Con McCarthy paid €15,000 to walk away from conviction for unprecedented case of suffocating badgers near Citywest.
By Donna Mullen.
Con McCarthy, a developer, planned to construct a warehouse in Brownsbarn, Citywest, Dublin, and hired an ecologist, Brian Keeley, to conduct a badger survey in February 2022.
Brian Keeley found two adult badgers bringing bedding into a sett and presumed that they were breeding. He made the developer aware of the badger sett and was asked to step down from working on the project. Later when he went to see the site, he found that the sett had been destroyed, and a large mound of clay was on the area. It is likely that the badgers were entombed.
That Con Mc Carthy…. used, allowed and/or caused to be used a mechanically propelled vehicle to wit, plant machinery to aid the commission of an offence under the Wildlife Acts as amended, to wit, the destruction of a badger sett, in contravention of section 69 (7)(A) of the Wildlife Act 1976 as amended
The government’s National Parks and Wildlife Service (NPWS) were immediately called, and the developer said that the sett had been destroyed while a fence was being erected.
The case went to the District Court and the developer was convicted on the following charge (1) with reference to charges 2 and 3 below:
(1) “Con Mc Carthy, on dates between 1st April 2022 and 25 May 2022, both dates inclusive, at Brownsbarn, County Dublin, wilfully interfered with the breeding or resting place of a protected wild animal to wit, a badger sett, in contravention of Section 23(5)(d) of the Wildlife Act 1976 as amended.
Two other charges were taken into consideration.
(2) That Con Mc Carthy …did aid abet, procure or counsel the commission of an offence under the Wildlife Acts as amended, to wit, the wilful destruction of a badger sett, in contravention of Section 23(5)(d) and Section 69(1)of the wildlife Act, 1976, as amended.
(3) That Con Mc Carthy…. used, allowed and/or caused to be used a mechanically propelled vehicle to wit, plant machinery to aid the commission of an offence under the Wildlife Acts as amended, to wit, the destruction of a badger sett, in contravention of section 69 (7)(A) of the Wildlife Act 1976 as amended.
Con Mc Carthy was convicted and fined 5000 euros.
On 7 March 7, 2024, Con Mc Carthy appealed the severity of the conviction to the Circuit Court.
NPWS District Conservation Officer Kieran Buckley showed photographs in court of a bank of clay on top of the sett, which would have entombed badgers.
“The badgers probably would have suffocated from the sheer volume of clay” he said. “I’ve been enforcing the law for 20 years and this is the most wilfully cruel act I’ve seen”.
Mr Brian Keeley , ecologist, took the stand “In my opinion, this was premeditated. This is a severe case. I’ve been a consultant since 1996 and haven’t seen this before. They just needed to keep the machinery 30 metres away from the sett. Much of my work involves working with developers to protect setts. I have a farm and we put up fences all the time. We don’t need to level all the ground”, he said.
Mr Mc Carthy offered to make a donation to a charity if his criminal prosecution was reduced to having the probation act applied.
Concern was raised by the barrister for NPWS that this could be seen as a developer “buying their way out”. He also said that a prosecution was more beneficial, because of the significant time and resources expended by NPWS.
However, the judge asked for 15,000 euros to be split between three wildlife charities, and the conviction was not upheld.
Instead, the Probation Act, Section 1, was applied.
Meanwhile, even though the case has been proven, the NPWS and the whistleblower cannot claim for their costs in this case, and the state pays for the case.
The Beatles say that “Money can’t buy you love”. But in Irish courts, it seems it can buy you from the consequences of killing badger cubs.
