" in the future does not change the things today.

 

[martinr]

A [DEFRA] spokeswoman said it has no plans to change the legislation, and any legal opinions supporting a right of access to caves ?remain just that? until they have been considered and ruled upon by the courts.

 

[Simon Wilson]

Sorry Simon but YOUR opinion, and the QCs opinion counts for nothing in law.
National resources Wales, and DEFRA have both recently stated their position that CROW does not apply to caving.
These are the organizations that administer the legislation.
Until the legislation, or the guidelines change caving is not covered by CROW.

Defra and NRW don't 'administer' the legislation. They have a duty to give advice on the legislation. Many people say their advice (opinion) is wrong.

 

[martinr]

Sorry Simon but YOUR opinion, and the QCs opinion counts for nothing in law.
National resources Wales, and DEFRA have both recently stated their position that CROW does not apply to caving.
These are the organizations that administer the legislation.
Until the legislation, or the guidelines change caving is not covered by CROW.

Defra and NRW don't 'administer' the legislation. They have a duty to give advice on the legislation. Many people say their advice (opinion) is wrong.

Many people including DERFA's own legal advisers say their advice is correct

 

[bograt]

A [DEFRA] spokeswoman said it has no plans to change the legislation, and any legal opinions supporting a right of access to caves ?remain just that? until they have been considered and ruled upon by the courts.

DEFRA has no ability to change legislation, they, and the courts, can only interpret it, Caving is not specifically excluded from the act, neither is it specifically included, this is what needs clarifying.
We are, unfortunately, trying to 'pick up the pieces' from the NCA's lack of action when the original proposals where laid down---.

If this is a true quote, I suggest the spokeswoman was speaking outside of her remit---.

 

[royfellows]

The laws of the country are made by parliament and the courts. Parliament enacts legislation which is then enforced by the judicial system.
From time to time a question of interpretation of the law, or maybe a perceived lacuna (loophole) my be used as a defence argument. Whichever way it goes the decision could then be appealed to a higher court maybe going all the way up the ladder to the UK Supreme Court which replaced the Court of Appeal and the Law Lords. The final decision would then become law by precedent.

From this two things emerge, first that parliament could then be aggrieved by the courts decision and pass an amendment to the original act, this would then override the decision of the court and become the law. An example that springs to mind is that relating to speed radar detectors.

The second is that any court decision is only a precedent relative to a lower court, so only a decision of the highest court, The UK supreme court, could be considered a true precedent.

Test cases in criminal law only arise through a defence argument. If someone is aggrieved by a statutory bodies interpretation of the law then they can apply for a judicial review into the way that body administers the law.

 

[matterry]

"Everything which is not forbidden is allowed" is a constitutional principle of English law ? an essential freedom of the ordinary citizen. The converse principle ? "everything which is not allowed is forbidden" ? applies to public authorities, whose actions are limited to the powers explicitly granted to them by law.

Copied from Wikipedia.

So as an ordinary citizen CROW covers me for caving. DEFRA and NRW have to say otherwise.

 

[droid]

And so we revert to the norm 'my opinion is bigger than your opinion'

Capn Chris hit the nail on the head.

 

[royfellows]

DEFRA and NRW are unlikely to change their stance on this as interpretation of CROW as to cover caving would require enforcement which would undoubtedly lead to a prosecution, which would be your test case, expensive for all parties and in the event it went against them would leave them with egg on their faces.

"So as an ordinary citizen CROW covers me for caving. DEFRA and NRW have to say otherwise."

Well they have done haven't they, It really boils down whether the landowner says otherwise.

This whole thing is like magic roundabout

 

[Simon Wilson]

DEFRA and NRW are unlikely to change their stance on this as interpretation of CROW as to cover caving would require enforcement which would undoubtedly lead to a prosecution, which would be your test case, expensive for all parties and in the event it went against them would leave them with egg on their faces.

"So as an ordinary citizen CROW covers me for caving. DEFRA and NRW have to say otherwise."

Well they have done haven't they,

Defra have said that you can enter caves for a distance.

Defra might change their opinion but it might take a little time. The landowners have become used to people wandering about 'off piste'. The more cavers go caving on access land, the more they will find out that the major landowners are not bothered about it. Eventually permit systems will all disappear as the landowners can't be bothered renewing them because they are simply pointless and redundant. Leave Defra alone, people will move on and eventually Defra's opinion will fit in with the situation. There will be no court case and no egg on any faces.

Go caving on access land.

 

[bograt]

Defra have said that you can enter caves for a distance.

