Magistrates would have been entitled to take judicial notice of the fact that goldfinches were ordinarily resident in or visitors to Great Britain, and so wild birds within the meaning of s.27 Wildlife and Countryside Act 1981.Appeal by the defendant ('H') by way of case stated from the decision of a magistrates' court finding him guilty of offences of possessing wild birds contrary to s.1(2)(a) and s.21(1) Wildlife and Countryside Act 1981. A search warrant issued under s.19 of the Act was executed at H's home and five live goldfinches were found in an aviary. He was charged with unlawful possession of each of the birds contrary to s.1(2) of the Act. An expert witness for the prosecution gave evidence that the birds were not bred in captivity. At the close of the prosecution case H submitted that there was no case to answer because there was no evidence that goldfinches were wild birds within the meaning of s.27, being birds which were ordinarily resident in or were visitors to Great Britain in a wild state. The magistrates rejected the submission and H was convicted.HELD: (1) It was implicit in the evidence of the expert witness that the birds were wild British birds within the meaning of s.27. (2) In any event, the magistrates would have been entitled to take judicial notice of the fact that goldfinches were ordinarily resident in or visitors to Great Britain. That was notorious and indisputable. (3) The real issue in the case was whether the birds had been bred in captivity. The s.27 point had not been mentioned until the submission of no case to answer. In such circumstances the prosecution should ask to recall the relevant witness and the magistrates should exercise their discretion to allow that to be done. (4) An acquittal in this case would be fortuitous and unmeritorious. Ambushes of the kind attempted in this case were to be discouraged. (5) On a prosecution under s.1 it was the defendant who had to show, on the balance of probabilities, that a bird had been bred in captivity.Appeal dismissed.

[2003] EWHC 2470 (Admin)

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