How badgers’ skins are saved and how to get fined by killing a squirrel!

Furry things in English law Part 1 (or how the badgers’ skins were saved)

Farmers in Wales have suffered a major setback as Welsh ministers ponder how to move forward in delivering on their commitment to reduce bovine tuberculosis in Wales. It follows the Court of Appeal’s decision to reverse the High Court decision not to quash the TB eradication (Wales) Order 2009, handing the welsh badger population a stay of execution.

The figures which motivated the ministers to make the order are significant: 11,530 head of cattle slaughtered in 2008 because of Bovine TB – 68 per cent of these slaughters occurred within the ‘intensive action pilot area’ (IAPA) in north Pembrokeshire.

The Animal Health Act 1981 by sections 1 and 21 gives powers to minsters to “make… orders… for the purpose of in any manner preventing the spreading of disease” if ‘the minister is satisfied in the case of any area… that destruction of [badgers] is necessary in order to eliminate or substantially reduce the incidence of that disease in animals of any kind in the area”. Under the 1981 Act, the order needed to specify (among other things) the area, disease and species to which it applies.

The 2009 order stated that it applied to Wales, tuberculosis and badgers, and sanctioned the destruction of badgers by a wide class of duly authorised personnel in all places except dwelling houses. It also provided for badgers to be vaccinated as an alternative to death.

Bringing the appeal, the Badger Trust contested the High Court’s refusal to quash the 2009 order on three grounds, the third being added by one of the appeal judges during the appeal hearing:

  1. that the judge had erred in holding that to ‘substantially reduce’ meant effecting a reduction more than merely minor or trivial;
  2. that it was wrong to hold that the ministers’ discretion to make the 2009 order could lawfully be exercised without carrying out an analysis of the benefits of killing badgers against the cost in lives to the badger population; and
  3. that the ministers had erred in law by making an order covering the whole of Wales when they had only consulted on the basis of an IAPA in north Pembrokeshire.

There was a degree of judicial criticism of the ministers’ interpretation of ‘substantial’, namely that a reduction of nine per cent in the incidences of bovine TB in the IAPA could be called ‘substantial’. “I would call it modest,” said Lady Justice Smith, giving judgment.

But, for Stanley Burnton LJ, raising the third ground in the appeal hearing, the appeal would almost certainly have failed on the first two grounds alone, with Pill LJ concluding that “while powers under section 21 of the 1981 Act were certainly required to cull within the IAPA, it was not correct to say that the powers provided by the [2009] order, which covered the whole of Wales, were essential for that purpose”. However, the failure of the ministers to tie the area of land covered by the 2009 order in with the area on which they consulted was fatal to their case.

What will prove most troublesome for the Welsh ministers in the coming months is Pill LJ’s statement: “It is not open to the Welsh Assembly government immediately to make a fresh order in the same terms but covering only the IAPA.” There were even suggestions that the Protection of Badgers Act 1992 could be under threat.In the meantime, neither party is giving up – watch this space.

Furry things in English law Part 2 (or how to get fined for killing a squirrel)

Those who remember the government offer in 1953 of a shilling for each grey squirrel tail (payable on certification by the local pest officer – more than 360,000 caught in the first year) will doubtless be aghast at the second most significant ‘cuddly animal’ case to be decided in the English courts this year.

On 19 July, Raymond Elliot was ordered to pay £1,547 costs and given a six-month conditional discharge by magistrates for drowning a grey squirrel, following a private prosecution brought by the RSPCA under the Animal Welfare Act 2006. Section 4(1) states: “A person commits an offence if an act of his… causes an animal to suffer [when] he knew or ought reasonably to have known that the act… would have that effect or be likely to do so, the animal is a protected animal and the suffering is unnecessary.”

Veterinary evidence confirmed that the suffering induced by drowning could have lasted up to three minutes, which constitutes “unnecessary suffering” under section 4(1)(d) of the Act and the squirrel was a “protected animal” by virtue of it being “under the control of man on… a temporary basis” (section 2(b)). This leaves us in a very confusing situation. Under the Grey Squirrels (Prohibition of Importation and Keeping) Order 1937, it is illegal to keep grey squirrels in captivity. Pursuant to section 14 of and schedule 9 to the Wildlife and Countryside Act 1981, it is illegal then to release them; and now, if the RSPCA is to be believed, anything short of taking your captured squirrel to the vet for a lethal injection at your own cost constitutes an offence under the Animal Welfare Act. Farmers licensed to use firearms may be able to kill squirrels humanely, but – for the public at least – the legal position is worryingly vague. A guide to the humane killing of grey squirrels can be found on www.saveoursquirrels.org.

It is interesting that it was Mr Elliot’s neighbour who apparently informed the RSPCA of the drowning – perhaps the “Big Society” does exist?