Cresswell & Anor v DPP

For the statutory defence of lawful excuse, wild animals are not “property” merely because they are being attracted towards traps. The animals must be sufficiently identifiable and at least in the process of entering a set trap. They must also belong to the defendant or another person. The Protection of Badgers Act 1992 does not bind the Crown without express words or necessary implication. A common law defence of protecting property may survive the Criminal Damage Act 1971, but it requires an honest belief that unlawful or criminal damage is being inflicted or threatened. Disapproval of conduct, without that belief, is insufficient.

The claimants destroyed four DEFRA badger traps during a badger-culling trial. They were convicted of criminal damage under section 1(1) of the Criminal Damage Act 1971. Their appeals to the Crown Court at Plymouth were dismissed on 3 June 2005.

On appeal by case stated, they argued that the badgers were property belonging to DEFRA, that DEFRA officials were committing offences under the Protection of Badgers Act 1992, and that they had statutory or common law defences based on protecting the badgers. The central questions concerned the meaning of property, ownership, Crown immunity and the requirements of the common law defence.

1. The appeals were dismissed. The badgers were not property belonging to another for the purposes of section 5(2)(b) of the Criminal Damage Act 1971. Keene LJ held that attracting wild animals to food, even as a preliminary step towards capture or killing, did not normally amount to reducing them into possession. The animals had to be identifiable with reasonable precision and at least in the process of entering a set trap. DEFRA had neither custody or control nor a proprietary interest in the badgers at the relevant time.

2. The words “belonging to himself or another” imposed a separate requirement. Property which had been abandoned would not satisfy that requirement. Walker J agreed that the badgers did not belong to another under section 10(2), although he expressed no concluded view on whether they were property under section 10(1). He observed that whether preliminary arrangements had become a course of reducing animals into possession could be a question of fact.

3. The Protection of Badgers Act 1992 did not bind the Crown. The statutory presumption that the Crown is not bound could be displaced only by express words or necessary implication. The Act’s protective purpose, licensing scheme and limited licensing powers did not show that Parliament intended to bind the Crown. The DEFRA officials therefore were not committing, or about to commit, an offence, so section 3(1) of the Criminal Law Act 1967 could not assist the claimants.

4. Keene LJ held that the common law defence of protecting property was not excluded by the codification of lawful excuse in the 1971 Act, having regard particularly to section 5(5). However, the common law defence did not extend to these badgers and in any event required an honest belief that unlawful or criminal damage was being inflicted or threatened. The Crown Court’s finding that the claimants did not honestly believe DEFRA’s conduct was criminal was decisive. The case-stated questions were answered accordingly.

• Crown Court at Plymouth: appeals against convictions dismissed on 3 June 2005.
• High Court (Administrative Court): appeals by case stated dismissed; the case-stated questions were answered against the claimants.