The Conservation of Offshore Marine Habitats and Species Regulations 2017

Protection of wild animals listed in Annex IV(a) to the Habitats Directive

45.—(1) Subject to regulations 46 and 55, 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, or does anything to cause the deterioration of, 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) Subject to regulations 39(3), 46 and 55, it is an offence for a person—

(a) to keep or transport,

(b) to sell or exchange, or

(c) 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) any part of, or anything derived from, such an animal or any such part of 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 to be 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 to be presumed, unless the contrary is shown, that the animal in question or part of it was taken from the wild.

(8) The Secretary of State, or the Joint Committee with the approval of the Secretary of State, may publish guidance as to the application of the offence in paragraph (1)(b) or (d) in relation to particular species of animals or particular activities.

(9) In proceedings for an offence under paragraph (1)(b) or (d), a court must take into account any relevant guidance published under paragraph (8).

(10) In any proceedings for an offence under paragraph (1), where this paragraph applies the defendant (“D”) is not to be taken deliberately to have done anything mentioned in sub-paragraph (a), (b) or (c) of that paragraph merely because—

(a) D’s actions had the result that D did the thing in question; and

(b) D intended those actions and knew that they might have that result.

(11) Paragraph (10) applies where the defendant (“D”) shows that—

(a) the actions in question were for the purpose, and in the course, of sea fishing;

(b) D did not intend those actions to have the result in question; and

(c) D had taken any steps that could reasonably be taken to ensure compliance with the requirements or conditions of any relevant EU instrument.

(12) In paragraph (11), “any relevant EU instrument” means any instrument relating to sea fishing which—

(a) regulates such fishing for the purpose (whether or not the sole purpose) of minimising the extent to which it has a result of the kind referred to in paragraph (10) or the risk that it may have a result of that kind; and

(b) is adopted by any EU instrument under—

(i) Article 43 of the Treaty on the Functioning of the European Union; or

(ii) Council Regulation (EU) No. 1380/2013 on the Common Fisheries Policy, as amended from time to time(1) or any instrument adopted thereunder.

(13) In determining the amount of any fine to be imposed on 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 or destruction of the breeding site or resting place concerned.

(14) In this regulation “destroy”, in relation to an egg, includes doing anything to the egg which is calculated to prevent it from hatching.

(15) Regulation 38 does not apply in relation to anything done by a person which is an offence under this regulation.

(1)

OJ No. L 354, 28.12.2013, p. 22, as amended by Council Regulation (EU) 1385/2013 (OJ No. L 354, 28.12.2013, p. 86) and Regulation (EU) 2015/812 (OJ No. L 133, 29.5.2015, p. 1).