England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Thursday, 30th November 2006

1. LORD JUSTICE KEENE: The link between the presence of badgers in an area and the spread of bovine tuberculosis has for some time given rise to controversy. The appellants are amongst those who sincerely and passionately believe that badgers are not responsible for the problem of TB in cattle and that the culling of badgers is unnecessary as a step towards dealing with the problem. These personal beliefs led them to act in such a way as to bring then into the Plymouth Magistrates' Court in January 2005, charged with offences of criminal damage under section 1(1) of the Criminal Damage Act 1971 ("the 1971 Act"). They were convicted and they then appealed to the Crown Court at Plymouth. On 3rd June 2005 their appeals were dismissed by that court. They now appeal to this court by way of case stated.
2. There is no dispute that the appellants went on to farmland in Lerryn, near Liskeard in Cornwall, on the evening of 16th October 2003, armed with bolt croppers with which they proceeded to destroy four badger traps placed there by officers of the Department for Environment, Food and Rural Affairs ("DEFRA"). It is therefore clear that they destroyed property belonging to another and that they intended to do so. This case is concerned with whether they had a defence to these charges under section 1(1) of the 1971 Act.
3. The more detailed facts in the case can be found in the ruling given by HHJ Griggs, who presided over the Crown Court Bench hearing these appeals. That ruling is annexed to the case stated. The traps had been laid by officers of DEFRA to catch badgers as part of a trial known as the Krebs trial, which was concerned with determining the link between badgers and bovine TB. The Krebs trial involved different measures being taken in different parts of the country. In some areas, of which the Lerryn area was one, the officers of DEFRA would seek to cull all badgers, though in practice that seems to have meant culling about 80 per cent of those in the area. A badger would be caught in a humane trap but would subsequently be killed and sent for analysis.
4. What happened was that traps would be put into position for two or three weeks before being set so that the badgers in the meantime would get accustomed to their presence and to finding a source of food in them. Then, at the end of that time, the traps would be set. I describe that procedure because it is germane to the first of the issues which arises on this appeal, namely whether the appellants destroyed the traps "without lawful excuse", that being a defence to a charge under section 1(1).
5. The meaning of the phrase "without lawful excuse" is dealt with in section 5 of the 1971 Act. Section 5(2), insofar as relevant to the present case, provides:

"(2) A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse..."

(b) if he destroyed or damaged or threatened to destroy or damage the property in question ... in order to protect property belonging to himself or another or a right or interest in property which was or which he believed to be vested in himself or another, and at the time of the act or acts alleged to constitute the offence he believed—

(i) that the property, right or interest was in immediate need of protection; and

(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances."

Section 5(3) then provides that it is immaterial whether a belief is justified or not if it is honestly held.

6. The Crown Court held that this defence of lawful excuse was not available to the appellants on the facts. It did so for two reasons: first, because it held that the badgers were not "property" within the meaning of the 1971 Act and, secondly, because they were not "property belonging to himself or another" as required by section 5(2)(b). Consequently the destruction of the traps could not be defended on the basis that it was done in order to protect the badgers.
7. "Property" is defined by section 10(1) of the 1971 Act as follows, insofar as relevant for present purposes:

(1) In this Act 'property' means property of a tangible nature, whether real or personal, including money and—

(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession..."

Section 10(2) deals with the concept of belonging to a person. It states:

"(2) Property shall be treated for the purposes of this Act as belonging to any person—

(a) having the custody or control of it;

(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or

(c) having a charge on it."

