High Court Grants Gamekeeper Go-Ahead To Challenge Natural England Tuesday 25th Nov 2014

the-national-gamekeepers-organisation-logoA gamekeeper has been given permission by the High Court to proceed with a claim for Judicial Review against the Government’s wildlife licensing authority, Natural England (NE). The self-employed gamekeeper had applied for a licence to control buzzards attacking young pheasants on a small game shooting enterprise he runs for local farmers in Northumberland. NE acknowledged that the birds of prey were causing serious damage but refused to issue a licence under the well-established licensing process approved by Parliament for use in such circumstances.

Applications for a Judicial Review do not come cheap and can cost the applicant tens of thousands of pounds. It would be interesting to know just who is funding this application, because the reasons  for doing so are plainly obvious? If the application is successful, will it be peregrines and goshawks next, and importantly what will be the use of  wildlife legislation  if courts can over-rule such legislation???

The Honourable Mrs Justice Thirlwall DBE gave permission to proceed with the claim for Judicial Review on the basis that it was arguable NE had been inconsistent and unreasonable in refusing the licence. The case will now proceed to a full hearing which is likely to take place in the first half of next year.

Ricky McMorn, the self-employed gamekeeper seeking the buzzard control licence, may go out of business and lose his livelihood if a licence is not forthcoming. He said:

“This is a real David and Goliath situation. I am having to battle the might of the state in the form of Natural England to protect my birds and my job. They admit I’ve got a problem and agree that I have done everything I can but still they won’t give me a licence. It’s unfair and it’s wrong. Hundreds of other people get licences to kill protected birds every year.”

The Wildlife and Countryside Act 1981 protects all wild birds but it also allows for control licences to be granted for certain purposes. One of these is the prevention of serious damage to livestock including, specifically, gamebirds kept for the provision of shooting. Before any such licence can be granted by NE strict tests must be met – including demonstrating that the damage being caused is indeed serious and that there is no other satisfactory solution. Where these tests are met, however, a licence cannot be unreasonably withheld.

Whilst refusing this licence, in earlier considerations of the case NE has accepted that:

  • the damage being experienced is serious;
  • buzzards are the main cause of the pheasant deaths;
  • Mr McMorn has done all that can reasonably be expected of him in scaring off the buzzards and otherwise protecting his pheasants;
  • removing a small number of buzzards from the site would not compromise the species’ conservation status.

There are now over 300,000 buzzards in the UK and numbers are booming. The population has undergone a four-fold increase during the last forty years according to The State of UK Birds 2014, published on behalf of Natural England by the RSPB.

To prevent damage to fisheries, NE regularly issues licences under the same system to kill many thousands of cormorants each year – up to 20% of the UK population. Cormorant numbers peak at around 41,000 birds in the UK, compared to 300,000 buzzards.

NE also allows buzzards to be killed at UK airports and it has, in the recent past, allowed a free-range poultry farmer to trap and remove buzzards causing serious damage to his chickens. This is in sharp contrast to applications made by gamekeepers, where no licence to kill or remove buzzards has ever been granted.

Mr McMorn’s case is being supported by the National Gamekeepers’ Organisation (NGO), which believes strongly that the law and due process should always be followed. The NGO’s spokesman said:

“This case is about a gamekeeper who is trying to do the right thing within the law to address a real and serious threat to his livelihood. NE has a duty to administer licensing fairly, yet the facts speak for themselves. Extensive discussions with NE about solving our member’s problem and saving his job have got nowhere. It is time to let the High Court decide whether NE has been acting in accordance with the law.

“Fair and proper implementation of the longstanding licensing system is essential, not only to the wellbeing of the countryside and those who work there but also ultimately to its wildlife. If expanding predatory species become problematic but people are denied access to the existing legitimate solution, the risk of mavericks undertaking indiscriminate, illegal activity will never go away. We utterly condemn illegal persecution of birds of prey and it must stop.”

Notes to Editors

  • The National Gamekeepers’ Organisation is an active member of PAW – the Partnership for Action Against Wildlife Crime.

The National Gamekeepers’ Organisation represents the gamekeepers of England and Wales. It defends and promotes gamekeeping and gamekeepers and ensures high standards throughout the profession. It was founded in 1997 by a group of gamekeepers who felt that their profession was threatened by public misunderstanding and poor representation. The NGO now has more than 15,000 members.

