Alistair Trotman v The Environment Agency

A prosecution for breach of statutory byelaws or harbourmaster’s directions may be brought summarily without first issuing a fixed penalty notice. A byelaw imposing a single penalty for specified offences does not require separate daily charges for a continuing breach. The statutory right of navigation is subject to the governing Act, valid byelaws and riparian rights. A harbourmaster’s power to regulate the position, mooring and removal of vessels includes directions requiring an unwilling owner to move a vessel, provided the directions are not general rules requiring the byelaw procedure. Prosecution costs must be assessed proportionately. The relationship between the fine and costs, the offender’s means and the reasonable costs incurred are relevant, particularly where the disparity is stark.

After a three-day trial at Staines Magistrates’ Court, District Judge Cooper convicted the appellant of two offences under byelaw 49(a) of the Thames Navigation Licensing and General Byelaws 1993 and two offences under section 84 of the Thames Conservancy Act 1932. The offences concerned two unpowered houseboats moored in or near Molesey Lock after the lock reopened and after harbourmaster’s directions required their removal.

The appellant was fined £800 in total and ordered to pay £20,591.40 in prosecution costs. By case stated, he challenged the prosecutions, the validity of the charges, the harbourmaster’s powers and the costs order. The Administrative Court also considered three additional related questions concerning the validity and service of the directions.

The appeal succeeded on the costs issue and failed on all other questions.

1. Summary prosecution. Section 242 of the Thames Conservancy Act 1932 authorised summary prosecution of offences against the Act or its byelaws. It did not establish a requirement for a fixed penalty notice before prosecution.
2. Byelaw charges. Byelaw 85 imposed a level 3 penalty for offences under byelaws 49 and 58. The separate daily penalty for a continuing offence applied only to the other category of offences. A single charge under byelaw 49 could therefore cover the six-day period. The charges were also sufficiently particular because they followed the disjunctive wording of byelaw 49 and identified the relevant lock, channel or cut.
3. Navigation and harbourmaster powers. The public right of navigation under section 79 was subject to the Act, byelaws and riparian rights. The phrase requiring a vessel to remain no longer than necessary for convenient passage involved an objective assessment and did not entitle a stationary vessel to remain indefinitely. Under section 83, regulating included a specific direction requiring an unwilling owner to unmoor or move a vessel. Section 86 did not exclude that power. General directions would require the byelaw procedure, but these directions were case-specific and lawful.
4. Service of directions. The mechanical or administrative service of a harbourmaster’s directions was not part of their execution for section 82 purposes. Service by an administrative officer was therefore permissible.
5. Costs. Section 18 of the Prosecution of Offences Act 1985 permitted recovery of prosecution costs, including reasonable investigation costs. The sentencing judge had erred by failing to consider the stark disparity between the fines and costs, particularly in light of the appellant’s limited income. The Administrative Court substituted a proportionate costs order of £12,000.

• High Court (Administrative Court): The appeal by case stated succeeded on the proportionality of prosecution costs and failed on the remaining questions.
• Staines Magistrates’ Court: District Judge Cooper convicted the appellant on four charges and ordered fines totalling £800 and prosecution costs of £20,591.40.