Warners Rural Briefing Autumn 2012

Autumn 2012
Welcome
Warners are proud of
our long established
relationship with farmers,
landowners and landed
estates, having acted for
WARNERS’
RURAL BRIEFING
Beware of the dog: think before you shoot
Shooting an out of control dog on his land, may
seem a reasonable step for the farmer, but should be
approached with the utmost caution.
several generations of farming families
for over 200 years. We know that this
industry faces unique challenges, which
is why we have a dedicated team of
agricultural and landed estate solicitors
with a detailed understanding of the
issues of relevance. In this first edition
of Warners’ Rural Briefing we include a
number of short articles by our lawyers
that we hope you will find of interest.
Killing or injuring a dog could lead to an
Section 4 of the Animal Welfare Act 2006 makes
allegation of criminal damage. The question the
it an offence to cause unnecessary suffering to
police will want to know is whether the farmer
protected animals, and relevant considerations
had a lawful excuse. He will have to show
include: whether the suffering could reasonably
that he acted in the belief that property was
have been avoided or reduced; whether the
in immediate need of protection, and that his
conduct was for a legitimate purpose, such
actions were reasonable having regard to all the
as protecting a person, property or other
animal;
a imal; whether the suffering was
an
circumstances.
proportionate
to the purpose;
propor
He might also find himself facing
acing
and w
whether the conduct was
a civil claim for damages, in which
Contents
in al
all the circumstances that of
case he will need to rely on the
a reasonably
competent and
re
defence under section 9 of the
humane
person. Anything other
hu
 Beware of the Dog
Animals Act 1971. This is more
ore
 Wild Horses
onerous than the lawful
 Not Guilty
excuse defence to a criminall
 Trapped Crane
damage charge, and
 Agricultural Wages Board
requires him to show that
The
T use of a rifle may be a
 Meet the Team
he believed on reasonable
breach of the conditions
Our Services
than
th a single, clean shot and
immediate
despatch could
im
result
in prosecution.
r
grounds that either: the
attached to the holder’s
dog was worrying or about
certificate. In any event,
to worry livestock and theree
it is very likely the police
 Agricultural tenancies
were no other reasonable
 Land tribunals
means of ending or preventing
ing it;
 Rights of way & boundary issues
or, that the dog had been wo
worrying
w
rrying
 Farm & land sales & purchases
livestock, had not left the vicinity
c nity andd
ci
 Employment issues
was not under anyone’s control and there were
legal representation and is an uncertain and
 Tax and trust advice
no practicable means of finding out to whom it
expensive business.
 Personal injury claims
belonged. There is a strict requirement to inform
 Firearms licensing
the police within 48 hours, and any failure will
 Animal welfare prosecutions
prevent subsequent reliance on the defence in
 Criminal & regulatory offences
civil proceedings.
www.warners-solicitors.co.uk
will
w review the certificateholder’s
suitability. Appealing
hol
the revocation
of a shotgun or
re
firearm ccertificate requires expert
Shooting a dog should be approached very
much as a last resort. Otherwise the farmer
could be replacing one worrying problem with
others.
Warners’ Rural Briefing, Autumn 2012
Wild Horses?
DEFRA will shortly consult once again over possible reform of the law
concerning civil liability for damage caused by animals.
Section 2(2) of the Animals Act 1971 makes keepers liable for damage
a lane, before turning off on to a track. Shortly afterwards, Mrs Hall’s
caused by horses and other non-dangerous animals, where three
horse, Pepper, shot forward, apparently in panic at something, and
conditions are satisfied: (a) it is of a kind which the animal, unless
the trap overturned. There was no evidence that the horse had ever
restrained, was likely to cause, or which, if caused, was likely to be
behaved like this before or of negligence by Mrs Hall.
severe; and (b) the likelihood of damage was due to characteristics
of the animal which are not normally found in animals of the same
species or only at particular times; and (c ) those characteristics were
known to that keeper.
