QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MAURICE HUGHES
|- and -
|THE DIRECTOR OF PUBLIC PROSECUTIONS
Emma Birt (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 20 October 2003
Crown Copyright ©
Mr Justice Stanley Burnton :
The relevant statutory provisions
"(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."
"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."
"7. On 26th 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."
"7. On 26th 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."
"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."