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The Law Commission

(LAW COM No 362)

WILDLIFE LAW VOLUME 1: REPORT

This has been produced along with Volume 2: Draft Legislation as a combined document

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 9 November 2015

HC 585–I

Two volumes not to be sold separately

© Crown copyright 2015

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence,

visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU, or email: [email protected].

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/government/publications.

Print ISBN 9781474125796

Web ISBN 9781474125789

ID 04111508 11/15

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Printed in the UK by the Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office

THE LAW COMMISSION

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Bean,1 Chairman

Professor Nick Hopkins2 Stephen Lewis

Professor David Ormerod QC Nicholas Paines QC

The Chief Executive of the Law Commission is Elaine Lorimer.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne’s Gate, London SW1H 9AG.

The terms of this report were agreed on 2 November 2015.

The text of this report is available on the Law Commission’s website at http://www.lawcom.gov.uk.

1 Lord Justice Lloyd Jones was Chairman of the Law Commission at the time this report was drafted and approved in principle. He was succeeded by Lord Justice Bean on 1 August 2015.

2 Professor Elizabeth Cooke was a Law Commissioner at the time this report was drafted and approved in principle. She was succeeded by Professor Hopkins on 1 October 2015.

THE LAW COMMISSION

WILDLIFE LAW

CONTENTS

viii

THE LAW COMMISSION WILDLIFE LAW

To the Right Honourable Michael Gove MP, Lord Chancellor and Secretary of State for Justice

CHAPTER 1 INTRODUCTION

1. In this report we make recommendations for the reform of wildlife law in England and Wales.

   
   

2. As we explored in our consultation paper on wildlife law,1 there is no homogenous purpose or theme to the vast array of wildlife legislation in England and Wales. We suggested, however, that there are four principal strands which have emerged over time2 and now coexist in a complex set of legislative provisions giving effect to international agreements, EU law and domestic preferences.

   
   

3. First, the law provides the framework within which wildlife can be controlled, so that it does not unduly interfere with social or economic interests, infrastructure, biodiversity, the welfare of other animals and other environmental interests. Legislation falling within this category includes provisions to facilitate and promote the control of agricultural pests and weeds,3 provisions on the prevention, control, eradication and long term management of invasive non- native species4 and provisions to regulate human activities that interfere with protected wild animals or plants.5

   
   

   1 Wildlife Law (2012) Law Commission Consultation Paper No 206, pp 2 to 4.

   2 C T Reid, Nature Conservation Law (3rd ed 2009) pp 1 to 3.

   3 Agriculture Act 1947; Pests Act 1954; Weeds Act 1959.

   4 Wildlife and Countryside Act 1981, ss 14, 14ZA and 14ZB; Import of Live Fish (England and Wales) Act 1980; Destructive Imported Animals Act 1932. See also, Regulation on the prevention and management of the introduction and spread of invasive alien species (EU) No 1143/2014, Official Journal L317 of 4.11.2014 p 35.

   5 See Directive on the conservation of natural habitats and of wild fauna and flora 92/43/EEC, Official Journal L 206 of 22.7.1992 p 7, art 16 (transposed in domestic legislation by the Conservation of Habitats and Species Regulations 2010, reg 53), and Directive on the conservation of wild birds 2009/147/EC, Official Journal L 20 of 26.1.2010 p 7, art 9 (transposed in domestic legislation by the Wildlife and Countryside Act 1981, s 16).

4. Secondly, the law allows for the exploitation of certain wild animals as valuable economic or leisure resources. An obvious example is the protection of the hunting rights of owners or occupiers of land over certain wild animals present on their land through poaching legislation dating back to the nineteenth century Game Acts.6

   
   

5. Thirdly, the law protects individual wild animals from harm in certain contexts. Certain animal welfare measures, such as the introduction of close seasons for certain huntable animals,7 or the prohibition of certain indiscriminate methods of killing or capturing,8 are inextricably tied to conservation purposes. Other animal welfare provisions are purely aimed at preventing animal suffering. It follows that while a number of specific animal welfare provisions relevant to wild animals are contained in free-standing regulatory structures,9 other animal welfare provisions are scattered in a number of species-specific protection statutes.10

   
   

6. Lastly, the law seeks to conserve wild animals and plants as a fundamental part of our common natural heritage and as integral components of complex ecosystems. Most domestic provisions, in this context, are contained in the Wildlife and Countryside Act 1981, the Conservation of Habitats and Species Regulations 2010 and a number of species-specific protection provisions.11 Domestic wildlife conservation legislation is strongly influenced by a number of important international agreements12 and two key European Union (EU) Directives: the Wild Birds Directive and the Habitats Directive.13

   
   

   THE RATIONALE FOR REFORMING WILDLIFE LAW

7. In the last two centuries wildlife legislation has developed in a piecemeal fashion, often in reaction to specific pressures on domestic legislation, whether local or international. The result is that the current legislation governing the control, exploitation, welfare and conservation of wild animals and plants in England and Wales has become unnecessarily complex and inconsistent.

   
   

   6 Night Poaching Acts 1828 and 1844; Game Act 1831; Poaching Prevention Act 1862; Ground Game Act 1880.

   7 See Deer Act 1991, s 2; Conservation of Seals Act 1970, s 2.

   8 See Wildlife and Countryside Act 1981, s 5.

   9 Animals Welfare Act 2006; Wild Mammals (Protection) Act 1996.

   10 Protection of Badgers Act 1992, s 2; Deer Act 1991, s 4; Conservation of Seals Act 1970, s 1.

   11 See the Protection of Badgers Act 1992; the Deer Act 1991 and the Conservation of Seals Act 1970.

   12 See, in particular, the Convention on the Conservation of European Wildlife and Natural Habitats (the “Bern Convention”) and the Convention on the Conservation of Migratory Species of Wild Animals (the “Bonn Convention”).

   13 Directive on the conservation of wild birds 2009/147/EC, Official Journal L 20 of 26.1.2010 p 7 (the “Wild Birds Directive”) and Directive on the conservation of natural habitats and of wild fauna and flora 92/43/EEC, Official Journal L 206 of 22.7.1992 p 7 (the “Habitats Directive”).

8. While the enactment of the Wildlife and Countryside Act 1981 was substantially driven by the Wild Birds Directive, it retained, to a large extent, the structure and policy preferences of earlier legislation, such as the Protection of Birds Act 1954. The Conservation of Habitats and Species Regulations 201014 implement the Habitats Directive in England and Wales through a modern regulatory framework, but overlap to a large extent with similar provisions that remain in force under the Wildlife and Countryside Act. Other species-specific laws are the result of private members’ Bills, and have not necessarily been drafted with a view to fitting with the rest of domestic legislation.15 The result is a complex patchwork of overlapping and sometimes conflicting provisions.

   
   

9. We accept that a certain level of complexity is, in part, an inevitable consequence of the breadth of wildlife law. The natural environment is a complex system and the law concerning it needs to apply in a range of different situations and reflect a range of (potentially competing) interests. In many cases, however, there appears to be little obvious rationale for the existing complexity.

   
   

10. The sort of flexibility we now require of regulatory regimes is also absent from important areas of wildlife law. This is due, in part, to the age of certain pieces of legislation that are still in force. There are, for instance, no powers to introduce or vary close seasons for game species. As the conservation status of wild species, their migratory patterns and reproductive habits may change over time as a result of direct human activities or changes to climatic conditions, a regulatory regime is only effective if it is capable of being regularly updated and reviewed to ensure that the law adequately responds to current threats and political preferences.

    
    

11. In the last forty years, efforts to conserve wild species of fauna and flora have acquired a significant international dimension. As of now, a large proportion of domestic wildlife protection legislation falls within the scope of a number of international agreements and EU directives. Those developments have significantly increased the pressure on the existing domestic regulatory regimes. The use of old regulatory structures as vehicles to implement new regulatory regimes, for example, has recently come under severe scrutiny from the European Commission.16 A comprehensive reform of the existing regulatory structure is, therefore, the most effective way to ensure a harmonious coexistence between domestic political preferences and the UK’s obligations under international and EU law.

    
    

12. Lastly, the current regime relies heavily on the criminal law, and tends therefore to stigmatise as “criminals” those found guilty of an offence. Criminalising regulatory transgressions may not always be the most appropriate or effective way of ensuring beneficial outcomes. In certain circumstances it may be better to provide the non-compliant individual or organisation with advice or guidance.

    
    

    14 SI 2010 No 490.

    15 See the Wild Mammals (Protection) Act 1996 and the Protection of Badgers Act 1992.

    16 See, in particular, Case C-6/04 Commission v United Kingdom [2005] ECR 1-9017.

13. At the other end of the scale, the criminalisation of harmful activities and the sentences available may not be severe enough to control certain serious transgressions. The available levels of fine can easily be absorbed by high profit- earning businesses, and it must be remembered that some of the actors involved in activities affecting wildlife are large economic ones.17 On that basis, the availability of more serious sanctions and effective economic tools – such as the possibility of preventing those committing serious transgressions from continuing to carry out a particular business activity until they can prove that their future behaviour will accord with wildlife law – may be merited.

    
    

    BACKGROUND TO THE WILDLIFE PROJECT

14. The wildlife law project was proposed by the Department for Environment, Food and Rural Affairs (Defra) for the Law Commission’s eleventh programme of law reform, effective from July 2011. In March 2012, Defra asked us to include consideration of appeals in connection with wildlife licences and we agreed to do so.

    
    

15. The project schedule provided for a review point following consultation. In September 2013, Defra Ministers agreed that the project should continue to its final stage. Following Defra’s decision, in October 2013 we decided to publish an interim statement to keep stakeholders informed about the general policy direction that the Law Commission had taken in the light of the consultation process that took place between August and December 2012.

    
    

16. In November 2013 Defra asked us to report earlier on our provisional proposal to introduce a regime for issuing orders to control invasive non-native species, on the basis that the Department was considering the possibility of introducing early legislation on this aspect of our final recommendations before the general elections of May 2015.

    
    

17. As a result, we agreed to publish an early Report recommending the introduction of a regime to issue “species control orders” in England and Wales,18 in line with a similar power introduced in Scottish law in 2011.19 Our recommendations have been accepted and provisions giving effect to them have been included in sections 23 to 25 of the Infrastructure Act 2015.

    
    

    17 See R Macrory, Regulatory Justice: Making Sanctions Effective (2006) and P Hampton,

    Reducing administrative burdens: effective inspection and enforcement (2005) p 7.

    18 Wildlife Law: Control of Invasive Non-native Species (2014) Law Com No 342.

    19 Wildlife and Natural Environment (Scotland) Act 2011 Pt 2, s 16.

    CONSULTATION PROCESS

18. Our consultation paper on wildlife law was published on 14 August 2012.20 Consultation ran from that date to 30 November 2012, the normal consultation period being extended to take into account the summer and the London Olympics 2012. The deadline was further extended to 21 December 2012 for the benefit of representatives of the sea fishing industry, in the light of a desire from some consultees to extend the territorial extent of the project to include the economic zone extending to 200 nautical miles.

    
    

    Consultation meetings

19. During consultation we presented our provisional proposals at meetings of the All-Party Parliamentary Group on Shooting and Conservation, the All-Party Group on Animal Welfare and the All-Party Group on Game and Wildlife Conservation.

    
    

20. We were able, within the consultation period, to run all-day seminars with interested parties, by courtesy of the Wildlife Trusts and the Institute of Ecology and Environmental Management, both of which took place in Birmingham. We also presented and ran two discussion groups at the Wildlife Crime Officers Annual Conference at NPIA Bramshill.

    
    

21. In Wales, we took part in meetings on the Natural Environmental Framework and gave presentations at the Wales Biodiversity Partnership annual meeting 2012 and also at regional biodiversity partnership meetings.

    
    

22. On a one-to-one basis, we undertook extensive consultation with a wide range of public bodies and non-governmental organisations, including Natural England, the Marine Management Organisation, the Invasive Non-native Species Secretariat, the Royal Society for the Protection of Birds, the Royal Society for the Prevention of Cruelty to Animals, the Woodland Trusts, Wildfowl and Wetlands Trust, the British Association for Shooting and Conservation, the Game and Wildlife Conservation Trust, the Country Land and Business Association, the National Gamekeepers’ Organisation and the Countryside Alliance.

    
    

    Relationship with Government

23. The Department for Environment, Food and Rural Affairs has policy responsibility for the subject-matter of the project. In line with the Protocol between the Lord Chancellor and the Law Commission agreed in March 2010,21 members of the Law Commission’s team have met regularly with the Department at each stage of the project.

    
    

24. As the Law Commission’s recommendations extend to Wales, members of the Law Commission’s team have also held regular meetings with Welsh Government officials.

    
    

    20 Wildlife Law (2012) Law Commission Consultation Paper No 206.

    21 Available at: http://lawcommission.justice.gov.uk/docs/Protocol_Lord_Chancellor_and_Law_Commissio n.pdf

    Consultation responses

25. During the consultation period between August and December 2012 we received 488 consultation responses. A number were generated by campaigns (by the Royal Society for the Protection of Birds (RSPB) and the Wildlife News blog). Others were submitted by organisations which included charities, trade associations and other interest groups, private companies, Government agencies, local authorities, enforcement authorities and Defra. We also received responses from interested individuals. We heard from individuals with both professional (academics, lawyers, environmental consultants and other practitioners) and personal interest in the outcome of the project (for example, falconers, bird breeders, pigeon fanciers, landowners and gamekeepers).

    
    

    GENERAL APPROACH TO THE REFORM OF WILDLIFE LAW

26. In consultation, certain stakeholders were concerned that the review of wildlife law was being primarily led by a deregulatory agenda. On the other side of the spectrum, other consultees raised concerns about certain reform proposals potentially imposing significant costs on landowners and businesses affected by wildlife protection legislation.

    
    

27. On that basis, we think it useful to reiterate the general principles that have underpinned the recommendations in this report.

    
    

    Maintaining the core of current policy

28. One of the main purposes of this project is to make the current set of wildlife preferences work, and allow those subject to the law to understand clearly the obligations placed on them and the options available to them.

    
    

29. As expressly agreed in the terms of reference of this project, altering the level of protection afforded to particular species is outside the scope of this project, unless such changes are required to ensure compliance with the UK’s obligations under relevant international treaties and EU law.

    
    

30. The rationale behind this limitation is simple. Decisions on whether a species should be protected or not, as well as decisions on the exact level of protection that a particular species should be afforded, are policy decisions that would be usually taken on the basis of sound scientific advice. The Law Commission does not have the political mandate, nor the necessary scientific expertise, to make such decisions.

    
    

31. Although we are persuaded that we could not have embarked in this reform project without the above conditions, during the course of the wildlife project we have realised that such restrictions significantly restrained our ability to simplify and harmonise a number of existing provisions. This problem was particularly acute in connection with provisions falling outside the scope of the UK’s international and EU obligations.

32. We think, therefore, that before introducing legislation giving effect to our recommendations, Defra and the Welsh Government should consider whether the new regulatory framework could be further rationalised by minor alterations to species protection levels, which would have little or no effect in practice but make the law easier to understand and comply with. We have made clear in this Report the areas which would benefit from this sort of attention.

    
    

    Effective, clear and transparent transposition of our EU obligations

33. EU law requires that the transposition of directives is effective and clear. Therefore, in transposing the regime contained in the Wild Birds and Habitats Directives, we have endeavoured to find the best way to give effect to its requirements in a way which is both clear and effective in the context of domestic legislation.22 As a result, we have not always strictly followed a “copy-out” policy – the Government’s current preferred approach to the transposition of EU directives.

    
    

34. As EU law has primacy over domestic legislation,23 we have resolved all inconsistencies and overlaps between EU obligations and domestic preferences in favour of the former.

    
    

35. In line with our terms of reference, in cases where domestic obligations are more stringent than the corresponding obligations under EU or international law (commonly known as “goldplating”), we have generally opted in favour of the most flexible or least burdensome option. However, we have decided to approach the issue of “goldplating” on a case by case basis. We have retained certain domestic provisions that go beyond the requirements of the Directives in cases where we concluded there were good domestic policy reasons for going beyond the black letter of the Directives or in cases where retaining the domestic approach allowed us to harmonise the provisions transposing EU obligations with provisions giving effect to purely domestic preferences.

    
    

    Aligning our provisionally proposed regime with other international treaties

36. The protection of a number of wild animals and plants also falls within the scope of a series of international treaties to which the UK is a contracting party, including the Bern and the Bonn Conventions.

    
    

37. We would normally expect our domestic law to reflect the obligations placed on the UK as a result of treaties it has signed up to. As a result, our recommendations are also aimed at ensuring that the UK’s relevant international commitments are appropriately given effect in domestic law.

    
    

    22 European Commission, A Europe of results – applying community law COM (2007) 502 final; European Commission, Communication on implementing European Community environmental law COM (2008) 773 final.

    23 Case C-4/64 Costa v ENEL [1964] ECR 585.

    Improved flexibility

38. This is the first time that wildlife law, in its modern form, has been reviewed as a whole. It is important that the regime created is sufficiently flexible to change with developing scientific understandings (on issues such as the effects of climate change), changing political preferences or changes to the conservation status of protected species. In essence, there should be sufficient capacity for change within the new legal regime to enable it to respond effectively to future contingencies.

    
    

    Using existing regulatory structures where possible

39. One of our objectives is to use existing regulatory approaches where possible. There is no need to invent a completely new, and untested, regime if there is a suitable one in existence that can be adopted by transposing its core provisions into our new regulatory regime.

    
    

    SCOPE OF THE PROJECT

40. The project encompasses consideration of the species-specific provisions allowing for the conservation, control, protection and exploitation of wildlife present within England and Wales.

    
    

    Devolution

41. The Welsh Assembly has almost fully devolved legislative competences in connection with the control, exploitation, welfare and conservation of animals and plants.24

    
    

42. In the context of wildlife law, currently there is virtually no substantive difference between primary legislation that is applicable to England and primary legislation that is applicable to Wales. For ease of presentation, therefore, we have decided to draft our recommendations, as well as the clauses of the draft Wildlife Bill25 annexed to this Report, as being applicable to England and Wales.

    
    

43. This does not mean, however, that we necessarily think that our recommendations should be given effect through legislation that applies across England and Wales. That is a matter for discussion between UK and Welsh governments.

    
    

    Marine extent

44. In consultation we asked whether the scope of the project should extend to include the offshore marine area adjacent to England and Wales (that is, the sea from the territorial limit of 12 nautical miles to 200 nautical miles over which the United Kingdom exercises sovereign rights).

    
    

    24 Government of Wales Act 2006, s 108, sch 7 part 1, paras 1 and 6.

    25 In the remainder of this Report, all references in the text to the “Wildlife Bill” should be taken as references to the draft Wildlife Bill annexed to this Report.

45. The United Nations Convention on the Law of the Sea 1982 divides states’ sovereignty over the sea into three main categories: internal waters, territorial waters and the exclusive economic zone. Internal waters are defined as being inside the “baseline”,26 and include waters such as ports, river mouths, bays and roadsteads.27 Territorial waters extend up to 12 nautical miles along a line perpendicular to the baseline at any given point.28 The exclusive economic zone of a state extends out to 200 nautical miles from the baseline,29 and gives the coastal state jurisdiction over “the protection and preservation of the marine environment”.30

    
    

46. At common law, the rule is that England and Wales (and the counties thereof) extend only to the low water line.31 “England” and “Wales” are defined in the Interpretation Act 1978 by reference to counties, which only extend to the low water line.32 In modern terms, this would mean that, unless stated otherwise, any statute referring to England and Wales merely extends to the mean low water springs.33

    
    

47. Apart from the effect of the Offshore Marine Conservation (Natural Habitats) Regulations 2007,34 wildlife legislation within the scope of this project only extends up to 12 nautical miles from the baseline.35

    
    

48. The Offshore Marine Conservation (Natural Habitats) Regulations 2007 were introduced in response to infraction proceedings against the United Kingdom, where the Court of Justice of the European Union ruled that the obligation of member states to give effect to the Habitats Directive extends to any area outside territorial waters over which the member state exercises sovereign rights.36

    
    

    26 United Nations Convention on the Law of the Sea 1982, art 5. The baseline is set in the Territorial Waters Order in Council 1964, as amended by the Territorial Sea (Amendment) Order 1998, SI 1998 No 2564.

    27 United Nations Convention on the Law of the Sea 1982, arts 8 to 12.

    28 United Nations Convention on the Law of the Sea 1982, art 3; Convention on Territorial Sea and Contiguous Zone 1957, art1; Territorial Sea Act 1987, s 1.

    29 United Nations Convention on the Law of the Sea 1982, art 57.

    30 United Nations Convention on the Law of the Sea 1982, art 56(1)(b)(iii).

    31 Halsbury’s Law of England, Water and Waterways, vol 100 (5th ed, 2009) para 31.

    32 Interpretation Act 1978, sch 1, para 1. “Wales”, however, for the purposes of the Government of Wales Act 2006 is taken to include the territorial waters adjacent to Wales (see Government of Wales Act 2006, s 158(1)).

    33 The height of mean low water springs is the average of the heights of two successive low waters during those periods of 24 hours when the range of the tide is greatest.

    34 SI 2007 No 1842.

    35 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 1.30.

    36 Case C-6/04 Commission v United Kingdom [2005] ECR I-09017, paras 115 to 120. The Conservation of Habitats and Species Regulations 2010, SI 2010 No 249 give effect to the Habitats Directive up to 12 nautical miles from the baseline.

49. Some stakeholders criticised the current split between legislation giving effect to the Wild Birds and Habitats Directives within territorial waters and legislation giving effect to the Directives outside the territorial limit of 12 nautical miles on the basis that developments or other operations that cross the 12 nautical mile boundary currently need to apply for two different wildlife licences.

    
    

50. Other stakeholders pointed out that because many protected marine species are highly mobile, it would make little ecological sense to retain two different regimes that apply within and outside territorial waters.

    
    

51. We have not found the above arguments to be sufficiently persuasive to justify the extension of the scope of the project beyond territorial waters. The first argument points to a problem that could be easily dealt with at administrative level.

    
    

52. Similarly, the simple fact that marine species are mobile, and therefore move between legal regimes, does not of itself seem persuasive. There will always be differences in territorial regimes, especially following devolution in the UK – such that the law applicable in Wales, England, Scotland and Northern Ireland can reflect national preferences. There are many protected wild species that are highly mobile, and wildlife’s movement between regimes should be expected. That such movement results in a change of protection afforded to individuals is a given and unavoidable consequence of having territorial regimes. In this particular case, in terms of substantive protection the difference between the different regimes is marginal, on the basis that they all aim to give effect to the UK’s obligations under the Wild Birds and Habitats Directives.

    
    

53. Indeed, inconsistency is inevitable one way or another in this context. The Offshore Marine Conservation (Natural Habitats) Regulations 2007 apply across the whole of the UK’s offshore marine area (the sea from the territorial limit of 12 nautical miles to 200 nautical miles). Our project relates only to England and Wales. If we chose to extend the project to include the offshore marine area adjacent to England and Wales, the implication would be the division of what is now a UK wide regulatory structure into one that applies to England and Wales, a second for Scotland and a third for Northern Ireland. We came to the view, therefore, that it was better not to disrupt the current approach by extending our proposals beyond territorial waters.

    
    

    Recommendations

    Recommendation 1: we recommend that the territorial extent of the new regulatory framework should be limited to territorial waters.

    
    

    This recommendation is given effect in the draft Bill by clause 168.

    
    

    Habitats

54. Before the start of the wildlife project we agreed with Defra that legislation concerning habitats should be excluded from the scope of the project.

55. In consultation many stakeholders noted the exclusion of habitats from the scope of the project. They argued that in ecological terms it was inappropriate to separate consideration of individual species from the habitats that support them. The decline of the population of a species, in fact, may often be the result of a complex combination of direct and indirect interferences with that species. Indirect interferences could include air, water and soil pollution, changes in land use, deforestation and climate change.

    
    

56. While that is a valid consideration, our view is that it overlooks the distinction between an area of law selected for reform and the underlying policy structure within which that area of law exists. Following the logic of the above argument, there would be no reason why the project should not have been extended to other areas of environmental law having an impact on habitats, including planning law, pollution control legislation or the domestic transposition of the Water Framework Directive.

    
    

57. We do not reject the view that a broader review of environmental law in England and Wales could have significant positive outcomes. We have concluded however, that the overwhelming majority of the problems with wildlife law that we have identified can be addressed independently of the wider policy framework within which they exist. There are very few overlaps, in fact, between the regulatory regimes addressing the protection of species and the regulatory regimes addressing the protection of habitats. We are satisfied, therefore, that the decision to exclude habitats protection was sensible in the light of the object and purpose of a Law Commission review of this area of law.

    
    

    Hunting Act 2004

58. The terms of reference of the wildlife project also expressly exclude the review of the Hunting Act 2004.

    
    

59. Whilst a number of stakeholders from the hunting industry questioned this decision, we remain convinced that it would have been inappropriate and counter-productive for the Law Commission – an independent, non-political, advisory body – to consider an issue as politically polarised as this one. Any change to the Hunting Act 2004, in addition, would have necessarily required policy decisions that go beyond the remit of the Law Commission.

    
    

    Animal welfare

60. In our consultation paper we provisionally proposed that Acts dedicated to animal welfare, in particular the Animal Welfare Act 2006 and the Wild Mammals (Protection) Act 1996, should not be integrated in our proposed single statute on wildlife law.37 We argued that these complementary Acts constitute a self- contained animal welfare code, and to include them would cause unnecessary confusion. In consultation most stakeholders accepted the reasons behind this provisional proposal, and we therefore do not include Animal Welfare Act 2006 and the Wild Mammals (Protection) Act 2006 within our Wildlife Bill.

    
    

    37 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 2.

61. We were, however, persuaded not to pursue our provisional proposal to incorporate the provisions of the Wild Mammals (Protection) Act 1996 into the Animal Welfare Act 2006, so as to create a new consistent animal welfare code applicable to both animals living wild and animals within the control of man.38

    
    

62. As Defra noted during consultation, the considerable difference in the level of intentionality required to make out the relevant offences in the two Acts makes it impossible to integrate the two regimes without altering the existing levels of protection.39 Whilst in principle we think that there is a good case for reforming the Wild Mammals (Protection) Act 1996 offences so as to allow them to dovetail better with their counterparts in the Animal Welfare Act 2006, such reform falls outside the scope of the current project as it would necessarily involve consideration of changes to the level of protection afforded to wild animals.

    
    

    The Salmon and Freshwater Fisheries Act 1975 and connected regimes

63. In our consultation paper we included discussion of the Salmon and Freshwater Fisheries Act 1975, as it was thought worthwhile to include the species protection provisions in that Act in any new regime. On reflection, and after consultation, we have taken a different view. To remove the species protection provisions found in sections 1 to 4 of the 1975 Act and place them in a separate statutory framework would unnecessarily complicate the regulatory regime for fisheries already in place.

    
    

    “Invasive non-native species”

64. In our consultation paper, we highlighted problems concerning the protection of the natural environment and the UK economy posed by what are commonly known as “invasive non-native species”. Invasive non-native species, broadly speaking, are animal or plant species that, when introduced in a particular environment outside their natural range as a result of human intervention, are likely to cause adverse effects on biodiversity, ecosystem services, infrastructure, health or other economic interests such as agriculture or forestry.

    
    

65. At the time we drafted the consultation paper, negotiations at EU level in connection with an EU-wide legislative instrument for the control of invasive non- native species were already under way. Those negotiations led to the publication of a draft EU Regulation on Invasive Alien Species in September 2013,40 and the adoption of Regulation (EU) No 1143/2014 on the prevention and management of the introduction and spread of invasive alien species in September 2014 (the 2014 Regulation).41

    
    

    38 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 3.

    39 The Animal Welfare Act 2006 requires that the defendant knew, or ought reasonably to have known, that an act, or failure to act, would result in the prohibited consequence (s 4(1)(b)). This differs significantly from the Wild Mammals (Protection) Act 1996, where the requirement is that the defendant acted “with intent to inflict unnecessary suffering” (s 1).

    40 COM (2013) 620 fin.

    41 Regulation on the prevention and management of the introduction and spread of invasive alien species (EU) No 1143/2014, Official Journal L 317/35 of 4.11.2014.

66. Although we could see benefits in exploring reform options in connection with the way species that should not be released into the environment are listed and defined,42 we concluded that in the light of the ongoing negotiations it would have been inappropriate to embark in a comprehensive reform of the domestic regulatory structure on the control and management of invasive non-native species. We decided, therefore, to restrict the scope of our reform of this area of law to the regulatory and enforcement powers to deliver Government policy. This was the philosophy underlying our early Report, referred to in paragraph 1.17 above. The rationale behind this restriction is that such tools would remain necessary regardless of the new definitions or prohibitions that might be introduced by the new EU legislative instrument.

    
    

67. The 2014 Regulation has now come into force. It imposes a number of binding prohibitions on individuals43 and monitoring, inspection and enforcement obligations44 on member states in connection with an exhaustive list of invasive non-native species of “Union concern”. While the Regulation allows member states to take action in connection with invasive alien species that fall outside the “Union concern” list, the control of non-native species of “member state concern” will remain primarily a matter of domestic law and policy.45

    
    

68. Whilst the formulation of policy on the control of non-native species is outside the scope of this project, we have rationalised the existing powers and prohibitions connected to the prevention, control and management of invasive non-native species with a view to providing the Secretary of State or Welsh Ministers with a regulatory toolkit that is as close as possible to the one available under the 2014 Regulation. The provisions that we recommend, in addition to those already contained in the Infrastructure Act 2015, are in clauses 94 to 101 of the draft Wildlife Bill.

    
    

    THE STRUCTURE OF THIS REPORT

69. The structure of this Report follows as closely as possible the structure of the Wildlife Bill, so as to make it easy to read alongside the draft clauses of the Bill.

    
    

70. An important aspect of our reform of wildlife law, as discussed in Chapter 2, is the creation of a single set of provisions that consolidate and rationalise all relevant wildlife legislation in England and Wales. This process necessarily involved a large number of technical changes to the law. While the express recommendations of this Report cover the most important aspects of this process, we do not discuss minor or inconsequential technical changes to the language or structure of certain provisions that may be found in the Bill.

    
    

    42 See, in particular, Wildlife and Countryside Act 1981, s 14(1).

    43 Regulation (EU) No 1143/2014, arts 7 to 9.

    44 Regulation (EU) No 1143/2014, arts 14 to 20.

    45 Art 12 of Regulation (EU) No 1143/2014 simply provides that each member state should inform the Commission and other member states of the species they consider as invasive alien species of member state concern and of the relevant control measures that they have put in place. Art 12 allows member states to apply control measures similar to those they have to put in place in connection with species of Union concern, so long as the measures comply with the Treaty of the Functioning of the European Union.

    Regulatory structure (Chapter 2)

71. Chapter 2 contains recommendations in connection with the creation of a single statute covering all aspects of wildlife law in England and Wales. In this Chapter we define the general regulatory structure of the new statutory framework and make specific recommendations in connection with the powers to add or remove species from the schedules to the Wildlife Bill, powers to introduce close seasons, obligations to monitor and review the conservation status of protected species and obligations to regularly review the schedules to the Bill.

    
    

    Prohibited conduct: core international and EU obligations (Chapter 3)

72. As a significant part of our domestic wildlife legislation falls within the scope of the UK’s obligations under EU and international law, ensuring that those obligations are adequately transposed in domestic law has been one of the main features of the wildlife law project.

    
    

73. In Chapter 3 we explore two complex transposition issues that cut across the domestic protection of wild birds, wild animals other than birds and wild plants.

    
    

74. The first issue concerns the domestic transposition of the word “deliberate” in article 5 of the Wild Birds Directive and articles 12 and 13 of the Habitats Directive. The word “deliberate” in the context of the Wild Birds and Habitats Directives defines the mental element that member states should prescribe in domestic legislation in connection with the conduct prohibited by the Directives. The problem with this term is that while the term “deliberate”, in English, would generally be understood as a synonym of “intentional”, two rulings of the Court of Justice of the European Union (the Court of Justice) have now extended its ordinary meaning beyond the understanding of intentionality in the law of England and Wales.

    
    

75. The second issue concerns the transposition of the concept of “disturbance” in domestic law. Transposition problems are linked to the use of inconsistent formulations of this concept at EU and international level on the one hand and at domestic level on the other hand.

    
    

76. The third concerns the extent of the United Kingdom’s obligation, as a matter of EU law, to comply with provisions of the Bern Convention against which the UK has entered reservations.

    
    

    Prohibited conduct: protection of wild birds (Chapter 4)

77. In Chapter 4 we make recommendations in connection with the protection of wild birds. Those recommendations are given effect in Part 1 of the Wildlife Bill. They cover changes to the definition of “wild birds” and the transposition of the prohibitions under article 5 of the Wild Birds Directive, changes to the domestic regulation of recreational hunting in line with article 7 of the Wild Birds Directive, the rationalisation of the list of prohibited methods of killing or capture and the simplification and modernisation of the prohibitions in connection with the possession and trade of protected wild birds, in line with article 6 of the Wild Birds Directive.

    Prohibited conduct: protection of wild animals (Chapter 5)

78. In Chapter 5 we make recommendations in connection with the protection of wild animals other than birds. Those recommendations are given effect in Parts 2 and 4 of the Wildlife Bill. They cover technical changes to the definition of certain protected animals, specific problems with the current transposition in domestic law of prohibitions under article 12 of the Habitats Directive and article 6 of the Bern Convention, the rationalisation of existing disturbance offences, the harmonisation of the mental element of a number of domestic prohibitions and the simplification of the prohibitions connected to the possession and trade of protected wild animals and other prohibited items.

    
    

79. Chapter 5 also makes recommendations on complex transposition issues in connection with the UK’s international and EU obligations to prohibit certain methods of killing or capture under the Habitats Directive, the Bern Convention and the Agreement on Humane Trapping Standards between the European Union, Canada and the Russian Federation.

    
    

    Prohibited conduct: protection of wild plants (Chapter 6)

80. In Chapter 6 we make recommendations in connection with the protection of wild plants and other organisms including algae and fungi, which are given effect in Part 3 of the Wildlife Bill. They cover, in particular, the harmonisation of the language of domestic offences with the language of the prohibitions in article 13 of the Habitats Directive and other definitional issues.

    
    

    Permitted activity: licensing and defences (Chapter 7)

81. In Chapter 7 we recommend changes to the existing licensing regimes and criminal defences.

    
    

82. In connection with the reform of existing licensing regimes, Chapter 7 makes recommendations to ensure that the provisions for issuing wildlife licences to authorise otherwise prohibited activities are both compliant with EU law and flexible enough to enable the licensing authority to respond to the broadest possible range of circumstances. This Chapter also recommends a radical harmonisation and simplification of the licensing regimes for activities affecting species protected for primarily domestic policy reasons, such as badgers, deer, seals and wild animals listed in schedule 5 to the Wildlife and Countryside Act 1981.

    
    

83. This Chapter also makes recommendations in connection with the complex array of criminal defences to the prohibited activities discussed in Chapters 4, 5 and 6. As regards defences that are currently applicable to activities prohibited by EU law, this Chapter makes specific recommendations to ensure compliance with the derogation regimes in article 9 of the Wild Birds Directive and article 16 of the Habitats Directive. As regards defences to activities affecting other protected species, recommendations focus on ensuring that existing defences are replicated in the new regulatory framework in a coherent and consistent form.

    Poaching: substantive prohibitions (Chapter 8)

84. The existing law on poaching dates back to 1828 and is contained in a number of nineteenth century Acts.46 The language of the substantive poaching offences under the various Game Acts is inconsistent and unclear and the existing enforcement powers are significantly outdated. Chapter 8, therefore, makes recommendations connected to the creation of a single poaching offence and the general simplification and modernisation of the current law on poaching.

    
    

    Control of non-native species, pests and weeds (Chapter 9)

85. In this Chapter we recommend the introduction of a general power to require particular persons or classes of persons to notify the competent authority about the presence of an invasive non-native species.

    
    

86. Provisions related to the control of invasive non-native species have been inconsistent, sector specific, and scattered across a number of Acts dating back to the Destructive Imported Animals Act 1932. As clearly mentioned, our recommendations on species control orders have been published in a separate Report (Wildlife Law: Control of Invasive Non-native Species (2014) Law Com No

    342) and implemented in England and Wales through the Infrastructure Act 2015. This Chapter contains recommendations aimed at rationalising and harmonising existing provisions with the aim of creating a coherent, effective and modern regulatory toolkit covering the prevention, control, eradication and long term management of invasive non-native species.

    
    

87. This Chapter will also include recommendations aimed at integrating a number of powers to control agricultural pests and weeds into the new regulatory framework and updating the enforcement provisions connected to those powers, in line with the powers to control and eradicate invasive non-native species.

    
    

    Criminal liability, enforcement and sanctions (Chapter 10)

88. In Chapter 10 we make recommendations in connection with enforcement powers and sanctions. This Chapter includes recommendations aimed at extending criminal liability to the ultimate beneficiaries of wildlife crime, simplifying and consolidating the existing enforcement regime, increasing existing criminal sanctions for wildlife crime and creating a consistent regime to allow relevant regulators to issue civil sanctions in connection with the whole range of wildlife offences.

46 Night Poaching Act 1828.

CHAPTER 2

REGULATORY STRUCTURE

INTRODUCTION

1. In Chapter 1 we highlighted a number of general problems with wildlife legislation that should be addressed by law reform. Wildlife law is scattered around a large number of statutes. As a result, the existing regulatory framework is complex, inaccessible and internally inconsistent. A number of Acts, in addition, are insufficiently flexible to respond to new external challenges.

   
   

2. Our recommendations in this Chapter have, as their central objective, the creation of a modern statutory framework that accommodates all relevant wildlife legislation in a consistent, logical, transparent and flexible structure that will be capable of accommodating future changes in policy and scientific understanding.

   
   

3. The main recommendations in this Chapter relate to the creation of a single code for all wildlife legislation, powers to alter the level of protection of species through scheduling or through the creation of close seasons, obligations to regularly review the lists of species under the statute and obligations to monitor the conservation status of certain protected species.

   
   

   A SINGLE STATUTE

4. Many problems with the current regulatory landscape arise because the applicable provisions are scattered around a number of different enactments. Some of those enactments do not have a pure wildlife focus. The Wildlife and Countryside Act 1981, for example, has parts dedicated to public rights of way that are entirely unrelated to the species-specific protection provisions in Part 1 of the Act. Other enactments, such as the Protection of Badgers Act 1992, focus on specific activities affecting only one species. Certain activities that affect badgers, however, are also prohibited under other enactments, such as the Wildlife and Countryside Act.1 This makes it difficult for individuals to discover the full legislative regime that applies to a particular species.

   
   

5. In consultation, stakeholders overwhelmingly agreed that a single statute for wildlife law would have definite benefits. A single statute would allow for increased consistency in terms of language, definitions and policy. Importantly, it would also improve the transparency and accessibility of the existing framework. Rather than having to trawl through the profusion of existing statutes, those who are interested or directly affected by wildlife legislation would only have one comprehensive code to consult.

   
   

   1 Wildlife and Countryside Act 1981, s 11.

6. We have concluded, therefore, that the new regulatory regime should take the form of a single statute, or a pair of materially identical statutes,2 incorporating all legislation on the protection, control and exploitation of wild fauna and flora in England and Wales. The regulatory structure of the new single statute would supersede and, therefore, enable the repeal of a large number of existing regulatory regimes, including:

   
   

   1. the Conservation of Habitats and Species Regulations 2010;3

      
      

   2. the Protection of Badgers Act 1992;

      
      

   3. the Deer Act 1991;

      
      

   4. the Wildlife and Countryside Act 1981;4

      
      

   5. the Import of Live Fish (England and Wales) Act 1980;

      
      

   6. the Conservation of Seals Act 1970;

      
      

   7. the Weeds Act 1959;

      
      

   8. the Pests Act 1954;

      
      

   9. the Agriculture Act 1947;

      
      

   10. the Prevention of Damage by Rabbits Act 1939;

       
       

   11. the Destructive Imported Animals Act 1932; and

       
       

   12. the Hares Preservation Act 1892.

       
       

7. For the reasons explained in Chapter 1, a limited number of self-contained statutes relevant to wildlife law, including the Hunting Act 2004, the Animal Welfare Act 2006, the Wild Mammals (Protection) Act 1996 and the Salmon and Freshwater Fisheries Act 1975, would continue to operate alongside the recommended single statute.

   
   

   Recommendations

   
   

   Recommendation 2: we recommend that the new regulatory regime should take the form of a single statute, or a pair of materially identical statutes, incorporating legislation on the protection, control and exploitation of wild fauna and flora in England and Wales.

   
   

   2 Whether our recommendations are given effect by an “England and Wales” statute accompanied by a legislative consent motion in the National Assembly, or by parallel legislation for England and for Wales, is a matter for discussion between the United Kingdom and Welsh Governments.

   3 Parts 3, 4, 5 and 7.

   4 Part 1 other than sections 8 and 15 (insofar as it applies to England and Wales).

   Recommendation 3: we recommend that the new regulatory regime should exclude the Hunting Act 2004, the Animal Welfare Act 2006, the Wild Mammals (Protection) Act 1996 and the Salmon and Freshwater Fisheries Act 1975.

   
   

   STATUTORY FACTORS

8. In our consultation paper we suggested that one criticism of the current regime is a lack of sufficient transparency as to decision-making. This can lead some to think that when competent authorities take decisions priority is given to a particular interest.5

   
   

9. We argued that the introduction of a non-hierarchical list of statutory factors could play a role in ensuring transparent decision-making by public authorities and improving the engagement of those representing competing interests. This would be promoted by highlighting specific factors that would need to be considered, and in many cases weighed against each other, before coming to a particular decision.

   
   

10. The statutory factors we suggested were:

    
    

    1. conservation of the species with which the decision is concerned;

       
       

    2. preservation and conservation of biodiversity;

       
       

    3. economic implications;

       
       

    4. wider social factors; and

       
       

    5. the welfare of animals potentially affected by the decision.

       
       

11. In the light of the consultation responses, and after having given further thought to its practical implications, we have decided to drop this proposal. We found it impossible to draft a list of factors which was neither so general as to be ineffective, nor so specific as to interfere with the domestic implementation of the Wild Birds and Habitats Directives by either “gold-plating” or breaching their requirements.

    
    

12. As we highlighted in Chapter 1 of this Report, a significant proportion of domestic wildlife protection legislation falls within the scope of the Wild Birds and Habitats Directives. Both the Wild Birds and the Habitats Directives contain factors to be taken into account when implementing the Directives.

    
    

    5 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 5.27.

13. The Wild Birds Directive requires that member states take measures to maintain the population of EU wild birds “at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements”.6 Measures taken pursuant to the Directive, in addition, must not lead to the “deterioration in the present situation as regards the conservation of the species of birds” falling within the scope of the Directive.7

    
    

14. The Habitats Directive requires that member states take measures “designed to maintain or restore, at favourable conservation status,8 natural habitats and species of wild fauna and flora of Community interest”.9 When taking measures implementing the Habitats Directive, member states should “take account of economic, social and cultural requirements and regional and local characteristics”.10

    
    

15. What is clear in both of the Directives is that primacy is given to the conservation of the species covered by the Directive. It is equally clear, however, that conservation is not to be addressed in a policy vacuum and other factors should be considered when implementing the aims of the Directive. The effect of other factors differs considerably between the two Directives.

