Dodsworth v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Langstaff,MR JUSTICE LANGSTAFF |
| Judgment Date | 08 November 2010 |
| Neutral Citation | [2010] EWHC 3435 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 November 2010 |
| Docket Number | Case No: CO/6080/2010 |
[2010] EWHC 3435 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Before: The Honourable Mr Justice Langstaff
Case No: CO/6080/2010
Miss Quincy Whitaker ( instructed by Ben Hoare Bell LLP) appeared on behalf of the Appellant.
Mr Mark Styles (instructed by the CPS) appeared on behalf of the Respondent.
(As Approved)
Mr Justice Langstaff
The best way of describing the circumstances in which this appeal by way of case stated comes before me is to say that it arises out of what is perhaps best described as an unfortunate procedural mess.
The appeal is in essence brought by the applicant, Mr Dodsworth, against his conviction upon his own plea of guilty at the magistrates' court on 14 September 2009 but is, as will become apparent, an appeal which challenged the decision by way of case stated on a specific basis which is no longer pursued.
The background is that the applicant had a collection of eggs. They were wild bird eggs. The taking and the possession of wild bird eggs has been regulated by statute since at least 1954. The statutory background and history is of importance. In 1954, section 1 of the Protection of Birds Act provided so far as material that if any person wilfully “(c) takes … an egg of any wild bird”, he was guilty of an offence. There was no offence of possession of an egg, just an offence of taking one. That essential position remained unchanged in the Protection of Birds Act 1967. It is to be noted that possession for sale was prohibited but not possession itself.
In 1981 the Wildlife and Countryside Act was passed. It came into force in 1982. The wording that then applied in section 1(2) was:
“if any person has in his possession or control—
(a)any live or dead wild bird or any part of, or anything derived from, such a bird; or
(b)an egg of a wild bird or any part of such an egg,
he shall be guilty of an offence.”
However, a defence was provided by subsection (3). In the wording enacted in 1981 subsection (3) read as follows:
“A person shall not be guilty of an offence under subsection (2) if he shows that—
(a)the bird or egg had not been killed or taken, or had been killed or taken otherwise than in contravention of the relevant provisions ; or
(b)the bird, egg or other thing in his possession or control had been sold (whether to him or any other person) otherwise than in contravention of those provisions ; and in this subsection 'the relevant provisions' means the provisions of this Part and of orders made under it and, in the case of a bird or other thing falling within subsection (2)(a), the provisions of the Protection of Birds Acts 1954 to 1967 and of orders made under those Acts.”
Thus after 1982, as before, the taking of wild bird eggs and possession for sale of such eggs was an offence. So also would be it be for an any egg to be taken in contravention of the Wildlife and Countryside Act itself. But if someone had been in possession of an egg which he could show had been taken by somebody else, albeit taken in contravention of the 1954 and 1967 Acts but not taken by him, he could lawfully possess it, so it was not unlawful for a person under the 1981 Act, as it stood until amended, to possess eggs which had been taken before the 1981 Act came into force.
In 2004 the Wildlife and Countryside Act 1981 (England and Wales Amendments) Regulations 2004 were laid before Parliament. They were laid on 9 June 2004 and came into force on 14 July 2004. The Secretary of State of the Department for Environment Food and Rural Affairs purported to exercise the powers in section 2(2) of the European Communities Act 1972 to make a statutory instrument which effected amendments of primary legislation. Amongst the amendments was an amendment to the wording which related to the possession of wild bird eggs. The wording of the offence was changed. After amendment it now read:
“3 A person shall not be guilty of an offence under subsection (2) if he shows that—
(a)the bird or egg had not been killed or taken, or had been lawfully killed or taken….
3A. In subsection (3) “lawfully” means without any contravention of—
(a)this Part and orders made under it,
(b)the Protection of Birds Acts 1954 to 1967 and orders made under those Acts,
(c)any other legislation which implements the Wild Birds Directive and extends to any part of the United Kingdom, to any area designated in accordance with section 1(7) of the Continental Shelf Act 1964, or to any area to which British fishery limits extend in accordance with section 1 of the Fishery Limits Act 1976, and
(d)the provisions of the law of any member State (other than the United Kingdom) implementing the Wild Birds Directive.”
