3PLR – TRAILL V. BUCKINGHAM
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
TRAILL
V.
BUCKINGHAM
COURT: QUEEN’S BENCH DIVISION
HEARING DATE(S): 17 FEBRUARY 1972
[1972] 2 ALL ER 389
3PLR/1972/141 (CA-E)
LORD(S):
ASHWORTH,
MELFORD STEVENSON AND
FORBES JJ
MAIN ISSUES
TORT AND PERSONAL INJURY
Categories: ANIMALS
Game – Deer – Offence – Wilfully killing deer during close season – Killing of deer on any cultivated land, pasture or enclosed woodland – Exemption from liability – Killing by occupier or person having occupier’s written authority to be on that land – Action necessary to prevent damage to crops etc on that land – Whether an offence if person killing deer to prevent damage on adjoining land – Deer Act 1963, ss 1, 4, 10(3).
The respondent was the occupier of a farm. Adjoining the farm was a wood which had previously belonged to the respondent’s father. When the wood was sold the respondent’s father had reserved in the conveyance the right to kill by shooting all deer which might be causing damage to crops. On 10 June 1971 the respondent noticed damage to crops in one of his fields near the wood and, rightly assuming that it had been caused by deer from the wood, he organised a shooting party. Having entered the wood with his party, the respondent shot and wounded a deer which he subsequently killed with a further shot. In respect of the first shot he was charged with attempting wilfully to kill the deer during the close season contrary to ss 1a and 4b of the Deer Act 1963. The justices dismissed the information holding that the terms of s 10(3)c of the 1963 Act (which exempted from liability a person shooting deer on cultivated land, pasture or enclosed woodland of which he was the occupier, or where he had acted with the written authority of the occupier, provided that his action was necessary for preventing serious damage to crops etc ‘on that land’) were wide enough to cover the respondent’s action.
Held – The appeal would be allowed and the case remitted to the justices to find the offence proved, for the words ‘on that land’ in s 10(3) meant the land on which the shooting had taken place and could not be construed as allowing a person to shoot deer in order to prevent damage to crops on adjoining land (see p 392 f h and j, post).
Notes
For the killing of deer during the close season, see Supplement to 18 Halsbury’s Laws (3rd Edn) para 335A.
For the Deer Act 1963, ss 1, 4, 10, see 14 Halsbury’s Statutes (3rd Edn) 505, 507, 508.
Case stated
This was an appeal by way of case stated by justices for the county of Devon acting in and for the petty sessional division of Tiverton in respect of their adjudication as a magistrates’ court sitting at Tiverton on 8 October 1971.
On 19 July 1971 an information was preferred by the appellant, Allan Traill, against the respondent, Dennis John Buckingham, charging that he on 10 June 1971 [at Bampton] did attempt to wilfully kill a certain deer, namely a red hind deer, during the close season prescribed by Sch 1 to the Deer Act 1963, contrary to ss 1 and 4 of that Act.
The following facts were found:
(a) At the relevant time the respondent was the occupier of land known as Bremridge Farm, Shillingford, near Bampton. Immediately adjoining the farm was a wood known as Ranscombe Wood which at one time formed part of Bremridge Farm but had been sold off by a previous occupier, the respondent’s father. Under the terms of a deed of conveyance executed on 12 September 1961 by the latter, he as vendor had purported to reserve to himself and his successors in title the right ‘to kill by shooting or trapping or snaring and to take away and dispose of all vermin rabbits, deer and other animals which may be causing damage to crops or otherwise … ’
(b) On the morning of 10 June 1971 the respondent noticed damage to a crop growing in one of his fields near Ranscombe Wood. He recognised the damage as being caused by deer. Although on that occasion the damage was slight, on other occasions such damage had been considerable. The respondent from his previous knowledge and experience was of the opinion that the deer which had caused the damage were to be found in Ranscombe Wood, it being the habit of deer at certain seasons of the year to lie up in woods during the day to emerge at dusk to enter on the neighbouring farms to feed.
(c) The respondent in an attempt to prevent further damage to his crops armed himself with a shotgun and by arrangement with, and accompanied by, some of his neighbours entered Ranscombe Wood at about 2.30 pm. In due course the respondent, seeing a deer among the undergrowth, discharged his shotgun at it and wounded it. The deer made off; it was followed by the respondent and his companions and was eventually dispatched by the respondent nearby. It was then discovered that the animal was a hind in calf. The carcase was skinned and the hide and horns hung on a fence near Ranscombe Wood.
It was contended by the appellant that:
(i) since the shooting on 10 June occurred during the close season prescribed by Sch 1 to the 1963 Act, the respondent was guilty of an offence unless his action fell within the exceptions set out in s 10 of the Act.
(ii) Since sub-ss (1) and (2) of s 10 were not applicable to the facts of the case, the appropriate subsection to be considered was sub-s (3) which provided:
‘A person shall not be guilty of an offence against section 1 or section 2 of this Act by reason of the taking or killing by means of shooting of any deer on any cultivated land, pasture or enclosed woodland if that person proves—(a) that he is the occupier of that land, pasture or woodland, or that he acted with the written authority of the occupier: and (b) that his action was necessary for the purpose of preventing serious damage to crops, vegetables, fruit, growing timber or any other form of property on that land, pasture or woodland.’
