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Gunman v gander: whose side is the law on in the Sandon goose case?

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So is it illegal to shoot a goose? Police are investigating the alleged drive-by shooting of the Sandon goose some (possibly only the media) called Grumpy Gertie (though it was actually a gander).

Gertie (if that was actually his/her name) was of unknown origin but had housed itself in an old phone box in the Hertfordshire village. It was renowned for adopting ducks and ducklings, hissing at strangers, amusing locals and was generally considered a good egg. There is even, apparently, a £250,000 reward out for the alleged killer. But what is the offence that may have been committed?

Certainly under the Wildlife and Countryside Act 1981 Section 1(a) it is an offence if someone “kills, injures or takes any wild bird”. But there are exceptions allowing hunters to go about their jolly sport. Sandon sits within prime huntin’ and shootin’ land, so maybe someone disappointed in their bag of wildfowl for the day decided to pop one off at poor old Gertie (Gary?).

If so, he should have checked the schedule to the act of “birds that may be killed or taken”, which does include various sorts of geese. Canada Goose? Go get ’em. Greylag? Pinkfooted? White Fronted? They are there for the taking. But the breed of common farmyard or Emden goose of which Gertie (Gary? We’ll call him Gary) was a member? Completely off limits to the sporting gun fraternity.

The act also limits the weaponry by which any lawful killing is done – basically to small shotguns. Prohibited under Section 5(c) are (iii) any automatic or semi-automatic weapon (you get two rounds, no more); and (iv) any shot-gun of which the barrel has an internal diameter at the mule (?) of more than one and three-quarter inches. The act further prohibits at S.5(e) use of “any mechanically propelled vehicle in immediate pursuit of a wild bird for the purpose of killing or taking that bird”.

Assuming the alleged shootist could get round the fact that Gary isn’t on the Schedule 2 list and assuming he had tooled up with the correct hunting armament, nevertheless a 4×4 is alleged to have been used in commission of the offence. The claim is that someone stepped out of it rather than literally did a “drive-by”. Would this constitute use of “any mechanically propelled vehicle in immediate pursuit of a wild bird for the purpose of killing or taking that bird” – forbidden by the act? The perpetrator could argue perhaps he wasn’t actually chasing the bird – which was pretty much a sitting duck – but it’s a moot point.

There is also an issue (and the alleged gunman might seek to rely on this in court) about whether the Sandon goose was a wild bird at all. If not, it wouldn’t be covered by the S.1(a) prohibition. For Section 1(6) says:

“For the purposes of this section the definition of ‘wild bird’ in section 27(1) [an interpretative section] is to be read as not including any bird which is shown to have been bred in captivity unless it has been lawfully released into the wild as part of a re-population or re-introduction programme.”

We don’t altogether know where Gary was bred but presumably it has captive origins as a domesticated farm goose and has run away to the more appealing surroundings of Sandon’s pond and its protective phone box. Does that make it wild or just wild at heart?

If it was a purely private goose, owned and brought up by somebody, somewhere, then the issue becomes one of criminal damage to someone’s property. If the perpetrator “without lawful excuse destroys or damages property belonging to another” then he can be prosecuted under the Criminal Damage Act 1971. But we may still have to address the issue of whose property Gary is.

Was it held in common by the people of Sandon? Or does it remain the property of its original owner? Or does it have an anomalous status, neither wild nor domestic, neither property nor non-property?

The Theft Act 1968 S.4(4) says: “Wild creatures, tamed or untamed, shall be regarded as property”, so prosecutors could argue that wildness does not let the killer off the hook even if an owner cannot be identified from a legal point of view. Similarly, feral cats are also protected, and if cats, why not feral geese?

Additionally there may be something more specific to suit Gary’s case. The Animal Welfare Act 2006 offers “protected animals” protection from unnecessary suffering and harm. An animal in this case is pretty widely defined. Section 1(1) says: “‘animal’ means a vertebrate other than man”.

If that’s not quite clear enough go to S.1(5): “In this section, ‘vertebrate’ means any animal of the Sub-phylum Vertebrata of the Phylum Chordata and ‘invertebrate’ means any animal not of that Sub-phylum”. Got it?

It is true that the “national authority” involved here must be “satisfied, on the basis of scientific evidence, that animals of the kind concerned are capable of experiencing pain or suffering”. Would any alleged killer risk contempt and derision by claiming Gertie/Gary had no feelings?

Another consideration will be Section 2 which says:  

An animal is a “protected animal” for the purposes of this Act if—
(a) it is of a kind which is commonly domesticated in the British Islands,
(b) it is under the control of man whether on a permanent or temporary basis, or
(c) it is not living in a wild state.

This seems to require (a) to be satisfied plus (b) or (c). Gary, we have established, is of a commonly domesticated breed but would doubtless resent any notion that he is “under the control of man”. So we must rely on (c) and assume residence in a telephone box by a village pond is not quite “a wild state”.

Maybe our man is the sort of Henry who would have the resources to take all these tricky points of law as far as our judicial system will allow to prove that he is innocent as the driven snow. But there is more that might apply, depending on circumstances. It is an offence to discharge a firearm “in any street, to the obstruction, annoyance, or danger of the residents or passengers [passers-by]” under the still operative Town Police Clauses Act 1847. Residents were in all likelihood disturbed – were they endangered?

If that seems a little arcane, there is a panoply of more modern law on firearms (carrying a firearm in a public place without lawful purpose perhaps? Firearms Act) and anti-social behaviour that should interest our man. Indeed, he might like to pop into his local police station where any duty officer would be very pleased to give him a full rundown.

Note: None of this post should be relied on as accurate law or legal advice – particularly for the vicious gunman who (allegedly) took Gertie/Gary to his/her grave.

Twitter: alrich0660

There is a tribute to the Sandon gander on the Sandon Conservation Group site here

 


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About alrich

Journalist and blogger on legal and financial/economics issues

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