Wildlife Offences

Updated 12/09/2019|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 Prosecutions 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
  • Hunting of wild mammals
  • 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. Bat persecution
  2. Freshwater Pearl Mussels (FWPM)
  3. Raptor persecution – Golden Eagle, Goshawk, Hen Harrier, Peregrine Falcon, Red Kite and White Tailed Eagle
  4. Badger Persecution
  5. Poaching – hare coursing, deer poaching and fish poaching
  6. The illegal trade in CITES species

The NPCC have developed a strategy on wildlife crime which can be found here.

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 the wildlife coordinators or other trained prosecutors 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 PACE.

Wildlife and Countryside Act 1981

The Wildlife and Countryside Act 1981 (WCA 1981) protects wild animals, plants and habitats. It prohibits certain methods of killing or taking wild animals. 

Protection of wild birds

Definition

For the purposes of Part 1 of the WCA 1981 a 'wild bird' is defined at Section 27 as:

"any bird of a species, which is ordinarily resident in, or is a visitor to the European Territory of any member state in a wild state but does not include poultry (Domestic fowl, geese, ducks, guinea-fowl, pigeons, quail and turkey) or, except in Sections 5 and 16, any game bird" (i.e. Pheasant, Partridge, Grouse or moor game, Black or heath game or Ptarmigan).

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.

Section 1 (6) contains a proviso in relation to "wild birds" which relates only to that section. It reads: "In this section "wild bird" does not include any bird which is shown to have been bred in captivity.

Offences under Sections 1-8 Protection of Wild Birds

Section 1(1)(a): kills, injures or takes any wild birds

Section 1(1)(aa): takes, damages or destroys the nest of a wild bird included in Schedule ZA1

Section 1(1)(b): takes, damages or destroys the nest of any wild bird while that nest is in use or being built

Section 1(1)(c): takes or destroys an egg of any wild bird

Section 1(2)(a): has in his possession or control any live or dead wild bird or any part of, or anything derived from, such a bird

Section 1(2)(b): has in his possession or control an egg of a wild bird or any part of such an egg

Section 1(5)(a): intentionally disturbs any wild bird included in Schedule 1 while it is building a nest or is in, on or near a nest containing eggs or young

Section 1(5)(b): intentionally disturbs dependent young of such a bird

Sections 5(1)(a) and (b): set in position or use an article which is of a nature and is calculated to either cause bodily injury to, or to kill or take alive, any wild bird coming into contact with it.

Section 5(1)(c): uses for the purposes of killing or taking any wild bird any bow or crossbow, explosive, automatic or semi-automatic weapon, wide shot gun, any device for illuminating a target or any sighting device, a dazzling device, gas or smoke or chemical wetting agent.

Section 5(1)(d): uses a decoy for the purposes of killing or taking a wild bird

Section 5(1)(e): uses any mechanically propelling vehicle to pursue a wild bird to kill or take it

Section 5(1)(f): knowingly causes or permits any of these things to be done.

Section 6(1)(a): sells, offers or exposes for sale any live wild bird or an egg or any part of an egg of a wild bird

Section 6(1)(b): publishes any advertisement conveying that he buys or sells any of the things referred to in (a)

Section 6(2)(a): sells, offers or exposes for sale any dead wild bird or any part of a wild bird

Section 6(2)(b): publishes any advertisement conveying that he buys or sells any of the things referred to in (a)

Section 6(3)(a): shows for the purposes of any competition any live bird other than those included in Part 1, Schedule 3 or (b) any live bird whose parent was such a wild bird.

Section 7(1): keeps, possess or controls any bird included in Schedule 4 which has not been registered or ringed or marked in accordance with regulations

Section 7(3): keeps, possess or controls any bird included in Schedule 4 within five years of having been convicted of an offence under this part or (b) within three years of having been convicted of any other offence under this part that relates to the protection of birds or other animals or any offence involving ill-treatment.

Section 8(1): keeps or confines any bird in a cage which is not of sufficient volume for it to stretch its wings freely

Section 8(3): takes part in or arranges any event where captive birds are freed for the purpose of being shot immediately or (b) being the owner or occupier of any land used for the purposes of such an event.

Criminal Attempts

Under section 18(1) of the WCA 1981 "any person who attempts to commit any offence under Part 1 of the Act shall be guilty of an offence". This provision effectively extends the provisions of section 1 Criminal Attempts Act 1981 to the summary offences contained in Part 1 of this Act.

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 and W. & F.C. Bonham & Son Ltd (1988) CLR 699. (See Robinson v Everett and W. &F.C. Bonham & Son Ltd (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

By virtue of section 2(1) WCA 1981 no offence is committed if a bird listed in Schedule 2, Part 1  of the Act is killed, taken, or injured in an attempt to kill, outside the close season for such a bird. A "close season" is in general, the nesting season for a particular species. The various close seasons for the birds listed in Schedule 2, Part 1 are included in the WCA 1981.

Birds specified in Schedule 1 Part 2: Goldeneye, Greylag Goose (in Outer Hebrides, Caithness, Sutherland and Wester Ross only) and Pintail are also protected during the Close Season.

Public health, safety and protection of crops and livestock

Under section 4(3) WCA 1981 an authorised person shall not be guilty of an offence of killing or injuring a wild bird, other than a Schedule 1 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.

"Authorised person" is defined at section 27 WCA 1981. It includes the owner or occupier of land on which the action is taken, or a person authorised by him or her. See section 27 WCA 1981.

