There is enough nonsense delivered over the meaning of “bona fide for navigation” to make any sane person despair – and some of it comes from over-worked County Court judges, relying heavily on submissions made by clever barristers, in specialised fields with which the judges are unfamiliar.
The oft-cited Davies judgment, seeking as it did to pin down the genuineness or not of navigation in terms of intent, was not only inherently absurd, but was contrary to established precedent case-law.
It was inherently absurd, not least because it would not solve the authority’s problems with boats hogging certain spots to the detriment of other boaters. The idea that a pattern of movement would be acceptable or not depending upon the intent of the boater is ridiculous – what practical difference would it make to anybody whether the boater was simply following guidance as to application of the 1995 Act requirement, or whether they were using the same pattern regardless of the requirement? The judgment would make ANY pattern of movement unlawful if followed only because it was law. And since when has obedience to law (reluctant or otherwise) been grounds for a conviction that a crime has been committed on the basis that the law was only complied with in order to comply?
As to binding precedent (which neither Davies nor Meyers qualifies as), in order to apply a meaningful definition to the word “navigation” in the context of the BW legislation, the CC judge ought to have looked for cases in the context of recreational boating. In that context the definitions found in the Cairngorm case, and in the Appeal Court case Evans v Godber [QB 1974] are the most applicable. Of particular relevance - given the County Court finding in Davies – is the conclusion in the Evans v Godber case as to what “navigation” of pleasure boats embraces where rights of navigation exist.
The leading judge very properly observed certain essential differences between land-based public highways and the right of navigation on water: “By contrast, the right of navigation in tidal waters is a right to move at will throughout the area where the water is tidal. No doubt most people when they set out on a voyage intend to get somewhere, as did the defendant on this occasion, but those entering Pagham harbour are under no obligation to follow a particular route or have a motive or reason to come in; their right as an exercise of the common law right to navigate is a right to go in tidal waters as and when they please.”
Such boats are, in other words, “bona-fide navigating”, despite following no particular route, nor having any particular motive or reason for the pattern of their navigation. The same principle has to apply to waters where the right to navigate is by permission via a boat licence, with the added proviso re: navigating CaRT waterways that the 14-day guidance (however interpreted) must be factored in. The relevant case law thus contradicts the Davies finding as to the supposedly essential factor of intent.
Anybody wishing to discover the essential criteria envisaged by BW when framing the relevant clause in the ’95 Act, need only read the specific representations made by their QC while promoting the clause during Select Committee deliberations on the 1990 Bill. For perhaps understandable reasons, BW and now CaRT have always objected to the relevant material being considered in any of the court deliberations on the subject. Suffice to say that it sought, generally speaking, to apply 'common sense' criteria to avoid inconsiderate leaving of boats near and alongside essential services, to the detriment of other boaters whose use of those would be obstructed.
Sadly, 'common sense' and consideration for others can be as absent in boaters as in the navigation authority's departmental officers.