Foster v Crown Prosecution Service

For criminal recklessness, the prosecution must prove that the defendant was actually aware of a risk and, in the circumstances known to him, unreasonably took it. A failure to investigate a risk, or a failure to appreciate a risk which would have been apparent on proper inquiry, does not establish subjective recklessness. In an offence involving destruction of a badger sett, the prosecution must also prove that the sett displayed signs of current use and that the defendant was aware of a risk that his conduct would destroy such a sett. Expert evidence rules are directory. Non-compliance does not automatically exclude evidence, although exclusion may be required where the evidence is irrelevant or its admission would make the proceedings unfair.

The appellant appealed by way of Case Stated against his conviction by Scarborough Magistrates on 20 September 2012 for recklessly destroying an active badger sett contrary to section 3 of the Protection of Badgers Act 1992. He had filled entrance holes with slurry and accepted that he had intentionally destroyed the structure, but denied knowing that it was active. The magistrates admitted expert evidence from a wildlife rehabilitator and concluded that he had closed his eyes to the risk that the sett was active. The questions for the High Court concerned the admissibility of the expert evidence, the legal test for recklessness, and whether there was evidence supporting the conviction.

1. Expert evidence. The appeal on admissibility failed. Part 33 of the Criminal Procedure Rules 2011 is directory, not mandatory. Its requirements enable the court to assess the expert’s reasoning, weight and possible competing opinions. The consequences of non-compliance depend on relevance, prejudice and fairness. The court may exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 where its admission would make the proceedings unfair. The later statement supplied the material information which had initially been omitted, and the magistrates were entitled to admit the evidence. Complaints about additional oral evidence went to weight and prejudice rather than admissibility.
2. Recklessness. The applicable test was the subjective test stated in R v G [2003] UKHL 50. The prosecution had to prove that the appellant was aware of a risk that he was pouring slurry into an active badger sett and that, in the circumstances known to him, it was unreasonable to take that risk. The test contrasted with the inadvertent recklessness approach in R v Caldwell [1982] AC 341, which had been disapproved and not followed.
3. The magistrates’ reasoning impermissibly relied on the appellant’s failure to check whether the sett was active and on his ability to recognise signs which he would have seen had he looked. That reasoning established, at most, a risk of which he should have been aware. It did not establish actual awareness of the risk. The finding that he had closed his eyes to the risk demonstrated that the magistrates had applied the discredited objective approach.
4. The Case Stated contained no evidential basis for the finding that the appellant was aware of a risk that he would destroy an active sett. The unexplained conclusion that he was not telling the whole truth did not cure that deficiency. Questions (b) and (c) were therefore answered “Yes” and “No” respectively. Question (a) was answered “No”. The conviction was quashed and reversed, and a verdict of not guilty was substituted. An order for defence costs was made under section 16 of the Prosecution of Offences Act 1985.

• High Court (Administrative Court): allowed the appeal by Case Stated against the conviction of the Scarborough Magistrates. The conviction was quashed and reversed, and a verdict of not guilty was substituted.