R Royal Society for the Protection of Birds v Natural England
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 15 March 2019 |
| Neutral Citation | [2019] EWHC 585 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/1673/2018 & CO/1683/2018 |
| Date | 15 March 2019 |
[2019] EWHC 585 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case Nos: CO/1673/2018 & CO/1683/2018
David Forsdick QC (instructed by RSPB Legal Services) for the Claimant in CO/1673/2018
David Wolfe QC and Zoe Leventhal (instructed by Leigh Day) for the Claimant in CO/1683/2018
Paul Luckhurst (instructed by Natural England Legal Services) for the Defendant in CO/1673/2018 and CO/1683/2018
The Interested Parties in CO/1683/2018 did not appear and were not represented
Hearing dates: 5 & 6 December 2018, 17 January 2019
Approved Judgment
Both these claims for judicial review challenge the lawfulness of the grant by Natural England (“NE”), on 16 January 2018, of a licence to conduct a trial into the brood management of hen harriers, pursuant to section 16(1)(a) of the Wildlife and Countryside Act 1981 (“WCA 1981”).
The Royal Society for the Protection of Birds (“RSPB”) is a registered charity which promotes the conservation and protection of birds and the wider environment.
Dr Avery is a scientist who worked for the RSPB for 25 years, until 2011. He writes and campaigns on nature conservation and the protection of birds.
NE is an executive non-departmental public body sponsored by the Department for Environment, Food and Rural Affairs (“DEFRA”). It has responsibility for, amongst other things, promoting nature conservation and managing wildlife.
The hen harrier species in England, and elsewhere, is in severe decline, and on the brink of extinction. Hen harriers nest on the ground among the heather of moorlands, which is the habitat prevalent on grouse moors. Adult hen harriers feed grouse chicks to their young during the breeding season. The loss of grouse chicks is damaging to the grouse shooting industry and in consequence, hen harriers have been illegally killed, and their nests destroyed, on grouse moors, despite their legally protected status. The proposed brood management scheme seeks to manage the conflict between the conservation of hen harriers and the grouse shooting industry by removing hen harrier eggs and chicks from their parents in their nests, rearing them in captivity, and releasing them when they are fledged, into a suitable habitat, away from grouse moors.
Both the RSPB and Dr Avery contend that the brood management scheme is unlawful because of the unnecessary disturbance and harm it will cause to hen harriers in their habitat, and the existence of alternative and less invasive ways in which to conserve and protect the species.
The two claims were linked by the Court for hearing, following the grant of permission to apply for judicial review.
Facts
Hen harriers enjoy the highest level of statutory protection because of their rarity and vulnerability:
i) they are listed in annex 1 of the Birds Directive (2009/147/EC) as a species which is particularly threatened in Europe. As a result, member states are required by article 4 to take “special conservation measures” in order to ensure its survival and reproduction, and designate suitable special protection areas (“SPA”) for their conservation;
ii) they are a species of principal importance for biodiversity conservation in England, under s.41 of the Natural Environment and Rural Communities Act 2006;
iii) they are protected under schedule 1 to the WCA 1981;
iv) the species is classified as “red” (denoting the highest level of concern) in the Birds of Conservation Concern 4 list, drawn up by bird conservation organisations.
There are two relevant SPAs in England: Bowland Fells and North Pennines Moors. Their conservation objectives are to restore or maintain the population, and to maintain or restore the extent and distribution of the habitats of the qualifying features and the structure and function of the habitats of the qualifying features.
The RSPB estimates that some 80% of all hen harrier nesting activity in England has been on grouse moors, and 57% has been on grouse moors in SPAs designated for hen harriers. By the time of the hearing, these figures were not challenged by NE.
Bowland Fells SPA is underpinned by a single Site of Special Scientific Interest (“SSSI”) for inter alia hen harriers and most of the SSSIs underpinning the North Pennines Moor SPA are for inter alia hen harriers.
