Teifi Access - The Police View

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callwild
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Teifi Access - The Police View

Post by callwild » Mon Oct 10, 2011 2:50 pm

In several access issues the letter from the Welsh police regarding criminal action against paddlers is often referenced and linked to.
I thought it may be useful to put the text up on this site for easier reference.
There are some very useful sections which actually spell out many of our own views regarding use of water flowing over private land and how the riprarian owners have no ownership of the water OR control the use of that water.
Heddlu Dyfed-Powys Police
Yn diogelu ein cymuned ~ Safeguarding our community
Gorsaf yr Heddlu, Pencader Sir Caerfyrddin, SA39 9HA
• Ffon/Tel.: 0845 330 2000 -
Pencader . Ffacs/Fax : 01559 384589
Pencader Police Station, Pencader, http://www.dyfed-powys.police.uk Carmarthenshire SA39 9HA

£ic/ic)././Yourref:N/A Go/ynntvch am:/Please ask tor: PC 561JONES
Ein cyf. /Our ref: TEIFI TROUT ASSOCIATION / LLANDYSUL PADDLERS.
04™ March 2009


BUDDSODDWYR MEWN POBL
INVESTORS IN PEOPLE

Dear Mr Bryant,
I write in an effort to clarify the Police position in relation to a dispute between the Teifi Trout Association and the Llandysul Paddlers. This dispute appears to Surround the usage of the river Teifi and adjoining land. Due to the complexity of this case I have sought advice and guidance from our Legal Services Department.
I will firstly comment on the usage of the river itself. The facts of this matter appear to be that the Teifi Trout Association own land alongside certain parts of the River Teifi and in addition they also appear to enjoy certain fishing rights that have been granted. The Llandysul Paddlers organise various events which involve passing through these sections of the river. In the past, the Llandysul Paddlers have sought consent from the Trout Association to pass through these sections of the river and it now appears as though they wish to introduce charge(s) for the continued use of the river by the Paddlers in this way. It is on this basis that the Teifi Trout Association maintains that should such an event take place in the future when no payment has been made by the Paddlers then they would consider that a criminal offence has taken place contrary to Section 11 of the Fraud Act 2006. This section provides as follows: -
Obtaining services dishonestly
(1) A person is guilty of an offence under this section if he obtains services for himself or another—
(a) by a dishonest act, and
(b) in breach of subsection (2).
(2) A person obtains services in breach of this subsection if—
(a) they are made available on the basis that payment has been, is being or will be made for or in respect of
them,
(b) he obtains them without any payment having been made for or in respect of them or without payment
having been made in full, and
(c) when he obtains them, he knows—
(i) that they are being made available on the basis described in paragraph (a), or (ii) that they might be, but intends mat payment will not be made, or will not be made in full.


