The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007

PART 3 PROTECTION OF SPECIES

Application of offences in Part 3

33.—(1) Subject to paragraphs (2) and (3), regulations 34, 36, 37, 39, 41 and 43 (in so far as they are capable of so applying) apply to any person—

(a) in any part of the waters comprised in the offshore marine area;

(b) on a ship in any part of the waters comprised in the offshore marine area;

(c) on a British aircraft over the waters comprised in the offshore marine area;

(d) on or under an offshore marine installation; or

(e) on any aircraft above an offshore marine installation, in so far as the presence of the aircraft above that installation is for purposes connected with the use of the installation.

(2) Regulations 34, 36, 37 and 43 do not apply to any person on a third country ship.

(3) Regulation 39(2) only applies in relation to a person on a third country ship where—

(a) the animal in question is a relevant animal; or

(b) the part in question is from, or the thing in question is derived from, a relevant animal.

(4) In paragraph (3) “a relevant animal” is an animal of a European protected species which was taken or killed in any part of the waters within British fishery limits.

Protection of birds

Protection of wild birds, their eggs and nests

34.—(1) Subject to regulations 35 and 49, a person is guilty of an offence if he deliberately—

(a) captures, injures, or kills any wild bird;

(b) takes, damages or destroys the nest of any wild bird while that nest is in use or being built; or

(c) takes or destroys an egg of any wild bird.

(2) Subject to regulations 35 and 49, a person is guilty of an offence if he keeps—

(a) any live or dead wild bird or any part of, or anything derived from, such a bird; or

(b) an egg of a wild bird or any part of such an egg.

(3) In any proceedings for an offence under this regulation—

(a) in relation to an offence under paragraph (1)(a), the bird in question is to be presumed to have been wild unless the contrary is shown; and

(b) in relation to an offence under paragraph (1)(b) or (c), if the prosecution prove that the nest or egg in question is of a bird which is a member of a species referred to in Article 1 of the Wild Birds Directive, it is to be presumed that the bird was a wild bird unless the contrary is shown.

(4) In any proceedings for an offence under paragraph (1), where this paragraph applies the defendant shall not be taken deliberately to have done anything prohibited by either of those paragraphs merely because—

(a) his actions had the result that he did the thing in question; and

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

(5) Paragraph (4) applies where the defendant shows that—

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

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

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

(6) In paragraph (5), “any relevant Community 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 (4) or the risk that it may have a result of that kind; and

(b) is adopted by any Community instrument under—

(i) Article 37(2) of the EC Treaty; or

(ii) Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy(1) or any instrument adopted thereunder.

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

Defences to the offences in regulation 34

35.—(1) A person is not guilty of the offence under regulation 34(1)(a) of deliberately capturing a wild bird or an offence under regulation 34(2)(a), if he shows that the act in question—

(a) was in relation to a bird that had been disabled otherwise than by his unlawful act; and

(b) was done solely for one or both of the purposes of—

(i) tending it and releasing it when no longer disabled; or

(ii) releasing it after it had been tended.

(2) A person is not guilty of an offence under regulation 34(1)(a) or under regulation 34(2)(a), if he shows that the act in question—

(a) was in relation to a bird that had been seriously disabled otherwise than by his unlawful act and that there was no reasonable chance of its recovering; and

(b) was done solely for one or both of the purposes of—

(i) ending the bird’s life; or

(ii) disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.

(3) A person is not guilty of the offence under regulation 34(1) of deliberately injuring a wild bird if he shows that this was done solely for the purpose of taking a sample by virtue of regulation 56(2).

(4) A person is not guilty of an offence under regulation 34(2) if he shows that the act in question was done solely for the purpose of investigating whether one or more of the following offences was being or had been committed—

(a) an offence under regulation 34, 36, 37, or 51;

(b) an offence of attempting to commit an offence under regulation 34, 36 or 37; or

(c) an offence under regulation 64 which relates to an offence under regulation 34, 36, or 37.

