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
		14th January 2008

1. LORD JUSTICE LATHAM: On 23rd March 2007 the respondents were convicted of certain offences in relation to two birds, a yellow cockatiel and an African Grey parrot, on prosecutions brought by the appellant.
2. The only convictions with which we are concerned are convictions relating to the keeping of the two birds in cages which did not meet the statutory requirements. The statutory requirements are set out in section 8(1) of the Wildlife and Countryside Act 1981, which provides as follows:

"If any person keeps or confines any bird whatever in any cage or other receptacle which is not sufficient in height, length or breadth to permit the bird to stretch its wings freely, he shall be guilty of an offence ..."

3. There is no challenge to the conviction nor to the sentence that was imposed, other than a challenge to the decision of the magistrates in relation to the exercise of their powers under section 21 of that Act, which provides, pursuant to subsection (6), as follows:

"(6) The court by which any person is convicted of an offence under this Part -

(a) shall order the forfeiture of any bird, nest, egg, other animal, plant or other thing in respect of which the offence was committed; and

(b) may order the forfeiture of any vehicle, animal, weapon or other thing which was used to commit the offence ..."

4. On the day that the respondents were convicted, the appellant asked for the confiscation of the cages in which the two birds had been held, pursuant to the mandatory provisions of subsection (6)(a). There was no application in relation to the birds. However, on 10th March 2007 an application was received from the appellant to reopen the sentence under section 142 of the Magistrates' Courts Act 1980, so as to make a similar application regarding forfeiture relating to the two birds.
5. On 8th May 2007 the magistrates heard that application and allowed the appellant to reopen the case. However, the magistrates concluded that the mandatory provisions did not apply to the birds. The conclusion they reached is set out in the case stated, in respect of which this appeal is brought, in the following terms in paragraph 9:

"We were of the opinion that:

(i) Looking at the nature of the offence i.e. keeping the birds in too small a cage, it was the cages and not the birds which gave rise to the offences and therefore, it was the cages which fell under the ambit of Section 21(6)(a) of the Wildlife and Countryside Act 1981.

(ii) On the facts of this case, the birds did not come under the ambit of Section 21(6)(a) or (b).

and we confirmed our sentence."

6. The questions for the opinion of this court are in the following terms:

"1) Whether we have any discretion, when sentencing the Defendants for the offences contrary to Section 8(1) of the Wildlife and Countryside Act 1981, not to order the forfeiture of the birds, the subject of the said offences, by virtue of the mandatory requirement pursuant to section 21(6)(a) of the Wildlife and Countryside Act 1981.

2) Whether, we, in making an order forfeiting the cages used to commit the offences under Section 8(1) of the Wildlife and Countryside Act 1981 were right in exercising the mandatory powers pursuant to Section 21(6)(a) and not the discretionary powers pursuant to Section 21(6)(b) of the Wildlife and Countryside Act 1981."

7. On behalf of the appellant, it is submitted simply that on the straightforward wording of the two relevant subsections — that is section 8(1) and section 21(6) of the Act — the birds were clearly birds "in respect of which the offence was committed", so as to be subject to the mandatory requirements of subsection (6)(a). There was a subsidiary submission that the magistrates were wrong to have concluded that the cages fell within the ambit of the mandatory provisions and should have been dealt with as falling within subsection (6)(b).
8. On behalf of the respondents, Mr Reeds submits that the magistrates were right. The Act makes provision for offences relating to the capture, holding and breeding of prohibited birds, and subsection (6)(a) should be read so as to relate specifically to those types of offence rather than the offence with which we are concerned. It seems to me that a plain and straightforward reading of the two subsections means that the offence is committed in respect of both the birds and the cage. It is the conjunction of the keeping of the birds and keeping them in the cage which produces the offence. It follows that in my judgment there is no doubt that the magistrates were required under subsection (6)(a) to order the forfeiture of the two birds in question.
9. Accordingly, I would answer the questions asked as follows. As to the first question, the magistrates did not have any discretion in the matter. The order for forfeiture was mandatory. In relation to question 2, the mandatory provisions applied to the cages as well as to the birds.
10. In those circumstances, this appeal is allowed and the matter must be remitted to the magistrates for them to order forfeiture in accordance with the provisions of the statute.
11. MR JUSTICE COOKE: I agree.
12. LORD JUSTICE LATHAM: Thank you both very much indeed.
13. MR LOVE: I am obliged.
14. LORD JUSTICE LATHAM: Is there any other application?
15. MR LOVE: I am certainly not seeking to make an application for costs against the respondents, who are legally aided in any event. I am not aware that I have the right now to seek costs from central funds, as we are in the Administrative Court.
16. LORD JUSTICE LATHAM: I am not sure I know the answer to that one.
17. Mr Love, I think what I will do is indicate to you that if you consider it is jurisdictionally possible for this court to make an order out of central funds in relation to your clients, could you make that submission in writing --
18. MR LOVE: My Lord, yes.
19. LORD JUSTICE LATHAM: -- within seven days, and we will consider the matter on paper.
20. MR LOVE: I am obliged.
21. LORD JUSTICE LATHAM: Thank you.