Foster v Crown Prosecution Service

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:

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:

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:

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:

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:

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:

These witnesses, in particular Gareth Barlow, appeared to have given, without objection from anybody, expert opinion evidence as to what were signs of badger activity and what were not. But be that as it may, it was all admitted into evidence by the court.

At the end of the trial and after they had retired to consider their decision, the magistrates returned to announce their decision, finding Mr Foster guilty of the offence. Within my papers is a handwritten note of what was read out by the court. It is either the note of the magistrates' clerk or the justices themselves. It is accepted on both sides that it accurately records what was read out as to the reasoning of the justices. It is in these terms:

It is to be observed that in this reasoning the magistrates nowhere state that they have rejected any evidence of the appellant or given any indication in what respect they have made findings against him contrary to his evidence, other than to find that the defendant was aware of a risk that the badger sett could be occupied.

I also observe that the steps which they say the appellant failed to take were steps to check if the sett was inactive before spreading the slurry along the hedgerow.

The Case states three questions for the opinion of the High Court in paragraph 7, namely:

I deal first with the question of the admission of the expert evidence of Mrs Thorpe. The challenge to its admissibility made before she gave her evidence was on the basis that her various statements and reports did not comply with the requirements of the material Criminal Procedure Rules applicable at the time, namely the Criminal Procedural Rules 2011, and in particular the requirements as to what any expert report should contain set out in rule 33(3). That subparagraph sets out some ten requirements at (a) to (j).

In this case it was contended that Mrs Thorpe's statements were deficient in not complying with the requirement under (b) that she give details of any literature or other information which the expert had relied on in making her report; or under (c) that it contain a statement setting out the substance of all facts given to the expert which were material to the opinions expressed in the report, or upon which those opinions were based; under (d), that it be made clear which of the facts stated in the report were within her own knowledge; under (f) that where there was a range of opinion on the matters dealt with in the report, the range of opinion be summarised and reasons be given for her own opinion; under (g) that if the expert is not able to give his opinion without qualification, state the qualification; (h) that there be a summary of the conclusions reached; and under (i) that it contain a statement that the expert understands his duty to the court and will continue to comply with that duty.

I should say at once that the requirements under (b), (c), (f) and (g) were not relevant to the evidence which Mrs Thorpe was giving. She was giving very straightforward evidence of what she had found as a matter of fact at the site of the badger sett, in particular in relation to the three undiscovered entrances, and in particular the one which showed signs of current activity, which signs she described and photographed, and was giving her expert opinion as to those signs being signs of current activity.

Be that as it may, it is obvious that the initial statements of Mrs Thorpe, that is those prior to 8 September, did not comply with those other requirements of the rules which were relevant. The magistrates, however, say in the course of their Case that it was accepted by the appellant that the missing information was subsequently provided in the later statement of 8 September 2012. As a matter of fact, it is quite clear that that statement of 8 September 2012 did supply a statement of matters complying with the requirements of the rules, in particular the statement that the expert had understood her duty to the court and had complied with and would continue to comply with that duty.

The magistrates refused the initial application that Mrs Thorpe’s evidence should not be admitted for failure to comply with the rules, and it was so admitted. She then gave oral evidence, and at the conclusion of that evidence, the appellant made a further submission that she had given evidence additional to that which had been set out in her previous statement, and in the light of it, he had been deprived of the opportunity to obtain his own expert evidence. The submission was made that whereas Mrs Thorpe in her statement of 1 July, as recorded in the summary of her evidence in the Case, had said that she had found three entrance holes uncovered and one in particular showing signs of current use of which she took photographs, in her oral evidence she went further in suggesting that the other two undiscovered entrances were also active. Although I hesitated to do so, I did agree to look at the notes of the evidence which are in the bundle. I say I hesitated because, in principle, a Case should be determined by reference to the content of the Case. However, I was referred to a note of her evidence in which she is recorded as saying that the photographs to which she had already referred in her report was as to one of the active entrances, and that there were three, but she had not photographed the other two. No further detail was given.

