Licences for the killing or taking of wild birds for specified purposes were not unlawful


Re: Wild Justice v Natural Resources Wales [2021] EWHC 35

The claimant conservation organisation applied for judicial review of the defendant Welsh licensing authority’s issue of three general licences for 2020 for killing or taking wild birds for specified purposes.

The defendant was authorised to issue licences to kill or take wild birds posing such threats where there were no other satisfactory solutions. In 2020 it had issued three general licences for the year. They had the respective purposes of preventing serious damage or the spread of disease to livestock or crops, preserving public health and preventing the spread of disease to humans, and conserving wild birds.

The defendant had not set out a minute level of detail in the licences, but was clear that it remained nonetheless for the licensee to show by objective evidence that a real risk existed so as to justify any killing, and it was for the criminal courts to assess the evidence in any given case.

The claimant submitted that: each licence should have specified the circumstances in which it could be used; a general licence was not appropriate where the defendant could not satisfy itself that there were no other (non-lethal) satisfactory solutions each time the licence was used; positive evidence had been required to justify derogations to the rule against killing.

HELD: Application refused. Three general licences issued by Natural Resources Wales in 2020 for the killing or taking of wild birds for specified purposes were not unlawful. In summary, as the licensing decision involved scientific and predictive assessments, the decision-maker was granted a margin of appreciation. While there had to be some evidence reasonably supporting the licence, full scientific certainty was not required. The licences were not unlawful for lack of specificity. The court was not persuaded that it had not acted rationally in deciding how to approach the requirement of being satisfied that there were no other satisfactory solutions. It had the power to grant general licences and was not required to deal with such solutions on a case by case basis, otherwise the statutory scheme would become unworkable. The claimant had not shown that the defendant’s judgment was irrational.

Anita Davies and David Wolfe QC were involved in this case.