For more information about the NGO see www.nationalgamekeepers.org.uk

25 comments to High Court Grants Gamekeeper Go-Ahead To Challenge Natural England Tuesday 25th Nov 2014

  • NGO

    In answer to your questions (italicized paragraph 2 added above), the Judicial Review is being funded by the National Gamekeepers’ Organisation. The court is not being asked to ‘over-rule legislation’, it is being asked whether the existing legislation in the Wildlife and Countryside Act 1981 is being correctly implemented by the wildlife licensing authority, Natural England. See more on this at:
    http://www.nationalgamekeepers.org.uk/blog/2014/11/fairness-in-licensing

  • Jeff

    NGO, why are you supporting a gamekeeper with serious convictions with regards to banned pesticides?

    Editor’s Comment. Jeff well spotted, because of this conviction the application should be thrown out altogether.

  • NGO

    He had a conviction in 2007 for possession of banned pesticides. No evidence was presented that a wildlife crime had been committed. The man pleaded guilty, paid his fine and the conviction is now long since spent and therefore cannot be taken into account by NE.

    There is a right and a wrong way to manage wildlife. Applying for a licence is the right way and applications should be assessed by NE fairly and on their merits. That is what this case is about. The NGO supports fair licensing; it utterly opposes illegal persecution.

  • nirofo

    Rather than killing legally protected birds of prey wouldn’t it be far better all round for the gamekeepers to ensure that the Pheasant poults are protected in their pens and runs before they are released into the big wide world to take their chance along with all other wildlife. Surely it’s a no brainer to cover the pens with wire netting to prevent predation, or are you saying it’s easier and cheaper to just kill the birds of prey anyway. Surely to anyone who’s looking at this from a sensible point of view, there is no comparison to the number of Pheasants reared and released into the countryside, which is (approximately 40 Million plus birds per year), many of which die through impact with cars, to the number of Buzzards,(approx 68000 pairs)in the whole of the UK.

    To have the gall to ask for a licence to kill indigenous legally protected Buzzards in the misguided belief that it will make any difference to the already extremely high number of non native Pheasants that this environmentally overburdened country can support, is nothing more than sheer arrogance and total disrespect for the wildlife of the UK and the people who hold it dear.

    If the only way that the shooting estates and shooting syndicates etc, can continue to have the high numbers of birds they require for the guns to shoot is at the expense of our protected wildlife and the environment, then it’s high time that these types of shoot were ended for good and relegated to the pages of distasteful history that adorned the Victorian era.

    There should never be any reason whereby the shooting establishment should be allowed to kill legally protected wildlife, birds of prey etc, in order to further their own ends of game shooting for so-called sport. Protected wildlife means just that, they are legally protected by law !!!

  • Albert Ross

    NGO. You are talking some sense but surely somebody with a conviction has a criminal record and as such NE are within their rights to deem Mr. McMorn unsuitable to obtain a licence. The obtaining of a licence is NOT as of right to a certain position. It operates in the same way as people are refused Firearms Certificates or to licences to approach nests of Schedule 1 birds for photographic purposes.

    I also think Mr McMorn should be given a licence to protect his livelihood. It would be to trap the predators but NOT to kill them. They could then be removed and released elsewhere at some distance. Cheaper and more humane than a Judicial review, the outcome of which is very uncertain. Mrs Justice Thirwall has only said the case was ‘arguable’ and should be subject to review. She did NOT say refusing the licence was wrong!

    • nirofo

      The idea of gamekeepers etc, not killing predators but trapping and releasing elsewhere has been talked about often both on this blog and others. While it might appear feasible to people who would like it to work for obvious reasons, in practicality it’s a non starter. In the case of Buzzards, the trapping and releasing elsewhere would have one of two possible results; firstly the released bird would more than likely find it’s way back to it’s own known preferred territory, secondly if the relocated bird didn’t return within a reasonably short time the vacant territory would be taken over by another Buzzard, )probably a young bird) waiting to set up his own territory. This scenario also applies to many other territorial species of legally protected predators.

      • nirofo

        The fact is that it’s so very well known in both ornithological and gamekeeper circles that vacant bird of prey territories are quickly re-occupied by new birds. This is another of the reasons, if not the main reason why the issuing of licences for removing / killing Buzzards and other Raptors should never be allowed.

  • NGO

    As a point of law, NE cannot take into account a ‘spent conviction’. That is what the Rehabilitation of Offenders Act 1974 is all about. It gives those convicted in the past a chance to ‘go straight’ without hindrance after a period of time, the length of which depends on their original offence (in this case it was five years).

    Your views on trapping and removing the problem birds are pertinent. In the case under Judicial Review, NE’s own expert recommended they should issue a licence for the live trapping and removal elsewhere of a total of 8 buzzards. His superiors rejected his recommendation, however. That rejection, in our view without due consideration or justification, is one of the grounds being challenged by Mr McMorn and the NGO.

    You are quite right that the judge said the case was ‘arguable.’That is always the first stage in a JR proceeding – it means permission has been given to bring the case. Whether or not the refusal of the licence was wrong in law is what will be determined at the full hearing, likely in the first half of next year.

    • nirofo

      Let’s assume for a moment that licences are issued for the live trapping and removal of up to 8 Buzzards, the birds are trapped humanely and are relocated to some distant “suitable” habitat. Some time passes and more Buzzards arrive to fill in the vacant territories and set themselves up ready for breeding, we now have a problem! The licences to trap and relocate the 8 Buzzards used up and it is now illegal to trap any more Buzzards; so dilemma, does the gamekeeper re-apply for a licence to live trap and remove more Buzzards in the sure knowledge that it’s a scenario that will need repeating over and over, or does he think to himself, let’s be realistic here. He knows, or should know that he can’t legally kill the birds, they’ll just re-occupy the vacant territories anyway, he can’t relocate them, they’ll just return anyway. Brainwave, why not prevent the Buzzards gaining access to his Pheasant poults in the coops and pens in the first place and accept that he must lose a few birds to natural predation once they are big enough to be released into the big wide world, that way the threat to his birds is minimised.

  • NGO

    The gamekeeper involved rears and releases pheasants for shooting. Not everyone likes that, we accept, but its a legitimate activity (like farming non-native rainbow trout, for which cormorant licences are regularly granted) and pheasant releasing is the base of rural activity now worth £2 billion a year to the UK economy (see www. shootingfacts.com).

    In most cases, buzzards and gamebirds co-exist without undue problems; some gamebirds get predated but not too many. Gamekeepers can live with that. The literature shows, however, that from time to time buzzards seem to key in on young gamebirds as a prey and they kill a lot of them – up to 30% has been recorded. This is probably down to individual buzzards and learned behaviour within family groups. If you remove the culprits, lethally or otherwise, the problem should be solved – just as it was in the case of the chicken farmer who was allowed to remove two buzzards repeatedly attacking his hens last year.

    The gamekeeper in the current case has experienced unusually high losses of his pheasants to buzzards for a number of years, both inside and outside his release pens (which can’t have roof nets, nirofo, or the birds won’t ‘release’). Bag returns on the shoots have crashed to the point where his livelihood is now on the line.

    NE have visited many times over the years and accept that the gamekeeper has a genuine problem and that it is being caused by buzzards. They have advised him on all sorts of other potential solutions, such as visual and auditory scaring, providing more cover for the pheasants to hide in and the provision of alternative feed. The gamekeeper has done all this to an extent that NE staff accept is reasonable but it just has not worked.

    In 2013 he applied for – and NE granted – a licence under Section 16 for the destruction of four buzzard nests. NE could not legally have issued that licence without accepting that the problem was genuine and there was no other satisfactory solution. Sadly, that didn’t work either, so this summer, for the sixth time, the gamekeeper applied to remove some adult buzzards from the critical locations. NE refused, despite their own expert assessor recommending that 8 buzzards should be non-lethally cage trapped and removed elsewhere.

    This case isn’t about ‘opening the floodgates’ for many more applications or for other species. The strict licensing tests will still be there in law and even if the court finds against NE, each future case will have to be judged, just as it is supposed to be now, on its merits.

    This is instead a case about fairness and due process. The NGO wants all licence applications to be judged fairly and on the facts as the law requires. That is why we are supporting the gamekeeper’s application for judicial review.

    If the legitimate licensing solution put in place by Parliament back in 1981 is not properly administered, we will never solve illegal persecution which, I repeat, the NGO utterly condemns.

  • Coop

    Let’s put this in a nutshell. These shoots can only exist when supported by deliberate, and sustained impoverishment of local ecosystems. End of.