Pest species

Section 2(2) states:

"Subject to the provisions of this section, an authorised person shall not be guilty of an offence under section 1 by reason of: 

  • the killing or taking of a bird included in Part 2 of Schedule 2 or the injuring of such a bird in the course of an attempt to kill it; 
  • the taking, damaging or destruction of a nest of such a bird; or 
  • the taking or destruction of an egg of such a bird."

An authorised person for the purpose of the WCA 1981 is defined by section 27 of the Act as:

"(a) the owner or occupier, or any person authorised by the owner or occupier of the land on which the action authorised is taken."

By means of Statutory Instrument (The Wildlife and countryside Act 1981 (variation of Schedules 2 and 3) Order 1992) 1992 (No. 3010), the WCA 1981 was amended so that with effect from 1st January 1993 the list of species found in Schedule 2, Part 2 of the Act was deleted. Instead the legislation created general licences applicable to all authorised persons, and under the legislation it is not necessary for any individual to apply for or be issued with a licence.

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, it is not necessary for any individual to apply for or be issued with a licence.

Section 16 states that:

"Sections 1, 5, 6(3), 7 and 8 and orders under Section 3 do not apply to anything done:"

  • for scientific, research or educational purposes;
  • for the purpose of ringing or marking, or examining any ring or mark on, any wildbirds;
  • for the purpose of conserving wildbirds;
  • for the purposes of the re-population of an area with, or the re-introduction into the area of, wild birds, including any breeding necessary for those purposes;
  • for the purpose of conserving flora and fauna;
  • for the purpose of protecting any collection of wildbirds;
  • for the purposes of falconry or aviculture;
  • for the purposes of any public exhibition or competition;
  • for the purposes of taxidermy;
  • for the purpose of photography;
  • for the purposes of preserving public health or air safety;
  • for the purposes of preventing the spread of disease; or
  • for the purposes of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber,(fisheries or inland waters).

"If it is done under and in accordance with the terms of the licence granted by the appropriate authority."

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; see transcript of RSPCA v Cundey "ANNEX A" Neutral Citation No:[2001] EWHC Admin 906.

An information had been preferred on behalf of the RSPCA against Mr Cundey, that he had attempted to kill certain wildbirds, namely Starlings, contrary to section 1 (1) WCA 1981. Cundey had admitted to shooting at the birds by means of an air rifle within the bounds of his garden. The garden extended to one and a half acres.

The defendant sought to rely upon two general licences issued by the Department of the Environment, Transport and the Regions ("DETR") and the Ministry of Agriculture, Fisheries and Food ("MAFF").

The RSPCA contended that, on the true construction of the licences, it had to be shown: 

  • that the birds attempted to be killed were in the list of pest species to which the licence applied, 
  • that the method of attempted killing was permitted; and 
  • that the purpose of the wrongful act fell within the purposes for which the licence was issued under the statutory purpose set out in section 16(1) WCA 1981, namely one of the statutory purposes.

The first two requirements were not in dispute. The appeal centred on the interpretation of the two licences.

Namely, did the purpose of the attempted killing fall under the statutory purposes as caused the licence to be issued or once the licence had been issued, it was irrelevant that the act complained of was not carried out for a statutory purpose.

The DETR licence allowed the taking of pest species to preserve public health or safety, whilst the MAFF licence related to the spread of disease and the prevention of serious damage to livestock and crops.

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.

Following a legal challenge to the way the licences were issues, Natural England revoked three general licences GL04, 05, and 06 with effect from 25 April 2019.

Natural England issued new licences on 25 April 2019 to:

  • Kill or take Canada Geese to preserve public health and safety (GL28)
  • Kill or take carrion crows to prevent serious damage to livestock (GL26)
  • Kill or take woodpigeons to prevent serious damage to crops (GL31)

Further, the Department for Food and Rural Affairs (DEFRA) issued the following three licences with effect from 14 June 2019:

  • Kill or take wild birds to conserve wild birds and to conserve flora and fauna (GL34)
  • Kill or take wild birds to preserve public health or public safety (GL35)
  • Kill or take wild birds to prevent serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries or inland waters (GL36

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:

  1. In relation to the taking of a wild bird, it 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; see section 4(2)(a) WCA 1981.
  2. In relation to the killing of a wild bird, it had been so seriously disabled otherwise by his 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 and where a defence is raised based on such a premise you will need to employ a suitably qualified expert. See section 4(2) WCA 1981.

Wild birds' nests

Under section 1(1)(aa) WCA 1981, it is an offence to intentionally take, damage or destroy the nest of a wild bird listed in Schedule ZA1.

Under section 1(1)(b) WCA 1981, it is an offence to intentionally take or destroy the nest of any wild bird while that nest is in use or is being built. This includes the nests of birds listed at Part 1 of Schedule 2.

Intentional or Reckless disturbance of a Schedule 1 bird

It is an offence under section 1(5) to either intentionally or recklessly disturb any wild bird included in Schedule 1 of the Act while it is building a nest or is in, on, or near a nest containing eggs or young; or to either intentionally or recklessly disturb the dependent young of such a bird. Schedule 1 birds are, generally speaking rare in the British Isles. Such disturbance may be caused by persons who are intending, either then or later, to steal the eggs or the young of Schedule 1 birds. Relevant evidence to prove the offence may include anything tending to rebut claims of accidental presence near to the site.

Egg collections 

Under section 1(1)(c) WCA 1981 it is an offence to intentionally take or destroy an egg of any wild bird.

