Hughes v Director of Public Prosecutions

For an offence involving possession of a wild bird, evidence that an expert has identified birds as wild may implicitly establish that they are wild birds within the statutory definition where the expert’s expertise and evidence support that inference. Magistrates may also take judicial notice of notorious and indisputable facts, such as the ordinary presence of common British birds. A search-warrant application is not evidence at trial. Where a prosecution omission is technical, immaterial to the merits and capable of prompt correction, magistrates should generally permit the prosecution to reopen its case. On a prosecution under section 1 of the Wildlife and Countryside Act 1981, the defendant bears the burden, on the balance of probabilities, of showing that the bird was bred in captivity.

Maurice Hughes was convicted by Camborne Magistrates’ Court of five offences under sections 1(2)(a) and 21(1) of the Wildlife and Countryside Act 1981, arising from his possession of five goldfinches. At the close of the prosecution case, he submitted that there was no case to answer because the prosecution had not expressly proved that goldfinches were wild birds within section 27. The magistrates rejected the submission and convicted him, but gave an inadequate reason based on material placed before the justice who issued the search warrant. The amended case stated raised whether there was evidence on which the magistrates could properly find that the birds were wild birds within the statutory meaning.

1. Appeal dismissed. The magistrates reached the correct conclusion, although their stated reason was fallacious. Material put before the justice of the peace when granting a search warrant under section 19 of the Wildlife and Countryside Act 1981 was not evidence before the magistrates.
2. Mr Caton was an expert on British birds. His evidence that the goldfinches were wild and had not been bred in captivity implicitly applied his expertise to British wild birds. It therefore provided evidence that the birds fell within section 27, even though he had not been asked the statutory question in express terms.
3. Alternatively, the magistrates could have taken judicial notice that goldfinches are ordinarily resident in, or visitors to, Great Britain. Magistrates may use their common sense and local and general knowledge where the fact is notorious and indisputable. Expert evidence was unnecessary to establish that common species such as goldfinches are wild birds within the statutory definition.
4. Where a point is taken for the first time at the close of the prosecution case, concerns an immaterial omission, and the omitted fact is uncontroversial, magistrates should generally exercise their discretion to permit the prosecution to recall the relevant witness and reopen its case. Criminal proceedings should achieve a fair determination of guilt or innocence, rather than reward an ambush or technical windfall. This approach was supported by R v Francis [1990] 1 WLR 1264.
5. On a prosecution under section 1, section 1(6) places on the defendant the burden of showing, on the balance of probabilities, that the bird was bred in captivity. The court considered that construction compatible with article 6 of the European Convention on Human Rights.

• High Court (Administrative Court): The appeal by way of case stated from the conviction by Camborne Magistrates’ Court was dismissed.
• Camborne Magistrates’ Court: The appellant was convicted on five counts on 26 September 2002.