  • nirofo

    OK, let’s accept for the moment that the gamekeeper has a legitimate problem with Buzzards preying on his Pheasant poults, let’s also assume that he obtains his licence to trap and relocate to some other “suitable for the 8 Buzzards” locations without harm to them. OK, so he’s managed to get through the seasons breed and release program without interference from Buzzards, but wait a minute, now there are more Buzzards arriving and taking up the old territories the relocated Buzzards used to use, they can’t be the same birds we had before can they? It doesn’t matter whether they are the same birds or not, if a territory was suitable for one Buzzard and suddenly it becomes vacant then other birds, possibly even the relocated birds young will sooner or later take over that vacant territory and it will start all over again. This is a well known and documented fact of nature among territorial predatory bird and animal species and not a figment of imagination, even gamekeepers must know and acknowledge that.

  • Albert Ross

    Nirofo,
    I do know that released birds can return to the original territory and/or a newcomer moves in and in this case the same applies if the existing territory ‘owner’ is killed. Hopefully the newcomer may not have ‘learned’ that Pheasant poults are easy pickings and the situation will improve. But whether or not the birds return is not our problem and it is interesting to see that the ‘relocation’ idea was suggested. I wonder why?
    NGO. I appreciate at some stage the nets over pens have to be removed but only as the birds come into full feather. Obviously once over the wire they are still vulnerable and I again wonder if this is not why your client wants to shoot miscreant first and decide if the bird was actually predating later. But until in full feather there could be nets in place or other methods of preventing predation. If buzzards learn the outlet is closed they will have to hunt elsewhere.
    Finally this statistic of predation losses of 30%. How many poults are reared in a season? 1000, 2000 or what? Are you telling us that 600 poults are being taken in the few short weeks they are in the release pens? 600 in say 60 days is ten per day every day. It’s wonder the Buzzards can fly on that diet.

    • Terry Pickford, North West Raptor Protection Group

      I am aware of one Lancashire gamekeeper, who because he had a nesting pair of goshawks inside the release wood, installed spruce sprigs a few feet above the ground throughout the pheasant release pen. The larch cover acted like a blanket across the whole pen, concealing completely the pheasant poults below. I observed 3 fledged goshawks perched in the trees directly above the pen calling for food for three consecutive days without a single attack by the goshawks on any of the poults. This would seem to me to be a proven and tested method of preventing the goshawk from predating upon the poults, at least when the poults were still inside the pen. I am sure this would also have the same results for buzzards.

  • John Miles

    These so called livestock will have to be ringed so that owners and the public know whose livestock they belong to. When these livestock are found causing damage and stress to members of the public on public roads then the appropriate action can be taken. For example if a farmer looses a cow onto a public road he has to be insured against damages. No game bird as livestock can be trained to become ‘wild’ so when they are released they are still livestock just as a farmer’s cow is not wild once it enters a public road. As everyone knows rabbits are the main food of Buzzards. Rabbits cause £200 million a year damage to farmers. So why would any one need to kill or remove a Buzzard!

  • paul williams

    A license to cull Peregrines and Hen Harriers is not required by a gamekeeper. So the big question is…Why do you need one for Buzzards?

  • What terry says is true I know of a site in co Durham,where a pheasant pen is also hidden by larch and fir from above and the nearby goshawks and common buzzards simply leave them alone,also the afore mentioned keeper needs to check his facts a common buteo could not eat that many pheasant in that period of time….co Durham raptor researcher.

  • Trapit

    Goshawk and buzzard will behave like a fox in certain cases killing far more than they can consume…..north of England raptor researcher.

    • nirofo

      That’s rubbish, I’ve been deeply involved with Raptors for 45 years and I’ve never known them to go on a killing spree for the sake of it, even when they have young they only take what they need to feed them.

  • paul williams

    And the Bears eat the Salmon eggs and discard the carcass…which feeds the eco-system.

  • The real Raptor reasearchers that write on this subject have already mentioned in the above the true feeding,hunting habits of common Buteos, and like the above they simply dont go on killing sprees,one of the above is not a raptor researcher but a gamekeeper.

  • paul williams

    Only man kills on the Moors…Everything else lives to survive by which ever
    way nature intended.

  • Trapit

    Very perceptive. Mr Bastin,was it the name that gave me away ?. Gamekeeper,schedule one licence holder (yes we do exist) one time RSPB monitor egg and chick marker etc. I have witnessed the subject of my previous post on a number of occasions.Even Tawny owls are not immune from the practice though for possibly different reasons.