On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal" 
wrote:

>
>"Alan Jones"  wrote in message news:gadp05$p36$1@aioe.org...
>> none@snotmail.com wrote:
>>>  I
>>> maintain it is lawful to break down any unlawful gate across a RoW but
>>> I was never asked that question.
>>
>> No it is not! Neither is it lawful to shoot burglars
>> in the back.
>>
>
>You sound very sure, but cite no law.  I think the OP was abating a 
>nuisance.  I think it is certainly arguable that if a public right of way is 
>obstructed by a fence or gate, such that in law it would have been possible 
>to get an injunction requiring the removal of the obstacle, any person who 
>wishes to use the land would be entitled to abate the nuisance by removing 
>all or part of the obstruction (within reason, and providing the action did 
>not cause a risk to health and safety).  It is certainly well established 
>that if a neighbour's branch is hanging over your land, you are entitled to 
>cut it off, though must ensure you give it back to your neighbour.
>
>Here's a case which might conceivably be relevant.
>
>Cunningham v MacGrath Bros
>The defendants' workmen left ladders against a wall in such a position that 
>they partially obstructed a public footpath. During the absence of the 
>workmen some person or persons unknown removed them to an adjoining lane but 
>left them in an unsafe position. The plaintiff was injured when one of the 
>ladders fell as she was passing along the lane.
>Held, that a person responsible for creating a nuisance should anticipate as 
>a reasonable and probable consequence that some person in pursuance of his 
>rights would attempt to abate the nuisance and in so doing would create a 
>danger and accordingly that the plaintiff was entitled to damages.
>Judgment date: January 1, 1963
>
>and another
>
>LE Walwin & Partners Ltd v West Sussex CC
>Where a judgment in rem has been laid down as to the status of a highway, an 
>estoppel will operate against those seeking to denigrate from it. In 1958 
>quarter-sessions gave a judgment in rem as to the status of a bridleway. P 
>owned the subservient tenement. The bridleway had a gate across it, 
>preventing vehicular access, placed there in 1967 by the local authority 
>under statutory authority as a coast protection measure. D took steps to 
>remove the gate because it was obstructing the highway. P took proceedings 
>contending (a) that the dedication of the highway had been subject to P's 
>right to erect a gate thereon, and (b) the obstruction was a lawful 
>obstruction, having been placed there by statutory authority.
>Held, dismissing P's claim, that (1) P was estopped from claiming a 
>conditional grant by reason of the fact that the matter had not been raised 
>in the previous proceedings, and (2) there was nothing in the Act under 
>which the local authority had been operating to allow them to obstruct a 
>highway. (Henderson v Henderson [1843-60] All E.R. Rep. 378 referred to, R. 
>v. Secretary of State for the Environment Ex p. Hoodreferred to and Yat Tung 
>Investment Co. v. Dao Heng Bankreferred to).
>Court: (Ch D) Chancery Division
>Judge: Plowman, V.C.
>Judgment date: July 31, 1975
>
>As to whether it might be lawful to shoot burglars in the back, I think it 
>might well be lawful in some circumstances.  A burglar who has threatened 
>you with bodily harm, then turns his back on you so that he can reach for 
>his gun, might deserve to be shot. 

I do not understand the legalese Todal but I appreciate the cites
which I can now search out and try to understand. My legal folks have
advised me not to appeal as I got off rather lightly. I shall appeal
as my reasons for breaking down the gate was not to get a light
sentence but purely because I believe I am right. The gate across the
road is a public nuisance and I abated that nuisance. I am not a
lawyer and I maybe wrong and if I am then I deserve to be penalised.
pete

none@snotmail.com wrote:

> I do not understand the legalese Todal but I appreciate the cites
> which I can now search out and try to understand. My legal folks have
> advised me not to appeal as I got off rather lightly.

Presumably, there is a risk that your sentence could be increased 
significantly on appeal?

On Sat, 13 Sep 2008 16:30:10 +0100, "GB" 
wrote:

>none@snotmail.com wrote:
>
>> I do not understand the legalese Todal but I appreciate the cites
>> which I can now search out and try to understand. My legal folks have
>> advised me not to appeal as I got off rather lightly.
>
>Presumably, there is a risk that your sentence could be increased 
>significantly on appeal?