In Goldsmith -v- Patchcott [2012] EWCA Civ 183, the defendant was
the keeper of a horse called Red which he wanted to give away. The
claimant was an experienced rider who came to see and ride the
horse three times. Mr Patchcott told her that Red was “on his toes”
There is a statutory defence, in section
and would require an experienced rider. On the third visit, something
5(2) of the Act, which excludes
startled Red, who reared up and bucked violently. The claimant was
liability for any damage
thrown to the ground and was struck by the horse’s hoof, suffering
suffered by a
severe facial injuries. She accepted there was a risk when riding any
person who has
“voluntarily
accepted the
risk”.
horse that it might be spooked at any time but denied she was aware
that it might rear and buck as violently as it did.
In Turnbull -v- Warrener [2012] EWCA Civ 412, Mrs Warrener had a
well-behaved horse called Gem, which she agreed Ms Turnbull would
Many
exercise for her. After four months, Gem’s teeth had to be filed and
cases have
the dentist advised that the horse should not be ridden with a bit
considered the
interpretation of Section
2(2) over the last few years and
most claims have failed.
DEFRA previously consulted in 2009
with a view to amending Section 2(2), on
the premise that its meaning was unclear and
fuelling litigation. No agreement could be reached
and reform was abandoned. This time, DEFRA have
for the following week. Mrs Warrener borrowed a bitless bridle and
Ms Turnbull introduced it to Gem, first for about five minutes in the
lungeing school, then for fifteen minutes in another enclosed area
and finally in an outdoor space for twenty minutes. She then wanted
to canter Gem up the field, to which Mrs Warrener reluctantly agreed.
Unfortunately, Gem galloped out of control. Ms Turnbull fell off and
was injured.
In all three cases the claim failed, with the court finding that each
claimant was an experienced horsewoman who had voluntarily
accepted the risk. These are important decisions which make it very
simply invited suggestions.
Three recent decisions have clarified the position for claims
brought by experienced horse riders.
In Bodey -v- Hall [2011] EWHC 2162 QB, the claimant sustained
serious head injuries when she was the passenger in a pony
and trap being driven by her friend Mrs Hall, with whom
she had ridden with as a groom on several previous
occasions. On the day of the accident, they rode down
unlikely that any experienced rider, when riding (or driving) someone
else’s horse, could bring a successful claim under Section 2(2).
Those who originally proposed the amendments considered by DEFRA
in 2009 wanted to clarify the law and strengthen the position of
animal owners – but these objectives have already been achieved by
the caselaw. It is unlikely any further consensus will be achieved in the
forthcoming consultation.
modern thinking
Warners’ Rural Briefing, Autumn 2012
“Not Guilty” only if you can afford it
The risk for farmers, landowners and other employers of inadvertently falling
foul of the law, or of being wrongly accused, has never been so great.
The amount of regulation affecting every walk of life has increased
of the legal costs of acquitted defendants is restricted to rates which
exponentially over recent years, not least where animal husbandry, the
mean that, in the vast majority of cases, they will get back less than
environment, wildlife and firearms are concerned. Those entrusted with
half, and possibly no more than a quarter, of what the proceedings
enforcing the law, particularly in the regulatory sector, are increasingly
have actually cost them. Unfair as it is, this reflects harsh realities
underfunded and under-resourced, such that the quality of decision-
at a time of unprecedented economic difficulty and strain on public
making is sorely lacking.
resources. To make matters worse, where the defendant is a company
Unmeritorious prosecutions are by no means as rare as they ought
to be, and most of us, at some point, could find ourselves in the
unfortunate position of being accused of having committed some
offence or other.
The primary objective of criminal justice should be to convict the guilty
and acquit the innocent. In the rush to achieve the former we should
not forget the latter. Sadly, recent changes affecting the recovery
of costs by a successful non-legally aided defendant have severely
undermined the value we place on the presumption of innocence.
For prosecutions commenced after 1 October 2012, the reimbursement
rather than an individual, or where the alleged offence is tried at the
Crown Court rather than a magistrates’ court the changes mean the
innocent defendant will be unable to obtain reimbursement of any
privately paid legal costs at all.
Every farm and estate would be
wise to ensure they have insurance
cover for legal fees in the event of a
prosecution. There are a number of
excellent policies available, which also
include cover for legal representation
at formal interviews under caution.
