Rspca v Cundey sub nom Royal Society for The Prevention of Cruelty to Animals v Cundey
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 22 October 2001 |
| Neutral Citation | [2001] EWHC 906 (Admin) |
| Docket Number | CO/1511/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 October 2001 |
[2001] EWHC 906 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Silber
CO/1511/2001
MR M P TAYLOR (instructed by Messrs Greenwoods, Peterborough) appeared on behalf of the Appellant
MR PAUL R HYNES (instructed by Messrs Kirk Patricks, Huntingdon, Cambridgeshire) appeared on behalf of the Respondent.
The Royal Society for the Prevention of Cruelty to Animals ("RSPCA") appealed by way of case stated against the decision of Huntingdon Justices made on 2nd February 2001 in which they dismissed the information laid by the RSPCA against Mr Cundey, alleging that he, on 4th July 2000, at Spring Cottage Farm, Alconbury attempted to kill wild birds, starlings, contrary to section 18(1) of the Wildlife and Countryside Act 1918 as amended ("the Act"). The background to this offence is set out in the case stated, which shows that the justices found:
"a.[Mr Cundey] resided at Spring Cottage Farm, Coulson Way, Alconbury, Huntingdonshire, Cambridgeshire and did so at the time of the alleged offence.
b.[Mr Cundey] was shooting or attempting to shoot starlings by means of an air rifle within the bounds of his garden. The garden extended to one and a half acres.
c.This activity is governed by the [1981] Act … and a series of general licences issued by the Secretary of State for the Environment, Transport and Regions (DETR) and the Minister of Agriculture Fisheries and Food…"
The statutory framework against which this case is set is that the Act states that all birds are protected, and section 1 creates the basic offence of killing or taking a wild bird, the taking of eggs or the destruction of a nest. There are however exceptions and defences to this basic offence. Thus section 2(2) states:
"Subject to the provisions of this section, an authorised person shall not be guilty of an offence under section 1 by reason of:
i.the killing or taking of a bird included in Part II of Schedule 2 or the injuring of such bird in the course of an attempt to kill it;
ii.the taking, damaging or destruction of a nest of such a bird; or
iii.the taking or destruction of an egg of such a bird."
An authorised person for the purposes of the Act is defined by section 27 of the Act as:
"(a) the owner or occupier, or any person authorised by the owner or occupier of the land on which the action authorised is taken."
Starlings are included in Schedule 2, Part II of the Act and the killing of them falls under section 2(2).
By means of a Statutory Instrument 1992 (No.3010), the Act was amended so that with effect from 1st January 1993 the list of species found in Schedule 2, Part II of the Act was deleted. Instead the legislation created general licences applicable to all authorised persons, and under the legislation it is not necessary for any individual to apply for or to be issued with a licence. Section 16 of the Act creates the power to issue such general licences, and I will have to consider it in due course.
The justices found that two general licences valid at the time of the alleged offence had been issued case by the DETR and by the MAFF. The licence WLF was issued by the DETR ("the DETR licence") and it expires in December 2001. The MAFF general licence expired on 31st December 2000. The justices found that both licences including starlings for the definition of a pest species. The DETR licence allows taking pest species to preserve public health or public safety, while the MAFF licence relates to preventing the spread of disease and prevention of serious damage to livestock, crops, vegetables and fruit.
The area of dispute in this case was described by the justices in their case stated where they explained that it had been contended by the RSPCA that Mr Cundey had to show the reasons why he killed the starlings, and the killings would have to be on the basis that Mr Cundey killed the starlings in order to preserve public health in the face of a present and real risk to health. It was further argued by the RSPCA that the legislation in its present form could not be construed as allowing the killing of starlings without an appropriate reason.
The justices also stated that Mr Cundey contended that as there was a licence issued by the DETR and that he was an authorised person; and having killed by lawful reasons, he did not have to substantiate a reason for killing the starlings but that he could rely on the exceptions set out in section 16 of the 1981 Act.
The justices found that the 1981 Act protected all birds and that, on the true construction of the DETR and MAFF licences, Mr Cundey was not obliged to demonstrate the taking of birds was for one or more of the purposes specified in section 16. They also found:
"There is no requirement on [Mr Cundey] operating under the terms of the licence to apply to the DETR for specific permission or to demonstrate the purpose of control.
For these reasons the [RSPCA] failed to proof that [Mr Cundey] was engaged in an unlawful activity i.e the Appellant was not complying with the conditions of the licences issued by the DETR and MAFF when killing starlings on his land."
For that reason, they acquitted Mr Cundey.
The justices in their case stated raised four questions for the opinion of the High Court. They were:
"i.Whether we were correct in the interpretation of licence WLF 100088 issued by the [DETR] under the powers conferred by section 16 of … [1981] Act;
ii.Whether we were correct in our interpretation of [the MAFF] licence issued… under the powers conferred by section 16 …
iii.Whether all or any of the documentation produced by Mr Charles Parkes (an expert witness called on behalf of Mr Craig Cundey) was admissible in evidence."
The parties have now agreed, sensibly, that the answer to this issue (iii) will not assist in determining the guilt of the respondent and therefore they agree, sensibly, that I should not...
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Wild Justice v Natural Resources Wales
...of how licences circumscribed by reference to statutory purposes under section 16 apply in practice is given in RSPCA v Cundey [2002] Env LR 17. The licence there under consideration specified that it permitted the killing of listed wild birds for the purposes of protecting wild birds or pu......