    
    

16. Given the differences between the Wild Birds and Habitats Directive as to their overarching aims, it became clear in consultation that a single list of factors would be unworkable. The introduction of a non-hierarchical list of factors, in particular, could have been regarded as a breach of EU law given the primacy of the “conservation” factor under the two Directives.

    
    

17. Transparency in decision-making, our primary reason for introducing statutory factors, is in our view a prerequisite of any modern regulatory regime. We have concluded, therefore, that the potential benefits of statutory factors in terms of transparency could be matched, to some extent, by an express duty to give reasons in writing in connection with decisions to grant or refuse a licence.

    
    

18. In certain circumstances it would be possible to rely on general administrative law principles to ensure that decision makers give reasons for their decisions, and any failure to give reasons could constitute a ground for review.11 There is, however, no universal duty to give reasons. A clear statutory obligation to give reasons, therefore, has the benefit of ensuring that the practice is carried out consistently.

    
    

    6 Directive on the conservation of wild birds 2009/147/EC, Official Journal L 20 of 26.1.2010, art 2.

    7 Directive 2009/147/EC, art 13.

    8 Directive on the conservation of natural habitats and of wild fauna and flora 92/43/EEC, Official Journal L 206 of 22.7.1992, art 1(e) defines the conservation status of a species as “the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in article 2”.

    9 Directive 92/43/EEC art 2(2).

    10 Directive 92/43/EEC, art 2(3).

    11 See generally, Right Hon Lord Harry Woolf and others, De Smith’s Judicial Review (7th ed 2013) paras 7-095 to 7-101.

    GENERAL REGULATORY APPROACH

19. In the consultation paper, we analysed the existing law and identified that the basic regulatory approach is to prohibit certain behaviour, permit limited exceptions and otherwise license desirable activity affecting defined lists of species. We provisionally proposed that this approach should be retained in any new regulatory regime for wildlife.

    
    

20. Given both the overwhelming level of support in consultation for the basic regulatory approach (prohibit, permit, licence) and the close relationship between this approach and that adopted in the Wild Birds and Habitats Directives, we maintain the proposal.

    
    

21. In the consultation paper, we also provisionally proposed that the new regime 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. This generally reflects the current approach in the relevant EU directives and the latest domestic wildlife protection legislation.12

    
    

22. There are exceptions to the current approach in existing legislation. Certain activities, for instance, are prohibited generally, irrespective of the species affected. For instance, the use of spring traps is prohibited, except in certain circumstances, irrespective of the species the user intends to trap. Similarly, the use of leghold traps is prohibited by Council Regulation (EEC) No 3254/9113 irrespective of the targeted species or conditions of use.

    
    

23. The general rule, however, is that wildlife law lists the species, or groups of species, it is intended to protect. If not listed specifically, or covered by the general definition of a protected group of species, a species will not be subject to the regime we are recommending. This does not necessarily mean that those species necessarily remain unprotected, as other protective regimes may still apply, such as those contained in the Animal Welfare Act 2006, the Wild Mammals (Protection) Act 1996 or broader habitats protection legislation.

    
    

24. We have concluded, therefore, that in line with the current approach the new regulatory framework should be generally organised, subject to the current exceptions, into schedules containing lists of species that should be protected or controlled, so as to allow different provisions to apply to individual species or groups of species. In the context of our recommended single statute, this approach will ensure that the level of protection of each species will be capable of being tailored to the list of prohibited conduct that best reflects the protection needs of that species.14

    
    

    12 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 5.50 to 5.55.

    13 Regulation prohibiting the use of leghold traps in the Community and introduction into the Community of pelts and manufactured goods of certain wild animal species originating in countries which catch them by means of leghold traps or trapping methods which do not meet international humane trapping standards (EEC) No 3254/91, Official Journal L 308 of 9.11.1991, p 1.

    14 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 5.73 to 5.76.

    Recommendations

    
    

    Recommendation 4: we recommend that, subject to existing exceptions, the new regulatory regime should be organised into schedules containing lists of species that should be protected or controlled, so as to allow different provisions to apply to individual species or groups of species.

    
    

    MONITORING OBLIGATIONS

25. Monitoring the conservation status of certain species of concern and reviewing the relevant schedules to ensure that the level of protection of those species adequately responds to existing threats are two intertwined activities that enable competent authorities to ensure that the legal regime adequately responds to existing threats to wildlife.

    
    

    Monitoring obligations under the Habitats Directive

26. The Habitats Directive places an express obligation on member states to:

    
    

    undertake surveillance of the conservation status of the natural habitats and species referred to in article 2 with particular regard to priority natural habitat types and priority species.15

    
    

27. Article 14(1) of the Habitats Directive further provides that if in the light of the surveillance provided for in article 11 member states deem it necessary, they should take measures to ensure that:

    
    

    the taking in the wild of specimens of species of wild fauna and flora listed in annex 5, as well as their exploitation, is compatible with their being maintained at a favourable conservation status.16

    
    

28. Where measures under article 14(1) are deemed necessary, they should include continuation of the surveillance provided for in article 11. Such measures may also include, among other things, the introduction of close seasons, the regulation of the trade in those species and reintroduction programmes.

    
    

29. Lastly, the regime of strict protection in article 12(4) of the Habitats Directive requires member states to establish a system to monitor the incidental capture and killing of the animal species listed in annex 4(a) to the Directive. In the light of the information gathered, member states should undertake further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.

    
    

    15 Directive 92/43/EEC, art 11.

    16 Directive 92/43/EEC, art 14(1).

30. Article 16(2) of the Habitats Directive provides that when a member state has permitted an otherwise generally prohibited activity by derogating in line with article 16(1) of the Directive, it has to report this to the European Commission. The reports should be sent every two years and include a justification for each derogation granted including, where relevant, any scientific data that the competent authority has relied upon.17 In addition member states must report on the implementation of the Habitats Directive within their territory, including on the conservation status of species protected under the Directive, every six years.18

    
    

    The Wild Birds Directive

31. In terms of monitoring obligations, the Wild Birds Directive lacks the detailed provisions of the Habitats Directive.

    
    

32. The principal obligation placed on member states by the Wild Birds Directive, as mentioned above, requires that:

    
    

    Member States shall take the requisite measures to maintain the population of the species referred to in article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.19

    
    

33. This should be read in conjunction with the obligation in article 13 of the Directive, which requires that the application of the measures taken pursuant to this Directive must not lead to deterioration in the present situation as regards the conservation of the species of birds referred to in article 1.20

    
    

34. Other parts of the Directive require the member state to ensure compliance with the headline obligation in article 2. Permitted hunting and falconry under article 7 of the Directive, for instance, is subject to the following restriction:

    
    

    Member states shall ensure that the practice of hunting, including falconry if practised, as carried on in accordance with the national measures in force, complies with the principles of wise use and ecologically balanced control of the species of birds concerned and that this practice is compatible as regards the population of these species, in particular migratory species, with the measures resulting from article 2.

    
    

    17 Directive 92/43/EEC, art 16(2).

    18 Directive 92/43/EEC, art 17.

    19 Directive 2009/147/EC, art 2.

    20 Directive 2009/147/EC, art 13.

35. There is a reporting obligation in article 9 of the Wild Birds Directive, such that each year member states should report to the European Commission on how they have granted permission for the conduct of an activity which would otherwise be prohibited.21 Furthermore, member states must report on their general implementation of the Wild Birds Directive every three years.22

    
    

    Domestic transposition of EU law

36. In the context of the Habitats Directive, in Case C-6/04 Commission v United Kingdom, the Court of Justice of the European Union held that:

    
    

    member states are under a particular duty to ensure that their legislation intended to transpose that Directive is clear and precise, including with regard to the fundamental surveillance and monitoring obligations, such as those imposed on national authorities by articles 11, 12(4) and 14(2) of the Directive.23

    
    

37. The Court of Justice, in other words, concluded that the fact that relevant surveillance programmes had, in practice, been undertaken by the UK did not negate the fact that the absence of clear obligations to do so in domestic law constituted a failure to transpose the Directive clearly and precisely.

    
    

38. In the light of the above infraction proceedings, the Conservation of Habitats and Species Regulations 2010 (the 2010 Regulations) now include comprehensive provisions requiring the Secretary of State or Welsh Ministers to arrange – on the basis of the advice provided by Natural England (in relation to England) and Natural Resources Wales (in relation to Wales) – for the regular surveillance of the conservation status of natural habitat types of Community interest and species of Community interest, and in particular priority natural habitat types and priority species.24

    
    

39. In line with article 14(1) of the Directive, regulation 49 of the 2010 Regulations further provides that on the basis of the information derived from relevant surveillance programmes, the Secretary of State or Welsh Ministers must ensure that measures are taken for the purpose of ensuring that the capture of specimens of a species listed in annex 5 to the Habitats Directive,25 and the exploitation of such specimens, are compatible with the maintenance of that species at a favourable conservation status.

    
    

    21 Directive 2009/147/EC, art 9(3).

    22 Directive 2009/147/EC, art 12(1).

    23 Case C-6/04 Commission v UK [2005] ECR I-9017 at [26] to [28].

    24 SI 2010 No 490, reg 48.

    25 Annex 5 lists animals and plant species of Community interest whose taking in the wild and exploitation may be subject to management measures.

40. Article 12(4) of the Habitats Directive is now transposed by regulations 50 and 51 of the 2010 Regulations, which provide for the monitoring of the incidental capture and killing of animals listed in annex 4(a) to the Habitats Directive and for additional conservation measures to be taken to ensure that the incidental capture or killing of animals of a species listed in annex 4(a) to the Habitats Directive does not have a significant negative impact on that species.26

    
    

41. As the Wild Birds Directive does not include any express obligation to monitor the conservation status of particular birds of concern, there are currently no domestic provisions expressly requiring the Secretary of State or Welsh Ministers to do so.

    
    

    Other relevant domestic legislation

42. In England and Wales, the relevant conservation bodies (Natural England in relation to England and Natural Resources Wales in relation to Wales), broadly speaking, have a general obligation to carry out research in connection with matters relevant to their general functions,27 including the function of promoting nature conservation.28 In discharging their monitoring functions in connection with nature conservation, both Natural England and Natural Resources Wales must have regard to the common standards established by the UK conservation bodies through the Joint Nature Conservation Committee under section 34 of the Natural Environment and Rural Communities Act 2006.29

    
    

    Discussion

43. The core monitoring and surveillance obligations under the Habitats Directive have now been appropriately transposed by regulations 48 to 51 of the Conservation of Habitats and Species Regulations 2010. Those surveillance obligations, however, do not extend to any wild bird, on the basis that the Wild Birds Directive does not include any express requirement to establish an effective monitoring and surveillance regime in domestic legislation.

    
    

44. It is worth noting, however, that the basic aims of the Directives are similar. The obligations in article 2 of the Wild Birds Directive and the Habitats Directive require the consideration of populations and their changes. More importantly, the obligation in article 13 of the Wild Birds Directive can only be fulfilled if member states monitor and conduct surveillance as to the effects of the legal regime.30

    
    

45. Similarly, the obligation to ensure that the recreational hunting of wild birds does not jeopardise conservation efforts and complies with the principles of “wise use” and “ecologically balanced control”, implicitly requires some form of monitoring, potentially combined with more specific reporting requirements on users.

26 SI 2010 No 490, regs 51(1) and (2).

27 See Natural Environment and Rural Communities Act 2006, s 3 and Natural Resources Body for Wales (Establishment) Order 2012, art 10C.

28 See Natural Environment and Rural Communities Act 2006, s 2(2)(a) and the Natural Resources Body for Wales (Establishment) Order 2012, art 5A.

29 See Natural Environment and Rural Communities Act 2006, s 3(4) and Natural Resources Body for Wales (Establishment) Order 2012, art 10C(3).

30 Art 13 requires that measures taken pursuant to the Directive must not lead to deterioration in the conservation status of birds protected by the Directive.

1. Under both Directives, in addition, member states have obligations to submit implementation reports to the European Commission regularly.

   
   

2. As the Wild Birds Directive does not expressly require the creation of a specific regime to make sure that the conservation status or incidental killings of wild birds of concern are regularly monitored, the absence of any express reference to the monitoring of populations of wild birds in domestic law does not constitute, in itself, a transposition failure.

   
   

3. Nevertheless, we have taken the view that in principle there is no reason why the same surveillance framework that applies to species of Community interest may not be extended to certain wild bird species of concern. This could be a way to improve the transparency of monitoring programmes and to set clear priorities to ensure that the implied monitoring obligations of the Wild Birds Directive are given effect in practice.

   
   

4. We have concluded, therefore, that consideration should be given to the possibility of including wild bird species of concern – including those subject to recreational hunting – within the same monitoring and surveillance framework that currently applies to species of Community interest.

   
   

   Recommendations

   
   

   Recommendation 5: we recommend that existing monitoring and surveillance obligations under regulations 48 to 51 of the Conservation of Habitats and Species Regulations 2010 should be replicated under the new regulatory framework.

   
   

   Recommendation 6: we recommend that consideration should be given to the possibility of extending the existing monitoring and surveillance obligations to other species of concern, including, in particular, wild bird species protected under the Wild Birds Directive.

   
   

   These recommendations are given effect in the draft Bill by clauses 148 to 155.

   
   

   GENERAL ORDER-MAKING PROCEDURE UNDER THE WILDLIFE BILL

5. In consultation we provisionally proposed that section 26 of the Wildlife and Countryside Act 1981 (the 1981 Act) should be adopted as the model for the procedure that the Secretary of State or Welsh Ministers should follow to make regulations under the Wildlife Bill.31

31 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 8.

1. Section 26 of the 1981 Act requires that any order or regulation, including orders to update the schedules to the 1981 Act be in the form of statutory instruments and, except for those under sections 2(6), 3, 5 and 11 of the Wildlife and Countryside Act 1981, be subject to annulment in pursuance of a resolution of either House of Parliament (if the statutory instrument contains regulations made by the Secretary of State) or a resolution of the Welsh Assembly (if the statutory instrument contains regulations made by the Welsh Ministers).32

   
   

2. Before making any order the Secretary of State or Welsh Ministers:

   
   

   1. must give to any local authority affected and any other person affected, by such means as they may think appropriate, an opportunity to submit objections or representations with respect to the subject matter of the order;33

      
      

   2. except when responding to the advice of JNCC to update schedules 5 and 8, must consult with whichever one of the “advisory bodies” they consider is best able to advise them as to whether the order should be made; and

      
      

   3. may, if they think fit, cause a public inquiry to be held.34

      
      

3. For the purpose of the consultation obligations under section 26(4)(b) of the 1981 Act, an “advisory body” is a body established by the Secretary of State or Welsh Ministers under section 23(1)(a) of the 1981 Act or a body to which an advisory duty defined by section 23(4) of the 1981 Act has been assigned to.

   
   

4. In the light of the general support in consultation for this provisional proposal, we have concluded that, as a general rule, regulation-making powers under the new Wildlife Bill should be exercisable by statutory instrument35 and subject to annulment in pursuance of a resolution of either House of Parliament (if the statutory instrument contains regulations made by the Secretary of State) or a resolution of the National Assembly for Wales (if the statutory instrument contains regulations made by the Welsh Ministers).36

   
   

5. In line with section 26 of the Wildlife and Countryside Act 1981 the Secretary of State or Welsh Ministers – as a general rule – should be able to make regulations under the Wildlife Bill as long as:

   
   

   1. they have consulted a relevant advisory body established or nominated in line with a procedure reflecting section 23 of the 1981 Act;37 and

      
      

      32 Wildlife and Countryside Act 1981, ss 26(1) and (2).

      33 As discussed below, certain exceptions apply to orders under ss 2(6) and 3 of the Wildlife and Countryside Act 1981.

      34 Wildlife and Countryside Act 1981, ss 22(3) and 26(4)(a) to (c).

      35 Statutory instruments are subject to the publication procedures laid down under the Statutory Instruments Act 1946.

      36 Wildlife and Countryside Act 1981, ss 26(1) and (2).

      37 Wildlife and Countryside Act 1981, s 26(4)(b).

   2. they have consulted any local authority or any other person who, in their opinion, may be affected by, or have an interest in, the regulations.38

      
      

6. In line with the discussion in the section below, regulations adding, amending or removing an entry to a schedule to the Wildlife Bill may also be issued when a review of that schedule has been carried out by the Joint Nature Conservation Committee (JNCC) under the quinquennial review procedure and the Secretary of State or Welsh Ministers, as above, have consulted any local authority or any other person who, in their opinion, may be affected by the order.

   
   

   Recommendations

   
   

   Recommendation 7: we recommend that section 26 of the Wildlife and Countryside Act 1981 should be adopted as the general model for the procedure to make secondary legislation under the new framework.

   
   

   This recommendation is given effect in the draft Bill by clause 166.

   
   

   REVIEW OF SPECIES LISTS

7. We explored above the need to monitor changes in the natural world,39 in particular to see whether further protection for species naturally occurring in Great Britain is necessary, and whether it is necessary to take additional steps to deal with emerging threats to biodiversity.

   
   

8. In this section, we consider a mechanism for reviewing and updating the schedules to the proposed wildlife Bill to ensure that the provisions of the new Bill adequately reflect, at all times, changes to wildlife protection or management priorities.

   
   

9. In line with our general approach to the reform of wildlife law, our recommendations in this section build on existing mechanisms, particularly the quinquennial review process currently undertaken by the JNCC in relation to schedules 5 and 8 to the Wildlife and Countryside Act 1981.40 The aim of our recommendations in this section is to ensure that under the new regulatory framework all relevant schedules will be regularly kept up to date through a consistent review procedure.

   
   

   Relevant legislation

   
   

   The Wildlife and Countryside Act 1981

10. Most provisions in Part 1 of the Wildlife and Countryside Act 1981 (the 1981 Act) are dependent on schedules that list the species of fauna and flora to which the provisions apply.

    
    

    38 Wildlife and Countryside Act 1981, s 26(4)(a). In line with current practice, we have taken the view that the consultation requirements should expressly extend to persons – including, for instance – non-governmental organisations, that have an interest in the regulations.

    39 Chapter 2, paras 2.25 to 2.49.

    40 Wildlife and Countryside Act 1981, s 22(3).

    QUINQUENNIAL REVIEW OF SCHEDULES 5 AND 8

11. Section 24(1) of the 1981 Act provides that the GB conservation bodies41 acting through the Joint Nature Conservation Committee (JNCC)42 may at any time and shall five years after 30th October 1991 and every five years thereafter, review schedules 5 and 8 to the 1981 Act43 and advise the Secretary of State and Welsh Ministers as to whether any animal should be added to, or removed from, schedule 5 or whether any plant should be added to, or removed from, schedule 8.

    
    

12. Following representations from the GB conservation bodies acting through the JNCC the Secretary of State or Welsh Ministers may:

    
    

    1. add to schedule 5 or schedule 8 any animal or plant which, in their opinion, is in danger of extinction in Great Britain or is likely to become so endangered unless conservation measures are taken; and

       
       

    2. remove from schedule 5 or schedule 8 any animal or plant which, in their opinion, is no longer so endangered or likely to become so endangered.44

       
       

13. The process follows the provisions of part 2 of the Natural Environment and Rural Communities Act 2006,45 which require that the giving of advice for the purposes sections 22(3) and 24(1) of the 1981 Act can only be conducted through the JNCC.46

    
    

    OTHER SCHEDULES

14. The remainder of the schedules to Part 1 of the 1981 Act are not subject to the regular review procedure attached to the power to update schedules 5 and 8.

    
    

15. In relation to schedules concerning the protection of wild birds, the Secretary of State or Welsh Ministers may, by order, add or remove any bird from any part of schedules ZA1 to 4. The Secretary of State or Welsh Ministers may also prescribe close seasons for birds added to part 2 of schedule 1 and part 1 of schedule 2 to the 1981 Act.47

    
    

    41 The GB conservation bodies are Natural England, Natural Resources Wales and Scottish Natural Heritage (Natural Environment and Rural Communities Act 2006, s 32).

    42 The JNCC was established by the Natural Environment and Rural Communities Act 2006, s 31 and sch 4, and acts as the principal advisor to the UK Government on UK and international matters. It also organises the joint submissions for reviews of some of the existing schedules to the Wildlife and Countryside Act 1981.

    43 Schedules 5 and 8 list, respectively, the species of animals or plants protected by ss 9 (offence of killing or taking animals) and 13 (offence of picking, uprooting or destroying plants) of the Wildlife and Countryside Act 1981.

    44 Wildlife and Countryside Act 1981, s 22(3).

    45 Wildlife and Countryside Act 1981, s 24(1).

    46 Natural Environment and Rural Communities Act 2006, ss 36(1) and (2).

    47 Wildlife and Countryside Act 1981, ss 22(1) and (2).

16. Schedule 6, which lists animal species protected from prohibited methods of killing or capture may only be updated for the purpose of complying with an international obligation.48

    
    

17. Lastly, the Secretary of State or Welsh Ministers may, either generally or with respect to particular areas of Great Britain, add to or remove any animal species from part 1 of schedule 9 and add to or remove any plant species from part 2 of that schedule. Part 1 of schedule 9 lists animal species that may not be released into the wild. Part 2 of schedule 9 lists plant species that may not be planted or caused to grow in the wild.

    
    

18. Lists of prohibited methods of killing or capturing wild birds are also capable of amendment. However, such amendment cannot prohibit methods involving the use of a firearm, save for the purpose of complying with an international obligation.49 Prohibited methods of killing or capturing other protected wild animals are capable of review, but only in pursuance of an international obligation.50

    
    

    Conservation of Habitats and Species Regulations 2010

19. The Conservation of Habitats and Species Regulations 2010 have been enacted under section 2(2) of the European Communities Act 1972 (the 1972 Act) for the purpose of giving effect to the UK’s obligations under the Habitats Directive. Its schedules, as a result, may only be amended by regulations enacted under section 2(2) of the 1972 Act. Section 2(2) of the 1972 Act empowers any designated Minister to make orders, rules, regulations or schemes for the purpose of implementing the UK’s obligations under EU law or dealing with any matter arising out of or related to any such obligation.

    
    

    Review of species lists under the new framework

20. As discussed in the sections above, most provisions of our proposed regulatory framework are connected to a relevant schedule listing the species of fauna or flora – or the prohibited methods of killing or capture – to which that provision applies. Effective and flexible processes to ensure that schedules are regularly kept up to date, therefore, are key to the proper functioning of the regulatory regime.

    
    

    48 Wildlife and Countryside Act 1981, s 22(4). The power to update schedules for the purpose of complying with an international obligation extends to sch 5 and 8. When exercising that power, the Secretary of State or Welsh Ministers are not bound to act under the advice of the GB conservation bodies.

    49 Wildlife and Countryside Act 1981, ss 5(2) and (3).

    50 Wildlife and Countryside Act 1981, s 11(4).

21. In the consultation paper we provisionally proposed that the requirement to regularly review the schedules under the new regime should be extended to all relevant schedules under the new regime.51 We also suggested that in line with the existing quinquennial review process that currently applies to schedules 5 and 8 to the Wildlife and Countryside Act 1981, the review process should be carried out, at the very least, every five years.52 Lastly, we proposed that, while the Secretary of State or Welsh Ministers should be free to depart from the advice of the relevant conservation bodies in connection with the review of a list, they should be bound to issue a public statement giving reasons for that decision.53

    
    

22. Consultees generally expressed overwhelming support for the above proposals, although there was some disagreement between stakeholders in connection with the maximum period between reviews. Defra and Natural England, for instance, suggested that the period between reviews should be extended to ten years, as a comprehensive review every five years could raise resource concerns. Others suggested, on the other hand, that all lists should be kept constantly under review or reviewed every three years.

    
    

    Maximum period between reviews

23. On balance, we have concluded that the current five-year period between reviews should be adopted as the model for the general obligation to periodically review the schedules to our proposed statutory framework. A ten-year period between reviews appeared to us to be excessively long to ensure that schedules adequately reflect real management and conservation priorities on an ongoing basis. Over-frequent changes to the schedules, on the other hand, may cause considerable uncertainty for those engaging in regulated activities and impose significant burdens on all those interested in wildlife protection, not just those administrating the listing process.

    
    

24. The five-year review process, therefore, should take place either at any time within five years after the new statute comes into force (and each successive five years) or within any shorter period specified in regulations issued by the Secretary of State or Welsh Ministers. This will make it possible to stagger the review of certain schedules in case the Secretary of State or Welsh Ministers consider that the review of all the schedules at the same time may be, for instance, administratively inconvenient.

    
    

    51 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 9.

    52 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 11.

    53 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 10.

    Recommendations

    
    

    Recommendation 8: we recommend that all schedules listing animal or plant species that should be protected by wildlife legislation, prohibited methods of killing or capturing and prohibited times during which particular animals may not be killed or captured should be reviewed every five years.

    
    

    This recommendation is given effect in the draft Bill by clause 158(1) and (2).

    
    

    The quinquennial review process

25. In line with Part 2 of the Natural Environment and Rural Communities Act 2006, the quinquennial review of the schedules to the Wildlife Bill should be carried out by the GB conservation bodies acting through the Joint Nature Conservation Committee (JNCC). Following the review process, the GB conservation bodies acting through the JNCC should advise the Secretary of State or Welsh Ministers as to the amendments, if any, they consider should be made to the schedules under review. The advice should be accompanied by a statement of reasons.

    
    

26. Environmental law is devolved in Wales and Scotland. However, under the current review procedure, each GB nature conservation body, acting through the JNCC, has an obligation to advise (jointly with the other two conservation bodies) all three Governments.54 Our understanding is that the rationale behind this approach is that, because certain species may be highly mobile, it is important that the review takes account of the conservation status of species across the whole of Great Britain.

    
    

27. If this approach is to be retained, then, in this regard alone, a legislative consent motion would be needed in the Scottish Parliament in respect of the requirement that Scottish Natural Heritage take part in reviews. But in practice, the extension of the current process to all schedules could be problematic. It could result in a requirement for Scottish Natural Heritage to participate in the review of a number of schedules that are only relevant to England and Wales.

    
    

28. We have concluded, therefore, that the three Governments should cooperate to re-define the involvement of the three GB conservation bodies in the quinquennial review process.

    
    

    Recommendations

    
    

    Recommendation 9: we recommend that quinquennial review of the schedules to the new Wildlife Act should be carried out by the GB conservation bodies acting through the Joint Nature Conservation Committee.

    
    

    This recommendation is given effect in the draft Bill by clause 158(1).

    
    

    54 Wildlife and Countryside Act 1981, s 24; Natural Environment and Rural Communities Act 2006, s 32.

    Recommendation 10: we recommend that following the review of the relevant schedules, the Joint Nature Conservation Committee should advise the Secretary of State and Welsh Ministers as to the amendments, if any, they consider should be made to the schedules under review.

    
    

    This recommendation is given effect in the draft Bill by clauses 158(4) and (5).

    
    

    Recommendation 11: we recommend that the UK Government, the Welsh Government and the Scottish Government consider cooperating for the purpose of re-defining the involvement of the three GB conservation bodies in the quinquennial review process.

    
    

    Obligation to give reasons

29. The fact that the quinquennial review process under the new statutory framework will extend to a broader range of schedules will, in our view, increase the likelihood of future divergences between expert advice and political decision- making. We remain convinced that an express requirement for the Secretary of State or Welsh Ministers to give reasons for departing from the expert advice would guarantee the transparency of the decision-making process and clarify the interface between science and policy.

    
    

30. We have concluded, therefore, that if the Secretary of State or Welsh Ministers decide not to make a relevant amendment to a schedule that the JNCC has advised should be made, or to make a relevant amendment to a schedule that the Committee has not advised should be made, they should be under an express duty to make a statement giving reasons for that decision.

    
    

    Recommendations

    Recommendation 12: we recommend that if the Secretary of State or Welsh Ministers decide not to follow the advice of the Joint Nature Conservation Committee in connection with the amendment of a relevant schedule, they should have a duty to make a statement giving reasons for that decision.

    
    

    This recommendation is given effect in the draft Bill by clauses 158(6) and (7).

    
    

    Power to update schedules outside the quinquennial review

31. In considering the process of updating the schedules, we turned our attention to what should happen between required reviews. The need to amend a list between the regular reviews could arise as a result of a change in the natural range or identity of a species listed in annex 4 to the Habitats Directive. The desire to amend a list could also be due to other international obligations, or purely domestic conservation concerns.

    
    

32. Consequently, we see merit in a simplified process for altering lists between reviews: one that is less burdensome than a formal review and that does not disrupt the general review process.

33. We have concluded, therefore, that the Secretary of State or Welsh Ministers should have the power to update a schedule by regulations outside the quinquennial review process. In that case, in line with the general order-making procedure discussed in the section above, the Secretary of State or Welsh Ministers should consult whichever of the advisory bodies they consider is best able to advise them as to whether the schedule should be updated. If the Secretary of State or Welsh Ministers decide to make a relevant amendment to a schedule that is not in line with the advice of the relevant advisory body, they should be under an express duty to make a statement giving reasons for that decision.

    
    

    Recommendations

    
    

    Recommendation 13: we recommend that when updating the schedules of the new regulatory framework outside the quinquennial review process, the Secretary of State or Welsh Ministers should consult whichever ones of the advisory bodies they consider is best able to advise them as to whether the schedule should be updated.

    
    

    This recommendation is given effect in the draft Bill by clauses 159 and 160.

    
    

    Recommendation 14: we recommend that if the Secretary of State or Welsh Ministers decide not to follow the advice of the relevant advisory body, they should have a duty to make a statement giving reasons for that decision.

    
    

    This recommendation is given effect in the draft Bill by clauses 159(5) and (6).

    
    

    Criteria for adding or removing entries to the relevant schedules

34. Currently the power to amend certain schedules is restricted by statutory criteria. In reviewing the existing procedures to update schedules, we considered whether retaining those criteria would undesirably restrict the flexibility of the new framework.

    
    

35. Section 22(3)(a) of the Wildlife and Countryside Act 1981 currently provides that the Secretary of State or Welsh Ministers may only add to schedules 5 or 8 an animal or plant which, in their opinion, is in danger of extinction in Great Britain or is likely to become so endangered unless conservation measures are taken.55 A species may only be removed from schedule 5 or 8 if, in the opinion of the Secretary of State or Welsh Ministers that species is no longer so endangered, or likely to become so endangered.

    
    

36. An animal or, where relevant, a plant may otherwise be added to or removed from schedules 5, 6 or 8 for the purpose of complying with an international obligation.56

    
    

    55 Schs 5 and 8 to the Wildlife and Countryside Act 1981 include, respectively, animal and plant species protected for domestic conservation policy reasons.

    56 Wildlife and Countryside Act 1981, s 22(4). Sch 6 lists animal species protected against prohibited means of killing or capture.

37. In line with our policy of enhancing the flexibility of wildlife law, we have concluded that some of the conditions in sections 22(3) and 22(4) of the 1981 Act should be removed.

    
    

    Schedules 5 and 8 to the Wildlife and Countryside Act 1981

38. Our view is that the Secretary of State or Welsh Ministers should be able to list animals and plants in the schedules replicating schedules 5 and 8 to the Wildlife and Countryside Act 1981 for reasons other than the risk of extinction of a species. It should be possible, for instance, to protect an animal or plant because it is an essential component of an ecosystem and the exploitation of that animal or plant threatens the ecological balance of a certain habitat. We think, therefore, that the current restriction unnecessarily prevents the development of different criteria in the future.

    
    

39. As a result, we have concluded that the Secretary of State or Welsh Ministers should be able to add any animal or plant to the above schedules for any reason.

    
    

40. We have concluded, however, that the Secretary of State or Welsh Ministers should not be able to remove an animal or plant from those schedules unless in their opinion:

    
    

    1. the animal or plant is not endangered or unlikely to become endangered;

       
       

    2. the listing of that animal or plant in a schedule is unnecessary for the protection of the animal or plant in question (by reason of an equivalent entry added, or proposed to be added, to any other schedule); or

       
       

    3. the removal of the plant or animal from that schedule is necessary in order to comply with an international obligation.57

       
       

41. The reason behind this approach is that removing the first precondition would constitute a policy shift that arguably goes beyond the scope of the Law Commission’s review of this area of law. The problem with retaining that as the sole precondition, however, is that it could prevent the Secretary of State or Welsh Ministers from moving an endangered species from the above schedules to schedules affording a higher level of protection. Retaining the possibility to remove an animal from the relevant schedules so as to comply with an international obligation, or by reason of another entry added, or proposed to be added, to another schedule will make sure that an animal or plant species that becomes protected by an international agreement, or an animal or plant species that requires a higher level of protection, may be moved into a different protection regime, such as the provisions of the new framework that give effect to articles 12 and 13 of the Habitats Directive.

    
    

    57 A species may already be added or removed from those schedules for the purpose of complying with an EU obligation through an order issued under s 2(2) of the European Communities Act 1972.

    Recommendations

    
    

    Recommendation 15: we recommend that the Secretary of State or Welsh Ministers should be able to add species to the schedules replicating schedules 5 and 8 to the Wildlife and Countryside Act 1981 for any reason. Species should only be capable of being removed if, in their opinion:

    
    

    1. the animal or plant is not endangered or unlikely to become endangered;

       
       

    2. the listing of that animal or plant in a schedule is unnecessary for the protection of the animal or plant in question (by reason of an equivalent entry added, or proposed to be added, to any other schedule); or

       
       

    3. the removal of the plant or animal from that schedule is necessary in order to comply with an international obligation.

    
    

    This recommendation is given effect in the draft Bill by clause 160(8).

    
    

    Schedule 6 and the lists of prohibited methods of killing or capture

42. We have concluded that the current restriction on the review of schedule 6 to the 1981 Act (it may only be updated in pursuance of an international obligation) is anomalous and overly restrictive. An animal should be capable of being protected from prohibited methods of killing or capture for conservation or animal welfare reasons that are unconnected to the UK’s international obligations.

    
    

43. We have also noted that similar restrictions apply in connection to the power to update the list of prohibited methods and means under sections 5 and 11 of the 1981 Act.

    
    

44. Currently the Secretary of State or Welsh Ministers may update the list of prohibited methods of killing or capture of wild birds for any reason. This power, however, may not be exercised in respect of methods involving a firearm save for the purpose of complying with an international obligation.58

    
    

45. The power to alter the list of prohibited methods of killing or capturing protected wild animals other than birds may only be exercised for the purpose of complying with an international obligation.59

    
    

46. Orders amending the above lists, in addition, are subject to the affirmative resolution procedure. In other words, an order amending the lists does not come into force unless a draft of the order has been laid before and approved by a resolution of each House of Parliament (if the order was made by the Secretary of State) or laid before and approved by a resolution of the Welsh Assembly (if the order was made by the Welsh Ministers).

    
    

    58 Wildlife and Countryside Act 1981, ss 5(2) and (3). In practice the power to remove any prohibited method from that list is significantly restricted by EU law, on the basis that the list of prohibited methods constitutes the domestic transposition of art 8 (read together with annex 4) of Directive 2009/147/EC.

    59 Wildlife and Countryside Act 1981, s 11(4).

47. We have concluded that the substantive restrictions on the exercise of the power to amend the lists of prohibited methods in connection with wild birds and protected wild animals other than birds unnecessarily restrict the scope to add prohibited methods of killing or capture for domestic conservation or animal welfare reasons. The Secretary of State or Welsh Ministers, in other words, should be able to update the list of prohibited methods for any reason. Their discretion, in any event, is already significantly fettered by article 8 of the Wild Birds Directive, article 15 of the Habitats Directive and other EU obligations.

    
    

48. Similarly, the procedural requirement for an affirmative resolution under section 26(3) of the 1981 Act is, in our view, anomalous and unnecessary. There is no reason why the addition or removal of a prohibited method from a list should involve a more stringent procedure than the addition or removal of a species from a schedule. In line with our general policy, therefore, amendments to schedules containing methods and means should be conducted under the same procedure as currently applies in connection with all the other schedules.

    
    

    Recommendations

    
    

    Recommendation 16: we recommend that the Secretary of State or Welsh Ministers should have the power to alter schedules containing prohibited methods of killing or capture of animals for any reason and in accordance with the standard procedure prescribed by section 26 of the Wildlife and Countryside Act 1981.

    
    

    This recommendation is given effect in the draft Bill by clause 160.

    
    

    Emergency listing of invasive non-native species

49. Invasive non-native species are considered to be one of the main drivers of biodiversity loss across the globe.60 As we explored at length in our Report on the control of invasive non-native species,61 while only a fraction of non-native species turn out to be invasive, all species which establish themselves in a new area outside their natural range carry the threat of causing harm to local biodiversity and other environmental, social or economic interests.62 Because of the tendency of invasive non-native species to propagate rapidly, the scale and costs of eradication programmes may increase significantly if quick preventive measures are not adopted.

    
    

50. In the consultation paper, therefore, we provisionally proposed that there should be a mechanism allowing for the emergency listing of invasive non-native species in the schedule to the Wildlife Bill that replaces schedule 9 to the Wildlife and Countryside Act 1981.

    
    

    60 Sixth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, 7 to 19 April 2002 – The Hague, Netherlands, Decision VI/23.

    61 Wildlife Law: Control of Invasive Non-native Species (2014) Law Com No 342.

    62 F Williams and others, The Economic Cost of Invasive Non-native Species on Great Britain

    (2010), p 11.

    Current law

51. Section 14(1) of the Wildlife and Countryside Act 1981 (the 1981 Act) makes it an offence for a person to release or allow to escape into the wild any animal which is of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in the wild state or is included in part 1 of schedule 9 to the 1981 Act. Part

    1 of schedule 9, therefore, primarily lists animals (native or non-native) that should not be released in the wild even if they are already “ordinarily resident” in Great Britain.

    
    

52. Section 14(2) of the 1981 Act makes it an offence to plant or cause to grow in the wild any plant included in part 2 of schedule 9.

    
    

53. Currently the Secretary of State or Welsh Ministers may update part 1 or 2 of schedule 9 for any reason.63 The order-making procedure to update schedule 9 is currently in line with the general procedure that we have recommended in the section above.64

    
    

    Discussion

54. Despite the broad support in consultation for the provisional proposal to create a mechanism to “emergency list” potential invasive non-native species in schedule 9, we have decided not to pursue this proposal for three interrelated reasons.

    
    

55. The first reason why we concluded that an “emergency listing” mechanism would not be necessary is that – after giving further thought to the existing procedure for updating schedules – it does not appear to us that the current statutory procedure is incapable of accommodating emergency situations. Section 26 of the Wildlife and Countryside Act 1981 does not prescribe a particular timeframe for consulting local authorities and other interested parties. The timeframe for complying with the consultation requirement under section 26(4) of the 1981 Act, therefore, is subject only to general public law principles of fairness. While “adequate time” should be given to ensure that consultees have a realistic opportunity to respond,65 the urgency of the situation is a relevant factor in considering the adequacy of the timeframe of a consultation requirement.66

    
    

    63 Wildlife and Countryside Act 1981, s 22(5).

    64 Wildlife and Countryside Act 1981, s 26.

    65 R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, at [108].

    66 See, for instance, R (on the application of Anvac Chemical UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2001] EWHC Admin 1011, [2002] ACD 34 (while a period of 2 days was held to be too short, the urgency of the situation prior to suspension of use of a pesticide was taken into consideration).

56. As discussed in Chapter 4 below, a statutory emergency procedure – such as the one currently used for extending the close season for huntable wild birds for a maximum of 14 days – may be necessary to respond quickly to immediate, unforeseeable threats. In the context of invasive non-native species, however, nothing prevents the Secretary of State or Welsh Ministers from taking a more pre-emptive approach to schedule 9 and expressly prohibiting the release of animals or plants that are either not yet present in Great Britain or that are present in Great Britain and may create threats in the future if uncontrolled. An emergency listing procedure would carry the risk of removing the incentive for taking a precautionary approach to the listing of species of concern.

    
    

57. Lastly, criminalising the release of a non-native species, in many cases, may not necessarily constitute a very effective measure to react to an “urgent” threat. This is because in most cases a situation will be “urgent” either because of there is imminent risk that a species is likely to be introduced in Great Britain or because the relevant species has already been introduced and is causing extensive damage. In the first case, effective measures to react to the threat of introduction would more likely include the use of powers to ban the import or the possession of the relevant species, together with the introduction of effective controls to enforce the relevant bans; in the second case more effective measures would include, among other things, the issuing of emergency species control orders for the purpose of eradicating or controlling the spread of the relevant species.

    
    

    GENERAL POWER TO INTRODUCE CLOSE SEASONS

58. While activities that interfere with many endangered or threatened species tend to be generally prohibited throughout the year unless expressly authorised by a licence, a number of species that are commonly hunted are currently protected by provisions restricting the period during which they may be killed or captured.

    
    

59. As we explored in the consultation paper, close seasons may be imposed for a number of different reasons. A close season may be imposed for animal welfare reasons, on the basis that during certain periods of the year the young of a huntable animal may starve if the mother is killed. Close seasons also have a role in population maintenance, as the protection of a species during the breeding and rearing season is a way of preventing hunting activities from having an unsustainable impact on population numbers. Close seasons may also be used as part of a comprehensive species management programme. Lengthening the close season of a species and reducing it for another similar species may give an advantage to the former.

    
    

    International and EU obligations

60. A number of international and EU instruments provide for the introduction of close seasons for the purpose of ensuring that the exploitation of certain animals is carried out in a sustainable way.

    Bern Convention

61. Article 7 of the Bern Convention provides that each contracting party should take appropriate and necessary legislative and administrative measures to ensure the protection of the wild fauna species specified in appendix 3. Any exploitation of wild fauna specified in appendix 3, in addition, should be regulated in order to keep the populations out of danger, taking into account the requirements of article 2 of that Convention. Measures to be taken in accordance with this article should include, but are not limited to:

    
    

    1. close seasons and/or other procedures regulating the exploitation;

       
       

    2. the temporary or local prohibition of exploitation, as appropriate, in order to restore satisfactory population levels;

       
       

    3. the regulation as appropriate of sale, keeping for sale, transport for sale or offering for sale of live and dead wild animals.

       
       

62. Appendix 3 includes all species of deer, the brown hare, the mountain hare, a number of species of seal and almost all birds that are not listed in appendix 2.67

    
    

    Wild Birds Directive

63. The Wild Birds Directive, broadly speaking, provides that species of birds listed in annex 2 to the Directive may be hunted in member states as long as the domestic regulation of hunting is compliant with the principles of “wise use” and “ecologically balanced control” and does not take place during the rearing season, the various stages of reproduction and – in the case of migratory birds – during their return to their rearing grounds.

    
    

    Habitats Directive

64. As discussed above, the Habitats Directive imposes a number of surveillance obligations.68 Article 14, in addition, specifically provides that if in the light of the surveillance provided for in article 11 member states deem it necessary, they should take measures to ensure that the taking and exploitation of wild specimens of species of fauna and flora listed in annex 5 to the Directive is compatible with their being maintained at a favourable conservation status. Such measures may include, among other things, the introduction of close seasons.

