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41.—(1) A person who—
(a)deliberately captures, injures or kills any wild animal of a European protected species,
(b)deliberately disturbs wild animals of any such species,
(c)deliberately takes or destroys the eggs of such an animal, or
(d)damages or destroys a breeding site or resting place of such an animal,
is guilty of an offence.
(2) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—
(a)to impair their ability—
(i)to survive, to breed or reproduce, or to rear or nurture their young, or
(ii)in the case of animals of a hibernating or migratory species, to hibernate or migrate; or
(b)to affect significantly the local distribution or abundance of the species to which they belong.
(3) It is an offence for any person—
(a)to be in possession of, or to control,
(c)to sell or exchange, or
(d)to offer for sale or exchange,
anything to which this paragraph applies.
(4) Paragraph (3) applies to—
(a)any live or dead animal or part of an animal—
(i)which has been taken from the wild, and
(ii)which is of a species or subspecies listed in Annex IV(a) to the Habitats Directive; and
(b)anything derived from such an animal or any part of such an animal.
(5) Paragraphs (1) and (3) apply regardless of the stage of the life of the animal in question.
(6) Unless the contrary is shown, in any proceedings for an offence under paragraph (1) the animal in question is presumed to have been a wild animal.
(7) In any proceedings for an offence under paragraph (3), where it is alleged that an animal or a part of an animal was taken from the wild, it is presumed, unless the contrary is shown, that that animal or part of an animal was taken from the wild.
(8) A person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(9) Guidance as to the application of the offences in paragraph (1)(b) or (d) in relation to particular species of animals or particular activities may be published by—
(a)the appropriate authority; or
(b)the appropriate nature conservation body, with the approval of the appropriate authority.
(10) In proceedings for an offence under paragraph (1)(b) or (d), a court must take into account any relevant guidance published under paragraph (9).
(11) In deciding upon the sentence for a person convicted of an offence under paragraph (1)(d), the court must in particular have regard to whether that person could reasonably have avoided the damage to or destruction of the breeding site or resting place concerned.
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