Wates/tymra
, ,0800355111
' 1 «M*iiiMnM**MMbii»»ia«

Mr. Ian Arundale.- Prif Gwnstabl / Chief Constable
Mae Heddlu Dyfed-Powys yn croesawu gohebiaelh yny Gymraeg neu > Saesneg. Dyfed-Powys Police welcomes correspondence in either Welsh or English. 1
My first observation would be to question what service, if any, is being provided in a situation where the Paddlers are merely passing along the water course without more. They are not, for instance, looking to obtain fish from the river in the way that anglers would through the paying of a permit fee. I also doubt very much whether such action would be regarded as dishonest in the circumstances that are anticipated.
In any event, I cannot see that the Teifi Trout Association can make passage along the relevant sections of the river subject to a requirement that a fee is to be paid. I have caused some research to be carried out in relation to interests in water and rights in flowing water at common law. The position is that although certain rights as regards flowing water are incident to the ownership of riparian property (that is, land abutting the water) the water itself, whether flowing in a known and defined channel or percolating through the soil, is not, at common law, the subject of property or capable of being granted to anybody. Flowing or running water is therefore considered as public or common.
The Teifi Trout Association advises that they own certain parts of the river bed. By presumption of law and in the absence of any evidence to the contrary, the ownership of the bed of a non tidal river or stream belongs in equal halves to the owners of the riparian land. This presumption that the riparian owners, own the bed of the river as far as the centre line of the stream applies whether the land is freehold or leasehold and whether the river is navigable or non navigable. Ownership of the whole bed of the river will be presumed from ownership of the land on both sides unless it is a tidal river. Whilst, therefore, the Teifi Trout Association can own complete sections of the river bed, this is separate and distinct from the water that passes above it and any use that is made of it.'
It would appear that the Teifi Trout Association are trying to allege that criminal conduct exists within the context of a dispute which on a closer analysis is really a civil matter between the Trout Association and the Llandysul Paddlers. Obviously, if such dispute were to give rise to situations of public disorder and breach of the peace, as they appear to have done in the past, then we would look to attend and police this in the usual way through adopting our powers within this field.
Secondly 1 will comment on the use of Teifi Trout Association owned or controlled land for entry and egress onto the river Teifi.
I would agree that should members of the Llandysul Paddlers pass along land owned by the Teifi Trout Association, in order to gain access/egress from the river and in the clear knowledge that a fee should be paid and has not been paid, then potentially an offence could be made out contrary to Section 11 of the Fraud Act 2006. In stating this, I am assuming that there are no public rights of way on the land and no rights of recreation pursuant to established custom in favour of the Paddlers.
Section 11 of the Fraud Act states that this section would also cover a situation where a person climbs over a wall and watches a football match without paying the entrance fee. Such a person is obtaining a service which is provided on the basis that people will pay for it. This scenario is not too dissimilar to that with which we are dealing in this case.
Notwithstanding the above the Crown Prosecution Service will have to consider the evidence presented before them ^ and also satisfy themselves that it is in the public interest to prosecute any offence(s) disclosed in these
circumstances. However, that is a decision for the CPS to take following investigation and placement of an evidence file before them by the Police.
To summarise, the Police will not be investigating any allegations of fraud relating to the usage of the river by canoeists but will investigate complaints relating to crossing land owned or controlled by Teifi Trout Association. This will not necessarily mean that a prosecution will follow as that decision will rest initially with supervisors and then if there is sufficient evidence with the CPS.
I will also be conferring with Mr Gareth Bryant at the Llandysul Paddlers to clarify the Police position within this dispute and advising him accordingly.
I hope this clarifies our position and provides you with the necessary information as to what to expect from the Police if called to deal with a reported incident relating to the use of the river Teifi and adjoining land..
Yours faithfully,

Rhydian Jones PC 561, Neighbourhood Officer, North Teifi Ward.
reference ; Copied from here
http://213.253.178.196/cy/bus-home/bus- ... e_club.pdf

An important statement in this letter which is worth highlighting and sent possibly to the BCU/CE access is this

I have caused some research to be carried out in relation to interests in water and rights in flowing water at common law. The position is that although certain rights as regards flowing water are incident to the ownership of riparian property (that is, land abutting the water) the water itself, whether flowing in a known and defined channel or percolating through the soil, is not, at common law, the subject of property or capable of being granted to anybody. Flowing or running water is therefore considered as public or common.


That is the conclusion of one section of the Police force after conducting research!!
Says it all as far as I'm concerned.

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Mike Mayberry
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Re: Teifi Access - The Police View

Post by Mike Mayberry » Mon Oct 10, 2011 3:43 pm

callwild wrote:
Heddlu Dyfed-Powys Police

04™ March 2009
This was sent two and a half years ago but is only now coming into the public domain, that concerns me!


callwild wrote:
I have caused some research to be carried out in relation to interests in water and rights in flowing water at common law. The position is that although certain rights as regards flowing water are incident to the ownership of riparian property (that is, land abutting the water) the water itself, whether flowing in a known and defined channel or percolating through the soil, is not, at common law, the subject of property or capable of being granted to anybody. Flowing or running water is therefore considered as public or common.


That is the conclusion of one section of the Police force after conducting research!!
Says it all as far as I'm concerned.
Completely agree. :)

mcneilljamie
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Re: Teifi Access - The Police View

Post by mcneilljamie » Tue Oct 11, 2011 8:43 pm

Hmmm a national police consensus (in Wales at least) would certainly throw a rather large spanner into the works of certain interest parties. I'm sure that the WCA will act upon this!

kayakingcallum
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Re: Teifi Access - The Police View

Post by kayakingcallum » Tue Oct 11, 2011 8:53 pm

mcneilljamie wrote:Hmmm a national police consensus (in Wales at least) would certainly throw a rather large spanner into the works of certain interest parties. I'm sure that the WCA will act upon this!
haha i really hope this is sarcasm .have u seen the date of the report ? ;-)

mcneilljamie
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Re: Teifi Access - The Police View

Post by mcneilljamie » Tue Oct 11, 2011 9:02 pm

kayakingcallum wrote:
mcneilljamie wrote:Hmmm a national police consensus (in Wales at least) would certainly throw a rather large spanner into the works of certain interest parties. I'm sure that the WCA will act upon this!
haha I really hope this is sarcasm .have u seen the date of the report ? ;-)
PMA PMA PMA - Positive Mental Attitude - Come on!