Further, at this stage of the trial the appellant raised the complaint that in her oral evidence Mrs Thorpe had been unable to demonstrate that she understood her primary duty to the court as required under rule 33(2)(1), which is that an expert must help the court to achieve the overriding object by giving objective unbiased opinion on matters within his expertise. Again, I have been shown in support of that contention the note of the evidence, when under examination Mrs Thorpe had said only that she understood her duty was to tell the truth, and further, when under cross-examination, she had said:

The magistrates in the Case deal in paragraph 6 both with their original decision to admit Mrs Thorpe's evidence and their rejection of what I understand was an application at the close of her evidence that her evidence should then be excluded. What they say in paragraph 6 is this:

I can find no error of law in the decision of the magistrates to admit Mrs Thorpe's evidence as expert evidence in the first instance. The provisions of Part 33 of the Criminal Procedure Rules are of course not mandatory, but rather are directory. They reflect the concern which the courts had already shown prior to their promulgation, for example in R v Bowman [2006] EWCA Crim 417 at paragraph 177 and 178 as to what an expert report should contain. All these requirements are designed to ensure that a court is able to give proper consideration to an expert's reasoning, to know what weight to put to it, to understand what competing matters there may be contrary to that being put forward and to fully understand how the expert has come to the particular opinion. Absent the requirements being complied with, the court may well be in a position to say only that the expert evidence cannot assist the court in the form it is in and should be excluded. But the essence of the jurisdiction of the court to exclude expert opinion which does not comply with the rules, lies not in the breach of the rules themselves but in the power of the court to exclude any evidence which is either irrelevant or whose admission would have such an effect on the fairness of proceedings that it should not be admitted. As regards that latter principle, I have in mind of course the provisions of section 78 of the Police and Criminal Evidence Act 1984.

The magistrates were undoubtedly entitled to form the view that at the start of the trial there had been no prejudice to the appellant by any initial breach of the rules, and were fully entitled to take into account that any missing information to comply with the rules had been provided in the later statement of 8 September 2012.

As regards the decision of the magistrates at the close of Mrs Thorpe's evidence, at this stage the considerations they were invited to take on board did not, in my judgment, go to admissibility. They went first to the weight which should be put upon her evidence insofar as she had departed from her written evidence, and secondly it went to considerations of prejudice and unfairness to the appellant insofar as it was being contended that the appellant had been ambushed by the introduction of material evidence with which he could not deal.

Mr Paul has battled vigorously to persuade me that I should accept his submission that Mr Foster had been put by this stage in the very unfair position of not being able to deal with this new expert evidence. When one looks at this aspect of the expert evidence, however, it was remarkably vague and undetailed. It was merely an assertion, according to the note, that there were three active entrances. No one, including counsel on behalf of the appellant, seems to have asked her any more detail about what she had seen at these other two entrances. Certainly, it was elicited, there were not any photographs. Mr Paul accepts that a decision had been taken prior to trial not to seek any expert evidence on behalf of the defence in relation to the evidence it was known Mrs Thorpe would give, namely there was evidence of current activity by reference to what she described at one of the entrances, and indeed it was not disputed at trial that this was an active badger sett. What Mr Paul seeks to persuade me of is that nonetheless at this stage, because it was still a live issue whether Mr Foster knew as a fact that the sett was active, any evidence which went to the extent of the signs of current use was evidence which would go to that issue of what he knew, and therefore he was prejudiced because he was not in a position to go off and obtain some expert evidence to contradict it. It is difficult to see in the circumstances what expert evidence would have been obtained given the vagueness of Mrs Thorpe's evidence on these two other entrances. It is not without significance that when the Case is studied, the only evidence of Mrs Thorpe which is set out by the magistrates as evidence of current use, is her evidence as to what she had seen in one hole in particular showing signs of current use.

I fail to see any meaningful prejudice being caused in the way now contended, by this further evidence of Mrs Thorpe outside her original requested statement. I have no doubt the reason why the magistrates themselves chose in their Case to refer to only the current signs of use of one of the holes, was because of the vagueness of Mrs Thorpe's evidence on the other matters. No doubt that was based also on submissions made on behalf of the appellant at the close of the trial.