8. The appellants argued below, as they have argued today, that the badgers were "property" within the meaning of section 10(1) despite being wild and untamed creatures, because they were "in the course of being reduced into possession". On behalf of the appellants, it is submitted that the process of placing unset traps, first without bait and then with bait, and then setting the traps was aimed at reducing the badgers into possession so that they could be killed. Once a badger was caught within the trap, it had been reduced into possession and the words "in the course of being reduced into possession" must refer to a stage before this. Both Mr O'Reilly, for the appellant Cresswell, and Mr Marquis, for the appellant Currie, argue that the process of targeting and acclimatising the badgers in this field must be seen as a course of reducing them into possession. It is contended that the Crown Court was wrong to rule as it did, that the "concept of property within the Act must ... relate to a specific badger and it only assumes that characteristic when at the earliest it was in the process of entering a trap."
9. The evidence was that the traps were placed in the immediate vicinity of badger setts so that a trapped badger could be regarded as coming from a particular sett and those trapped would have been those who had previously entered the trap for food before it was set. Specific badgers were therefore being targeted, it is said. Indeed, Mr Marquis goes so far as to contend that the course of reduction into possession started when the traps were first put into the field and before they had even been baited. Mr O'Reilly adopts a somewhat less extreme position. He submits that those badgers which had already been into the traps during the preceding two or three weeks were in the course of being reduced into possession but he appears to accept that others would not be in such a state.
10. I have to say that I do not find these arguments persuasive. Section 5(2)(b) only provides a defence of lawful excuse if the destruction or damage is done "in order to protect property" and the defendant believes at the time of his act or acts (I emphasise those words) that there is an immediate need to protect the property. It follows that there must exist at the time of the destruction or damage something which can be described as property. That is why the appellant's case is that the badgers whose setts were in the field in question were property even though they were not in the traps or in the course of entering the traps at the time of the appellant's destructive actions. If that is right, then all such badgers, or certainly all those who visited the unset traps over the period of two or three weeks and yet moved about freely in between times, would have to be regarded during that period as being property, presumably the property of DEFRA. I shall come to whose property they were in a moment.
11. It does not seem to me that that can be right. As the Crown Court ruled, something more immediate to the taking of possession of specific animals is required for those wild animals to be seen as being "in the course of being reduced into possession". What DEFRA had been doing had been taking steps preparatory to such a course being commenced. That seems to be the effect of the Crown Court's ruling. In my judgment, they were entitled so to rule. Merely to entice a wild animal, whether it be a badger or a game bird or a deer, to a particular spot from time to time by providing food there, even with the objective ultimately of killing it in due course, does not form part of a course normally of reducing it into possession. If the creature were thereby to become the property, say, of the landowner providing the food, it would mean that it could not then be lawfully shot by an adjoining landowner on or over whose land it then passed. That is to be contrasted with steps which can properly be seen as being in the course of reducing a wild animal into possession; for example, as is suggested in Smith and Hogan: Criminal Law, 11th edition, page 674, a pheasant which has been shot but not yet picked up may be stolen. That is because the Theft Act 1968, section 44, uses the same concept of a person being in the course of reducing a wild creature into possession, albeit not as part of the definition of property but as denoting what property can be stolen.
12. One gets some assistance on this issue from section 5(2) itself at paragraph (b) where the word "property" is used as part of the phrase "property belonging to himself or another". That helps to understand the concept of property as used in this particular provision. It has to be something which, at the time in question, is to be regarded as capable of belonging to someone. Since the traps in the present case belonged to DEFRA and it is that department which is alleged to have been in the course of reducing the badgers into possession, the badgers, on the appellant's argument, would have to be seen as property belonging to DEFRA. So if that is right, it would mean that, if during the two or three weeks prior to the destruction of the traps, the owner of this field had shot a badger from a sett in this field while it was wandering freely about, he would be guilty not merely of an offence under the Protection of Badgers Act 1992 but also of one of criminal damage to property belonging to DEFRA under section 1(1) of the 1971 Act.
13. That I cannot accept. The Crown Court was in my judgment right to hold that one has to be able to identify with some degree of precision which animal or animals are in the course of being reduced into possession. One has to be able to distinguish those which are in that state from those which are not. In the present case, matters had not reached the stage where that could be done. The evidence was that one could not tell whether the badgers ultimately caught had already visited the trap for food or not. Some, it seems, would have done but others not. In that situation, one cannot identify which badgers were in the course of being reduced into possession until the stage is reached where a badger or badgers are at least in the process of entering a set trap. I therefore conclude that the Crown Court was right to hold that the badgers in this field could not be regarded as "property" within the meaning of section 10.
14. Furthermore, during the period before that moment, the badger cannot in my view be said to belong to somebody, which is what section 5(2) also requires. This was the Crown Court's second reason for rejecting a defence of lawful excuse under that provision. It may be somewhat artificial to make these two separate reasons by splitting the phrase in that subsection up into "property" and "belonging to himself or another". Be that as it may, for the reasons I have already given, I do not accept that the badgers in this field, or any of them, had become at the relevant time the property of DEFRA, which is what Mr O'Reilly submits. I do not accept that DEFRA had a proprietary right or interest in the badgers, even those who had visited the traps on earlier occasions, such that DEFRA could have sued the landowner in conversion if he had taken one of them, for example, to be a pet for his children. That means that the badgers could only belong to DEFRA if DEFRA could at this stage be said to have custody or control of them within the meaning of section 10(2)(a). Indeed, Mr O'Reilly relies upon that particular provision and he argues that DEFRA were in control of the badgers, at least during the time from the moment they started going to these traps in their unset condition in order to obtain food. Again, that seems to me to be fanciful. DEFRA officials exercised very little control over these badgers until they were caught and they certainly did not have custody of them.
15. I therefore conclude that the badgers in this field did not belong to DEFRA prior to the point at which they started to enter the set traps. Mr Marquis indeed submits that those words in section 5(2) "belonging to himself or another" add nothing to the concept of property and in effect can be ignored. I can understand why he finds himself pushed into that position but that seems to me to be unarguable. Parliament must be taken to have intended those words to have some effect. In the present case, it would seem they are there to indicate that destroying property in order to protect abandoned property would not qualify for a defence under section 5(2).
16. In any event, I would add that, if the badgers had become the property of DEFRA, it cannot be a lawful excuse to seek to protect them against actions by those who own them. It is not the purpose of section 5(2), as I see it, to prevent the owner of property from destroying it or damaging it if he wishes to do so, unless that in itself is an unlawful act (in which case another defence will arise) or someone in addition has some interest in the property in question.
17. For all these reasons, the defence under section 5(2) of the Criminal Damage Act cannot in my judgment succeed and the Crown Court was right to reject it.
18. The second issue derives from section 3(1) of the Criminal Law Act 1967 ("the 1967 Act"). That provides as follows:

"A person may use such force as is reasonable in the circumstances for the prevention of crime..."

19. The contention here of the appellants is that the actions of the DEFRA officials amounted to an offence under the Protection of Badgers Act 1992 ("the 1992 Act"), section 1 of which makes it an offence to willfully kill, injure or take a badger or attempt to do so except as permitted by or under that Act. The Act then makes provision for the grant of licences to kill or take badgers for various purposes. In some instances such licences may be granted by the appropriate Conservancy Council: see section 10(1). Those purposes include scientific ones. Section 10(2) reads as follows, insofar as material to this appeal:

"(2) A licence may be granted to any person by the appropriate Minister authorising him, notwithstanding anything in the foregoing provisions of this Act, but subject to compliance with any conditions specified in the licence—

(a) for the purpose of preventing the spread of disease, to kill or take badgers, or to interfere with a badger sett, within an area specified in the licence by any means so specified;

(b) for the purpose of preventing serious damage to land, crops, poultry or any other form of property, to kill or take badgers, or to interfere with a badger sett, within an area specified in the licence by any means so specified."

There are then two further purposes specified for which the appropriate minister may grant a licence under that provision.

20. It is not in dispute that no licence had been granted to anyone by either the appropriate Conservancy Council or the minister in the present case. On the other hand, the setting of the traps and the intended killing of badgers were acts of the officials of DEFRA acting on behalf of the minister. The Crown Court held that the 1992 Act does not bind the Crown and thus the DEFRA officials were not committing or about to commit any criminal offence. That is now challenged on behalf of the appellants. It is accepted that the basic and longstanding principle of law is that the Crown is not bound by a statute unless the statute is made to apply by its express terms or such an effect is clearly intended; see Bennion, 4th edition page 163 and Craies, 7th edition page 423. The principle was forcefully put by Diplock LJ, as he then was, in the case of British Broadcasting Corporation v Johns [1965] 1 Ch 32 at page 78G to 79A:

"The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints on persons or in respect of property unless the statute says so expressly or by necessary implication."

