Foster v Crown Prosecution Service [2013] EWHC 3885 (Admin) (07 June 2013)

Foster v Crown Prosecution Service [2013] EWHC 3885 (Admin) (07 June 2013)

The magistrates misapplied the test for recklessness by convicting the appellant on the basis of what he would have discovered had he checked for signs of activity, rather than on actual subjective awareness of risk. There was no evidence that Mr Foster was aware of a risk that the badger sett was active at the material time. Therefore, the conviction for recklessly destroying a badger sett could not stand.

Citation
[2013] EWHC 3885 (Admin)
Parties
Appellant: Foster; Respondent: Crown Prosecution Service
Jurisdiction
England and Wales
Judgment Date
07 June 2013
Procedural Posture
Criminal Appeal by Way of Case Stated / High Court (administrative Court) Judgment on Appeal From Magistrates' Court
Outcome
Appeal allowed; conviction quashed; verdict of not guilty substituted; order for defence costs made.
Legal Topics
Recklessness, Expert Evidence, Protection of Badgers Act 1992, Admissibility of Evidence, Mens Rea
Criminal Law Wildlife Law Recklessness Expert Evidence Protection of Badgers Act 1992 Admissibility of Evidence Mens Rea

Case Brief

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Parties

Foster

Appellant

Crown Prosecution Service

Respondent

Procedural Posture

Criminal Appeal by Way of Case Stated / High Court (administrative Court) Judgment on Appeal From Magistrates' Court

Legal Issues

  1. 1 Whether the magistrates erred in law in admitting expert evidence from Mrs Thorpe
  2. 2 Whether the magistrates erred in law in finding that Mr Foster recklessly destroyed a badger sett
  3. 3 Whether there was evidence on which the court could come to its conclusion of recklessness

Ratio Decidendi

The magistrates misapplied the test for recklessness by convicting the appellant on the basis of what he would have discovered had he checked for signs of activity, rather than on actual subjective awareness of risk. There was no evidence that Mr Foster was aware of a risk that the badger sett was active at the material time. Therefore, the conviction for recklessly destroying a badger sett could not stand.

Court Disposition

Appeal allowed; conviction quashed; verdict of not guilty substituted; order for defence costs made.

Orders

  • Conviction quashed
  • Verdict of not guilty substituted under section 28A of the Senior Courts Act 1981