Under section 1 (2)(b) WCA 1981 it is also an offence for a person to have in their possession or control an egg of a wild bird.

The possession etc. of an egg of a wild bird contrary to section 1(2)(b) is an offence of strict liability: see Kirkland v Robinson, (1987) 151 JP 377 because the word "intentionally" is omitted from the offence and a specific defence is provided at section 1(3).

It is a defence under Section 1(3) WCA 1981 to show that an egg had not been taken, or had either been taken or lawfully sold to himself or another.

It is a defence under section 1(3ZA) if the person can show that the egg was in any person’s possession or control before 28 September 1982.

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 1981.

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.

An 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.

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 his 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, and the statutory defence under section 1(3) will apply. It should be noted that while section 1(2)(a) refers to a "live or dead" wild bird, the statutory defence in section 1(3) refers to a bird that has been "killed". There is a clear distinction between "dead" and "killed" since only 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, but not determined, see Robinson v. Everett etc. (1988) Crim. LR 699. However, that case did establish that a "dead bird" remains a dead bird though later stuffed and mounted.

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

Under section 4(2)(c) a person shall not be guilty of an offence under section 1 if they show that the act was the accidental 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

Under section 5(1)(a) and (b) WCA 1981 it is an offence to either set in position or use an article which is of a nature and is calculated to either cause bodily injury to, or to kill or take alive, any wild bird coming into contact with it.

The word "calculated" is not defined in the Act, but the definition of the word which appears in section 5 of the House to House Collections Act 1939 and in section 173(1) Road Traffic Act 1988 ("likely to deceive"). It is therefore submitted that in the present context "calculated" refers to the foreseeable likelihood of causing bodily injury. See Animal traps and snares, below.

The articles in question are defined as;

Any spring trap, gin (a form of spring trap with toothed jaws designed to hold prey not kill), snare, hook, and line, any electrical device for killing stunning or frightening, any poisonous, poisoned or stupefying substance, any net, baited board, bird-lime (a sticky substance which can be smeared on twigs and other perching points), or substance of a like nature to bird-lime. This would include both the illegal pole trap placed in a nest to catch the parent and a legal trap, if used incorrectly (e.g. a fenn trap set on a pole to catch birds of prey. See section 5(1)(a) and (b) WCA 1981.

There are however, 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.

Poisonous and stupefying substances

Section 5(1)(a) prohibits the use of any poisonous, poisoned or stupefying substance. It is important to distinguish between "poisonous and stupefying" substances when laying information. In Robinson v Hughes [1987] Crim.LR 644 the accused set in position birds eggs containing a substance known as Alpha-chloralose. He was subsequently summoned under section 5(1)(a), with setting in position a poisoned substance. However, an analytical chemist gave evidence that the substance was a "narcotic" and the defence successfully argued that as there was no evidence that the substance Alpha-chloralose, was a "poisonous substance" there was no case to answer. The Divisional Court upheld that decision on the basis that a substance, which was narcotic, had the effect of inducing sleep or stupor, precisely within the definition of stupefying. The Court added per curiam, that if doubt existed as to whether a substance was "poisonous", "poisoned" (as where a carcass is treated with a poisonous substance), or "stupefying" alternative information’s should be laid.

Statutory defence; section 5(4)

It is a defence under section 5(4) WCA 1981 to show that the article was set in position for the purpose of killing or taking in the interests of public health, agriculture, or nature conservation any wild animal which could be lawfully taken by those means, and that all reasonable precautions were taken to prevent injury to wild birds. See section 5(4) WCA 1981.

Prohibited Use of weapons, decoys, vehicles

Section 5(1) (c) prohibits the use of various forms of weapons either to kill or take wild birds. These include crossbows, night-sights, automatic or semi-automatic weapons and shotguns with wide barrels.

Section 5(1)(d) prohibits the use of a decoy to kill or take any wild bird, or any sound recording or a live bird or animal which is tethered, secured, blind, maimed or injured.

Section 5(1)(e) prohibits the use of any mechanically propelled in immediate pursuit of a wild bird. Section 27 states that this includes aircraft, hovercraft and boat..

Section 5(1)(f) makes it an offence to knowingly cause or permit to be done any act which is mentioned within section 5(1).

The sale of live or dead wild birds, and eggs

Under section 6(1)(a) WCA 1981 it is an offence to sell, offer for sale or possess for sale, or transports for sale any live wild bird, other than those specified in Part 1 of Schedule 3, or any egg of a wild bird or any part of such an egg.

Under section 6(1)(b) WCA 1981 it is an offence to publish or cause to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell any of the things listed in 6(1)(a).

As section 6 (5) WCA 1981 makes plain, a Part 1, Schedule 3 bird must be a bird that was bred in captivity; and it must also have been ringed or marked in accordance with the Wildlife and Countryside (Ringing of Certain Birds) Regulations 1982.

Under section 6 (2) (a) WCA 1981 it is an offence for any person to sell etc. any dead wild bird other than those specified in Parts 2 or 3 of Schedule 3 WCA 1981.

Registration of captive Schedule 4 birds

Under section 7(1) WCA 1981 it is an offence for any person to keep, or have in their possession or control, any bird listed in Schedule 4 WCA 1981, which has not been registered and marked in accordance with the Wildlife and Countryside (Registration and Ringing of Certain Captive Birds) Regulations 2015.

