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How about an in-situ shot?

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MancD View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote MancD Quote  Post ReplyReply Direct Link To This Post Posted: 16 Dec 2013 at 9:43pm
Hi all,

The difficulty with advising people on the intricacies of the legislation is that it has a habit of changing with regularity. The Habs Regs (we're talking sand lizards after all) used to contain the "incidental result" defence which you could use in the unlikely event that you were ever challenged for something like spooking a reptile into cover.

The EU commission ruled that the UK had not transposed the Directive correctly with respect to this so it was removed. The UK then amended "disturbance" in the Regs to "significant disturbance" and set out what this actually meant for each of the species. Again, this wasn't liked so it was removed.

The latest version of the Habs Regs is quite specific actually. It states this:

For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—

(a)to impair their ability—
(i)to survive, to breed or reproduce, or to rear or nurture their young, or
(ii)in the case of animals of a hibernating or migratory species, to hibernate or migrate; or
(b)to affect significantly the local distribution or abundance of the species to which they belong.

This does set the bar quite highly in terms of disturbance and appropriately refers to the times when species are most vulnerable. Remember, if a case like this ever went near a court, the CPS would have to decide if it is in the public interest to prosecute. Chances of them deciding that people looking for sand lizards should be prosecuted are pretty much zero unless someone was repeatedly disturbing the to the extent that they died (so during hibernation for example) or had failed young.

Regarding pond dipping for GCN. There is an advice note on this. That's slightly different as if the school knew it had GCN in the pond, and there was a reasonable chance they could turn up in kids' nets, that would be deliberate capture, which is a clear offence. So, in some cases, schools may need a licence. But they are not difficult to get, it's just to make the pond dipping legal.

Hope that helps. You can always ask for advice if you like, it is my job after all.

Duncan
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Richard2 View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 16 Dec 2013 at 11:42pm
That really is enormously helpful. Quite an eye-opener - I didn't find these amendments online. The law is even less restrictive than I thought; perhaps less restrictive than I think it should be. Under these rules there is no problem for careful watchers at all.

Richard
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GemmaJF View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 8:17am
So Duncan, it is now possible according to the definitions to handle Sand Lizards without a licence?

If it were argued that it did not impair their ability to survive, breed or reproduce or nurture their young. Prevent them from hibernating or significantly affect their local distribution or abundance.

That is exactly what you are stating?

Also should I advise my clients in future that due to the the highly unlikely nature of the CPS prosecuting they should ignore all current wildlife legislation........rather than the current situation of following 'best practice'.

The fact is in the real world of field study actually looking for animals does create plenty of local disturbance and it is anyone's guess really if one is meeting the stated criteria or not.

I think also you underestimate the ease for many regarding licences. Yes it is easy for a school to obtain a licence for pond dipping in theory. However that means a member of staff taking responsibility for doing so. People are reluctant to do such things in a litigious society as it rather places them in the 'responsibility seat'. Likewise it is easy for a photographer to obtain a licence or indeed any individual. However you appear to believe it is rather unnecessary for people do so in the case of sand lizards.

I guess at least Richard will be happy about your comments, personally I shall be quite happy to continue as before and only specifically go to to observe sand lizards with current licence holders.



Edited by GemmaJF - 17 Dec 2013 at 8:30am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 8:44am
Originally posted by Richard2 Richard2 wrote:

That really is enormously helpful. Quite an eye-opener - I didn't find these amendments online. The law is even less restrictive than I thought; perhaps less restrictive than I think it should be. Under these rules there is no problem for careful watchers at all.

Richard

Can you define a 'careful watcher' Richard. Is that similar to a responsible dog walker with their dog off the lead in areas where it is required?

I've been doing this for 40 years, still can't do it without occasionally disturbing animals, can you explain what I've been doing wrong all this time. Wink 

So lets be responsible, for example we can't possibly observe animals in the breeding season according to the habitat regs for fear of preventing a breeding opportunity... shame really considering that is when most observations occur!

It rather proves I think the whole concept of licencing, those who do not see the need for them or think they are somehow for others often have little concept of their own potential to do harm?


Edited by GemmaJF - 17 Dec 2013 at 8:51am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote MancD Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 9:04am
Originally posted by GemmaJF GemmaJF wrote:



So Duncan, it is now possible according to the definitions to handle Sand Lizards without a licence?

If it were argued that it did not impair their ability to survive, breed or reproduce or nurture their young. Prevent them from hibernating or significantly affect their local distribution or abundance.

That is exactly what you are stating?




Not at all. Handling a sand lizard would mean you have deliberately captured it, as would be the case if you bottle trapped or pitfall trapped a great crested newt or removed a bat from beneath a roof tile. Deliberate capture itself is an offence, and is completely different to disturbance. Capturing these species requires the person to have a knowledge of them, know how to safely capture them, handle and release them, and be licensed.

There are of course other offences such as damaging a breeding site or resting place so dismantling a hibernation site to "look for" European Protected Species would also run a high risk of committing offences.

My point is mainly that the legislation is not in place to create fear or warn people off an interest in these species, it is to protect them.

