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Law Commission Consultation on Wildlife Law

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Ewan View Drop Down
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    Posted: 17 Oct 2012 at 6:38pm
Hi

This may be of interest to some on the forum (and put others to sleep). A chance to comment on changes in wildlife law that will/could affect herps directly (see pool frog in Q 6-10) as well as herp workers. Deadline for comments Nov 30th 2012.

From here:
http://lawcommission.justice.gov.uk/consultations/wildlife.htm

Cut and pasted from the summary document:

PROVISIONAL PROPOSALS AND QUESTIONS

1.61 The list below sets out our provisional views for consultation. They are divided
between provisional proposals where the Law Commission has a preliminary
view and is seeking views on it and open questions where we are seeking more
evidence and have not reached a preliminary position.

1.62 It would be helpful if you could give us your views on the provisional proposals
and questions that we ask as well as on other areas that you feel are important.

1.63 We have also published a consultation impact assessment, which outlines some
of the monetised and non-monetised costs and benefits of the reforms we are
provisionally proposing. It would be helpful if you could also give us your views
on that, including any information on costs and benefits that you have.

List of provisional proposals and consultation questions

Question 1-1: Do consultees think that the marine extent of the project should be
limited to territorial waters?

Provisional Proposal 5-1: We provisionally propose that there should be a
single wildlife statute dealing with species-specific provisions for wildlife
conservation, protection, exploitation and control.

Provisional Proposal 5-2: We provisionally propose that our proposed single
statute should not include the general welfare offences in the Animal Welfare Act
2006 and the Wild Mammals (Protection) Act 1996.

Provisional Proposal 5-3: We provisionally propose that the provisions in the
Wild Mammals (Protection) Act 1996 be incorporated into the Animal Welfare Act
2006.

Provisional Proposal 5-4: We provisionally propose that the new regulatory
regime should contain a series of statutory factors to be taken into account by
decision makers taking decisions within that regulatory regime.

Provisional Proposal 5-5: We provisionally propose that the factors listed in
paragraph 5.49 above should be formally listed, to be taken into account by
public bodies in all decisions within our provisionally proposed wildlife regime.

Question 5-6: Do consultees think that the list of factors we suggest is
appropriate? Do consultees think that there are other factors which we have not
included that should be?

Provisional Proposal 5-7: We provisionally propose that wildlife law continue to
be organised by reference to individual species or groups of species, so as to
allow different provisions to be applied to individual species or groups of species.

Provisional Proposal 5-8: We provisionally propose that the new regime for
wildlife use section 26 of the Wildlife andCountryside Act 1981 as the model for
its order-making procedures.

Provisional Proposal 5-9: We provisionally propose that there should be a
requirement to review all listing of species periodically.

Provisional Proposal 5-10: We provisionally propose that where the Secretary
of State decides not to follow advice made by a regulator (such as Natural
England) on updating a list there should be a duty on the Secretary of State to
explain why the advice is not being followed.

Provisional Proposal 5-11: We provisionally propose that five years should be
maintained as the maximum period between reviews of the listing of species
within the regulatory regime.

Provisional Proposal 5-12: We provisionally propose that the regulatory regime
should have a general power allowing close seasons to be placed on any animal,
and to allow for the amendment of close seasons by order.

Question 5-13: Do consultees think that the appropriate regulatory technique for
the management of listed species is to prohibit certain activity, permit certain
exceptions, provide specified defences and allow for the licensing of prohibited
activity?

Question 5-14: Do consultees think that it is undesirable to define in statute
individual, class or general licences?

Provisional Proposal 5-15: We provisionally propose that the maximum length
of a licence provision permitting the killing of member of a species, including
licensing a particular method, should be standardised at two years for all species
that require licensing.

Provisional Proposal 5-16: We provisionally propose that there should be
formal limits of ten years for all other licences provisions.

Provisional Proposal 5-17: We provisionally propose that there should be a
general offence of breaching a licence condition.

Provisional Proposal 6-1: We provisionally propose that the definition for “wild
bird” in Article 1 of the Wild Birds Directive (birds of a species naturally occurring
in the wild state in the European territory of EU member states) be adopted in
transposing the Directive’s requirements.

Question 6-2: Do consultees think that the general exclusion of poultry from the
definition of “wild bird” should be retained?

Question 6-3: Do consultees think it necessary to deem game birds “wild birds”?

Question 6-4: Do consultees think that the exclusion of captive bred birds in EU
law is best transposed by solely transposing the provisions of the Wild Birds
Directive, or by express reference to the exclusion?

Provisional Proposal 6-5: We provisionally propose using the term “intentionally
or recklessly” to transpose the term “deliberately” in the Wild Birds and Habitats
Directives.

Question 6-6: Do consultees think that badgers protected under the Protection of
Badgers Act 1992 or those protected currently by section 9(1) of the Wildlife and
Countryside Act 1981 (from damage, destruction or the obstruction of access to a
shelter or place of protection, or the disturbance of an animal whilst using such a
shelter or place of protection) should be protected from intentional and reckless
behaviour?

Question 6-7: Do consultees think that the term “disturbance” does not need to
be defined or qualified within the provisionally proposed legal regime, when
transposing the requirements of the Wild Birds and Habitats Directives?

Provisional Proposal 6-8: We provisionally propose that the disturbance
provisions contained in sections 1(1)(aa), 1(1)(b), 1(5), 9(4) and 9(4A) of the
Wildlife and Countryside Act 1981, regulation 41(1)(b) of the Conservation of
Habitats and Species Regulations 2010 and section 3(1) of the Protection of
Badgers Act 1992 can be brought together and simplified.

Question 6-9: Do consultees think that the badger would be adequately
protected from disturbance, and its sett protected if covered only by the
disturbance provision?

Question 6-10: Do consultees think that the protection afforded European
Protected Species (except the pool frog and the lesser whirlpool ram’s horn snail)
under section 9(4)(c) of the Wildlife and Countryside Act 1981 does not amount
to “gold-plating” the requirements of the Habitats Directive?

Provisional Proposal 6-11: We provisionally propose the removal of the
defence of action being the “incidental result of a lawful operation and could not
reasonably have been avoided” located currently in section 4(2)(c) of the Wildlife
and Countryside Act 1981.

Provisional Proposal 6-12: We provisionally propose that there should be a
general defence of acting in pursuance of an order for the destruction of wildlife
for the control of an infection other than rabies, made under either section 21 or
entry onto land for that purpose under section 22 of the Animal Health Act 1981.

Provisional Proposal 6-13: We provisionally propose that Article 7 of Wild Bird
Directive be transposed into the law of England and Wales.

Provisional Proposal 6-14: We provisionally propose that the transposition be
accompanied by the establishment of species specific close seasons.

Provisional Proposal 6-15: We provisionally propose that the transposition be
accompanied by codes of practice explaining “wise use”.

Provisional Proposal 6-16: We provisionally propose that breach of the codes
of practice would mean that the defendant would have to show how they had
complied with “wise use”, otherwise the underlying offence of taking or killing a
wild bird would have been committed.

Provisional Proposal 6-17: We provisionally propose that such codes of
practice be issued by either the Secretary of State or Welsh Ministers.

Provisional Proposal 6-18: We provisionally propose that the term “judicious
use of certain birds in small numbers” be one of the licensing purposes.

Question 6-19: Do consultees think that it is not necessary to require the
reporting of all members of a species taken or killed as a matter of law for our
provisionally proposed regime?

Question 7-1: In which of the following ways, (1), (2) or (3), do consultees think
that domestically protected species not protected from taking, killing or injuring as
a matter of EU law should be protected?
(1) All domestically protected species not protected as a matter of EU law
should be protected from being intentionally and recklessly taken, killed
or injured.
(2) Badgers and seals should be protected from being intentionally and
recklessly killed, taken and injured; all other domestically protected
species not protected as a matter of EU law should be protected from
being intentionally taken, killed or injured. It would be possible
subsequently to move species between the two groups by order.
(3) All domestically protected species not protected as a matter of EU law
should be protected from being intentionally taken, killed or injured.

Question 7-2: Do consultees think that the offences of selling certain wild
animals, plants and fish, should include the offences of offering for sale, exposing
for sale, and advertising to the public?

Provisional Proposal 7-3: We provisionally propose that there should be a
power to amend the species covered by the crime of poaching.

Question 7-4: Do consultees think that the offence of poaching concerns matters
beyond simply the control of species?

Question 7-5: Do consultees think that the offence of poaching should require
proof of acting without the landowner's consent in relation to the animal rather
than proof of trespass?

Provisional Proposal 7-6: We provisionally propose that a reformed offence of
“poaching” should be defined by reference to whether the person was searching
for or in pursuit of specified species of animals present on another’s land, with the
intention of taking, killing or injuring them, without the landowner or occupier’s
consent, or lawful excuse, to do so.

Provisional Proposal 7-7: We provisionally propose that it should remain an
offence to attempt the offences in the new provisionally proposed regime.

Provisional Proposal 7-8: We provisionally propose to consolidate the common
exceptions to prohibited acts set out in existing wildlife legislation.

Question 7-9: Do consultees think that purely domestic licensing conditions
should be rationalised using the conditions contained in the Berne Convention?

Provisional Proposal 7-10: We provisionally propose that both individuals and
classes of persons be able to benefit from a badger licence.

Provisional Proposal 7-11: We provisionally propose that the current burden of
proof on a person accused of being in possession of wild birds or birds’ eggs
should be retained.

Question 7-12: Do consultees think that, as under the present law, a person
charged with digging for badgers should have to prove, on the balance of
probabilities, that he or she was not digging for badgers?

Provisional Proposal 8-1: We provisionally propose that there is a sufficient
case for the reform of the regulatory and enforcement tools available for the
delivery of Government policy.

Provisional Proposal 8-2: We provisionally propose that there should be a
mechanism allowing for the emergency listing of invasive non-native species.

Question 8-3: Do consultees think that such emergency listing should be limited
to one year?

Provisional Proposal 8-4: We provisionally propose that the Secretary of State
and Welsh Ministers should be able to issue an order requiring specified
individuals (whether by type of person or individual identity) to notify the
competent authority of the presence of specified invasive non-native species.

Provisional Proposal 8-5: We provisionally propose that there should be a
defence of “reasonable excuse” for failing to comply with the requirement.

Provisional Proposal 8-6: We provisionally propose that the full range of
licences can be issued for activity prohibited in our scheme for invasive nonnative
species.

Provisional Proposal 8-7: We provisionally propose that the power to make
species control orders on the same model as under the Wildlife and Natural
Environment (Scotland) Act 2011 should be adopted by our new legal regime.

Provisional Proposal 9-1: We provisionally propose that part 3 of the
Regulatory Enforcement and Sanctions Act 2008 should be used as the model
for a new regime of civil sanctions for wildlife law.

Provisional Proposal 9-2: We provisionally propose that the full range of civil
sanctions (so far as is practicable) should be available for the wildlife offences
contained in the reforms set out in Chapters 5 to 8 of this Consultation Paper.

Provisional Proposal 9-3: We provisionally propose that the relevant regulator,
currently Natural England and the relevant body in Wales (either the Countryside
Council for Wales or the proposed new single Welsh Environmental Agency),
issues guidance as to how they will use their civil sanctions.

Question 9-4: Do consultees think that that the current sanctions for wildlife
crime are sufficient?

Provisional Proposal 9-5: We provisionally propose that offences for wildlife,
excluding those for invasive non-native species and poaching, should have their
sanctions harmonised at 6 months or a level 5 fine (or both) on summary
conviction.