It is also an offence, under section 7(3) WCA 1981 for any person, who has been convicted of any offence (other than a spent conviction) under this Act within five years for which a special penalty is provided, or three years for any other offence, to keep or have in his possession or under his control any Schedule 4 bird.

Protection of captive birds

Under section 8(1) WCA 1981 it is an offence for any person to keep or confine any bird in a cage or other receptacle which is of insufficient volume to allow the bird to stretch its wings freely. This does not apply to poultry or while the bird is in the course of conveyance, while the bird is being shown for the purposes of a public exhibition providing the confinement does not exceed 72 hours or while the bird is undergoing examination or treatment by a vet.

It is also an offence under section 8(3) WCA 1981, to promote, take part in, arrange, conduct, assist in or receive money for, any event in which captive birds are released for the purpose of being immediately shot.

Protection of Wild Animals

See also Wild Mammals (Protection) Act 1996 below.

Schedule 5 of the Wildlife and Countryside Act (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.

Offences under Section 9 WCA 1981

  • Section 9 (1): intentionally kills, injures or takes any wild animal included in Schedule 5. 
  • Section 9 (2): has in his possession or control of any live or dead animal included in Schedule 5, or any part of, or anything derived therefrom, 
  • Section 9 (4)(a): intentionally or recklessly damages or destroys any structure or place which any wild animal included in Schedule 5 uses for shelter or protection, 
  • Section 9(4)(b): intentionally or recklessly disturbs any wild animal included in Schedule 5 while it is occupying a structure or place it uses for shelter or protection,
  • Section 9(4)(c): intentionally or recklessly obstructs access to any structure of place which any wild animal included in Schedule 5 uses for shelter or protection,
  • Section 9 (5)(a): sells, possess or transports for sale, any such animal live or dead, or anything derived therefrom,
  • Section 9(5)(b): advertises for such a purpose.

Presumption (of a Wild animal)

In any proceedings under subsections 9 (1), (2) and (5)(a) the animal in question will be presumed to have been a wild animal unless the contrary is shown Section 9 (6).

Defences

Under section 9(3), it is a defence to an allegation under section 9(2) (killing or taking) to show that the animal had not been killed or taken, or had been killed, taken or sold otherwise in contravention of the relevant provisions which means before they came into force on September 28 1982).  

Under section 10(2), it is a defence to an allegation under section 9(4) (damaging, destroying, disturbing or obstructing a structure or place used for shelter or protection) to show that it took place within a dwelling house.

A lawful operation

It is a defence under section 10(3)(c) to show that the animal was killed, injured or taken as the incidental result of a lawful operation which could not reasonably been avoided.

In the case of bats, defences under sections 2 and 3(c) are restricted to the living areas of dwelling houses unless the Nature Conservancy Council has been notified and been given reasonable time to advise if the destruction etc. should be carried out and, if so, by what method.

Pest and Disease control

It is a defence under section 10(1) if the action specified under section 9 is required  by the Minister of Agriculture, Fisheries and Food (MAFF) (now the Department for Environment, Food and Rural Affairs (DEFRA), or by the Secretary of State under section 98 of the Agriculture Act 1947, or in pursuance of an order under the Animal Health Act 1981.

Injured animals

It is a defence under section 10(3)(a)(b) to show that the animal was disabled otherwise than by the offender's unlawful act and was either taken solely for the purpose of tending and later releasing it, or, in the event of serious disability so that there was no reasonable chance of recovery, was killed.

Protection of Livestock, Crops or Fisheries

It is a defence under section 10(4) to show that the killing or injury by an authorised person was necessary for the purpose of preventing serious damage to livestock, crops or fisheries.

Under section 10(6), an authorised person cannot rely on the defence provided by section 10(4) if an application for a licence had not been made as soon as reasonably practicable. 

Killing or taking by certain methods

Schedule 6 of the WCA 1981 lists a number of animals which may not be killed or taken by certain methods.

Some species listed in Schedule 6 also appear in Schedule 5.

Schedule 6ZA lists animals which may not be killed by trapping or snaring.

Offences

Under section 11(2)(a) it is an offence to use any trap or snare for the purposes of killing, taking or restraining any wild animal in Schedules 6 or 6ZA.

Under section 11(2)(b) it is an offence to set in position any trap or snare calculated to cause bodily injury to any wild animal in Schedules 6 or 6ZA.

Under section 11 (2)(c), it is an offence to set in position any electrical device for killing or stunning, or any poisonous, poisoned or stupefying substance calculated to cause bodily injury to any wild animal in Schedule 6. 

Under section 11(d) it is an offence to kill or take a Schedule 6 animal by using:

  • An electrical device for killing or stunning;
  • A poisonous, poisoned or stupefying substance;
  • A net;
  • Any automatic or semi-automatic weapon; 
  • Any device for illuminating a target, or a night sight; 
  • Any form of artificial light, mirror or other dazzling device; 
  • Any smoke or gas; 
  • Any decoy by means of a sound recording; 
  • Any mechanically propelled vehicle (or aircraft, hovercraft or boat-see Section 27 (1) WCA) in immediate pursuit of an animal.

Under section 11(e), it is an offence to use any mechanically propelled vehicle for the purpose of driving any wild animal included in Schedule 6.

Under section 11(f), it is an offence to cause or permit to be done any act mentioned in (a) – (e).