Thus, although it had been lawful to possess an egg which had taken before the Wildlife and Countryside Act 1981 came into force (and thus “historic” bird egg collections were not unlawful) it was not lawful any longer to possess an egg which had not been taken lawfully in the first place. This meant that it now became criminal to continue to hold eggs taken by somebody else other than the person charged with the offence, even though it may not have been an offence to possess them up until that date.
The appellant's essential factual case was that he had a number of eggs which dated in their taking from before the Wildlife and Countryside Act came into force, which it had not been therefore unlawful until 2004 to continue to hold. He had not himself taken those eggs in contravention of the 1954 legislation. Therefore, until this amendment in 2004, he had been committing no criminal offence.
The procedural history
On 10 October 2006 a search warrant was executed under the 1981 Act at the Appellant's home. A number of eggs was discovered. In 2008 (therefore after some two years had passed) he pleaded guilty to two counts of possession of those eggs, and was acquitted in respect of three other counts, at the Crown Court. Ten summary-only offences were remitted to the magistrates' court for trial. On 14 September 2009 (therefore nearly three years after the eggs had been seized) those ten charges came for trial.
A case, dated 17 May 2010, was stated by the district judge (magistrates' courts) before whom those charges came for hearing. District Judge Elsey, sitting at South Shields Magistrates Court says, paragraph 6:
“These matters came before me for trial on 14 September 2009. At that hearing the prosecution indicated that they were minded to accept a guilty plea to one of the ten charges and proposed to adjourn the remainder sine die..”
It appears that the prosecution were content to accept a plea of guilty which had been offered for one of the ten charges, and ultimately a plea of not guilty was marked on the other charges and they were withdrawn. There was thus an element of, if not plea bargaining, at least discussion as to the acceptability of pleas in advance of the tender of this plea.
The appellant was represented by someone whom he tells the court he regarded as an expert in the arcane area of the law relating to the possession of birds' eggs. The case continues at paragraphs 7 and 8:
“7. I understand the issues for trial were to be whether the court accepted the appellant's evidence as to the dates on which the eggs had originally been taken, and the records he had, or whether the Crown were able to prove that the eggs had been taken at a time which rendered possession illegal.
8. I understand the appellant changed his plea to guilty because the effect of the Wildlife and Countryside Act 1984 (England and Wales Amendment) Regulations 2004 [the SI] was to make it unlawful to hold any eggs taken since 1954 whereas prior to the amendment eggs taken before 1981 could be lawfully held. There was therefore no need for me to adjudicate whether I accepted the appellant's account as to the date on which the eggs had originally been taken.”
Nothing was said to the magistrate which might suggest that the plea was in any sense equivocal. No argument was addressed to him that the charge was a charge unknown to law or that the statutory instrument was a nullity. The matter proceeded, indeed the acceptability discussions as to plea proceeded, obviously upon the basis that there was no such challenge.
What I am told by Miss Whitaker for the appellant is that whilst at court the appellant's solicitor became aware for the first time of the effect of the amendment. I am told that the appellant and his solicitor, and I am told more generally others who held egg collections, had assumed that they could continue to hold their eggs without committing an offence. That position had in fact changed in the light of the law and its amendment, as I have mentioned. The solicitor, however, though discovering this at the magistrates' court for the first time because of a note to that effect prepared for the magistrates by Mr Styles, who appears before me as he did before him, accepted this. He did not ask for an adjournment to consider the matter further.
However, within the 21-day time limit which is permitted by the rules, the appellant through that solicitor lodged a notice of appeal to the crown court against not only the sentence, which was a community order with the requirement of undertaking 100 hours unpaid work, but also against the conviction.
The case continues at paragraph 11:
“On 4 November 2009 the appellant appeared in person before me having made a request for me to reconsider the case. He informed me that...
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