(5) A person is not guilty of an offence under regulation 34(2) if he shows—

(a) in the case of a wild bird, or any part of, or anything derived, from any such bird—

(i) where the bird is a dead bird, that the bird had not been killed, or that it had been lawfully killed, by any person; and

(ii) whether the bird is live or dead, that the bird had not been captured or had been lawfully captured;

(b) in the case of an egg of a wild bird, that the egg had not been taken from the wild; and

(c) in the case of part of any such egg, that the egg had not been taken from the wild or destroyed in the wild by any person.

(6) A person is not guilty of an offence under regulation 34(2) if he shows that the wild bird, egg, or part of an egg had been lawfully sold (whether to him or to any other person) or had otherwise been lawfully acquired by him.

(7) In paragraphs (5) and (6) “lawfully” means—

(a) without contravention of Part 1 of the Wildlife and Countryside Act 1981(2), the Wildlife (Northern Ireland) Order 1985(3), or these Regulations; or

(b) in the case of a bird, egg or other thing killed, taken or sold in Gibraltar or a member State (other than the United Kingdom), without contravention (as the case may be) of the law of Gibraltar or the law of that State implementing the Wild Birds Directive.

Prohibition of certain methods of capturing or killing wild birds

36.—(1) Subject to regulation 49, a person is guilty of an offence if he uses for the purpose of capturing or killing any wild bird—

(a) any of the means listed in paragraph (2) below;

(b) any other means of capturing or killing which is indiscriminate or capable of causing the local disappearance of any species of wild bird; or

(c) any means of capturing or killing from any mechanically propelled vehicle, including any ship or any aircraft, while in immediate pursuit of a wild bird with a view to capturing or killing that bird.

(2) The prohibited means of capturing or killing wild birds are—

(a) snares, limes or hooks;

(b) using blind or mutilated birds as live decoys;

(c) sound recordings;

(d) electrical or electronic devices capable of killing or stunning;

(e) artificial light sources;

(f) mirrors or other dazzling devices;

(g) devices for illuminating targets;

(h) sighting devices for night shooting comprising an electronic image magnifier or image converter;

(i) explosives;

(j) nets or traps;

(k) poisoned or anaesthetic bait; and

(l) automatic or semi-automatic weapons with a magazine capable of holding more than two rounds of ammunition.

Sale etc of live or dead wild birds, eggs etc

37.—(1) Subject to paragraph (2) and regulation 49, a person is guilty of an offence if he sells, offers or exposes for sale, or has in his possession or transports for the purpose of sale—

(a) any live or dead wild bird, or any part of, or anything derived from, such a bird; or

(b) an egg of a wild bird.

(2) A person is not guilty of an offence by reason of paragraph (1) in respect of any bird belonging to a species referred to in Annex III/1 to the Wild Birds Directive, or any egg of such a bird, or anything derived from such a bird, if he shows that—

(a) the bird, egg or other thing had been lawfully killed or taken; or

(b) the bird, egg or other thing had been lawfully sold (whether to him or any other person) or otherwise lawfully acquired by him.

(3) In paragraph (2) “lawfully” means—

(a) without contravention of Part 1 of the Wildlife and Countryside Act 1981, the Wildlife (Northern Ireland) Order 1985, or these Regulations; or

(b) in the case of a bird, egg or other thing killed, taken or sold in Gibraltar or a member State (other than the United Kingdom), without contravention (as the case may be) of the law of Gibraltar or that State implementing the Wild Birds Directive .

(4) In any proceedings for an offence under this regulation—

(a) the bird in question is to be presumed to have been wild unless the contrary is shown; and

(b) if the prosecution prove—

(i) that the part of a bird in question, or the egg in question, is of a bird which is a member of a species referred to in Article 1 of the Wild Birds Directive, or

(ii) that the thing is question is derived from such a bird,

it is to be presumed that the bird was a wild bird unless the contrary is shown.

(5) In this regulation—

(a) “egg” includes part of an egg; and

(b) “sale” includes hire, barter and exchange and cognate expressions shall be construed accordingly.

Penalties

38.—(1) A person guilty of an offence under regulation 34, 36 or 37 is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Protection of wild animals

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

39.—(1) Subject to regulations 40 and 49, a person is guilty of an offence if he—

(a) deliberately captures, injures, or kills any wild animal of a European protected species;

(b) deliberately disturbs wild animals of any such species in such a way as to be likely significantly to affect—

(i) the ability of any significant group of animals of that species to survive, breed, or rear or nurture their young; or

(ii) the local distribution or abundance of that 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.

(2) Subject to regulations 33(3), 40 and 49, a person is guilty of an offence if he—

(a) keeps or transports,

(b) sells or exchanges, or

(c) offers for sale or exchange,

anything to which this paragraph applies.

(3) Paragraph (2) 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.

(4) Paragraphs (1) and (2) apply regardless of the stage of the life of the animal in question.

(5) 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.

(6) In any proceedings for an offence under paragraph (2), 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 that animal or part of an animal was taken from the wild.

(7) In paragraph (1)(b)(i), “significant” means significant in relation to the objectives of the Habitats Directive.

(8) In any proceedings in which a person is charged with an offence under sub-paragraph (b) of paragraph (1) by reason of an effect mentioned in paragraph (i) of that sub-paragraph, the court shall have regard to any guidance given by the Joint Nature Conservation Committee as to the criteria for determining whether a group is significant.

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

(a) his actions had the result that he did the thing in question; and

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

(10) Paragraph (9) applies where the defendant shows that—

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

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

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

(11) In paragraph (10), “any relevant Community 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 (9) or the risk that it may have a result of that kind; and

(b) is adopted by any Community instrument under—

(i) Article 37(2) of the EC Treaty; or

(ii) Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy(4) or any instrument adopted thereunder.

(12) 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.

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

(14) Regulation 32 shall not apply in relation to anything done by any person which is an offence under this regulation.

Defences to the offences in regulation 39

40.—(1) A person is not guilty of the offence under regulation 39(1)(a) of deliberately capturing a wild animal of a European protected species, or an offence under regulation 39(2)(a), if he shows that the act in question—

(a) was in relation to an animal that had been disabled otherwise than by his unlawful act, and

(b) was done solely for one or both of the purposes of—

(i) tending and releasing it when no longer disabled, or

(ii) releasing it after it had been tended.

(2) A person is not guilty of an offence under regulation 39(1)(a) or regulation 39(2)(a) if he shows that the act in question—

(a) was in relation to an animal that had been seriously disabled otherwise than by his unlawful act and that there was no reasonable chance of its recovering, and

(b) was done solely for one or both of the purposes of—

(i) ending the animal’s life, or

(ii) disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.

(3) A person is not guilty of the offence under regulation 39(1)(a) of deliberately injuring a wild animal of a European protected species if he shows that this was done solely for the purpose of taking a sample by virtue of regulation 56(2).

(4) A person is not guilty of an offence under regulation 39(2) if he shows that the animal or part of the animal in question, or the animal or part of the animal from which the part or thing in question is derived, was lawfully taken from the wild.

(5) A person is not guilty of an offence under regulation 39(2) if he shows that the animal, or the animal from which the part or thing in question is derived—

(a) is of a species listed in the second column of Schedule 2 and was from a population occurring in a country or area which is specified in respect of that species in the third column of that Schedule;

(b) is of the species Capra aegagrus (wild goat) and was not from a population occurring naturally in any member State;

(c) is of the subspecies Ovis gmelini musimon (European mouflon) and was not from a population occurring naturally in Corsica or Sardinia; or

(d) is of the species Coregonus oxyrhynchus (houting) and was either from Finland or was not from an anadromous population.

(6) A person is not guilty of an offence under regulation 39(2)(a) if he shows that the act in question was done solely for the purpose of investigating whether one or more of the following offences was being or had been committed—

(a) an offence under regulation 39, 41 or 51;

(b) an offence of attempting to commit an offence under regulation 39 or 41; or

(c) an offence under regulation 64 which relates to an offence under regulation 39 or 41.

(7) For the purposes of any proceedings for an offence under regulation 39(2), the common names given in parenthesis in paragraph (5) shall be disregarded.

(8) For the purposes of paragraph (4), an animal, or part of an animal, is to be treated as having been lawfully taken from the wild if—

(a) it was taken from the wild in the European territory of a member State, being territory to which the EC Treaty applies, without contravention of the law of that member State and before the implementation date; or

(b) it was taken from the wild elsewhere.

