Last August a farmer was convicted of recklessly disturbing a pair of breeding ospreys at Bassenthwaite, in the Lake District (see here).
Paul Barnes, 59 from Keswick, had been found guilty after a three-day trial at Workington Magistrates. The court heard how he had taken a group of children in his tractor and trailer close to the site, without a Schedule 1 disturbance licence, causing the birds to leave their nest.
Mr Barnes appealed his conviction at Carlisle Crown Court and last week his appeal was upheld and his conviction quashed.
[Paul Barnes outside Carlisle Crown Court after his conviction was quashed. Photo from Cumbria Crack]
The following write up appeared in Cumbria Crack last Friday:
A Lake District farmer convicted last year of “recklessly disturbing” an osprey nest has had his conviction quashed.
Paul Barnes vehemently denied two charges. These alleged that he had intentionally or recklessly disturbed a male and female osprey which were in a nest at Bassenthwaite on June 13 in 2017.
The charges arose after 59-year-old Mr Barnes, of Braithwaite, near Keswick, was seen to drive a tractor and a trailer containing children close to the nesting site as he conducted one of many educational visits which have become a regular part of his farming business. The two adult ospreys were said to have left their nest for around 20 minutes.
Mr Barnes was convicted on both charges after a magistrates’ court trial in August but lodged an appeal.
This began at Carlisle Crown Court earlier this year and, after two adjournments, concluded earlier today (FRI).
A judge and two magistrates ruled the case should be stopped – and Mr Barnes’ appeal upheld – after legal submissions were made during an application by his barrister, Peter Glenser QC.
Judge James Adkin – sitting with two magistrates – summed up the three main strands of Mr Glenser’s submissions.
“An individual in authority told Mr Barnes to carry on farming as usual,” noted Judge Adkin.
“Observations had been undertaken of (nest) disturbances not wholly dissimilar to the current circumstances – in some cases arguably worse. They are characterised as agricultural disturbances and not criminal offences.
“Combined with these features there has been a lamentable failure by the prosecution to adhere to the (legal document) disclosure regime.”
As a result, the appeal panel concluded the court proceedings should halted, and Mr Barnes’ appeal against conviction was upheld.
In response, Mr Barnes – a farmer for 35 years and also a trained primary school teacher who has won national awards for conservation and children’s education – spoke “emerging from 18 months of turmoil” which had a “massive impact on family life”.
“I’m pleased with the outcome; relieved. But I wasn’t totally disappointed after the trial because I knew that all the evidence hadn’t been heard,” he said.
Moving forward, Mr Barnes said he looked forward to developing a “fruitful partnership” with all groups and individuals who had a genuine osprey interest.
ENDS
The Lake District Osprey Project, a partnership between the Forestry Commission, the RSPB and the Lake District National Park Authority, aims to ensure the continued success of breeding ospreys at Bassenthwaite. Since the birds returned in 2001, ospreys have raised over 30 chicks and have received over a million visitors, with an estimated value of £2 million to the Cumbrian economy.
Lake District Osprey Project website here
Raptor Persecution UK 
Given that the law, at least as I understand it defines ALL reckless and deliberate disturbance as an offence and a licence for various purposes is a derogation from that law that allows certain types of disturbance. I fail to understand how “An individual in authority told Mr Barnes to carry on farming as usual,” unless that person possesses a licence that covers Mr Barnes how can that fit within the legal framework?
“Observations had been undertaken of (nest) disturbances not wholly dissimilar to the current circumstances – in some cases arguably worse. They are characterised as agricultural disturbances and not criminal offences. Under the law what is agricultural disturbance? I had thought that disturbance caused by so called legitimate purpose without a licence had been removed as a defence some years ago. Surely if the nest is known and the disturbance predictable than an unlicenced disturbance is an offence.
Of course it is quite clear that Mr Barnes did not have anything other than good intent but the road to hell is paved with those. The whole thing seems rather odd, I hope somebody can enlighten me on this.