kayakingcallum
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Re: Teifi Access - The Police View

Post by kayakingcallum » Tue Oct 11, 2011 10:36 pm

mcneilljamie wrote:
kayakingcallum wrote:
mcneilljamie wrote:Hmmm a national police consensus (in Wales at least) would certainly throw a rather large spanner into the works of certain interest parties. I'm sure that the WCA will act upon this!
haha I really hope this is sarcasm .have u seen the date of the report ? ;-)
PMA PMA PMA - Positive Mental Attitude - Come on!
hahaha by the way 'canoe wales' 'dont like' being called the 'wca' anymore ;-)

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Mark R
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Re: Teifi Access - The Police View

Post by Mark R » Thu Oct 13, 2011 5:29 pm

Over on Facebook, I've just asked whether Canoe England and the Environment Agency accept this legal opinion.

Here's a shorter link to the letter, if this is of any use to anyone.

http://seakayaksouthwest.files.wordpres ... access.pdf

I hope to also ask Dartmoor and Exmoor National Parks to comment upon it, in due course.

Circulate this one, it needs to be read as widely as possible.

‎'Flowing or running water is therefore be considered as public or common' - I want this on a t-shirt - seriously.
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chrism
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Re: Teifi Access - The Police View

Post by chrism » Thu Oct 13, 2011 11:06 pm

Interesting to note that this thread is being referenced over on the anglers afloat forum (on the Hampshire Avon / Angling Trust thread!)
http://anglersafloat.proboards.com/inde ... e=4#241582

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Big Henry
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Re: Teifi Access - The Police View

Post by Big Henry » Fri Oct 14, 2011 12:51 am

chrism wrote:Interesting to note that this thread is being referenced over on the anglers afloat forum (on the Hampshire Avon / Angling Trust thread!)
http://anglersafloat.proboards.com/inde ... e=4#241582
Can you copy and paste, it's saying I'd have to create an account with them to view it otherwise.

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Re: Teifi Access - The Police View

Post by chrism » Fri Oct 14, 2011 1:42 am

Dead easy to create an account - I'll paraphrase as I don't want to be accused of copying something I'm not supposed to - basically the post says this thread is an interesting read regarding access and the views of the police - a direct link to the police letter is also given. In the reply below, the poster suggests he carries a copy with him in his boat!

That thread is actually broadly supportive of paddler's right of access on the Avon (now the inflammatory stuff has been removed) - probably shouldn't be surprised as the kayak anglers do have similar interests to us in terms of access to water, and those who've posted on here always seem very reasonable chaps. I'm guessing quite a few contributors to that thread are also members here!
Last edited by chrism on Fri Oct 14, 2011 1:45 am, edited 1 time in total.

snakey1
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Re: Teifi Access - The Police View

Post by snakey1 » Fri Oct 14, 2011 1:44 am

Here is the post in question in full.

An Interesting read on this thread on the UKRGB forum regarding access and the view given by the police(N.B this is not about the Avon but the Teifi in Wales but it makes interesting reading never the less)
http://www.ukriversguidebook.co.uk/foru ... =3&t=82872

If you can't be bothered to read the thread (It is short and the interesting part in question is the first post) here is a link to a pdf of the letter itself (once again please note this is not with regards to the Avon, as this has a right of navigation already, but to the Teifi in Wales)
http://seakayaksouthwest.files.wordpres ... access.pdf

As I posted it on the AA forum I have no problem with reproducing it here

chrism
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Re: Teifi Access - The Police View

Post by chrism » Fri Oct 14, 2011 1:47 am

chrism wrote:I'm guessing quite a few contributors to that thread are also members here!
Well that was clearly a good guess ;)

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Mark R
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Re: Teifi Access - The Police View

Post by Mark R » Wed Oct 19, 2011 5:46 pm

Canoe England aren't endorsing or promoting it...

http://www.facebook.com/#!/canoeengland ... ed_comment
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DaveB
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Re: Teifi Access - The Police View

Post by DaveB » Wed Oct 19, 2011 7:03 pm

But as so often the letter from the police is being over enthusiastically interpreted. It confirms that in the opinion of dyfed-Powys police and the CPS paddling on rivers is not of itself a crime. That is very helpful and makes the letter well worth laminating and carrying in the boat. That flowing water is regarded as public or common is well settled law; however this does not mean that there is an automatic right to navigate on such water. Unless Caffyn is right and a general right of navigation exists or parliament enacts a general right to roam on water then outside the handfull of rivers which are public navigations paddling is still a civil wrong (trespass) when the owner of the river bed does not give permission for us to be there.

