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Wildlife Offences

Updated 28 January 2022|Legal Guidance

Introduction

The conservation of wildlife is an area in which the police play an investigative and enforcement role and where the CPS are called upon to prosecute in accordance with the provisions of the Code for Crown Prosecutors. See also Relations with Other Prosecution Agencies, elsewhere in the legal guidance.

Wildlife crime can be defined as any action which contravenes current legislation governing the protection of wild animals and plants. This includes:

  • Hare coursing, fish, and deer poaching - please refer to Hare Coursing legal guidance
  • Hunting of wild mammals - please refer to Hunting Act 2004 legal guidance
  • Illegal badger persecution including baiting, shooting, snaring, lamping, poisoning and the interference of badger setts
  • Bat persecution
  • Bird of prey persecution through poisoning, trapping, shooting, disturbance of nest and/or theft of chicks, egg theft / collection
  • The trade in ivory, tortoises, and other protected species covered by CITES (Convention on International Trade in Endangered Species) including caviar, Traditional Chinese Medicines, and orchids, and the non-registration of certain birds and animals that require licensing through DEFRA/Animal and Plant Health Agency if kept in captivity or sold

The remit of Wildlife Crime does not include incidents involving domestic animals such as dogs (other than dogs being used to hunt mammals), cats, rabbits, budgies, etc. and doesn’t include wild animals that have been involved in road traffic accidents.

The CPS works closely with the police, the National Wildlife Crime Unit, Defra, and other interested organisations to tackle all types of wildlife crime. The CPS sits on a number of working groups to tackle wildlife crime including the Partnership for Action Against Wildlife Crime (PAW UK) and the National Wildlife Crime Unit’s (NWCU) UK Tasking and Coordinating Group (UKTCG).

Wildlife crime priorities

The setting of wildlife crime priorities is done by the UK Tasking and Coordination Group (UKTCG) chaired by the NPCC lead for wildlife crime. Their decisions are based upon recommendations contained within a Strategic Assessment, which is prepared by the NWCU. The resultant priority areas are the ones which have been assessed as posing the greatest current threat to either the conservation status of a species or which show the highest volume of crime.

The current priorities are:

  1. Badger persecution
  2. Bat persecution
  3. CITES issues (Current priorities of European Eel; Illegal Trade in Raptors; Ivory; Medicinal & Health Products; Reptiles; Rhino Horn and Timber
  4. Freshwater Pear Mussel (FWPM)
  5. Poaching (Deer Poaching/Coursing, Fish Poaching and Hare Coursing)
  6. Raptor persecution (including poisoning, egg theft, chick theft, taking from the wild and nest disturbance/destruction and to concentrate on golden eagle, goshawk, hen harrier, peregrine, red kite, and white-tailed eagle)
  7. Cyber-enabled wildlife crime

The NPCC have developed a strategy on wildlife crime.

Expert Evidence

Wildlife crime is an area in which an element of specialised knowledge can be an advantage. Information about the specimens who feature in cases covered by this guidance, however basic it may be, will assist both prosecutors’ understanding of the case and also presentation before the court. However, the assistance of expert evidence may also be useful.

Wildlife Crime Officer

Most Police Forces have appointed a designated Wildlife Crime Officer (WCO). Upon receipt of a wildlife prosecution file, prosecutors should check to see if a force WLO has been involved with the investigation. If they have not done so, it will be advisable to involve that person in any further inquiries that need to be made.

Wildlife, Rural and Heritage Crime Coordinators

Each CPS Area has a crown prosecutor nominated to act as a Wildlife, Rural and Heritage Crime Coordinator. Due to the complex nature of the law and evidence relating to wildlife cases, they should be allocated to a wildlife coordinator or other trained prosecutor with detailed knowledge of the Act for the purposes of review and advocacy. Prosecutors should liaise closely with police investigators and the provision of early investigative advice is to be encouraged.

CPS Area Communication Managers and HQ Press Office

Wildlife prosecutions can generate major media interest and also the attention of environmental and animal rights activists. It is therefore recommended that prosecutors notify Area Communications Managers (ACMs) at an early stage. They will contact HQ Press Office if necessary and can then decide jointly how to handle any ensuing publicity. Cases in this category which may not result in a prosecution should also be notified in brief terms to the ACM, who may receive related media enquiries.

Investigation, the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (RIPA)

For detailed guidance on surveillance, prosecutors should refer to the legal guidance on the Regulation of Investigatory Powers Act (RIPA) Codes of Practice.

Third parties such as charities and campaign groups and other Non-Governmental Organisations (NGOs) often conduct surveillance of hunting, poaching and other rural activities. This can include covert surveillance and on occasion trespass on private land. Such surveillance is conducted for their own purposes although they do frequently pass surveillance footage to the police where they believe that a crime has been committed. It has been suggested that such surveillance should not be carried out unless an authorisation has been obtained by the police under Part II of RIPA 2000 and/or Part III of the Police Act 1997.

Where covert surveillance is undertaken by a public authority which is likely to result in that authority obtaining private information, an authorisation should be sought under Part II of RIPA if the surveillance is to be deemed to be lawful. If the conduct of the surveillance involves entry on or interference with another’s property, an authorisation should be sought under Part III of the Police Act 1997.

No authorisation under RIPA or the Police Act needs to be sought where a third party organisation conducts surveillance only for its own purposes. RIPA and the Police Act regulate the activities of public authorities so that those activities do not offend against Article 8 of ECHR.

No authorisation would be required as a means of protecting such conduct from being found to be unlawful where the police neither initiate nor encourage the surveillance even though they may be aware of it. See Rosenberg [2006] EWCA Crim 6.

However, where the police are aware of the intention of the third party to conduct covert surveillance and intend making use of the surveillance product in the event that it reveals evidence of a crime, it would be appropriate to seek an authorisation. This would undoubtedly be the case where the third party is tasked to conduct the surveillance, whether explicitly or by implication.

Where surveillance product is to be relied upon, the question of whether that surveillance was overt or covert and was carried out at the initiation of or with the encouragement of the police in circumstances likely to result in private information being obtained, are questions of fact to be determined in each individual case. Evidence that the organisation undertaking the surveillance has complied with the spirit of RIPA guidance (even if it was not a requirement on that organisation) may be relevant in persuading a court to admit the surveillance evidence.

Where surveillance has been conducted in circumstances which the court determines should have been the subject of an authorisation under RIPA or the Police Act, the absence of an authorisation does not mean that the surveillance evidence will be automatically excluded. The fact that the evidence was obtained in breach of a Convention right is a factor which the court will consider when exercising its discretion under section 78 of the Police and Criminal Evidence Act 1984.

Wildlife and Countryside Act 1981

The Wildlife and Countryside Act 1981 (WCA 1981) protects wild animals, plants and habitats.

Protection of wild birds

Definition

For the purposes of Part 1 of the WCA a 'wild bird' is defined at Section 27 as birds ordinarily resident or visitors to the European Territory, excluding poultry and game birds.

The same section also defines both "poultry" and "game bird".

The assistance of an expert may be required in order to establish that the bird in question is either "ordinarily resident in" or a "visitor" to the European Territory of any member state.

Offences under Sections 1-8 Protection of Wild Birds

These sections contain provisions aimed at protecting wild birds from being killed, injured, or “taken” (see below). It makes it a criminal offence to carry out certain activities which would result in wild birds being harmed in those ways.

The WCA also makes it an offence to be in possession of any wild bird, living or dead or of the eggs of such a bird. Section 1(3) and (3ZA) provide a statutory defence where the bird or egg was originally killed or taken lawfully (i.e. it was lawful under other provisions) however, other than this, the offence is one of strict liability: Kirkland v Robinson (1987) 151 JP 377.

Where several persons are potentially in possession (e.g. eggs found in a car containing several occupants) it may be possible to prove joint enterprise by reference to other items found in the same place (e.g. maps, walking or climbing gear, thermos flasks which may be lined with grass for the transport of eggs etc.). There are clear analogies to be drawn with drugs cases. However, it is not necessarily required to recover the eggs involved. Possession of wild bird eggs may be inferred from other evidence even if the eggs themselves are not found.

A recent example of a successful case in such circumstances involved a defendant who had filmed himself removing bird eggs from nests in the wild. The court was satisfied on seeing the footage that the items shown were wild bird eggs even though they were not found in the defendant’s possession on arrest.

It should be noted that under section 18(2) WCA the possession of anything capable of being used to commit an offence under Part 1 of the Act is itself an offence and punishable in like matter to that offence. See section 18(2) WCA.

The species of wild birds to which eggs belong to must be identified by a sufficiently experienced ornithologist. Once the content of an egg has been removed by blowing there is no scientific method of establishing the age of the shell.

Any information may refer to more than one egg, but if there is any doubt about the origin of some (i.e. they may have been taken before the Act came into effect thus being in lawful possession) they should form the subject of a separate information. A similar distinction should be drawn between the eggs of Schedule 1 birds, and those of other wild birds.

The killing, injuring, and taking of wild birds

Under section 1(1) (a) WCA 1981 it is an offence to intentionally kill, injure or take any wild bird.

To "take" in this context means to capture a live bird. (See Robinson v Everett [1980] Crim. LR 699).

The taking of a wild bird may occur in the context of international trade in such birds and the possibility that offences have been committed under the Control of Trade in Endangered Species (Enforcement) Regulations (COTES) should be also be considered. See also "International Trade in Endangered Species- CITES & COTES" below.

Defences

Sporting species

Section 2(1) WCA 1981 provides a defence for the purposes of sporting shoots so that no offence is committed in respect of birds listed in Schedule 2 outside the close season. A "close season" is in general, the nesting season for a particular species. The various close seasons for the birds listed in Part 1 of Schedule 2, are included in the WCA 1981.

Public health, safety and protection of crops and livestock

Section 4(3) WCA 1981 provides a defence for an authorised person who kills or injures a wild bird, if they show that this action was necessary for the purpose of:

  • Preserving public health or air safety; or
  • Preventing the spread of disease; or
  • Preventing serious damage to livestock, foodstuff for livestock, crops, vegetables, fruit, growing timber or fisheries.

This defence is not available for certain species of birds – see Schedule 1 WCA 1981.

"Authorised person" is defined at section 27 WCA 1981.

Pest species

Certain birds which are traditionally regarded as “pests” (such as crows and woodpigeons) were originally specified under the WCA as being birds that might be killed by an authorised person, even during close season. However, the list was subsequently removed from the WCA 1981. Instead the legislation provides for a system of “general licences” (see below: “General Licences) which are published by Defra and which allow certain birds to be killed.

The General Licence

Section 16 Wildlife and Countryside Act 1981 creates the power to issue general licences applicable to all authorised persons. Under the legislation, these licences permit certain acts. Individuals will be covered by the terms of the licence provided they comply with the conditions. There is no need for anyone to apply for the licence, only to comply with its conditions when carrying out the acts.

Under section 16 the licences may be issued to allow the killing of birds.

The issue of whether a person was entitled to rely on the protection of a licence issued by the appropriate authority arose in RSPCA v Cundey, QBD 22 October 2001.

The question before the court was whether Mr Cundey (who had tried to kill starlings during the summer months) was limited to the list of purposes set out in section 16 or whether once the licence was issued, the purpose was irrelevant.

The court held that a person could only rely upon a licence issued under Section 16 WCA 1981 provided the act was for one of the statutory purposes as defined.

The terms and conditions of the various licences can be found on the Government website on the page relating to General Licences for Wildlife Management.

Injured birds

It is a defence for a person to show, under section 4(2) WCA 1981, that:

  • In relation to the taking of a wild bird, it had been disabled otherwise than by their unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled; see section 4(2)(a) WCA 1981.
  • In relation to the killing of a wild bird, it had been so seriously disabled otherwise than by their unlawful act that there was no reasonable chance of it recovering; see section 4(2)(b) WCA 1981.

These defences must be considered with care. Where it is claimed that an injured bird was taken for the purpose of tending it, that intent must be shown to have been present at the time the taking occurred. Furthermore, "tending" should be interpreted as meaning "tending properly" and an injured bird that has been tended improperly following captivity may lead to consideration of a charge of causing unnecessary suffering under the Protection of Animals Act 1911. A veterinary surgeon can give evidence as to whether an injured bird has been tended properly. Note: Only a registered veterinary surgeon may carry out veterinary surgery; see section 19 Veterinary Surgeons Act 1966.

A defence may also be raised under section 4(2)(a) that a bird has been "injured" and disabled from living in the wild by becoming "imprinted" into regarding its human keeper as its source of food. Where a person has deliberately allowed a bird to "imprint" in this manner the statutory defence will not apply. However, the scientific concept of animal imprinting is a complex one. Where a defence is raised based on such a premise, prosecutors will need to employ a suitably qualified expert. See section 4(2) WCA 1981.

Possession or control of any live or dead wild bird

It is an offence under section 1(2)(a) for a person to have in their possession or control any live or dead wild bird or any part of it, or anything derived from, such a bird.

This is an offence of strict liability, although there is a statutory defence under section 1(3) for situations where the suspect has not killed the bird or has killed it (or taken the egg) lawfully or acquired it lawfully. There is a clear distinction between "dead" and "killed" since the former will include death from natural causes such as starvation, old age, or disease.

The distinction between the possession of a wild bird, which was dead as opposed to "killed" was considered in Robinson v. Everett etc. (1988) Crim. LR 699. The case established that a bird which was stuffed and mounted when it came into the possession of the defendants was still “dead” for the purposes of the WCA 1981. Furthermore, in the absence of any clear evidence of a finding on the cause of death, the defendants had not proved that the bird had not been killed.

So far as the alleged unlawful possession of live wild birds is concerned cases usually involve either birds of prey or songbirds. The status of such a bird as a wild bird must be established and, as a result of section 1(6), any bird bred in captivity will be excluded from the ambit of the offence. The origin of a bird (i.e. born in captivity or raised in the wild) may be inferred from its behaviour by an expert.

Alternatively, the defendant may seek to establish captive birth by means of breeding records, examination of these records may reveal a breeding rate which is biologically impossible or highly improbable. DNA analysis can also confirm or deny alleged bloodlines.

The possession of a wild bird may indicate the existence of an international trade in such birds and the possibility that offences have been committed under the Control of Trade in Endangered Species (Enforcement) Regulations (or COTES) should be considered. See guidance below.

Defence of general application

A person shall not be guilty of an offence under section 1 if they show that the act was the incidental result of a lawful operation and could not reasonably have been avoided. See section 4(2)(c) WCA 1981.

Prohibited methods of killing and taking wild birds

Section 5 of the WCA 1981 prohibits the use of certain methods of killing or taking wild birds.

Section 5(1)(a) makes it an offence to set in position certain articles (listed in the sub-section) which are calculated to cause bodily injury to any wild bird coming into contact with them.

The phrase "calculated to" is not defined in the Act, but the definition of the phrase where it appears in other statutes has been considered by the courts where it has been held to mean “likely to” (rather than “intended to”).

Both the High Court in Turner v. Shearer [1972] 1 WLR 1387 (in respect of items of police uniform worn by someone not a police officer) and the CA in the cases of R v. Davison 1972 3 All ER 1121 (items appearing to show that collections were for charity) also R v. Aworinde [1996] RTR 66 (forged blank insurance certificates) have adopted this definition. It is therefore submitted that in the present context "calculated to" refers to the foreseeable likelihood of causing bodily injury.

Section 5(1)(a) of the WCA does not require the defendant to have any specific purpose, whereas the other offences created by that subsection require proof that the defendant’s purpose was to kill or take wild birds. However, there is a statutory defence provided by section 5(4) and 5(4A) when the purpose of killing or taking is in the interests of public health, agriculture, or nature conservation.

Prosecutors should note the distinction between “poisonous”, “poisoned” and “stupefying” substances under section 5(1)(a) These are three separate offences and if there is room for argument as to which category the substances fall into, a separate information should be laid for each. See Robinson v Hughes [1987] Crim.LR 644 .

There are circumstances when the use of certain types of traps are permitted when operated under a licence granted under section 16 of the Act. See General Licence section above.

The sale of live or dead wild birds, and eggs

Section 6 of the WCA 1981 prohibits

  • the sale or advertising for sale of wild birds (alive or dead) or their eggs, or
  • showing of wild birds for competition

Registration of captive Schedule 4 birds

It is an offence under section 7 WCA 1981 to be in possession of or keep any birds listed in Schedule 4 of the WCA 1981 unless they have been registered. It is also an offence to possess or keep a wild bird within a certain period of having been convicted of some offences (see section 7(3) WCA).

Protection of captive birds

Section 8 WCA 1981 prohibits the keeping of wild birds so that they cannot stretch their wings freely. It also prohibits arranging or taking part in events where wild birds are released for the purpose of being shot immediately.

Protection of Wild Animals

See also Wild Mammals (Protection) Act 1996 below.

Schedule 5 of the WCA 1981 lists a large number of animals which are protected under Section 9 of the Act.

It includes: all species of bat, species of Dolphin, amphibians including all species of Newt, species of frog and toad, reptiles, porpoise, otter, and many species of insects.

The WCA protects these animals by prohibiting certain acts which would harm them or their habitats.

Defences

Statutory defences are provided for some of these offences under section 9 and section 10. The burden of proof is in each case on the defendant on the balance of probabilities.

  • Section 9(3) – defence that the taking, killing or possession of the animal in question pre-dated the relevant provisions.
  • Section 10(1) - defence that actions were done in pursuance of certain requirements or orders.
  • Section 10(2) – defence that destruction or disturbance of an animal’s shelter took place inside a dwelling house. However, see section 10(5) which limits this defence in respect of bats.
  • Section 10(3) – defence to
    • Taking an injured animal in order to tend to its injuries,
    • Killing a seriously injured animal which could not recover, to put it out of its misery,
    • Any actions which are the inevitable result of and incidental to any lawful operation. (However, as regards this last, see the limitation in respect of bats under section 10(5).)
    • Section 10(4) – defence that actions were for the protection of livestock, crops, or fisheries.

Killing or taking by certain methods

Section 11 WCA 1981 prohibits killing or snaring of some animals (listed in Schedule 6 and 6ZA). Some of these animals are also listed in Schedule 5.

The provisions of section 11 are very similar to those set out at section 5 of the WCA in respect of birds. See above.

The deployment of poisons, snares and traps against wild animals is not prohibited entirely, but their use is heavily circumscribed under section 11(1). This includes a prohibition on self-locking snares. These snares progressively tighten around the animal’s neck and do not relax when it ceases to struggle. They can cause severe and prolonged pain.

If it is unclear what kind of snare has been set, the police can obtain advice on snares and all aspects of avian and mammalian trapping from the British Association for Shooting and Conservation (BASC).

Under Section 11(3) a person who has either set (or caused or permitted to be set) a snare to trap any wild animal is under a duty to visit every snare at least once a day. Failure to do so is an offence.

Defences

A statutory defence is provided under section 11 (6) and (7) to some of the offences created under section 11 for actions taken for the protection of public health etc.

Other legislation relating to animal traps, poisons, and pesticides

Spring Traps

Pest and Predator control is an integral part of conservation and wildlife management. Over the years a range of techniques have been developed to control a variety of pests and predators. Some are lawful but others are not.

Spring Traps must be approved for use by orders made under the Pests Act 1954. It is an offence under section 8(1) to use spring traps if they are not approved or are not used correctly. However, there is an exception under section 8(5) for certain traps for use in trapping mice, rats etc.

Section 9 Pest Act 1954 prohibits the use (other than under a DEFRA (MAFF) licence) of an approved spring trap for the killing or taking of hares or rabbits elsewhere than in a rabbit hole.

Both offences under the Pest Act are triable summarily and are punishable by a fine of £1,000 (level 3).

Inspection of traps

Section 10 of the Protection of Animals Act 1911 places a duty upon any person setting a spring trap to catch a rabbit or a hare to inspect the trap at least once a day between sunrise and sunset. Failure to do so is a summary offence punishable by a £200 fine (level 1).

Pesticides

The Food and Environmental Protection Act 1985 (FEPA), Part III.

Sections 16 to 22 of FEPA lay out a regulatory framework for the use of pesticides. Some chemicals are banned and the conditions for the use of others are regulated. A person who contravenes the regulations, or causes or permits another person to do so is guilty of an either-way offence, punishable with an unlimited fine. (FEPA sections 16(12) and 21(3)-(4).)

See also the Control of Pesticides Regulations 1986/1510 (CPR).

Attempts to commit offences

Summary offences cannot be prosecuted under the Criminal Attempts Act 1981 as that Act does not apply to summary offences. However, section 18(1) of the WCA provides that an attempt to commit any of the offences listed in Part 1 of the WCA 1981 is itself an offence which may be prosecuted.

When drafting ‘attempt’ offences under Part 1 WCA 1981, it is suggested that prosecutors cite the relevant section under Part 1 WCA 1981, and also cite s.18 WCA 1981, e.g. Attempting Intentionally to kill a wild bird, “contrary to section 1(1)(a) and section 18(1) of the Wildlife and Countryside Act 1981”.

Causing or permitting offences

When reviewing the evidence obtained in the course of an inquiry into whether someone has caused or permitted an offence to be carried out, the following points must be considered:

  • The identity of the employer and the identity of the person who has delegated responsibility for an employee (such as a gamekeeper).
  • The identification of specific offences committed by the employer.
  • Whether offences committed by the employee have been caused or permitted by a supervisor.

Where sufficient evidence exists, it will usually be appropriate to prosecute all those involved to allow the court to fairly balance culpability.

Protection of Wild Plants

Schedule 8 of the WCA 1981 lists a large number of plants which are protected.

Under Section 13(1)(a), it is an offence to intentionally pick, uproot, or destroy any wild plant included in Schedule 8 and, under section 13(1)(b), an offence for anyone other than an authorised person to uproot any wild plant. It is a defence, under section 13(3), to show that the act was an incidental result of a lawful operation.

Under Section 13(2), it is an offence to sell, offer or expose for sale, or possess any live or dead wild plant included in Schedule 8 or any part of that plant.

Introduction of New Species of Animals and Plants into the wild

Under Section 14(1) WCA 1981 it is an either way offence to release into the wild, or to allow the escape of, any animal which is not ordinarily resident, or a regular visitor to, Great Britain in a wild state: or which is included in Part 1 of Schedule 9.

Similarly, under Section 14(2) WCA 1981 it is an offence to plant in the wild, or otherwise cause to grow there, any plant included in Part 2 of Schedule 9.

In either instance, however, it is a defence under section 14(3) that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.

Wildlife Inspectors

Section 18A provides for Wildlife Inspectors who are authorised by either the Secretary of State or the National Assembly for Wales. Under sections 18B and 18D powers of entry to premises and inspection are granted to wildlife inspectors.

A person who intentionally obstructs a wildlife inspector acting within their powers, or who fails without reasonable excuse to give any assistance reasonably required by an inspector, commits an offence under section 19XB. It is also an offence under 19XB to falsely pretend to be a wildlife inspector with intent to deceive.

Tissue Sampling

Under sections 18C and 18E a wildlife inspector may, for the purposes of establishing whether a group 1 or 2 offence has been committed, take a sample of blood or tissue from any specimen that they find on premises to determine its identity or ancestry.

Under section 19XB a person commits an offence if they fail to make a specimen available for tissue sampling or fail to provide any assistance reasonably required for that purpose.

Powers of Search and Seizure

Section 19(1) WCA 1981 allows a constable who has reasonable cause to suspect that any person is committing/has committed an offence under Part 1 (wildlife) WCA to stop and search them and to enter premises (other than a dwelling) for the purposes of searching for evidence or arresting the suspect.

Most offences under Part I WCA 1981 are summary only and a person guilty of such an offence is liable on summary conviction to six months' imprisonment or to a level five fine or both. Offences under sections 14 and 14ZA are either way and are punishable on conviction on indictment to two years' imprisonment or to a fine or both.

The identity of "the prosecutor" for these purposes is to be determined in accordance with the Director's Guidance on Charging. This provides in most cases that the police have responsibility for determining sufficiency of evidence and public interest for summary only offences. Accordingly, where the police decide on charge, they are the 'prosecutor' for section 20 purposes. This may not necessarily be the investigator but should be the officer with responsibility for making the charging decision.

The relevant prosecutor should sign a certificate of confirming the date when sufficient in the opinion of the prosecutor to warrant proceedings came to their knowledge

If the defence take issue with the date, guidance can be found in RSPCA v Johnson [2009] EWHC 2702 and Riley and Others v Crown Prosecution Service [2016] EWHC 2531 (Admin) [2016] WLR(D) 530.

Powers of Forfeiture under WCA 1981 and generally

Wherever appropriate, courts should be reminded of their power to make forfeiture orders.

Section 21 of the WCA 1981 provides for powers of forfeiture in respect of some specific offences under the Act.  

Where property has come into police possession, police may be referred to the provisions of the Police (Property) Act 1897 as a means of challenging claims of ownership to property which may not be legitimate, e.g. bird's eggs where there is sufficient evidence to show on a balance of probabilities that they were possessed illegally, but insufficient to establish an offence under section 1(2)(b) WCA.

Following conviction for other wildlife offences a court should be invited to consider forfeiture of such items under the provisions of sections 152 – 153 of the Sentencing Act 2020 (SA 2020), which applies to all convictions on or after 1st December 2020.

This is the main power of the court to order the forfeiture of property connected with the commission of an offence.

Where a person is convicted of an offence and the court by or before which they are convicted is satisfied that any property which has been lawfully seized from them, or which was in their possession or under their control, at the time when they were  apprehended for the offence or when a summons in respect of it was issued:-

  • Has been used for the purpose of committing, or facilitating the commission of any offence, or
  • Was intended by them to be used for that purpose, the court may make forfeiture order in respect of that property.

Section 155 of the SA 2020 confirms that in considering whether to make an order under the section a court shall have regard to both the value of the property and to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). If a forfeiture order under section 153 of the SA 2020 is sought the file must contain reliable information about the value of the property seized.

The type of property captured by this section is very wide ranging. The court's powers are discretionary. 

Forfeiture of a vehicle is often likely to be an effective means of deterring repeat offences relating, for example, to rare birds and eggs as well as of incapacitating an offender's future ability to conduct such activities.

The Conservation of Habitats and Species Regulations 2017

These Regulations relate to the conservation of natural habitats and wild fauna and flora. Schedule two of the Regulations contains a list of the European Protected Species of animals which includes bats, butterflies, dolphins, the Greater Crested Newt, Otters, and Turtles.

Part Three relates to the protection of species, animals, and plants.

Regulation 43 makes it an offence to deliberately capture, injure, kill, or disturb a wild animal of a European protected status or deliberately to take the eggs of such an animal. It also makes it an offence to damage or destroy the breeding site of such an animal. The fact that this last offence under the regulations does not require proof that it was done deliberately reflects the importance attached to the breeding sites in the life cycle of such animals, particularly bats.  

Deer Act 1991

Sections 1 – 4 of the Deer Act 1991 create certain offences regarding

  1. Poaching of deer
  2. Taking or killing of deer in close season
  3. Taking or killing of deer at night
  4. Using certain weapons etc to take or kill deer.

Under section 5 it is also an offence to attempt to commit any of the offences at 2 – 4 in the list above.

All the offences are summary only punishable with a fine or up to three months imprisonment.

Exceptions

Sections 6, 7 and 8 provide for exceptions to these offences, including prevention of suffering, a requirement by the Minister of Agriculture, Fisheries and Food (now DEFRA) and where an animal has is dependent on and has been deprived of a female deer.

Section 7 covers exceptions for occupiers of land where the deer are, and section 8 covers exceptions for licensed persons.

Protection of Badgers Act 1992

Badgers, the largest indigenous and predatory wild animals in the British Isles, are protected under the provisions of the Protection of Badgers Act 1992 (PBA). They are sometimes hunted by persons seeking to obtain a live animal to set against a pack of dogs in a confined space. The 'hunting', also known as badger baiting, normally consists of digging a badger out of its burrow, or "sett". Dogs wearing radio collars are sent below ground into the badger sett and the signal is tracked from above. Once the dog has located a badger the offenders dig down until they reach the dog and the badger. The badger is then thrown to the dogs to fight them resulting in significant injuries to both and often the eventual death of the badger. Often the dogs do not receive proper veterinary treatment.

Badger persecution is one of the UK wildlife crime priorities. This includes badger baiting, as set out above, as well as disturbance and destruction of badger setts which can occur when people carry out otherwise legal operations on land such as forestry or agricultural tasks.

The Act is principally one of welfare as opposed to conservation.

Under the Act it is an offence to

  • take injure or kill a badger or be in possession of a dead badger
  • cruelly ill-treat a badger or dig for a badger or use certain items to take or kill it
  • carry out certain acts with the intention of interfering with a badger sett (or being reckless as to those effects)
  • sell or possess a live badger
  • mark or ring a live badger (except as authorised by a licence).

Exceptions

Sections 6 – 9 provide for exceptions to the offences.

Expert Evidence

Expert evidence is likely to play a part in any prosecution under PBA 1992. In particular such evidence is likely to be required to prove that an alleged sett 'displays signs indicating current use by a badger'. Prosecutors should ensure that any defence expert evidence is served in sufficient time to allow for proper evaluation before the date of the trial.

Defence Claims

The defence may claim lack intent to kill, interfere with etc. a badger on one or more of the following grounds:

  • A heavily built breed of dog like a bull terrier is required to tackle a badger. Absence of such dogs does not indicate a lack of interest in badgers. Smaller breeds, such as the Jack Russell, are used to enter a sett and locate badgers underground.
  • Light nets, sometimes called fox nets, are not strong enough to trap badgers. Such nets can still be used to restrain a bolting badger until it is secured.
  • The absence of specialised equipment, such as badger tongs, or delving rods for tracing tunnels. It does not follow that persons were not after badgers. A spade can be used not only for digging, but also for disabling a badger.

Use of Dogs

Under section 13, where a dog was used, or was present at, the commission of an offence of

  • taking, injuring, or killing a badger, or
  • ill-treating, digging for or using prohibited articles in the course of taking or killing a badger, or
  • interfering with a badger sett

the court has power to order its destruction and/or disqualify the offender from having custody of a dog for such period as the court sees fit.

Wild Mammals (Protection) Act 1996 (WMPA 1996) (C.3)

Under section 1 Wild Mammals (Protection) Act 1996 it is an offence for any person, with intent to inflict unnecessary suffering, to mutilate, kick, beat, nail or otherwise impale, stab, burn, stone, crush, drown, drag or asphyxiate any wild mammal.

Definition

"Wild mammal" means any mammal which is not a 'protected animal' within the meaning of the Animal Welfare Act 2006. The Animal Welfare Act 2006 defines a 'protected animal' as:

  • It is of a kind which is commonly domesticated in the British Isles,
  • It is under the control of man whether on a permanent or temporary basis, or
  • It is not living in a wild state

Badgers are mammals but it will usually be more appropriate to make use of the Protection of Badgers Act for offences concerning them.

Defences

Section 2 provides for various defences such as acts done by way of mercy-killing or lawful pest control.

Sentencing

Offences under WMPA are summary only and are punishable by an unlimited fine and/or six months imprisonment.

Section 6 of the WMPA provides for the court to confiscate vehicles or other equipment used in the commission of the offence.

International Trade in Endangered Species: CITES and COTES

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international agreement to control the trade in endangered species of plants and animals to which the United Kingdom is a signatory.

The aim of CITES is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.

It accords varying degrees of protection to more than 35,000 species of animals and plants, whether they are traded at live specimens, dried herbs, fur coats, exotic leather goods etc.

Customs and Excise are responsible under the Customs and Excise Management Acts for the enforcement of CITES controls on trade between the UK and non-EC states while enforcement within the UK is the responsibility of the police with assistance from DEFRA which is the 'Management Authority' for this country.

Appendices 1, 2 and 3 to the Convention

The convention allocates endangered species to one of three Appendices:

  • Appendix 1 covers species threatened with extinction in which 'commercial' trade (buying and selling with a view to financial profit) is prohibited and 'non-commercial' trade is strictly regulated through the use of export and import permits and certificates.
  • Appendix 2 covers species, which are at some risk of being threatened with extinction and trade must be controlled to avoid utilization incompatible with their survival. 'Commercial' trade is permitted provided the formalities are complied with, including export permits.
  • Appendix 3 contains species added by signatory countries because they require the co-operation of other countries to control trade in a species which may be scarce in a particular country, though not globally.

EC Council and Commission Regulations

The Convention is given effect by EC Council and Commission Regulations.
Currently, these are found in the following retained EU legislation:

  • Council Regulations (EC) No.338/97 (the 'Principal Regulation') which implements the protection of species of wild flora and fauna by regulating trade therein and
  • (EC) no. 865/2006 (the Subsidiary Regulation) which implements the Principal Regulation.

Annexes A, B, C and D

Annexes A, B, C and D to the "Principal Regulation" list the species to which the enforcement provisions of the Control of Trade in Endangered Species Regulations.

Species are listed according to how endangered they are in the wild.  Annex A is the most strictly controlled list of species and annex D the least. 

Offences under the Control of Trade in Endangered Species Regulations 2018/703 (COTES)

The whole system of international trade in endangered species depends on the proper issue and use of the forms accompanying the export and import of the animals or plants concerned.

Schedule 1 of the Control of Trade in Endangered Species Regulations 2018/703 (COTES) makes provisions for offences and penalties while Schedule 2 makes provision for Civil Sanctions.

Regulation 7 of COTES

Under Schedule 1 paragraph 1 of COTES any breach of Article 16(1)(j) of the Principle Regulation (purchasing/selling/acquiring for commercial gain of specimens in breach of Article 8) is punishable on summary conviction with six months' imprisonment or a fine or on conviction on indictment, five years' imprisonment or a fine or both. Article 16(1)(j).

The rest of the offences outlined in Schedule 1 are punishable on summary conviction with up to three months imprisonment or a fine and on indictment two years' imprisonment or a fine or both.

In determining mode of trial, it is suggested that the following factors are likely to indicate that Crown Court trial would be appropriate:

  • Multiple offences in respect of Annex A species.
  • Group activity - others involved whether prosecuted or note.
  • Potential profit exceeds the maximum fine available at summary trial.

Defences

Regulation 4 of the COTES Regulations provides for statutory defences for some of the offences under the Principle Regulation. In general, these defences may apply (depending on the specific offence) where a person has acted reasonably or where they are acting in an official capacity.

Joint Operations by Border Force and the Police

Some cases will result from joint operations between Border Force and the Police. Prosecutors will need to determine which body initiated the investigation. Unless the investigation is clearly and substantially a police matter Border Force should be consulted before any prosecution arising from such a joint operation is accepted by the CPS. Border Force will also be able to advise if any prosecution by them under the Customs and Excise Management Act is likely. If such is the case, consideration should be given as to whether the entire prosecution should be handled by that agency. See also Relations with other Prosecution Agencies.