There was a risk when I first broke the gate open. I understood the
risk and accepted it as the price of achieving my aim of having the
RoW re-opened. 
pete

none@snotmail.com wrote:
> On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal" 
>
> I do not understand the legalese Todal but I appreciate the cites
> which I can now search out and try to understand. My legal folks have
> advised me not to appeal as I got off rather lightly. I shall appeal
> as my reasons for breaking down the gate was not to get a light
> sentence but purely because I believe I am right. The gate across the
> road is a public nuisance and I abated that nuisance. I am not a
> lawyer and I maybe wrong and if I am then I deserve to be penalised.
> pete

I don't think your action would be legal merely because you *believed* that 
the obstruction was illegal. That would be an appalling vista situation :)

If the judge does not feel able to rule that it was an illegal obstruction, 
I suppose he must find you guilty.

"The Todal"  wrote in message 
news:6j2vusF17phaU1@mid.individual.net...
> none@snotmail.com wrote:
>> On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal" 
>>
>> I do not understand the legalese Todal but I appreciate the cites
>> which I can now search out and try to understand. My legal folks have
>> advised me not to appeal as I got off rather lightly. I shall appeal
>> as my reasons for breaking down the gate was not to get a light
>> sentence but purely because I believe I am right. The gate across the
>> road is a public nuisance and I abated that nuisance. I am not a
>> lawyer and I maybe wrong and if I am then I deserve to be penalised.
>> pete
>
> I don't think your action would be legal merely because you *believed* 
> that
> the obstruction was illegal. That would be an appalling vista situation :)
>
> If the judge does not feel able to rule that it was an illegal 
> obstruction,
> I suppose he must find you guilty.

I've changed my mind about that, in view of Janitor's posting (Chamberlain v 
Lindon).

On Mon, 15 Sep 2008 11:00:27 +0100, "The Todal" 
wrote:

>
>"The Todal"  wrote in message 
>news:6j2vusF17phaU1@mid.individual.net...
>> none@snotmail.com wrote:
>>> On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal" 
>>>
>>> I do not understand the legalese Todal but I appreciate the cites
>>> which I can now search out and try to understand. My legal folks have
>>> advised me not to appeal as I got off rather lightly. I shall appeal
>>> as my reasons for breaking down the gate was not to get a light
>>> sentence but purely because I believe I am right. The gate across the
>>> road is a public nuisance and I abated that nuisance. I am not a
>>> lawyer and I maybe wrong and if I am then I deserve to be penalised.
>>> pete
>>
>> I don't think your action would be legal merely because you *believed* 
>> that
>> the obstruction was illegal. That would be an appalling vista situation :)
>>
>> If the judge does not feel able to rule that it was an illegal 
>> obstruction,
>> I suppose he must find you guilty.
>
>I've changed my mind about that, in view of Janitor's posting (Chamberlain v 
>Lindon). 

> I think your case here is Chamberlain v Lindon
> http://www.bailii.org/ew/cases/EWHC/Admin/1998/329.html
> which strictly is about lawful excuse by damaging or destroying
> property to protect another property (the usual example given is of
> firemen breaking down a door to gain access to quell a house fire);
> but the above case specifically deals with protection of a private
> right of way and would be persuasive authority. It was said there
> that "in the criminal context the question is not whether the means
> of protection adopted by the respondent were objectively reasonable,
> having regard to all the circumstances, but whether the respondent
> believed them to be so, and by virtue of section 5(3) it is
> immaterial whether his belief was justified, provided it was honestly
> held".
> Had you argued that case before the DJ, he might well have reached a
> different conclusion. OTOH, he may not. Since you didn't, you can't
> ask him to state a case on that point, but a Crown Court appeal is a
> complete rehearing and you would be free to raise that decision
> there. Whether that would make any difference, I cannot tell, since I
> haven't seen all the evidence. That would be up to you. Of course, if
> you lose on appeal, the issue of costs would arise. The words
> "provided it was honestly held" are important here, and it may well
> be felt that you were being bloody-minded to prove a point. Your
> critics might agree with that; I am open minded.
> Regards. 

