Counties have been very reticent in supporting prosecutions (encouraged by Defra) where BOAT applications have been made and where off-roaders have been driving illegally in the belief that they can defend a prosecution. Councils are not prosecuting agencies, and the police need to be encouraged to issue at least a warning notice under s59 Police Reform Act 2002, or in appropriate cases to seize and impound the vehicle or to issue a summons. The Winchester case has made a large number of ways safe from defence by off-roaders and some counties are already changing their attitude to enforcement as a result of the Winchester case. As Defra rightly advises, to have a valid defence the burden of proof is on the motorist to prove both the existence of rights and that exemption applies. GLPG has produced a guide for use by enforcement agencies.

In April 2008 two motorcyclists in Somerset rode on a restricted byway and were caught. On being reported, they admitted doing so, but pleaded that Somerset County Council (SCC) had advised that they had a right to do so. That advice was based on the belief that existing pre-cut-off BOAT applications were valid and would generate exemption from extinguishment of vehicular rights. SCC, under pressure from the Green Lanes Protection Group, had corrected its advice in November 2007

Exemption does however depend on two things:

Test A – proof that vehicular rights existed historically, and

Test B – proof that one of the exemptions under NERC Act 2006 applied.

Test A would not have been satisfied – a fact which had been pointed out to SCC with clarity and had never been rebutted.

Test B had not been met (which is why the SCC advice was changed) but in April 2008 the matter was still unclear pending appeal.

The offence took place between the High Court judgment in the Winchester case in November 2007 (which dismissed the need for applications to comply with the legal requirements) and the Appeal Court decision in April 2008 (which overturned the High Court judgment, and confirmed that the law must be read as clearly stated).

The police issued a summons, but the charge was wrongly framed because neither the police nor the Crown Prosecution Service (CPS) knew the law. After repeated court adjournments, during which the CPS caught up with the law and decided to correct the charge, the case was eventually dropped. In a letter to the person who filed the complaint, the CPS effectively acknowledged that there had been an offence, but gave these reasons for dropping the case:

• Prosecutors have to meet two tests –
  • Evidential proof of the offence.

    This first test had probably been met.

  • Public interest in prosecution.

    This second test was a balance between:

    In favour – the widespread nature of the offence, the sensitive issue of individual freedoms set against damage to the environment, and nuisance to others.

    Against – the “unique nature of the case” between judgments, plus later rejection of all Somerset BOAT claims as being void, prevents the use of the same defence again.

• Furthermore, the defendants had sold their motorbikes, and so a repetition was unlikely.

The CPS sent a very brief letter to the defendants which played down the matter of proof and, as to public interest, referred only to “lack of likely repetition” and legal uncertainties at the time of the offence. It added that the likely penalty would have been nominal.

Predictably, the decision caused misguided jubilation among off-roaders, many of whom have not troubled to read the letter carefully, and none of whom have seen the fuller version. Anyone who rides the lane again would be extremely stupid.

As far as GLEAM is concerned, it was always recognised that the penalty was likely to be nominal. The trouble and expense caused to the offenders is quite enough to serve as a deterrent. Support for this complaint was far more related to the need to drive home the fact that it is illegal to drive on restricted byways, even if there is a claim pending, until both Test A and Test B have been proved. Conviction with a nominal penalty would have been preferred, but the wide publicity given by one individual particularly, both internally and on a public website, has in fact served the main purpose admirably.