As regards the complaint that the magistrates were not entitled to form the view that, although Mrs Thorpe may not have given her evidence in lawyers' terms, it was clear that she fully understood her duty to the court under the rules, I see no substance in it. It was well within the discretion of the magistrates to come to that conclusion. It certainly discloses no error of law, in my judgment.

As regards the first question, "Did the justices make an error of law in admitting the evidence of Mrs Thorpe", the answer of this court is "no".

I turn, however, to the next questions, which are interlinked. This goes to the issue of recklessness. I repeat those questions:

I have no doubt that in deciding these questions, the court should confine itself to what is set out in the Case and what is set out in the agreed note of judgment at the end of the trial, for the purposes of determining the approach taken by the magistrates to the issue of recklessness, and their process of reasoning.

It is common ground that the test for recklessness is that formulated by Lord Bingham in R v G [2003] UKHL 50 at paragraph 41, namely:

This is a subjective test of recklessness. It is to be contrasted with the objective test now disapproved of and not followed by the House of Lords in G, formulated by Lord Diplock in R v Caldwell [1982] AC 341, in which, in the context of a criminal damage offence under section 1(1) of the Criminal Damage Act 1971, Lord Diplock included within the concept of recklessness the concept of inadvertent recklessness: that is to say it covered the situation where the defendant "does an act which in fact creates an obvious risk" that a result will follow or occur - in that case that property would be destroyed or damaged - and the defendant in doing the act has not given any thought to the possibility of there being any such risk. This was formulated as an alternative to a finding of recklessness on a subjective basis: that the defendant had recognised there was some risk involved, but had nonetheless gone on to do the act.

Lord Diplock at page 35 of Caldwell had preferred a meaning of reckless which included "not only deciding to ignore a risk of harmful consequences resulting from one's acts that one has recognised as existing but also failing to give any thought to whether or not there is any such risk in circumstances where, if any thought were given to the matter, it would be obvious that there was."

It follows that in this case, for the appellant to be convicted of the offence of destroying a badger sett, being reckless as to whether his actions would have this consequence, the magistrates had to be sure (1) that his actions had destroyed a badger sett within the meaning of the Act, that is to say a sett which was displaying signs of current use by a badger, and (2) in doing the acts which destroyed the sett (in this case pouring the slurry into the holes) he was aware of a risk that he would be pouring the slurry into an active badger sett and had unreasonably taken that risk, that is to say unreasonable in the circumstances.

The Case sets out how the court reached its decision of guilt by recklessness in different sections. In paragraph 2 it says:

It is to be observed that in that finding at g, "Mr Foster took no steps to check if the badger sett was still inactive before spreading the slurry", the Case replicates that which is set out in the note of the oral judgment delivered at the end of the trial. It is also to be noted that there is no finding of fact at this stage that Mr Foster knew that badgers were active on his land. It is also to be noted that on the next page of the Case, where the evidence is summarised, there is no evidence stated on which it could be concluded that Mr Foster knew that badgers were active on his land, insofar as by that is meant he knew that badgers were active on his land as at the date of the destruction of the sett in question on 29 February 2012. The only facts as to the appellant's state of mind set out in paragraph 2 is the finding at c that Mr Foster was aware that there was a badger sett in the hedgerow.

One then moves to page 3 of the Case dealing with the respective submissions of the prosecution and the defence as to principles to be applied in establishing guilt. This paragraph appears:

One then comes to the critical findings on this issue of recklessness in paragraph 6 of the case. This appears:

In my judgment, that those findings at 6d(i) to (vii) were critical in the ultimate conclusion of recklessness found by the justices in this case. I say this because paragraph (e) of the Case under paragraph 6 continues:

The reasoning set out is confusing. It deals both with what is the actus reus and the mens rea of the offence in a confusing fashion. Critically, in my judgment, it leads me to the conclusion that the justices in this case have misapplied the test of recklessness. I accept, of course, the contention of the respondent, through Ms Cumberland that on the face of it the justices were purportedly applying a subjective test of recklessness. They set out, as I have already indicated at page 3 of the Case, the rival contentions of the appellant and the prosecution, and at paragraph 6a purportedly say they are applying a test involving a risk of which Mr Foster was actually aware. However, in my judgment, the introduction of the findings in 6d that not only were there clear signs of badger activity at the time Mr Foster spread the slurry, but that Mr Foster would have been able to recognise those signs of badger activity present at the material time if he had only thought about it and looked for them and that he had "closed his eyes" to a risk that the badger sett may be active again and had failed to make rudimentary checks prior to spreading of the slurry indicate that the magistrates here, on the face of it, have convicted Mr Foster on the basis not of a risk of which he was aware, but rather of a risk of which he should have been aware if he had thought about it. In my judgment, the finding that “Mr Foster closed his eyes to a risk that the badger sett may be active again and failed to make even rudimentary checks prior to spreading the slurry" speaks for itself in this context. The justices in effect, in my judgment, have applied the now discredited test of inadvertent recklessness. I find this notwithstanding they purportedly assert that they have applied a subjective test.

Another way of reaching the same conclusion is that I accept the submission of Mr Paul that the finding in 6e(i) that Mr Foster was aware there was a risk that he could destroy an active badger sett, was, on the face of it, based on an illegitimate process of reasoning from what he would have discovered and would have been able to recognise had he not closed his eyes to a risk that the badger sett might be active again.

I should also state that on the question, "Was there evidence upon which the court could come to its decision", insofar as that is a reference to the finding that “Mr Foster was aware there was a risk that he could destroy an active badger sett”, I find it difficult to find within the Case any statement of evidence which would have justified that finding.

Ms Cumberland was driven, understandably because she herself conceded the wording of the justices in paragraph 6 was infelicitous, to rely upon the finding in 6d(i) that Mr Foster knew that badgers were active on his land, as being the legitimate foundation for the finding that Mr Foster was aware that there was a risk that he could destroy an active badger sett. I say this because the evidence was all one way, as recorded in the Case, that Mr Foster's stated state of mind was that he did not believe there were any badgers currently in the sett, and the justices themselves found as a fact there was a period of time prior to the alleged incident when the badger sett was inactive. But, as I have already indicated, there is no actual finding in paragraph 2 of the Case where the justices purport to find facts, that badgers were active generally on the land of Mr Foster as at the date of the alleged destruction, and certainly do not state that he knew of such activity. Nor within the recorded evidence in the Case is there anything which goes to establish that badgers were active on his land at this material time or that he knew that they were.

So, insofar as question 3 is concerned, on the basis of what is within the Case, I find there was no evidence on which the court could come to its conclusion of recklessness, assuming for the moment, and contrary to the judgment I have already given, that they did purport to apply the current test of recklessness.

I should also add this: the justices for the first time in section 6c introduced an indication that they had been given reason "to conclude" that he, that is to say Mr Foster, "was not telling us the whole truth". But they do not go on at any stage to identify in what respects he was not telling them the truth, or how that was material to their process of reasoning leading to the finding of guilt by recklessness.

One cursory interpretation of the findings in paragraph 6, although on reflection it would not be a proper one, was that the justices here found not only that there were clear signs of badger activity, and that Mr Foster would have been able to recognise those signs, but that he had seen them and he had recognised them. They do not find that expressly and I accept that entirely. But of course, if that had been their finding, that is to say a finding that clear visible signs of badger activity were known to Mr Foster at the time, then that could not have been a basis for a finding of recklessness, but a basis for a finding which was never made, of guilt by intentionally destroying an active badger sett.

For all these reasons, my answers to the questions are as follows: to question (a), "Did we make an error of law in admitting the evidence of Mrs Thorpe", answer "No". "(b) Did we make an error of law in finding that Mr Foster recklessly destroyed a badger sett", answer "Yes". "(c) Was there evidence on which the court could come to its decision", answer "No".