21. That principle has been applied in numerous cases. To take only one example, it was held in Ministry of Agriculture Fisheries and Food v Jenkins [1963] 2 QB 317 that the Crown does not require planning permission for development under the Planning Acts because of this principle: see per Lord Denning MR at page 325 and per Danckwerts LJ at page 326.
22. It is undeniable that the 1992 Act contains no express words making it applicable to the Crown. The appellants, however, argue that such an intention is to be implied. It is submitted that the Act had as its purpose the protection of the welfare of badgers, but that that purpose would be frustrated by the sort of culling being carried out by DEFRA at this site. Some reliance is also placed on the detailed licensing provisions of the Act and the specific but limited purposes for which licences may be granted. Mr Marquis contends that DEFRA has been given power to grant licences but only for some specific purposes. The Department does not have power to grant licences for other purposes beyond those specified. Moreover, even where it can grant such licences, it must consult with the appropriate Conservancy Council; see section 10(6).
23. For my part, I accept that those are the provisions of the 1992 Act but I can find no such implication as the appellants argue for. The purpose of the Act, which I accept was animal welfare, the protection of badgers from cruelty or slaughter, is not something which, to use the words of the Privy Council in the case relied on by the appellants, Bombay Province v Municipal Corporation of the City of Bombay [1947] AC 58, would be "wholly frustrated unless the Crown were bound". Extensive protection is still afforded to badgers in this country without the Crown being bound. Nothing in the Act makes that protection of badgers absolute and nothing in the Act implies that the Crown was intended to be bound by its provisions. Merely because the Crown's powers to grant licences to subjects are specific and limited ones does not indicate that the Crown itself was intended to be bound. The Crown is in a separate position from that of its subjects.
24. In terms of what is implied by the provisions of the Act, the opposite to the appellant's contention seems to me to be the case. The provisions whereby the Crown, in the form of the relevant minister, is empowered to grant licences to ordinary citizens, subjects of the Crown, clearly place a reliance on the judgment of the Crown in deciding to whom a licence may be granted and indicate therefore that a degree of trust is being placed in the Crown. I conclude, therefore, that the 1992 Act does not apply to the Crown and it follows that no criminal offence was being or would be committed by the officials of DEFRA when they sought to trap and kill badgers in this part of Cornwall.
25. The third and final issue is whether the appellants have a common law defence to these charges on the basis that they were acting to protect property. The Crown Court held, first, that such a common law defence did not survive the enactment of the 1971 Act in cases of criminal damage; secondly, that even if it did, the badgers in this case did not come within the meaning of property; and, thirdly, that for such a defence to succeed, a defendant had to believe that what was happening or about to happen to the property involved an unlawful or criminal act and that that was not what the appellants here believed.
26. The appellants, in challenging those parts of the lower court's ruling, rely on the decision of this court in the Director of Public Prosecutions v Bayer and others [2003] EWHC 2567 (Admin). That was a case involving charges of aggravated trespass under the Criminal Justice and Public Order Act 1994 arising from attempts to prevent the planting of GM crops. It was not a case where it was alleged that the defendants had committed criminal damage, and the court expressly distinguished cases under the 1971 Act on the basis that Parliament had codified that part of the common law dealing with lawful excuse in section 5(2) of the 1971 Act (see paragraph 20). The judgment was therefore dealing with cases which fell outside the scope of the 1971 Act.
27. The Crown Court in the present case, relying upon that decision, concluded that the common law defence of the protection of property could not in cases of criminal damage survive the codification of that part of the common law in the 1971 Act. The appellants make the point, however, that section 5(2) of the 1971 Act expressly says "whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection". Those words, it is said, indicate that section 5(2), in providing its own defence of lawful excuse, was not seeking to substitute that defence for any existing offences which there might otherwise be.
28. I see force in that submission. Section 5(2) appears to be providing an additional defence not a substitute one. That is borne out by section 5(5) of the Act, which provides:

"This section shall not be construed as casting doubt on any defence recognised by law as a defence to criminal charges."

If, therefore, the court in Bayer was seeking to suggest that the common law defence of protecting property cannot survive in cases of criminal damage where the charges are brought under the Criminal Damage Act 1971, I would respectfully disagree. It may, however, not avail the defendants in this or in other cases to any material degree because it seems unlikely to apply in many situations where there is not in any event a defence under section 5(2) of that Act.

