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NBTA Challenge a Licence Refusal


Alan de Enfield

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Just now, Alan de Enfield said:

Have you got a very big tank, or is it a remarkably slow tap ?

Both, but when filling the tank, which take several hours, sometimes the lady who does the cleaning in the picture house (Hebden has a superb "period" picture house) comes out and asks to turn the tap off so that she can have some water in her tap.

There is also a pump out machine but no mains so it has a big genny and associated big diesel tank that starts up and runs for an hour or two each day to keep the batteries charged. Never seen it used as a little boat yard is just inches away and does a better job for a bit less money., The local petrol station sold had a red diesel pump but sadly closed for good at Christmas.

 

Enjoying the Thames and the Kennet but missing the nicely eccentric North.

 

...............Dave

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3 minutes ago, Alan de Enfield said:

That's an improvement on 10 months.

Where is the ten month tap? that sounds like a continuous mooring tap to me.

I do suspect that if we had the washing machine on and all took a good long shower twice a day then the Hebden tap might be never ending.

 

................Dave

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13 hours ago, NigelMoore said:

I think the main point in this instance - which the NBTA should be arguing if they have not – is that CaRT ARE legally obligated, in the circumstances of the initial reason for revoking the licence, to refrain from unreasonably withholding consent to the movement or use of the vessel subject to such reasonable conditions as they may determine.

 

From the information cited by Alan (if that is correct), instead of allowing use of the vessel subject to reasonable conditions relating to the safety issues, they abandoned that line and relied instead on a 3 year old injunction - subsequent to which, they had re-licensed the vessel (presumably because modifications to it had then permitted it to navigate through the pinch points which it had previously been unable to do). The validity of such reliance is effectively what the NBTA appear to be questioning. Does an injunction continue to operate regardless of later compliance with the statutory conditions as accepted by CaRT?

 

If it does, then once such an Order has been obtained any vessel could be removed at whim regardless of compliance with licence conditions ever after.

 

8 hours ago, NigelMoore said:

 – while CaRT are not entitled to refuse a licence application from anyone just because they have previously been the subject of enforcement – and from the information quoted here that is exactly what they have done 

I think the safety issues and the court order are red herrings - this is a simple case of refusing to renew due to non-compliance with the CCing requirements.

 

8 hours ago, NigelMoore said:

I think you are wrong, although obviously CaRT hold that view. The 2017 Order and injunction related to a previous incarnation of the boat, in different ownership. Since that Order the boat was apparently burnt out, and subsequently rebuilt to dimensions allowing it to comply with a more extensive cruising range, and on that basis CaRT re-licensed the vessel, albeit under a new name and owner. Having accepted the rebuilt vessel and issued a fresh licence, it is stretching thngs very far indeed to rely upon that 2017 Order.

I am not sure that CRT "accepted" the rebuilt vessel; simply that their systems don't necessarily associate a request for a new licence with a possible request for a (re-)licensing of an existing boat. Its not like it has a unique VIN; or there is the infrastructure eg with VICs on Cat-C or Cat-D cars etc etc. In fact its possible the reregistration of the boat is fraudulent, if it plays a part in trying to evade or frustrate existing ongoing enforcement etc. Similar with the reregistration in his daughter's name (or others').

 

If it comes to court, then CRT may well pursue the action regarding fraudulent reregistration, which could lead the way to the court order's non-compliance being pursued too (but see above - they don't need to, if its already not able to be re-licensed due to non-compliant CCing movement anyway). I'm not an expert but wouldn't non-compliance with a court order be contempt of court? (he would need to apply to vary the court order, once the safety items which led to its issuing were addressed). And if the fraud avenue were successfully pursued, that's 10 years?

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It could look fraudulent and an attempt to dodge issues, but CaRT were at all times aware of its history and professed themselves willing to continue the licence if he found a home mooring. So that tack would not work.

 

Yes, failure to comply with a court order is contempt of court, punishable, as all the BW/CaRT s.8 Orders make plain, with imprisonment. Usually the party in whose interest the order was made would have to apply to the court to have them declared in contempt.

 

I know of one boater BW had sent to Wormwood Scrubs for 6 months for contempt, though I think the basis there was failure to comply with some court process, even though due to having to juggle with the conditions of parallel proceedings. He got out in 3 months after employing a barrister to grovel before the judge and “purge his contempt”.

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1 hour ago, NigelMoore said:

It could look fraudulent and an attempt to dodge issues, but CaRT were at all times aware of its history and professed themselves willing to continue the licence if he found a home mooring. So that tack would not work.