Provisional Proposal 9-6: We provisionally propose that the poaching offences
for wildlife should have their sanctions harmonised at four months or a level 4 fine
(or both) on summary conviction.

Question 9-7: Do consultees think that the provisions that mean that the fine for
a single offence should be multiplied by the number of instances of that offence
(such as killing a number of individual birds) should be kept?

Question 9-8: Do consultees think that the provisions for such offences should
be extended to cover all species?

Question 9-9: Do consultees think that there should be a wildlife offence
extending liability to a principal, such that an employer or someone exercising
control over an individual could be liable to the same extent as the individual
committing the underlying wildlife offence?

Provisional Proposal 10-1: We provisionally propose that the appropriate
appeals forum for appeals against Species Control Orders and civil sanctions
under our new regime is the First-tier Tribunal (Environment)?

Question 10-2: Do consultees think that it is necessary to create a new appeals
process for wildlife licences (option 1)?

Question 10-3: If consultees think that there should be a dedicated appeals
process for wildlife licences, should it be restricted to the initial applicant for the
wildlife licence (option 2), or be open additionally to the public with a “sufficient
interest” (option 3)?

Question 10-4: Do consultees think that the appeal process should be available
for all types of wildlife licence (general, class and individual)?

Question 10-5: Do consultees think that it would be more appropriate for appeals
concerning wildlife licences to go to the Planning Inspectorate or the First-tier
Tribunal (Environment)?


Edited by herpetologic2 - 08 Nov 2012 at 9:17pm
Ewan Shilland
Contract Research Scientist
Environmental Change Research Centre
University College London
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Robert V Quote  Post ReplyReply Direct Link To This Post Posted: 08 Nov 2012 at 5:21pm

I think that "taking for the purposes of sale" or "advertising" should extend to any information posted on the internet which could lead to assisting "persons" to take from the wild, or to encourage / generally or facilitate the ease with which person/s could take from the wild with a view to a sale etc.

This would amount to a conspiracy charge if the "poster" or "distributor" of information collected for the purposes of conservation then uses that information for purposes which could lead to the above.

So; in terms of the record pool, if anyone is proven to have passed the information to developers or anyone other than those that can prove a genuine interest in conservation, they should be treated as though they have knowingly and deliberately assisted in the taking from the wild etc.

RobV
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Post Options Post Options   Thanks (0) Thanks(0)   Quote herpetologic2 Quote  Post ReplyReply Direct Link To This Post Posted: 08 Nov 2012 at 9:19pm
Ewan - thanks for posting this. 

Rob you have not thought that through too well have you? Step back a bit and have a look around at the many organisations, websites and e forums that law would take down.

Regards

J
Report your sightings to the Record Pool http://arguk.org/recording
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Robert V Quote  Post ReplyReply Direct Link To This Post Posted: 10 Nov 2012 at 5:00pm

Exactly Jon,

which is why Reptiles and amphibians are struggling in the UK. Too many people drumming up a living by claiming to be conservationists when in fact what they are doing is carving an earning niche at a cost to the native herps.

The point is if you can't guarantee that the information you are collecting and publishing - (and clearly you cannot as you have already let slip important information onto the internet regarding EF) - will not be used as a means by developers as a shortcut to mopping up "nuisance pockets of herps" then you should not be collecting the information at all.

Personally, I hope some others will see the pitfalls in this before it becomes established. The only way I can see of preventing a spillage of important herp sites is to log reported sightings onto the pool but deliberately shave a half a mile off the coordinates or better stil give a completely different location. That way, the numbers of herps are still being reported and a count can still be maintained, tracked, but the actual populations remain hidden.
 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Iowarth Quote  Post ReplyReply Direct Link To This Post Posted: 10 Nov 2012 at 9:06pm

Hi Rob

We come back here to the previously discussed obfuscation of publicly available records such as in Sliding Scales and Add an Adder, don't we?

Chris

Chris Davis, Site Administrator

Co-ordinator, Sand Lizard Captive Breeding Programme (RETIRED)
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