David Levy – Lesson Learnt – A Reflection on the Legal Case : Goodwin Sands/MOD/MMO and Protection of the Goodwin Sands from the Dover Harbour Board’s Dredging Application – Oct 17

The origins of the case we have produced are the protection of the wrecks and bodies within the Goodwin Sands, which lie offshore from Kent in the English Channel. The Goodwin Sands is the most densely populated area in UK seas for shipwrecks, containing a thousand or more from over the centuries, and it contains over 60 crashed aircraft from the Battle of Britain, with even more from the remaining years of World War II.

This case has come from a basic principle of what is both socially respectful and morally right. It is and remains a no-brainer to any decent society — the graves of war-time mariners and aviators deserve protection, and the wrecks should not be disturbed.

This is the wish of Parliament who debated and legislated on this, delivering The Protection of Military Remains Act 1986 (PMRA) which provides legal protection to military wreck sites and to general areas when their location cannot be identified precisely. Exactly what is needed for the Goodwin Sands.

The Ministry of Defence (MoD) has been our primary target because it is the MoD which designates the use of the Act, but the Ministry has refused to engage. This has created a vacuum within which the Marine Management Organisation (MMO — which issues dredging licences) can operate and thereby process the application by the Dover Harbour Board (DHB) to dredge part of the Goodwin Sands to supply the Harbour Board with sand for a port regeneration project.

Having identified the MoD as the responsible authority for designating protection under the PMRA 1986, we engaged legal representation and via a plethora of letters have requested the MoD to answer whether it will meet its moral and legal responsibility and give PMRA protection to the whole Goodwin Sands.

Meanwhile the MMO have pressed forward with a public consultation process — three consultations, to date — whilst effectively delegating the protection of WWII aircraft and ship wrecks which, from their point of view, are the MoD’s responsibility.

The licensing process run by the MMO has required surveys of the seabed — sonar and ferrous metal detection via a magnetometer survey. The difficulty is that sonar and magnetometer surveys are imperfect at detecting wrecks (until 1900 ships were largely made of wood, and war-time aircraft were mostly made of aluminium), and the data from these survey reports can be interpreted in different ways, meaning that wrecks can be easily missed.

This is against a background where the onus from government on the MMO (an agency of government) is to allow existing businesses to go on operating as usual, or when there is no track record to facilitate new business. We had this statement of the modus operandi of the MMO direct from the CEO himself. Therefore Marinet has been under no illusion that the decision is likely to go only one way. Approved.

Marinet has kept a close eye on the legal case, recognizing the strength of the restraint it can place on the MMO and the Harbour Board. We had the MoD backed into a corner, facing a deadline in which to respond over designation of the Goodwin Sands under the PMRA 1986, and so constraining the MMO by compelling it to wait for a decision from the MoD.

In turn, if the MMO were to make a decision ahead of the MoD, then we would go for an injunction of stay until the MoD made their ruling. In our view we had them penned in.

Alas, we are now at a total loss as to why our legal representation moved from this position, and has offered the MoD a way to escape designation of the whole Goodwin Sands. Instead of remaining focused on the Goodwin Sands as a whole, our legal representation has given the MoD the option to rule just on designation of the dredging site itself (known as Area 521), thus shifting the onus of proof of the existence of military remains from the Goodwin Sands as a whole onto a narrow section of sand and unreliable sonar and magnetometer data.

As a result, the MoD has said they are still thinking about designation for the Goodwin Sands as a whole, whilst saying that in their opinion the dredging site is free of wrecks and so the PMRA does not apply to it.

In other words, the MMO is now free to license the site, the Harbour Board is free to extract 2 million cubic metres of sand, the MoD has escaped the noose, and all the war graves that are almost certainly in Area 521 will be dredged, disturbed and effectively destroyed.

This “surrender” took place in an Annex (authored by our legal representation) in a Marinet letter (otherwise written by Marinet) to the MOD on the 20th September 2017. By doing this, the MoD has been given a way to escape the conundrum and head-lock we had them in.

This alteration at the eleventh hour in our legal position has immediately put us on the back foot, and a position where the MoD no longer has to accept that the wrecks are there. Instead we now have to prove that they have misread the survey data and thereby come to an incorrect decision that there are no military remains there. Suddenly the mountain we are seeking to climb has grown to twice the size, and there’ll be virtually no oxygen at the summit.

Our own legal representation has stated that the MoD could never deny the fact that wrecks and bodies lie in the Goodwin Sands. It was the foundation of the conundrum we had them in, and this has been the reason why the MoD kept on prevaricating on a decision over applying the PMRA which, in turn, would have made dredging virtually impossible.

Through a decision made by our legal representation, we have now given the MoD an escape route out of their predicament. We have given the MoD the chance to focus solely on a small section of the Goodwin Sands (Area 521) where the sonar and magnetometer reports are open to debate. This means the MoD has been given the ability to say it is not going to apply the PMRA in the one area that matters from a dredging point of view.

Everything has changed, and we have now but a small chance of winning the argument.

David Levy
7th October 2017