 

Yes, failure to comply with a court order is contempt of court, punishable, as all the BW/CaRT s.8 Orders make plain, with imprisonment. Usually the party in whose interest the order was made would have to apply to the court to have them declared in contempt.

 

I know of one boater BW had sent to Wormwood Scrubs for 6 months for contempt, though I think the basis there was failure to comply with some court process, even though due to having to juggle with the conditions of parallel proceedings. He got out in 3 months after employing a barrister to grovel before the judge and “purge his contempt”.

That’s a bit unfair,  BW can not send anyone to prison, but piss off a court and it will not end well.  

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17 hours ago, NigelMoore said:

I think you are wrong, although obviously CaRT hold that view. The 2017 Order and injunction related to a previous incarnation of the boat, in different ownership. Since that Order the boat was apparently burnt out, and subsequently rebuilt to dimensions allowing it to comply with a more extensive cruising range, and on that basis CaRT re-licensed the vessel, albeit under a new name and owner. Having accepted the rebuilt vessel and issued a fresh licence, it is stretching thngs very far indeed to rely upon that 2017 Order.

So, having been ordered to remove the vessel, he brought it back with a new name, and a change of ownership that doesn't reflect any change in who is using the boat.

 

That does rather look like a deliberate attempt to return the vessel to the canal in defiance of the order by stealth. I don't think that he can rely on the issue of a licence based on deception for anything.

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Of course, a criminal conviction would need to be secured on a higher threshold - beyond reasonable doubt (vs balance of probabilities) anyway. I don't think CRT would pursue that avenue either. In essence, there's 3 prongs here: 1) Possibly fraudulent reregistering a vessel 2) contempt of court re: court order (but if the vessel is deemed not to be the same one, due to its reregistration.....) 3) "plain old" non-compliance with CCing movement rules.

 

Since the first two are criminal I don't think CRT would bother with trying to secure a prosecution. They don't actually need to anyway, the third issue is pretty rock solid, and has pretty much the same effect - Andrei currently doesn't have a boat (in CRT waters).

 

Of course, if NBTA were to poke the hornet's nest......

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1 hour ago, Chewbacka said:

 BW can not send anyone to prison 

Are you sure? What is preventing CRT from bringing a (private) prosecution against anyone? AIUI anyone (or any body) can bring a private prosecution, whether it succeeds etc is another matter. And of course, the actual body responsible for the physically sending of someone to prison are HMP or their agents, once a court has sentenced upon a guilty verdict etc.

 

RSPCA and EA do it all the time.

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1 hour ago, Chewbacka said:

That’s a bit unfair,  BW can not send anyone to prison, but piss off a court and it will not end well.  

What is unfair? I did not say BW sent him to prison, I said they HAD him sent to prison. The court judge sends him down, as a result of an application to find him in contempt. Of course a judge can imprison anyone for contempt without an application if they feel that is appropriate, without intervention.

 

Even with a finding of contempt the judge need not send him to prison and could instead fine him – I think, though I have not looked into that. But in the end, anybody who has brought a case against somebody resulting in a court order that is then not complied with, and who then apply for a finding of contempt, are ultimately the party that has had that other party sent to prison (should that be the decision of the judge).

 

Even if the aggrieved party do not apply for a contempt order, and a judge sends the other to prison for matters arising from the action, the party that brought the initial action can be said to have taken action that resulted in the other party being sent to prison. And if they deserved that, why is that unfair anyway?

53 minutes ago, mayalld said:

So, having been ordered to remove the vessel, he brought it back with a new name, and a change of ownership that doesn't reflect any change in who is using the boat.

 

That does rather look like a deliberate attempt to return the vessel to the canal in defiance of the order by stealth. I don't think that he can rely on the issue of a licence based on deception for anything.

If there was in fact deception, I agree. I can't see it myself; perhaps some questionable ducking and diving within the rules . . .

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20 minutes ago, Paul C said:

Are you sure? What is preventing CRT from bringing a (private) prosecution against anyone? AIUI anyone (or any body) can bring a private prosecution, whether it succeeds etc is another matter. And of course, the actual body responsible for the physically sending of someone to prison are HMP or their agents, once a court has sentenced upon a guilty verdict etc.

 

RSPCA and EA do it all the time.

Quite. CaRT never have brought a private prosecution for breach of the byelaw demanding that a boat be licensed, but it is the standard response for other navigation authorities. It has always been my view that such a process is actually more proportionate than actioning s.8.

 

Courts never have, to my knowledge anyway, sent anyone to prison for not having a licence, but they certainly fine them. A fine is the only penalty set out in the BW byelaws, so prison would only ensue if found in contempt of the order to pay that.