It is definitely very odd. The whole thing happened because he [allegedly] refused a police caution.
The question of ‘disturbance caused by so called legitimate purpose without a licence’ is effectively covered by Section 4(2)(c) of the WCA, viz: ‘Notwithstanding anything in the provisions of section 1 ……., a person shall not be guilty of an offence by reason of …. any act made unlawful by those provisions if he shows that the act was an incidental result of a lawful operation and could not reasonably have been avoided.’
I strongly suspect that this provision is widely known about in countryside activity circles, except that their interpretation conveniently omits the last seven words. No doubt the parties alleged to have positioned crow traps in close vicinity to Peregrine sites believe that their version of this provision legitimises their actions, whereas the correct version does nothing of the kind.
In bringing the case it looks like more RSPB money was wasted.
Justin – the RSPB doesn’t ‘bring cases’. The CPS does.
No but they certainly pushed this one very hard
Typical, just typical, another numpty who cannot wait to put the boot into the RSPB. Just like the idiots who attack the RSPCA for doing a thankless task. Given that the police have about as much interest in investigating wildlife crime, whatever they might claim, as HMRC have in clamping down on tax avoidance in large companies, who should do the investigating? Or are you content for there to be no investigation and no enforcement action at all? If the RSPB stop, because the judicial system continually fails to prosecute effectively, just who is going to try to enforce the rule of law?
Well said Simon..thank you..
Although I believe Paul is probably correct in his interpretation of the law regarding reckless disturbance, I feel that prosecution was not the best best way to deal with this case. If Mr Barnes’ intention was genuinely good and educational it would probably have been better to meet him and persuade him to avoid approaching the nest site closely with a warning that any repetition would result in prosecution. Unfortunately a failed prosecution means that effectively Mr Barnes can continue doing the same thing if he so chooses (hopefully he won’t) and furthermore provides an opportunity for the usual apologists for raptor persecution to spin stories of RSPB harassment and incompetence.
Like Paul, I am very curious about the ‘individual in authority” who told Mr Barnes to carry on farming as usual and what authority this person actually had to give such an instruction.
This was my reaction and response on Social Media:
I don’t think he’s a criminal, just irresponsible and unthinking. Work with local conservation organisation, set up a suitable viewing point with a telescope and even CCTV, share his good fortune with children and others. Much like a city Peregrine project
Mildly interesting to see that Peter Glenser represented him; am I reading too much into that? I’m sure he didn’t come cheap.
Can I also point out that there was a 5 acre broadleaf / scrub woodland between the tractor which was parked 160m away on the opposite side of the woodland from the nest site. He has conducted the same eductional activities on his farm for over 17 years, the osprey pair had successfully raised and fledged chicks in the seven years that the nest has been occupied.
All you say may well be true Tony, I have no reason to doubt you, however it is not the point. If you disturb a Schedule One bird at its nest knowingly without the derogation granted by the possession of a licence it is normally deemed an offence. Can I suggest you look up what disturbance actually means in terms of this law. It is non-schedule one birds that you have in some way to effect the nesting outcome of for it to be an offence, which I believe is what you imply. If it was the first time the birds had actually been disturbed by this activity then it is not an offence provided that those committing the disturbance immediately take steps to remedy their actions. I was hoping somebody could enlighten me about my original questions about this case.
Sugest you look up W@C Act 1981 S4(2)
It’s probably a sensible outcome – Mr Barnes has been sensible rather than triumphant, there is no evidence he set out to harm the Ospreys and although he may not have been convicted there’s little doubt he’ll have been through a lot.
Even more so than most raptor cases, these Ospreys are hugely significant – thousands of people see them every year and loss of the nest would have a significant economic impact in the area. Taking a firm line, as has been demonstrated here, is entirely justified – and the success of the appeal won’t have in any way undermined the message that disturbance just mustn’t happen.