Appeals

The pole trap at the pheasant pen

The pole trap at the pheasant pen

I read three interesting appeals on Twitter and in the media over the past couple of days. One is an appeal for information, while the other two are appeals against conviction or sentence.

The first, the appeal for information, related to a pole trap discovered on East Devon farmland. The trap was a Fenn trap set on top of a post beside a pheasant pen. Police attended at the location and photographed the trap, which was set and ready to trap any bird that landed on it, most likely a bird of prey of some sort.

So far so good but instead of taking possession of the trap and having it tested for DNA, which could lead to the person setting it, the officers left it there, intending to collect it the following day. The next day, however, it was gone. It is hard to believe that Devon and Cornwall Police, a force that is normally very good at investigating wildlife crime, (a) left a trap in the set position where it could well have caught a victim, and (b) missed out on an opportunity to gain good evidence through DNA.

Having photographed the trap, which I assume was corroborated, there would still be sufficient evidence to convict, but makes the case much more difficult to investigate.

I am making the assumption that the officers attended in uniform, maybe even in a marked vehicle, which is hardly discreet. It matters less when all the evidence can be gathered at that visit, but if further visits are required, either to the scene or to a suspect, I would always work on the basis that the suspect is aware of the initial visit. Despite this apparent faux-pas, from the photograph of the trap and the set-up described, with a bit of work and good interviewing the police should still manage to get a case to court.

The next case, the appeal against sentence for hare coursing, took place in my own area, Perthshire; in fact the locus of the coursing is not too far from my house.

Mark Reid was jailed for four months and banned from keeping dogs for six years after a court heard during trial how he and his son, plus two others who were cleared after the trial, had been coursing in a field west of Perth. The son, John Stewart, was banned from keeping dogs for two years and ordered to carry out 100 hour’s unpaid work.

Reid admitted three previous convictions for wildlife crime, and his solicitor told the court, “He has a previous conviction for this activity from Forfar and he comes from a background where this activity has, to an extent, been normalised.”  I immediately thought of the many times in court I have heard solicitors’ pleas in mitigation and said to myself, ‘Have you ever heard such bloody guff!’ I am sure most sheriffs say the same thing under their breath.

In any event Reid appealed his sentence. His solicitor said that the jail term was excessive and that he had managed to pay fines in the past. She also had told the court that Reid was not fit to perform unpaid work as he has trouble with his back (she omitted to say that his bad back doesn’t affect his hare coursing or his ability to obtain money for fines).

The appeal court accepted that Reid should not have been jailed, quashed his conviction and instead imposed a fine of £1500. I assume that his six-year ban on keeping dogs still stands. This is in his own interests as dogs could easily pull on the lead and make his bad back worse. Knowing Reid and knowing the original sentencing sheriff I think he got the sentence exactly right!

I’m not too sure of the timeline for the next appeal, which was against conviction, but it relates to a Mr Martin, who was convicted after trial of blocking a badger sett in advance of a fox hunt by the Middleton Hunt in North Yorkshire. He was ordered to carry out 120 hour’s unpaid work and pay £970 costs. His ‘legal team’ successfully appealed the conviction on the ground that there was no evidence that badgers were using the sett.

So the timeline doesn’t really matter; the issue is in the difficulty in proving that a sett is in current use. In this case the incident took place on 29th March last year but footage taken and shown to the court only showed evidence of occupancy up to 26th March, and again between April 1st and 5th. There was no evidence that the sett was occupied on the day it was blocked and the QC told the appeal court that although it was obvious Martin had blocked the sett “We do not think that the evidence alone can prove there were signs of current use by a badger.”

When you look at the Protection of Badgers Act for signs of a sett in current use, somewhat reluctantly I tend to agree with the appeal court. (see also my blog of 17th February 2013 for much more detail on this subject)

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2 Responses to Appeals

  1. lothianrecorder says:

    In the case of the badger sett blocked it is therefore apparent that the law is a nonsense, to be “using” the sett on the day it is blocked should be a redundant requirement as to trap the animal underground is clearly inhumane? The official gov.uk guidance makes no mention of the sett being in use even in the general sense:

    https://www.gov.uk/guidance/badgers-protection-surveys-and-licences

    What you must not do

    You could be sent to prison for up to 6 months and get an unlimited fine if you’re found guilty of any of these offences:

    damage, destroy or block access to their setts

  2. My thoughts are that this incident was wrong in principle but not in legal terms. The fact is, whether we like it or not, courts have to abide by the word of the legislation, in this case the Protection of Badgers Act. I’m surprised there were not more signs of current use, such as latrines. I think it’s important in badger sett disturbance cases to identify as many signs of current use as possible and for the police to set them out in their case.

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