Foster v Crown Prosecution Service

JurisdictionEngland & Wales
JudgeMr Justice King
Judgment Date07 June 2013
Neutral Citation[2013] EWHC 3885 (Admin)
Docket NumberCase No: CO/289/2013
CourtQueen's Bench Division (Administrative Court)
Date07 June 2013

[2013] EWHC 3885 (Admin)




Sitting at:

Leeds Combined Court

1 Oxford Row


West Yorkshire



Mr Justice King

Case No: CO/289/2013

Crown Prosecution Service

Mr Paul (instructed by William Graham Law) appeared on behalf of the Appellant

Ms Cumberland (instructed by CPS) appeared on behalf of the Respondent

Mr Justice King

This is an appeal by way of Case Stated against the appellant's conviction on 20 September 2012 by the Scarborough Magistrates of an offence under section 3 of the Protection of Badgers Act 1992, the allegation being that the appellant on 29 February 2012 at Northfield Farm, Bulmer, York, interfered with a badger sett by destroying it with intent or being reckless as to whether his actions would have that consequence.


The Case Stated makes clear that the appellant was convicted on the basis of his having been reckless in destroying the sett rather than his destroying it intentionally.


Section 3, so far as is material, provides as follows:

"A person is guilty of an offence if, except as permitted by or under this Act, he interferes with a badger sett by doing any of the following things—

(a) … damaging a badger sett or any part of it;

(b) destroying a badger sett;

(c) …

(d) …

(e) …

intending to do any of those things or being reckless as to whether his actions would have any of those consequences."


Under section 14 of the Act, "badger sett" for these purposes means "any structure or place which displays signs indicating current use by a badger". The prosecution case was that the appellant had intentionally filled with liquid slurry some 43 entrance holes of an active badge sett running alongside a hawthorn hedge at the edge of a field on land of which the appellant accepted he was a tenant farmer. [I understand that the field on the other side of the hedge was in the tenancy of another person]. Mr Paul, who appeared before the magistrates, informed me that the Crown's case at the trial was that Mr Foster was in fact aware of the presence of badgers and hence destroyed the badger sett intentionally. However, the appellant's case when interviewed was that he was unaware of the current badger activity at the sett, that he had last seen badgers there a couple of years ago, and he had not seen any in the last two years. He agreed he had intentionally destroyed the sett, but claimed he did so unaware of the presence of badgers therein and because he wanted to deny it to rabbits who were infesting the disused sett and damaging nearby crops. He maintained this defence in his oral evidence at trial. This is summarised in the Case. In a paragraph headed "Record of Interview and Malcolm Foster's Live Evidence" this appears:

"Mr Foster accepted that he had spread the slurry; that he was aware that there was a badger sett in that location; that he would recognise the signs of a badger sett; that he took no steps to check if the badger sett was active before spreading the slurry but that he did not believe there were any badgers currently in the sett. He told the court that he had destroyed the system of holes to prevent its use by rabbits and rats. Had he known there were badgers in the sett he stated he would not have spread the slurry. Mr Foster was of good character."


It followed that the issue for the magistrates was not so much whether Mr Foster had intentionally destroyed the badger sett since he admitted such, but, first, whether they were sure on the evidence that the badger sett was at the material time on 29 February 2012 an active one within the meaning of the Act, that is to say a structure or place displaying signs of current use by badgers; and secondly, if they were so sure of that, whether they were sure that at the time Mr Foster knew that the sett was an active one in this sense and hence he intentionally destroyed a sett within the meaning of the statute, or alternatively whether he was reckless as to whether the sett was active and hence was reckless as to whether his actions would destroy a sett within the meaning of the statute.


To establish that the sett was an active one, that is to say a sett displaying signs of current use, the prosecution relied upon the expert evidence of one Jean Thorpe whose opinion it was that the badger sett in question was active at the time in question. Mrs Thorpe was described as a wildlife rehabilitator and chair of the Rydale Badger Group. The appellant accepted that she was suitably qualified by virtue of experience rather than qualifications to comment as an expert about the habits of badgers and the signs which identify their presence. She had visited the land in question in the company of one Police Constable Jeremy Walmsley on 3 March 2012. She made a number of witness statements. The first, dated 4 March 2012, included a short report dated 3 March 2012 on what she had found upon her visit and in which she concluded that the holes were an active badger sett and that several badgers would have been drowned or suffocated by the slurry.