Thank you for that. I did tell my solicitor about that case but he
never used it. In fact he wasn't even in court at anytime during the
trial and the barrister handled everything herself. It is not a
satisfactory arrangement I know but with RoW laws it is difficult to
find a lawyer with a Legal Aid certificate for criminal work. I have
been advised by both my solicitor and barrister to go the statement of
case route but I have told my solicitor last night I wanted to go the
Crown Court route. I am always bloody minded when RoW are unlawfully
blocked and I make no secret of that but I don't have to go out
seeking something to attack as this situation is so common in Ipswich.
On this occasion I was aware I could be locked in but that wasn't the
reason I was there. Does it make any difference though?
pete

On Mon, 15 Sep 2008 11:00:27 +0100, "The Todal" 
wrote:

>
>"The Todal"  wrote in message 
>news:6j2vusF17phaU1@mid.individual.net...
>> none@snotmail.com wrote:
>>> On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal" 
>>>
>>> I do not understand the legalese Todal but I appreciate the cites
>>> which I can now search out and try to understand. My legal folks have
>>> advised me not to appeal as I got off rather lightly. I shall appeal
>>> as my reasons for breaking down the gate was not to get a light
>>> sentence but purely because I believe I am right. The gate across the
>>> road is a public nuisance and I abated that nuisance. I am not a
>>> lawyer and I maybe wrong and if I am then I deserve to be penalised.
>>> pete
>>
>> I don't think your action would be legal merely because you *believed* 
>> that
>> the obstruction was illegal. That would be an appalling vista situation :)
>>
>> If the judge does not feel able to rule that it was an illegal 
>> obstruction,
>> I suppose he must find you guilty.
>
>I've changed my mind about that, in view of Janitor's posting (Chamberlain v 
>Lindon). 

That was something I knew of at the time I broke the gate but it was
never used in court:-(
pete

none@snotmail.com wrote:
> On Mon, 15 Sep 2008 11:00:27 +0100, "The Todal" 
> wrote:
>
>>
>> "The Todal"  wrote in message
>> news:6j2vusF17phaU1@mid.individual.net...
>>> none@snotmail.com wrote:
>>>> On Fri, 12 Sep 2008 18:15:05 +0100, "The Todal"
>>>> 
>>>>
>>>> I do not understand the legalese Todal but I appreciate the cites
>>>> which I can now search out and try to understand. My legal folks
>>>> have advised me not to appeal as I got off rather lightly. I shall
>>>> appeal as my reasons for breaking down the gate was not to get a
>>>> light sentence but purely because I believe I am right. The gate
>>>> across the road is a public nuisance and I abated that nuisance. I
>>>> am not a lawyer and I maybe wrong and if I am then I deserve to be
>>>> penalised. pete
>>>
>>> I don't think your action would be legal merely because you
>>> *believed* that
>>> the obstruction was illegal. That would be an appalling vista
>>> situation :)
>>>
>>> If the judge does not feel able to rule that it was an illegal
>>> obstruction,
>>> I suppose he must find you guilty.
>>
>> I've changed my mind about that, in view of Janitor's posting
>> (Chamberlain v Lindon).
>
>> I think your case here is Chamberlain v Lindon
>> http://www.bailii.org/ew/cases/EWHC/Admin/1998/329.html
>> which strictly is about lawful excuse by damaging or destroying
>> property to protect another property (the usual example given is of
>> firemen breaking down a door to gain access to quell a house fire);
>> but the above case specifically deals with protection of a private
>> right of way and would be persuasive authority. It was said there
>> that "in the criminal context the question is not whether the means
>> of protection adopted by the respondent were objectively reasonable,
>> having regard to all the circumstances, but whether the respondent
>> believed them to be so, and by virtue of section 5(3) it is
>> immaterial whether his belief was justified, provided it was honestly
>> held".
>> Had you argued that case before the DJ, he might well have reached a
>> different conclusion. OTOH, he may not. Since you didn't, you can't
>> ask him to state a case on that point, but a Crown Court appeal is a
>> complete rehearing and you would be free to raise that decision
>> there. Whether that would make any difference, I cannot tell, since I
>> haven't seen all the evidence. That would be up to you. Of course, if
>> you lose on appeal, the issue of costs would arise. The words
>> "provided it was honestly held" are important here, and it may well
>> be felt that you were being bloody-minded to prove a point. Your
>> critics might agree with that; I am open minded.
>> Regards.
>
> Thank you for that. I did tell my solicitor about that case but he
> never used it. In fact he wasn't even in court at anytime during the
> trial and the barrister handled everything herself. It is not a
> satisfactory arrangement I know but with RoW laws it is difficult to
> find a lawyer with a Legal Aid certificate for criminal work. I have
> been advised by both my solicitor and barrister to go the statement of
> case route but I have told my solicitor last night I wanted to go the
> Crown Court route. I am always bloody minded when RoW are unlawfully
> blocked and I make no secret of that but I don't have to go out
> seeking something to attack as this situation is so common in Ipswich.
> On this occasion I was aware I could be locked in but that wasn't the
> reason I was there. Does it make any difference though?
> pete