Defences

Under section 11(6) it is a defence to sections 11(2)(b)or(c) to show that the article was set in position by the accused for the purpose of killing or taking, in the interests of public health, agriculture, forestry, fisheries, or nature conservation, any wild animals which could lawfully killed or taken by those means and that they took all reasonable precautions to prevent injury to any wild animals included in Schedule 6.

Animal Traps and Snares

The deployment of poisons, snares and traps against wild animals is not prohibited entirely, but their use is heavily circumscribed.

Section 11(1) WCA 1981 prohibits the following methods of killing or taking any wild animal:

  • Setting in position any self-locking snare "calculated" to cause injury to any wild animal;
  • Using a self-locking snare (a self-locking snare is not defined by the Act).
  • Using a bow, crossbow or explosive other than firearm ammunition to kill any wild animal. 
  • Using any live mammal or bird as a decoy in order to kill or take any wild animal. 
  • Knowingly causing or permitting such an act to be done

Snares are simply a running noose secured to a fixed point and detain an animal by closing around a limb or neck as it passes by. They may be hand made from a variety of materials or produced commercially.

A snare is "set" when it is placed in readiness to catch an animal or bird and "used" when an animal is caught.

Self-locking snares are illegal and once an animal has been secured,  a self-locking snare will progressively tighten and will not relax once the animal ceases to struggle. They can inflict severe and prolonged pain.

Free running snares are considered more humane because they stop tightening and may even relax when the animal ceases to struggle. They are not prohibited.

It is a question of fact as to whether a particular snare was operating as a self-locking snare and a suitably qualified expert must inspect the snare.

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.

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).

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. ome are lawful but others are not.

Spring Traps must be approved for use by orders made under the Pests Act 1954.

Under Section 8(1) of the Pests Act 1954 it is an offence to:

  • Use or knowingly permit the use of an unapproved spring trap for the purposes of killing or taking animals. (For example: a gin trap, a form of spring trap with toothed jaws.) 
  • Use or knowingly permit an approved spring trap for animals or circumstances for which it is not approved for (For example: a Fenn trap placed on a pole to catch birds of prey.) 
  • To sell, offer for sale, or possess any spring trap for such an unlawful purpose, as above.

Under Section 8(5), Subsection (1) does not apply to traps of any description specified by order of MAFF (now DEFRA) as being adapted solely for the destruction of rats, mice or other small ground vermin.

The Small Ground Vermin Traps Order 1958 specifies two types of small vermin traps which, under Section 8(5) of the Pests Act 1954, are permitted as exceptions: break-back traps designed to catch rats and mice or the type commonly used for taking moles in their runs.

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)

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. Under section 16 (12) an either way offence is committed by any person who, without reasonable excuse, contravenes, causes or permits any other person to contravene any such regulation..

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

Attempts to commit offences

A person attempting to commit any offence under Part 1 WCA 1981, which covers all WCA offences discussed herein shall be guilty of an offence and shall be punishable in like manner as for the full offence.

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 for example)r.
  • 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 Wildlife and Countryside Act 1981 (WCA) 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.

A person guilty of an offence under section 14 shall be liable on summary conviction to six months’ imprisonment or a fine not exceeding the statutory maximum and on conviction on indictment to two years’ imprisonment or to a fine or to both. 

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.

Section 18B gives a wildlife inspector powers or entry and inspection of premises for ‘group 1 offences’ which are offences under:

  • Section 1 – protection of wild birds, their nests and eggs;
  • Section 5 – prohibition of certain methods of killing or taking wild birds;
  • Section 9(1), (2) or (4) – protection of certain wild animals;
  • Section 11 – prohibition of certain methods of killing or taking wild animals
  • Section 13(1) – protection of wild plants; and
  • Section 14ZA – sale of certain animals and plants included in Schedule 9.

Section 18D gives a wildlife inspector powers of entry and inspection of premises for ‘group 2 offences’ which are offences under:

  • Section 6 – sale etc. of live or dead wild birds and eggs
  • Section 7 – registration of certain captive birds
  • Section 9(5) – sale etc. of live or dead wild animals included in Schedule 5;
  • Section 13(2) – sale etc. of any wild plant;
  • Section 14 – introduction of new species

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,   require that a sample of blood or tissue be taken from it to determine its identity or ancestry.

No such sample may be taken from a live bird or other animal except by a veterinary surgeon and no sample may be taken from any live specimen unless the person taking it is reasonably satisfied that the taking of the sample will not cause lasting harm to the specimen.

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

Powers of Search and Seizure

Under section 19(1) WCA 1981 a constable who has reasonable cause to suspect that any person is committing/has committed an offence under Part 1 (wildlife) WCA may:

  • Stop and search that person
  • Search and examine anything which that person may be using or have in his or her possession if the constable reasonably suspects that evidence of the offence may be found there;
  • Seize and detain anything which may be evidence of an offence or liable to be forfeited under section 21 WCA 1981.

Under section 19(3) WCA 1981 a justice of the peace who is satisfied by information on oath that any offence under Part 1 WCA 1981 has been committed may grant a search warrant to a constable to enter upon and search premises for the purpose of obtaining evidence relating to that offence.

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. 

Under Section 21(5), where an offence is committed in respect of more than one bird, nest, egg etc. the fine amount shall be determined as if the person had been convicted of a separate offence in respect of each such item. Under section 20(2) WCA 1981 proceedings for any offence under Part I of the Act may be brought within a period of six months from the date on which evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge; but no proceedings shall be brought more than two years after the commission of the offence.

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 his 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.

