Countryside and Rights of Way Act 2000

Part Iii: Provisions for the Enforcement of Wildlife Legislation

Summary

218.Section 81 and Schedule 12 introduces new provisions for the enforcement of wildlife legislation.

Background

219.In response to concern about the enforcement of the provisions of Part I of the Wildlife and Countryside Act 1981, the then Secretary of State established in 1994 a working group to consider the scope for improvements in the enforcement of wildlife species controls. The working group reported in 1995. Further to this report the Secretary of State established a further group to consider changes to wildlife enforcement legislation. The group submitted its recommendations in 1997. Following consultations, the majority of the recommendations were accepted and form the basis of the changes in the Act.

220.All wild birds, some animals and some plants are protected by the 1981 Act. Some controls protect specimens in their natural habitat, for example it is an offence to injure, kill or take such specimens from the wild. Further controls ban the sale (and related activities) of these specimens unless a licence has been obtained. Another layer of protection is provided for certain bird species, which must be ringed and registered with the DETR if held in captivity.

221.The Act does not affect these controls significantly or change the species to which they apply.

222.The measures in the Act will increase the enforcement powers under the 1981 Act, and will increase the sentencing options available to the Courts.

Commentary on sections

Section 81: Enforcement of Wildlife Legislation

223.Section 81, subsection (1) introduces Schedule 12. Subsections (2) and (3) provide that in future Regulations made to implement the EU Habitats Directive (Council Directive 92/43/EEC) or the EU Wildlife Trade Regulation (Council Regulation 338/97 which amongst other things implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora) will be able to create offences, which on summary conviction will attract a custodial sentence of up to six months. This overrides paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972, (which would otherwise prevent the regulations from imposing more than three months’ imprisonment). It will mean that the penalties for wildlife offences across these pieces of legislation can be consistent with those now being introduced into the Wildlife and Countryside Act 1981.

Schedule 12: Amendments relating to Part 1 of Wildlife and Countryside Act 1981

224.Paragraph 1 provides further protection for certain birds. It is already an offence to intentionally disturb birds listed on Schedule 1 (mainly the more rare breeding birds). It has proved difficult to prosecute the offence, mainly because of the need to prove that the defendant went with the objective of causing disturbance. By adding the lesser test of reckless disturbance, a prosecutor will have to show that a person either deliberately took an unacceptable risk or failed to notice an obvious risk and thereby caused disturbance. (This is consistent with the fact that reckless disturbance in the context of interfering with a badger sett is an offence under section 3 of the Protection of Badgers Act 1992.)

225.Paragraph 2 replaces the reference to special penalty offences from section 3 of the 1981 Act, (see commentary below on paragraph 10).

226.Paragraph 3 removes the reference to ‘persons registered with the Secretary of State’ from section 6. This and the repeal of related sections will remove the statutory framework for the now discontinued Registered Sellers of Dead Birds Scheme. On 20 July 1994 Ministers announced their intention to replace the scheme with a general licence (which is issued under section 16 of the 1981 Act and allows actions which would otherwise be unlawful under various sections of that Act) and following a period of consultation, such a licence was issued on 21 December 1994.

227.Paragraph 4 lists the offences in the 1981 Act which attracted a special penalty (see commentary below on paragraph 10). It preserves the provisions which enable the Courts to ban people found guilty of such offences from keeping specimens of bird species listed in Schedule 4 of the Act for up to five years.

228.Paragraph 5 extends the offence in section 9(4) of the 1981 Act of intentionally damaging any structure or place which a wild animal listed in Schedule 5 to the Act uses for shelter or protection or intentionally disturbing any such animal while in such a structure or place, so that the offence also covers reckless damage or disturbance. However, due to their ecology certain Schedule 5 marine species, namely cetaceans and basking sharks, do not have such places of shelter or protection and it would be difficult to apply section 9(4) to them. These species are considered vulnerable to reckless disturbance, for example due to inappropriate use of motorised personal watercraft. Therefore an offence of intentionally or recklessly disturbing a cetacean or basking shark in any place has been added as section 9(4A). Paragraph 6 is consequential on these changes .

229.Paragraph 7 provides that for all offences under Part I of the Act, justices of the peace will be able to grant police officers search warrants to enter premises, where they are satisfied that there are reasonable grounds for suspecting that an offence has been committed, and that evidence will be found on those premises.

230.This extends the provisions in the Act, which do not provide for search warrants to be issued for offences which would not attract a ‘special penalty’ and certain other offences. As an example, the Act provides for a search warrant for offences against a redwing (listed on Schedule 1), but not a mistle thrush (not so listed).

231.Paragraph 8 inserts two new sections into the 1981 Act. Section 19ZA relates to the powers and role of wildlife inspectors; section 19ZB sets out the powers to take samples for DNA analysis.

232.At present sections 6, 7 and 14 provide powers of entry for wildlife inspectors (newly defined as a person authorised by the Secretary of State in section 19ZA(1)). The first two include a power to enter dwellings but the latter only relates to "land". Section 19ZA replaces those powers and broadens them.