    
    

65. Species listed in annex 5 include the mountain hare and all species of seal that have a natural range that includes Great Britain.

    
    

    Current close seasons and prohibited periods in domestic law

66. Domestic law currently imposes statutory close seasons in connection with a number of huntable species.

    
    

    67 Appendix 2 to the Bern Convention lists the species that fall within the strict protection regime of the Convention.

    68 See, in particular, Directive 92/43/EEC, art 11.

67. The Wildlife and Countryside Act 1981 allows the killing and capture of wild bird species listed in part 1 of schedule 2 to the Act outside the close season.69 The close season for particular species can be varied by an order made under sections 2(5) and 26 of the 1981 Act. However, there is no power to amend the “default” close seasons that apply under the Act in the absence of a variation order.

    
    

68. One of the main functions of the Game Act 1831 is to prohibit the killing or taking of game birds70 during the prescribed close seasons defined in the statute. For example, the close season for partridge is “between the first day of February and the first day of September in any year” and for pheasant is “between the first day of February and the first day of October in any year”. For reasons which may not necessarily be relevant to the twenty-first century, the Game Act 1831 also prohibits the killing or capture of game birds and hares on a Sunday and on Christmas day.71

    
    

69. The Conservation of Seals Act 1970 establishes close seasons for common and grey seals, making it an offence to kill those seals during their close season.72 The Secretary of State or Welsh Ministers may make orders prohibiting the killing of seals at other times.73 However, there is no power to amend the statutory close season.

    
    

70. The Deer Act 1991 similarly regulates the killing and capture of deer through close seasons. It is an offence to kill or take certain deer listed in schedule 1 to the Deer Act during the close season prescribed in the schedule.74 There is, again, no power in the Deer Act 1991 to vary schedule 1.75 Section 3 of the Act also generally prohibits the killing of any deer at night.

    
    

    Discussion

71. In the consultation paper, we provisionally proposed that there should be a general power to introduce, remove or amend close seasons by order.76

    
    

    69 Wildlife and Countryside Act 1981, s 2(1). The close seasons are listed in s 2(4) of Wildlife and Countryside Act 1981.

    70 Game birds protected by s 3 of the Game Act 1831 are pheasants, partridges, grouse, heath or moor game, and black game.

    71 Game Act 1831, s 3.

    72 Conservation of Seals Act 1970, s 2.

    73 Conservation of Seals Act 1970, ss 2 and 3.

    74 Deer Act 1991, s 2.

    75 The close seasons for deer were last amended by the Regulatory Reform (Deer) (England and Wales) Order 2007, SI 2007 No 2183.

    76 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 5- 12.

72. We thought that such a power would be useful for two reasons. First, existing close seasons for game species can only be altered by an Act of Parliament. This does not seem either sensible or sufficiently flexible to ensure that the close season set in the face of the statute reflects the conservation or welfare needs of the species in question. Secondly, it may well be necessary in the future to impose a close season on a species that does not currently have one. Effective measures – including the introduction of close seasons – to ensure that the population of certain species is maintained at a favourable conservation status, for instance, are expressly required by article 7 of the Bern Convention and article 14 of the Habitats Directive.

    
    

    Close seasons for wild birds protected by the Wild Birds Directive

73. Article 7 of the Wild Birds Directive is significantly more prescriptive than article 7 of the Bern Convention and article 14 of the Habitats Directive. As a result, the adequacy of the current domestic transposition of article 7 through statutory close seasons was discussed at length in a separate section of the consultation paper.77 Given the specificity of the hunting regime for wild birds required by the Wild Birds Directive, the reform of close seasons for huntable wild birds listed in annex 2 to the Directive is discussed in a separate section in Chapter 4 of this Report.

    
    

    Power to introduce close seasons for animals other than wild birds protected by the Wild Birds Directive

74. Consultees, including Defra and Natural England, generally expressed strong support for the proposal to introduce a general power to introduce, remove or alter close seasons. We have concluded, therefore, that under the new framework there should be a general power to introduce, remove or alter close seasons in any specified area and for any animal, other than wild birds listed in annex 2 to the Wild Birds Directive.

    
    

75. The close seasons that currently apply to deer and seals should, we consider, be brought into this regime. The hunting of wild birds falling within the scope of the Wild Birds Directive, as discussed above, will be subject to a specific regime to give effect to article 7 of the Wild Birds Directive in domestic legislation. We propose that the new order-making power be available for the purpose of protecting birds that fall outside the protection regime of the Wild Birds Directive.78

    
    

    77 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 6.83 to 6.101.

    78 The scope of the Wild Birds Directive protection regime is discussed in detail in Chapter 4 below.

76. We have noted that the killing or capture of deer and hares is also generally prohibited during shorter timeframes. As mentioned above, hares may not be killed on a Sunday or Christmas day; deer may not be killed at night. In line with our general policy of retaining existing species protection levels, we have concluded that – whether or not the protection of hares on Sunday and on Christmas day reflects existing conservation needs – these prohibited periods should be replicated in the new framework. In line with our policy to create a general power to introduce, remove or alter close seasons, we are recommending that under the new framework there should be a parallel power to introduce, remove or alter shorter “prohibited periods” for the purpose of protecting any animal other than a bird protected by the Wild Birds Directive.

    
    

77. The schedules listing close seasons, prohibited periods and the animals to which they apply should be subject to the same procedure as applies to the review of all other relevant schedules to the Wildlife Bill. It follows that close seasons should be subject to the quinquennial review carried out by the GB conservation bodies acting through the Joint Nature Conservation Committee (JNCC). The Secretary of State or Welsh Ministers may, alternatively, alter the above lists of their own motion after having complied with the consultation requirements described above in this Chapter.

    
    

78. In consultation, both conservation and pro-hunting groups raised concerns about the risk that the power to alter close seasons may be used to further the political objectives of a particular group rather than being exercised according to a sound set of principles.

    
    

79. It is worth noting that the exercise of the power to introduce close seasons will be, in practice, underpinned by the surveillance obligations and conservation imperatives flowing from articles 11 and 14 of the Habitats Directive. In line with article 14 of the Habitats Directive, the Secretary of State and Welsh Ministers will have to ensure that – in the light of the surveillance programmes required by article 11 – effective measures are taken to ensure that the exploitation of such specimens is compatible with the maintenance of that species at a favourable conservation status. The introduction or amendment of a close season or prohibited period will clearly be measures that the Secretary of State or Welsh Ministers will have to consider to ensure compliance with the above obligation.

    
    

80. In addition, because any decision to impose a close season would have to go through the same order-making process that applies to the amendment of any other schedule under the new Act, there will be ample opportunity for the views of interested parties to be considered and taken into account. As the Secretary of State and Welsh Ministers will be under an express obligation to give reasons in the event they decide not to follow the expert advice from the relevant conservation bodies (the JNCC, Natural England or Natural Resources Wales), we expect that any decision to depart from the scientific advice will be based on sound principled reasons.

    Recommendations

    
    

    Recommendation 17: we recommend that under the new regulatory framework the Secretary of State or Welsh Ministers should have the power to introduce, alter or remove close seasons or prohibited periods by regulation in connection with any animal species (other than a bird listed in annex 2 to the Wild Birds Directive).

    
    

    Recommendation 18: we recommend that the power to introduce, alter or remove close seasons should be capable of being exercised in relation to specific areas in England and Wales.

    
    

    Recommendation 19: we recommend that the existing close seasons and prohibited periods in connection with animals (other than birds) should be replicated under the new regulatory framework and subjected to the same regulation-making powers.

    
    

    These recommendations are given effect in the draft Bill by clause 160.

    
    

    Other powers to introduce temporal or geographical restrictions

    
    

    Areas of special protection

81. Under section 3 of the Wildlife and Countryside Act 1981 (the 1981 Act) the Secretary of State or Welsh Ministers may designate – with the consent of the owners and occupiers of the land in question – “areas of special protection” for any wild bird. This power replicates the effect of section 3 of the Protection of Birds Act 1954 (the 1954 Act), which provided the Secretary of State with the power to create “bird sanctuaries”.

    
    

82. The creation of areas of special protection allows the Secretary of State or Welsh Ministers to prohibit the killing, capture or disturbance of wild birds during times of the year when doing so would not otherwise be an offence under section 1 of the 1981 Act.79 Most importantly, section 3 of the 1981 Act provides the Secretary of State or Welsh Ministers with the power to prohibit or regulate the access to any relevant area of special protection.80

    
    

83. Section 3 of the Conservation of Seals Act 1970 (the 1970 Act), similarly, allows the Secretary of State or Welsh Ministers to make orders prohibiting the killing or capture of grey or common seals in particular geographical areas.

    
    

    79 Wildlife and Countryside Act 1981, s 3(1)(a).

    80 Wildlife and Countryside Act 1981, s 3(1)(b).

84. Whilst a relatively large number of “areas of special protection” for birds (or “bird sanctuaries”) have been established through orders issued under sections 3 of the 1954 and the 1981 Acts,81 the last time an area was designated as an area of special protection in pursuance of an order issued under section 3 of the 1981 Act was in 1995.82 As we have not consulted on the extent to which the power under section 3 of the 1981 Act may still be of use in the future,83 we have concluded, on balance, that it should be retained under the new framework. As discussed in Chapter 4, however, other than regulating the access to particular areas, hunting regulations that may be issued under the new framework will be capable of imposing different restrictions in connection with different areas of England and Wales. We suggest, therefore, that consideration should be given as to whether retaining a power replicating the effect of section 3 of the 1981 Act would add anything useful to the new regulatory regime.

    
    

85. In line with our general policy of improving the flexibility of the existing regulatory regime, we have concluded that the effect of section 3 of the 1970 Act should be replicated under the new framework by providing the Secretary of State or Welsh Ministers with the power to prohibit the capture, killing or injuring of any wild animal in a geographical area designated by the Secretary of State or Welsh Ministers by regulations.

    
    

    Recommendations

    
    

    Recommendation 20: we recommend that the power to create areas of special protection for wild birds under section 3 of the Wildlife and Countryside Act 1981 should be replicated under the new framework.

    
    

    This recommendation is given effect in the draft Bill by clauses 18 and 19.

    
    

    Recommendation 21: we recommend that in the light of our recommendations on the reform of the powers to regulate hunting activities in connection with wild birds, consideration should be given as to whether retaining a power replicating the effect of section 3 of the 1981 Act adds anything useful to the new regulatory regime.

    
    

    Recommendation 22: we recommend that the effect of section 3 of the Conservation of Seals Act 1970 should be replaced by a general power to prohibit, by regulation, the killing, capturing or injuring of any wild animal in a particular geographical area.

    
    

    This recommendation is given effect in the draft Bill by clauses 60 and 160(1).

    
    

    81 Since 1954 more than thirty bird sanctuaries have been designated in England and Wales through the above order-making power.

    82 The Gibraltar Point (Area of Special Protection) Order 1995, SI 1995 No 2876.

    83 It is worth noting that s 3 of the Wildlife and Countryside Act 1981, insofar as it applied to Scotland, was recently repealed by the Wildlife and Natural Environment (Scotland) Act 2011, s 4(2).

    Power to prohibit the use of particular methods of killing or capture in certain areas or times of the year

86. To ensure that the new regulatory framework is flexible enough to effectively accommodate future policy preferences, we have concluded that it should also be possible to restrict the application of a ban on the use of a particular method of killing, injuring or capturing to particular geographical areas or particular periods of time. The use of a particular method could be indiscriminate, or capable of causing serious disturbance to the local population of a protected species, only when used in a certain area, during a particular time of the day or during a particular period of the year.

    
    

87. We have concluded, therefore, that under the new framework the Secretary of State or Welsh Ministers should have the power to prohibit the use of a particular method of killing, injuring or capturing a protected species with respect to particular areas of England and Wales, particular times of the day or particular times of the year.

    
    

    Recommendations

    
    

    Recommendation 23: we recommend that the Secretary of State or Welsh Ministers should have the power to prohibit the use of a particular method of killing, injuring or capturing a protected species with respect to particular areas of England and Wales, particular times of the day or particular times of the year.

    
    

    This recommendation is given effect in the draft Bill by clause 160(1) and (4).

    
    

    NOMENCLATURE

88. In consultation meetings and in a number of consultation responses, problems were identified with listing species by name, on the basis that the name of a protected species could change as a result of a species being re-categorised in the light of subsequent scientific findings.

    
    

89. The effect of a “split” in the taxonomic classification of a species is that specimens that were thought to be part of the same species are subsequently re- categorised as belonging to two or more different species. Species may also be “joined”; in other words, specimens previously thought of as belonging to different species are subsequently re-categorised as belonging to the same species.

    
    

90. In this context, a number of stakeholders suggested that the effect of the re- classifications of a species in scientific literature on the legal protection of a listed species is far from clear. In simpler terms, if a protected species A is subsequently reclassified in scientific literature as species A and B, would specimens belonging to species B continue to be protected? Similarly, if unprotected species C is joined with protected species A, would specimens belonging to species C be protected?

91. Given the absence of an internationally recognised body which has the final word as to the taxonomic classification of all animal and plant species, a certain degree of fluidity in species classification is inevitable. For long periods of time, scientific opinion may also be split. As a result, we have taken the view that it would almost certainly be the case that a domestic court interpreting a wildlife statute would interpret the name of a listed species as referring to all specimens covered by that name at the time of listing, whatever their current classification, as doing otherwise would cause potential legal uncertainty or fail to give effect to the intention of Parliament.

    
    

92. We considered whether the creation of an express statutory presumption clarifying that a species should be interpreted by reference to the body of scientific opinion at the time the species was listed, or by reference to the last time the species list was reviewed by the Joint Nature Conservation Committee (JNCC), could bring added clarity to the new framework. We concluded, on balance, that a statutory presumption to that effect could potentially create more problems than it solves, particularly in cases where a list of protected species includes species protected by the Habitats or Wild Birds Directive.

    
    

93. As the Court of Justice of the European Union confirmed in Waddenzee,84 for example, the Habitats Directive and, by analogy, the Wild Birds Directive must be interpreted by reference to the precautionary principle.85 While the application of the precautionary principle in this context has never been tested, it cannot be excluded that the Court of Justice might come to the conclusion that, in all cases where there is scientific uncertainty as to the identification of a species protected by the Habitats or Wild Birds Directive, member states should interpret the name of the relevant species by reference to its broadest meaning. This approach could potentially clash with the pragmatic approach that a domestic court may adopt in cases covering species protected for domestic reasons.

    
    

94. In the light of the obligation to review all relevant schedules of the Wildlife Bill every five years, our view is that it will be unlikely that the problems described above will materialise on a regular basis under the new framework. Whenever they materialise, the starting point is that it should be the responsibility of the Secretary of State and Welsh Ministers to amend the schedules to clarify whether additional species should be added or removed in the light of recent taxonomic reclassifications.

84 Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405 at [44].

85 Treaty on the Functioning of the European Union, art 191(2).

CHAPTER 3

PROHIBITED CONDUCT: CORE INTERNATIONAL AND EU OBLIGATIONS

INTRODUCTION

1. As mentioned in the chapters above, a significant proportion of domestic wildlife law is underpinned by international and EU law rules. As discussed in this and the following chapters, however, the current transposition of the United Kingdom’s external1 obligations in England and Wales remains unsatisfactory in certain areas of wildlife law. This has come about, in part, through the use of outdated regulatory structures and definitions to transpose new regulatory regimes and in part, through a failure to keep the law up to date with the case-law of the Court of Justice of the European Union and other relevant developments at international and EU level. While some inadequate transpositions of international and EU obligations arise for technical reasons that have little substantive policy impact, other transposition gaps have a significant effect on the domestic level of protection of a number of species.

   
   

2. At the other end of the spectrum, the domestic regulation of certain activities within the scope of the UK’s international and EU obligations is unnecessarily inflexible or more stringent than is required by the external standards which the UK is required to give effect to. While the protection of certain animals to an extent going beyond international requirements is often the result of clear domestic policy choices, the current inability, for instance, to license the killing or capture of game birds during the close season appears to be simply an anomaly. Similarly, the current definition of “wild bird” in section 1 of the Wildlife and Countryside Act 1981 protects a number of non-native birds that may in fact require control or eradication measures. As discussed in Chapter 4 below, the automatic protection of potentially invasive birds is not required by the Wild Birds Directive and is not necessarily the most effective way to accommodate domestic protection preferences in connection with non-native birds.

   
   

3. Given the range of transposition issues that we have encountered in domestic legislation, a significant part of this reform project has been dedicated to ensuring that the new recommended framework gives effect to the UK’s obligations under international and EU law in a clear, consistent and effective manner.

   
   

   1 We use the term “external” to refer to obligations arising as a matter of international (including EU) law; we use the term “domestic” to refer to obligations or policies that are internal to the United Kingdom. Though EU law is a form of international law, it is necessary to distinguish between obligations arising as a matter of EU law and those arising as a matter of other international law instruments such as the various international conventions referred to in this Chapter. We therefore use the term “international law” to refer to international law apart from EU law.

4. While the usual approach to the transposition of EU directives in England and Wales is, save in exceptional circumstances, to “copy-out” the requirements of the directives,2 in this report we have taken a more strategic and comprehensive approach to the transposition of EU law. The Law Commission’s role is to keep the law under review with a view, in particular, to making recommendations for the purpose of simplifying and modernising it.3 Modern and simple legislation needs to be accessible, effective and enforceable. Those principles also apply to the transposition of EU directives. We have followed a “copy-out” approach to transposition, therefore, only when we considered it the most effective, accessible and simple means of transposing the obligations of the directives; in other cases we have sought to encapsulate the requirements of a directive in more accessible language.

   
   

5. In this Chapter we make recommendations on the most appropriate way to transpose in domestic legislation some of the core external obligations that are common to the Wild Birds Directive, the Habitats Directive and the Bern Convention. The first part of this Chapter provides a general summary of the core substantive protection provisions under relevant international agreements and EU directives.

   
   

6. The second part of this Chapter discusses in more detail three complex transposition issues: the extent of the UK’s obligations under EU law arising out of the Bern Convention; the correct mental element in criminal offences concerned with wildlife to give effect to the Court of Justice’s case law on the meaning of the word “deliberate” in the context of the Habitats and Wild Birds Directives; and the prohibitions connected to the disturbance and harassment of protected wild flora species.

   
   

7. Specific transposition issues connected with the domestic protection of wild birds, wild animals other than birds and wild plants respectively are discussed in Chapters 4, 5 and 6 of this report.

   
   

   2 HM Government Transposition Guidance: How to Implement European Directives Effectively (2013), para 1.3. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/229763/bis- 13-775-transposition-guidance-how-to-implement-european-directives-effectively- revised.pdf (last visited 26 October 2015).

   3 Law Commissions Act 1965, s 3(1).

   CORE INTERNATIONAL AND EU OBLIGATIONS

   
   

   European environmental policy

8. The United Nations Conference on the Human Environment held in Stockholm in 1972 culminated in the Stockholm Declaration, affirming that “man has acquired the power to transform his environment … on an unprecedented scale” and that “the protection and improvement of the human environment is a major issue which affects the well-being of people and economic development throughout the world”. The declaration was accompanied by statements of principle and an action plan. Later that year the heads of state or government of the European Economic Community (which later became known as the European Union) plus the acceding member states (Denmark, Ireland and the UK) issued a communiqué – the “Paris Declaration” – inviting the Community institutions to establish a programme of environmental action.4

   
   

9. In November 1973 the European Council and the member states published a first programme of action of the Communities on the environment,5 followed by a second programme in May 19776 and a third in December 1987,7 together with an additional action programme on marine pollution by hydrocarbons.8

   
   

   EU environmental competence

10. At that time, the Treaty establishing the European Economic Community (the EEC Treaty) contained no provision empowering the Community to take action in relation to the environment as such. The declaration on the first environmental action programme referred only to the then article 2 of the EEC Treaty, which defined the Community’s task as including promoting “a harmonious development of economic activities” and “a continuous and balanced expansion”. The legislative content9 of the environmental programmes depended on a miscellany of existing treaty powers in fields such as agriculture, regional, social and transport policy and what came later to be known as the “single market”. The only single market power that existed at that stage was article 100 EEC (which survives as article 115 of the Treaty of the Functioning of the European Union), giving the European Council, acting unanimously, power to enact Directives harmonising national laws that “directly affect the establishment or functioning of the common market”.

    
    

11. Legislation could also be enacted under the reserve power then contained in article 235 (now article 352 of the Treaty on the Functioning of the European Union) which empowers the European Council, acting unanimously, to take measures to “attain … one of the objectives of the Community” where “this Treaty has not provided the necessary powers”.

    
    

    4 See Halsbury's Laws of England, 3rd ed, Vol 51 European Communities (1986) para 8.02.

    5 Official Journal 1973 C 112/1.

    6 Official Journal 1977 C 139/1.

    7 Official Journal 1987 C 328/1.

    8 Official Journal 1978 C 162/1.

    9 Much of the programmes did not require legislation, having to do with studies of environmental impacts.

12. Explicit competence in environmental matters did not exist until the insertion of title 7, and articles 130r to 130t, into the EEC Treaty by the Single European Act of 1986.10 Following subsequent treaty changes, the environmental competence is currently located in Title 20, articles 191 to 193 of the Treaty on the Functioning of the European Union (TFEU), which are similar though not identical to the original provisions.

    
    

13. The provisions do not set out an environmental policy but provide for the formulation of policy. Article 191 of the TFEU states, among other things, the objectives to be pursued; article 191(4), which is materially identical to the original article 130r(5), requires the EU and the member states to cooperate with third countries and the competent international organisations and empowers the Union to make arrangements for such cooperation. This provision is expressed to be “without prejudice to member states’ competence to negotiate in international bodies and to conclude international agreements”, presumably to avoid any suggestion that participation in international environmental treaties has become an exclusive EU competence.

    
    

14. Article 192 TFEU empowers the European Parliament and Council to decide what action is to be taken by the EU to achieve the objectives of article 191, but reserves to the Council, acting unanimously, powers in areas including taxation, town and country planning and energy policy. The institutions are required to adopt general action programmes setting out priority objectives. The predecessor to article 192 was used as the legal basis for the Habitats Directive11 and the current version of the Wild Birds Directive.12

    
    

    EU Treaty-making powers

15. The original EEC Treaty contained procedural provisions governing the European Community’s entry into international agreements,13 but conferred few express treaty-making powers. Early case-law of the Court of Justice of the European Union developed what is sometimes called the in foro interno, in foro externo principle, which holds that member states lose their own treaty-making power (with the consequence that treaty-making power shifts to the EU) in areas where the EU has legislated internally, on the grounds that member states may no longer enter into international commitments that might impinge on the common internal rules.14

    
    

16. In areas in which Community treaty-making power could not be inferred because of the absence of internal legislative competence, the Community could enter into and ratify treaties pursuant to article 235 EEC (referred to in paragraph 3.11 above).

    
    

    10 Single European Act 1986, art 25.

    11 Directive 92/43/EEC, Official Journal L 206 of 22.07.1992 p 7.

    12 Directive 2009/147/EC, Official Journal L 020 of 26.1.2010, p 7. The original Wild Birds Directive, Directive 79/409/EEC, was based on article 235 of the EEC Treaty.

    13 Art 228, now art 218 TFEU.

    14 See Halsbury’s Laws of England, 3rd ed, Vol 51 European Communities (1986) paras 4.02 and 4.10.

17. A commonly used technique was the making of what came to be called “mixed agreements” to which the member states were parties along with the EEC and one or more third countries.15 This avoided the need to define the extent of the Community’s treaty-making power.16 In Ruling 1/78 on the mixed agreement provisions of the Euratom Treaty, the Court of Justice observed:

    
    

    It is further important to state, as was correctly pointed out by the Commission, that it is not necessary to set out and determine, as regards other parties to the convention, the division of powers in this respect between the Community and the Member States, particularly as it may change in the course of time. It is sufficient to state to the other contracting parties that the matter gives rise to a division of powers within the Community, it being understood that the exact nature of that division is a domestic question in which third parties have no need to intervene.17

    
    

    The relationship between international and EU obligations

18. Article 216 TFEU provides that “agreements concluded by the Union are binding upon the institutions of the Union and its member states”. Article 216 makes the European Union a “monist” jurisdiction, in which international agreements, when approved, automatically become part of the Union legal order. It follows that depending on the nature of the obligations,18 parts of the agreement, when ratified by the EU, may become directly applicable to Union institutions and member states without the need of any implementing instrument either at EU or member state level.19

    
    

    European treaties on environmental matters

19. Following the emergence of a Community policy and programme of action on the environment, the Community participated along with the member states in a number of treaties with third countries relating to pollution, wildlife and other environmental matters.

    
    

    15 Express provision for these was made in art 102 of the Euratom Treaty, though not in the EEC Treaty.

    16 Paragraph 4.10 of Halsbury’s Laws of England, 3rd ed, Vol 51 European Communities (1986) described mixed agreements as reflecting a wish to avoid discussion of the scope of the Community’s power and observed (in 1986) that “it remains to be seen whether this approach will actually solve problems or merely defer them”. The writer noted strong resistance on the part of the representatives of the Community to “attempts to have the division of powers dealt with explicitly in the text” of a mixed agreement.

    17 Case 1/78 [1978] ECR 2151, at [35].

    18 The international obligation must be clear and unambiguous.

    19 K Lenaerts and P Van Nuffel, European Union Law, (3rd ed 2011), pp 861-2; Case 181/73 Haegeman [1974] ECR 449, at [5]; Case 104/81 Kupferberg [1982] ECR 3641, at [11] to [13]; Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of the European Free Trade Association, on the other, relating to the creation of the European Economic Area [1991] ECR I-6079.

    Convention on the Conservation of European Wildlife and Natural Habitats

20. The Bern Convention is an international agreement for the conservation of fauna, flora and natural habitats. The European Economic Community participated in its negotiation.20 It entered into force on 1 September 1982 and was ratified in the same year by the United Kingdom and the European Economic Community. Other EU member states are also parties.

    
    

21. The Bern Convention is given effect in the EU legal order through the Wild Birds Directive and the Habitats Directive. As international law has primacy over secondary EU legislation, any discrepancy between the prohibitions under the Habitats and Wild Birds Directives on the one hand and the Bern Convention on the other hand, must be resolved in favour of the latter in the event that an obligation under the Convention is more extensive or stringent than the equivalent obligation under one of the Directives.21

    
    

    Core obligations under the Bern Convention

22. The Bern Convention provides for the “special protection” of a list of plants (appendix 1), wild birds and other wild animals (appendixes 2 and 3).

    
    

23. The basic obligation upon contracting states to prohibit certain activities that affect wild plants is contained in article 5 of the Convention, which provides that:

    
    

    Each contracting party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild flora species specified in appendix 1. Deliberate picking, collecting, cutting or uprooting of such plants shall be prohibited. Each contracting party shall, as appropriate, prohibit the possession or sale of these species.

    
    

24. The basic obligation upon contracting parties to prohibit certain activities that affect wild birds and other wild animals is contained in article 6, which provides that:

    
    

    Each contracting party shall take appropriate and necessary legislative and administrative measures to ensure the special protection of the wild fauna species specified in appendix 2. The following will in particular be prohibited for these species:

    
    

    1. all forms of deliberate capture and keeping and deliberate killing;

       
       

    2. the deliberate damage to or destruction of breeding or resting sites;

       
       

    3. the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant in relation to the objectives of this Convention;

       20 See the preamble to the Conservation of European Wildlife and Natural Habitats Decision 82/72/EEC, Official Journal L 38 of 10.2.1982, p 1.

       21 Case C-308/06 Intertanko [2008] ECR I-4057 at [42]; Case C-69/89 Nakajima [1991] ECR I-2069.

    4. the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty;

       
       

    5. the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof, where this would contribute to the effectiveness of the provisions of this article.

       
       

25. As discussed in Chapter 2, article 7 imposes a general obligation on contracting parties to take appropriate and necessary legislative and administrative measures to ensure the protection of wild fauna listed in appendix 3, regulating exploitation so as to keep the species out of danger.22

    
    

26. Article 8 generally prohibits the use of indiscriminate methods in connection with the killing or capture of fauna species listed in appendixes 223 and 3 to the Convention. Appendix 4 lists specific methods of killing or capturing wild animals that contracting parties must prohibit.

    
    

27. Article 9 allows for derogations from the protection provisions of the Convention for limited purposes. The transposition of this provision in domestic law is discussed in detail in Chapter 7.

    
    

    Other relevant international agreements

28. Beside the Bern Convention, there are at least three other international agreements that are relevant to the specific protection of wild animal species in England and Wales: the Bonn Convention, the Agreement on the Conservation of African-Eurasian Migratory Waterbirds and the Agreement on the Conservation of Albatrosses and Petrels.

    
    

    Bonn Convention

29. The Bonn Convention was ratified by the European Union in 198224 and entered into force in 1983. It was subsequently ratified by the UK in 1985.25 The Bonn Convention requires contracting parties that are “range states”26 of a migratory species listed in appendix 1 to prohibit the “taking” of them, defined as “taking, hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct”.27

    
    

    22 Chapter 2, para 2.111.

    23 To the extent that they may be taken or killed compatibly with the Convention, eg pursuant to an exception made by a contracting party pursuant to art 9.

    24 Conservation of Migratory Species of Wild Animals Decision 82/461/EEC, Official Journal L 2010 of 19.7.1982 p 1.

    25 See http://www.cms.int/about/partylist_e.pdf (last visited 26 October 2015).

    26 “Range” is defined in art 1 as “all the areas of land or water that a migratory species inhabits, stays in temporarily, crosses or overflies at any time on its normal migration route”. “Range state” means any state that exercises jurisdiction over any part of the range of that migratory species, or a state, flag vessels of which are engaged outside national jurisdictional limits in taking that migratory species.

    27 Bonn Convention, arts 1 and 3(5).

30. Appendix 1 to the Bonn Convention includes a number of species that have a natural range including the UK. As far as we are aware, most of them are already protected under domestic legislation and listed as protected species under the Habitats and Wild Birds Directives:

    
    

    1. the common sturgeon;

       
       

    2. the turtle (Caretta caretta);

       
       

    3. the basking shark;28

       
       

    4. the white-tailed eagle.29

    
    

31. Article 4(3) of the Bonn Convention also requires contracting parties that are range states of migratory species listed in appendix 2 to “endeavour to conclude agreements30 where these would benefit those species, giving priority to those species that have an unfavourable conservation status.”

    
    

32. That provision has led to a number of subsequent agreements concluded by “range states”, including the Agreement on the Conservation on African-Eurasian Migratory Waterbirds and the Agreement on the Conservation of Albatrosses and Petrels. The African-Eurasian Waterbirds Agreement was ratified by the UK and came into force in 1999.31 It was subsequently ratified by the European Union in

2006.32 The Agreement on the Conservation of Albatrosses and Petrels came into force in February 2004. It was subsequently ratified by the UK in July 2004 but has never been ratified by the EU.

Agreement on the Conservation of African-Eurasian Migratory Waterbirds

1. Article 3(2)(a) of the Agreement requires contracting parties to afford the same strict protection to “endangered” migratory waterbird species in the agreement area as is provided for under articles 3(4) and 3(5) of the Bonn Convention.33

   
   

   28 The EU entered a reservation as regards the listing of the basking shark in annex 1 to the Convention (the basking shark, in fact, is not currently protected under the Habitats Directive). As a result, the UK is only bound to protect the basking shark as a matter of international law. The basking shark is currently protected in domestic law by s 9 of the Wildlife and Countryside Act 1981.

   29 The white-tailed eagle has been re-introduced in Scotland.

   30 The Bonn Convention, art 1, provides that "agreement" means an international agreement relating to the conservation of one or more migratory species as provided for in arts 4 and 5 of the Convention.

   31 See http://www.minbuza.nl/en/key-topics/treaties/search-the-treaty- database/1996/8/007342.html (last visited 26 October 2015).

   32 The Agreement on the Conservation of African-Eurasian Migratory Waterbirds Decision 2006/871/EC, Official Journal L 345 of 8.12.2006 p 24.

   33 The Bonn Convention (which applies to the African-Eurasian Waterbirds Agreement by virtue of art 1(2) of the African-Eurasian Waterbirds Agreement), art 1, provides that "endangered" in relation to a particular migratory species means that the migratory species is in danger of extinction throughout all or a significant portion of its range.

2. Protected waterbirds listed in annex 2 to the Agreement include a number of birds that have a natural range including the UK. Those include, for example

   
   

   1. the mute swan;

      
      

   2. the barnacle goose;

      
      

   3. the mallard; and

      
      

   4. the Kentish plover.

      
      

3. However, only those that are listed in annex 2 and are endangered should be subjected to the strict protection obligations of article 3(2)(a) of the Agreement. The mallard, for instance, is not an endangered species.34 As a result the obligations under article 3(2)(a) do not apply to that species.

   
   

4. It is currently unclear to us whether any waterbird species listed in annex 2 to the African-Eurasian Waterbirds Agreement having a natural range including the UK are endangered so as to qualify for strict protection under article 3(2)(a).

   
   

   Agreement on the Conservation of Albatrosses and Petrels

5. The only wild bird covered by this convention that has a natural range including the United Kingdom, as far as we are aware, is the Balearic shearwater (Puffinus mauretanicus).35 The Balearic shearwater, having a natural range including the European territory of an EU member state, is also protected under the Wild Birds Directive.

   
   

6. Similarly to the Bonn Convention, article 3(2) of the Agreement requires contracting parties to prohibit the taking, hunting, fishing, capturing, harassing, deliberate killing or attempting to engage in any such conduct of, or other harmful interference with albatrosses and petrels, their eggs, or their breeding sites.

   
   

   The Habitats and Wild Birds Directives

7. In terms of wildlife protection, the UK’s core obligations under EU law derive from the Wild Birds Directive and the Habitats Directive. The species-specific protection provisions under the two directives have slightly different objectives.

   
   

8. Under the Wild Birds Directive, member states are required to establish a “general system of protection” for all wild bird species that occur naturally in the European territory of member states to which the TFEU applies.36 The protection provisions of the Habitats Directive have a narrower focus, requiring member states to establish a “strict system of protection” in connection with an exhaustive list of animal or plant species of concern.37

   
   

   34 The IUCN Red List of Threatened Species, available at http://www.iucnredlist.org/details/22680186/0 (last visited 26 October 2015).

   35 The IUCN Red List of Threatened Species, available at http://www.iucnredlist.org/details/22728432/0 (last visited 26 October 2015)

   36 Directive 2009/147/EC, art 5.

   37 Directive 92/43/EEC, art 12(1).

9. As further explored below, there are also important differences in the derogation regimes of the two directives. While the Habitats Directive expressly authorises member states to derogate from the strict protection provisions for reasons of “overriding public interest”, the same derogation ground is not available in connection with the general system of protection of wild birds. It follows that development and other key economic activities having direct effects on protected species, such as the operation of wind farms or railways, may be licensed when they are likely to affect species protected under the Habitats Directive but may not be licensed when they are likely to affect bird species generally protected under the Wild Birds Directive.

   
   

10. Despite the above structural differences, the Court of Justice and European Commission have generally considered the Habitats and Wild Birds Directives as “twins”, with case law from one Directive being regularly used to interpret obligations in the other.38 Both Directives, in fact, constitute the building blocks of the implementation of the Bern Convention in the EU legal order. The terminology used in the two directives, as a result, is extremely similar as in both cases it seeks to give effect to the same international obligations in connection with different species.

    
    

    The Wild Birds Directive

11. The Wild Birds Directive establishes a protection regime for “all species of naturally occurring birds in the wild state in the European territory of the member states to which the Treaty applies”.39

    
    

12. Under the Wild Birds Directive, member states have a general obligation to take the requisite measures to

    
    

    maintain the population of the species referred to in article 1 at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or to adapt the population of these species to that level.40

    
    

13. The application of those measures, as provided by article 13, may not lead to the deterioration of the current conservation status of the species of birds referred to in article 1.

    
    

14. The basic obligation to prohibit certain activities that affect wild birds is contained in article 5 of the Wild Birds Directive, which provides that

    
    

    Without prejudice to articles 7 and 9, member states shall take the requisite measures to establish a general system of protection for all species of birds referred to in article 1, prohibiting in particular:

    
    

    1. deliberate killing or capture by any method;

       
       

       38 See, for example, Case C-6/04 Commission v United Kingdom [2005] ECR I-9017.

       39 Directive 2009/147/EC, art 1.

       40 Directive 2009/147/EC, art 2.

    2. deliberate destruction of, or damage to, their nests and eggs or removal of their nests;

       
       

    3. taking their eggs in the wild and keeping these eggs even if empty;

       
       

    4. deliberate disturbance of these birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive;

       
       

    5. keeping birds of species the hunting and capture of which is prohibited.41

    
    

15. Article 6 prohibits trade in protected wild bird species, except for those listed in annex 3 to the Directive. In line with article 8 of the Bern Convention, article 8 of the Wild Birds Directive prohibits the use of indiscriminate methods in connection with the killing or capture of wild birds protected by the Directive.

    
    

16. Article 7 authorises the hunting of species listed in annex 2 to the Wild Birds Directive as long as hunting activities do not take place during the prescribed close seasons and comply with the principles of “wise use” and “ecologically balanced control”.

    
    

17. Article 9 allows for derogations. As highlighted above, for unclear reasons, the list of permitted derogations under the Wild Birds Directive is more restricted than the list of derogations authorised by article 9 of the Bern Convention, as the former does not allow member states to derogate from the general obligations of the Directive on the grounds of “overriding public interest”.

    
    

    The Habitats Directive

18. The aim of the Habitats Directive is to “contribute towards ensuring biodiversity through the conservation of natural habitats and of wild faunal and fauna in the European territory of member states to which the Treaty applies”.42

    
    

19. Similarly to the Wild Birds Directive, measures taken in pursuance of the Directive must be designed to “maintain or restore, at a favourable conservation status, natural habitats and species of wild fauna or flora of Community interest” and “shall take account of economic, social and cultural requirements and regional and local characteristics”.43

    
    

20. A similar provision to article 5 of the Wild Birds Directive is contained in article 12 of the Habitats Directive. Article 12(1) provides that

    
    

    Member states shall take the requisite measures to establish a system of strict protection for the animal species listed in annex 4(a) in their natural range, prohibiting:

    
    

    41 Directive 2009/147/EC, art 5.

    42 Directive 92/43/EEC, art 2(1).

    43 Directive 92/43/EEC, arts 1(2) and 1(3).

    1. all forms of deliberate capture or killing of specimens of these species in the wild;

       
       

    2. deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

       
       

    3. deliberate destruction or taking of eggs from the wild;

       
       

    4. deterioration or destruction of breeding sites or resting places.44

    
    

21. Article 12(2) prohibits the keeping of and trade in specimens of species listed in annex 4(a) to the Directive taken from the wild.

    
    

22. The Habitats Directive also protects certain plants. The activities that must be prohibited are specified in article 13(1) of the Directive, which provides that

    
    

    Member states shall take the requisite measures to establish a system of strict protection for the plant species listed in annex 4(b), prohibiting:

    
    

    (a) the deliberate picking, collecting, cutting, uprooting or destruction of such plants in their natural range in the wild.45

    
    

23. Annex 4(a) to the Habitats Directive contains a list of wild animal species of EU concern that require strict protection; annex 4(b) contains the same for wild plants.

    
    

24. In line with article 8 of the Bern Convention, article 15 of the Habitats Directive prohibits the use of indiscriminate means – including, in particular, the methods listed in annex 6 – capable of causing the local disappearance of or serious disturbance to wild fauna species listed in annexes 4(a) and 5 to the Directive.

    
    

25. Article 16 allows member states to derogate from the general prohibitions imposed by the Directive. The list of derogations, broadly speaking, is in line with article 9 of the Bern Convention and is discussed in Chapter 7 of this report.

    
    

    44 Directive 92/43/EEC, art 12(1).

    45 Directive 92/43/EEC, art 12(1).

    THE EXTENT OF THE UNITED KINGDOM’S EU LAW OBLIGATIONS ARISING OUT OF THE BERN CONVENTION

26. When implementing its instrument of ratification, the UK made a number of reservations, later amended by a letter of March 1987, in relation to the prohibitions in appendix 4 to the Bern Convention. Reservations currently relate to particular methods of killing and capture prohibited under appendix 4 in respect of hares, stoats, weasels, deer and seals. Several other states that already were or have subsequently become EU member states have signed or ratified the Bern Convention subject to reservations or have objected pursuant to article 17 of the Convention to additions of species to the appendices, with the result that the amendments do not apply to them.46

    
    

27. Reservations are entered pursuant to article 22 of the Convention, which provides that:

    
    

    1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, make one or more reservations regarding certain species specified in Appendices 1 to 3 and/or, for certain species mentioned in the reservation or reservations, regarding certain means or methods of killing, capture and other exploitation listed in Appendix 4. No reservations of a general nature may be made.

       
       

    2. Any Contracting Party which extends the application of this Convention to a territory mentioned in the declaration referred to in paragraph 2 of Article 21 may, in respect of the territory concerned, make one or more reservations in accordance with the provisions of the preceding paragraph.

       
       

    3. No other reservation may be made.

       
       

    4. Any Contracting Party which has made a reservation under paragraphs 1 and 2 of this article may wholly or partly withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. Such withdrawal shall take effect as from the date of receipt of the notification by the Secretary General.

       
       

28. The (then) European Economic Community – which was the only contracting party that was not a state – did not enter any reservations upon ratification.

    
    

29. Of the species listed in the UK’s reservations, the Habitats Directive only protects seals and mountain hares. Both of those species are already protected under national law.

    
    

30. On the other hand, there are a number of species protected by the Bern Convention (regarding which the UK has not entered reservations) that are not currently protected under EU legislation or domestic law.

    
    

    46 Reservations have been entered by Bulgaria (1991), Croatia (2000), Cyprus (1988), the Czech Republic (1997), Finland (1985), France (1990) Hungary (1989), Latvia (1997), Lithuania (1996), Malta (1993), Poland (1995), Slovakia (1994), Slovenia (1999), Spain (1979) and the UK (1982). Objections have been made by Denmark (1992), France (1992) and Malta (1998).

31. For example, article 8 of the Convention applies to species listed in appendices 2 and 3. Appendix 3 includes all reptiles and amphibians not listed in appendix 2 (and protected from any deliberate capture or killing). So all reptiles and amphibians are to be protected from the means of capture and killing prohibited by article 8. It appears that domestic legislation does not currently achieve this. Secondly, appendix 4 lists explosives and poisons as prohibited means in respect of crayfish. Currently, domestic law does not regulate the killing or capture of crayfish.

    
    

32. Under general international law, as expressed in the Vienna Convention on the Law of Treaties 1969, a valid reservation modifies for the reserving State, in its relations with the other parties, the provisions of the treaty to which the reservation relates to the extent of the reservation, and modifies those provisions to the same extent for the other parties in their relations with the reserving State.47 Since the UK’s reservations appear to be compliant with article 22(1) of the Convention, the UK is not bound – as a matter of general international law, leaving aside the position under EU law – to comply with the obligations of the Bern Convention to the extent of those reservations.

    
    

33. The question arises, however, whether the UK is under an EU law obligation to comply with the Bern Convention in full, despite the reservations.

    
    

34. Under article 216 TFEU, referred to above, “agreements concluded by the Union are binding upon the institutions of the Union and its member states”. Article 216 TFEU replicates earlier provisions in previous EEC/EC Treaties.48 It follows that, where an international agreement is entered into solely by the EU, and not by member states, the EU can enforce the terms of that agreement against member states.49

    
    

    47 Vienna Convention on the Law of Treaties 1969, art 21(1). The corresponding provisions of the Vienna Convention on the Law of Treaties between States and International Organisations are materially identical.

    48 Art 228(2) of the original EEC Treaty.

    49 That would be the case, for example, with the Agreement on International Humane Trapping Standards between the European Community, Canada and the Russian Federation.

35. However, the Bern Convention is a “mixed agreement”.50 Our research into the case-law of the Court of Justice of the European Union on the extent of the EU obligations of member states under such agreements – not all of which is presented in this report – reveals two strands in that case-law. One, exemplified by Merck Genéricos v Merck & Co,51 holds that there is an EU law obligation of member states to comply with those terms of a mixed agreement that the EU was competent to enter into, its competence depending on whether the international obligation in question falls in a field in which the EU has already legislated internally. Another, exemplified by Commission v France,52 holds that there is an EU obligation to comply in full with a mixed agreement that falls in a field covered in large measure by EU law, on the grounds that the EU has an interest in compliance by both the EU and its member states with the commitments entered into under the agreement:

    
    

    1. In accordance with case-law, mixed agreements concluded by the Community, its Member States and non-member countries have the same status in the Community legal order as purely Community agreements in so far as the provisions fall within the scope of Community competence (see, to that effect, Case 12/86 Demirel [1987] ECR 3719, paragraph 9, and Case C-13/00 Commission v Ireland [2002] ECR I-2943, paragraph 14).

       
       

    2. From this the Court has inferred that, in ensuring compliance with commitments arising from an agreement concluded by the Community institutions, the Member States fulfil, within the Community system, an obligation in relation to the Community, which has assumed responsibility for the due performance of the agreement (Demirel, cited above, paragraph 11, and Commission v Ireland, cited above, paragraph 15).

       
       

    3. In the present case, the provisions of the Convention and the Protocol without doubt cover a field which falls in large measure within Community competence.

       
       

    4. Environmental protection, which is the subject-matter of the Convention and the Protocol, is in very large measure regulated by Community legislation, including with regard to the protection of waters against pollution (see, in particular, Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (OJ 1991 L 135, p 40), Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (OJ 1991 L 375, p 1) and Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p 1)).

       
       

       50 Described in para 3.17 above.

       51 Case C-431/05 [2007] ECR I-7026.

       52 Case C-239/03 [2004] ECR I–9325.

    5. Since the Convention and the Protocol thus create rights and obligations in a field covered in large measure by Community legislation, there is a Community interest in compliance by both the Community and its Member States with the commitments entered into under those instruments.

       
       

    6. The fact that discharges of fresh water and alluvia into the marine environment, which are at issue in the present action, have not yet been the subject of Community legislation is not capable of calling that finding into question.53

    
    

36. That case concerned an environmental treaty, the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution of February 1976. In terms of subject-matter, it is therefore closer to the Bern Convention than the cases exemplifying the other strand of case-law that we have identified. On the other hand, there was no suggestion in that case that France had entered any reservations against the relevant Barcelona Convention obligations. The issue that arises in this project is whether the Court of Justice would apply the Commission v France reasoning so as to find an EU obligation of a member state to comply with provisions of a mixed agreement against which it had entered reservations, although the EU had not.

    
    

37. Whilst appreciating that the matter is not free from doubt, we have concluded, on balance, that the UK is not under an EU law obligation to give effect to the Bern Convention to the extent of the UK’s reservations. That is principally because we do not consider that the EU is itself under an international obligation to secure compliance with the Convention in the UK to the extent that the UK has entered reservations. Consequently, one of the features relied on by the Court of Justice in the Commission v France judgment54 – namely that compliance with an international convention is an obligation of the member state “to the [EU], which has assumed responsibility for the due performance of the agreement” – is to that extent absent.

    
    

38. We appreciate that this view of the position in international law is not in accordance with the general rule encapsulated in article 21(2) of the Vienna Convention on the Law of Treaties, which provides that a reservation entered by a contracting party to a treaty does not modify the provisions of the treaty as between the other parties to the treaty. Nevertheless, we find strong indications in the text of the Bern Convention that are inconsistent with the EU being under a treaty obligation in effect to over-ride the reservations entered into by its member states.

    
    

39. First, there are clear indications in the text of the Convention that all parties were aware that the EEC did not have full internal competence to enter into the Convention. Though the Convention is silent as to the extent of the (then) EEC’s competence to enter into or obligation to comply with it, an oblique reference to the limited extent of the Community’s competence is found in article 13(2), which provides for the Community to exercise the votes of its member states on the Convention Standing Committee “within the areas of its competence”.

    
    

    53 Case C-239/03 [2004] ECR I–9325, at [25] to [30].

40. Secondly, article 18(3) provides a procedure for determining (by agreement between the Community and the relevant member state) whether the Community or a member state is to be a party to arbitration of disputes involving a member state. Its effect is that if the Community and a particular member state agree that the member state should be party to the arbitration in place of the Community, the Community drops out of the arbitration and no award can be made against it.

    
    

41. Thirdly, in including article 22, not only the member states and the other contracting states, but also the EEC itself, were agreeing that the United Kingdom could enter reservations. To interpret the absence of a reservation on the part of the EEC as amounting to a promise by it to secure compliance in the UK (whether immediately or in the future) with provisions against which the UK had entered reservations would be to attribute to the EEC a state of mind inconsistent with its acceptance that the UK could enter reservations.

    
    

42. Fourthly, the terms of article 22 of the Convention did not enable the EEC to enter any reservations upon its ratification.55 Only a state might do so. The article only enabled the EEC to enter reservations as and when it lodged a declaration extending the application of the Convention to an additional territory. We consider that the explanation for this feature of the drafting of article 22 is that it catered for the eventuality that the EEC might later acquire exclusive treaty-making competence in the environmental field; in that event, extending the Convention to any country newly acceding to the EEC that was not already a party to the Convention would be a matter for the EEC.56 The parties to the Convention cannot, in our view, have regarded the absence of reservations on the part of the EEC upon ratification – for which article 22 makes no provision – as creating an obligation of the EEC to secure full compliance with the Convention within the member states. The power of contracting parties that were EU member states to enter reservations would be rendered nugatory if that were so.

    
    

43. We would add, however, that reflecting the Bern Convention reservations in the Wildlife Bill, as further discussed in Chapter 5, has complicated its drafting (making it necessary to draft additional schedules for the species covered by the reservations, detailing particular means of killing or capture that differ as between the species). The view that we have taken of the position in international law means that we cannot recommend over-riding the reservations, since levels of protection of species are outside the scope of the project except to the extent necessary to comply with international obligations, but we suggest that the Government might consider with stakeholders whether there remains a case for continuing not to prohibit the means of killing or capture detailed in the reservations.

    
    

    54 Case C-239/03 [2004] ECR I–9325 at [26].

    55 Art 22 is set out at para 3.59 above.

    56 The European Economic Community’s subsequently acquired environmental treaty-making competence is in fact shared with the member states: see paras 3.10 to 3.17 above.

    Recommendations

    
    

    Recommendation 24: we recommend that consideration should be given as to whether there remains a case for continuing not to prohibit the means of killing or capture detailed in the UK’s reservations to the Bern Convention.

    
    

    TRANSPOSING “DELIBERATE”

44. The Bern Convention, the Wild Birds Directive and the Habitats Directive consistently couch their primary prohibitions57 by reference to “deliberate” action. The same term is also used with respect to the killing of species protected under the Bonn Convention, the African-Eurasian Waterbirds Agreement and the Agreement on the Conservation of Albatrosses and Petrels.58

    
    

45. The word “deliberate”, in its ordinary English meaning, is generally understood as a synonym of “intentional”.59 In our consultation paper, we noted that relevant guidance and subsequent jurisprudence from the Court of Justice of the European Union had expanded the meaning of the word “deliberate” significantly beyond its ordinary meaning in the law of England and Wales.60

    
    

46. The first extended definition of the word “deliberate” was formulated by the Bern Convention Standing Committee in the context of the interpretation of article 6(b) of the Bern Convention:

    
    

    “deliberate damage to or destruction of breeding or resting sites" means, subject to relevant provisions of the law of each Contracting Party, any act committed with the intention of destroying or causing harm to breeding or resting sites as defined in paragraph a above, and any act committed without the intention to cause damage or destruction but in the knowledge that such would probably be the consequences of the act.61

    
    

    57 The expression “primary prohibition”, in this report, refers to all prohibitions related to activities directly interfering with protected animals, such as killing, injuring, capturing and disturbance. By “methods and means” prohibitions, we refer to the prohibitions connected to the use of particular methods of killing or capturing protected fauna species. The expression “secondary prohibition” refers to all prohibitions connected with activities – such as trade or possession – that provide the reason or incentive for the commission of activities prohibited by the “primary prohibitions”.

    58 See, for example, arts 1 and 3(5) of the Bonn Convention.

    59 The Oxford English Dictionary defines “deliberate” as follows: “well weighed or considered; carefully thought out; formed, carried out, etc. with careful consideration and full intention”.

    60 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 6.36.

    61 Resolution No 1 (1989) of the Standing Committee on the provisions relating to the conservation of habitats.

47. The meaning of the term “deliberate” was subsequently discussed by the Court of Justice of the European Union in the context of two infraction proceedings against Greece and Spain62 brought by the European Commission for alleged failures to comply with article 12 of the Habitats Directive.63

    
    

48. While both cases concerned the Habitats Directive, both the Habitats and Wild Birds Directives correspond to obligations under the Bern Convention. As the word “deliberate” is used in article 6 of the Bern Convention, we have concluded that – despite certain differences between the two Directives – it is unlikely that the Court of Justice would ever come to the conclusion that that the word “deliberate” in articles 12 and 13 of the Habitats Directive should be interpreted differently from the same word in article 5 of the Wild Birds Directive. We have concluded, therefore, that for the purpose of transposing the above obligations in domestic law, the meaning of “deliberate” should generally accord with Commission v Spain, the latest Court of Justice ruling on this issue.

    
    

49. In Commission v Spain, the infringement concerned the issuing of permits to allow the trapping of foxes in areas where, allegedly, otters might be affected. Otters are a species listed in annex 4(a) of the Habitats Directive within their natural range, and thereby strictly protected by article 12 of that Directive.

    
    

50. In giving judgment, the Court of Justice ruled that:

    
    

    For the condition as to “deliberate” action in article 12(1)(a) of the Directive to be met, it must be proven that the author of the act intended the capture or killing of a specimen belonging to a protected animal species or, at the very least, accepted the possibility of such capture or killing [emphasis added].64

    
    

51. Following the Court of Justice’s ruling in Commission v Spain, the European Commission published a guidance document on article 12 of the Habitats Directive suggesting that:

    
    

    “Deliberate” actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action. In other words, not only a person who fully intends to capture or kill a specimen of an animal commits an offence: an offence is also committed by a person who might not intend to

    
    

    62 Case C-103/00 Commission v Greece [2002] ECR I-1147 and Case C-221/04 Commission v Spain [2006] ECR I-4515.

    63 Art 12 of the Habitats Directive expressly transposes part of the obligations under art 6 of the Bern Convention in EU law.

    64 Case C-221/04 Commission v Spain [2006] ECR I-4515 at [71]. The action failed because the Commission had failed to prove the presence of otters in the area to which the permits related and thus any knowledge by the Spanish authorities that the trapping permits could endanger otters. It is worth noting that a new infringement proceeding concerning “deliberate” actions has been brought in November 2014 against Greece; the Court of Justice of the European Union has not yet ruled on the matter (see Case C-504/14 European Commission v Greece).

    capture or kill a specimen but is sufficiently informed and aware of the consequences his action will most likely have and nevertheless performs the action, leading to the capturing or killing of specimens (eg as an unwanted but accepted side-effect), with reckless disregard of the known prohibitions (conditional intent). It goes without saying that negligence is not included in the meaning of “deliberate”.65

    
    

    Current domestic transposition of “deliberate”

52. The term “deliberate” is currently transposed differently in the Wildlife and Countryside Act 1981 and the Conservation of Habitats and Species Regulations 2010.

    
    

53. Section 1 of the Wildlife and Countryside Act 1981 – the provision intended to transpose article 5 of the Wild Birds Directive – transposes “deliberate” with the term “intentional”. In domestic criminal law, a defendant acts intentionally with regard to a result if he or she acted in order to bring about that result. A jury may also find that the defendant intended the result if it was a virtually certain outcome of his or her conduct and that he or she foresaw that as being the case.66

    
    

54. Regulations 41 and 45 of the Conservation of Habitats and Species Regulations 2010, which respectively transpose articles 12 and 13 of the Habitats Directive use the word “deliberate”, which is defined as having the same meaning as in the Directive.67

    
    

    Consultation

55. In the light of the Court of Justice’s case law, in consultation we suggested that the transposition of the word “deliberate” in section 1 of the Wildlife and Countryside Act 1981 is excessively narrow. The word “intentional”, in fact, does not cover activities where the defendant merely “accepted the possibility” of harm to a protected wild bird.68

    
    

56. We also suggested that the “copy-out” approach adopted under the Conservation of Habitats and Species Regulations 2010 fails to transpose the Habitats Directive’s prohibitions clearly and unambiguously. Using the word “deliberate” would mislead most readers, on the basis that the ordinary English meaning is significantly narrower than the Court of Justice’s definition in Commission v Spain.69

    
    

    65 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 36, para 33. This formulation was adopted by the Supreme Court in R (Morge) v Hampshire County Council [2011] UKSC 2 at [2011] 1 WLR 268 at [14].

    66 R v Woollin [1998] UKHL 28, [1999] 1 AC 82. Strictly, this definition only relates to murder.

    67 SI 2010 No 490, reg 3(3).

    68 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 6.42.

    69 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 6.43.

57. We provisionally proposed adopting the expression “intentionally or recklessly” to transpose the term “deliberately” in the Wild Birds and Habitats Directive,70 on the grounds that recklessness is a well established concept in the law of England and Wales that would cover the type of conduct that the Court of Justice intended to address. As defined in R v G,71 in domestic law a person is reckless with respect to:

    
    

    1. a circumstance when they are aware of a risk that it exists or will exist; [or]

       
       

    2. a result when they are aware of a risk that it will occur;

       
       

       and it is, in the circumstances known to them, unreasonable to take the risk.72

       
       

       Discussion

58. After careful thought, we have concluded that our provisional proposal was not adequate. The concept of “recklessness” covers a wider range of knowledge and attitudes than the term “deliberate” as defined by the Court of Justice in Commission v Spain. Its adoption could result in the criminalisation of a number of legitimate economic activities, such as forestry, agriculture or the operation of wind farms. On one reading, “recklessness” could criminalise all instances where it is established that the defendant knew about a risk of harm to a species and carried out the activity despite that knowledge (in circumstances where the court considers that it was unreasonable for the defendant to do so). The operator of a wind farm, for instance, knows that the operation of the wind turbines will eventually cause the death of a protected bird. Similarly a train operator would generally know that the use of rail tunnels may result in the disturbance of local populations of bats.73 Either operator would face the risk of a court deciding that it had not been reasonable, from the point of view of wildlife conservation, for them to take the risk.

    
    

59. Whilst in the context of the Habitats Directive those activities could be authorised on grounds of “overriding public interest” (in line with the derogation regime set out in article 16(1)), the Wild Birds Directive does not allow member states to derogate from its general protection regime on such grounds. Transposing “deliberate” with “recklessness”, therefore, could potentially give rise to criminal liability without it having been possible for the operator to seek a licence.74 We have concluded that such a result would be unacceptable, and could not possibly reflect the original object and purpose of either directive.

    
    

    70 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 5.

    71 R v G [2003] UKHL 50, [2004] 1 AC 1034.

    72 R v G [2003] UKHL 50, [2004] 1 AC 1034, at [41].

    73 Most species of bat are strictly protected under the Habitats Directive (see art 12 and annex 4(a)).

    74 This result is concurrently caused by the extended definition of deliberate and the fact that retaining the “incidental results of a lawful operation” defence – as discussed below – would constitute a clear breach of art 9 of the Wild Birds Directive.

    The Advocate General’s Opinion in Commission v Spain75

60. What, then, is the correct understanding of “deliberate” for the purpose of the Directives? A useful starting point for further analysis is the Opinion of Advocate General Kokott, which laid the foundations of the Court of Justice of the European Union’s ruling in Commission v Spain.

    
    

61. The Advocate General’s Opinion begins with an analysis of different language versions of the Habitats Directive which concludes, in essence, that the domestic interpretation of the word “deliberate” in the criminal law of most member states only covers activities carried out with the desire to cause harm to a protected species. Despite the ordinary meaning of “deliberate” in the language of most member states, the Advocate General’s Opinion concludes that in order to fulfil the object and purpose of the Habitats Directive, the notion of “deliberate” should, in certain circumstances, be understood as encompassing the knowledge that the actions will “probably lead” to a prohibited result. The Opinion goes on to say that, when applying article 12(1) of the Habitats Directive in a preventive context for individuals, “deliberate” should be taken to cover:

    
    

    1. intending the capture or killing of a specimen belonging to a protected animal species; or

       
       

    2. accepting the possibility of such capture or killing.76

       
       

62. Even in the context of an extended meaning of deliberate, nevertheless, the Advocate General’s Opinion stresses that a central element of intentionality should be retained, on the basis that “in all three language versions examined the concept of deliberateness includes a very strong element of will”.77

    
    

    The concept of “dolus eventualis”

63. In the light of a comparative analysis of the different approaches to intentionality in criminal law, we reached the conclusion that the Advocate General’s Opinion appears to have brought the extended definition of “deliberate” into line with the concept of “dolus eventualis”, as understood in a number of continental legal systems and international courts and tribunals.78

    
    

64. In those jurisdictions, an individual may be treated as having intended a prohibited result when, having foreseen a serious risk that a prohibited event may occur, he or she takes steps that bring about the prohibited result whilst consciously accepting the potentially harmful consequences of his or her activity.

    
    

    75 Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I- 4518.

    76 See Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I-4518 at [54], which says: “Deliberate harm to protected species of fauna is therefore to be assumed if the harm is the result of an act whereby the perpetrator was aware of the risk to the protected species and also accepted that risk.”

    77 Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I- 4518 at [49].

    78 In terms of continental legal systems, we explored, in particular, the case law of German and Italian courts. In terms of international courts and tribunals, we focused on the case law of the International Criminal Tribunal for Yugoslavia and the International Criminal Court.

65. While the exact meaning of dolus eventualis is subject to considerable academic debate in civil law jurisdictions, it is generally accepted that it includes two central elements:

    
    

    1. A cognitive element of “foresight of a risk of harm”; and

       
       

    2. A volitional element of “conscious acceptance of the prohibited consequences”.

       
       

       COGNITIVE ELEMENT

66. The cognitive element of dolus eventualis is framed in similar terms to the cognitive requirement of “recklessness” in domestic criminal law. While the level of foresight of risk in the domestic definition of “recklessness” is left unqualified, however, in the context of dolus eventualis the necessary threshold of foresight of risk is generally defined in terms of “real” or “serious” risk. 79

    
    

67. In Advocate General Kokott’s Opinion, the cognitive element of “deliberate” is described in terms of “realisation” or “awareness”80 by the defendant of a risk of harm to a protected species. The Court of Justice’s judgment required the Commission to establish the presence of otters in the area where trapping was licensed.81 From those paragraphs we deduced that to satisfy the cognitive test of “deliberate”, a person should be aware that at the time the potentially harmful act is done the risk of harm is a real possibility.

    
    

68. Our deduction is in line with the European Commission’s understanding of the above ruling. In the guidance document on article 12 of the Habitats Directive, the Commission interprets the cognitive element of “deliberate” as the defendant’s knowledge that his actions “will most likely lead to an offence against a species”.82

    
    

69. We have concluded, therefore, that requiring a higher threshold of “foresight of risk” than the English law concept of “recklessness as to a circumstance” would be in line with the Court of Justice’s extended definition of “deliberate”.

    
    

    EXISTENCE OF A RISK

70. It is arguable that dolus eventualis is an entirely subjective concept, with the consequence that it is entirely a matter of a defendant’s subjective perception of risk rather than of the objective reality of a risk. On that approach a defendant could be guilty of an offence with a fault element based on dolus eventualis as a result of over-estimating a risk or its seriousness. That was not, however, the approach of the Court of Justice in Commission v Spain.

    79 German and Italian courts, for example, require a minimum threshold of foresight of risk to satisfy the cognitive element of dolus eventualis. While in Germany the threshold is generally expressed in terms of “more than an entirely distant possibility”, in Italy the threshold is generally higher and is often described in terms of “serious” or “concrete” possibility.

    80 Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I- 4518 at [49] and [54].

    81 Case C-221/04 Commission v Spain [2006] ECR I-4536 at [73].

    82 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 36, para 33.

71. After reminding itself of the member states’ obligation under the Directive to prohibit deliberate capture or killing, the Court held in Commission v Spain that “in order to assess the validity of the complaint put forward by the Commission the presence of the otter in the area concerned must be ascertained, and the circumstances under which the capture or killing of that species is deliberate must be established”.83 It found that the Commission had not proved that otters were present in the relevant area.84 Turning to whether the Spanish authorities had deliberately endangered otters, the Court held that “the presence of otters in the area concerned has not been formally established, so that it has also not been established that by issuing the contested permits the Spanish authorities knew that they risked endangering otters”.85

    
    

72. We infer from this that the objective existence of a risk is an ingredient in dolus eventualis as understood in EU law. The wildlife Bill is drafted on that basis.

    
    

    VOLITIONAL ELEMENT

73. What substantively distinguishes dolus eventualis from recklessness is the requirement for an additional “volitional element”. We have taken the view that the requirement for an additional volitional component would be in line with Advocate General Kokott’s suggestion that the extended understanding of the concept of deliberate would have to retain a “strong element of will” and that

    
    

    Deliberate harm to protected species of fauna is therefore to be assumed if the harm is the result of an act whereby the perpetrator was aware of the risk to the protected species and also accepted that risk.86

    
    

74. The expression “acceptance of risk” is different from and goes beyond mere appreciation of the existence of a risk. The European Commission’s guidance document referred to above describes the concept in terms of “conscious acceptance [by a person] of the foreseeable results of his action”.

    
    

    83 Case C-221/04 Commission v Spain [2005] ECR I-4518, at [49].

    84 Case C-221/04 Commission v Spain [2005] ECR I-4518, at [63].

    85 Case C-221/04 Commission v Spain [2005] ECR I-4518, at [73].

    86 Opinion of Advocate General Kokott, Case C-221/04,Commission v Spain [2005] ECR I- 4518 at [54]. While in English the expression “acceptance” of risk could be interpreted as mere “appreciation” of the existence of a risk, this is not the case for other language versions of the text of AG Kokott’s Opinion. The French version for example, uses the expression “s’accommoder”. Larousse Online Dictionary defines “s’accommoder” as either reconciling oneself with something or accepting a state of affairs, whether desired or not, and making the best out of it.

75. In the context of dolus eventualis, the concept of “acceptance of the prohibited consequences” introduces a volitional component that is absent in the definition of recklessness. The defendant, in other words, not only foresees the risk of harm, but to avoid renouncing the activity and its eventual advantages decides to act “whatever the cost”, thus calculating in the equation the serious risk of harm.87 In practice the “volitional element” is linked with the “cognitive element”. The higher the risk foreseen, the lower would be the threshold for establishing that the defendant “accepted” the prohibited consequences.88

    
    

76. A defendant, on the other hand, will not be found to have “accepted” the prohibited consequences, if he was acting under the “reasonable hope” that he would be capable of avoiding the prohibited result.89 German courts use the concept of “earnest reliance on the non-occurrence of the event”.90

    
    

    Transposition of “deliberate” in domestic law

77. By looking at the Court of Justice’s definition of “deliberate” through the lens of the civil law concept of dolus eventualis, it became clear to us that there was scope to transpose the term “deliberate” with a prohibition which reflects the object and purpose of the directives whilst avoiding the unnecessary criminalisation of legitimate economic activities.

    
    

78. As a matter of EU law, member states must transpose faithfully the meaning of terms and concepts used in directives, so as to ensure uniformity in their interpretation and application across member states. Most importantly, the transposition of EU law needs to work in the domestic legal context.

    
    

79. We have concluded that simply importing the terminology used by continental legal systems and international tribunals of dolus eventualis, including the volitional limb of “acceptance of risk”, would not meet the requirements of clear and comprehensible transposition, on the basis that it would be an entirely unfamiliar concept to domestic courts and legal practitioners. In the absence of existing models, we have adopted an independent definition that seeks to give effect to the concept of dolus eventualis in the specific context of the two directives by, as far as possible, adopting terminology and concepts which are commonly used in the law of England and Wales.

    
    

    87 Marinucci and Dolcini E Manuale Di Diritto Penale. Parte Generale (8th ed 2012) p 367. In one of the latest leading cases on the concept of dolus eventualis, the Italian Supreme Court described the concept as being characterised by the foresight of a concrete possibility of an accessory result to the primary scope pursued by the defendant, and the acceptance of the risk of such accessory result (Cass. Pen. Sez. I. 01.2.11 (dep. 15.3.11), n. 10411).

    88 Prosecutor v Lubanga Dyilo (Confirmation Decision) ICC/01/04-01/06, PT Ch I (29 January 2007) at [351] to [355].

    89 Cass. Pen. Sez. I, 01.2.11 (dep. 15.3.11), n. 10411.

    90 NStZ-RR 2000, 165 (judgment of 22 February, 2000) at [166] in M Bohlhander, Principles of German Criminal Law (2009) p 64.

    CORE ELEMENTS OF THE TRANSPOSITION OF “DELIBERATE”

80. Taking the transposition of “deliberate” in the context of article 12(1) of the Habitats Directive, we have concluded that a person should be held liable if the prosecution establishes that his or her action (or, in some circumstances, inaction) caused the death, injury or capture of a protected animal, and

    
    

    1. he or she intended to kill, injure or capture that animal; or

       
       

    2. his or her actions presented a serious risk to animals of the relevant species unless reasonable precautions were taken and he or she was aware that that was the case but failed to take reasonable precautions; or

       
       

    3. his or her actions presented a serious risk to animals of the relevant species whether or not reasonable precautions were taken, and he or she was aware that that was the case.

       
       

       THRESHOLD OF RISK

81. In line with the Court of Justice’s ruling in Commission v Spain read together with the European Commission’s guidance on article 12 of the Habitats Directive, we have concluded that the threshold of risk to be foreseen by the defendant in order to incur liability in domestic legislation should be defined in terms of “serious risk”.

    
    

82. While the European Commission’s guidance defines the threshold of risk in terms of “likelihood”, we have concluded that a multidimensional understanding of “risk” would be more in line with the object and purpose of the two Directives. Advocate General Kokott’s Opinion, in fact, suggested that:

    
    

    When determining the risks associated with authorising hunting with snares account also had to be taken, in addition to the probability of the existence of otters, of the objective risk of the hunting method and the seriousness of any damage.91

    
    

83. We have concluded, therefore, that whether the risk perceived by the defendant was “serious” should be determined by reference to the defendant’s knowledge of the probability of one or more protected birds or animals being affected by the act in question, the potential effects of the activity on the distribution or abundance of the local population of a species of a protected bird or animal that may be affected by the act in question, or a combination of the two factors.

    
    

    91 Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I- 4518 at [74].

84. The problem with conceptualising “risk” uniquely in terms of probability would be that that it would fail to cover activities that have a relatively low probability of harm but might have very serious impacts – such as the extinction of the local population of a protected bird – in the event that the risk materialised.92

    
    

85. As in the context of this criminal offence the Court will be looking at the subjective perception of risk by the defendant, we considered that a multidimensional understanding of risk would also better reflect a person’s common sense understanding of the types of risks that should not be taken in the context of activities having potential effects on protected species.

    
    

    ACCEPTANCE OF THE RISK

86. The concept of “acceptance of risk” is a characteristic of the relationship between the defendant’s state of mind and the prohibited result that he or she has created. The central question, therefore, is whether the defendant’s conduct demonstrated that he or she embraced or, at the very least, reconciled him or herself to the eventual occurrence of the prohibited event as an undesired side effect of his or her primary purpose. This is a purely subjective test that can be contrasted with the second limb of recklessness as defined in R v G,93 which requires an objective determination of whether the defendant had been unreasonable in taking the known risk.

    
    

87. We have concluded that the conceptually most appropriate way to give effect to the above concept in the context of the transposition of the Wild Birds and Habitats Directive in the law of England and Wales is by reference to the steps that the defendant had taken or failed to take to prevent the activity in question from causing the prohibited result that he or she foresaw.

    
    

88. A person who took all precautions that were reasonable in the circumstances known to him or her to prevent the prohibited result could not, we consider, be held to have “accepted” the prohibited result. Such a defendant did everything that he or she could to prevent the prohibited activity from happening, and reasonably relied, therefore, on the non-occurrence of the prohibited event.

    
    

89. The third limb of our proposed definition covers cases where the defendant clearly knew that the serious risk of harm would persist irrespective precautions. In that case, whether or not a person took precautions should be irrelevant to the determination of whether the defendant “accepted” the prohibited consequences.

    
    

    92 In the domestic transposition of the “deliberate disturbance” prohibition under article 5(d) of the Wild Birds Directive and article 12(1)(b) of the Habitats Directive, the impact of the activity on the distribution or abundance of the local population of the relevant species is already a key element of the prohibited activity. In that context, therefore, referring to the impact of the activity on the population of the relevant species as part of the defendant’s assessment of the seriousness of the risk would have been redundant. It follows that in the context of this offence, the defendant should be only required to know that, unless precautions were taken, the act in question “would be likely” to cause the prohibited effect.

    93 R v G [2003] UKHL 50, [2004] 1 AC 1034 at [41].

    REASONABLE STEPS

90. We have concluded that the steps taken to prevent the prohibited result upon which a defendant may rely should be “reasonable”. Logically, the reasonableness of the steps will depend on a combination of factors dependent on the circumstances, including the nature of the risk, the level of knowledge and expertise of the defendant and the type of activity in question. We have decided, in addition, to list expressly a number of factors that a court should be able to take into account in determining whether the steps taken by the defendant were reasonable in the circumstances.

    
    

91. As the European Commission’s guidance on the implementation of article 12 of the Habitats Directive suggests, the preventive regulation of specific activities through planning permissions or guidance should be an integral part of the overall transposition of the prohibitions in article 12 of the Directive.94 As the state is ultimately responsible for ensuring overall compliance with article 12 of the Habitats Directive and article 5 of the Wild Birds Directive, we considered that, in principle, reasonable reliance on relevant guidance issued by competent authorities, or permits that regulate the operation of a certain economic activity, should be relevant considerations in determining the reasonableness of the steps taken to prevent the occurrence of the prohibited result.95

    
    

92. In the current domestic transposition of the Wild Birds and Habitats Directives in England and Wales, the role of public authorities in ensuring compliance with the Wild Birds and Habitats Directives varies depending on the identity of the public authority and the nature of the specific regulated activity in question.

    
    

93. Under regulation 9(1) of the Conservation of Habitats and Species Regulations 2010, the appropriate authority,96 the nature conservation bodies97 and, in relation to the marine area, a competent authority98 must exercise their functions in relation to nature conservation so as to “secure compliance with the requirements of the [Wild Birds and Habitats] Directives”. Those functions include, in particular, the functions under the enactments listed in regulation 9(2). The list includes functions under the 2010 Regulations, parts 1 and 2 of the Wildlife and Countryside Act 1981 and the Planning Act 2008, as well as marine licensing and fisheries management functions under the Marine and Coastal Access Act 2009.

    
    

    94 European Commission, Guidance Document on the Strict Protection of Animal Species of Community Interest under the Habitats Directive 92/43/EEC (2007), pp 28 to 32.

    95 See also Opinion of Advocate General Kokott, Case C-221/04 Commission v Spain [2005] ECR I-4518 at [58], which suggested that because the prohibited activity was carried out under a permit, the hunters, in that context, were “entitled to assume that no breach of the law was to be expected”.

    96 The Secretary of State in relation to England and the Welsh Ministers in relation to Wales and any person exercising any function of the Secretary of State or Welsh Ministers (Conservation of Habitats and Species Regulations 2010, reg 3(1)).

    97 Natural England in relation to England and Natural Resources Wales in relation to Wales (The Conservation of Habitats and Species Regulations 2010 SI 2010 No 490, reg 5(1)).

    98 Any Minister of the Crown, government department, statutory undertaker, public body of any description or person holding a public office, the Welsh Ministers and any person exercising the functions of any of those bodies (The Conservation of Habitats and Species Regulations 2010 SI 2010 No 490, reg 7(1)).

94. In exercising other functions, competent authorities must merely “have regard” to the requirements of the Wild Birds and Habitats Directives, insofar as they may be affected by the exercise of those functions.99 In connection with the exercise of local authorities’ functions under the Town and Country Planning Act 1990, for instance, a majority in the Supreme Court concluded that local authorities granting development consent were not bound to be satisfied that the authorised development would not result in a breach of article 12 of the Habitats Directive. They should grant planning permission unless they conclude that the proposed development would both be likely to offend article 12 and be unlikely to be licensed pursuant to the derogation regime authorised by the Directive.100

    
    

95. We have concluded, therefore, that the express list of factors that the court should be able to take into account should be limited to guidance, permits or directions issued by public authorities falling (currently) within the scope of regulation 9(1) in pursuance of their nature conservation functions listed, in particular, under regulation 9(2) of the 2010 Regulations. Relevant guidance documents and permits issued under the new Wildlife Bill should also be expressly listed as relevant considerations. The list of factors should not, on the other hand, expressly include guidance, permits or directions issued by public authorities in circumstances falling within the scope of regulation 9(3) of the 2010 Regulations, on the basis that their relevance to ensuring compliance with the Directive would be too tenuous.

    
    

    THE DEFENDANT’S KNOWLEDGE OF THE CIRCUMSTANCES OF THE OFFENCE

96. In considering criminal offences, it is necessary to establish both the “external elements” and the “mental elements” which the prosecution must prove in order to convict a defendant of the particular offence.

    
    

97. The “external elements” of an offence are the elements of the offence other than those relating to the defendant’s fault. They divide into:

    
    

    1. conduct elements: what the defendant must do or fail to do;

       
       

    2. consequence elements: any result that must be proved to be caused by the defendant’s conduct (for example, in murder, that the victim dies); and

       
       

    3. circumstance elements: other facts relating to the conduct or the victim which affect whether the defendant is guilty or not (for example, in rape, that the victim does not consent).

       
       

98. The “mental element” (or “fault element”) is the state of mind which must be established to show that the defendant is culpable, such as intention, recklessness, negligence, knowledge or belief or the lack of it.

    
    

    99 SI 2010 No 490, reg 9(3).

    100 R (Morge) v Hampshire County Council [2011] UKSC 2; [2011] 1 WLR 268, by Lord Brown at [29] - [30]. See also R (on the application of Christopher Prideaux) (Claimant) v Buckinghamshire County Council (Defendant) & FCC Environment UK Ltd (Interested Party) [2013] EWHC 1054 (Admin); and R (on the application of Westerleigh Group Ltd) v Aylesbury Vale DC [2015] EWHC 885.

99. Most of these elements are relatively straightforward when it comes to the transposition of “deliberate” offences. However, establishing the necessary mental element as to the circumstances throws up some difficulties. For example, does the prosecution need to establish that the defendant had knowledge of, or was reckless as to, the identity of the species concerned?

    
    

100. In the context of our recommended transposition of “deliberate”, we considered whether the prosecution would have to establish the defendant’s knowledge that his or her activity posed a (serious) risk of harm to specimens of the species that were in fact killed, captured or injured (and for the killing, capture or injuring of which the defendant is being prosecuted).

     
     

101. In the light of our recommended construction of the offence, we have concluded that that is indeed the principled and practical approach. If the defendant’s activity caused the death of an otter, the prosecution will need to establish that the defendant knew that his or her activity posed a (serious) risk of harm to otters.

     
     

102. If it were otherwise, the offence would criminalise a person for prohibited results that he or she did not foresee. For example, a person who, in the knowledge that that his or her activity poses a (serious) risk of harm to otters, takes all reasonable precautions to prevent that from happening, could be successfully prosecuted if the activity results in the death of another protected species despite the defendant’s lack of awareness that the activity would pose any risk of harm to that other species.

     
     

     Conclusion

103. Formulating an appropriate definition of “deliberate” in the law of England and Wales to give effect to the Court of Justice’s case law is difficult. Our view is that the recommendations discussed in this section represent the best balance between the numerous competing objectives that we have tried to accommodate through a single definition: ensuring a clear, accessible and workable transposition of the Wild Birds and Habitats Directives and ensuring that the end result does not unnecessarily criminalise legitimate economic activities, whilst legislating in terms compliant with EU law.

     
     

104. The European Commission is planning to undertake a comprehensive review of the Wild Birds and Habitats Directives in the next few years.101 In the light of the current jurisprudence of the Court of Justice, we suggest that the current member states’ inability to derogate from article 9 of the Wild Birds Directive on grounds of “overriding public interest” is an anomaly which should be addressed by the European Commission and the member states in the context of the forthcoming review of the Directives.

     
     

     101 President of the European Commission, Mission Letter (1 November 2014) http://ec.europa.eu/commission/sites/cwt/files/commissioner_mission_letters/vella_en.pdf (last visited 26 October 2015).

     Recommendations

     
     

     Recommendation 25: we recommend that the term “deliberate” in the context of the Bern Convention, the Habitats Directive and the Wild Birds Directive should be defined in domestic criminal law in line with the Court of Justice’s ruling in Commission v Spain.

     
     

     Recommendation 26: we recommend that under the new regulatory framework a person should be found to have acted “deliberately” if

     
     

     1. he or she intended to commit the prohibited result;

        
        

     2. his or her actions presented a serious risk to animals of the relevant species unless reasonable precautions were taken and he or she was aware that that was the case but failed to take reasonable precautions; or

        
        

     3. his or her actions presented a serious risk to animals of the relevant species whether or not reasonable precautions were taken, and he or she was aware that that was the case.

     
     

     Recommendation 27: we recommend that the concept of “serious risk” should be understood by reference to the probability of one of more animals or plants being affected by the actions in question, the effect of the actions on the distribution or abundance of the local population of the relevant species, or a combination of the two factors.

     
     

     Recommendation 28: we recommend that in determining whether the steps taken by the defendant for the purpose of preventing a prohibited activity from happening were reasonable, a court should be capable of taking into account relevant guidance, permits or directions issued by public authorities subject to the duty under regulation 9(1) of the Conservation of Habitats and Species Regulations 2010 (duties relating to compliance with the Directives) in pursuance of their nature conservation functions listed under regulation 9(2) of the 2010 Regulations (as well as relevant guidance, permits and directions issued by any relevant pubic authority under the new regulatory framework).

     
     

     These recommendations are given effect in the draft Bill by clauses 2, 7, 8, 9, 11,

     18, 29, 34, 49, 51, 72 and 161.

     
     

     TRANSPOSING “DISTURBANCE” AND “HARASSMENT”

     
     

     The disturbance prohibitions under the Bern Convention, the Wild Birds Directive and the Habitats Directive

105. The Bern Convention, the Wild Birds Directive and the Habitats Directive prohibit activities causing “disturbance” to relevant protected species.

106. While in those three instruments the meaning of “disturbance” is left undefined, the European Commission’s guidance on article 12 of the Habitats Directive explains that “disturbance” should be understood in general terms as including any activity which is detrimental to a protected species. Prohibited interferences include activities that reduce the survival chances, breeding success or reproductive ability of a species or lead to a reduction of the area occupied by it.102

     
     

107. As one of the purposes of this project is to make wildlife law simpler and more accessible, the starting point is that the disturbance prohibitions in the relevant international and EU instruments should be transposed – as far as possible – in a clear, coherent and consistent manner.

     
     

108. The first issue is that the disturbance prohibitions under the directives are worded differently. While the Wild Birds Directive, in line with the Bern Convention, prohibits disturbance of “birds” which is “significant having regard to the object and purpose of the Directive”,103 the Habitats Directive simply prohibits the “disturbance” of protected “species”.104 The first fundamental question we address in this section, therefore, is whether the different wording of the disturbance prohibitions under the Wild Birds and Habitats Directive require a differentiated transposition in domestic law.

     
     

109. The above obligations are currently transposed differently in domestic law. In transposing the disturbance prohibition under article 12(1) of the Habitats Directive, the Conservation of Habitats and Species Regulations 2010 provide further guidance: disturbance is to be taken to include activity which is likely to affect a species’ ability to survive, to breed or reproduce, or to rear or nurture their young, or (in the case of animals of a hibernating or migratory species) to hibernate or migrate; disturbance, in addition, includes activities which may “affect significantly the local distribution or abundance of the species”.105 The Wildlife and Countryside Act 1981, on the other hand, does not attempt to define the concept of “disturbance” for the purpose of transposing article 5(d) of the Wild Birds Directive.

     
     

110. In consultation we took the provisional view that any definition or clarification of the term “disturbance” was unnecessary, as the term was capable of being understood through its plain and ordinary meaning. We posited that if we were incorrect on that assumption, then its meaning should be determined by the courts (most importantly the Court of Justice).106 We asked consultees whether a statutory definition of “disturbance” would bring any added value to the new regime.107

     
     

     102 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007) p 38.

     103 Directive 2009/147/EC, art 5(d).

     104 Directive 92/43/EEC, art 12(1)(b).

     105 SI 2010 No 490, reg 41(2).

     106 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 6.53.

     107 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 7.

111. The last question we explore in this section is whether – in line with our policy of making wildlife law simpler and more consistent – disturbance prohibitions currently designed to give effect to domestic preferences may be harmonised with the disturbance prohibitions designed to give effect to the obligations under the Wild Birds and Habitats Directive.108

     
     

     Rationalising the obligations to prohibit disturbance under EU law

     
     

     INTERNATIONAL AND EU OBLIGATIONS

112. Article 6(c) of the Bern Convention requires contracting parties to prohibit

     
     

     the deliberate disturbance of wild fauna, particularly during the period of breeding, rearing and hibernation, insofar as disturbance would be significant in relation to the objectives of this Convention.

     
     

113. Article 5(d) of the Wild Birds Directive is virtually identical. It requires member states to prohibit the

     
     

     deliberate disturbance of [protected wild] birds particularly during the period of breeding and rearing, in so far as disturbance would be significant having regard to the objectives of this Directive.109

     
     

114. Article 12(1)(b) of the Habitats Directive requires member states to prohibit the

     
     

     deliberate disturbance of species [listed in annex 4(a) to the Directive], particularly during the period of breeding, rearing, hibernation and migration.

     
     

     DISCUSSION

115. Article 5(d) of the Wild Birds Directive requires member states to prohibit the deliberate disturbance of wild birds only when such disturbance would be “significant having regard to the objectives of [the] Directive”. While this is in line with the formulation of the disturbance prohibition in article 6(c) of the Bern Convention, the words “significant having regard to the objectives of [the] Directive” are omitted from article 12(1)(b) of the Habitats Directive. Article 12(1)(b), however, requires member states to prohibit the disturbance of “species” rather than the disturbance of individual specimens.

     
     

116. We have taken the view that those two alternative formulations express the same general principle. Broadly speaking, what the two directives intend to prohibit are not, in most cases, activities that negatively affect a particular specimen. The general intention of both provisions, in essence, is to prohibit activities that are likely to have a negative effect on the conservation status of a protected species.

     
     

117. The EU guidance on article 12 of the Habitats Directive describes the general scope of the prohibition in article 12(1)(b) of the Directive as follows:

     
     

     108 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 8.

     109 The word “hibernation” was probably omitted from article 5(d) of the Wild Birds Directive on the basis that birds do not normally hibernate.

     In order to assess a disturbance, consideration must be given to its effect on the conservation status of the species at population level and biogeographic level in a member state […]. For instance, any disturbing activity that affects the survival chances, the breeding success or the reproductive ability of a protected species or leads to a reduction in the occupied area should be regarded as a “disturbance” in terms of article 12. On the other hand, sporadic disturbances without any likely negative impact on the species, such as for example scaring away a wolf from entering a sheep enclosure in order to prevent damage, should not be considered as disturbance under article 12.110

     
     

118. We have concluded that it is difficult to see what the term “significant” in article 5(d) of the Wild Birds Directive adds to the above understanding of disturbance. The most plausible conclusion, in our view, is that the phrase “disturbance of a species” in the Habitats Directive was intended to express the same concept as “disturbance of [specimens] which is significant having regard to the objectives of this Directive” in the Wild Birds Directive. When the disturbance of individual specimens becomes “significant” having regard to the object and purpose of the Wild Birds Directive, it is because it will negatively affect the conservation status of the local population of a protected species. The object and purpose of the Directive is, indeed, the “long term protection and management of natural resources as an integral part of the heritage of the peoples of Europe”.111

     
     

119. The directives, therefore, aim to produce the same result and should be transposed in the same way.

     
     

120. In line with the European Commission’s guidance on article 12 and the formulation in regulation 41(2)(b) of the Conservation of Habitats and Species Regulations 2010,112 we have concluded that the domestic transposition of the disturbance prohibitions under the Habitats and Wild Birds Directives should prohibit any “deliberate” disturbance affecting a population of a protected species in the area in which the act is carried out. This is because, as suggested by the European Commission’s guidance, the reference to disturbance of “a species” in article 12(1)(b) of the Directive could not possibly have been intended to be a reference to the entire European population of that species. Such a broad approach would also be unworkable in terms of domestic transposition as a criminal offence requiring proof of “disturbance of a species” would be virtually unenforceable.

     
     

     110 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007) p 38. See, also, R (Morge) v Hampshire County Council [2011] 1 WLR 268 at [19].

     111 Directive 2009/147/EC, preamble.

     112 Reg 41(2)(b) provides that disturbance of animals includes, in particular any disturbance which is likely to “affect significantly the local distribution or abundance of the species to which they belong”.

     Defining “disturbance”

121. What constitutes disturbance of a local population, as the European Commission’s guidance suggests, is something that would have to be established on a case by case basis.

     
     

122. We remain of the view, therefore, that it would be impossible to create a statutory definition of “disturbance” that, on the one hand, does not run the risk of unduly restricting the meaning of “disturbance” in the Habitats and Wild Birds Directives and, on the other hand, is not so general as to be meaningless.

     
     

123. The transposition of article 12(1)(b) of the Habitats Directive in regulation 41 of the Conservation of Habitats and Species Regulations 2010, however, currently provides additional guidance on the meaning of “disturbance” through a non- exhaustive list of prohibited results of human activities that would, in most cases, constitute disturbance.

     
     

124. As mentioned above, regulation 41(2) provides that the disturbance of protected animals includes, in particular, any disturbance which is likely

     
     

     1. to impair their ability –

        
        

        1. to survive, to breed or reproduce, or to rear or nurture their young, or

           
           

        2. in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

           
           

     2. to affect significantly the local distribution or abundance of the species to which they belong.

     
     

125. The above list of prohibited results is in line with the European Commission’s guidance and, in our view, significantly improves the clarity of the transposition of the disturbance prohibition in article 12(1)(b) of the Habitats Directive. As we established in the section above, for the purpose of domestic transposition the disturbance prohibitions under the two directives should be treated as requiring an equivalent level of protection. We have concluded, therefore, that the existing non-exhaustive list of results in regulation 41(2) of the Conservation of Habitats and Species Regulations 2010 should be retained in the new framework and extended to the domestic transposition of article 5(d) of the Wild Birds Directive.

     
     

126. Under the new framework, therefore, a reference to an action that causes disturbance to the population of a species protected under the Bern Convention, the Wild Birds or Habitats Directive in an area, should expressly include, in particular, a reference to

     
     

     1. Any action that is likely to impair the ability of specimens of the relevant species

        
        

        1. to survive;

           
           

        2. to breed or rear their young;

           
           

        3. in the case of a migratory species, to migrate;

        4. in the case of a hibernating species, to hibernate; and

           
           

     2. Any action that is likely to have a significant effect on the distribution or abundance of the population of the species in the area.

        
        

        GUIDANCE

127. Regulation 41(9) of the Conservation of Habitats and Species Regulations 2010 currently allow the Secretary of State or Welsh Ministers (or the appropriate conservation body with the approval of the Secretary of State or Welsh Ministers) to issue guidance as to the application of the offences in paragraphs (1)(b) or (d) in relation to particular species of animals or particular activities.113 Regulation 41(10) provides that in proceedings for one of the above offences, any relevant guidance published under regulation 41(9) would have to be taken into account by the relevant court.

     
     

128. As the European Commission’s guidance suggests, what constitutes disturbance often depends on the particular context and characteristics of the species concerned.114 The above provisions ensure the possibility of further defining disturbance by reference to more specific circumstances. In this context, well drafted codes of practice could significantly assist users in complying with primary legislation and ensure a more preventive approach to the regulation of human activities affecting protected animals. We have concluded, therefore, that the power to issue codes of practice providing practical guidance in connection with the “disturbance” of animals strictly protected under the Habitats Directive should be retained. In line with the decision to harmonise the domestic transposition of “disturbance” under the Wild Birds and Habitats Directive, we have concluded that the power to issue codes of practice should be extended to the transposition of article 5(d) of the Wild Birds Directive.

     
     

     Harmonisation of EU and domestic disturbance prohibitions

129. Alongside the transposition of the disturbance prohibitions under the Bern Convention, the Wild Birds Directive and the Habitats Directives, domestic law further prohibits the “disturbance” of a number of other animals in order to give effect to domestic conservation preferences or other international commitments. Section 9(4) of the Wildlife and Countryside Act 1981, for instance, prohibits the intentional or reckless disturbance of

     
     

     any […] animal [listed in schedule 5] while it is occupying a structure or place which it uses for shelter or protection.115

     
     

     113 The Conservation of Habitats and Species Regulations 2010, reg 41(1)(b) prohibits the deliberate disturbance of protected wild animals; reg 41(1)(d) prohibits any damage or destruction of a breeding site or resting place of such an animal.

     114 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 38, para 39.

     115 The Protection of Badgers Act 1992, s 3(1) includes a virtually identical provision.

130. Section 9(4) currently protects both animals protected under article 6 of the Bern Convention or article 12 of the Habitats Directive and animals protected as a matter of purely domestic policy. As discussed above, however, animals protected under the Habitats Directive are also protected from disturbance under regulation 41(1) of the Conservation of Habitats and Species Regulations 2010. In consultation we suggested that those overlaps should be removed and provisionally proposed that the disturbance prohibitions giving effect to the directives in domestic law could be harmonised with the disturbance prohibitions giving effect to domestic policy choices.116

     
     

131. We have since taken the view, however, that the domestic disturbance prohibitions have a significantly different focus. As discussed above, under the Bern Convention and the Habitats and Wild Birds Directives, “disturbance” describes interferences that have negative effects on the conservation status of the population of a protected species. In the context of domestic disturbance prohibitions, on the other hand, “disturbance of an animal” has a straightforward meaning. It does not require any evidence of broader impacts on the conservation status of the protected species. We have concluded, therefore, that the disturbance prohibitions that give effect to domestic conservation preferences should not be simply subsumed into the “disturbance” prohibitions designed to give effect to the UK’s international and EU obligations.

     
     

132. Subject to the discussion of “harassment” below, we have concluded that in the draft Wildlife Bill all species protected under the Bern Convention, the Wild Birds Directive and Habitats Directive should be protected by the disturbance prohibitions giving effect to the obligations under the directives. Other species currently protected as a matter of domestic policy should be protected against individual disturbance.

     
     

133. We recommend, however, that consideration be given to whether any or all of the species protected under the Bern Convention and the directives (and in particular those of them that are currently protected by section 9(4)) should be given additional individual protection through “individual disturbance” prohibitions. From an enforcement perspective, “individual disturbance” prohibitions may sometimes be easier to prosecute. In some cases, therefore, it may well be that protecting individual animals from individual disturbance may constitute a more effective means of preventing activities that, cumulatively, have broader negative effects on the local population of that species.

     
     

     Recommendations

     
     

     Recommendation 29: we recommend that the transposition of the prohibition on “disturbance” under the Bern Convention, the Wild Birds Directive and the Habitats Directive should be uniform.

     
     

     116 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 8.

     Recommendation 30: we recommend that under the new framework a person should be guilty of “deliberate disturbance” in connection with wild birds and other animals protected under the Bern Convention, the Wild Birds Directive or the Habitats Directive if the person’s actions caused disturbance to the population of the relevant protected species in the area in which the action was carried out.

     
     

     Recommendation 31: we recommend that any reference to causing disturbance to the population of a protected species in an area should include, in particular

     
     

     1. actions that are likely to impair the ability of the relevant species to survive, breed or rear their young, hibernate or migrate; or

        
        

     2. actions that are likely to have a significant effect on the distribution or abundance of the population of the species in the area.

     
     

     Recommendation 32: we recommend that other species currently protected against individual disturbance under section 9(4) of the Wildlife and Countryside Act 1981 be protected from individual disturbance.

     
     

     Recommendation 33: we recommend that consideration should be given to whether species protected under the Bern Convention, the Wild Birds Directive and the Habitats Directive should be protected against individual disturbance.

     
     

     Recommendation 34: we recommend that the Secretary of State or Welsh Ministers should have the power to issue codes of practice for the purpose of providing practical guidance in respect of the application of the disturbance provisions in relation to specific species or geographical areas.

     
     

     These recommendations are given effect in the draft Bill by clauses 11, 51, 52 and 127.

     
     

     The “harassment” prohibitions under the Bonn Convention, the Agreement on the Conservation of African-Eurasian Migratory Waterbirds and the Agreement on the Conservation of Albatrosses and Petrels

134. The Bonn Convention, the African-Eurasian Waterbirds Agreement and Agreement on the Conservation of Albatrosses and Petrels additionally require contracting parties to prohibit the “harassment” of the species strictly protected by those international agreements.

     
     

135. The “harassment” of a species is not expressly prohibited in England and Wales. The criminal offence of “intentional or reckless” harassment of certain protected birds and animals (the basking shark, cetaceans and the white-tailed eagle) was, however, introduced in Scotland in 2004.117

     
     

     117 Nature Conservation (Scotland) Act 2004, sch 6, paras 2 and 8; Wildlife and Countryside Act 1981 (as it applies to Scotland), ss 9A, 1(5B) and sch 1A.

136. We considered the option of creating a free-standing harassment offence to give effect to the UK’s international obligations. After discussions with Parliamentary Counsel, however, we reached the view that the introduction of such an offence would simply add an unnecessary layer of complexity to domestic legislation. The “harassment” prohibition, in fact, would add very little to the existing “individual disturbance” prohibition. Both provisions aim at prohibiting conduct which causes distress to an individual specimen, regardless of the potential or actual consequences on the survival of the species.

     
     

137. We have concluded, therefore, that under the new framework animals protected from “harassment” under the above international agreements should be protected from “individual disturbance”, in line with section 9(4A) of the Wildlife and Countryside Act 1981.118

Recommendations

Recommendation 35: we recommend that animals (including birds) which are currently protected against “harassment” under relevant international treaties should be protected against individual disturbance of specimens of that species.

These recommendations are given effect in the draft Bill by clauses 10 and 52.

118 In line with the harmonisation of the mental element of certain offence recommended in Chapter 5, the offence under s 9(4A) of the Wildlife and Countryside Act 1981 is replicated under the new framework in terms of “deliberate” disturbance rather than “intentional or reckless” disturbance.

CHAPTER 4

PROHIBITED CONDUCT: PROTECTION OF WILD BIRDS

INTRODUCTION

1. In this Chapter we make recommendations for the simplification and reform of the prohibitions connected with the protection of wild birds.

   
   

2. As we mentioned in Chapter 3, the protection of wild birds in England and Wales is strongly influenced by international and European Union law. Most recommendations in this Chapter, therefore, are aimed at ensuring that the domestic protection regime gives effect to the United Kingdom’s international and EU obligations through a clear, consistent and flexible regulatory framework.

   
   

3. Recommendations in this Chapter cover, in particular, the definition of “wild bird”, the domestic transposition of the primary prohibitions under article 6 of the Bern Convention and article 5 of the Wild Birds Directive, the reform of the domestic regulation of hunting activities to give effect to the principles laid down in article 7 of the Directive, changes to the prohibitions in connection with the use of indiscriminate methods of killing or capturing wild birds in line with article 8 of the Directive and the reform of the regime regulating trade in and possession of protected wild birds.

   
   

   DEFINITION OF “WILD BIRD”

4. The protection of wild animals and plants under domestic law is primarily based on schedules listing the individual species or sub-species to which a specific prohibition applies. The protection of wild birds departs from that general approach, in that the core prohibitions apply to an open-ended definition of “wild bird” rather than a list of protected species.

   
   

   Wild bird species protected under the Wild Birds Directive

5. The Wild Birds Directive places an obligation on member states to establish a general system of protection for “all species of naturally occurring birds in the wild state on the European territory of the member states to which the Treaty applies”.1 The specific protection obligations under articles 5, 6 and 8 of the Wild Birds Directive apply to birds in this category.

   
   

6. As discussed in the consultation paper, the expression “naturally occurring”, in essence, excludes birds that are not indigenous to the relevant European territories and whose presence is dependent on direct or indirect introduction by man.2

   
   

7. The phrase “European territory of the member states to which the Treaty applies” excludes birds indigenous to territories to which the Treaty on the Functioning of

   
   

   1 Directive on the conservation of wild birds 2009/147/EC, Official Journal L 20 of 26.1.2010 p.7.

   2 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 6.7 to 6.11.

   the European Union (TFEU) applies that are geographically located outside Europe3 and birds indigenous to territories of member states that are geographically located in Europe, but to which the TFEU does not apply.4

   
   

8. What the definition does not clearly address is whether the expression includes birds that have been bred in captivity. This issue was considered by the Court of Justice of the European Union in Didier Vergy. In that case the Court ruled that the Directive did not extend to captive-bred birds, on the basis that extending the protective regime of the Wild Birds Directive to that category of birds serves neither the need “for the conservation of the natural environment” nor the objective of ensuring “the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe”.5

   
   

   Wild bird species protected under the Wildlife and Countryside Act 1981

9. The Wildlife and Countryside Act 1981 currently defines protected “wild birds” 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 or, except in sections 5 and 16, any game bird.6

   
   

10. “Poultry” is defined as “domestic fowls, geese, duck, guinea-fowls, pigeons and quails, and turkeys”. Game birds are defined as “any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan”.7

    
    

    Discussion

    
    

    Transposition of article 1 of the Wild Birds Directive

11. In the consultation paper we suggested that the current definition in the Wildlife and Countryside Act 1981 extends the domestic protection regime to species which the Wild Birds Directive was not intended to cover.8

    
    

12. The key problem we identified was that the current definition protects all species that have established self-sustaining wild populations in the European territory of member states to which the Treaty applies, irrespective of how the population was established. Consequently, non-native populations which may need to be controlled, such as the monk parakeet, currently fall within the domestic protection regime. There are generally no conservation reasons for protecting such species. As a result, we provisionally proposed bringing the domestic definition in line with the scope of the Wild Birds Directive, by replacing the

    
    

    3 These include Guadeloupe, French Guiana, Martinique, Reunion, Saint-Barthélemy, Saint- Martin, the Azores, Madeira and the Canary Islands (arts 349 and 355(1) TFEU).

    4 The Faeroe Islands are an example of this category of territories (art 355(5)(a) TFEU).

    5 Case C-149/94 Didier Vergy [1996] ECR I-299, para 13.

    6 Wildlife and Countryside Act 1981, s 27(1).

    7 Wildlife and Countryside Act 1981, s 27(1).

    8 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 6.7 to 6.10.

    expressions “ordinarily resident” and “visitor” with “naturally occurring”.9

    
    

13. In the light of the general support for this provisional proposal in consultation, we have concluded that the definition of “protected wild bird” under the new framework should be based around the term “naturally occurring”. This approach would bring our transposition into line with the definition contained in the Wild Birds Directive and exclude from the general domestic protection regime non- native species whose protection, in most cases, would not serve any conservation purpose.

    
    

14. To adopt such a definition would mean that species changing their natural range to include the European territory of a member state in response to changing ecological conditions or climate change would fall within the general protection regime. On the other hand, species present in the European territory of member states uniquely as a result of human intervention would fall outside the general protection regime.

    
    

15. “Visitors” – birds that do not normally occur in the EU that are present exceptionally due to natural events (such as storms) – would also be automatically caught by this definition, as their presence in the wild is not dependent on an “introduction” by man but will be taken to have occurred “naturally”, even if such a natural occurrence is not normal. We have concluded, therefore, that replicating the express reference to “visitors” would be unnecessary.

    
    

    Recommendations

    
    

    Recommendation 36: we recommend that protected wild bird species should be protected by reference to the definition of “wild bird” under article 1 of the Wild Birds Directive.

    
    

    This recommendation is given effect in the draft Bill by clause 1(2)(a).

    
    

    Birds that do not naturally occur in the European territory of a member state to which the Treaty applies

16. As a number of consultation responses pointed out, adopting a definition of “wild bird” in line with article 1 of the Wild Birds Directive will automatically remove a number of non-native birds that are present in the wild in England and Wales from the domestic protection regime. Our view, nevertheless, is that any effective regulatory regime should be capable of allowing the Secretary of State or Welsh Ministers to protect those bird species present in the wild for reasons that are not necessarily connected to conservation, such as animal welfare. As discussed below, specifically listing certain species may also serve the purpose of removing uncertainties as to the natural range of certain species.

    
    

17. We have therefore concluded that under the new framework the Secretary of State or Welsh Ministers should have the power to list specific bird species that fall outside the general definition of “wild bird” for the purpose of protecting them through the same set of prohibitions.

    
    

    9 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 1.

    Recommendations

    
    

    Recommendation 37: we recommend that the Secretary of State or Welsh Ministers should have the power to list specific bird species that fall outside the general definition of “wild bird” for the purpose of protecting them from the same set of prohibitions.

    
    

    This recommendation is given effect in the draft Bill by clauses 1(2)(b) and 160.

    
    

    Exclusion of captive-bred birds

18. In the light of the Court of Justice’s ruling in Vergy,10 it is now clear that the domestic transposition of the obligations under the Wild Birds Directive does not need to extend to specimens of a species “born and reared in captivity”, on the basis that, as a general rule, to extend the protective regime to captive-bred birds would not serve any conservation purpose.

    
    

19. Under the Wildlife and Countryside Act 1981, captive-bred birds are only excluded from the definition of “wild bird” in connection with the prohibitions giving effect to article 5 (general system of protection) of the Wild Birds Directive.11 Section 1(6) currently provides that:

    
    

    For the purposes of [section 1] the definition of “wild bird” in section 27(1) is to be read as not including any bird which is shown to have been bred in captivity unless it has been lawfully released into the wild as part of a re-population or re-introduction programme.12

    
    

20. In consultation we asked whether the exclusion of captive-bred birds from the new general definition of “wild bird” would be best transposed by solely referring to the definition of “wild bird” in article 1 of the Directive, or by express reference to the exclusion.13 A large majority of consultees supported the option of expressly excluding captive-bred birds from the definition of “wild bird”, on the basis that it would make the law more certain and accessible.

    
    

21. In Vergy, the Court of Justice was asked to clarify the scope of the definition of “wild bird” under article 1 of Wild Birds Directive on the basis that the wording of article 1 was ambiguous in that regard. We have concluded, therefore, that to prevent legitimate misunderstandings as to the scope of the definition, an express reference to the exclusion of captive-bred birds from its scope would bring clarity to the regulatory regime.

    
    

22. The judgment did not address the status of specimens that were born and reared in captivity but subsequently re-introduced into the wild as part of re-introduction or re-population programmes. We have concluded that the rationale of the Court of Justice’s ruling in Vergy – that the protection of captive-bred birds would fall

    
    

    10 Case C-149/94 Didier Vergy [1996] ECR I-299.

    11 Wildlife and Countryside Act 1981, s 1.

    12 “Re-population” and “re-introduction” have the same meaning as in the Wild Birds Directive (Wildlife and Countryside Act 1981, s 1(6A)).

    13 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 4.

    outside the conservation objectives of the Wild Birds Directive – does not extend to birds that have been bred in captivity and released into the wild for those purposes.

    
    

23. Article 2 of the Wild Birds Directive requires member states to take the requisite measures to maintain the population of wild birds at a level which corresponds in particular to ecological, scientific and cultural requirements. Our view is that re- population and re-introduction programmes undoubtedly qualify as “conservation measures” falling within the ambit of the member states’ general obligations under article 2 of the Directive.14 It follows that the protection of captive-bred birds that have been released into the wild as part of a population or re-introduction programme falls squarely within the scope of the Directive.

    
    

24. We have concluded, therefore, that the new framework the definition of “wild bird” should expressly exclude captive-bred birds, unless they have been lawfully released into the wild as part of a re-population or re-introduction programme.

    
    

    Recommendations

    
    

    Recommendation 38: we recommend that the definition of “wild bird” should expressly exclude captive-bred birds, unless they have been lawfully released into the wild as part of a re-population or re-introduction programme.

    
    

    This recommendation is given effect in the draft Bill by clauses 1(3) and (5).

    
    

    REVERSE BURDEN OF PROOF

25. Under section 1 of the Wildlife and Countryside Act 1981, a bird of a protected species is presumed to be “wild” unless it can be shown that it was bred in captivity.15 A bird, moreover, will not be treated as captive-bred unless the defendant shows that its parents were lawfully in captivity when the egg was laid.16 In other words, the burden of proving that a bird is captive-bred rests on the defendant – this is called a reverse burden.

    
    

26. A reverse burden of proof may, in some circumstances, be incompatible with article 6(2) of the European Convention on Human Rights, which guarantees the presumption of innocence in criminal proceedings.17 Relevant case law suggests, however, that a reverse legal burden of proof will be justified where it is proportionate and is reasonably necessary in all the circumstances. Any shift in the burden should be confined “within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence”.18

    
    

    14 Under art 9, re-population and re-introduction programmes are also an express ground for derogating from the general prohibitions of the Directive.

    15 Wildlife and Countryside Act 1981, s 1(6).

    16 Wildlife and Countryside Act 1981, s 27(2).

    17 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 7.51-7.57.

    18 See Salabiaku v France (1988) 13 EHRR 379 (App No 10519/83) at [28]. See also Hoang v France (1993) 16 EHRR 53; X v UK (1972) 42 CD 135 (App No 5877/72); Sheldrake [2005] 1 AC 246; and A-G's Reference (No 1 of 2004) and R v Edwards and others [2004] EWCA Crim 1025, [2004] 1 WLR 2111.

27. The justification for a reverse burden of proof on the defendant, in this context, is the significant information imbalance between defence and prosecution. In the absence of a reverse burden of proof, the prosecution would have to prove beyond reasonable doubt that the bird had not been bred in captivity. This may be reasonably easy with a golden eagle but it is far more difficult with certain more popular traded birds, such as peregrine falcons, as in most cases there is no obvious genetic difference between a wild and a captive-bred bird. As the defendant would be reasonably expected to know the provenance of the bird that was found in his or her possession, in most cases the burden of proof would not be a heavy one.

    
    

28. We have concluded, therefore, that the reverse burden requiring the defendant to show that the bird in question is not a wild bird should be retained. In other words, it should be for the individual relying on the identity of the bird being “captive-bred” to show that the bird was hatched in captivity.

    
    

29. In line with section 27(2) of the Wildlife and Countryside Act 1981, we have also concluded that a bird of a protected species should not be treated as captive- bred unless the defendant shows that its parents were lawfully in captivity when the egg was laid. This provision is consistent with the object and purpose of the regulatory regime, which is to create a complete system of protection for the wild population of birds of species that naturally occur in the EU. Removing the young of wild birds that have been illegally captured from the wild from the scope of the protection regime would encourage the illegal capture of wild birds for the purpose of breeding and subsequently selling the young. The possession or sale of the young, in fact, would become legal on the basis that they could technically qualify as birds bred in captivity.

    
    

30. Certain stakeholders argued that the above provisions impose an unreasonable burden on people who breed or possess captive-bred birds belonging to species protected under the Wild Birds Directive. It has been argued, in particular, that the requirement to prove that the parents were lawfully in captivity at the time the egg was laid could potentially extend to all previous generations of captive-bred birds of that species. Even when a bird is ringed, the presence of the ring only proves that the bird was hatched in captivity; it does not necessarily prove that its parents were necessarily lawfully in captivity when the egg was laid.

    
    

31. We were not persuaded by the argument that a requirement to show that the parents of a bird were lawfully in captivity when the egg was laid is wrong in principle. As further discussed in the sections on secondary prohibitions below, we have accepted, nevertheless, that in certain circumstances such a requirement may create legal uncertainty in connection with the trade and possession of certain birds, particularly where the parents of the bird in question originate from another member state with different documentary requirements in

    place.19 We have concluded, therefore, that while the above reverse burden should be retained, the Secretary of State or Welsh Ministers should have the power to make regulations specifying particular ringing, marking or other registration requirements that, if complied with by the defendant, would restore the burden of proof to the prosecution, both in the context of trade and in the context of possession offences.

    
    

32. A bird that is ringed, marked or registered in accordance with the above regulations, in other words, should be presumed to be a captive-bred bird unless the prosecution proves that:

    
    

    1. the bird was not captive-bred (or the parents of the bird in question were not lawfully in captivity when the egg was laid); and

       
       

    2. the defendant knew, or had reason to believe at the time of the alleged offence that it was not captive-bred.

       
       

33. The second requirement aims to protect, for instance, good faith purchasers of birds who relied on the seller’s compliance with the relevant ringing, tagging or registration requirements.

    
    

    Recommendations

    
    

    Recommendation 39: we recommend that a bird of a protected species should be presumed to be wild unless the defendant shows that it was captive-bred, but a bird should not be treated as captive-bred unless the defendant shows that its parents were lawfully in captivity when the egg was laid.

    
    

    This recommendation is given effect in the draft Bill by clause 1(4).

    
    

    Recommendation 40: we recommend that the Secretary of State or Welsh Ministers should have the power to make regulations specifying particular ringing, marking or other registration requirements. A bird ringed, marked or otherwise registered in accordance with the regulations should be presumed to be captive-bred unless the prosecution proves that the bird was not captive-bred and that the defendant knew, or had reason to believe at the time of the alleged offence that it was not captive-bred.

    
    

    This recommendation is given effect in the draft Bill by clause 27.

    
    

    19 See Wildlife and Countryside (Ringing of Certain Birds) Regulations 1982 SI 1982 No 1220, General Licence WLM – 18 (for England) and General Licence WLM – 10 (For Wales). As discussed in the consultation paper “Captive-bred birds: changing how we regulate trading in England, Scotland and Wales” published by the Defra, the Welsh Government and the Scottish Government in January 2015 (available at: https://www.gov.uk/government/consultations/captive-bred-birds-changing-how-we- regulate-trading-in-england-scotland-and-wales (last visited 26 October 2015)), a review of the regulation of the trade in live captive-bred birds is under way for the purpose of addressing concerns that the current strict approach to ringing requirements constitutes an unlawful barrier to the import of birds bred in other EU member states.

    Poultry

34. The current definition of “wild bird” under the Wildlife and Countryside Act 1981 expressly excludes poultry. In consultation we asked whether this express exclusion should be retained.20 Whilst an overwhelming majority of consultees agreed with retaining an express exclusion of “poultry” from the definition of “wild bird”, a large number of responses to this question, both positive and negative, noted that the distinction that really matters is whether or not a bird of the “poultry” species in question is captive-bred, and whether or not the “poultry” species in question is domesticated.

    
    

35. We have concluded, on balance, that the express exclusion of “poultry” from the definition of “wild bird” should not be retained. If the current exclusion applies to all the members of a species naturally occurring in the EU that has been domesticated, it goes further than what is permitted by the Court of Justice’s ruling in Vergy. If the exclusion only applies to those members of a species born and reared in captivity, then there seems to be no need for a specific exclusion: the general exclusion of an individual born and reared in captivity would suffice.

    
    

    Recommendations

    
    

    Recommendation 41: we recommend that the current express exclusion of “poultry” from the definition of “wild bird” should not be retained.

    
    

    The common pheasant and the Canada goose

36. An interesting question is whether the Directive requires member states to protect the common pheasant (Phasianus colchicus) – a bird originally native to Asia that has been artificially introduced in Europe in large numbers – and the Canada goose (Branta Canadensis) – a species originally native to North America that has been introduced, and is commonly hunted, in a number of European countries.

    
    

37. Despite the fact that the common pheasant and the Canada goose can hardly be defined as species that naturally occur in a wild state in the European territory of the member states to which the Treaty applies, we have noted that they are expressly listed as huntable bird species under annex 2 to the Directive. The only logical conclusion from their presence in annex 2 to the Directive, in our view, is that the common pheasant and the Canada goose should be deemed to be wild bird species falling within the ambit of the protection provisions of the Directive. To clarify the issue, we have concluded that the common pheasant and the Canada goose should, therefore, be deemed to be “wild birds” of a protected species by being expressly listed in the schedule dedicated to wild birds that fall outside the scope of the new definition.21

    
    

    Recommendations

    
    

    Recommendation 42: we recommend that the common pheasant and the Canada goose should be deemed to be wild birds falling within the scope of

    
    

    20 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 2.

    21 Wildlife Bill, schedule 1.

    the protection provisions available to all other bird species falling within the scope of the definition of article 1 of the Wild Birds Directive.

    
    

    This recommendation is given effect in the draft Bill by clause 1(2)(b) and schedule 1.

    
    

    Game birds

38. The current domestic definition of “wild bird” expressly excludes “game birds”,22 except for the purpose of the methods and means prohibitions under section 5 of the Wildlife and Countryside Act 1981.23 The definition of “game bird” includes a number of huntable bird species the killing, capture and sale of which is primarily regulated by sections 3 and 3A of the Game Act 1831. The current protection prohibitions that apply to game birds do not distinguish between wild and captive- bred birds. This is because a number of those species are commonly bred in captivity and subsequently released in the wild for recreational hunting purposes. For the purpose of regulating those hunting activities, therefore, creating a distinction between wild and non-wild populations of game birds would be extremely artificial.

    
    

39. As discussed below, under our recommended new framework the prohibitions under sections 3 and 3A of the Game Act 1831 will be integrated and consolidated with the generally applicable protection provisions flowing from article 5 of the Wild Birds Directive. In consultation, therefore, we asked whether for the purpose of those offences, “game birds” should be deemed to be “wild birds”.24 A large majority of consultees, including representatives of the shooting industry, agreed that they should.

    
    

40. We have concluded that – in line with the current protection policy – under the new framework game birds should continue to be protected by killing, capture and sale offences irrespective of their “wild” or “captive-bred” status. Potential alternatives that were considered included removing the concept of “game bird” and protecting only wild “game” species that fall within the scope of the Directive or restricting the above protection provisions to game birds that have been permanently released in the wild. While those alternatives could make the law look neater, in line with the consultation responses from representatives of the shooting industry, we have concluded that due to current “breeding and release” practices, both options could potentially create more practical and definitional problems than they would solve.

    
    

41. It is also worth noting that the current exclusion of wild “game bird” species from the scope of section 1 of the Wildlife and Countryside Act 1981 constitutes a failure to transpose article 5 of the Wild Birds Directive. Beside the prohibition on deliberate killing or capture of wild birds, article 5 of the Wild Birds Directive also requires member states to prohibit, for instance, damage to or destruction of the

    
    

    22 “Any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan” (Wildlife and Countryside Act 1981, s 27).

    23 Wildlife and Countryside Act 1981, s 27(1). The use of certain methods of killing or capturing wild birds is prohibited under s 5.

    24 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 6- 3.

    nests of wild birds falling within the scope of article 1 of the Directive. This prohibition is currently given effect in domestic law under sections 1(1)(aa) and

    (b) of the Act. As discussed above, all wild “game bird” species fall within the scope of the protection provisions of the Directive. The failure to prohibit damage to or destruction of their nests, therefore, constitutes a breach of article 5 of the Directive.

    
    

    Recommendations

    
    

    Recommendation 43: we recommend that “game birds” should continue to be protected by killing, capture and sale offences irrespective of their “wild” or “captive-bred” status.

    
    

    This recommendation is given effect in the draft Bill by clause 2(1)(a)(ii) and schedule 2.

    
    

    PRIMARY ACTIVITY PROHIBITIONS

42. Primary activity prohibitions – prohibitions that regulate activities that have a direct effect on wildlife – constitute the backbone of the species-specific protection regime for wild birds in England and Wales.

    
    

43. In the context of the protection of wild birds, the expression “primary activity prohibitions” refers, in particular, to the activities prohibited under article 5(a) to

    (d) of the Wild Birds Directive and their implementing provisions in England and Wales.

    
    

44. Our recommendations in this section focus on ensuring that the UK’s international and EU obligations are correctly transposed in a simple and coherent structure.

    
    

    Mental element of the new offences

45. For the reasons explained in Chapter 3, the Court of Justice’s ruling in Commission v Spain indicates that the use of the word “intentional” in section 1 of the Wildlife and Countryside Act 1981 is an inadequate transposition of the term “deliberate” as used in article 5 of the Wild Birds Directive. 25 We have concluded, therefore, that as a general rule the mental element of the new domestic offences giving effect to article 6 of the Bern Convention and article 5 of the Wild Birds Directive should be in line with the definition of the word “deliberate” discussed in Chapter 3.

    
    

    Recommendation 44: we recommend that the terms “intentional” and “intentional or reckless” in the context of wild bird offences be replaced with the term “deliberate” as defined in recommendations 25 to 28.

    
    

    This recommendation is given effect in the draft Bill by clauses 2, 7, 8, 11 and 12.

    
    

    25 Case C-221/04 Commission v Spain [2006] ECR I-04515.

    Deliberately killing, injuring or capturing birds of a protected species

    
    

    International and EU obligations

46. As mentioned in Chapter 3 of this Report, article 5(a) of the Wild Birds Directive requires member states to prohibit, subject to articles 7 and 9, the deliberate killing or capture of wild birds of the protected species referred to in article 1 of the Directive. Article 6 of the Bern Convention imposes an equivalent obligation on contracting parties in connection with all wild birds listed in appendix 2 to the Convention.26

    
    

    Domestic transposition

47. Article 5(a) of the Wild Birds Directive is primarily transposed in domestic law through section 1(1)(a) of the Wildlife and Countryside Act 1981, which provides that, subject to the provisions of Part 1 of the Act, any person who “intentionally kills, injures or takes any wild bird” shall be guilty of an offence.

    
    

48. As discussed above, “game birds” are currently subject to a separate protection regime under the Game Act 1831. Section 3 of the Game Act 1831 prohibits the “killing or taking” of any game birds during specific close seasons.

    
    

    Simplification

49. Earlier in this Chapter we recommended that “game birds” should be protected in the same way as all other protected “wild birds” for the purpose of this prohibition. We have concluded, therefore, that under the new framework there should be a single offence that applies to the following categories of birds:

    
    

    1. birds of species naturally occurring in a wild state within the European territory of any member state to which the TFEU applies (excluding captive- bred birds, unless lawfully released into the wild as part of a re-population or re-introduction programme);

       
       

    2. the common pheasant and Canada goose, subject to the same exclusion;

       
       

    3. birds of other species that are expressly listed by the Secretary of State or Welsh Ministers, subject to the same exclusion; and

       
       

    4. the pheasant, partridge, grouse (or moor game), black game (or heath game) and ptarmigan.

       
       

       Replacing the word “take” with “capture”

50. In section 1, the Wildlife and Countryside Act 1981 adopted the term “take”, rather than “capture” – which is the term used in article 5(a) of the Wild Birds Directive. The word “take” has been used for a long time in wildlife law, and appears in a number of other wildlife protection statutes, including the Protection of Badgers Act 1992, the Deer Act 1991 and the Conservation of Seals Act 1970. The Conservation of Habitats and Species Regulations 2010, on the other hand, use the term “capture” to transpose the equivalent prohibition under article

    
    

    26 The Bonn Convention, the AEWA and ACAP impose compatible obligations.

    12(1)(a) of the Habitats Directive.

    
    

51. In line with the judicial interpretation of the term “take”, we have concluded that it should be replaced in the new legislation by the term “capture”, on the basis that the latter term better portrays the act of taking a live bird.27 It also clarifies that the offence is about “taking a bird from the wild”, rather than, for instance, stealing a bird that is already in another person’s possession. The word “capture”, in addition, mirrors the language of the Directives.

    
    

    Injuring

52. Section 1(1)(a) of the Wildlife and Countryside Act 1981 also prohibits acts causing “injury” to a wild bird even though this is not expressly required by the Wild Birds Directive. The same approach was taken under the Conservation of Habitats and Species Regulations 2010. 28

    
    

53. We have concluded that the prohibition should be retained. It would be against the object and purpose of the Wild Birds Directive to prohibit the deliberate capture or killing of a wild protected animal whilst allowing the deliberate injuring of such an animal in the same circumstances. In terms of conservation, injuring a specimen has often identical effects to the killing of the same specimen, as it may prevent a bird from successfully breeding or feeding or protecting its young.

    
    

    Recommendations

    
    

    Recommendation 45: we recommend that the prohibition of “deliberate” killing, capture or injury should extend to:

    
    

    1. birds of species naturally occurring in a wild state within the European territory of any member state to which the TFEU applies (excluding captive-bred birds, unless lawfully released into the wild as part of a re-population or re-introduction programme);

       
       

    2. the common pheasant and Canada goose, subject to the same exclusion;

       
       

    3. birds of other species that are expressly listed by the Secretary of State or Welsh Ministers, subject to the same exclusion; and

       
       

    4. the pheasant, partridge, grouse (or moor game), black game (or heath game) and ptarmigan.

    
    

    This recommendation is given effect in the draft Bill by clause 2.

    
    

    27 In Robinson v Everett [1988] Crim LR 699, the Divisional Court clarified that the word "take" in the context of s 1(3)(a) of the Wildlife and Countryside Act 1981 means “to capture a live bird”, and that any reference to “taking” in the Wildlife and Countryside Act 1981 and prior legislation equated to “capturing”. The same position is reflected in the Wild Birds Directive, where the word “capturing” is used in relation to live wild birds (art 5(a)) while the word taking is only used in relation to eggs (art 5(c)).

    28 SI 2010 No 490, reg 41(1)(a).

    Protection of nests, eggs, breeding sites and resting places

    
    

    The Bern Convention

54. Article 6 of the Bern Convention requires each contracting party to prohibit, in relation to animals listed in appendix 2:

    
    

    (b) the deliberate damage to or destruction of breeding or resting sites; [and] …

    
    

    (d) the deliberate destruction or taking of eggs from the wild or keeping these eggs even if empty.

    
    

    The Wild Birds Directive

55. Articles 5(b) and (c) of the Wild Birds Directive provide that, without prejudice to Articles 7 and 9, member states should prohibit, in relation to protected wild birds, the:

    
    

    1. deliberate destruction of, or damage to, their nests and eggs or removal of their nests; [and]

       
       

    2. taking their eggs in the wild and keeping these eggs even if empty.29

    
    

    Domestic transposition

56. The obligations relating to damage, destruction and taking are currently transposed in domestic law by section 1(1)(aa), (b) and (c) of the Wildlife and Countryside Act 1981, which provide that a person is guilty of an offence if he or she intentionally:

    
    

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

    
    

    1. takes, damages or destroys the nest of any wild bird while that nest is in use or being built; or

       
       

    2. takes or destroys30 an egg of any wild bird.

    
    

    Transposition problems

57. The Wild Birds Directive requires member states to prohibit the destruction, damage to or removal of the nests of wild birds of a protected species. While the word “nest” is not defined in the Directive, our view is that it should be broadly understood – in line with its ordinary meaning – as including any “structure made or a place chosen by a bird for laying and incubating its eggs and for sheltering

    
    

    29 Prohibitions in connection with the “keeping” of protected bird eggs are discussed in the section on secondary prohibitions at the end of this Chapter.

    30 The Wildlife and Countryside Act 1981, s 27(1), provides that “destroy”, in relation to an egg, includes doing anything to the egg which is calculated to prevent it from hatching, and “destruction” shall be construed accordingly.

    its young”.31

    
    

58. As the scope of article 6 of the Bern Convention is not limited to the protection of wild birds, it does not expressly refer to the damage or destruction of nests, but prohibits, more generally, the “deliberate damage to or destruction of breeding or resting sites” of animals listed in appendix 2.

    
    

59. The European Commission’s guidance on article 12 of the Habitats Directive defines “breeding sites” as:

    
    

    the areas needed to mate and to give birth in and covers also the vicinity of the nest or parturition site, where offspring are dependent on such sites. For some species, a breeding site will also include associated structures needed for territorial definition and defence.32

    
    

60. The guidance defines resting places as “the areas essential to sustain an animal or group of animals when they are not active”.33

    
    

61. The above definitions make clear that the expressions “breeding sites” and, in particular, “resting places” are broader than the ordinary meaning of “nest”. The word “nest”, moreover, does not cover places such as roosts, where birds settle to rest or sleep. In this context, therefore, it would appear that the Wild Birds Directive does not fully give effect to the EU and UK’s international obligations under the Bern Convention. We have concluded, therefore, that the obligation to prohibit deliberate damage to or destruction of breeding or resting sites of wild birds listed in appendix 2 to the Bern Convention should be transposed in domestic law through a separate offence.

    
    

62. In general terms, therefore, we have concluded that the above obligations should be given effect in domestic law through the following prohibitions:

    
    

    1. an offence of “deliberate” damage to destruction or removal of a nest of wild birds of a species that naturally occurs in a wild state within the European territory of any member state to which the TFEU applies, common pheasants and Canada geese;

       
       

    2. an offence of “deliberate” damage to or destruction of protected breeding sites or resting places of wild birds listed in appendix 2 to the Bern Convention that have a natural range including Great Britain; and

       
       

    3. an offence of taking, or deliberate damage to the eggs of wild birds in subparagraph (1) above.

       
       

       31 Oxford English Dictionary.

       32 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 46.

       33 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 46.

       Protection of nests

       
       

       BIRDS THAT RE-USE THEIR NESTS

63. Read literally, article 5(b) of the Wild Birds Directive requires member states to ban the destruction, damage or removal of nests of wild birds of a protected species, whether or not those nests are in use. We have concluded, however, that this could not possibly have been the intention of the drafters of the Directive, as the protection of nests which have been permanently abandoned serves no conservation purpose. It would also, arguably, impose unreasonable burdens on the forestry sector, as it would require users to seek a licence every time they have to interfere with a nest, even though their operations are carried out outside the breeding season of the relevant birds and all the nests are abandoned.

    
    

64. In order to comply with article 5(b) of the Wild Birds Directive, we think it necessary to prohibit the deliberate destruction of, damage to, or removal of, the nests of any wild bird while the nest is being built or is in use and the deliberate commission of any of the prescribed interferences in relation to nests which are not in use but are nests of wild birds that may re-use such nests in the future, as any interference of this kind may have an impact on the conservation of those species.34

    
    

65. We believe, therefore, that retaining the current approach in sections 1(1)(aa) and 1(1)(b) of the Wildlife and Countryside Act 1981 will correctly transpose article 5(b) of the Directive as long as the provision of the new framework replicating section 1(1)(aa) and schedule ZA1 to the Wildlife and Countryside Act 1981 expressly extends to the nests of all wild birds of a protected species that re-use their nests.

    
    

    REMOVAL OF THE NEST

66. Article 5(b) of the Wild Birds Directive prohibits the “removal” of the nests of protected birds. Sections 1(1)(aa) and 1(1)(b) of the Wildlife and Countryside Act 1981 transpose the above obligation by prohibiting the “taking” of the nests of protected birds. We have concluded that the expression used in the Directive should be used. The nest of a wild bird could be “removed” from where it was built, causing disturbance to the bird without it necessarily being “taken” into the person’s possession.

    
    

67. In line with the above approach, it should be an offence to remove the nest of any wild bird while the nest is in use or is being built. It should also be an offence to remove the nest of a scheduled wild bird (wild birds which re-use their nests) whether or not the nest is in use or is being built.

    
    

    “DAMAGE” AND “DESTRUCTION”

68. In line with the European Commission’s guidance on article 12 of the Habitats Directive in relation to the “deterioration” and “destruction” of a breeding site or

    
    

    34 The term “in use” should not be understood as a synonym of “in occupation”. A nest may well be in use even if it is unoccupied for a limited period of time. See, by analogy, European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 41, para 53.

    resting place,35 we have concluded that the terms “damage” and “destruction” should not be limited to physical damage or destruction of the nest. The offence must cover, for example, activities which prevent a bird from using a nest. We have concluded, therefore, that it should also be an offence to prevent a bird from obtaining access to a protected nest, whether or not the nest itself is physically destroyed or damaged.

    
    

    Protection of breeding sites or resting places

69. As the European Commission’s guidance suggests, the aim of this prohibition is to “safeguard the ecological functionality of breeding sites and resting places”. This is because resting places and breeding sites “are crucial to the life cycle of animals and are very important parts of a species’ entire habitat, needed to ensure its survival”. Their protection, therefore, “is directly connected with the conservation status of a species”.36

    
    

    “DESTRUCTION”, “DAMAGE” OR “DETERIORATION”

70. The English version of the Bern Convention prohibits “damage” or “destruction”. The French version of the Bern Convention, on the other hand, adopted the term “détérioration” (deterioration) rather than, for instance, “endommagement” (damage). A similar inconsistency was highlighted by the European Commission’s guidance in the context of the transposition of article 6(b) of the Bern Convention in EU law. The English version of article 12(1)(d) of the Habitats Directive prohibits the “deterioration” or “destruction” of breeding sites and resting places. The European Commission’s guidance explains that the terms used in the German, Danish, Dutch and Swedish versions of that article, however, are closer to the word "damage" than "deterioration".37

    
    

71. The object and purpose of this offence, as the European Commission’s guidance suggests, is to protect “the essential function of these sites, which must continue to provide all the elements required by a specific animal (or group of animals) to breed or to rest”. In the light of the object and purpose of this offence, the guidance suggests that the term “deterioration” is meant to prohibit activities that gradually reduce the functionality of the site or place:

    
    

    Deterioration may therefore not immediately lead to a loss of functionality of a site/place, but would adversely affect functionality in terms of quality or quantity and might over a certain period of time lead to its complete loss. 38

    
    

72. The above suggests that although some physical damage would have to be proved to establish that a certain breeding site has been caused to deteriorate by a particular activity, to establish “deterioration” it is unnecessary to prove that the

    
    

    35 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 46.

    36 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 41, para 53.

    37 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 46, para 69.

    38 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 47, para 70.

    damage was such as to significantly impair the functionality of the site. To show that a breeding site or resting place has been caused to deteriorate, the damage does not need to be pinned to a specific episode in time and space, as long as a clear cause-effect relationship is established between the operation of a certain activity and the gradual deterioration of a relevant breeding site or resting place.

    
    

73. We have concluded that in the light of the object and purpose of this offence, and the use of the words “damage” and “deterioration” interchangeably in the different language versions of the Bern Convention and the Habitats Directive, the clearest way to transpose the above obligation in domestic law is by expressly referring to both “damage” and “deterioration”. Under the new framework, therefore, it should be an offence “deliberately” to damage, destroy or cause the deterioration of a protected breeding site or resting place.

    
    

    OBSTRUCTING ACCESS TO A PROTECTED BREEDING SITE OR RESTING PLACE

74. As the purpose of this offence is to protect the ecological functionality of breeding sites and resting places, we have concluded that it should also be an offence to obstruct access to a breeding site or resting place of a bird listed in appendix 2 to the Bern Convention.

    
    

    GUIDANCE

75. While the European Commission guidance provides a general description and some useful examples on the scope of the terms “breeding site” and “resting place”,39 it acknowledges that:

    
    

    It is not possible to provide a rigid definition of “breeding site” and “resting places” that will apply to all taxa. Any interpretation of the terms “breeding sites” and “resting places” must therefore take into account this variety and reflect different prevailing conditions.40

    
    

76. In line with the current transposition of article 6(b) of the Bern Convention (and article 12(1)(d) of the Habitats Directive) in domestic law, we have concluded that under the new framework the Secretary of State or Welsh Ministers (or Natural England and Natural Resources Wales with the approval of the Secretary of State or Welsh Ministers respectively) should have the power to issue codes or practice giving practical guidance as to the application of this offence under the new legislation. The codes of practice could usefully clarify, for instance, how the terms “breeding site” and “resting place” should be interpreted in the context of specific bird species.

    
    

    Protection of eggs

    
    

    DELIBERATE DESTRUCTION OF OR DAMAGE TO EGGS OF WILD BIRDS

77. Article 5(b) of the Wild Birds Directive prohibits the “deliberate destruction of, or damage to, their […] eggs”. Article 6(b) of the Bern Convention prohibits the “deliberate destruction […] of eggs from the wild”.

    
    

    39 This part of the guidance has already been cited above in the context of the discussion on the transposition of article 5(b) of the Wild Birds Directive.

    40 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 41, para 55.

78. The Wildlife and Countryside Act 1981 currently only prohibits the destruction of the eggs of wild birds. “Destruction”, however, is defined as including anything done to an egg which is calculated to prevent it from hatching.

    
    

79. To ensure full compliance with article 5(b) of the Wild Birds Directive, we have concluded that the offence under the new framework should prohibit both deliberate “damage” to and the deliberate “destruction” of the egg of a wild bird. We have concluded that, in line with the current definition, “destruction” and “damage” should be understood as including anything done to an egg that prevents it from hatching.41

    
    

    Taking the egg of a wild bird

80. Article 5(c) of the Wild Birds Directive prohibits the “taking” of the eggs of a wild bird in the wild and the keeping of those eggs even if empty. In this context, the Wild Birds Directive does not require the action to be carried out “deliberately”. The reason for this approach is obvious: it is unclear how a person may ever take the egg of a wild bird from the wild unintentionally. The offence under the new framework should, therefore, follow the same approach.42

    
    

    Recommendations

    
    

    Recommendation 46: we recommend that the existing international and EU obligations in connection with the protection of nests, eggs, breeding sites and resting places should be transposed in domestic law through the following offences:

    
    

    1. An offence prohibiting the taking of eggs of a “wild bird” from the wild and “deliberate” damage to or destruction of eggs of a “wild bird” (including anything done which prevents the egg from hatching);

       
       

    2. An offence prohibiting “deliberate” damage to, destruction or removal of, and obstruction of access to, a nest of a “wild bird” whilst the nest is being used or being built, or a nest of a listed wild bird of a species that re-uses its nests;

       
       

    3. An offence prohibiting the “deliberate” damage to, destruction or deterioration of, or obstruction of access to, a breeding site or resting place of a wild bird of a species listed in annex 2 to the Bern Convention that has a natural range including Great Britain.

    
    

    This recommendation is given effect in the draft Bill by clauses 7, 8 and 9.

    
    

    Recommendation 47: we recommend that the Secretary of State or Welsh Ministers should have the power to issue codes of practice for the purpose of providing practical guidance in respect of the application of the provisions in connection with damage to, destruction or deterioration of

    
    

    41 Unless otherwise stated, any reference to the term “deliberate” should be read in line with the recommended domestic definition of deliberate discussed in Chapter 3.

    42 The “keeping” prohibition under article 5(c) of the Wild Birds Directive is discussed below in the context of secondary offences.

    breeding places or resting sites of wild birds listed in appendix 2 to the Bern Convention that have a natural range including Great Britain.

    
    

    This recommendation is given effect in the draft Bill by clause 127.

    
    

    Disturbance and harassment

81. The transposition of the prohibitions on deliberate disturbance and harassment has been discussed at length in Chapter 3 above. In sum, we have concluded that there should be two separate offences under the new framework to give effect to the UK’s international and EU obligations under the Bern Convention, the Bonn Convention, the African-Eurasian Migratory Waterbirds Agreement, the Agreement on the Conservation of Albatrosses and Petrels and the Wild Birds Directive.

    
    

82. The first offence should prohibit the deliberate disturbance of individual specimens of listed species. As this offence gives effect to the harassment prohibitions under the Bonn Convention, the African-Eurasian Migratory Waterbirds Agreement and the Agreement on the Conservation of Albatrosses and Petrels we have concluded that it should apply to the white-tailed eagle (strictly protected under the Bonn Convention), the Balearic shearwater (strictly protected under the Agreement on the Conservation of Albatrosses and Petrels) and any other bird species strictly protected under the above international agreements that have a natural range including Great Britain. As the current domestic disturbance prohibitions under section 1(5) of the Wildlife and Countryside Act 1981 are also framed in terms of direct interference with individual specimens, this offence may also be used to replicate the existing protection of bird species to which the current disturbance prohibitions apply.

    
    

83. The second offence should prohibit the deliberate disturbance of the local populations of all wild birds falling within the scope of article 1 of the Wild Birds Directive. The prohibition should expressly provide that a reference to an action that causes disturbance to the population of wild birds or a protected species in an area should include, in particular, a reference to any action likely to impair the ability of birds of that species to survive, breed or rear their young and – in the case of a migratory species – migrate, or any act that is likely to have a significant effect on the distribution or abundance of the population of the species in the area.

    
    

84. The Secretary of State or Welsh Ministers (or Natural England and Natural Resources Wales with the approval of the Secretary of State or Welsh Ministers respectively) should have the power to issue codes of practice giving practical guidance as to the application of the above offences.

    
    

85. Our recommendations to this effect are in Chapter 3.

    
    

    THE REGULATION OF HUNTING ACTIVITIES

86. Article 7 of the Wild Birds Directive expressly provides that member states may authorise the recreational hunting of certain wild bird species “owing to their population level, geographical distribution and reproductive rate throughout the Community”. There are a number of restrictions: hunting must not “jeopardise conservation efforts” and member states must ensure that hunting “complies with

    the principles of wise use and ecologically balanced control of the species of birds concerned” and is compatible with the species’ sustainable population levels. Article 7 also requires member states to introduce close seasons during the breeding season, the various stages of reproduction and, in the case of migratory birds, the return to their breeding areas. During the close seasons, huntable birds should fall within the complete system of protection that the other birds falling within the scope of article 1 of the Directive enjoy throughout the year.

    
    

    Article 7 of the Wild Birds Directive: key principles

    
    

    Ensuring that hunting activities do not jeopardise conservation efforts in the distribution area of the huntable birds

87. According to the European Commission, article 7(1) essentially requires that “the practice of hunting must not represent a significant threat to efforts for the conservation of both huntable as well as non-huntable species.”43 The European Commission guidance refers, as an example, to the ferruginous duck: a non- huntable bird species which is globally threatened. This species has a late reproduction period, which can make it vulnerable to the opening of hunting seasons for other species in areas where it is still breeding. As regards the area of distribution of species, the Commission guidance adds that for most species

    
    

    this is not restricted to the area of the member state concerned with hunting but applies to the species range. This is particularly relevant to migratory species. If species are subject to excessive hunting along their migration route it may impinge on conservation efforts elsewhere, including those outside the European Union.44

    
    

    “Wise use”

88. The principle of “wise use” is left undefined in the Directive but its origins and scope have been comprehensively explored in the European Commission’s guidance on sustainable hunting. The guidance suggests that, in essence, the principle of “wise use” implies “sustainable consumptive use with an emphasis on maintaining populations of species at a favourable conservation status”. 45 The guidance suggests that “wise use” essentially corresponds to the concept of “sustainable utilisation” as defined in the Convention on Biological Diversity, “the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations.”46

    
    

89. Compliance with the principle of “wise use”, according to the European Commission’s guidance, should be assessed comprehensively, taking into

    
    

    43 European Commission, Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008) p 18.

    44 European Commission, Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008) p 18.

    45 European Commission Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008), p 19.

    46 Convention on Biological Diversity, art 2.

    account, for instance, the positive conservation functions of game management.47 It follows that the decline of the population of a huntable species – whilst an important factor to take into account – does not necessarily require a member state to ban hunting activities, as long as the hunting and management activities are sustainable on a long term basis.

    
    

    Ecologically balanced control

90. The European Commission’s guidance on sustainable hunting suggests that “ecologically balanced control” implies that the measures taken should be ecologically sound and proportionate to the problem to be solved, taking into account the conservation status of the species involved. While population control measures may be necessary in connection with certain huntable species, for other huntable species management measures may have to be aimed at the increase or the restoration of population numbers in view of both conservation and hunting interests.48 “Ecologically balanced control”, according to the Commission, includes ensuring that the exploitation of a species is demographically balanced and that impacts on populations harvested do not result in imbalances in the ecosystem.49

    
    

    Compatibility with measures resulting from article 2

91. Article 7(4) further requires member states to ensure that hunting activities are compatible, as regards the population of these species, with the measures resulting from article 2 of the Wild Birds Directive. Article 2 of the Wild Birds Directive requires member states to take the requisite measures to maintain or adapt the population of wild bird species falling within the scope of the Directive at a level that corresponds, in particular, to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements.

    
    

    Close seasons

92. Article 7(4) of the Wild Birds Directive requires member states to ensure that the species listed in annex 2 to the Directive are not hunted during the “rearing season”, during the “various stages of reproduction” and – in the case of migratory species to which hunting regulations apply – “during their return to their rearing grounds”.

    
    

93. In Association pour la Protection des Animaux Sauvages and others, the Court of Justice highlighted the problems related to the staggering of close seasons.50 The

    
    

    47 European Commission, Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008), pp 22-23. The guidance recognises that “some of the most important wildlife sites in Europe have survived the pressures of development and destruction due to the interests of game management. For example the United Kingdom has the largest areas of heather moorland anywhere in Europe largely due to its value for grouse hunting, which provided a strong basis from preventing the loss of this habitat from commercial afforestation and other threats.”

    48 European Commission Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008), p 25.

    49 European Commission Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008), p 26.

    50 Case C-435/92 [1994] Association pour la Protection des Animaux Sauvages and others v Préfets de Maine-et-Loire and Loire-Atlantique ECR I-69

    Court, in particular, pointed to the risk of confusion between different species, which may lead to the shooting of species whose hunting season is already closed, and the risk of disturbance caused by hunting activities to other bird species whose hunting season is already closed.51

    
    

94. The Court held that while a fixed date for the closing of hunting equivalent to the date fixed for the species which is the earliest to migrate guarantees the realisation of the objectives laid down in article 7(4) of the Wild Birds Directive, the staggering of close seasons is possible, as long as it does not impede the complete protection of the species liable to be affected by such staggering. In other words, the burden is on the member state to prove, on the basis of scientific evidence, that the setting of hunting seasons that vary according to the species of bird does not impede the overall protection of those species.52

    
    

95. In the light of the above ruling, the Commission and the Committee of Representatives of Member States for the Adaptation to Technical and Scientific progress53 have recognised the need to establish a clear and harmonised interpretation of the principles laid down in article 7(4) of the Wild Birds Directive. The Committee has therefore produced a guidance document on the key concepts of article 7(4) of the Wild Birds Directive54 and provided a detailed description the reproductive and migratory patterns of a large number of European bird species.55

    
    

    Domestic regulation of hunting

96. Article 7 of the Wild Birds Directive is currently transposed in the following ways: first, by protecting game birds from killing or capture during statutory close seasons; secondly, by listing certain wild birds in part 1 of schedule 2 to the Wildlife and Countryside Act 1981 (ducks and other water fowl), excluding them

    
    

    51 In the Guidance document on hunting under Council Directive 79/409/EEC on the conservation of wild birds (2008), p 35, the European Commission notes that “as regards the risk of disturbance there is a need to demonstrate a balance between the intensity, frequency and duration of hunting, and the availability and proximity of sufficient undisturbed areas offering adequate feeding and roosting areas. There needs to be adequate enforcement measures to ensure that the above provisions are respected. Finally, in areas which may be subject to staggered hunting seasons, integrated planning that takes full account of hunting and other potential disturbances on the birds and their use of the natural resources would appear to be a valuable management tool. Such planning should incorporate scientific monitoring to evaluate the potential impacts on the bird species concerned”.

    52 Case C-435/92 Association pour la Protection des Animaux Sauvages and others v Préfets de Maine-et-Loire and Loire-Atlantique [1994] ECR I-67, at [16-22].

    53 The Committee was established under article 16 of the Wild Birds Directive to assist the Commission in the implementation of the Wild Birds Directive. While the scientific opinions of the Committee are not binding, they have been given significant weight by the Court of Justice (see, for example, Case C-344/03 Commission v Finland [2003] ECR I-11033, at [54]).

    54 European Commission and ORNIS Committee (2009) Key Concepts of Article 7(4) of Directive 79/409/EEC, available at http://ec.europa.eu/environment/nature/conservation/wildbirds/hunting/docs/reprod_intro.p df (last visited 26 October 2015).

    55 Available at: http://ec.europa.eu/environment/nature/conservation/wildbirds/hunting/key_concepts_en.ht m (last visited 26 October 2015).

    from the protection of section 1 outside the close season; thirdly, through the use of general licences based on one of the existing licensing grounds in section 16 of the 1981 Act, such as the prevention of damage to crops (pigeons, crows).56

    
    

97. This means of transposition is problematic for a number of reasons. The Game Act 1831,57 for instance, requires the amendment of primary legislation to vary the dates of close seasons, a process which is arguably too inflexible to ensure that huntable species are appropriately protected in line with changes to their population level and external climatic conditions, as required by article 7(4) of the Wild Birds Directive.

    
    

98. The hunting regime established under section 2 of the Wildlife and Countryside Act 1981 is more flexible than section 3 of the Game Act 1831. While close seasons are set in primary legislation, they may be amended by an order issued by the Secretary of State or Welsh Ministers.58 The regulatory powers under section 2 of the 1981 Act remain insufficient, however, to effectively transpose article 7 of the Wild Birds Directive. Under sections 2(5) and 2(6), for instance, it is impossible to impose additional conditions which may be necessary to ensure “wise use” as required by the Directive, such as reporting requirements or quotas on the number of birds that may be hunted in an area.

    
    

99. The recreational hunting of a number of birds falling outside the scope of section 2 of the Wildlife and Countryside Act 1981 is currently allowed through general licences issued for the purpose of protecting crops and preventing the spread of diseases; the current licence conditions require that the licence can only be relied on where methods of resolving the problem such as scaring and proofing are either ineffective or impracticable.59 This is not a requirement for hunting wild birds falling within the scope of article 7 of the Wild Birds Directive. It follows that

    – outside the close season required by article 7(4) – the current regime also goes to some extent beyond the requirements of the Wild Birds Directive for certain huntable wild bird species.

    
    

    Discussion

100. In discussing the transposition of article 7 of the Wild Birds Directive, the Court of Justice pointed out that

     
     

     a faithful transposition [of EU Directives] becomes particularly important in a case such as this in which the management of the common heritage is entrusted to the member states in their respective territories.60

     
     

101. As discussed in the section above, our view is that the current transposition prevents the effective application of the conditions imposed by article 7. The current domestic regime is excessively inflexible and includes insufficient

     
     

     56 See, for example, General Licence GL – 04 (in England).

     57 Game Act 1831, s 3.

     58 Wildlife and Countryside Act 1981, ss 2(5) to (7).

     59 General Licence GL- 04, para 1.

     60 Case C-247/85 Commission v Kingdom of Belgium [1985] ECR 3989, [9].

     regulatory powers to ensure compliance with the principles described above.

     
     

102. In the consultation paper we provisionally proposed that article 7 of the Wild Birds Directive should be expressly transposed in the new framework.61 In the light of the consultation responses, however, we have accepted that our original proposal to satisfy this requirement by means of codes of practice was unnecessarily burdensome and could run the risk of creating legal uncertainty.

     
     

103. In the interim statement published in October 2013, we suggested that the hunting of wild birds falling within annex 2 to the Wild Birds Directive, including “game birds”, could be more easily regulated by means of general and class licences authorising the hunting of annex 2 birds during the open season.62 The use of licences would introduce the necessary element of flexibility to ensure compliance with article 7. Licences can be easily and quickly issued, revoked or updated to reflect changes in population levels, migratory patterns or climatic conditions. Through the licensing regime, in addition, the Secretary of State or Welsh Ministers would have the ability to introduce additional conditions to make sure that the hunting activities do not jeopardise conservation efforts and comply with the principles of “wise use” and “ecologically balanced control”.

     
     

104. After further discussions with stakeholders, however, we realised that while the creation of a licensing regime would introduce the necessary level of flexibility in the regulatory regime, it would not necessarily constitute the most appropriate mechanism to regulate a large economic sector such as the shooting industry.

     
     

105. We have concluded that a more appropriate balance between flexibility and political accountability could be achieved through a system based entirely on regulation-making powers. In line with our general policy of retaining, as far as possible, the existing regulatory structures, such a system would also constitute a significantly less radical departure from the way hunting activities have been regulated until now under the 1981 Act.

     
     

106. Under the new regime, therefore, the Secretary of State or Welsh Ministers should have the power to introduce open seasons for huntable birds by regulation, derogating from the general protection regime described above in this Chapter. The power to introduce open seasons, however, should be conditional on the Secretary of State or Welsh Ministers being satisfied that hunting activities authorised under the regulations will not jeopardise the conservation efforts in the distribution area of the relevant bird, will comply with the principles of “wise use” and “ecologically balanced control” and will be compatible with the measures resulting from article 2 of the Wild Birds Directive.

     
     

107. To ensure that hunting activities carried out during the open season comply with the conditions in article 7, the Secretary of State or Welsh Ministers should have the power to restrict hunting activities carried out during the open season by prohibiting the killing or capture of specified species in certain areas, during certain periods or through particular hunting methods, or by making hunting activities conditional upon compliance with relevant monitoring or reporting

     
     

     61 Wildlife Law (2013) Law Commission Interim Statement, Provisional Proposals 6-13 to 6- 17.

     62 Wildlife Law (2013) Law Commission Interim Statement, paras 1.57 to 1.61.

     obligations.

     
     

108. In line with article 7(4) of the Wild Birds Directive, the Secretary of State or Welsh Ministers should also be under an express obligation to ensure that the specified period during which the relevant birds may be hunted does not include any part of the breeding season, the time when birds of the species undergo the various stages of reproduction and, for migratory species, the time when birds of the species return to their breeding areas.

     
     

109. Section 2(6) of the 1981 Act currently allows the Secretary of State or Welsh Ministers to issue emergency regulations commonly known as “severe weather orders”. Through this power, the Secretary of State or Welsh Ministers can prohibit the hunting of the relevant birds during the open season for a maximum period of 14 days with respect to the whole or any specified part of England or Wales. We understand that this power is routinely used to extend the protection of wildfowl during exceptionally cold winters. As orders under section 2(6) are designed to react quickly to unforeseeable weather events, the exercise of this power is not subject to any Parliamentary scrutiny. We have concluded that the power to make “severe weather orders” should be replicated under the new framework, and integrated in the regulatory regime giving effect to article 7 of the Wild Birds Directive.

     
     

110. Under the new framework, bird species subject to the above regulatory regime should include all wild birds currently listed in part 1 of schedule 2 to the 1981 Act and “game birds” listed in section 2 of the Game Act 1831, on the basis that those are currently the birds with a natural range including England and Wales that may currently be hunted outside the close season. We do not see any reason why other wild birds listed in annex 2 to the Directive that may currently be killed or captured in accordance with general licences, such as crows or woodpigeons, should not also be subjected to the same regulatory regime.63

     
     

111. Section 3 of the Game Act 1831 includes a close season for the bustard, which is not a huntable species under annex 2 to the Wild Birds Directive. The great bustard (Otis tarda) has been extinct in Great Britain for a long time but occurs naturally in the European territory of other EU member states and is currently subject to reintroduction programmes in Great Britain.64 It follows that under the new framework the bustard should not be subject to the new hunting regime for birds.65

     
     

112. In line with the general policy discussed in Chapter 2 of this Report, we have concluded that – except for “severe weather orders” – regulations to introduce close seasons and regulate hunting activities should be subject to a negative resolution procedure and the general consultation requirements which replicate

     63 We have decided not to list those birds under the Wildlife Bill, as the way those birds are controlled under the new framework is a policy question that falls outside the remit of this review.

     64 See http://www.iucnredlist.org/details/22691900/0 (last visited 26 October 2015).

     65 The provision establishing a close season for the bustard under section 3 of the Game Act 1831 has been impliedly repealed by section 1 of the Wildlife and Countryside Act 1981, which currently imposes a general protection regime throughout the year for all species of birds that are ordinarily resident in or visitors to the European territory of member states to which the TFEU applies.

     section 26 of the 1981 Act. Close seasons should be listed in a schedule and regularly reviewed in line with the quinquennial review procedure discussed in Chapter 2 of this Report.

     
     

     Recommendations

     
     

     Recommendation 48: we recommend that hunting activities in connection with birds of a species listed in annex 2 to the Wild Birds Directive (including game birds) which is currently huntable in domestic legislation outside the close season should be regulated by a single provision giving effect to article 7 of the Wild Birds Directive.

     
     

     Recommendation 49: we recommend that the effect of the new provision should be to authorise any activity otherwise prohibited by the primary activity prohibitions in connection with wild birds as long as the hunting is undertaken

     
     

     1. outside the close season specified for that species in a dedicated schedule;

        
        

     2. outside any period (not exceeding 14 days) designated by regulation as a period of special protection; and

        
        

     3. in compliance with any provision made by regulations.

     
     

     These recommendations are given effect in the draft Bill by clause 21 and schedule 11.

     
     

     Recommendation 50: we recommend that the Secretary of State and Welsh Ministers should be under a positive obligation to amend the close seasons in connection with protected birds if it appears to them necessary to do so to ensure that the period include

     
     

     1. the whole of the breeding season for the species concerned;

        
        

     2. the times when birds of the species undergo the various stages or reproduction; and

        
        

     3. in connection with migratory species, the times when birds of those species return to their breeding area.

        
        

        This recommendation is given effect in the draft Bill by clause 21(5).

        
        

        Recommendation 51: we recommend that regulations introducing periods of special protection (not exceeding 14 days) should not be subject to parliamentary scrutiny and should not require prior consultation in line with section 26(4)(a) of the Wildlife and Countryside Act 1981 (other than consultation of representatives of persons interested in the hunting of birds to which the regulation relates).

        
        

        This recommendation is given effect in the draft Bill by clauses 21(4), 166(6) and 166(11).

        
        

        Recommendation 52: we recommend that the Secretary of State and Welsh

        Ministers should have a positive obligation to ensure that the hunting of birds of relevant bird species

        
        

        1. does not jeopardise conservation efforts in their distribution area;

           
           

        2. complies with the principles of “wise use” and “ecologically balanced control”; and

           
           

        3. is compatible with any measures resulting from article 2 of the Wild Birds Directive.

     
     

     This recommendation is given effect in the draft Bill by clause 21(6).

     
     

     Recommendation 53: we recommend that regulations should be capable of imposing conditions for the purpose of enabling the Secretary of State or Welsh Ministers to monitor the hunting of birds of the species to which the regulation relates.

     
     

     This recommendation is given effect in the draft Bill by clause 22.

     
     

     PROHIBITED METHODS OF KILLING, INJURING OR CAPTURING BIRDS

113. As discussed in the section above, and as further discussed in Chapter 7, in a number of circumstances the killing or capture of wild birds may be authorised. Separate restrictions, however, apply in connection with the methods and means that may be used for the killing or capture of protected birds.

     
     

114. Particular methods of killing, injuring or capturing wild birds are generally prohibited for two, often overlapping reasons. First, certain methods of killing or capture are prohibited primarily for conservation reasons. Certain methods of killing or capture, for instance, are indiscriminate and capable of having significant adverse effects on the local distribution or abundance of certain protected species. Secondly, methods of killing or capture are sometimes prohibited primarily for animal welfare reasons, on the basis that they may cause undue suffering.66

     
     

115. Currently most prohibited methods of killing or capturing wild birds in domestic legislation reflect the protection provisions of the Bern Convention and the Wild Birds Directive.67 As the primary aim of those instruments is to ensure the conservation of particular animals or plants, most relevant prohibitions under them are aimed at preventing the use of methods and means that may have negative impacts on the conservation status of the protected species concerned. The use of bird lime, for instance, is not primarily prohibited because it is a painful way to bring about the end of a wild bird’s life but because it could equally kill a bird of a target species and a bird of an endangered species. That said, and the use of limes is a good example, the conservation imperative of those prohibitions also has welfare benefits.

     
     

     66 The Animals (Cruel Poisons) Act 1962, for instance, empowers the Secretary of State or Welsh Ministers to prohibit the use of specified poisons if satisfied that a poison cannot be used for destroying animals without causing undue suffering.

     67 Bern Convention, art 8 and appendix 4; Directive 2009/147/EC, art 8 and annex 4.

116. The current list of prohibited methods of killing or capture of wild birds and game birds in domestic law is located in section 5 of the Wildlife and Countryside Act

     1981.68 In Chapter 2 we suggested that the current regulatory regime in connection with prohibited methods lacked the necessary flexibility to accommodate future preferences in connection with conservation or animal welfare standards. As a result, we made recommendations to ensure that the new regulatory framework will be flexible enough to accommodate future policy preferences. We recommended, in particular, that the list of prohibited methods of killing or capture should be regularly reviewed and capable of being updated by order for any reason.

     
     

117. In this section our recommendations are primarily aimed at ensuring that the language and structure of the new domestic regulatory regime will be in line with the UK’s international and EU obligations in connection with prohibited methods of killing or capture.

     
     

     Bern Convention

118. Article 8 of the Bern Convention provides that:

     
     

     In respect of the capture or killing of wild fauna species specified in appendix 3 and in cases where, in accordance with article 9, exceptions are applied to species specified in appendix 2, contracting parties shall prohibit the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species, and in particular, the means specified in appendix 4.

     
     

119. Prohibited means of killing or capturing wild birds specified in appendix 4 include traps, snares,69 nets, limes, hooks, live birds used as decoys which are blind or mutilated, tape recorders, electrical devices capable of killing and stunning, artificial light sources, devices for illuminating targets, mirrors and other dazzling devices, sighting devices for night shooting, explosives, poison and poisoned or anaesthetic bait, semi-automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition, motor vehicles in motion and aircraft.

     
     

     Wild Birds Directive

120. In line with the international obligations of the European Union under the Bern Convention, article 8(1) of the Wild Birds Directive provides that

     
     

     in respect of the hunting, capture or killing of birds under the Directive, member states shall prohibit all means, arrangements or methods used for the large scale or non-selective capture or killing of birds or capable of causing the local disappearance of [wild birds of a protected] species, in particular those listed in annex 4(a).

     
     

     68 As discussed at para 4.9 of this Chapter, for the purpose of s 5 of the Wildlife and Countryside Act 1981 the expression “wild bird” is defined as including “game birds” (Wildlife and Countryside Act 1981, s 27(1)).

     69 Except for Lagopus north of latitude 58° N.

121. The specified methods for the capturing or killing of wild birds to be prohibited under article 8(1) are, broadly speaking, in line with the list of prohibited methods under appendix 4 to the Bern Convention.70

     
     

122. Article 8(2) further requires member states to prohibit hunting from aircraft, motor vehicles and “boats driven at a speed exceeding five kilometres per hour”.71

     
     

     Domestic legislation

123. As mentioned at the beginning of this section, in domestic law the prohibited means of capturing, killing or injuring “wild birds” and “game birds” are listed under section 5 of the Wildlife and Countryside Act 1981.

     
     

124. Section 5(1)(a) prohibits the setting in position of a number of listed articles that are of a nature and so placed “as to be calculated to cause bodily injury to any wild bird [or game bird] coming into contact therewith”. Listed articles include traps (including snares and spring traps), hooks and lines, any electrical device for killing, stunning or frightening and any poisonous, poisoned or stupefying substance.72

     
     

125. Section 5(1)(b) further prohibits the use, for the purpose of killing or taking any wild bird or game bird of any article mentioned in section 5(1) and of any net, baited board, bird-lime or any substance of a like nature to bird-lime.73

     
     

126. Section 5(1)(c) prohibits, for the purpose of killing or taking any wild bird or game bird, the use of any bow or crossbow, any explosive other than ammunition for a firearm, any automatic or semi-automatic weapon, shotguns of which the barrel has an internal diameter at the muzzle of more than one and three-quarter inches, any device for illuminating a target or any sighting device for night shooting, any form of artificial lighting or any mirror or other dazzling device and any gas, smoke or chemical wetting agent.

     
     

127. Section 5(1)(d) prohibits the use, as a decoy, of any sound recording or any live bird or other animal whatever which is tethered, or which is secured by means of braces or other similar appliances, or which is blind, maimed or injured.

     
     

128. Section 5(1)(e) further prohibits the use of any mechanically propelled vehicle in immediate pursuit of a wild bird for the purpose of killing or taking that bird.

     
     

     70 See Directive 2009/147/EC, annex 4.

     71 Directive 2009/147/EC, annex 4, further provides that “on the open sea, member states may, for safety reasons, authorise the use of motor-boats with a maximum speed of 18 kilometres per hour. Member states shall inform the Commission of any authorisations granted.”

     72 The use of poison for the purpose of killing any game bird is also prohibited under section 3 of the Game Act 1831.

     73 The Protection of Birds Act 1954 contained virtually identical provisions to ss 5(1)(a) and 5(1)(b) of the Wildlife and Countryside Act 1981. In Robinson v Whittle, the High Court clarified in relation to s 5(1)(b) of the Protection of Birds Act 1954, that it is the placing or operation of the prohibited article which constitutes the offence, not the killing of the bird resulting from the use of that prohibited article (Robinson v Whittle [1980] 1 WLR 1476, 1481 by Donaldson LJ).

     Discussion

     
     

     Scope of the prohibition under the new framework

129. Under the Wildlife and Countryside Act 1981, methods and means prohibitions currently apply to game birds, including captive-bred game birds.

     
     

130. In line with the discussion at the beginning of this Chapter, we have concluded that the same approach should be replicated in the new framework. Methods and means prohibitions under the new framework, therefore, should apply to:

     
     

     1. wild birds (excluding captive-bred birds) of a species falling within the scope of article 1 of the Wild Birds Directive;

        
        

     2. common pheasant and Canada geese;

        
        

     3. wild birds (excluding captive-bred birds) falling outside the scope of article 1 that have been expressly listed by the Secretary of State or Welsh Ministers; and

        
        

     4. game birds.

        
        

        Mental element

131. Section 5 of the Wildlife and Countryside Act 1981 prohibits the “use” of prohibited methods for the purpose of killing or taking a protected wild bird and, as a separate offence, the “setting in position” of a limited number of items of such a nature and so placed as to be calculated to cause bodily injury to a protected wild bird.

     
     

132. Article 8 of the Wild Birds Directive requires member states to prohibit the use of prohibited methods and means “in respect of the hunting, capture or killing of birds under [the] Directive”. As discussed in Chapter 3, the capture or killing of wild birds under the Wild Birds Directive is not only prohibited when carried out intentionally but also when carried out “deliberately” – in line with the Court of Justice’s interpretation of the word “deliberate” in Commission v Spain.74

     
     

133. As a result, we have concluded that the required mental element in connection with the use of indiscriminate methods of killing or capture should be in line with the mental element required for convicting a person for the “deliberate” killing or capture of a wild bird.

     
     

     Article 8 of the Wild Birds Directive

134. In line with article 8 of the Wild Birds Directive, article 15 of the Habitats Directive requires member states to prohibit the use of “all indiscriminate means capable of causing local disappearance of, or serious disturbance to, populations of [protected species]”.

     
     

135. Article 15 of the Habitats Directive is currently transposed by regulation 43(2)(c) of the Conservation of Habitats and Species Regulations 2010, which generally prohibits the use, for the purpose of killing or capturing any animal of a protected

     
     

     74 Case C-221/04 Commission v Spain [2006] ECR I-4515.

     species, of

     
     

     any […] means of capturing or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any species of animal listed in schedule 4 or any European protected species of animal.

     
     

136. Regulation 43(2)(c) was introduced as a result of the Court of Justice’s ruling in Commission v United Kingdom. In that ruling the Court of Justice held that the failure to transpose expressly the general prohibition on use of all indiscriminate means of capturing or killing protected species constituted a breach of article 15 of the Habitats Directive, despite the fact that the lists of specifically prohibited methods in domestic legislation could be updated by order.75

     
     

137. Currently the general prohibition in article 8 of the Wild Birds Directive on the use of any method which is indiscriminate or capable of causing the local disappearance of the population of a species falling within the scope of article 1 of the Directive is not expressly transposed in domestic law. Article 8 of the Wild Birds Directive uses almost identical wording to article 15 of the Habitats Directive, and both obligations derive from article 8 of the Bern Convention. We have concluded, therefore, that the failure to expressly transpose the general prohibition under article 8 in domestic law would be almost certainly considered a breach of article 8 of the Wild Birds Directive for the reasons explained in Commission v United Kingdom.

     
     

138. Under the new framework, as a result, there should be a general prohibition of the use of any method of killing or capture that is indiscriminate or capable of causing serious disturbance, or having a significant effect on the distribution or abundance of the local population of protected species of birds.

     
     

139. It is worth noting that we do not think that the transposition of this general obligation is in itself sufficient to give effect to article 8 of the Wild Birds Directive clearly and effectively. It may not always be clear whether a method which is not expressly listed in domestic legislation is indiscriminate or capable of causing the local disappearance of a protected species. In line with the recommendations in Chapter 2, we have concluded that the transposing of this general prohibition should not absolve the competent authorities from periodically reviewing the lists of specifically prohibited methods and means, with a view to ensuring effective compliance with the general obligation under article 8 of the Wild Birds Directive.

     
     

     Expressly prohibited methods and means

140. Section 5 of the Wildlife and Countryside Act 1981 prohibits a number of methods that are not expressly covered by appendix 4 to the Bern Convention and annex 4 to the Wild Birds Directive. In this context, it is important to keep in mind that the lists of prohibited methods under appendix 4 to the Bern Convention and annex 4 to the Wild Birds Directive are non-exhaustive. The key obligation upon member states, in fact, is to prohibit any indiscriminate method used for the large- scale or non-selective capture or killing of birds or capable of causing the local disappearance of a species. We have concluded, therefore, that any method

     
     

     75 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, [94-98].

     prohibited under domestic law that is not expressly listed in the relevant lists of prohibited methods under the Bern Convention and the Wild Birds Directive should not be regarded as “gold-plating” the UK’s international or EU obligations.

     
     

141. In general terms, therefore, the list of prohibited methods under the new framework should include all methods prohibited under the Bern Convention, the Wild Birds Directive and the 1981 Act. For this reason, partial overlaps between methods prohibited under international and EU law, or between external obligations and domestic law, have been generally resolved in favour of the broadest prohibition. The two most relevant examples of this approach are discussed below.

     
     

     POISON AND STUPEFYING OR ANAESTHETIC SUBSTANCES

142. Section 5(1) of the 1981 Act prohibits the use of “poisonous, poisoned or stupefying” substances in connection with the killing or capture of a protected bird. This is, broadly speaking, in line with the Bern Convention’s prohibition on the use of “poisons”, as well as “poisoned” or “anaesthetic” bait. Annex 4 to the Wild Birds Directive, on the other hand, merely prohibits the use of “poisoned” or “anaesthetic” bait.

     
     

143. In line with the approach to transposition that we have adopted in this context, we have concluded that the schedule of prohibited methods under the new framework should prohibit the use of poison and the use of anaesthetic or stupefying substances. Prohibiting the use of poison is simply an easier way to refer to “poisonous” or “poisoned” substances. As the words “anaesthetic” and “stupefying” do not fully overlap, we have concluded that both should be included. As the word “substance” is broader than “bait” we have concluded that the former should be adopted.

     
     

     EXPLOSIVES

144. The Wild Birds Directive and the Habitats Directive ban the use of “explosives” in connection with the killing or capture of wild birds. Section 5 of the 1981 Act prohibits the use of “any explosive other than ammunition for a firearm”. The word “firearm” has the same meaning as in section 57(1) of the Firearms Act 1968, which defines it as including “a lethal barrelled weapon of any description from which any shot, bullet or other missile can be discharged”.

     
     

145. We have concluded that the exclusion of “ammunition for a firearm” should be omitted. The expression was probably intended to prevent the unintentional ban of standard cartridges on the basis that they may contain propelling charges. Because “firearm” is defined extremely broadly under the Firearms Act 1968, however, the unintended effect of excluding ammunition for firearms is, essentially, to allow the use of explosives, such as grenades or rockets, whenever they are propelled by a firearm. Our view is that from the general context of the new framework it will be clear to any reader that the word “explosive” does not extend to the propelling charge of a cartridge. The express exclusion of “ammunition for a firearm” is therefore unnecessary.

     
     

     The use of vehicles in the course of hunting birds

146. Article 8(2) of the Wild Birds Directive prohibits “any hunting from the modes of transport and under the conditions mentioned in annex 4(b)”. Article 8(2) is

     transposed in domestic legislation by section 5(1)(e) of the Wildlife and Countryside Act 1981, which prohibits the use of “any mechanically propelled vehicle in the immediate pursuit of a wild bird for the purpose of killing or taking that bird”.

     
     

147. In this context we have concluded that in terms of ensuring compliance with the Directive, the use of an expression which is closer to the wording of the Directive would be safer than replicating the wording of the existing offence. This is primarily because “immediate pursuit” is not an express requirement of the Directive. We have concluded, therefore, that it should simply be an offence to use a prohibited vehicle “in the course of hunting” protected birds.

     
     

148. In terms of prohibited vehicles, the Bern Convention prohibits the use of aircraft or motor vehicles in motion. The Wild Birds Directive refers to “aircraft”, “motor vehicles”, and “boats” driven at a certain speed.

     
     

149. As regards motor vehicles, we have adopted the Bern Convention’s approach, on the basis that it is obvious that the purpose of the prohibition is not to prohibit hunting activities from vehicles that are stationary.

     
     

150. Prohibited hunting from boats should also only cover boats that are moving, as opposed to boats that are anchored or are merely drifting. We have concluded, however, that the specific speed limits prescribed by the Directives could be regulated more appropriately by means of general licences.76

     
     

     Recommendations

     
     

     Recommendation 54: we recommend that the list of prohibited methods giving effect to article 8 of the Wild Birds Directive and article 8 of the Bern Convention should apply to “wild birds”, the common pheasant and Canada goose, other birds that have been specifically listed by the Secretary of State or Welsh Ministers and “game birds”.

     
     

     This recommendation is given effect in the draft Bill by clause 5(4).

     
     

     Recommendation 55: we recommend that a person should be guilty of an offence if he or she used a prohibited item or substance, or carried out a prohibited activity for the purpose of or in connection with killing, injuring or capturing a protected bird. In line with the definition of “deliberate”, a person should also be guilty of an offence if

     
     

     1. His or her actions presented a serious risk to protected birds unless reasonable precautions were taken and he or she was aware that that was the case, but failed to take reasonable precautions.

        
        

     2. His or her actions presented a serious risk to protected birds

     
     

     76 The main reason for this is that whilst the Wild Birds Directive only prohibits hunting from boats driven at a speed exceeding five kilometres per hour, it also provides that member states may, for safety reasons, authorise the use of motor boats with a maximum speed of 18 kilometres per hour in the open sea. In such cases, member states should inform the Commission for any authorisation granted. Given the complexity of this obligation, we have taken the view that a class or general licence would be a more flexible and appropriate mechanism to regulate the speed of boats used in the course of hunting wild birds.

     whether or not reasonable precautions were taken and he or she was aware that that was the case.

     
     

     This recommendation is given effect in the draft Bill by clause 5(3).

     
     

     Recommendation 56: we recommend that the use of a device which is indiscriminate or capable of having a significant effect on the abundance of, or causing serious disturbance to, the population of a protected bird species in the area in which it is used should constitute a stand-alone offence.

     
     

     This recommendation is given effect in the draft Bill by clause 5(2)(b).

     
     

     Recommendation 57: we recommend that the list of prohibited methods under the new framework should reflect and consolidate the lists in annex 4 of the Wild Birds Directive, appendix 4 to the Bern Convention and section

     5 of the Wildlife and Countryside Act 1981 by giving precedence, as a general rule, to the most stringent formulation of the prohibition.

     
     

     This recommendation is given effect in the draft Bill by clause 5(2)(a) and schedule 4.

     
     

     SECONDARY ACTIVITY PROHIBITIONS

151. The aim of secondary activity prohibitions is to regulate activities that constitute an important driver of certain direct interferences with wild birds: the possession or sale of protected birds (whether dead or alive), eggs of protected birds and anything derived from those birds. The regulation of secondary activities, therefore, constitutes a key part of the protective regime for wildlife, as it seeks to control the source of many unlawful activities that negatively affect populations of protected birds.

     
     

152. As in the context of primary activity and methods and means prohibitions, the domestic regulation of secondary activity prohibitions in connection with wild birds is strongly influenced by the requirements of the Wild Birds Directive. The influence of EU law on the domestic regulation of secondary activity prohibitions, however, is not confined to the provisions of the Wild Birds Directive. As the Wild Birds Directive authorises trade in a number of bird species across the EU, the free movement of goods principles under the EU Treaties also come into play.77

     
     

153. The international prohibitions on trade in certain endangered species of fauna and flora under the Convention on the International Trade in Endangered Species 1973, in addition, constitute one of the central building blocks of the international efforts to tackle wildlife crime worldwide. In that context, it is worth noting that a number of wild bird species protected by the trade, possession and transport prohibitions of the Wild Birds Directive, such as the peregrine falcon, are also protected by trade and movement restrictions giving effect to the requirements of the Convention.

     
     

     77 Arts 34-36 TFEU.

154. As the Convention is now primarily given effect across the EU through a self- contained set of EU Regulations,78 we have decided that it should be excluded from the scope of the current project on the basis that there would be virtually no scope for reforming its implementation in England and Wales. For the same reasons, we have also concluded that certain overlaps between the two regimes are inevitable, and could not be removed by domestic law reform.

     
     

     International and EU law

     
     

     Bern Convention

155. Article 6 of the Bern Convention requires that contracting parties prohibit the possession of eggs of animals listed in appendix 2 and the possession of and internal trade in these animals, alive or dead, including stuffed animals and any readily recognisable part or derivative thereof, where this would contribute to the effectiveness of the primary prohibitions in article 6.

     
     

156. Article 7 of the Bern Convention, in addition, requires that contracting parties take appropriate legislative and administrative measures to ensure the protection of the wild fauna species specified in appendix 3. Measures to be taken should include the regulation of sale, keeping for sale, transport for sale and offering for sale of live and dead wild animals of those species.

     
     

     Agreement on the Conservation of Albatrosses and Petrels

157. In furtherance of the obligations on the contracting parties to take measures to achieve and maintain a favourable conservation status for albatrosses and petrels, article 3(6) of this Agreement requires contracting parties progressively to implement the action plan in annex 2 to the Agreement. The action plan, among other things, requires contracting parties to prohibit the “use of, and trade in, albatrosses and petrels or their eggs, or any readily recognisable parts or derivatives thereof”.

     
     

     Wild Birds Directive

158. In line with the Bern Convention, article 5 of the Wild Birds Directive requires member states to prohibit the possession of eggs of protected birds, even if empty, and the possession of birds of species “the hunting and capture of which is prohibited”.

     
     

159. In terms of trade restrictions, article 6 of the Wild Birds Directive provides that:

     
     

     1. Without prejudice to paragraphs 2 and 3, member states shall prohibit, for all the bird species referred to in article 1, the sale, transport for sale, keeping for sale and the offering for sale of live or dead birds and of any readily recognisable parts or derivatives of such birds.

        
        

     2. The activities referred to in paragraph 1 shall not be prohibited in respect of the species referred to in annex 3, part A, provided that the birds have been legally killed or captured or otherwise legally acquired.

        
        

        78 Principally, Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein and Commission Regulation (EC) No 865/2006 laying down detailed rules concerning the implementation of Council Regulation (EC) No 338/97.

     3. Member states may, for the species listed in annex 3, part B, allow within their territory the activities referred to in paragraph 1, making provision for certain restrictions, provided that the birds have been legally killed or captured or otherwise legally acquired.

        
        

160. Article 6(3), in addition requires member states wishing to authorise the trade in birds listed in annex 3, part B to consult the Commission with a view to examining jointly whether the marketing of such species may endanger the conservation status of such birds. If that is the case, the Commission is required to forward a reasoned recommendation to the member state in question stating its opposition to the marketing of the species in question. Should the Commission consider that no such risk exists, it should inform the member state accordingly.

     
     

     Possession of wild birds and their eggs

     
     

     Current domestic law

161. The prohibition in article 5 of the Wild Birds Directive in relation to the possession of birds and eggs of protected species is given effect in domestic law under sections 1(2), (3) and (3A) of the Wildlife and Countryside Act 1981.

     
     

162. Section 1(2) makes it an offence to be in possession or in control of any live or dead wild bird, any part of, or anything derived from, such a bird or any egg of a wild bird or part of such an egg.

     
     

163. A person is not guilty of an offence under section 1(2) above, however, if he or she shows that the bird or egg had not been killed or taken, had been lawfully killed or taken, or the bird, egg or other thing in his possession or control had been lawfully sold (whether to him or any other person).79

     
     

164. By virtue of section 27(1) of the Wildlife and Countryside Act 1981, the possession of species of birds falling within the definition of “game bird”, whether “wild” or “captive-bred” is not regulated by the above prohibitions.80

     
     

     Possession offences under the new framework

     
     

     POSSESSION OF WILD BIRDS AND EGGS: PROHIBITED ACTIVITIES

165. In line with the discussion at the beginning of this Chapter, we have concluded that under the new framework the “keeping” prohibition giving effect to articles 5(c) and (e) of the Wild Birds Directive should apply to (live or dead) “wild birds” of a protected species as defined in line with article 1 of the Wild Birds Directive, including any part of such a bird, to anything derived from such a bird and to an egg, or any part of an egg, of such a bird.

     
     

166. In addition, we have concluded that beside “possession” and “control”, the new

     
     

     79 Wildlife and Countryside Act 1981, s 1(3). “Lawfully” means without any contravention of

     (a) Part 1 of the Wildlife and Countryside Act 1981, (b) the Protection of Birds Acts 1954 to 1967 and orders made under those Acts, (c) any other legislation which implements the Wild Birds Directive and extends to any part of the United Kingdom (including areas outside the territorial waters) and (d) the provisions of the law of any member state (other than the United Kingdom) implementing the Wild Birds Directive.

     80 The Game Act 1831, s 3A, only prohibits the possession of game birds “for the purpose of sale”.

     offence should also prohibit the “transport” of a protected wild bird, in line – as discussed in the next Chapter – with the prohibition giving effect to article 12(2) of the Habitats Directive. There is no reason, in fact, why a person who transports, or arranges the transport of a protected wild bird, should not be liable simply because the relevant bird, at the time it was found, was not, strictly speaking, in possession or in control of the defendant.

     
     

     RETAINING THE REVERSE BURDEN OF PROOF

167. Currently the possession prohibitions under article 5 of the Wild Birds Directive are transposed in domestic law through a reverse burden of proof. In other words, in proceedings for an offence under section 1(2) of the Wildlife and Countryside Act 1981, it is for the defendant to show that the bird (or egg) had not been killed or taken, had been legally killed or taken or otherwise lawfully obtained.

     
     

168. With regard to the reverse burden imposed on the defendant in proceedings in connection with the possession of a wild bird of a protected species or its eggs, in the consultation paper we provisionally proposed that retaining the reverse burden would be justified for two reasons.81 First, it is very difficult for the prosecution to prove the provenance of a bird or its eggs. In contrast, the burden on the accused to account for their possession of a protected bird, or egg of a protected bird, is not a heavy one. Secondly, the offence is designed to prevent damaging interferences with the population of wild, and often rare, birds. Reversing the burden on the defendant, we suggested, is a proportionate measure for the effective achievement of that aim.82

     
     

169. In consultation, a minority of stakeholders suggested that this reverse burden may result in the unjust conviction of bird keepers merely because of their inability to prove that the bird in their possession had not been taken from the wild. On balance, we have concluded – in line with the views of the vast majority of stakeholders, including all regulators – that the current reverse burden should be retained. This is because it would be excessively burdensome for the prosecution to gather sufficient evidence to prove that a certain bird, or egg, had been obtained illegally. On the other hand, people legitimately in possession of wild birds or eggs should be capable of demonstrating how they obtained the relevant birds or eggs.

     
     

170. In line with the discussion earlier in this Chapter,83 in addition, under the new framework it will be possible for the Secretary of State or Welsh Ministers to issue regulations prescribing tagging, marking or registration requirements. As a bird tagged, marked or registered in accordance with the regulations will be presumed a captive-bred bird, a bird keeper in possession of a bird tagged, marked or registered in accordance with the regulations will have a strong defence in proceedings in connection with the possession of a wild bird.

     
     

     81 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 7- 11.

     82 In Kirkland v Robinson (1987) 151 JP 377, [1987] Criminal Law Review 643, Brown LJ considered such provisions of the Wildlife and Countryside Act 1981 to constitute an “absolute prohibition against the doing of certain acts which undermine the welfare of society”.

     CUT-OFF DATE FOR POSSESSION OFFENCES

171. Before 2004, a person charged with the possession of a wild bird or an egg only had to show that the bird or egg had not been taken in contravention of the Wildlife and Countryside Act 1981. This means that a person had a defence if he or she could show that the egg or bird had been taken or killed, whether lawfully or unlawfully, before 1981.

     
     

172. After an amendment introduced in 2004 aimed at bringing certain provisions of the Wildlife and Countryside Act 1981 into line with the requirements of the Wild Birds Directive,84 to establish that a bird or egg in possession of the defendant had been “lawfully” killed or taken from the wild, the defendant now has to demonstrate the lawfulness of any such activity if carried out after 1954. A defendant, in other words, is not guilty of the offence of possessing a wild bird of a protected species or an egg of a wild bird of a protected species if he or she can show that the egg or bird in question had been taken, captured or killed before the Protection of Birds Act 1954 came into force or that the egg or bird in question had been taken, captured or killed in compliance with the provisions of the 1954 or the 1981 Acts.

     
     

173. We have concluded that the requirement to prove the legality of the killing or taking of a bird or egg after 1954 gold-plates the Wild Birds Directive without providing any conservation benefit and imposes unnecessary burdens on museums or individuals holding historical egg collections.

     
     

174. As the implementation deadline of the original Wild Birds Directive was 7 April 1981, we have concluded that under the new framework the defendant should not be required to prove that the egg or bird in question had been taken, captured or killed “legally” if these events happened before 7 April 1981 as, in any event, there is no conservation purpose in prohibiting the keeping of eggs taken over 30 years ago.85 Unlike article 12(2) of the Habitats Directive,86 the Wild Birds Directive does not in fact require member states to regulate the possession of eggs that have been taken before the implementation date.87

     
     

     POSSESSION OF WILD BIRDS: PERMITTED ACTIVITIES

175. As mentioned above, article 5(e) of the Wild Birds Directive prohibits the keeping of “birds of species the hunting and capture of which is prohibited”. This means that the keeping of birds of species the hunting or capture of which was in accordance with legislation giving effect to the Wild Birds Directive may be

     
     

     83 Para 4.31.

     84 Wildlife and Countryside Act 1981 (England and Wales) (Amendment) Regulations 2004 SI 2004 No 1487, reg 3.

     85 As Part 1 of the Wildlife and Countryside Act 1981 came into force after the implementation date of the Wild Birds Directive (see Wildlife and Countryside Act 1981 (Commencement No 5) Order 1982 SI 1982 No 1217), a defendant should still have to

     show that any egg collection that took place between 7 April 1981 and 28 September 1982 was lawful under the Protection of Birds Act 1954.

     86 Directive 92/43/EEC, art 12(2).

     87 Defra and the Welsh Government have recently held a public consultation (the consultation ran from 14 October to 9 December 2014) on whether the “pre-1981” defence should be

     re-introduced.

     allowed in domestic legislation.

     
     

176. We have concluded, therefore, that a person should not be guilty of a possession offence in respect of a live or dead wild bird, part of a bird, or anything derived from a bird if he or she shows that the bird;

     
     

     1. had not been killed or captured;

        
        

     2. had been lawfully killed or captured in the European territory of a member state to which the Treaty applies;

        
        

     3. had been killed or captured in the European territory of a member state to which the Treaty applies before the implementation date of the Wild Birds Directive; or

        
        

     4. had been killed or captured otherwise than within the European territory of a member state to which the TFEU applies.

        
        

177. The first defence replicates section 1(3)(a) of the Wildlife and Countryside Act 1981 and ensures that possessing a feather picked up from the ground, or a wild bird that died of natural causes, does not constitute an offence if the defendant can show that the bird, or bird part, was taken in such circumstances.

     
     

178. The second defence, in line with sections 1(3)(a) and 1(3A) of the 1981 Act, ensures that a person is not guilty of an offence if he or she can show that the bird in question had been captured or killed in accordance with legislation giving effect to the Wild Birds Directive (whether in England and Wales or in any other European territory of member states to which the Treaty applies). An obvious example is the possession of birds of a huntable species that have been captured or killed outside the close season imposed by domestic legislation.

     
     

179. The third defence, discussed above, sets a cut-off date for possession offences, on the basis that the Wild Birds Directive does not require member states to regulate the keeping of birds that have been killed or captured before the implementation date of the Directive.

     
     

180. Because the territorial scope of the Wild Birds Directive is limited to the European territories of member states, and the object and purpose of the Directive is to protect European populations of wild birds, we have also concluded that birds that have been killed or captured outside the European territory of a member state to which the Treaty applies fall outside the scope of the Directive and, as a result, should also fall outside the scope of the new regulatory regime.

     
     

181. Section 1(3)(b) of the 1981 Act currently makes it a defence to show that the bird in question had been lawfully sold to the defendant. As further discussed below, article 6 of the Directive has the effect that a bird may only be lawfully sold if it was lawfully killed or captured (or killed or captured outside the European territory of a member state to which the Treaty applies or before the implementation date). We have concluded, therefore, that retaining this defence in the new framework would be unnecessary.

     POSSESSION OF EGGS OF PROTECTED WILD BIRDS: PERMITTED ACTIVITIES

182. In accordance with section 1(3) of the Wildlife and Countryside Act 1981, a person is not currently guilty of an egg possession offence under section 1(2)(b) if he or she shows that the egg (or part of such egg) had not been taken from the wild.

     
     

183. This defence is in line with the Wild Birds Directive on the basis that article 5(c) only prohibits the keeping of wild birds’ eggs taken from the wild. In other words, the taking of an egg that a wild bird has laid in captivity after it was captured is not prohibited by article 5(c) of the Wild Birds Directive. We have concluded, therefore, that this defence should be retained under the new framework, on the basis that it both compliant with the Wild Birds Directive and may have some application in connection with the artificial breeding of huntable birds that have been captured outside the close season.

     
     

184. For the reasons we have explained in the sections above, we have further concluded that it should be a defence to show that the egg, or part of the egg of a wild bird of a protected species:

     
     

     1. had been taken from the wild in the European territory of a member state to which the treaty applies before the implementation date of the Wild Birds Directive; or

        
        

     2. had been taken from the wild otherwise than within the European territory of a member state to which the treaty applies.

        
        

185. Section 1(3) of the Wildlife and Countryside Act 1981 further provides that a person should not be guilty of an offence if he or she shows that the egg:

     
     

     1. had been lawfully taken from the wild; or

        
        

     2. had been lawfully sold to the defendant.

        
        

186. We have concluded that those two defences should not be retained, on the basis that they are both unnecessary and potentially in breach of article 5 of the Directive.

     
     

187. As discussed above, the possession of wild birds that have been hunted or captured in accordance with legislation giving effect to the Wild Birds Directive is impliedly permitted by article 5(e). The possession of eggs, on the other hand, is generally prohibited by article 5(c) unless they have not been taken from the wild. Under article 5(c), in other words, whether the eggs have been taken from the wild lawfully or unlawfully is irrelevant to whether or not the possession of those eggs is authorised by the Directive. It follows that the first defence under section 1(3) of the 1981 Act is not supported by the wording of article 5(c) of the Wild Birds Directive.

     
     

188. As discussed in the section below, the only eggs of wild birds of a protected species that may be lawfully sold under the new framework are those that have not been taken from the wild (or have been taken from the wild outside the European territory of a member state to which the Treaty applies or before the implementation date). We have concluded, therefore, that retaining a provision

     authorising a person to possess an egg of a wild bird that had been lawfully sold to him or her would be unnecessary, as it would require the defendant to show, in any event, that the egg in his possession had not been taken from the wild.

     
     

     Recommendations

     
     

     Recommendation 58: We recommend that the “keeping” prohibitions giving effect to articles 5(c) and (e) of the Wild Birds Directive should be drafted by reference to the possession, control or transport of any live or dead "wild bird”, common pheasant, Canada goose or other bird that has been specifically listed by the Secretary of State or Welsh Ministers, any part of such a bird, anything derived from such a bird or an egg, or any part of an egg, of such a bird.

     
     

     This recommendation is given effect in the draft Bill by clause 12.

     
     

     Recommendation 59: we recommend that a person should not be guilty of a possession offence in respect of a live or dead wild bird, part of a bird, or anything derived from a bird if he or she shows that the bird:

     
     

     1. had not been killed or captured;

        
        

     2. had been lawfully killed or captured in the European territory of a member state to which the Treaty applies;

        
        

     3. had been killed or captured in the European territory of a member state to which the Treaty applies before the implementation date of the Wild Birds Directive; or

        
        

     4. had been killed or captured otherwise than within the European territory of a member state to which the Treaty applies.

     
     

     This recommendation is given effect in the draft Bill by clauses 13(1) and (4).

     
     

     Recommendation 60: we recommend that a person should not be guilty of a possession offence in respect of an egg of a protected wild bird if he or she shows that the egg:

     
     

     1. had not been taken from the wild;

        
        

     2. had been taken from the wild in the European territory of a member state to which the treaty applies before the implementation date of the Wild Birds Directive; or

        
        

     3. had been taken from the wild otherwise than within the European territory of a member state to which the treaty applies.

     
     

     This recommendation is given effect in the draft Bill by clauses 13(3) and (4).

     
     

     Sale of wild birds and their eggs

189. Whilst the provisions regulating trade in wild birds under article 6 of the Wild Birds Directive are relatively simple, the domestic regime that regulates that trade is exceptionally difficult to navigate. In domestic legislation express distinctions are

     drawn between live and dead birds, wild and captive-bred birds, “game birds” and “wild birds”, and different times of the year during which certain birds may be traded. The complexity of the domestic legislation is compounded by the presence of a number of general licences aimed, in part, at addressing problems with the primary legislation.

     
     

     Current domestic legislation: sale of live birds and eggs

190. Section 6(1)(a) of the Wildlife and Countryside Act 1981 makes it an offence to sell,88 offer or expose for sale, or have in one’s possession or transport for the purpose of sale, any live wild bird other than a bird included in part 1 of schedule 3, or an egg of a wild bird or any part of such an egg.89

     
     

191. Section 6(1)(b) of the Wildlife and Countryside Act 1981 provides that a person shall also be guilty of an offence if he or she publishes or causes to be published any advertisement90 likely to be understood as conveying that he buys or sell, or intends to buy or sell, any of the above things.

     
     

192. According to section 6(5) of the Wildlife and Countryside Act 1981, “part 1 of schedule 3” is a reference to any bird included in that part which:

     
     

     1. was bred in captivity;91

        
        

     2. has been ringed or marked in accordance with regulations made by the Secretary of State or Welsh Ministers;92 and

        
        

     3. has not been lawfully released into the wild as part of a repopulation or reintroduction programme.

        
        

193. In sum, the prohibitions in sections 6(1)(a) and (b) of the Wildlife and Countryside Act 1981 apply to all live birds or eggs of a species ordinarily resident in or a visitor to the European territory of a member state except poultry and game. They do not apply to birds of those species listed in part 1 of schedule 3 which were bred in captivity and ringed or marked.93 They apply, however, to birds of the species listed in part 1 of schedule 3 that have not been ringed or marked in accordance with the 1982 Regulations.

     
     

     88 According to s 27 of the Wildlife and Countryside Act 1981, “sale” includes “hire, barter and exchange and cognate expressions shall be construed accordingly”.

     89 The current definition of “wild bird” in s 27 of the Wildlife and Countryside Act 1981 includes captive-bred birds (unless expressly excluded) and excludes game birds (except for ss 5 and 11 of the 1981 Act).

     90 According to s 27 of the Wildlife and Countryside Act 1981, “advertisement” includes a catalogue, a circular and a price list.

     91 According to s 27(2) of the Wildlife and Countryside Act 1981, a bird shall not be treated as bred in captivity for the purposes of Part 1 of the Wildlife and Countryside Act 1981 unless its parents were lawfully in captivity when the egg was laid.

     92 The relevant regulations are the Wildlife and Countryside (Ringing of Certain Birds) Regulations 1982 SI 1982 No 1220, which require that birds listed in part 1 of schedule 3 to the Wildlife and Countryside Act 1981 be ringed according to specified ring sizes set out in the regulations and supplied by two listed suppliers (both based in England).

     93 According to s 27(2) of the Wildlife and Countryside Act 1981, a bird shall not be treated as bred in captivity for the purposes of Part 1 of the Wildlife and Countryside Act 1981 unless its parents were lawfully in captivity when the egg was laid.

194. General Licence 18 (in England) and General Licence 010 (in Wales), nevertheless, authorise the trade in virtually any other live captive-bred bird when the conditions specified in the licence are satisfied.94 For many species, with the exception of those listed in appendix 2 to General Licence 18 (in England) and General Licence 010 (in Wales), the individual may only be traded if ringed with an individually numbered metal close ring which cannot be removed from the bird when the bird’s leg is fully grown. The ring also needs to comply with the ringing requirements of the state within which the bird was bred. The obligation to comply with the ringing requirements of the state where the bird was bred, however, does not appear to displace the requirement for a continuous closed ring which complies with the technical specifications of the licences.

     
     

195. To avoid any interference with EU Regulations giving effect to the Convention on the International Trade in Endangered Species, the above general licences clarify that nothing in the licence authorises the trade in species listed in annex A to Council Regulation (EC) No 338/97,95 unless a certificate for sale under article 10 of that Regulation has been obtained. Bird species listed in annex A to Council Regulation (EC) No 338/97 include, for instance, the peregrine falcon (Falco peregrinus).

     
     

196. In addition, General Licence 18 (in England) and General Licence 010 (in Wales) do not apply to those species listed in appendix 1 to the two licences. Appendix 1 includes the mute swan (Cygnus olor), for conservation reasons, and the ruddy duck (Oxyura jamaicensis) and Egyptian goose (Alopochen aegyptiacus), to prevent their spread.

     
     

     Current domestic legislation: sale of dead birds

197. Section 6(2)(a) of the Wildlife and Countryside Act 1981 makes is an offence to sell, offer or expose for sale,96 or have in one’s possession or transport for the purpose of sale, any dead wild bird other than a bird included in part 2 or 3 of schedule 3, or any part of, or anything derived from, such a wild bird. Part 2 of schedule 3 lists the species of dead birds that may be sold all year round. Part 3 of schedule 3, on the other hand, lists the species of dead birds that may only be sold between 1 September and 28 February.97

     
     

198. Section 6(2)(b) of the 1981 Act provides that a person shall also be guilty of an offence if he or she publishes or causes to be published any advertisement98 likely to be understood as conveying that he buys or sell, or intends to buy or sell, any of the above things.

     
     

     94 A captive-bred bird, for the purposes of General Licence GL–18 (in England) and General Licence GL–012 (in Wales), is one whose parents were lawfully in captivity when the egg from which it was hatched was laid. Documentary evidence is required to support the establishment that an individual was bred in captivity.

     95 Regulation on the protection of species of wild fauna and flora by regulating trade therein (EC) No 338/97 Official Journal L61 of 3.3.1997, p 1.

     96 According to s 27 of the Wildlife and Countryside Act 1981, “sale” includes “hire, barter and exchange and cognate expressions shall be construed accordingly”.

     97 Wildlife and Countryside Act 1981, s 6(6).

     98 According to s 27 of the Wildlife and Countryside Act 1981, “advertisement” includes a catalogue, a circular and a price list.

199. Despite the above prohibitions, General Licence 17 and General Licence 012 in Wales authorise, subject to certain conditions, the trade at all times of any dead bird of a protected species, except dead birds the sale of which is already authorised in primary legislation, the barnacle goose (Brancta leucopis) and white-fronted goose of the Greenland race (Anser albifrons flavostis).

     
     

200. This licence only applies to the sale of small numbers of dead birds, or any part or product of such dead birds that:

     
     

     1. were bred in captivity (with documentary evidence showing that they were bred in captivity accompanying any sale);

        
        

     2. were taken from the wild in accordance with legal provisions in force in the United Kingdom (with documentary evidence showing that they were legally taken from the wild accompanying any sale); or

        
        

     3. are listed in Annex A of Council Regulation (EC) No 338/97, and, where appropriate, an Article 10 certificate has first been obtained.99

        
        

        Current domestic legislation: sale of game birds

201. The trade in game birds100 is regulated by section 3A of the Game Act 1831, which makes it an offence to sell, offer or expose for sale, or have in one’s possession or transport for the purpose of sale any game bird taken or killed in circumstances which constitute an offence under the Game Act 1831, the Night Poaching Act 1828, the Poaching Prevention Act 1862 or part 1 of the Wildlife and Countryside Act 1981 and which the person concerned knows or has reason to believe has been so taken or killed. In other words, a person who sells a game bird (whether wild or captive-bred) is not guilty of an offence unless the prosecution shows that they had been illegally captured or killed and the person knew or had reason to believe that the bird had been taken in circumstances that constitute an offence under domestic legislation.

     
     

     Problems with domestic legislation

202. As anticipated above, the current regulatory regime is, in our view, excessively complex and difficult to access, in that it unnecessarily creates a large number of categories of birds to which different prohibitions apply in primary legislation. The prohibitions in primary legislation, moreover, have been substantially re-shaped by two sets of general licences. The current sets of general licences, in essence, authorise the trade – subject to certain conditions – of all captive-bred birds and all dead birds the trade of which is prohibited by primary legislation. This excessive reliance on general licences to address the excessively stringent conditions of the underlying legislative regime, in our view, is a clear indication that the primary legislation is not fit for purpose.

     
     

203. The current regulatory framework, in addition, presents a number of problems in

     
     

     99 To rely on General Licence 17 (in England) and General Licence 012 (in Wales), sales have to be recorded for a minimum of two years and returns made to Natural England (in England) or Natural Resources Wales (in Wales).

     100 Birds of game to which the above subsection applies are pheasants, partridges, grouse, heath or moor game, black game (Game Act 1831, s 2).

     terms of compliance with EU law.

     
     

     COMPLIANCE WITH ARTICLE 6 OF THE WILD BIRDS DIRECTIVE

204. It appears that domestic law does not appropriately give effect to the obligations in article 6 of the Directive for a number of technical reasons.

     
     

205. First, whilst the sale of game birds – in line with article 6(2) of the Directive – is authorised as long as the birds have been lawfully killed or captured,101 the sale of live wild mallards (Anas platyrhynchosi) and common woodpigeons (Columba palumbus) is generally prohibited by section 6(1) of the Wildlife and Countryside Act 1981 despite the express obligation on member states to authorise the sale of such bird species unless they have been illegally captured or killed.102

     
     

206. Secondly, the sale of dead wild birds listed in part 2 or 3 of schedule 3 is authorised regardless of whether the bird in question was legally killed or captured. This is arguably at odds with articles 6(2) and 6(3) of the Wild Birds Directive, which provide that the trade in live or dead wild birds of the species listed in part A of annex 3 must be authorised – and the trade in live or dead wild birds of the species listed in part B of annex 3 may be authorised – provided that the birds have been legally killed or captured, or otherwise lawfully acquired.

     
     

207. Lastly, the general licences that authorise the sale of certain dead wild birds must currently be issued under section 16(4) of the Wildlife and Countryside Act 1981. As discussed in Chapter 7 below, section 16(4) of the Act does not comply with the conditions of the derogation regime established in article 9(1) of the Wild Birds Directive in that it does not require the licensing authority to be satisfied that there is “no other satisfactory solution” and that the licence is only granted on the basis of one of the reasons listed in article 9(1) of the Wild Birds Directive.

     
     

208. In this context, the failure to correctly transpose article 9(1) of the Wild Birds Directive is linked to the fact that sections 6(1) and (2) of the 1981 Act control trade in a broader category of birds than are protected by the Wild Birds Directive. While the licensing regime in section 16(4) may be used to authorise trade in captive-bred birds which – as was established in Vergy – fall outside the scope of the Wild Birds Directive, the same licensing regime should not be used to authorise the trade in wild specimens.

     
     

     COMPLIANCE WITH ARTICLE 34 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

209. As discussed at the beginning of this Chapter, in Vergy the Court of Justice ruled that captive-bred birds are excluded from the ambit of the Wild Birds Directive.103 The Court of Justice, however, went on to hold that, absent action by the EU, member states were able to regulate the trade in captive-bred birds, provided that the domestic measures did not amount to a quantitative restriction on imports or

     
     

     101 Game Act 1831, s 3A.

     102 Directive 2009/147/EC, art 6(2).

     103 See paras 4.18 to 4.24.

     exports or a measure having equivalent effect to a quantitative restriction.104

     
     

210. Quantitative restrictions on import and export of goods between member states are prohibited by articles 34 and 35 TFEU, unless they are justified on the basis of one of the grounds listed in article 36. According to article 36, however, such prohibitions or restrictions may not, in any event, constitute a means of arbitrary discrimination, or a disguised restriction on trade between member states. Quantitative restrictions, therefore, must be proportionate to the aim sought. The interest being protected should not, in other words, be capable of being “as effectively protected by measures which do not restrict intra-Community trade so much”.105

     
     

211. The current law controls the marketing of both wild and captive-bred birds, justifying the intervention into the market in captive-bred birds on the basis that that market can be used to pass off birds illegally taken from the wild. In principle, therefore, it could be argued that there is a valid conservation reason for controlling the market in captive-bred birds.

     
     

212. The way the regime is currently regulated in practice by the general licences described above, however, raises certain concerns. For instance, section 6(5) of the Wildlife and Countryside Act 1981 only authorises trade in live birds listed in part 1 of schedule 3 to the 1981 Act that comply with UK ringing requirements. Since the ring must be fitted while the bird is very young, probably before a customer has been identified, this makes it very difficult to sell in England and Wales birds bred in captivity in another member state.106 General Licence 18 (in England) and General Licence 010 (in Wales), which only apply to certain live birds not listed in schedule 3, require a ring of a certain specification, which must also meet the ringing requirements of the country in which the bird was bred. This potentially causes problems if another member state does not have ringing requirements, or has requirements that are incompatible with the specification in the General Licences.107

     
     

213. Similarly, General Licence 17 (in England) and General Licence 012 only authorise the trade in dead birds lawfully taken from the wild in the UK, thus requiring the sale of birds lawfully taken in the wild in other member states to be authorised on a case by case basis by individual licences.

     
     

     104 Case C-149/94 Didier Vergy ECR I-299, [14]. Quantitative restrictions on import and export of goods between member states are prohibited by articles 34 and 35 TFEU, unless they are imposed on the basis of the grounds listed in article 36. According to article 36, however, such prohibitions may not constitute a means of arbitrary discrimination, or a disguised restriction on trade between member states.

     105 Case C-104/75 De Peijper [1976] ECR 613, [17].

     106 This is particularly difficult for birds listed under part 1 of sch 3 to the Wildlife and Countryside Act 1981. The Wildlife and Countryside (Ringing of Certain Birds) Regulations 1982 SI 1982 No 1220, in fact, provide that authorised rings for birds listed in part 1 of sch 3 may only be obtained from two British authorised suppliers.

     107 As discussed in the consultation paper “Captive-bred birds: changing how we regulate trading in England, Scotland and Wales” published by the Defra, the Welsh Government and the Scottish Government in January 2015, a review of the regulation of the trade in live captive-bred birds is under way for the purpose of addressing concerns that the current strict approach to ringing requirements constitutes an unlawful barrier to the import of birds bred in other EU member states.

     Reform of domestic legislation

214. Currently, domestic legislation expressly prohibits the sale of certain captive-bred birds despite the fact that, as the Court of Justice ruled in Vergy, captive-bred birds fall outside the scope of the Wild Birds Directive. Primary legislation also expressly prohibits the sale of other wild birds except game birds and certain dead wild birds. The effect of General Licences 17 and 18 (in England) and General Licences 010 and 012 (in Wales), however, is that the trade in most live or dead captive-bred birds is currently authorised, but subject to conditions that birds from other member states may well not be able to satisfy.

     
     

215. We accept the basic conservation imperative that requires the boundary between captive-bred birds and birds from the wild to be policed. Our view, however, is that the most straightforward way of policing this boundary is to control the market in birds from the wild and their eggs rather than the market in captive-bred birds. As the Court of Justice pointed out in Vergy, the negative impacts on conservation created by the trade in birds of protected species derive from the trade in birds from the wild, not from the trade in captive-bred birds.108 It follows that the only reason why the market in captive-bred birds should be controlled is because, unless documentary or ringing requirements are imposed on traders, it would often be impossible for the regulators to distinguish between captive-bred birds and protected wild birds.

     
     

216. In line with the discussion at the beginning of this Chapter, under our new recommended framework any bird which has not been ringed, marked or registered in accordance with regulations issued by the Secretary of State or Welsh Ministers will be presumed to be a wild bird. A bird that has been ringed, marked or registered in accordance with regulations, on the other hand, will be presumed to be a captive-bred bird unless the prosecution proves that it was not captive-bred and that the defendant knew, or had reason to believe at the time of the alleged offence that the bird was not captive-bred.

     
     

217. In other words, under the new framework the boundary between the market in captive-bred birds and the market in wild birds will be effectively policed by the presence of a reverse burden of proof on the defendant and the possibility of making regulations, compliance with which would allow the trade in the relevant birds on the ground that they would be presumed to be captive-bred. It follows that the new framework will avoid the cumbersome model of a prohibition of trade in all birds of the protected species subject to exceptions, themselves subject to conditions, for captive-bred birds spread between the primary legislation and licences. This will allow the requirements of article 6 of the Wild Birds Directive to be effectively transposed in a significantly simpler fashion.

     
     

     Regulating the trade in wild birds and their eggs under the new framework

     
     

     A GENERAL PROHIBITION ON TRADE IN WILD BIRDS

218. In line with article 6(1) of the Wild Birds Directive, we have concluded that under the new framework sections 6(1)(a) and 6(2)(a) of the Wildlife and Countryside Act 1981 should be replaced by a general prohibition making it an offence to sell, offer for sale, expose for sale, be in possession for the purpose of sale any wild

     
     

     108 Case C-149/94 Didier Vergy ECR I-299.

     bird of a protected species, any part of such a bird or anything derived from such a bird.

     
     

219. In line with the discussion at the beginning of this Chapter, “wild bird” should exclude any bird which was captive-bred, unless lawfully released into the wild as part of a re-population or re-introduction programme. In addition, in proceedings for an offence, a bird of a protected species should be presumed to be a wild unless the defendant shows that the bird was captive-bred, or was ringed, marked or registered in accordance with regulations issued by the Secretary of State or Welsh Ministers.

     
     

     THE REGULATION OF THE TRADE IN WILD BIRDS LISTED IN PART A OF ANNEX 3 TO THE WILD BIRDS DIRECTIVE

220. To give effect to article 6(2) of the Wild Birds Directive, we have concluded that under the new framework the trade in birds listed in part A of annex 3 to the Wild Birds Directive should not be prohibited, unless the bird, parts of bird or anything derived from the bird in question was killed, captured or acquired illegally.

     
     

221. As discussed above, article 6(2) of the Directive is currently given effect by section 3A of the Game Act 1831. As pointed out above, the only problem with the current transposition of article 6(2) is that the trade in two bird species listed in part A of annex 3 is currently prohibited by section 6(1) of the Wildlife and Countryside Act 1981.

     
     

222. We have concluded, therefore, that section 3A of the Game Act 1831 should be replicated under the new framework by providing that the general prohibition of trade in wild birds does not apply to species listed in part A of annex 3 to the Wild Birds Directive, unless the prosecution shows that:

     
     

     1. the bird had been killed or captured in contravention of domestic legislation or the law of other member states giving effect to the Wild Birds Directive and the defendant knew or had reason to believe that this was the case; or

        
        

     2. the bird had been sold to the defendant in the European territory of a member state in contravention of domestic legislation or the law of other member states giving effect to the Wild Birds Directive, and the defendant knew, or had reason to believe that the sale was unlawful.

        
        

223. We have also concluded that “game birds” that have been captive-bred should also be excluded from the general prohibition, on the basis that – for the reasons explained at the beginning of this Chapter – certain primary activity prohibitions under the new framework apply to game birds regardless of their “wild” or “captive-bred” status.

     
     

     WILD BIRDS LISTED IN PART B OF ANNEX 2 TO THE DIRECTIVE

224. Section 6(2) of the 1981 Act currently authorises the trade in a number of dead wild birds that are listed in part B of annex 3 to the Wild Birds Directive. Similarly, section 3A of the Game Act 1831 authorises the sale of the black grouse (Tetrao tetrix britannicus) – a species listed in part B of annex 3 to the Wild Birds Directive – unless it was killed or captured in circumstances that constitute an offence under domestic law.

225. Article 6(3) of the Wild Birds Directive allows member states to authorise the sale in birds of species listed in part B of annex 3 to the Directive after consulting the European Commission “with a view to examining jointly with the latter” whether authorising the trade in species listed in part B of annex 3 could adversely affect the conservation status of those species. Article 6(3) further provides that following the consultation the Commission should forward a reasoned recommendation to the relevant member state.

     
     

226. As we were unable to access sufficient evidence showing that such consultation ever took place in connection with most of the above species, we have concluded that we are not in a position to recommend that the trade in wild birds of such species should continue to be authorised under the new framework. If such consultations did take place or do take place in the future, however, the new framework allows the Secretary of State or Welsh Ministers to authorise the trade in those bird species by scheduling them together with species listed in part A of annex 3 to the Directive.

     
     

     PROHIBITION ON THE TRADE IN EGGS OF WILD BIRDS

227. Section 6(1) of the Wildlife and Countryside Act 1981 expressly prohibits the trade in eggs of wild birds. Article 6 of the Wild Birds Directive, on the other hand, does not refer expressly to the eggs of wild birds.109

     
     

228. In the light of the conservation imperative of the Directive, however, we have concluded that the existing prohibition should be retained. Illegal egg collection is an activity which may be as damaging to conservation as the capture of wild birds for the purpose of sale. Prohibiting the sale of eggs of wild birds that have been taken from the wild is a perfectly reasonable way to tackle the potential economic driver of illegal collection. In addition, because the possession of eggs of wild birds that have been taken from the wild – in line with article 5(c) of the Wild Birds Directive – will be generally prohibited under the new framework, there is no reason why their sale should not also be prohibited, unless expressly authorised by a licence.

     
     

     ADVERTISING THE SALE OR PURCHASE OF BIRDS OR THINGS THAT MAY NOT BE SOLD

229. In line with sections 6(1)(b) and 6(2)(b) of the Wildlife and Countryside Act 1981, we have also concluded that under the new framework it should remain an offence for a person to publish or cause to be published any advertisement likely to be understood as conveying that the person buys or sells or intends to buy or sell things the sale of which is prohibited.

     
     

     TEMPORAL AND TERRITORIAL RESTRICTION OF THE PROHIBITIONS

230. In the light of the temporal and territorial restrictions of the Wild Birds Directive discussed above in the context of the possession prohibitions, we have concluded that a person should not be guilty of an offence of selling a wild bird of a protected species, a part a such a bird, anything derived from such a bird, an

     
     

     109 Although article 6(1) refers to “any recognisable parts or derivatives of such birds”, our view is that reading that expression as including a reference to eggs would significantly stretch the ordinary meaning of the word “derivative”, particularly because section 5(c) of the Wild Birds Directive expressly refers to eggs.

     egg, or any part of an egg of such a bird if he or she can show that the bird or egg in question was killed, captured or taken from the wild before the implementation date of the Wild Birds Directive or outside the European territory of a member state to which the TFEU applies.