It was common ground at the hearing before me that the main threat to the conservation of hen harriers is unlawful persecution by those associated with the grouse moor industry. Although the killing of birds and the destruction of nests is a criminal offence, there have not been sufficient successful prosecutions to prevent or deter the unlawful persecution. Dr Avery criticised the lack of resources and energy directed towards active enforcement, and pointed to the more effective enforcement of the law in Scotland, which has made those in control of grouse moors vicariously liable for the illegal activities of their employees and contractors.
Amanda Craig, NE Operations Director, North, confirmed NE's strong support for effective enforcement of the criminal law, at paragraph 30 of her witness statement, and summarised the role which NE plays in investigation and enforcement. This was supplemented by Mr Luckhurst's Note provided at the adjourned hearing.
The Hen harrier fieldwork protocol: joint working arrangements between the Moorland Association, Natural England and Raptor Study Groups requires gamekeepers and estate owners to notify NE of the existence of a nesting attempt. Once a nesting site is identified, it is monitored to protect the nest from persecution. The Hen harrier fieldwork protocol also requires estates to inform the police if they believe that a wildlife crime has been committed and to ensure that any evidence is only removed by the police.
Investigation and prosecution of offences under section 1 of the WCA 1981 (i.e. killing or disturbing hen harriers or their nests) is handled by the police and the Crown Prosecution Service (“CPS”). This is the longstanding position under successive Memoranda of Understanding between the National Police Chiefs Council, the CPS and NE, and reflects the seriousness of the offence. NE provides expert evidence and factual evidence for the prosecution.
NE assists with investigation and prosecution in the following respects:
i) It undertakes the satellite tagging of hen harriers. Between 2002 and 2017, 158 hen harriers were tagged. It immediately informs the police if it is aware that a satellite tagged hen harrier has stopped transmitting. Satellite tagging data is collated and analysed by NE, and provides intelligence for the Raptor Persecution Priority Delivery Group.
ii) NE officers assist police officers with searches of areas of moorland where a satellite tagged bird was last identified. Unfortunately, such searches often produce no results because the evidence has been removed and the areas are so large.
iii) NE is a member of the Partnership Against Wildlife Crime (along with DEFRA, the Home Office, the CPS, and many other public-sector bodies and Non-Governmental Organisations (“NGOs”)). The secretariat is provided by DEFRA. Aspects of this work include the Forensics Working Group, which supports the application of forensic technologies to assist law enforcers, including advice on the use of wildlife forensic science and funding to support forensic analysis.
iv) NE has an information sharing agreement with the National Wildlife Crime Unit which is a police-led unit which gathers intelligence on wildlife crime and provides analytical and investigative support to the police, statutory nature conservation organisations and NGOs. One of its six priorities is raptor persecution.
v) NE attends meetings of the Raptor Persecution Priority Delivery Group.
Ms Craig's evidence confirmed the limited effectiveness of criminal enforcement at paragraphs 31 and 32 of her witness statement:
“31. However, as I have highlighted at paragraph 6 above, enforcement is documented in the relevant literature as being of limited effectiveness as a hen harrier conservation technique. The difficulties lie in finding any evidence that a crime has been committed or, if there is any evidence of a crime, identifying any perpetrator. The disappearance of an adult hen harrier often goes undetected. If it is detected, it will not necessarily be clear whether it is due to natural causes. If there is evidence of unnatural causes, it will not necessarily be clear which landowner or individuals are implicated, particularly given the range of this species. Nesting attempts thwarted by illegal disruption of the nest may not be detected at all. Natural England has some staff carrying out surveillance of hen harrier nesting attempts but given the very large area of the country over which hen harriers could nest it is simply impossible for Natural England or any police forces to offer comprehensive coverage.
32. Without expressing any views on the desirability of Dr Avery's proposals to introduce vicarious liability for wildlife crimes, I would caution against the assumption that this would be a complete and satisfactory solution in the context of hen harrier conservation. The concern would be that if there is no case against a primary perpetrator then there is no case of vicarious liability to be brought against an employer….”
Diversionary feeding, in which hen harriers are provided with food supplies as an alternative to grouse chicks, has had considerable...
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