Trapped crane leaves police with nothing to crow about
In July 2012 a Judge at Nottingham Crown Court described the prosecution
of a farmer over his use of two crow traps on the family shoot as being “an
appalling abuse of process”.
The case concerned the use of two Larsen traps, a common form of
Instead, he visited the farm early one Sunday morning, where he
cage trap widely used for controlling crows and magpies to protect
covertly filmed one of the traps in use. He returned to the farm ten
chicks and eggs of ground-nesting birds. Their use is permitted under
days later and was shown both traps. It was only after interviewing Mr
the terms of a General Licence issued annually.
Crane that he drew his attention to the new condition.
Ivan Crane was convicted of an unrelated wildlife offence in April
The Judge described the actions of the police officer as being
2011. He was unaware of a condition, added in 2010, which prevented
“entrapment of the worst kind”. He said that it was a matter of
reliance on the General Licence by anyone with a relevant conviction.
fairness and referred to the duty of the police in preventing crime.
A Leicestershire Police Wildlife Crime Officer, who was aware of Mr
He also heavily criticised the failure of the Crown Prosecution Service
Crane’s traps and was present in court when the earlier matter was
to review the case in the light of representations from Tim Ryan of
dealt with, decided not tell him about the new condition.
Warners, and ordered them to pay Mr Crane’s legal costs.
traditional values
Warners’ Rural Briefing, Autumn 2012
The abolition of the Agricultural Wages Board
In 2010, the Coalition Government announced its intention to abolish the
Agricultural Wages Board, as part of its shake-up of public bodies.
The Public Bodies Act has now been passed and the intention was that
1 October 2012 agricultural workers would be regulated by the
the Board would be abolished from 1 October 2012.
National Minimum Wage (NMW) and Working Time Regulations.
The Agricultural Wages Board, which was established by the
The Board will not, however, now be abolished on 1st October 2012.
Agricultural Wages Act 1948, has a statutory obligation to fix minimum
During this spring, it became clear that the consultation period
wages for workers employed in agriculture in England and Wales.
required before abolition would not be completed and, in July, it was
The rate of pay depends on the type of work involved. The Board also
confirmed that the Board would not be abolished and that there would
has powers to decide other terms and conditions of employment for
be a new Agricultural Wages Order on 1st October 2012.
agricultural workers, such as holidays and sick pay. It produces a legally
binding Agricultural Wages Order, which is enforced by the Department
for Environment, Food and Rural Affairs. The Order is made annually
and normally comes into force on 1 October. The current Order is due
to expire on 30 September 2012 and the intention was that from
The wage for Grade one workers will increase by 1.8% to £6.21, just
ahead of the National Minimum Wage, which will rise to £6.19 for
workers aged 21 and over in October. Workers at Grade two and above
will receive a 2.8% increase, to £6.96 for grade two.
Meet the Team
Steve Colville
Tim Ryan
Partner
Rural & Commercial Property Specialist
Partner
Criminal & Regulatory Defence Specialist
01732 375353
[email protected]
01732 375395
[email protected]
Tonbridge
Bank House
Bank Street
Tonbridge
Kent TN9 1BL
T: 01732 770660
Robert Twining
Angela Rowe
Partner
Property Dispute Resolution Specialist
Partner
Rural & Commercial Property Specialist
01732 747910
[email protected]
01732 747907
[email protected]
Michael McNally
Estelle Tague
Partner
Employment Law & Litigation Specialist
Private Client Lawyer
Taxation Specialist
01732 375396
[email protected]
01732 375368
[email protected]
F: 01732 362452
Sevenoaks
16 South Park
Sevenoaks
Kent
TN13 1AN
T: 01732 747900
F: 01732 747919
The content of this newsletter is for information and guidance only and should not be relied upon without seeking legal advice Warners is the trading name of Warners Law LLP, a limited liability partnership registered in
England and Wales with registered number OC320151. Authorised and regulated by the Solicitors Regulation Authority, Tonbridge: 00446201, Sevenoaks: 00269454. Tonbridge is the registered office and a list of partners’
names is available from that office.
www.warners-solicitors.co.uk