Hughes v Director of Public Prosecutions

This is an appeal by Maurice Hughes by way of case stated from the decision of Camborne Magistrates’ Court made on 26 September 2002 finding him guilty of offences of possessing wild birds, namely five goldfinches, contrary to sections 1(2)(a) and 21(1) of the Wildlife and Countryside Act 1981 (“the Act”).

Section 1(2) of the Act provides:

“(2)

Subject to the provisions of this Part, 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;

….

he shall be guilty of an offence.”

Section 1(6) is as follows:

“(6)

In this section "wild bird" does not include any bird which is shown to have been bred in captivity.”

“Wild bird” is generally defined in section 27:

“27.

—(1) In this Part, unless the context otherwise requires—

…..

‘wild bird’ means any bird of a kind which is ordinarily resident in or is a visitor to Great Britain in a wild state but does not include poultry or, except in sections 5 and 16, any game bird;

….

(2)

A bird shall not be treated as bred in captivity for the purposes of this Part unless its parents were lawfully in captivity when the egg was laid.”

Section 19(3) of the Act authorises a justice of the peace to grant a search warrant to a constable if he is satisfied by information on oath that there are reasonable grounds for suspecting that an offence under, among others, section 1 has been committed. Section 19(1) empowers a constable who suspects with reasonable cause that any persons is committing or has committed an offence under Part 1 of the Act to seize and detain for the purposes of proceedings under that Part any thing which may be evidence of the commission of the offence or may be liable to be forfeited under section 21. Section 21 requires the court by which a person is convicted of an offence under Part 1 to order the forfeiture of any bird in respect of which the offence was committed.

On 31 October 2001 a search warrant issued under section 19 of the Act was executed at the appellant’s home by a police constable and an inspector of the RSPCA. Five live goldfinches were found in an aviary. They were examined by Roger Caton, an expert on British birds. The appellant was later interviewed by a police officer and the RSPCA inspector. In due course, informations were laid before the magistrates’ court charging him with unlawful possession of each of the birds in breach of section 1(2) of the Act. The charges against him were heard by the magistrates’ court on 26 September 2002. Evidence was given of the finding of the birds. A video recording of the birds and 2 cages had been made. The prosecution adduced the expert evidence of Roger Caton. He was cross-examined on behalf of the appellant on the basis that the birds had been bred in captivity. He did not accept this: his opinion was that the birds were wild birds, and he gave substantial reasons for that opinion. Mr Caton was not expressly asked by Miss Birt, who appeared for the prosecution, whether goldfinches are ordinarily resident in or are visitors to Great Britain.

At the close of the prosecution case the solicitor for the appellant submitted that there was no case for him to answer, on the ground that, Mr Caton not having testified that goldfinches were British wild birds, there was no evidence that goldfinches were wild birds within the meaning of section 27. In theory at least, they might be wild birds that are outwith the definition in section 27. Birds such as Australian grey parrots or American bald eagles, which are ordinarily in a wild state neither resident in nor visitors to Great Britain, would be wild birds that are outside the statutory definition. The magistrates rejected the submission. The trial continued; presumably the appellant gave evidence; and he was found guilty on all 5 counts. Clearly the magistrates did not accept that the birds had been bred in captivity.

The appellant appealed on the basis that the magistrates had wrongly rejected the submission of no case to answer. The case as stated by the magistrates is brief in the extreme. The relevant paragraphs were as follows:

“7.

On 26^th September 2002 the Appellant attended and the trial was conducted. The Respondent closed their (sic) case.

8.

The Appellant made a submission that there was no case to answer on the basis that an element of the offence was not made out insofar as there had been no direct evidence that those birds subject to the information were wild within the meaning of the Wildlife & Countryside Act 1981 (‘The Act’). The Respondent submitted that this was simply a question of semantics and that the direct question as to whether the birds were wild within the meaning of the Act need not be asked.

9.

We retired and considered the submission. We sought the advice of our Legal Advisor who advised that as the Respondents had not asked directly whether the birds were wild within the meaning of the Act that element of the offence was not proved and therefore the submission should succeed. We rejected that advice. We considered the evidence we had before us. The RSPCA Inspector had given evidence that he had gained entry to the Appellant’s home and seized items, including the goldfinches, by executing a warrant issued under the Act. The execution of the warrant had not been challenged and we therefore concluded that the goldfinches were wild within the meaning of the Act.

10.

Having found there was a case to answer the trial continued and we found the Appellant guilty on all 5 counts.

11.

The question for the opinion of the High Court is whether we were justified in finding, on the evidence before us, that the goldfinches the subject of the informations were wild within the meaning of the Act and therefore finding there was a case to answer.”

As can be seen, the case stated did not summarise any of the evidence before the magistrates. What the magistrates meant by stating that there had been no “direct” evidence that the birds were wild within the meaning of the Act is unclear. Where the issue is whether there was evidence on which the magistrates’ court could come to its decision, the case stated must summarise the relevant evidence: see rule 81(3) of the Magistrates’ Court Rules 1981. If the relevant evidence is not summarised in the case stated, the High Court cannot determine whether or not there was such evidence. In the present case, the question for the High Court is whether, at the close of the prosecution case, there was evidence before the magistrates on the basis of which they could properly find that the birds were wild birds within the meaning of section 27. In order to answer that question the relevant evidence must be ascertainable from the case stated.

Happily, as a result of co-operation between those acting for the appellant and the prosecution, it was agreed that the case should be amended by inserting an agreed summary of the evidence. I ordered the case to be amended by inserting the agreed text into the case. Paragraphs 7 and 8 of the amended case are as follows:

“7.

On 26^th September 2002 the Appellant attended and the trial was conducted. We heard evidence from the RSPCA Inspector David Hobbs regarding the execution of the search warrant at the home of the Appellant. We then heard expert evidence from Roger Caton a British bird expert for the Law Society and an Agricultural Consultant DEFRA Wildlife Inspector with 40 years experience of British birds in the wild. He gave his opinion that the birds he observed in the Appellant’s aviary (and subsequently in his more thorough examination in the police station) had not been bred in captivity. Mr Caton when giving his evidence did refer to the birds as ‘wild’ but this was said only in the context of whether or not the birds had been bred in captivity.

8.

The Appellant made a submission that there was no case to answer on the basis that an element of the offence was not made out insofar as there had been no evidence that the goldfinches were wild within the meaning of the Wildlife and Countryside Act 1981 (section 27). There had been no evidence that the goldfinches were ordinarily resident in or visitors to Great Britain. The Respondent submitted that there had been evidence from a British bird expert that the birds had not been bred in captivity and that therefore the argument from the Appellant was a question of semantics. The direct question as to whether these were British birds was unnecessary.”

Miss Wilson and Miss Birt and the appellant’s solicitor are to be commended for dealing with the defect in the case stated sensibly and efficiently.

The reason given by the magistrates for finding that there was evidence that the birds were wild British birds within the meaning of section 27 is fallacious. The material that had been put before the justice of the peace when the search warrant was granted was not evidence before them.

However, it does not follow that there was no case for the appellant to answer. Mr Caton was an expert on British birds, and when he testified as such an expert that the goldfinches were wild and had not been bred in captivity he was applying that expertise. He was not an expert on non-British birds. In these circumstances it was implicit in his evidence that the goldfinches were wild British birds, i.e., birds within the definition in section 27.

In any event, as Miss Wilson conceded, the magistrates would have been entitled to take judicial notice of the fact that birds as common as goldfinches are “ordinarily resident in or visitors to Great Britain”. That they are so is notorious and indisputable. In Commonwealth Shipping Representative v Peninsular and Oriental Branch Services [1923] AC 191, 212, Lord Sumner said:

“Judicial notice refers to facts, which a judge can be called upon to receive and to act upon, either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer.”

Magistrates are entitled to use, and indeed should be encouraged to use, their common sense and local and general knowledge. It would be absurd if, for example, expert evidence were required to prove that sparrows or blackbirds are wild birds within the statutory definition. Although goldfinches may be less common than those species, they are nonetheless obviously wild birds within the statutory definition.

Lastly, Miss Birt told me that the point taken on the submission of no case had not been foreshadowed by the defence during the prosecution case. She had not been alerted to the possibility that the point might be taken. The real issue in the case, and the only issue taken by the defence during the prosecution case, was whether the birds had been bred in captivity within the meaning of section 1(6).

When a point such as that raised on behalf of the appellant when the submission of no case was made is taken at the close of the prosecution case, a point which has no bearing on the merits of the prosecution (since the fact that goldfinches are British birds was uncontroversial), and the defect, if it be such, in the prosecution case is one of omission (and probably oversight), the advocate acting for the prosecution should request leave to recall the relevant witness to supplement the prosecution evidence. Generally speaking, in cases such as this, magistrates should exercise their undoubted discretion (as to which see R v Francis [1990] 1 WLR 1264) by permitting the prosecution to re-open their case so that such evidence can be given, particularly where the fact in question is likely to be (and in this case clearly was) uncontroversial (as the solicitor for the appellant would have been compelled to concede if asked when he made his submission of no case). If necessary, the magistrates should consider inviting the prosecution to recall the relevant witness. There could have been no suggestion on behalf of the appellant that Mr Caton’s evidence that the birds were British wild birds was evidence that the defence had not anticipated: his written witness statement, which had been served on the appellant, expressly stated that they were such. An acquittal in the present case would have been a fortuitous and unmeritorious windfall. Ambushes of the kind attempted in this case are to be discouraged and discountenanced. Criminal proceedings are not a game: their object is to achieve a fair determination of the innocence or guilt of the defendant. The present is a case in which I should certainly have invited the prosecution to recall Mr Caton if I had thought that his evidence, properly interpreted, had not dealt with the point, and I did not think it appropriate to take judicial notice of the fact in question.

I add that during the course of her submissions Miss Wilson suggested that the burden of proving that the birds had not been born in captivity was on the prosecution. I do not agree. On a prosecution for an offence under section 1 of the Act it is the defendant who must show, on a balance of probabilities, that a bird has been bred in captivity. This follows from the wording of section 1(6) and is consistent with commons sense. Whether a bird has been bred in captivity may be known to the person in possession of it. He will know where he obtained the bird, if he did not breed it himself. The prosecution normally will only be able to refer to the condition and behaviour of the bird as indicative of its having been born in the wild. Although the point was not argued, I see no incompatibility between section 1(6) so construed and Article 6 of the European Convention on Human Rights.

The magistrates reached the right conclusion for the wrong reason. They found against the appellant on the only real issue in his case, namely whether the birds found in his possession had been bred in captivity. The appeal will be dismissed.