Further success on general licences – this time in Wales
Earlier this morning, His Honour Justice Jarman handed down his judgment on Wild Justice’s judicial review of Natural Resources Wales’s general licences. His judgment further limits the casual killing of birds under general licences and has implications for general licences in other parts of the UK.
Wild Justice is delighted at the content of the judgment, and its implications, even though the judge did not go as far as saying that the current licences are unlawful.
The judgment: The Wild Justice challenge of the Welsh general licences concerned the circumstances under which the licences can lawfully be used. And our main concerns were about the conservation licence (GL004) which authorises the killing of four corvid species (Carrion Crow, Magpie, Jackdaw and Jay) for the purpose of conserving wild birds. The judgment considered the following; ‘For example, carrion crows, of which there are about 20,000 pairs in Wales, prey upon the eggs and chicks of ground nesting birds, such as curlews, of which there are less than 400 pairs left in Wales.‘ and later stated ‘Thus, in the example given above NRW accepts that the relevant licence (004) should be used only to kill crows during the months between egg laying and when the chicks are well grown, namely April to July, and only in those areas where curlews nest, which do not extend to urban areas. It should not permit someone to kill a crow in the autumn or in an urban area on the basis that that bird might someday at some place take a curlew’s egg or chick.‘. In other words, you can only kill Carrion Crows under this licence where the Carrion Crows are a present danger to species of conservation concern – in those places at those times. Wild Justice believes that this is a highly significant and very welcome clarification. Justice Jarman further wrote ‘Written evidence was filed on behalf of WJ by one of its directors, Dr Mark Avery, on behalf of NRW by one of its managers Dr Sarah Wood, and on behalf of BASC by Glyn Evans, one of its heads. Whilst there was some disagreement between Dr Avery and Dr Wood, there was little if any difference between them on how the licences given for the purposes stated in them should work in practice. Mr Wolfe [counsel for Wild Justice] made it clear that WJ welcomed such clarification but submits that these clarifications should have been expressly imported into the wording of the licences. He points to the fact that Mr Evans interprets the licences more widely than NRW, and submits that that is a cogent reason why the licences should specify the circumstances of their use in greater detail.‘. In other words, the licensing authority (NRW) agrees with Wild Justice that the licence should only be used where there is a ‘present risk’, and the court agrees with us both, but BASC had a different view which was rejected by the court.
What should happen now:
1. Wild Justice calls on NRW immediately to clarify the details of their conservation licence. This only requires changes to a web page to reflect what NRW told the court it intended those licences to mean. Not to do so would constitute ongoing casual drafting of a licence which authorises otherwise unlawful actions.
2. Wild Justice believes these same issues appear to apply to the ‘livestock and crops’ licence (GL001) and so farmers should be aware that they may be acting unlawfully if they carry out ‘pest control’ at inappropriate times of year or in the ‘wrong’ places. This is not, currently, a matter of the highest priority for Wild Justice as all along we have concentrated on the ‘conservation’ licence GL004. But this judgment does have implications for other casual bird killing.
3. If NRW fails to move rapidly to clarify licence GL004 in line with what they told the court, and the court’s judgment, then Wild Justice may seek to gain evidence for private prosecutions of people killing Carrion Crows, Magpies, Jackdaws or Jays outside of the bird breeding season.
4. What does this mean for England where DEFRA have, after a consultation, issued similar general licences for similar purposes? There is one important difference in the conservation licence for England as the NRW licence stipulates that it is to protect eggs and/or chicks from corvids whereas the DEFRA licence does not have that same helpful and biologically realistic detail (of eggs and chicks) attached to it. Wild Justice has asked DEFRA for clarification of whether DEFRA believes that its licence can lawfully be used outside the breeding season for those species alleged to be protected by its conservation licence (and whether it regards corvid killing at all locations as being authorised by their licence) – as yet DEFRA has failed to clarify these points which now require urgent clarification by DEFRA for England just as they do by NRW in Wales.
5. Wild Justice will not be appealing the decision of Justice Jarman and we thank him for his clear, polite and helpful judgment on this matter.
6. In passing, Wild Justice would like to thank BASC for their intervention in this case. In our opinion, BASC’s presence did nothing to change the course of this court case, which hinged on the law, except that it made it abundantly clear that BASC wished the licences to be interpreted in a much broader way with none of the restrictions of time of year or location that NRW, Wild Justice and now the court understand them to have. We thank BASC for demonstrating the impacts of the vagueness of the current published NRW licences.
Dr Mark Avery of Wild Justice said: ‘We are very pleased. We expect NRW to move very quickly to clarify their online general licences in line with this important judgment. DEFRA too should consider the wording of its general licences for England’.
Justice Jarman’s judgement can be read here: