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

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(1) 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.

(1)

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