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33 minutes ago, Paul C said:

Are you sure? What is preventing CRT from bringing a (private) prosecution against anyone? AIUI anyone (or any body) can bring a private prosecution, whether it succeeds etc is another matter. And of course, the actual body responsible for the physically sending of someone to prison are HMP or their agents, once a court has sentenced upon a guilty verdict etc.

 

RSPCA and EA do it all the time.

Yes they can, but it is the judge that decides if prison is or is not appropriate.  In theory- my understanding- is that if even if the plaintiff simply wanted a fine to punish non-compliance with a court order, the judge may consider the contempt of the court to be sufficiently serious that a prison sentence is required.

Just now, Arthur Marshall said:

Deception is debatable if part of the storyis true. If a boat is burnt out, but the hull is sound, someone buys the hull and builds a new superstructure on it, is it the same boat or a different one?

Triggers broom comes to mind.

 

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4 minutes ago, Chewbacka said:

Yes they can, but it is the judge that decides if prison is or is not appropriate.  In theory- my understanding- is that if even if the plaintiff simply wanted a fine to punish non-compliance with a court order, the judge may consider the contempt of the court to be sufficiently serious that a prison sentence is required.

 

 

Yes, you're right, judge determines sentencing upon a guilty plea (or verdict). The available criminal sentences are:

 

Discharge (absolute/conditional)

Fine and compensation

Community sentence, ie unpaid community work of x hours

Suspended prison sentence (ie in addition to a community sentence, the breaking of which would result in going to prison)

Actual prison sentence

 

 

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27 minutes ago, NigelMoore said:

If there was in fact deception, I agree. I can't see it myself; perhaps some questionable ducking and diving within the rules . . .

If we accept the story that the NBTA are telling us, it is hard to see otherwise.

 

CRT obtained a court order against Andrzej Szymanski in 2017. NBTA say that Andrzej Szymanski has had his boat seized, yet it appears that the boat has been licenced on the basis that somebody else owns it.

 

CRT have limited grounds upon which they might refuse a licence, one of which is that they are "not satisfied" that the boat will be used bona fide for navigation.

 

Clearly, this requires them to consider the probability of a boat being so used or not, and whether there is a prior history on non-compliance is a valid input to forming a view on that point.

 

Representing that this is a different boat with a different owner so as to avoid that history being taken into account cannot be other than deception.

 

It isn't just a change of name (from Tynesider to Solaris). This has been represented as being a different boat, and has been allocated a new registration number (525309 rather than 524113), and a different owner, who appears not to actually have any interest in the boat.

 

The question is "Would CRT have issued a licence if it was represented that Andrzej Szymanski wished to licence 524113 Tynesider on the basis of having no home mooring?" If the answer is "no", then this is deception.

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6 hours ago, Paul C said:

Are you sure? What is preventing CRT from bringing a (private) prosecution against anyone? AIUI anyone (or any body) can bring a private prosecution, whether it succeeds etc is another matter. And of course, the actual body responsible for the physically sending of someone to prison are HMP or their agents, once a court has sentenced upon a guilty verdict etc.

 

RSPCA and EA do it all the time.

I may be wrong but I thought an individual had to apply to a court for permission to bring a private prosecution - avoids vexatious and trivial cases, not in the public interest (as test that is applied by the prosecution service..

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On 01/08/2019 at 18:17, Mike Todd said:

I may be wrong but I thought an individual had to apply to a court for permission to bring a private prosecution - avoids vexatious and trivial cases, not in the public interest (as test that is applied by the prosecution service..

Not technically true. Any individual may lay an information at the Magistrates Court with an application for a summons, without having to ask permission – the right to do so is enshrined in law.

 

In practice, once that step has been taken, a District Judge may or may not choose to ask the would-be prosecutor to attend a hearing, in order to satisfy the court that issuing a summons is indeed justified because there is a clear case to answer.

 

Of course, if a summons is issued without that preliminary enquiry, the prosecutor will need to have demonstrably good grounds for his action when it comes to to a hearing, because any abuse of process could prove an expensive mistake. Even when a judge has agreed to issue a summons because they believe there is a case to answer, there can be costly fall-out if higher judges disagree - witness the Boris Johnson example. On the other hand, if no abuse of process is found, the private prosecutor can ask for his reasonable costs to be paid out of central funds even if the prosecution fails and the defendant is acquitted.

 

The Supreme Court justices are interestingly split on the value & desirability of the continued right of individuals to bring prosecutions, but Parliament has been too explicit in preserving the right for judges to do anything to circumvent it; they can only be extra critical as to compliance with the “full code test” - even though that does not apply to private prosecutions, it has been used to cast doubt on the validity of charges when the judges want to.

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