chrism
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Re: Teifi Access - The Police View

Post by chrism » Wed Oct 19, 2011 11:27 pm

DaveB wrote:But as so often the letter from the police is being over enthusiastically interpreted.
But you're interpreting it under enthusiastically. The relevant passage is:
"Whilst, therefore, the Teifi Trout Association can own complete sections of the river bed, this is separate and distinct from the water that passes above it and any use that is made of it"
with the important and original bit being the very last phrase - if owning the bed doesn't confer rights on the usage of the water, then any rights on usage of said water can only be owned by whoever owns the water.

waterbourne
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Re: Teifi Access - The Police View

Post by waterbourne » Thu Oct 20, 2011 1:44 am

The thing is, this is Pc plods own subjective opinion on the matter and nothing else. You could ask 10 Pc Plods and you may well get a different slant on it from each. Its what the courts decide that is your definitive answer... or maybe CPS before it gets to court.

This letter is not the letter of the law. Not by any means. It is one individual out of 130,000 trying to give his opinion on what is a very grey area. Thats why only a court might end up having to decide.

Look at what happened to the guy who was arrested at Jj's in Llangollen. It went to CPS for a decision and they decided it was not in the public interest to prosecute. The police officer who made that arrest felt there was a case to answer but CPS did not. If you had a letter from that particular officer, it may well have been totally different to the one on this thread?

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Re: Teifi Access - The Police View

Post by DaveBland » Thu Oct 20, 2011 4:46 am

waterbourne wrote:The thing is, this is Pc plods own subjective opinion on the matter and nothing else. You could ask 10 Pc Plods and you may well get a different slant on it from each... It is one individual out of 130,000 trying to give his opinion on what is a very grey area...
Not sure about that. The letter clearly says "I have sought advice and guidance from our Legal Services " which would mean that it's the guidance given to that particular force from their in-house lawyers. You are correct that ultimately the courts will decide, and also a different force could take a different view.

Where this letter is very useful though, is to have a copy with you on the day, if plod is called. Chances are the local plod will have less knowledge than the letter provides – and it certainly would do your case no harm, at least to prove that you were not willfully trespassing and that you genuinely believe you have a right to paddle.

The reality is that the particular stations that are near the dispute hotspots will be pissed off with the constant whinging from the anglers/land owners and also with paddlers. I'm sure they have better things to do. I would approach the local stations with the content of this letter and ask them for their view on it. Even though the forces operate independently, I think they would be grateful for the guidance and it would spur them to at least check it with their own legal services departments. Ultimately, the advice seems very fair and reasonable. No you can't go tramping over someone's private land. Yes you can peacefully float down the water.

I would be asking the original PC for a written copy on letterheaded paper. A copy of this passed around would have way more clout on the riverbank that an email printed out that is harder to follow.
dave

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Adrian Cooper
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Re: Teifi Access - The Police View

Post by Adrian Cooper » Thu Oct 20, 2011 9:33 am

Dave, it's not an email which has been circulated, it is a letter on headed paper. Callwild has transcribed it for ease of consumption.

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Re: Teifi Access - The Police View

Post by Keith Day » Thu Oct 20, 2011 10:15 am

There is no certainty about the law, ever!! But it's one more step.

What starts off as a difference of opinion, moves on to a dispute where each party takes a little bit of legal advice (not too much because it's expensive), then you have a difference of opinion about the legal advice, then the parties consider a civil case to test their legal advice, but decide against it because it's expensive and they might loose. Then they try to find a criminal law that means that the cost of the prosecution is paid for from the public purse - aggravated trespass? - No. Fraud?- No (That's where this letter is!) Next its- being beastly to innocent fish while they are breeding - Watch this space next month! ........... and so on.

They put up the arguments and we must knock them down. If it ever gets to a court case a decision will be made .... and then maybe appealed and whatever the outcome someone will be even more creative and find another more creative argument to deploy maybe even involving criticism of the colours of of "garish craft". In the meantime the opinions of the ordinary, reasonable anglers, canoeists and the public will slowly shift to the point where common sense dictates a sensible consensus. And then parliament will legislate for it.

And then the disgruntled minority will feel aggrieved and start to lobby their MPs or to look for other things to focus their sense of grievance on and the whole process will start again hopefully on another subject so that we can get on with paddling and fishing in peace.

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