(iii) Although the reservation in the conveyance dated 12 September 1961 might have been considered to be ‘the written authority of the occupier’ of the land in Ranscombe Wood, the respondent must also show that the shooting was on that land on which it was sought to prevent serious damage to crops.
(iv) The shooting was in fact in Ranscombe Wood, the crops to be protected on the respondent’s adjacent land and his action was not, therefore, ‘necessary for the purpose of preventing serious damage to crops … on that land’.
It was contended by the respondent that:
(i) the reservation in the conveyance which gave him the right to enter the land in question and to shoot deer thereon was the written authority of the occupier required by s 10 of the 1963 Act;
(ii) his action in shooting the deer in Ranscombe Wood was reasonable and necessary to prevent damage to his crops on adjacent land;
(iii) the appellant’s contention that the words ‘that land’ in s 10(3) of the Act must be strictly interpreted to mean the actual land on which damage to crops was apprehended, would result in absurdity and that therefore the correct interpretation must be wider, wide enough to include land on which the shooter had the written authority of the occupier.
The justices were of the opinion that whilst the 1963 Act was enacted, inter alia, to prescribe close seasons for the killing of deer, Parliament had at the same time sought to preserve the age old right of the occupier of land to protect his crops from the ravages of deer or other vermin at any season and that s 10(3) of the Act was intended to embody that principle. They concluded that the respondent’s action in the circumstances was exempted from criminal liability by the terms of that section and accordingly they dismissed the case.
The questions for the opinion of the High Court were:
(i) Was the occupier of land who killed (or attempted to kill) deer in the close season exempted from criminal liability under s 10 of the 1963 Act, if in order to prevent serious damage to crops he killed (or attempted to kill) deer on land adjacent to the land on which damage to growing crops was apprehended provided he had the written authority of the occupier of the land on which the killing or attempted killing took place?
(ii) Was a reservation in a deed of a conveyance of land which reserved to the vendor the right to take and kill deer and other vermin which might be causing damage to crops equivalent to ‘written authority of the occupier’ for the purposes of s 10 of the 1963 Act?
V B Watts for the appellant.
The respondent did not appear and was not represented.
17 February 1972. The following judgments were delivered.
ASHWORTH J. This is an appeal by way of case stated by justices for the county of Devon sitting at Tiverton before whom the respondent appeared charged on an information that he did on 10 June 1971 at Bampton attempt to wilfully kill a
certain deer, namely a red hind deer, during the close season prescribed by Sch 1 to the Deer Act 1963, contrary to ss 1 and 4 of that Act. [His Lordship then summarised the facts set out in the case stated and continued:]
Counsel for the appellant has told the court, and one can well understand, that the appellant was mindful of the possibility that if he sought to rely on the second shot, he might be met by the exception provided by s 10(1) of the Act, that there is no offence if you shoot to kill to prevent suffering by an injured deer. So he elected to proceed on the first shot, which as I have already said, was plainly an attempt to kill.
The Act provides in s 10(3) a broad exception in these terms:
‘A person shall not be guilty of an offence against section 1 or section 2 of this Act by reason of the taking or killing by means of shooting of any deer on any cultivated land, pasture or enclosed woodland if that person proves—(a) that he is the occupier of that land, pasture or woodland, or that he acted with the written authority of the occupier; and (b) that his action was necessary for the purpose of preventing serious damage to crops, vegetables, fruit, growing timber or any other form of property on that land, pasture or woodland.’
It is therefore plain that two matters have to be established by the person charged. The first one is that he is the occupier of that land. The respondent was not the occupier of Ranscombe Wood where the shooting took place, and no attempt was made to rely on that part of para (a). But the second paragraph is: ‘that he acted with the written authority of the occupier’, and it was submitted on his behalf, and is not seriously challenged here, that he had written authority in the shape of the reservation in the conveyance by which the respondent’s father sold Ranscombe Wood. I should not like to be taken as deciding that that answer or indeed the contention, was right, but there is another ground on which this appeal in my judgment should be decided. The second limb of s 10(3) is that his action was necessary to prevent serious damage to crops etc on that land. That land, counsel for the appellant contends, is quite plainly, as a matter of construction, the land on which the shooting took place. It cannot be otherwise in my view. What the justices have done has been to extend the ambit of that exception by allowing a person to shoot on land over which he has some licence in order to prevent damage to crops not on that land but on adjoining land. The justices state their conclusions in this form:
‘We were of the opinion that whilst the Deer Act, 1963 was enacted, inter alia, to prescribe close seasons for the killing of deer, Parliament had at the same time sought to preserve the age-old right of the occupier of land to protect his crops from the ravages of deer or other vermin at any season and that Section 10(3) of the Act was intended to embody that principle.’
Stated in that form I would not quarrel with it, but applied to the facts of this case without regard to the precise terms of s 10(3), it is plainly wrong and in my judgment there is really no answer to this case and never was. I would be in favour of allowing this appeal and remitting the case to the justices to find the offence proved.
MELFORD STEVENSON J. I agree.
FORBES J. I agree.
Appeal allowed. Case remitted to justices with direction to find offence proved.
Solicitors: Sharpe, Pritchard & Co agents for N B Jennings, Exeter (for the appellant).
Susan Corbett Barrister.