A statement of 1 July 2012 contained, amongst other things, the statement that "although 43 entrances had been filled with slurry, three entrances had not. Photographs 31 and 32 show one of these entrances. The entrance is well worn and the soil is smooth, and there are fresh footprints and grass has been flattened and trampled. This entrance was being used by badgers up until recently."


There is in the bundle two further statements from Mrs Thorpe, one dated 27 August 2012 and the other dated 8 September 2012. For all practical purposes, the statement of 27 August, which is in type form, replicates that which is contained in the handwritten statement of 8 September. It is unclear as to whether both statements were served upon the defence, but for present purposes, it matters not. The material statement on any view is that of 8 September 2012, which I understand was served. This statement gives further particulars of her expertise and qualifications. It purports to set out further particulars of the way in which she had come to her expert opinion, and she states, for example, that she understood her overriding duty to the court both in writing a statement and in giving oral evidence.


In the Case the magistrates summarised the effect of Mrs Thorpe's evidence in these terms:

"Jean Thorpe — Wildlife Rehabilitator and Chair of Rydale Badger Group. Mrs Thorpe told the court that the badger sett in question was active in 2007. On 3 rd March 2012 she accompanied PC Walmsley to Northfield Farm, Bulmer and found the same sett had been covered in slurry which had filled approximately 43 of the entrance holes. Three entrance holes were not covered and one in particular showed signs of current use. She took photographs of the slurry and the entrance holes."


Although in the event this does not appear to have been relevant to the findings expressed by the magistrates, I should record that Mr Paul tells me that the evidence was that the three uncovered holes referred to by Mrs Thorpe, including the one showing signs of active use, were on the other side of the hedge and was not on his land.


The prosecution also relied upon the evidence of PC Walmsley, who is described as a trained police wildlife officer. He also gave evidence of recent activity in front of the sett, but again this would appear to be a reference to signs visible on the other side of the hedge from where Mr Foster had been carrying out his actions and was referable to the same evidence given by Mrs Thorpe of finding three uncovered entrance holes at that position.


I should observe that PC Walmsley was not in terms called to give expert opinion evidence. Nonetheless, and no complaint is made about this, he gave opinion evidence which was accepted by the magistrates. His evidence is summarised in the case in these terms:

"PC Jeremy Walmsley — PC Walmsley is a trained Police Wildlife Officer and told the court that he had attended Northfield Farm with Mrs Thorpe on 3 rd March 2012. He found 43 entrances to a badger sett filled with slurry and three that were not. He stated one of the entrances showed clear signs of current use. There were signs of footprints, bedding and recent activity in front of the sett. Its wide and domed shape indicated it was a badger sett. PC Walmsley saw Mr Foster nearby who in an unsolicited statement said that he (Mr Foster) had tipped the slurry."


The defence also called a number of witnesses on observations made by them of the sett prior to February 2012. In his written skeleton argument, Mr Paul summarised the effect of their evidence in these terms at paragraph 14:

"A number of other witnesses, whose evidence was accepted by the Bench, had made observations of the sett within the previous months and seen no evidence of recent use by badgers, or indeed any use of the sett for some two years prior to the date of its destruction."


I observe that the Bench do not in terms state that they accepted the evidence of these witnesses, although I accept the inference must be that the Bench did, so as their evidence went, since they do record as a finding of fact at 2(d) of the Case that, "There was a period of time prior to the alleged incident when the badger sett was inactive". None of the witnesses called by the defence, however, gave evidence of the state of the sett as at February 2012, its date of destruction. However, I record what is set out in the Case as to the effect of those individual witnesses. It is as follows:

" Janet Foster— Mrs Foster told the court that she had...

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1 books & journal articles
  • ‘A new and more rigorous approach’ to expert evidence in England and Wales?
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 19-4, October 2015
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    ...stated in the report arewithin the expert’s own knowledge’; say who carried out any examination, test, etc. with details of their62. [2013] EWHC 3885 (Admin).63. Ibid., [27].64. [2006] EWCA Crim 417; [2006] 1 Cr App R 3 at [177].Ward qualifications and experience and whether they were under......

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