Defra might change their opinion but it might take a little time. The landowners have become used to people wandering about 'off piste'. The more cavers go caving on access land, the more they will find out that the major landowners are not bothered about it. Eventually permit systems will all disappear as the landowners can't be bothered renewing them because they are simply pointless and redundant. Leave Defra alone, people will move on and eventually Defra's opinion will fit in with the situation. There will be no court case and no egg on any faces.

Go caving on access land.

Tend to agree with this sentiment, but there's no need to gob off about it as if its a God (or Government) given right. (not you Simon, all them others )

 

[Simon Wilson]

Defra have said that you can enter caves for a distance.

Defra might change their opinion but it might take a little time. The landowners have become used to people wandering about 'off piste'. The more cavers go caving on access land, the more they will find out that the major landowners are not bothered about it. Eventually permit systems will all disappear as the landowners can't be bothered renewing them because they are simply pointless and redundant. Leave Defra alone, people will move on and eventually Defra's opinion will fit in with the situation. There will be no court case and no egg on any faces.

Go caving on access land.

Tend to agree with this sentiment, but there's no need to gob off about it as if its a God (or Government) given right. (not you Simon, all them others )

Sorry? You've lost me.

Has it not just been demonstrated that the pro-crow campaign is being conducted in a well-considered and diplomatic fashion by eloquent people? I haven't heard anybody "gobbing off".

 

[Wayland Smith]

Eventually permit systems will all disappear as the landowners can't be bothered renewing them because they are simply pointless and redundant. Leave Defra alone, people will move on and eventually Defra's opinion will fit in with the situation. There will be no court case and no egg on any faces.

I believe that there are quite a number of permit systems in place not for the benefit of land owners, but for the empowerment of control bodies, and clubs. 

 

[bograt]

DEFRA and NRW are unlikely to change their stance on this as interpretation of CROW as to cover caving would require enforcement which would undoubtedly lead to a prosecution

Question is, who is likely to risk the expenditure to bring a prosecution?, doubt it'll be a caver, doubt it'll be a landowner, DEFRA are answerable for expenditure - Who is likely to be the 'aggrieved party'?? one can argue that the law has been broken, that will involve the CPS, who will look into the case very deeply before initiating proceedings. With a QC's analysis on our side, I suspect the CPS would avoid involvement.

 

[Oceanrower]

Which law will have been broken? Trespass is, I believe, a civil offence.

Nothing to do with the CPS.

 

[bograt]

Defra have said that you can enter caves for a distance.

Defra might change their opinion but it might take a little time. The landowners have become used to people wandering about 'off piste'. The more cavers go caving on access land, the more they will find out that the major landowners are not bothered about it. Eventually permit systems will all disappear as the landowners can't be bothered renewing them because they are simply pointless and redundant. Leave Defra alone, people will move on and eventually Defra's opinion will fit in with the situation. There will be no court case and no egg on any faces.

Go caving on access land.

Tend to agree with this sentiment, but there's no need to gob off about it as if its a God (or Government) given right. (not you Simon, all them others )

Sorry? You've lost me.

Has it not just been demonstrated that the pro-crow campaign is being conducted in a well-considered and diplomatic fashion by eloquent people? I haven't heard anybody "gobbing off".

Sorry Simon, you misunderstood, I was referring to those on other threads who appear to brag about pirating.

 

[royfellows]

DEFRA and NRW are unlikely to change their stance on this as interpretation of CROW as to cover caving would require enforcement which would undoubtedly lead to a prosecution

Question is, who is likely to risk the expenditure to bring a prosecution?, doubt it'll be a caver, doubt it'll be a landowner, DEFRA are answerable for expenditure - Who is likely to be the 'aggrieved party'?? one can argue that the law has been broken, that will involve the CPS, who will look into the case very deeply before initiating proceedings. With a QC's analysis on our side, I suspect the CPS would avoid involvement.

The relevant statutory body to enforce by ultimately prosecuting as a last resort. We are taking here about CROW being enforced in the event that the statutory body perceived it as granting a right of access to the underground. A landowner who refused access regardless would be the defendant and would then challenge that interpretation of CROW as a defence. I would have thought that this was clear.

The CPS would not be involved, it would be the statutory body which brought the prosecution. Statutory bodies can bring criminal prosecutions, as can private individuals for that matter, although methinks that this is not widely known.

Something there to think about, if you can all think that far. (This comment addressed to all not Mr Bograt)

 

[bograt]

Which law will have been broken? Trespass is, I believe, a civil offence.

Nothing to do with the CPS.

So that brings it back to the landowner prosecuting for trespass on (or under) open access land?.
I was considering the law relating to CROW being contravened.

 

[bograt]

Sorry Roy, posts crossed!.