29. I do not accept that the concept of "property" in the common law defence is wider than that under section 5(2) itself. Reference is made by the appellants to the fact that in Bayer the defendants had argued that "property" at common law included "nature, crops and domestic animals". So they did, but the court there did not rule that "nature", whatever meaning one attaches to that word, constituted property. It was not an issue in the case. Clearly there may be situations where natural things may be property but, for the reasons I have already given, the badgers in the present case did not constitute "property" at common law.
30. In any event, however, the Bayer case emphasised that, for the common law defence to succeed, a defendant had to believe that unlawful damage was being inflicted or was about to be inflicted on the property of another. Giving the judgment of the court in that case, Brooke LJ said, at paragraph 26:

"However, it has always been a requisite ingredient of this element of the common law defence that what is being experienced or feared is an unlawful or criminal act..."

31. In the present case, the Crown Court which heard the appellants found that they "did not honestly believe that what DEFRA was doing did amount to a crime" (see page 16E of the transcript). The appellants disapproved of what DEFRA was doing and no doubt wished that it was unlawful and criminal, but there is that clear finding of fact by the lower court that they did not have an honest belief that the DEFRA officials were breaking the law. That, to my mind, really puts an end to any such line of defence. Mr O'Reilly and Mr Marquis sought to rely on a reference in the Bayer judgment in paragraph 30 to whether the defendant was "contending" that he used reasonable force to defend property from damage which constituted an unlawful or criminal act. That is to read far too much into that word "intending". It is clear from the judgment in that case, read as a whole, that a defendant must not merely contend that he had a honest belief that he was protecting property from an unlawful or criminal act, but he must actually believe it. Such was not the case here.
32. It follows had this third line of defence must also fail. I conclude that the question posed in the case stated must be answered as follows. (1) The badgers were not "property" within the meaning of section 10 of the 1971 Act and, moreover, they did not belong to any person. Questions (2) and (3): the appellants could not rely on section 3 of the Criminal Law Act 1967 because the Protection of Badgers Act 1992 does not bind the Crown, so no offence was being or was about to be committed by the officials of DEFRA. Question (4): the common law defence of protection of property was, on the facts as found, not available to the appellants.
33. For these reasons, I would dismiss the appeals on both counts.
34. MR JUSTICE WALKER: At the time of the acts alleged to constitute criminal damage, the badgers which the appellants aimed to protect were not in the traps which had been set for them. Nor were they approaching such traps. In this judgment I shall concentrate on the first main question which arises on those facts. This is whether the appellants could rely on section 5(2)(b) of the Criminal Damage Act 1971. In order to do that, the appellants would have to persuade this court to overturn the findings by the Crown Court that those badgers were not "property belonging to ... another" within the meaning of the Act.
35. To my mind, the words that I have placed in quotations specify two requirements of the thing that is sought to be protected. Both must be met, being two of a number of essential requirements of the defence under section 5(2)(b). The thing must be property and it must belong to the person charged or another. On behalf of Mr Currie, it was contended that the words "belonging to himself or another" are intended simply to clarify that the property sought to be protected need not belong to the defendant. I reject that contention for two reasons. First, unless driven to the contrary, this court will construe statutes on the basis that words are not used in vain. If there was no intention that the property must belong to someone, there was no need to include the words "belonging to himself or another". Second, it makes sense to include a requirement that the property in question belonged to someone. If something does not belong to anyone, for example because it has been abandoned, then it may well have been thought that a desire to protect it should not give rise to a statutory defence.
36. Each of these two requirements has its own statutory definition in section 10. I turn to examine what section 10 says about belonging to another. For present purposes, we are concerned only with section 10(2)(a) and (b). Under section 10(2)(a), property is to treated for the purposes of the Act as belonging to any person having the custody or control of it. The appellants acknowledged that the badgers were not in the custody of anyone. However, they rightly observed that control in the absence of custody will suffice. It was submitted that the process of training the badgers to visit the traps for peanuts meant that they were under the control of the relevant officers.
37. I reject this contention. Far from being in control, the officers were in a position where they had to try to lure the badgers into their custody. To my mind, section 10(2)(a) cannot assist the appellant. I would add that whether an animal was in the custody or control of someone seems to me to be a question of fact which is for the triers of fact to decide, provided that they are properly directed in law.
38. Under section 10(2)(b), property is to be treated for the purposes of the Act as belonging to any person having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). During the course of argument, reference was made to the account of the common law as to proprietary rights and interests in animals to be found in the fourth edition reissue of Volume 2(1) of Halsbury's Laws of England at paragraphs 508 to 547. In broad terms, (a) it is a question of law whether an animal is wild or domestic. It is common ground in the present case that the badgers were wild. (b) Once a wild animal is killed or dies, absolute property in the dead animal vests in the owner of the land or, in a case where relevant shooting or sporting rights have been granted, in the owner of those rights. (c) While a wild animal is alive there is no absolute property in that animal. There may, however, be what is known as a qualified property in them in three circumstances. The first is described as a qualified property per industriam. Wild animals become the property of a person who takes or tames or reclaims them until they regain their natural liberty and have not the intention to return. Examples of that kind of property include animals such as deer, swans and doves. A second qualified property is described as ratione impotentiae et loci. The owner of land has a qualified property in the young of animals born on the land until they can fly or run away. A third type of qualified property is described as ratione soli and ratione privilegii. An owner of land who has retained the exclusive right to hunt, take and kill wild animals on his land has a qualified property in them for the time being while they are there but if he grants to another the right to hunt, take or kill them then the grantee has a qualified property. This was relied on by the appellants only to the extent that the badgers could be said to be game.