Although Chamberlain v Lindon deals with a private right of way, that is 
less important than the principle about reasonableness of belief, and that, 
perhaps, is why your counsel ( having seen the evidence against you and your 
own statement), felt that arguing the point would not be successful. My 
argument defending you would have been that you feel strongly about 
enforcing this RoW, you were aware of this case, and strongly felt that you 
were entitled to take that course of action based on that, and although 
generally ignorance of the law is no defence, nevertheless on the facts, 
your belief was honestly held. Against you, of course, is your previous 
history in relation to the Ipswich Docks, and I have no knowledge as to 
whether that was brought to the DJ's attention. Your solicitor and counsel, 
you say, have advised "Statement of Case", but you also say that your 
Counsel did not deal with the issue in Chamberlain v Lindon, or honest 
belief at all. As I've said, without a transcript of the trial and the legal 
arguments advanced, if any, it is difficult to advise. However, none of this 
precludes an appeal to the Crown Court.

On Wed, 17 Sep 2008 23:40:09 +0100, "Janitor of Lunacy"
 wrote:

>Although Chamberlain v Lindon deals with a private right of way, that is 
>less important than the principle about reasonableness of belief, and that, 
>perhaps, is why your counsel ( having seen the evidence against you and your 
>own statement), felt that arguing the point would not be successful. My 
>argument defending you would have been that you feel strongly about 
>enforcing this RoW, you were aware of this case, and strongly felt that you 
>were entitled to take that course of action based on that, and although 
>generally ignorance of the law is no defence, nevertheless on the facts, 
>your belief was honestly held. Against you, of course, is your previous 
>history in relation to the Ipswich Docks, and I have no knowledge as to 
>whether that was brought to the DJ's attention. Your solicitor and counsel, 
>you say, have advised "Statement of Case", but you also say that your 
>Counsel did not deal with the issue in Chamberlain v Lindon, or honest 
>belief at all. As I've said, without a transcript of the trial and the legal 
>arguments advanced, if any, it is difficult to advise. However, none of this 
>precludes an appeal to the Crown Court. 

I have given the wrong impression. My barrister was very insistent I
was allowed to cause Criminal Damage because I honestly believed it
was a RoW. She demonstrated I had already attempted to get an
Injunction to stop the gate being closed. My defence is the RoW was
created by statutory instrument, The Ipswich Docks Acts and I was
abating a Public Nuisance. I also made the point it was also a RoW by
dedication and of course I was locked in and I was entitled to break
out. There is plenty of links on the RA site such as below which also
cites Chamberlain v Lindon which I had already read in the Ramblers
Hand Book http://www.ramblers.co.uk/rightsofwaybook/cases
pete
http://www.oss.org.uk

turtill@defmap.com wrote:
> I have given the wrong impression. My barrister was very insistent I
> was allowed to cause Criminal Damage because I honestly believed it
> was a RoW. She demonstrated I had already attempted to get an
> Injunction to stop the gate being closed. My defence is the RoW was
> created by statutory instrument, The Ipswich Docks Acts and I was
> abating a Public Nuisance.

