Last reviewed 2 November 2021
On 18 January 2021, the High Court gave judgment in the case of Wild Justice v Natural Resources Wales. Wild Justice challenged the lawfulness of licences to kill or take wild birds issued by Natural Resources Wales.
Killing, injuring or taking wild birds is a criminal offence under the Wildlife and Countryside Act 1981. Appropriate authorities may issue licences to kill or take wild birds which pose threats to livestock, crops, public health or other wild birds, where there are no other satisfactory solutions. 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 in Wales.
National Resources Wales (NRW) is the appropriate licensing authority for Wales. In 2020, it issued three general licences. The licences stated the purposes for which they were given, namely:
for preventing serious damage or the spread of disease to livestock, foodstuffs for livestock, crops, vegetables or fruit
the preservation of public health and the prevention of the spread of disease to humans
the conservation of wild birds.
The licences permit authorised persons to kill or take one or more of six species of wild bird. These are carrion crow, magpie, jackdaw, feral pigeon, wood pigeon and Canada goose. The licences set out the weapons, traps and nets which may be used and contain detailed conditions as to use.
The licences also state that they do not authorise any action within listed protected sites or within a buffer zone surrounding such sites. The licences for 2000 had lapsed but NRW will issue similarly worded licences for 2001. There was no evidence that the licences had resulted in widespread unnecessary killing of wild birds.
Wild Justice (WJ), an organisation which promotes nature conservation, accepted that that the killing of wild birds was sometimes necessary, for example, the protection of curlews. However, it argued that the licences were too broadly worded and that they allowed casual killing of wild birds unnecessarily and were unlawful. It challenged the lawfulness of the licences on three grounds.
Each licence should have specified the circumstances in which it could be used. WJ argued that without the licences specifying limits of time and space, the killing or taking of some wild birds could be authorised when such control was unnecessary.
A general licence was not appropriate where NRW could not satisfy itself that there were no other satisfactory solutions whenever the licence was used.
Positive evidence was needed to justify derogation from the general prohibition on killing or taking wild birds.
On behalf of NRW it was argued that the licences only authorised action where there was a present risk. For example, in relation to the protection of curlews, crows should only be killed during the months between egg laying and when the chicks are well grown. This level of detail was not set out in the licences.
The basis of UK law in this area was European law, currently set out in Directive 2009/147/EC on the conservation of wild birds. It applies to the conservation of all species of naturally occurring birds in the wild state in all Member States. The Directive states, in summary, that Member States must prohibit the killing or capture of protected species. This was implemented in the UK by the Wildlife and Countryside Act 1981.
The licences were not unlawful.
In granting the licences, NRW had decided how to approach the requirement to be satisfied that there were no other satisfactory solutions.
NRW’s assessment was that the evidence was too weak or too small to assess against each of the non-lethal solutions and/or that there was no quantitative or robust evidence showing that such solutions were effective and proportionate to the risk. This assessment was a matter for NRW.
NRW’s judgment on the evidence, either in respect of risk or other satisfactory solutions, was not irrational.
Wild Justice made the following comments after the case was decided.
It was delighted at the content of the judgment and its implications, even though the judge had not gone so far as saying that the current licences were unlawful.
Carrion crows could only be killed under the licences where they were a present danger to species of conservation concern. Wild Justice believed that this was a highly significant and very welcome clarification.
It called upon MRW to immediately clarify the details of their licences. This required changes to a web page to reflect what NRW had told the court that it intended the licences to mean. Not to do so would constitute ongoing casual drafting of a licence which authorised otherwise unlawful actions.
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.
If NRW fails to move rapidly to clarify the licences, WJ may seek to gain evidence for private prosecutions of people killing carrion crows, magpies, jackdaws or jays outside the bird breeding season.
WJ has asked Defra for clarification of whether it believes that its licence can lawfully be used outside the breeding season for species alleged to be protected, and whether it regards corvid killing at all locations as being authorised by its licence. Defra has failed to clarify these points which now require urgent clarification for England just as they do for Wales.
National Resources Wales commented as follows.
All wild birds are protected by law. However, in certain circumstances, where NRW is satisfied that there is no satisfactory non-lethal solution, lethal control methods can be authorised under licence.
The High Court decision meant that the three licences which were subject to the legal challenge can continue to be used to control certain wild bird species.
NRW was pleased that the High Court had judged the licences to be lawful and the judgment confirmed the evidence-based and proportionate approach which it had taken.
NRW would continue to review, update and assess all its approaches to licensing and wanted to do this in the most collaborative way possible with all stakeholders.
The licences were on NRW’s website and could be downloaded for use.