10 Exceptions to s. 9.E+W
(1)Nothing in section 9 shall make unlawful—
(a)anything done in pursuance of a requirement by the Minister of Agriculture, Fisheries and Food or the Secretary of State under section 98 of the M1Agriculture Act 1947, or by the Secretary of State under section 39 of the M2Agriculture (Scotland) Act 1948; F2...
(b)anything done under, or in pursuance of an order made under, the M3Animal Health Act 1981. [F3or
(c)anything done in relation to an animal of any species pursuant to a licence granted by Natural England under regulation 55 of the Conservation of Habitats and Species Regulations 2017 (S.I. 2017/1012) in respect of an animal or animals of that species]
(2)Nothing in subsection (4) of section 9 shall make unlawful anything done within a dwelling-house.
(3)Notwithstanding anything in section 9, a person shall not be guilty of an offence by reason of—
(a)the taking of any such animal if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;
(b)the killing of any such animal if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or
(c)any act made unlawful by that section if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.
(4)Notwithstanding anything in section 9, an authorised person shall not be guilty of an offence by reason of the killing or injuring of a wild animal included in Schedule 5 if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.
(5)A person shall not be entitled to rely on the defence provided by subsection (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the [F4conservation body][F5for the area in which the house is situated or, as the case may be, the act is to take place] of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.
(6)An authorised person shall not be entitled to rely on the defence provided by subsection (4) as respects any action taken at any time if it had become apparent, before that time, that that action would prove necessary for the purpose mentioned in that subsection and either—
(a)a licence under section 16 authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent; or
(b)an application for such a licence had been determined.
Extent Information
E1This version of this provision extends to England and Wales only; a separate version has been created for Scotland only
Textual Amendments
F2Word in s. 10(1)(a) omitted (E.W.) (30.9.2022) by virtue of Environment Act 2021 (c. 30), ss. 111(1)(a), 147(3) (with s. 144); S.I. 2022/518, regs. 1(2), 3(b)
F3S. 10(1)(c) and word inserted (E.W.) (30.9.2022) by Environment Act 2021 (c. 30), ss. 111(1)(b), 147(3) (with s. 144); S.I. 2022/518, regs. 1(2), 3(b)
F4 Words in s. 10(5) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 70; S.I. 2006/2541, art. 2
F5 Words in s. 10(5) inserted (1.4.1991) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 132, Sch. 9 para. 11(2); S.I. 1991/685, art.3.
Marginal Citations
10 Exceptions to s. 9.S
(1)Nothing in section 9 shall make unlawful—
(a)anything done in pursuance of a requirement by the Minister of Agriculture, Fisheries and Food or the Secretary of State under section 98 of the M1Agriculture Act 1947, or by the Secretary of State under section 39 of the M2Agriculture (Scotland) Act 1948; or
(b)anything done under, or in pursuance of an order made under, the M3Animal Health Act 1981.
(2)Nothing in subsection (4) of section 9 shall make unlawful anything done within a dwelling-house.
(3)Notwithstanding anything in section 9, a person shall not be guilty of an offence by reason of—
(a)the taking of any such animal if he shows that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled;
(b)the killing of any such animal if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering; or
(c)any act made unlawful by that section [F6 (“an unlawful act”) if he shows—
(i)that each of the conditions specified in subsection (3A) was satisfied in relation to the carrying out of the unlawful act, or
(ii)that the unlawful act was carried out in relation to an animal bred and, at the time the act was carried out, lawfully held in captivity.]
[F7(3A)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 animal, or the damage or obstruction to the structure or place, in relation to which the unlawful act was carried out.]
(4)Notwithstanding anything in section 9, an authorised person shall not be guilty of an offence by reason of the killing or injuring of a wild animal included in Schedule 5 if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.
(5)A person shall not be entitled to rely on the defence provided by subsection (2) or (3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the [F8conservation body][F5for the area in which the house is situated or, as the case may be, the act is to take place] of the proposed action or operation and allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used.
(6)An authorised person shall not be entitled to rely on the defence provided by subsection (4) as respects any action taken at any time if it had become apparent, before that time, that that action would prove necessary for the purpose mentioned in that subsection and either—
(a)a licence under section 16 authorising that action had not been applied for as soon as reasonably practicable after that fact had become apparent; or
(b)an application for such a licence had been determined.
[F9(6A)An authorised person shall not be entitled to rely on the defence provided by subsection (4) as respects any action taken at any time unless he notified the Scottish Ministers as soon as reasonably practicable after that time that he had taken the action.]
Extent Information
E2This version of this provision extends to Scotland only; a separate version has been created for England and Wales only
Textual Amendments
F5 Words in s. 10(5) inserted (1.4.1991) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 132, Sch. 9 para. 11(2); S.I. 1991/685, art.3.
F6 Words in s. 10(3)(c) substituted (S.) (1.10.2004) by Nature Conservation (Scotland) Act 2004 (asp 6), ss. 50, 59, Sch. 6 para. 9(a); S.S.I. 2004/407, art. 2
F7 S. 10(3A) inserted (S.) (1.10.2004) by Nature Conservation (Scotland) Act 2004 (asp 6), ss. 50, 59, Sch. 6 para. 9(b); S.S.I. 2004/407 , art. 2
F8 Words in s. 10(5) substituted (1.10.2006) by Natural Environment and Rural Communities Act 2006 (c. 16), ss. 105(1), 107, Sch. 11 para. 70; S.I. 2006/2541, art. 2
F9 S. 10(6A) inserted (S.) (1.10.2004) by Nature Conservation (Scotland) Act 2004 (asp 6), ss. 50, 59, Sch. 6 para. 9(c); S.S.I. 2004/407, art. 2
Marginal Citations