Under section 21(6)(a) WCA 1981 a court shall, following conviction for a wildlife offence,  order the forfeiture of any bird, nest, egg, animal, plant or other thing in respect of which the offence was committed. Under s.21(6)(b) a court may, in the same circumstances, order the forfeiture of any vehicle, animal, weapon or other thing used to commit the offence found in the offender's possession. In relation to offences under section 14 (introduction of new species), courts may order the forfeiture of any animal or plant which is of the same kind as that in respect of which the offence was committed and was found in the offender’s possession. 

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.

Use may also be made of 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 section 143 of the Powers of Criminal Courts (Sentencing) Act 2000.

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 he is convicted is satisfied that any property which has been lawfully seized from him, or which was in his possession or under his control at the time when he was 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 him to be used for that purpose, the court may make an order under the section in respect of that property.

Section 143 (5) 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 an order under section 143 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.

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 relate to the protection of species, animals and plants.

Regulation 43 provides that a person who:

  1. deliberately captures, injures or kills any wild animal of a European protected species,
  2. deliberately disturbs wild animals of any such species,
  3. deliberately takes or destroys the eggs of such an animal, or
  4. damages or destroys a breeding site or resting place of such an animal, is guilty of an offence”.

The mental element required for capturing, injuring or killing under (a), disturbing under (b) and taking or destroying eggs (c) is deliberate. The most commonly encountered offences are those under (1)(d) of damaging or destroying a breeding site or resting place of bats. It will be noted that, for the purpose of this subsection there is no requirement to show that the acts were deliberate, reflecting the importance attached to breeding sites and resting places to the life cycle of bats.

Deer Act 1991

Enter land in pursuit

It is an offence under section 1(1) Deer Act, 1991 to enter any land without the consent of the owner, occupier or other lawful authority is search or pursuit of any deer with the intention of taking, killing or injuring it.

Unlawful acts whilst upon land

Sub-section 2 also penalises the acts, while on any land, of:

  • Intentionally taking, killing or injuring any deer, or attempting to do so;
  • Searching for, or pursuing any deer with such an intention; 
  • Removing the carcass of any deer, without the consent of the owner, or occupier or other lawful authority.

Defence

  • It is a defence to a charge under either section 1(1) or (2) to show that the accused acted in the belief that s/he would have had the consent of the owner or occupier of the land if he knew the circumstances of it, or that he had other lawful authority.

Prohibited methods of taking or killing deer

Under Section 4 of the Deer Act 1991, it is an offence to

(1)(a) set in position any article which is a trap, snare or poisoned or stupefying bait and is of such a nature and so placed as to be calculated to cause bodily injury to any deer coming into contact with it or

(b) use it for the purpose of taking or killing any deer any trap, snare of poisoned or stupefying bait, or any net.

(2) a person is guilty of an offence if he uses for the purpose of killing or taking any deer :

  1. any firearm of ammunition mentioned in Schedule 2 of the Act,
  2. any arrow , spear or similar missile, or
  3. any missile whether discharged from a firearm or otherwise , carrying or containing any poison , stupefying drug or muscle relaxing agent .

(4) (a) any person discharging a firearm, or projects a missile, from any mechanically propelled vehicle at any deer ,when the vehicle is moving or when the engine is running or

(b) Uses any mechanically propelled vehicle for the purpose of driving deer

Close Seasons

Section 2(1) prohibits the taking or killing of deer during the respective close seasons for each species as listed in Schedule 1. However, this does not apply to farmed deer (section 2(3). 

Taking or intentionally killing deer at night

Section 3 prohibits the taking or intentional killing of deer by night (between the expiry of the first hour after sunset and the beginning of the last hour before sunrise).

Exceptions

Sections 6, 7 and 8 contain exceptions to the offences listed in the earlier part of the Act. Section 6 covers general exceptions 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.

Attempts

Under section 5, anyone who attempts to commit an offence under sections 2-4 shall be guilty of an offence. If anyone who has in his possession for the purpose of committing an offence under sections 2-4 an article prohibited by section 4(1)(b), section 4(2)(b) or section 4(2)(c) or any firearm of ammunition, they are guilty of an offence.

Sentencing  

Under Section 9, all of the above offences under the Deer Act 1991 are triable summarily and punishable by a level four fine or three months imprisonment.

Under Section 9(2), where an offence is committed in respect of more than one deer the maximum fine amount shall be determined as if the person had been convicted of a separate offence in respect of each deer.

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.

Kill injure or take a badger

Under section 1(1) Protection of Badgers Act 1992 it is an offence to wilfully kill, injure or take a badger, or to attempt to do so. Where evidence exists from which it could be reasonably concluded that the accused was attempting to kill, injure or take a badger there is a rebuttable presumption that such was the offender's intention.

Defence

Under Section 6, it is a defence for a person to show that:

  • In relation to the taking of a badger; that it was disabled otherwise than by his act and was taken solely for the purpose of tending it; 
  • In relation to the killing of a badger; that it appeared to be so seriously injured or in such a condition that to kill it would be an act of mercy; 
  • That a badger was unavoidably killed or injured as an incidental result of a lawful action.

Possession of a dead badger or part thereof

It is an offence, under section 1(3), for a person to possess a dead badger, or part thereof, unless he can prove that the badger had not been killed in contravention of either PBA 1992, or its predecessor, the Badgers Act 1973.

Prohibited actions - Ill-treat, Use badger tongs, Digging; Use of prohibited firearms

Under section 2 PBA 1992 it is an offence to:

  • Cruelly ill-treat a badger;
  • Use badger tongs (not defined in the Act ) in the course of killing or taking a badger;
  • Dig for a badger;
  • Kill or take a badger using any firearm other than a smooth bore weapon of not less than 20 bore or a high powered rifle, (as defined).

Intentional or reckless disturbance with a badger sett

Under section 3 PBA 1992 it is an offence to either intentionally or recklessly interfere with a badger's sett by:

  • Damaging a sett, or any part of it; 
  • Destroying a badger sett; 
  • Obstructing access to, or any entrance of, a badger sett; 
  • Causing a dog to enter a badger sett; or 
  • Disturbing a badger when it is occupying a badger sett.

Badgers' sett is defined at section 14 as any structure or place indicating current use by a badger. However, in Green and Others v DPP (The Times, 20/6/2000) the Court of Appeal said that the purposes of section 3 PBA a badgers' sett consisted of 'the tunnels and chambers created by badgers and the areas immediately outside the entrance holes to those tunnels' as well other places, such as 'coverts or disused sheds' which badgers might occupy.

The court also specifically excluded the volume of soil etc. above the system of tunnels and chambers and extending upwards to the surface of the ground from the definition. It is suggested that where suspects are apprehended whilst digging down towards a badger’s sett, but where no penetration of tunnels or chambers has occurred, consideration be given to proceeding with a charge under section 2 of digging for a badger instead of an offence under section 3.

Some badger setts may be located in heritage protected sites and disturbance of setts may also amount to offences under heritage legislation. 

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'. 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.

Statutory Defence

It is a statutory defence to a charge under either section 1(1), or section 3, to show that the killing etc. of a badger, or interference with a badger sett, was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property.

However, such a defence will not apply if it had become apparent that such action would be necessary and a licence under section 10 authorising the action had not been applied for as soon as was reasonably practicable. See sections 7 and 8 PBA 1992.

Licenses may be issued under section 10 PBA 1992 for a variety of purposes to kill, take or possess live badgers or, as the case may be, to interfere with a badger sett.

To sell offer for sale or possess a live badger

Under section 4 PBA 1992 it is an offence to sell, or offer for sale, or possess a live badger except (see section 9) in the course of business as a carrier, or in accordance with the provisions of a license issued under section 10 by a Conservancy Council authority.

Sentencing

Offences punishable under sections 1(1) or (3), 2 or 3, 2(1)(d), 3(1)(a) to (c) or (e) or under section 3(2) are summary only and punishable by six months imprisonment or a level five fine.

Offences punishable under 2(1)(a) to (c), 3(1)(d) or 4 or under section 3(2) is liable on summary conviction to imprisonment for a term not exceeding six months or a level five fine or both and on indictment to imprisonment for three years or to a fine or both.

Under Section 12(2), where an offence is committed in respect of more than one badger the maximum fine amount shall be determined as if the person had been convicted of a separate offence in respect of each badger.

Use of Dogs

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

Additional Support

For advice and information on badger-related issues, contact:

Badger Trust Wildlife Crime Officer Craig Fellowes, 07540532303, craig@badgertraust.org.uk

"Naturewatch Foundation, Animal Crime Manager and Secretariat of UK Badger Persecution Priority Delivery Group: Andy Swinburne 07392 185 373"

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

Under section 1 WMPA 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.

Defence

However, the following will amount, under section 2 WMPA 1996, to a defence to such a charge:

  • The attempted killing of a seriously disabled wild mammal as an act of mercy, so long as that disability was not caused by the accused's unlawful act and the animal had no reasonable chance of recovery;
  • The killing in a swift and humane manner of a wild mammal injured or taken in the course of a lawful hunting or pest control activity;
  • Any act done by the use of a lawful trap or snare, dog or bird;
  • The lawful use of any poisonous or noxious substance.

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

A 'mammal' is defined in the OED as those animals, which secrete milk for the nourishment of their young. Badgers are mammals but it will usually be appropriate to make use of the Protection of Badgers Act for offences concerning them. Neither fish, birds, amphibians, reptiles or insects are mammals.

Sentencing

Offences under WMPA are summary only and are punishable by a £5,000 fine and/or six months imprisonment.

Under Section 5(2), where an offence is committed in respect of more than one wild mammal the maximum fine amount shall be determined as if the person had been convicted of a separate offence in respect of each wild mammal.

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 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.

A Statutory Instrument made under section 2(2) of the European Communities Act 1972 and known as the Control of Trade in Endangered Species Regulations 2018 No.703, or COTES, makes provision for the enforcement of the Principal Regulation in this country and replaces the previous 1997 Regulations.

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 COTES apply. In brief, the species included in each Annex are defined at article 3 of the Principal Regulation as follows:

  • Annex A – all CITES appendix 1 species to which Member States have not entered a reservation. And any species which is, or may be, in demand for utilisation in the EC or for international trade and which is either threatened with extinction or so rare that any level of trade would imperil its survival.
  • Annex B – all CITES appendix 2 species for which Member States have not entered a reservation And any species subject to levels of international trade, which might not be compatible with its global survival, or with the survival of populations in certain countries.
  • Annex C - All species listed in Appendix 3 for which Member States have not entered a reservation. or listed in Annex III for which the Member States has not entered a reservation.
  • Annex D. Species not listed in Annexes A to C, which are imported into the EC in such numbers as to warrant monitoring.

Offences under 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.

Section 7 of the Control of Trade in Endangered Species Regulations 2018 states that where a specimen is being important or exported or is brought to a place for the purpose of being imported or exported a general customs official may require a person to provide proof that its import or export is or was not unlawful.

Regulation 3(1) of COTES states that Schedule 1 makes provisions for offences and penalties while Schedule 2 makes provision for Civil Sanctions.

Under the Principle Regulations Article 16(1)(J) it is an offence to purchase, offer to purchase, acquire for commercial purposes, use for commercial gain, display to the public for commercial purposes, sell, keep for sale, offer for sale or transport for sale a specimen in contravention of Article 8. The penalty for such an offence is on summary conviction six months’ imprisonment or a fine or on conviction on indictment, five years’ imprisonment or a fine or both.

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.

The offences are listed in a table and cover:

  • Causing any movement within the European Union of a live specimen from the location indicated in the import permit;
  • Knowingly contravening the stipulations specified on a permit or certificate;
  • Knowingly or recklessly making a false declaration or providing false information in order to obtain a permit or certificate;
  • Knowingly or recklessly using a false or invalid permit or certificate or one altered without authorisation;
  • Knowingly or recklessly making a false import notification;
  • Causing the shipment of live specimens not properly prepared so as to minimise the risk of injury, damage to health or cruel treatment;
  • Knowingly using specimens listed in Annex A to the Principle Regulation other than in accordance with the authorisation;
  • Knowingly using a permit or certificate for any specimen other than the one for which it was issued;
  • Knowingly falsifying or altering any permit of certificate;
  • Failing to disclose the rejection of an application for an import, export or re-export permit or certificate;
  • Knowingly or recklessly providing a false statement;
  • Obstructing entry or pretending to be an authorised person.

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.

Defence

It is a defence under Regulation 4(1) if a person proves that, at the time the alleged offence was committed, they had no reason to believe the specimen was listed in Annex A or B.

Regulation 4(3) states a person is not guilty of an offence if that person is a constable acting at the request of the management authority or purchases or offers to purchase a specimen for a purpose connected with the enforcement of these Regulations.

Regulation 4(4) states a person is not guilty of an offence if they can prove that reasonable enquiries were made to ascertain whether a specimen was acquired or imported lawfully and that they had no reason to believe it was acquired or imported unlawfully.

Joint Operations by Border Force and the Police

Some cases will result from joint operations between Border Force and the Police. You 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 Prosecutions 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: https://www.cps.gov.uk/legal-guidance/proceeds-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 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.  

National Wildlife Crime Unit (NWCU)

The NWCU is a police-led intelligence unit providing operational support to law enforcement.  The NWCU gathers intelligence on national wildlife crime and provides analytical and investigative support to the police and Border Force.. The NWCU is the conduit between all agencies, domestically and internationally, that have a legal obligation and an interest in dealing with wildlife crime.

Queries: NWCU

Stirling Police Station,

Randolphfield,

St Ninians Road

Stirling

Scotland

FK8 2HD

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, Rural and Heritage crime can have a significant impact on victims and wider communities. For example, criminal damage of heritage assets or historical monuments can deprive not only communities of their heritage but also future generations. 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 and 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 issued by the Ministry of Justice (MoJ).

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

Memorandum of Understanding

Natural England

The CPS is a signatory to the Memorandum of Understanding (MOU) on the prevention, investigation and enforcement of wildlife crime. This MoU is currently being updated. 

Heritage Crime

The CPS is a signatory to the MoU on the prevention, investigation, enforcement and prosecution of Heritage and Cultural Property Crime. The MoU is currently being updated.  Heritage crime is defined as:

‘Any offence which harms the value of England’s and Wales’ heritage assets and their settings to this and future generations and includes all offences involving cultural property’.

England and Wales’ heritage assets include:

  • Listed buildings;
  • Scheduled monuments;
  • Protected marine wreck sites;
  • Registered Battlefields;
  • Registered Parks and Gardens;
  • Conservation areas;
  • Protected military remains of aircraft and vessels of historic interest
  • World Heritage Sites; and,
  • Undesignated but acknowledged heritage buildings and sites.

Cultural property is defined in the Convention for the Protection of Cultural Property in the Event of Armed Conflict as ‘movable or immovable property of great importance to the cultural heritage of every people’ and includes and other moveable objects such as paintings, jewellery, literature, sculpture, ceramics and pottery very often found within museums, archives, libraries, and private or stately homes are also identified as heritage assets. Many heritage commodities also have an intrinsic value in that they are fashioned from precious stones, metals or other valuable materials.

The Historic England website contains lots of useful information on Heritage Crime which prosecutors may find useful.

There are a number of additional pieces of CPS legal guidance which prosecutors may find useful including when considering Heritage Crime:

Relevant legislation for prosecuting heritage crime may include:

  • Criminal Damage Act 1971
  • Theft Act 1978
  • Treasure Act 1996
  • Dealing in Cultural Objects Act 2003
  • Protection of Wrecks Act 1973
  • Protection of Military Remains act 1986
  • Town and Country Planning Act 1990
  • Ancient Monuments and Archaeological Areas Act 1979

The sentencing guidelines for theft and Handling Stolen Goods include damage to heritage assets: Theft Act Offences guidelines. The Sentencing Council has also published guidelines for Arson and Criminal Damage which provides formal guidance to courts on the impact of such offending on national heritage assets including listed buildings, historic objects and unique parts of national heritage and history. More information on the guidelines can be found on the Sentencing Council website.