I advise people on the legislation, so I can help in terms of misinterpretations such as yours on capture. What I can't do, not being a lawyer, is tell you for definite if you would or wouldn't be prosecuted for something when it would be for a court to decide and for the police to get it to court in the first place. We have a Memorandum of Understanding with the Police so as and when they get reports of offences, we can and do help them with ecology advice to decide if it is likely that reported works have committed offences. In these events, the case file goes to the CPS to decide if there is sufficient evidence to prosecute and if it is in the public interest.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 9:20am
There was no misinterpretation on my part Duncan. I am well aware of the current legislation.

It changes absolutely nothing about the debate.

The fact is you are not a field herpetologist are you? No.

Lets 'twist' your definitions a little further. It would now be possible for a consultant to survey using ACO without a licence at a sand lizard site. It does not involve hand capture. Correct?

No of course not because common sense prevails over written definitions that obviously there is a potential in such circumstances for disturbance.

My point is that the realities of regular visual field observation invite identical opportunities for disturbance. Those who claim it does not either have a) no field experience, b) their own agenda.

So it goes back to exactly where we were. Anybody regularly setting out to observe/study sand lizards in the field ought to consider the licencing issue.

Perhaps a re-read of the thread would be in order before you also advise me regarding what I have already stated several times in your last paragraph...


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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 9:58am
We should make a distinction, shouldn't we, between systematic survey work, which probably does need a license, and recreational observation? By careful watching, I mean watching that certainly would not involve catching or chasing the animal, but might involve crouching to watch and carefully getting a bit closer - being careful not to scare the lizard, if possible, and also careful not to damage habitat. I am indeed relieved that this sort of opportunity to enjoy wildlife responsibly has not after all been criminalised.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 10:05am
Originally posted by Richard2 Richard2 wrote:

We should make a distinction, shouldn't we, between systematic survey work, which probably does need a license, and recreational observation?

Why should the potential to do harm be less of an offence because is serves your recreational purposes Richard? It sort of sounds rather selfish and arrogant reading it from this end. Particularly considering as a rather experienced herpetologist I do not share your optimism for not causing any harm during visual observations at sand lizard sites.

Originally posted by Richard2 Richard2 wrote:

By careful watching, I mean watching that certainly would not involve catching or chasing the animal, but might involve crouching to watch and carefully getting a bit closer - being careful not to scare the lizard, if possible, and also careful not to damage habitat. I am indeed relieved that this sort of opportunity to enjoy wildlife responsibly has not after all been criminalised.

I would read Duncan's last paragraph again very carefully Richard. He clearly states he is able to advise on the legislation, whilst unable to actually be sure of the definitions. It would not be the first time if someone ended up in a court after following NE's advice...


Edited by GemmaJF - 17 Dec 2013 at 10:08am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 11:49am
This debate has been fine and courteous so far. It is a shame to start introducing accusations of selfishness and arrogance. The question is whether careful watching does harm. The law clearly thinks not, as do Natural England.

In the field of relationships between people and wild animals, and the cultural significance those animals acquire, I believe that recreational watching has some importance, even moral importance, and is worth encouraging. Wildlife is not reserved for the experts, in this case the trained herpetologists. It is for everyone. If not, what are the arguments for protecting it at all? Trained herpetologists should certainly be listened to, but they are not the only people entitled to have an opinion on these matters. What sort of training qualifies you anyway? Would an amateur enthusiasm and a lifetime of amateur field experience count?

We have now heard from a professional adviser on the law, and from Natural England, the government agency responsible for administering policy in this field. Both have made it clear that recreational watching is permitted, indeed encouraged. In my view the information from Duncan should transform the terms of this debate. Ideally, the notice boards and websites would give precisely this information, with advice about what sort of disturbance would threaten the survival, reproduction or hibernation of the animals.

I don't think my position has changed very much, in fact, but it is now clearly well within the law rather than subject to doubt. Careful watching always runs quite a high risk of spooking a lizard into running into cover. This will happen as often as not; perhaps more. Perhaps there should be some sort of code about not scaring the same one in more than twice before moving on - something like that. But scaring one in by making a movement nearby it (as opposed to chasing it) will not threaten its ability to survive, reproduce or hibernate. Lizards are running for cover for natural reasons all the time. As Duncan says, the bar has been set quite high as far as the legal definition of disturbance is concerned. In my view, that decision does indeed represent 'common sense', but, of course, one person's common sense is always another's outrageous nonsense, so the term doesn't get us very far.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 17 Dec 2013 at 12:00pm
There is nothing discourteous Richard in stating that someone's opinion appears a certain way.

I am sorry if you saw my comment otherwise.

What NE say is not worth a thing. They are forever saying many things This is how their 'reptile expert' ended up in a magistrate's court in the past being asked if he understood the GCN guidelines, when he in fact wrote them. Duncan has clearly told you he can provide you no advice as to what words such as disturbance would be interpreted as meaning in a court. He can only advise regarding his interpretation of the legislation. For example I stated a survey using ACO according to NE that is 'trapping' but no trapping occurs. When these cases get to court it is anyone's guess how things will turn out.

In fact as much as it is Duncan's job to advise people on the legislation, it is mine to make sure my clients don't fall foul of it.

Would you for example advise people to drive up and down the A12 at 140 mph if I told you they were very unlikely to be caught and prosecuted?


A simple question. How would you describe the way female sand lizards bask when gravid Richard?

A simple description will do...


Edited by GemmaJF - 17 Dec 2013 at 12:05pm
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