Nature Conservation (Scotland) Act 2004

Protection of birds: offences

5 (1) Section 4 (exceptions to offences against wild birds etc.) is amended as follows.

(2) In subsection (2), in paragraph (c), for the words from “if” to the end substitute “(“an unlawful act”) if he shows that each of the conditions specified in subsection (2A) was satisfied in relation to the carrying out of the unlawful act.”

(3) After that subsection insert—

“(2A) Those conditions are—

(a) that the unlawful act was the incidental result of a lawful operation or other activity;

(b) that the person who carried out the lawful operation or other activity—

(i) took reasonable precautions for the purpose of avoiding carrying out the unlawful act; or

(ii) did not foresee, and could not reasonably have foreseen, that the unlawful act would be an incidental result of the carrying out of the lawful operation or other activity; and

(c) that the person who carried out the unlawful act took, immediately upon the consequence of that act becoming apparent to the person, such steps as were reasonably practicable in the circumstances to minimise the damage or disturbance to the wild bird, nest or, as the case may be, egg in relation to which the unlawful act was carried out.”

(4) In subsection (4), for “(3)(c)” substitute “(3)”.

(5) In subsection (5)—

(a) for “(3)(c)” substitute “(3)”,

(b) for “paragraph” substitute “subsection”.

(6) In subsection (6), for “(3)(c)” substitute “(3)”.