Up to a point. The IDA would appear to be a private Act of Parliament rather 
than a Statutory Instrument, and whereas it is possible to challenge an SI 
on grounds of ultra vires, that does not apply to statutes in most cases.

I also made the point it was also a RoW by
> dedication and of course I was locked in and I was entitled to break
> out. There is plenty of links on the RA site such as below which also
> cites Chamberlain v Lindon which I had already read in the Ramblers
> Hand Book http://www.ramblers.co.uk/rightsofwaybook/cases
> pete
> http://www.oss.org.uk

What appears to me to have happened here is that your counsel argued 
reasonable belief under Section 5(3) of CDA1971 because of all that 
background, but the DJ rejected that defence. As I see it (and I repeat, I 
haven't seen a transcript of the evidence), the DJ seems to have felt that 
your belief was not reasonable on the facts; that decision, since it was not 
made on the basis of law, would preclude a Case Stated but does not deprive 
you of a right of appeal to the Crown Court, bearing in mind that you only 
have 21 days from the decision (IIRC) to lodge such an appeal. I advise you 
do that, and the CC will be a complete rehearing on both fact and law.

On Thu, 18 Sep 2008 23:10:09 +0100, "Janitor of Lunacy"
 wrote:

>turtill@defmap.com wrote:
>> I have given the wrong impression. My barrister was very insistent I
>> was allowed to cause Criminal Damage because I honestly believed it
>> was a RoW. She demonstrated I had already attempted to get an
>> Injunction to stop the gate being closed. My defence is the RoW was
>> created by statutory instrument, The Ipswich Docks Acts and I was
>> abating a Public Nuisance.
>
>Up to a point. The IDA would appear to be a private Act of Parliament rather 
>than a Statutory Instrument, and whereas it is possible to challenge an SI 
>on grounds of ultra vires, that does not apply to statutes in most cases.

Now your obvious knowledge of legal matters has left me panting trying
to keep up. I wasn't aware the IDA was not a Statutory Instrument even
though I knew it was a Local Private Act. I am lost now as I do not
understand the distinction or how I can use it to help keep the road
open.

>I also made the point it was also a RoW by
>> dedication and of course I was locked in and I was entitled to break
>> out. There is plenty of links on the RA site such as below which also
>> cites Chamberlain v Lindon which I had already read in the Ramblers
>> Hand Book http://www.ramblers.co.uk/rightsofwaybook/cases
>> pete
>> http://www.oss.org.uk
>
>What appears to me to have happened here is that your counsel argued 
>reasonable belief under Section 5(3) of CDA1971 because of all that 
>background, but the DJ rejected that defence. As I see it (and I repeat, I 
>haven't seen a transcript of the evidence), the DJ seems to have felt that 
>your belief was not reasonable on the facts; that decision, since it was not 
>made on the basis of law, would preclude a Case Stated but does not deprive 
>you of a right of appeal to the Crown Court, bearing in mind that you only 
>have 21 days from the decision (IIRC) to lodge such an appeal. I advise you 
>do that, and the CC will be a complete rehearing on both fact and law.

Well yes I haven't seen the transcript either. I do not even have a
copy of the long handwritten Judgment. The DJ went out of his way to
acknowledge I had established reasonable belief but he stated the
vista of folks breaking down gates everywhere was completely
intolerable and in any case I should have made greater attempts to ask
a security guard to allow me to pass and because I had asked to be
released on one gate he found me not guilty on that one. On the gate I
was found guilty there was no security guard I could have asked and no
other gate I could have left by. However after reading your post I now
recognise there may have been greater culpability on my behalf as I
believed the road was established by SI and I was abating a Public
Nuisance by breaking it open. I have told my solicitor I want to
appeal via the Crown Court and have a virtual re-hearing as it is very
important to help folks understand the road belongs to the public and
cannot just be closed by a company that wants to build luxury
apartment blocks. Now I have the problem (for me) of understanding the
difference between the importance of a Local Private Act of Parliament
and a regular Act but I will get there. Thank you for your very
helpful post.
pete
http://www.oss.org.uk