233.Inspectors will be empowered to enter premises in order to ascertain whether an offence related to a sale, bird registration or release into the wild has been or is being committed. In general this power will not extend to dwellings. However inspectors will be able to enter dwellings which are occupied by people who have:

submitted applications or obtained licences to sell controlled birds, animals and plants (alive or dead);
submitted applications or obtained licences to release specimens to the wild (section 14);
applied for or been granted registration documents (section 7) for Schedule 4 birds.

234.This power of entry will be subject to safeguards provided in a non-statutory Code of Practice, copies of which are available from the Department of the Environment, Transport and the Regions, Tollgate House, Houlton Street, Bristol, BS2 9DJ.

235.If the specimen which is the subject of the application or registration is not kept at the applicant’s address, the inspector can require it to be presented for inspection – wherever it is held. People who have live specimens in their possession or control will be required to assist the inspector so that he can examine the specimen.

236.It will be an offence to obstruct an inspector when he is exercising these powers, or to fail to assist him without reasonable cause, and a penalty of up to £5,000 (Level 5 on the standard scale) will apply.

237.Section 19ZB introduces powers for wildlife inspectors or constables to require blood or tissue samples for DNA analysis. The powers in subsections (1) and (2) of the section will be exercisable by constables, and those in subsections (3) and (4) by wildlife inspectors in certain circumstances.

238.Samples may be taken to determine the identity or ancestry of a specimen so long as it will cause no lasting harm to that specimen. For birds and animals, the sample will always be taken by a veterinary surgeon.

239.To prove ancestry, it will be necessary to take samples from specimens other than the specimens subject to the licence or registration or connected with the reason for the issue of a search warrant. Subsection (2) of the section provides for inspectors (and subsection (4) for constables) to require any person (including the applicant) to make other specimens available for sampling where that is likely to confirm or disprove the identity or ancestry of the subject specimen, as well as from the subject specimen itself.

240.The Control of Trade in Endangered Species (Enforcement) Regulations 1997 already contain powers for inspectors to take samples from species listed in the Annexes to the EC Wildlife Trade Regulation (No. 338/97) in certain circumstances.

241.It will be an offence to obstruct an inspector who is exercising his power to require a sample; or refuse to make a specimen available or assist an inspector or constable without reasonable cause, and a penalty of up to £5,000 (Level 5 on the standard scale) will apply.

242.Paragraph 9 provides that for all offences under Part I of the 1981 Act, prosecutions are able to be brought within a period of six months from the date on which sufficient evidence of the offence became available to the prosecutor, subject to a limit of two years from commission of the offence.

243.The current legislation already provides for some offences to be subject to this time limit, but for others, prosecution must take place within six months of the commission of the offence. These different time limits cause anomalies, for example the time limit for a prosecution for killing a bird is different to that for injuring it. In cases where the results of DNA analysis are important, the longer time period will be useful because the results often take some weeks to obtain.

244.Paragraph 10 introduces custodial sentences into Part I of the 1981 Act. At present fines ranging from level 3 (£1,000) to level 5 (£5,000) on the standard scale can be imposed. The change is that fines of up to Level 5 and/or the possibility of a custodial sentence of up to six months will be available for all Part I offences with the exception of releases into the wild and obstruction of wildlife Inspectors which are discussed in paragraphs 28 and 29 below. For that reason the references to "special penalties" have been removed from the Act, but their effect has been preserved in relation to sections 3(1)(c) and 7(3)(a) of the 1981 Act.

245.For releases to the wild, at present a fine up to the statutory maximum (£5,000) in the magistrates’ court and an unlimited fine in the Crown Court, is available. The change is that magistrates will have the possibility of imposing a custodial sentence of up to six months, and in the Crown Court, a custodial sentence of up to two years will be possible in addition to the possibility of imposing the fines referred to above.

246.The offence of obstructing a wildlife inspector will be subject to a fine only, of up to Level 5, except where the obstruction is in relation to releases to the wild where a fine of up to the statutory maximum (£5,000) can be imposed in the magistrates’ court, and an unlimited fine in the Crown Court.

247.Most other wildlife legislation, including the Protection of Animals Act 1911, the Protection of Badgers Act 1992, the Wild Mammals (Protection) Act 1996 and the Control of Trade in Endangered Species (Enforcement) Regulations 1997 already provides the possibility of a custodial sentence.

248.Paragraphs 11 and 12 contain consequential amendments.

249.Paragraph 13 makes certain offences in Part I of the 1981 Act ‘arrestable’. A police officer can arrest without a warrant anyone whom he believes may be guilty of an offence or whom is about to commit an offence. Additionally, any person may, in certain circumstances, make an arrest without a warrant for an arrestable offence. ‘Arrestable’ offences also attract stronger search and seizure powers for the police. The offences to which this applies relate mainly to those involving species of conservation concern listed for protection in Schedules 1, 5, and 8 to the 1981 Act.