39. On this basis it does not seem to me that in the present case the badgers fell within these qualified property rights. The account given at paragraph 517 of Halsbury's Laws notes that there has been no comprehensive statutory definition of the term "game" but that it has been defined for the particular purposes of particular Acts. None of those mentioned include badgers as game. In any event, it can hardly be suggested that the appellants were seeking to protect such rights as the landowner may have had to hunt, take or kill the badgers.
40. To my mind, this exhausts the relevant statutory provisions for relevant purposes. I can see no basis to think that in section 10(2)(b) the statute has in mind anything other than proprietary rights or interests as recognised by the common law or by the general law of the land. It was at one point asserted that if section 10(1) defines something as property then it must belong to someone for the purposes of the Act. This submission repeats the error of regarding the words "belonging to himself or another" as inserted into the statute in vain. Accordingly, my conclusion is that at the relevant time the badgers did not belong to another within the meaning of the statutes. It follows that on that ground alone the first main question in this appeal must be decided against the appellants. There is no need to examine whether the badgers at that time constituted property within the meaning of the Act.
41. I prefer to express no concluded view on what constitutes "property" for the purposes of the Act. With some diffidence, I make some observations. First, the requirement that the thing which belongs to the defendant or another must be property within the meaning of the Act is an additional statutory requirement. It follows, to my mind, that identification of what can or cannot belong to someone for the purposes of the Act does not necessarily assist in determining what is property. In particular in relation to wild animals, the common law as to what can belong to someone, which comes into play under section 10(2)(b), is complex and may not be a useful guide as to what is intended to fall within the definition of property in section 10(1). It does seem to me that the statute may well intend to define as property things which in certain circumstances would not be capable of belonging to another under section 10. An example may be the reference to animals which are in the course of being reduced into possession. The mere fact that wild animals are in the course of being reduced into possession does not of itself mean that they fall within the statutory definition of "belonging" to someone. Whether they are capable of belonging to someone will depend on other factors under section 10(2).
42. Second, section 10(1) goes beyond the common law by including animals which are in the course of being reduced into possession. The primary purpose of this extension, as it seems to me, is to impose a criminal sanction on those who damage wild animals that a person is in the course of killing or capturing or taming - provided that the wild animals fall within the statutory definition of "belonging" to someone. Some things done with a view to killing, capturing or taming animals may be merely preliminary and thus not enough to enable one to say that what was underway was part of the course of reducing the animal into possession. But where does what is preliminary end? This too may be best regarded as a question of fact which is for the triers of fact to decide, provided that they are properly directed in law.
43. I would approach the matter on the basis that the extent to which specific animals have been identified may be relevant to whether merely preliminary arrangements have ended and what is underway is in the course of reducing the animal into possession. I say relevant, perhaps not necessarily determinative. In the present case, however, there are specific badgers that are known about. They have visited the unset traps and found peanuts there. Might it be that the appellants could say that they were seeking to protect at least those specific badgers?
44. The appellants say that the process of reducing the badgers in question into possession had begun. The skeleton argument on behalf of Mr Currie identified the stage that had been reached at the time when the acts of damage took place as the last in a four stage process. I could see that, in the present case, a trier of fact might, I stress might, think the process was sufficiently advanced as to bring these badgers within section 10. The words "or are in the course of being reduced into possession" in the 1971 Act tracked words which first appeared in section 4(4) of the Theft Act 1968. In protecting property interests both under the Theft Act and under the Criminal Damage Act, it seems to me that the statute may have had in mind a process which could require a little time.
45. An example which comes from some of the older cases is a farmer who is in the process of getting swans to settle on a farm pond. The hope is that a stage will be reached where they can be said to live on the pond to the exclusion of anywhere else as their home. The passage cited earlier from Halsbury's Laws of England suggests that at that point a qualified proprietary interest per industriam would arise. Prior to that, they are visiting the pond on increasingly frequent occasions. At that stage it might be possible to say that they were in the course of being reduced into possession.
46. As indicated earlier in this judgment, however, it is not necessary, on the view that I take, for this point to be decided and I express no concluded view.
47. My Lord has mentioned a further point on section 5. This concerns the position where it is plain that the property owner does not wish his property to be protected. Here, too, I do not wish to express any concluded view. The point was not argued before us. I would simply observe that there might be circumstances, for example an occasion when the owner of a valuable piece of antique furniture was drunkenly swinging at it with an axe, when it might be desirable that a bystander should be entitled to act so as to protect the property. That is a point which in my view needs to await another day for argument on facts where the question distinctly arises.
48. Accordingly, for the reasons I have given, on the first main question I consider that the appellants fail. On the remaining questions, I agree that the appellant's arguments are also unsuccessful for the reasons given by my Lord.

