4th May 2017
On Tuesday 11th April 2017 Magistrates sitting at Leamington Spa Court heard a case relating to the destruction of a bat roost. In passing sentence, in the opinion of the Bat Conservation Trust, they did great disservice to bat conservation and the wider fight against wildlife crime.
Mr Keith Marchington aged 72 years the owner of the property in question and Mr Samuel John Taylor aged 33 years a builder contracted to renovate the property both pleaded guilty to the offence and were fined just £83 and £153 respectively. Both were ordered to pay £135 costs and a £30 victim surcharge. BCT have not made public comment on this case before now and instead have been trying to understand what factors may have influenced the magistrates in their decision to impose what are clearly inappropriate sanctions.
The property in question was a bungalow and barn that were to be demolished and replaced by a new dwelling. There was a lengthy planning history relating to the site and survey work undertaken over a period of years identified and confirmed roosts of brown long eared and soprano pipistrelle bats.
The owner of the property Mr Marchington was advised on a number of occasions that he would need to obtain a licence from Natural England and would have to provide a bat house to which the bats could relocate. Despite this advice it seems that Mr Marchington decided to commence works during the spring of 2016 and asked an ecologist to obtain the required licence. When told that further survey work would be needed before a licence would be considered Mr Marchington, it was said, asked what the penalties for destroying a roost without a licence were and that he would be prepared to accept a fine. It was later found that the buildings had been demolished and the roosts destroyed. The matter was reported to the Police.
Following a lengthy Police investigation papers were submitted to the Crown Prosecution Service and were considered by a specialist prosecutor who decided that matters should be prosecuted. The case was first listed for the 11th April with both Mr Marchington and Mr Taylor pleading guilty at the earliest opportunity. Credit for doing so must be given when sentences are imposed.
As is usual, when cases are first listed at court the CPS specialist prosecutor did not attend court to prosecute this case in person. Instead it was prosecuted by a lawyer who, for whatever reason, did not appear to have prepared the case and had not previously prosecuted a case of bat crime. She had little understanding of the conservation impact of the offending, the financial benefit gained by not following lawful process (the costs of further survey work, obtaining a licence and ecological supervision of the work) or the size of fines imposed in other cases of roost destruction. Neither a conservation impact statement prepared by BCT nor a statement from an ecologist addressing these points were made available to the court. In March 2016 a judge passing sentence on a bat crime in Derbyshire fined an offender £3000 at the same time commenting that the nature of the offence was at the lesser end of a scale of offending. (R v Isar Enterprises Ltd) Those comments were not made available to the magistrates sitting in Leamington Spa.
In contrast the defence had a well prepared and well presented case that suggested that the offending was no more than administrative oversight. That when the buildings had been demolished the roof had been stripped by hand with no bats having been found. Furthermore a bat house as envisaged by ecologists had also been provided. (No mention was made to the effect that the demolition seems to have taken place at a time when bats would have been present or that the bat house that had been provided was not fit for purpose.) In drawing the defence case to a close a letter of mitigation, said to be from an ecologist, was submitted to the court.
One of our concerns regarding this case was what exactly did the letter that was handed by the defence to the court say. Was it a letter from an ecologist excusing the defendants and perhaps taking responsibility for any failures to secure a licence? In fact that was not the case. BCT understands that in fact it said no more than that an alternative bat house had been provided and that further work would be undertaken to make it more attractive to bats.
We can only surmise that the magistrates who heard this case were swayed by the arguments put forward by the defence. But even so how did they decide to fine Mr Marchington only 25% of his declared weekly income. Recent sentencing guidance would have allowed a fine of up to a maximum of 650% of weekly income and legislation allows the imposition of unlimited fines? Indeed 25% of weekly income is the minimum fine that the guidance suggests can be imposed.
What this case does do is to demonstrate once again the need for guidance on the sentencing of wildlife crime. Working with other partners BCT are pressing the Sentencing Council to produce such guidance. This sentence can only assist in making the case.
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