(9) In this regulation—

“the implementation date” means—

(a)

where the relevant State became a member State before 10th June 1994, 10th June 1994; and

(b)

in any other case, the date on which the relevant State became a member State; and

“relevant State” means the State in whose territory the animal, or part of it, was taken from the wild.

Prohibition of certain methods of capturing or killing wild animals

41.—(1) This regulation applies in relation to the capturing or killing of a wild animal—

(a) of any of the species listed in Schedule 3; or

(b) of a European protected species, where the capture or killing is otherwise permitted in accordance with these Regulations.

(2) Subject to regulation 49, a person is guilty of an offence if he uses for the purpose of capturing or killing any such wild animal—

(a) any of the means listed in paragraph (3) or (4) below;

(b) any other means of capturing or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any of the species of animal to which this regulation applies;

(c) any form of capturing or killing from a ship whilst it is being propelled by a motor; or

(d) any form of capturing or killing from an aircraft.

(3) The prohibited means of capturing or killing of mammals are—

(a) using blind or mutilated animals as live decoys;

(b) sound recordings;

(c) electrical or electronic devices capable of killing or stunning;

(d) artificial light sources;

(e) mirrors or other dazzling devices;

(f) devices for illuminating targets;

(g) sighting devices for night shooting comprising an electronic image magnifier or image converter;

(h) explosives;

(i) nets which are non-selective according to their principle or their conditions of use;

(j) traps which are non-selective according to their principle or their conditions of use;

(k) bows or crossbows;

(l) poisons and poisoned or anaesthetic bait;

(m) gassing or smoking out; and

(n) semi-automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition.

(4) The prohibited means of capturing or killing fish are—

(a) poison; and

(b) explosives.

Penalties

42.  A person guilty of an offence under regulation 39 or 41 is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment, to a fine.

Protection of plants

Offences relating to wild plants listed in Annex IV(b) to the Habitats Directive

43.—(1) Subject to paragraphs (4) and (5) and regulation 49, a person is guilty of an offence if he—

(a) keeps or transports;

(b) sells or exchanges; or

(c) offers for sale or exchange,

anything to which this paragraph applies.

(2) Paragraph (1) applies to—

(a) any live or dead plant, or part of a plant—

(i) which has been taken in the wild, and

(ii) which is of a species or subspecies listed in Annex II(b) (other than any bryophyte), or listed in Annex IV(b), to the Habitats Directive; and

(b) any part of, or anything derived from, such a plant or such a part of a plant.

(3) Paragraph (1) applies regardless of the stage of the biological cycle of the plant in question.

(4) A person is not guilty of an offence under paragraph (1) if he shows that the plant or part of the plant in question, or the plant or part of the plant from which the part or thing in question is derived, was lawfully taken in the wild.

(5) A person is not guilty of an offence under paragraph (1)(a) if he shows that the act in question was done solely for the purpose of investigating whether one or more of the following offences is being or has been committed—

(a) an offence under this regulation or regulation 51;

(b) an offence of attempting to commit an offence under this regulation; or

(c) an offence under regulation 64 which relates to an offence under this regulation.

(6) For the purposes of paragraph (4) a plant, or part of a plant, shall be treated as having been lawfully taken in the wild if—

(a) it was taken in the wild in the European territory of a member State, being territory to which the EC Treaty applies, without contravention of the law of that member State and before the implementation date; or

(b) it was taken in the wild elsewhere.

(7) In any proceedings for an offence under this regulation, where it is alleged that a plant, or part of a plant was taken in the wild, it is to be presumed, unless the contrary is shown, that that plant or part of a plant was taken in the wild.

(8) A person guilty of an offence under this regulation is liable—

(a) on summary conviction to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment to a fine.

(9) In this regulation—

“the implementation date”—

(a)

where the relevant State became a member State before 10th June 1994, means 10th June 1994; and

(b)

in any other case, means the date on which the relevant State became a member State; and

“relevant State” means the State in whose territory the plant, or part of it, was taken in the wild.

(1)

O.J. No. L358, 31.12.02, p. 59.

(2)

1981 c.69.

(3)

S.I. 1985/171 (N.I. 2)

(4)

O.J. No. L358, 31.12.02, p. 59.