Powers of Search, Seizure and Forfeiture

These are to be found at Articles 8, 9 and 10 of COTES.

Proceeds of Crime

Prosecutors should consider asset recovery in every wildlife crime case in which a defendant has benefited from criminal conduct and should instigate confiscation proceedings in appropriate cases. More information can be found in the legal guidance on Proceeds of Crime.

Serious Crime Prevention Orders

Under Section 1 of the Serious Crime Act 2007, the High Court in England and Wales can make a Serious Crime Prevention Order (SCPO) if it is satisfied that a person has been involved in a serious crime and it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime.

Schedule 1 of the Serious Crime Act 2007 contains a list of serious offences and paragraph 13 includes four ‘environment’ crimes, two of which are relevant for this legal guidance: 

  • An offence under section 14 of the wildlife and Countryside Act 1981 (introduction of new species etc.)
  • An offence under Regulation 8 of the Control of Trade in Endangered Species (Enforcement) Regulations 1997 (purchase and sale etc. of endangered species and provision of false statements and certificates).

A breech of an SCPO is punishable by a maximum of 5 years’ imprisonment.

Please refer to legal guidance on Serious Crime Prevention Orders.

 

Public interest considerations

In the context of wildlife crime public interest considerations should be taken as including the following:

  • The extent of (or potential for) suffering caused to any bird or animal involved.
  • The potential danger to the public, companion animals or livestock.
  • The biodiversity status of the species involved.

The purpose of the relevant legislation is to protect and conserve creatures and habitats that belong to all and these offences are concerned with abuse of the national heritage and environment.

Community impact statement and species impact statements will be relevant to judging the public interest. See impact statement section.

In reaching a decision whether or not to prosecute consideration must be given to such aggravating or mitigating factors as may exist.

Aggravating factors

These include:

  • Adverse impact on an individual specimen or species locally, nationally or internationally; 
  • An element of additional suffering; 
  • Organised activity and/or evidence of advanced planning; 
  • Commercial basis (either for personal gain or as part of employment); 
  • The offence involves one or more species benefiting from special protection; 
  • Conduct of the offender after detection has contributed to either the concealment of specimens or the causation of further harm to either the specimen(s) or to the species; 
  • Multiple offences or large number of specimens involved.

Mitigating factors

These include: 

  • Accused played a minor part; 
  • Minimal loss, or negligible damage; 
  • Age of offender; 
  • Conduct of the offender after detection leads to the recovery of live specimens or a reduction in the harm caused to the specimen(s) or species; 
  • Offender acted under the direct instructions of his or her employer; 
  • Single offence and small number of specimens involved.

Impact Statements

Wildlife crime can have a significant impact on victims and wider communities. The wider impacts of poaching can include vandalism of property, loss of income, theft, intimidation, and road traffic issues including the driving of unlicensed vehicles. Wildlife offences can also have significant detrimental impacts on particular species.

Victim personal statements, community impact statements and species impact statements can be invaluable in showing the wide-ranging impact of this type of offending and gives victims and communities a voice in the criminal justice process.

Victim Personal Statement

The Victim Personal Statement gives the victim a voice in the criminal justice process and provides a structured opportunity for the victim to state how the crime has affected them – physically, emotionally, psychologically, financially or in any other way. A sentencing court must not make assumptions unsupported by evidence about the effects of a crime on the victim. Some farmers receive grants or subsidies to preserve areas of land for wildlife conservation. Some farmers have a particular interest in species conservation and are distressed by poaching activity within that context. If this is the case, it should be confirmed in a Victim Personal Statement. Some will have experienced similar activity on many previous occasions. If that is the case, then the landowner should be asked to give further details and confirm how past and current experience has affected them and possibly their family too.

More information can be found in the Victim Personal Statement legal guidance.

Community Impact Statement

The Community Impact Statement is a tool that gives the community a voice in the law enforcement process. Guidance on their use was issued by the Ministry of Justice in July 2010.

A Community Impact Statement is a document illustrating the concerns and priorities of a specific community over a set time period. The statements are compiled and owned by the police and take the format of a section 9 witness statement which should be made by someone of at least the rank of Inspector. Community Impact Statements may be used by the police to inform pre court disposals including charging decisions, by the CPS to inform charging and conditional caution decisions, by probation to inform sentencing proposals and by the judiciary to inform sentencing decisions. They will also be used by Youth Offending Teams to inform restorative justice cases where appropriate as well as by Community Safety Partnerships to inform decisions on strategic local interventions. The Community Impact Statement is designed to make community views more visible to crime and justice service providers and used as a mechanism to feed community views directly into the justice process. Community Impact Statements will enable crime and justice practitioners to consider offences in the context in which they are committed and take account of the harm inflicted on the wider community. There are two different types of community impact statement: generic and specific.

More information can be found in the Community Impact Statement legal guidance..

Species Impact Statement

A specific form of community impact statement relevant to wildlife crime cases is the “Species Impact Statement”. Prosecutors dealing with such cases may want to enquire of the police if they wish to include that statement or a more recent version as part of the case.

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