LORD JUSTICE KEENE: Are there any ancillary applications?

MS WILSON: My Lord, I would ask the court to consider the question of costs.

LORD JUSTICE KEENE: What is the position about the appellants and costs?

MS WILSON: My Lord, I understand from my learned friend who represents Mr Currie that he is about to serve a substantial custodial sentence. I am instructed in his case that it would not be appropriate to apply for costs, so it would just remain Ms Cresswell. The figure is put at £750, which is just a proportion of the costs in this case.

LORD JUSTICE KEENE: And you just seek those against Ms Cresswell, do you?

MS WILSON: Yes. As I said, as Mr Currie, as I understand it, is serving or about to serve a custodial sentence.

LORD JUSTICE KEENE: What is the position? First of all, Ms Cresswell's position.

MR O'REILLY: Ms Cresswell's position, as I have it, my Lord, is that she is not working, she is in receipt of benefit. She is taking --

LORD JUSTICE KEENE: Are you privately funded on this one?

MR O'REILLY: No, she is a beneficiary of an order.

LORD JUSTICE KEENE: There is a representation order.

MR O'REILLY: So I would just ask for the usual order.

LORD JUSTICE KEENE: You would want taxation, clearly, in relation to that order, no doubt.

MR O'REILLY: Indeed, yes.

LORD JUSTICE KEENE: Yes.

MR O'REILLY: Is there any more information my Lord requires from me on that point?

LORD JUSTICE KEENE: Mr Currie, I imagine, also has a representation order, does he?

MR MARQUIS: He does. The situation is exactly the same in terms of that.

LORD JUSTICE KEENE: Yes. Anything further you want to say?

MS WILSON: No, thank you. (Pause)

LORD JUSTICE KEENE: No, we do not think this is an appropriate case to make any costs order, other than, as I say, for any assessment that may be required of the legal aid costs of the appellants themselves.

Thank you both very much indeed. Thank you, Ms Wilson.