     
     

     Recommendations

     
     

     Recommendation 61: we recommend that the current regulatory regime for controlling the trade in protected bird species and their eggs should cease to expressly prohibit the trade in captive-bred birds. The existing regime should be replaced by a general prohibition making it an offence to sell, offer for sale, expose for sale, be in possession for the purpose of sale any wild bird of a protected species (including “game birds”), any part of such a bird, anything derived from such bird or the egg, or any part of an egg, of such bird.

     
     

     This recommendation is given effect in the draft Bill by clauses 14(1) and (2).

     
     

     Recommendation 62: we recommend that the boundary between the market in captive-bred birds and the market in wild birds should be policed by the presence of a reverse burden of proof. Any person involved in trade in birds, in other words, should be presumed to be trading in wild birds unless the bird is ringed, marked or otherwise registered in accordance with regulations made by the Secretary of State or Welsh Ministers.

     
     

     This recommendation is given effect in the draft Bill by clause 27.

     
     

     Recommendation 63: we recommend that, in line with section 6(2) of the Wild Birds Directive, the general prohibition on the trade in wild birds should not apply to wild birds (any part of such a bird, anything derived from such bird or the egg, or any part of an egg, of such bird) of a species listed in part A of annex 3 to the Wild Birds Directive, including “game birds”, unless the prosecution shows that

     
     

     1. the bird had been killed or captured in contravention of domestic legislation or the law of other member states giving effect to the Wild Birds Directive and the defendant knew or had reason to believe that this was the case; or

        
        

     2. the bird had been sold to the defendant in the European territory of a member state in contravention of domestic legislation or the law of other member states giving effect to the Wild Birds Directive, and the defendant knew, or had reason to believe that the sale was unlawful.

        
        

        This recommendation is given effect in the draft Bill by clauses 14(3) to (8).

        
        

        Recommendation 64: we recommend that a person should not be guilty of an offence of selling a wild bird of a protected species, a part a such a bird, anything derived from such a bird, an egg, or any part of an egg of such a bird if he or she shows that the bird or egg in question was killed, captured or otherwise taken from the wild

        1. before the implementation date of the Wild Birds Directive; or

           
           

        2. outside the European territory of a member state to which the TFEU applies.

     
     

     This recommendation is given effect in the draft Bill by clause 15.

     
     

     Recommendation 65: we recommend that it should remain an offence for a person to publish or cause to be published any advertisement likely to be understood as conveying that the person buys or sells or intends to buy or sell things the sale of which is prohibited.

     
     

     This recommendation is given effect in the draft Bill by clause 16.

     
     

     OTHER PROHIBITIONS IN SECTIONS 6(3), 7 AND 8 OF THE WILDLIFE AND COUNTRYSIDE ACT 1981

231. Sections 6(3), 7 and 8 of the Wildlife and Countryside Act 1981 include a number of prohibitions that primarily give effect to domestic policy in connection with the conservation and welfare protection of certain birds.

     
     

232. Section 6(3) of the Wildlife and Countryside Act 1981 makes it an offence for a person to show or cause or permit to be shown for the purposes of any competition or in any premises in which a competition is being held:

     
     

     1. any live wild bird other than a bird included in part 1 of schedule 3;110 or

        
        

     2. any live bird one of whose parents was such a wild bird.

     
     

233. Section 7 of the Wildlife and Countryside Act 1981 provides that the possession of certain endangered bird species is prohibited unless the birds are registered and ringed or marked in accordance with regulations. The possession of those birds, in addition, is prohibited if the person in possession of the bird had previously been convicted of certain conservation or animal welfare offences.

     
     

234. Lastly, section 8 of the Wildlife and Countryside Act 1981 makes it an offence to confine birds in any cage or receptacle which is not sufficient in height, length or breadth to permit the bird to stretch its wings freely. Section 8 also makes it an offence to take part in any event in the course of which captive birds are liberated by hand or by any other means for the purpose of being shot immediately after their liberation.

     
     

235. As changing the level of protection of species protected for domestic reasons falls outside the scope of the current review, we have concluded that there is no reason why the above prohibitions under sections 6(3) and 7 of the Wildlife and Countryside Act 1981 should not be replicated under the new framework. We have concluded, on the other hand, not to replicate section 8 of the Wildlife and

110 As discussed above, under section 6(5) of the Wildlife and Countryside Act 1981, “part 1 of schedule 3” is a reference to any bird included in that part which: (a) was bred in captivity;

(b) has been ringed or marked in accordance with regulations made by the Secretary of State; and (c) has not been lawfully released into the wild as part of a re-population or re- introduction programme.

Countryside Act 1981 under the Wildlife Bill on the basis that it is unconnected to the protection of wild birds and falls, therefore, outside the scope of the wildlife project.

Recommendations

Recommendation 66: we recommend that the effect of sections 6(3) and 7 of the Wildlife and Countryside Act 1981 should be replicated under the new regulatory regime.

This recommendation is given effect in the draft Bill by clauses 17 and 20.

CHAPTER 5

PROHIBITED CONDUCT: PROTECTION OF WILD ANIMALS

INTRODUCTION

1. In this Chapter we make recommendations for the simplification and reform of the existing prohibitions connected with the protection of wild animals.

   
   

2. In contrast with the current regulatory regime for the protection of wild birds, which is primarily located in Part 1 of the Wildlife and Countryside Act 1981, provisions for the protection of wild animals are scattered across a large number of often inconsistent and overlapping legal instruments. For example, most protected wild animals are currently protected under Part 3 of the Conservation of Habitats and Species Regulations 20101 and sections 9 and 11 of the Wildlife and Countryside Act 1981. The 2010 Regulations were made for the sole purpose of giving effect to the UK’s obligations under the Habitats Directive. Sections 9 and 11 of the 1981 Act were enacted for the purpose of consolidating existing domestic protection preferences and implementing the UK’s international obligations under the Bern Convention. Because of the failure to integrate the two regimes, however, a number of species are currently protected by similar (and sometimes, though not always, identical) provisions under both regulatory frameworks. This makes it difficult for a person to discover what his or her obligations are, what defences he or she could rely on and on what grounds he or she would be able to apply for a wildlife licence.

   
   

3. A number of other wild animals continue to be protected under species-specific protection regimes, such as the Protection of Badgers Act 1992, the Deer Act 1991 and the Conservation of Seals Act 1970. Some of those protection regimes are the result of private member’s Bills; others build upon legislation dating back to the beginning of the twentieth century. It follows that the language and structure of the prohibitions under those Acts are often inconsistent with the more modern and comprehensive regulatory regimes mentioned above.

   
   

4. In the light of the intricate nature of the current legislative landscape, recommendations in this Chapter are primarily focused on the rationalisation and harmonisation of the current regulatory regime. The aim is to remove unnecessary overlaps and ensure that the new regulatory framework is consistent and, as far as possible, easily accessible to users.

   
   

   1 SI 2010 No 490. The 2010 Regulations replaced the Conservation (Natural Habitats and c.) Regulations 1994 SI 1994 No 2716 to give effect to the Court of Justice of the European Union’s ruling in Case C-6/04 Commission v UK [2005] ECR I-9017.

5. Recommendations in this Chapter cover, in particular, the definition of “wild animal”, the domestic transposition of the primary activity prohibitions under article 6 of the Bern Convention and article 12 of the Habitats Directive, the harmonisation of the mental element of certain offences, the rationalisation of different disturbance prohibitions, changes to the prohibitions in connection with the use of indiscriminate methods of killing or capturing wild animals and the rationalisation of the current regime regulating the trade in and possession of protected wild animals.

   
   

   DEFINITION OF “WILD ANIMAL”

6. At both EU and domestic level, the protection of wild animals – other than wild birds – is primarily based on schedules listing the individual species or sub- species to which each specific prohibition applies. As with offences against wild birds, however, it is equally important to determine when an animal of a protected species should be protected by wildlife protection legislation.

   
   

7. As one of the main purposes of this Chapter is the creation of a consistent and accessible regulatory framework incorporating all existing wildlife protection provisions, in this section we explore the extent to which the definition of “wild animal” may be harmonised across the new Wildlife Bill without substantively changing the level of protection that animals of protected species currently enjoy.

   
   

   The Bern Convention and the Habitats Directive

8. Article 1(1) of the Bern Convention and article 2(2) of the Habitats Directive make clear that the underlying purpose of their respective provisions is the conservation of “wild fauna and flora”. The species-specific obligations under the two instruments, however, are framed in slightly different terms. Article 6 of the Bern Convention requires member states to take appropriate legislative and administrative measures to ensure the special protection of “wild fauna species”. Article 12(1)(a) to (c) of the Habitats Directive, on the other hand, requires member states to prohibit activities interfering with protected animal species “in the wild”. Similarly article 12(2) of the Habitats Directive prohibits the possession and trade in specimens “taken from the wild”.2

   
   

   Domestic legislation

   
   

   Conservation of Habitats and Species Regulations 2010

9. The Conservation of Habitats and Species Regulations 2010 take a slightly different approach from article 12(1) of the Habitats Directive. Under regulations 41(1) and 43 it is an offence to carry out relevant prohibited activities against “wild animals”, rather than animals “in the wild”. Regulation 41(6), in addition, provides that unless the contrary is shown, in proceedings for an offence under regulation 41(1) the animal in question will be presumed to have been a wild animal.

   
   

   2 Art 12(3) of the Habitats Directive provides that the prohibitions referred to in arts 12(1)(a),

   (b) and 12(2) apply to all stages of life of the animals to which those sections apply. For the purpose of art 12(2), in addition, “specimen” refers to any animal, alive or dead, any part or derivative thereof, as well as any other goods which appear to be parts or derivatives of animals or plants of those species (art 1(m)).

10. As regards secondary activity prohibitions under regulation 41(3), on the other hand, regulation 41(4) of the 2010 Regulations replicates the approach of article 12(2) of the Habitats Directive, providing that paragraph (3) only applies to any live or dead animal of a protected species, or part of an animal, which “has been taken from the wild”. Regulation 41(7), in line with regulation 41(6), provides that in any proceedings for an offence under regulation 41(3) where it is alleged that an animal was taken from the wild, it will be presumed that the animal in question was taken from the wild unless the contrary is shown.

    
    

11. Lastly, in line with article 12(3) of the Habitats Directive, regulation 41(5) provides that paragraphs (1) and (3) apply regardless of the stage of the life of the animal in question. The exact meaning of “wild animal”, however, is left undefined.

    
    

    Wildlife and Countryside Act 1981

12. The prohibitions in relation to wild animals under the Wildlife and Countryside Act 1981 consistently apply to “wild animals” of the species listed in schedules 5 and

    1. In line with the 2010 Regulations, the 1981 Act provides that in proceedings for an offence, the animal in question is presumed to have been a wild animal unless the contrary is shown.3 The 1981 Act, in addition, generally defines “wild animal” as “any animal (other than a bird) which is or (before it was killed or taken) was living wild” and specifies that any reference to an animal of any kind includes, unless the context otherwise requires, a reference to an egg, larva, pupa, or other immature stage of an animal of that kind.4

       
       

       Badgers, seals and hares

13. The Protection of Badgers Act 1992, the Conservation of Seals Act 1970 and the Game Act 1831 do not expressly distinguish “wild” from “captive” animals. The Protection of Badgers Act 1992, for instance, simply defines badgers to which the prohibitions of the Protection of Badgers Act 1992 as “any animal of the species Meles meles”.5

    
    

    Deer

14. The Deer Act 1991 differs somewhat from the above Acts, in that section 2(3) of the 1991 Act expressly provides that the prohibition of killing or taking deer during the prescribed close season does not apply to deer that are kept by a person, by way of business, “on land enclosed by a deer-proof barrier for the production of meat or other foodstuff or skins or other by-products, or as breeding stock” and that are “conspicuously marked in such a way as to identify them as deer kept by that person”. The prohibitions in connection with the killing or taking of deer at night and the use of prohibited methods of killing or capture,6 on the other hand, apply to any “deer”.7

    
    

    3 Wildlife and Countryside Act 1981, ss 9(6) and 11(5).

    4 Wildlife and Countryside Act 1981, ss 27(1) and 27(3).

    5 Protection of Badgers Act 1992, s 14.

    6 Deer Act 1991, ss 3 and 4.

    7 “Deer” means deer of any species and includes the carcase of any deer or any part thereof; “species” includes any hybrid of different species of deer (Deer Act 1991, s 16).

    Discussion

15. As discussed above, the wording of article 12(1) of the Habitats Directive appears to restrict the scope of the primary activity prohibitions to animals of protected species that are located “in the wild”. This approach differs from article 6 of the Bern Convention and article 5 of the Wild Birds Directive, both of which refer to the status of the animal or bird in question rather than the location where it was killed or captured.

    
    

16. We have taken the view that the approach in the Habitats Directive is anomalous and cannot be replicated in domestic legislation through an effective criminal offence. First, it could create legal uncertainty in relation to species – such as bats – that roost inside premises. Secondly, it would mean that once person A captures an animal of a protected species (whether lawfully or unlawfully), person B could kill the animal without committing a wildlife crime. Those results, in our view, could not possibly accord with the object and purpose of the Bern Convention and the Habitats Directive.

    
    

17. Regulation 41(1) of the Conservation of Habitats and Species Regulations 2010 transposes article 12(1) by reference to “wild animals” of species protected under annex 4 to the Directive. We are satisfied that this is the only workable transposition of article 12(1) in domestic legislation. The same approach, therefore, should be retained under the new framework.

    
    

18. In line with our recommendations in connection with the transposition of the Wild Birds Directive, we have concluded that – for the purpose of transposing article 12(1) of the Habitats Directive under the new framework – “wild animal” should be defined in line with the ruling of the Court of Justice of the European Union in Vergy.8 For present purposes, the object and purpose of the Wild Birds Directive is equivalent to the object and purpose of the Bern Convention and the Habitats Directive. It follows that there is no reason why the test to determine whether an animal of a protected species falls within the scope of the Habitats Directive should be different from the test to determine whether a bird of a protected species falls within the scope of the Wild Birds Directive.

    
    

19. “Wild animal”, therefore, should be defined as any animal which was not bred in captivity, or an animal that was bred in captivity which has been lawfully released into the wild as part of a re-population or re-introduction programme. Secondly, an animal should not be considered “captive-bred” unless it was bred in captivity using animals which were lawfully in captivity. This will ensure that a person who has unlawfully captured a protected animal from the wild will not be able to possess or sell its young lawfully.

    
    

20. In line with article 12(3) of the Habitats Directive, we have concluded that any reference to an animal should include a reference to an animal, other than a bird, at any stage of development.

    
    

21. In addition, for the reasons explained in Chapter 4, in proceedings for an offence giving effect to article 12(1) of the Habitats Directive, an animal of a protected species should be presumed to be a wild animal unless the contrary is shown.

    
    

    8 Case C-149/94 Didier Vergy [1996] ECR I-299, discussed at para 4.8 above.

    Article 12(2) of the Habitats Directive

22. To ensure that the same category of wild animals are protected by the secondary activity prohibitions under article 12(2) as are protected by primary activity prohibitions under article 12(1) of the Directive, we have concluded that the prohibitions under article 12(2) should be transposed by reference to the same definition of “wild animal”.

    
    

    Harmonisation of provisions arising from domestic policy

    
    

    WILDLIFE AND COUNTRYSIDE ACT 1981

23. As discussed above, the Wildlife and Countryside Act 1981 defines “wild animal” as “any animal (other than a bird) which is or (before it was killed or taken) was living wild”.9 In proceedings for offences under sections 9 (prohibition of killing or taking) and 11 (prohibited methods), in addition, an animal is presumed to be a wild animal unless the contrary is shown.10

    
    

24. We have taken the view that this approach is substantively identical to the way we have approached the definition of “wild bird” and “wild animal” for the purpose of giving effect to the object and purpose of the Wild Birds Directive and the Habitats Directive. The only difference is that the definition used in the Wildlife and Countryside Act 1981 would also cover captive-bred animals of a protected species that have escaped into the wild. Because the great majority of animals protected under the Wildlife and Countryside Act 1981 are not animals that are ordinarily bred in captivity, and the burden of proof to show that the animal had been bred in captivity would remain on the defendant, we have reached the view that, in practice, the two definitions are interchangeable. We have concluded, therefore, that in the Wildlife Bill the definition of “wild animal” in the provisions reproducing those of the Wildlife and Countryside Act 1981 should be aligned with the definition of “wild animal” in the provisions giving effect to article 6 of the Bern Convention and article 12 of the Habitats Directive.

    
    

    BADGERS, SEALS AND HARES

25. For similar reasons, we have concluded that the same approach should also extend to the protection of badgers under the Protection of Badgers Act 1992, the protection of seals under the Conservation of Seals Act 1970 and the protection of hares under section 3 of the Game Act 1831. From looking at the nature of the protection provisions under the above legal instruments it is clear that the aim of the drafters of those instruments was the protection and conservation of wild specimens rather than the protection of the welfare of (for example) animals in zoos. In our view, therefore, restricting the protection provisions of the prohibitions under the above legal instruments to animals that were not bred in captivity will have no substantive effect on the level of protection that animals of that species currently enjoy.

    
    

    9 Wildlife and Countryside Act 1981, s 27(1).

    10 Wildlife and Countryside Act 1981, ss 9(6) and 11(5).

    DEER

26. As mentioned above, section 2(3) of the Deer Act 1991 draws a distinction between deer that are kept for the purpose of meat production and other deer. This distinction ensures that deer that are kept for the purpose of meat production may be killed all year round by their owner without the need to seek a licence, on the basis that there would be no conservation or animal welfare reason for imposing a close season on farmed deer.11

    
    

27. We have noted that the same distinction does not currently apply to the prohibition on the killing or capture of deer during the night and the prohibition on the use of certain prohibited methods of killing or capture.12 As deer kept for the purpose of meat production are protected by the Animal Welfare Act 2006, however, it is difficult to find a good reason why they should continue to be protected by provisions that were designed to regulate hunting. We have concluded, therefore, that under the new framework the provisions replicating the protection regime of the Deer Act 1991 should extend to any deer except deer kept for the purpose of meat production that fall within the definition currently in section 2(3) of the Deer Act 1991.

    
    

28. We have considered the option of further restricting the protection provisions of the new framework to “wild deer”. After protracted discussions with stakeholders, however, we have realised that limiting the protection regime to “wild deer” would run the risk of complicating, rather than simplifying the application of the law.

    
    

29. Restricting the application of wildlife protection legislation to wild deer, for instance, could create significant legal uncertainty in connection with the management of “park deer”.13 This is because in certain circumstances it may be difficult to determine whether, for the purpose of the application of the Animal Welfare Act 2006, a park deer is living wild or not. Given that, in theory, deer may also be legally captured from the wild during the open season for restocking deer parks or deer farms, creating a distinction between “wild deer” and other deer would have the effect of creating artificial distinctions between different park deer specimens on the basis of their origin.

    
    

    Recommendations

    
    

    Recommendation 67: we recommend that “wild animal” should be defined as any animal other than a captive-bred animal, unless the captive-bred animal has been lawfully released into the wild as part of a re-population or re-introduction programme.

    
    

    This recommendation is given effect in the draft Bill by clause 28(3).

    
    

    11 The welfare of captive animals is generally protected by the Animal Welfare Act 2006. The welfare of farmed animals is currently primarily protected by the Welfare of Farmed Animals (England) Regulations 2007 SI 2007 No 2078 and the Welfare of Farmed Animals (Wales) Regulations 2007 SI 2007 No 3070 (W 264) as amended.

    12 Deer Act 1991, ss 3 and 4.

    13 “Park deer” are deer kept in parks, often purely for ornamental purposes.

    Recommendation 68: we recommend that the prohibitions replicating the current protection regime in connection with badgers, seals and hares should apply to “wild animals” of such species.

    
    

    This recommendation is given effect in the draft Bill by clauses 43, 49, 52, 57, 59,

    60 and 62.

    
    

    Recommendation 69: we recommend that an animal should be presumed to be a wild animal unless the defendant shows that it was captive-bred, but an animal should not be treated as captive-bred unless the defendant shows that the animal in question was bred in captivity using animals which were lawfully in captivity.

    
    

    This recommendation is given effect in the draft Bill by clauses 28(4) and (6).

    
    

    Recommendation 70: we recommend that the protection provisions replicating the effect of the Deer Act 1991 should not apply to any deer which is

    
    

    1. kept by a person, by way of business for the production of meat or other foodstuffs, skins or byproducts or as breeding stock;

       
       

    2. kept by that person on land enclosed by a deer-proof barrier; and

       
       

    3. conspicuously marked in such a way as to identify it as a deer kept by that person.

    
    

    This recommendation is given effect in the draft Bill by clause 162(2).

    
    

    PRIMARY ACTIVITY PROHIBITIONS

30. In line with the protection of wild birds, primary activity prohibitions constitute the backbone of the species-specific protection regime for wild animals in England and Wales.

    
    

31. As explained at the beginning of this Chapter, a number of problems that we have identified in this area of law are linked to the presence of overlapping regulatory regimes and the use of inconsistent language and definitions across a fragmented regulatory landscape.

    
    

32. Keeping in mind the need to give effect to the UK’s international and EU obligations whilst retaining domestic policy preferences, in reviewing this area of law we have focused primarily on the simplification and harmonisation of existing primary activity prohibitions with a view to reorganising them within a flexible, accessible and coherent structure.

    
    

33. In this context, it is important to note that the extent to which we have been able to simplify the existing protection regime under the Wildlife Bill has been significantly curtailed by our inability to recommend substantive changes to the level of protection of species protected for domestic reasons. We suggest, therefore, that serious consideration should be given to the possibility of further harmonising provisions giving effect to domestic protection preferences with prohibitions giving effect to international and EU obligations.

    Simplification of the mental element of certain offences

34. In the consultation paper we highlighted the current lack of consistency in the mental element required to convict a person for a wildlife crime.14

    
    

35. Killing, capturing or injuring an animal protected under article 9(1) of the Wildlife and Countryside Act 1981, for instance, is prohibited if the activity was carried out “intentionally”.

    
    

36. Killing, capturing or injuring a wild animal of a species protected by article 12 of the Habitats Directive, on the other hand, is prohibited if the activity is carried out “deliberately”. As discussed in Chapter 3, in this context the word “deliberate” should be interpreted in the light of the case law of the Court of Justice of the European Union.15 In other words, the killing, capture or injuring of a protected animal is deliberate not only if the defendant intended to cause the death, injury or capture of the protected animal, but also if:

    
    

    1. he or she intended to kill, injure or capture that animal; or

       
       

    2. his or her actions presented a serious risk to animals of the relevant species unless reasonable precautions were taken and he or she was aware that that was the case but failed to take reasonable precautions; or

       
       

    3. his or her actions presented a serious risk to animals of the relevant species whether or not reasonable precautions were taken, and he or she was aware that that was the case.

       
       

37. Killing, capturing or injuring badgers and seals is prohibited if the activity is carried out “wilfully”.16 As discussed in the consultation paper, since the case of R v Sheppard17 the courts have consistently interpreted the term “wilful” as including both intention and “recklessness”. It is also settled law that “recklessness” for these purposes should be understood in a subjective sense;18 in other words if an individual “has seen the risk of the proscribed circumstances or consequences and has nevertheless gone on unreasonably to take that risk, his conduct can be described as ‘wilful’”.19 On this construction, section 1(1) of the Protection of Badgers Act 1992 and section 2(2) of the Conservation of Seals Act 1970 prohibit a broader range of activities than section 9(1) of the Wildlife and Countryside Act 1970.

    
    

38. Lastly, activities causing disturbance to animals protected under schedule 5 to the Wildlife and Countryside Act 1981 and the disturbance of badgers are prohibited if carried out “intentionally or recklessly”.20

    
    

    14 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 7.5-7.9.

    15 See, in particular, Case C-221/04 Commission v Spain [2006] ECR I-4515.

    16 Protection of Badgers Act 1992, s 1(1); Conservation of Seals Act 1970, s 2(2).

    17 R v Sheppard [1981] AC 394.

    18 R v D [2008] EWCA Crim 2360, [2009] Criminal Law Review 280; for the leading case on subjective recklessness see R v G [2003] UKHL 50, [2004] 1 AC 1034.

    19 D Ormerod and K Laird, Smith and Hogan’s Criminal Law (14th ed 2015) p 140.

    20 Wildlife and Countryside Act 1981, ss 9(4) and (4A); Protection of Badgers Act 1992, s 3.

    Discussion

39. With a view to harmonising as far as possible the mental element of a number of domestic offences, in consultation we asked a number of questions in order to ascertain the extent to which stakeholders thought that the imperative for a simplified regulatory regime should take precedence over Parliament’s current choices as to the mental element of these offences.

    
    

40. First, we asked whether consultees thought that under the new framework disturbance offences against badgers and disturbance offences against wild specimens of species listed in schedule 5 to the Wildlife and Countryside Act 1981 should prohibit both intentional and reckless behaviour.

    
    

41. Secondly, in connection with species protected from killing, injury or capture as a matter of domestic law, we presented the following options to consultees:

    
    

    1. All domestically protected species not protected as a matter of EU law should be protected from being intentionally or recklessly taken, killed or injured.

       
       

    2. Badgers and seals should be protected from being intentionally or recklessly killed, taken or 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.

       
       

42. Consultees expressed overwhelming support for the options that would bring a higher level of consistency across the protection regime. However there was no consensus as to what that level of protection should be. We concluded, therefore, that we would not be comfortable with substantively altering the level of protection of species protected under the Wildlife and Countryside Act 1981 as a matter of domestic law for the sole purpose of simplifying the regulatory regime. This is a policy decision that should be taken by elected representatives, in the light of sound scientific advice. In general, therefore, we have concluded that under the new regulatory framework the level of protection of wild animals protected for domestic reasons should, in substance, reflect the level of protection that they currently enjoy under domestic law.

    
    

43. Whilst refraining from substantially altering the level of protection of wild animals, we have concluded that it would still be possible to simplify the new regime by reducing the number of prohibited mental elements to two: “intentional” and “deliberate”.

    
    

44. We recommend that wild animals that are currently protected from “intentional” killing or capture under section 9(1) of the Wildlife and Countryside Act 1981 and section 2(1) of the Deer Act 1991 should continue to be protected from activities carried out intentionally. Activities that are currently prohibited when committed “wilfully” or “recklessly”, on the other hand, should be prohibited under the new framework when carried out “deliberately” as described in Chapter 3.

45. As just mentioned, the term “wilfully” is to be understood in the law of England and Wales as including “recklessness”. We consider that “recklessness”, as the courts understand it for these purposes, sets a marginally lower threshold of proof than the concept of “deliberate” action as we have formulated it in Chapter

    3.21 However, in the domestic legislation as originally enacted, all the offences capable of being committed either “intentionally”, “recklessly” or “wilfully” were subject to the “incidental results” defence discussed in Chapter 7 below. This provided a defence where the activity engaged in by the defendant was “lawful”, the death or disturbance of the animal was “incidental” to that activity and the defendant showed that the otherwise prohibited result “could not reasonably have been avoided”. However, in Commission v United Kingdom the Court of Justice held that the incidental results defence infringed the Habitats Directive by going beyond the grounds of derogation permitted by article 16.22

    
    

46. As we explain in Chapters 3 and 7, we take the view that our recommendation in connection with the transposition of prohibitions of “deliberate” activity will both reflect the requirements of EU law and meet the concerns that appear to have underlain the introduction of the “incidental results” defence by removing from the scope of the prohibitions giving direct effect to the directives those cases where the use of the concept of recklessness would result in over-criminalisation of legitimate economic activities. For the same reasons, we take the view that replacing the recklessness element of the offences that protect animals for reasons of domestic policy with a prohibition of “deliberate” action will leave the practical scope of the offences virtually unchanged while reducing the number of different mental elements used in the offence-creating provisions of wildlife law.

    
    

    Recommendations

    
    

    Recommendation 71: we recommend that all activities interfering with protected wild animals that are currently prohibited if committed “wilfully” or “intentionally or recklessly” should be prohibited under the new regulatory regime when committed “deliberately”, as defined in recommendations 25 to 28.

    
    

    21 R v G [2003] UKHL 50, [2004] 1 AC 1034.

    22 Case C-6/04 Commission v United Kingdom [2005] ECR 09017 at [106] to [107].

    Mental element as to the circumstances in “intentional” offences

47. In replicating existing “intentional” prohibitions under the new regulatory framework, we noticed that the way existing “intentional” prohibitions are drafted leaves the question as to the required mental element as to the circumstances required to convict a person of a relevant offence unanswered.23 It is unclear whether the prosecution need to establish that the defendant:

    
    

    1. intended to kill the creature that was killed and that, regardless of the defendant’s knowledge, the creature in question was, as a matter of fact, an animal of a protected species (the offence is one of “strict liability” as to the circumstances);

       
       

    2. intended to kill the creature that was killed and believed that the creature was an animal of a protected species;

       
       

    3. intended to kill the creature that was killed in the belief that the creature was an animal of the species that happened to be killed;

       
       

    4. intended to kill the creature that was killed being reckless as to whether the creature in question was an animal of a protected species; or

       
       

    5. intended to kill the creature that was killed being reckless as to whether the creature in question was an animal of the species that was killed.

       
       

48. Given the ambiguous statutory language and the absence of relevant case law, we have been unable to provide a conclusive answer to the question. On balance, nevertheless, we have taken the view that the most likely conclusion that a court would reach if presented with the above question is that “intentional” offences, in the context of wildlife law, do not require the prosecution to establish any mental element as to the circumstances of the offence (option (1) above).24

    
    

49. We have taken the view that strict liability is both the most likely answer and, from an enforcement perspective, the most workable option. It would foreclose the defendant’s ability to present arguments such as “I did not know what species that animal was, I just wanted to shoot it” or “I am not an entomologist; I thought it was a butterfly of unprotected species X, not a butterfly of protected species Y”.

    
    

    23 Whilst a couple of High Court decisions clarified that existing secondary activity offences under the Wildlife and Countryside Act 1981 do not require the prosecution to establish any mental element as to the circumstances of the offence, they are inconclusive as to whether the same approach extends to primary activity prohibitions. See Kirkland v Robinson (1987) 151 JP 377. See also R (on the application of the Royal Society for the Prevention of Cruelty to Animals) v Sittingbourne Magistrates [2001] EWHC Admin 470, where it was common ground between the parties that the offences that were being prosecuted were offences of strict liability (both as to the consequences and the circumstances).

    24 The Wildlife Bill has been drafted accordingly (see, for instance, clause 30).

50. There are also strong policy reasons for adopting a strict liability approach (as to the circumstances) in this context. Before intentionally killing an animal a person should make sure that the animal is not one of a protected species, and if the person has doubts as to the identity of the animal he or she should not act, or should take further steps to ensure that the animal he or she is intending to kill is not one of a protected species. This is consistent with the precautionary principle.25

    
    

51. We also think that requiring the prosecution to establish that the defendant was merely reckless as to the circumstances would be, from a policy perspective, as workable as the strict liability approach. However, on balance we have taken the view that it is unlikely – in the statutory context of existing “intentional” offences – that a court would read “recklessness” (as to the circumstances) into a criminal offence that only refers to intentionality.

    
    

    Deliberately killing, injuring or capturing a wild animal: European protected species etc

    International and EU obligations

52. Article 6 of the Bern Convention requires contracting parties to take appropriate legislative and administrative measures to ensure the special protection of wild fauna species listed in appendix 2 to the Convention and, in particular, prohibit “all forms of deliberate capture and keeping and deliberate killing”.

    
    

53. Similarly, article 3(5) of the Bonn Convention requires parties that are “range states” of a migratory species listed in appendix 1 to the Convention to prohibit the “capture” and “deliberate killing” of animals belonging to such species, subject to specific exceptions.26 Species listed in appendix 1 that have a natural range including Great Britain include the turtle (Caretta caretta), the common sturgeon (Acipenser sturio) and the basking shark (Cetorhinus maximus).27

    
    

54. Lastly, article 12(1)(a) of the Habitats Directive requires member states to take the requisite measures to establish a system of strict protection for the animal species listed in annex 4(a) in their natural range, prohibiting “all forms of deliberate capture or killing of specimens of those species in the wild”.

    
    

    25 The precautionary principle is both a general principle of EU law (see art 191(2) of the Treaty of the Functioning of the European Union) and a fundamental policy principle which lies behind the domestic regulation of most activities that have the potential of causing adverse impacts on the environment.

    26 Art 3(5) of the Convention on Migratory Species prohibits the “taking” of species listed in appendix 1. “Taking” is defined in art 1 as including “capture” and “deliberate killing”.

    27 The European Union entered a reservation as regards the listing of the basking shark in appendix 1 to the Bonn Convention. As the basking shark is not protected under the Habitats Directive, the UK’s obligation to protect the basking shark is only an obligation under international law.

    Domestic transposition

55. Article 12(1)(a) of the Habitats Directive is currently transposed in domestic law by the Conservation of Habitats and Species Regulations 2010, which make it an offence deliberately to capture, injure or kill any wild animal of a European protected species. “European protected species” are those listed in schedule 2 to the 2010 Regulations, which reproduces those species of animals listed in annex 4(a) to the Habitats Directive which have a natural range which includes any area of Great Britain.28

    
    

56. Whilst annex 4(a) to the Habitats Directive covers most of the species listed in appendix 2 to the Bern Convention and appendix 1 to the Bonn Convention that have a natural range which includes Great Britain, a limited number of such species that are strictly protected under the two Conventions fall outside the protection regime of the Habitats Directive. Some of those species, including the basking shark (Cetorhinus maximus)29 and the walrus (Odobenus rosmarus),30 are currently listed in schedule 5 to the Wildlife and Countryside Act 1981 and are therefore protected by section 9(1) of the 1981 Act, which makes it an offence “intentionally” to kill, capture or injure a wild animal of a schedule 5 species.

    
    

    Mental element of the new offence

57. The Bern Convention, the Bonn Convention and the Habitats Directive require member states to prohibit the “deliberate” capture or killing of protected species. We have concluded, therefore, that in line with regulation 41(1) of the 2010 Regulations, the offence giving effect to the UK’s external obligations under the new framework should prohibit the killing, injuring or capturing of protected species when the relevant prohibited activity is carried out “deliberately” rather than “intentionally”.

    
    

58. In line with the discussion in Chapter 3, we have concluded that “deliberately” for these purposes should be defined in accordance with our recommendations giving effect to the Court of Justices’ ruling in Case C-221/04 Commission v Spain. Whilst the ruling of the Court of Justice was primarily focused on the meaning of “deliberate” in the context of article 12(1) of the Habitats Directive, we see no reason why the Court would interpret the provisions of the Bern and Bonn Conventions differently.

    
    

    28 SI 2010 No 490, regs 40 and 41(1)(a).

    29 Bonn Convention, appendix 1.

    30 Bern Convention, appendix 2.

    Species protected by the new offence

    
    

    SPECIES PROTECTED BY INTERNATIONAL AND EU LAW

59. In connection with primary activity prohibitions, the Habitats Directive requires a system of strict protection to be established for species listed in annex 4(a) within their natural range. This is a different approach to that taken in the Wild Birds Directive, which specifically protects across the EU all bird species whose natural range includes any part of the EU. It produces the result that an animal artificially removed from its natural range into Great Britain is not protected by the Habitats Directive. This approach is reflected in the Conservation of Habitats and Species Regulations 2010 (the 2010 regulations) which – in the context of primary activity prohibitions – protects only those species listed under annex 4 to the Habitats Directive that have a natural range including Great Britain. The Bonn Convention takes an equivalent approach to the Habitats Directive, by imposing the obligation to prohibit the deliberate capture or killing of an animal listed in appendix 1 only upon “range states”.

    
    

60. Article 6 of the Bern Convention, on the other hand, would appear to impose upon contracting states an obligation to protect any wild animal listed in appendix 2, regardless of the natural range of the animal in question. We have concluded that this cannot have been the intention of the drafters. Except for possession and commercial offences, it would be confusing and counter-productive to protect in domestic legislation a list of hundreds of species and sub-species of animals only a very limited fraction of which are likely to be encountered in practice. The killing or capture of a specimen transported by human agency outside its natural range would generally be unlikely to cause, in itself, any significant impact on the conservation status of the population of the species concerned. If the species were invasive, moreover, there could be a public interest in eradicating it.

    
    

61. In recommendation 48 we are recommending an offence of deliberate killing, capture or injury of birds. Here we recommend an offence of “deliberate” killing, injuring or capture of the following animal species:

    
    

    1. Species listed in appendix 2 to the Bern Convention (except birds) that have a natural range including Great Britain;

       
       

    2. Species listed in appendix 1 to the Bonn Convention (except birds) that have a natural range including Great Britain;

       
       

    3. Species listed in annex 4(a) of the Habitats Directive that have a natural range including Great Britain.

       
       

62. In theory, it would be possible to restrict the scope of the offence to species whose natural range includes England and Wales. Given the absence of significant natural borders between Scotland, England and Wales, however, we have taken the view that, on balance, the approach under the 2010 Regulations should be retained. The risk with the alternative option is that a protected species that extended its natural range from Scotland to northern England would remain unprotected in England and Wales until it was scheduled by the Secretary of State or the Welsh Ministers. Such a hypothetical situation would be problematic not only in terms of conservation, but also in terms of the compliance with international and EU obligations.

    BADGERS

63. In line with our recommendations in connection with the simplification and harmonisation of the mental element of certain offences, we have concluded that in replicating section 1(1) of the Protection of Badgers Act 1992 under the new framework, badgers31 should be protected from deliberate killing, injury or capture in the same way as animals protected under the Habitats Directive, the Bern Convention and the Bonn Convention.

    
    

    Recommendations

    
    

    Recommendation 72: we recommend that it should be an offence to kill, injure or capture the following animal species “deliberately”:

    
    

    1. wild animals of a species listed in appendix 2 to the Bern Convention (except birds) that have a natural range including Great Britain;

       
       

    2. wild animals of a species listed in appendix 1 to the Bonn Convention (except birds) that have a natural range including Great Britain;

       
       

    3. wild animals of a species listed in annex 4(a) of the Habitats Directive that have a natural range including Great Britain;

       
       

    4. wild animals of the species Meles meles (badgers).

    
    

    This recommendation is given effect in the draft Bill by clause 29 and schedule 12.

    
    

    Intentional killing, injuring and capture: animals protected in England and Wales

64. Section 9(1) of the Wildlife and Countryside Act 1981 makes it an offence for any person “intentionally” to kill, injure or take a wild animal of a species protected in schedule 5 to the 1981 Act.

    
    

65. As mentioned above, for the purpose of section 9(1), schedule 5 lists certain species protected under the Bern Convention and Bonn Convention that fall outside the scope of annex 4 to the Habitats Directive. A large number of species that are currently listed in schedule 5 of the 1981 Act, nevertheless, are species protected for the purpose of giving effect to domestic nature conservation policy.

    
    

66. In line with our general policy of retaining the existing level of protection of species protected as a matter of domestic law, we have concluded that under the new framework it should be an offence intentionally to kill, capture32 or injure a wild animal of a species which is currently listed in schedule 5 to the 1981 Act. This should not apply to species covered by Recommendation 72, which must be protected against “deliberate” killing, injury or capture.

    
    

    31 Wild animals of the species Meles meles.

    32 In line with the discussion in Chapter 4 paras 4.50 to 4.51, we have concluded that the term “capture” should be preferred to the term “take”.

    Recommendations

    
    

    Recommendation 73: we recommend that it should be an offence to intentionally kill, injure or capture wild animals of the species currently listed in schedule 5 to the Wildlife and Countryside Act 1981, other than those covered by Recommendation 72.

    
    

    This recommendation is given effect in the draft Bill by clause 30.

    
    

    Close seasons and prohibited periods

67. In Chapter 3 we concluded that under the new framework there should be a general power to introduce or remove close seasons or other shorter periods of protection for any animal.

    
    

68. Close seasons are currently imposed in connection with the killing or taking of certain species of deer under section 2 of the Deer Act 1991 and certain species of seal under section 2 of the Conservation of Seals Act 1970.

    
    

69. In addition, section 3 of the Deer Act 1991 prohibits the killing or taking of any species of deer at night; section 3 of the Game Act 1831 prohibits the killing or taking of hares on Sundays and Christmas day.

    
    

70. We have concluded, therefore, that together with the creation of a general power to add or remove animals and the power to add, remove or amend close seasons (or prohibited periods) imposed on specific animals, the existing close seasons and prohibited periods should be replicated under the new framework.

    
    

71. Whilst we struggled to see any good conservation or animal welfare reason for retaining the prohibition of the killing or capture of hares on Sundays and Christmas day, in line with our general policy we have decided simply to replicate the existing close seasons and prohibited periods under the new framework. We suggest, nevertheless, that a review of this prohibition may be warranted.

    
    

72. In line with our policy of retaining the existing level of protection, we also felt compelled to create two parallel prohibitions of killing animals during the close season or prohibited period. This is due to the difference between the prohibited mental element under section 2 of the Conservation of Seals Act 1970 (“wilful”) and the prohibited mental element under section 2 of the Deer Act 1991 (“intentional”).

    
    

73. On this basis, therefore, we have concluded that it should be an offence to intentionally kill, capture or injure animals listed in part 1 of the schedule (deer, hares) during the specified close season or prohibited period; the killing of animals listed in part 2 of the schedule, on the other hand, should be prohibited during the close season or prohibited period if carried out “deliberately”.33 We wonder, however, whether there is any conservation or animal welfare reason for retaining two separate offences. We suggest, therefore, that a further harmonisation of those offences may be warranted.

    
    

    33 As defined in Chapter 3 above.

    Recommendations

    
    

    Recommendation 74: we recommend that it should be offence to capture relevant species of deer intentionally during the relevant close season and hares during the relevant prohibited period.

    
    

    This recommendation is given effect in the draft Bill by clause 60(1).

    
    

    Recommendation 75: we recommend that it should be an offence to kill, injure or capture relevant species of seals “deliberately” during the relevant close season

    
    

    This recommendation is given effect in the draft Bill by clauses 60(2) and (3).

    
    

    Recommendation 76: we recommend that consideration be given to further simplifying provisions on close seasons by harmonising the prohibited mental element.

    
    

    Taking or deliberately damaging eggs: European protected species

    
    

    International and EU obligations

74. Article 6(d) of the Bern Convention prohibits – in relation to oviparous animal species listed in appendix 2 – the deliberate destruction or taking of eggs from the wild. Similarly, article 12(1)(c) of the Habitats Directive requires member states to prohibit the deliberate destruction or taking of eggs of such animal species listed in annex 4 from the wild.

    
    

    Domestic transposition

75. Article 12(1)(c) of the Habitats Directive is currently transposed in domestic legislation through regulation 41 of the Conservation of Habitats and Species Regulations 2010, which makes it an offence deliberately to take or destroy the eggs of a wild animal of a species listed in schedule 2. Under regulation 3 of the 2010 Regulations, the word “destroy” is defined, in relation to an egg, as including anything done to the egg which is calculated to prevent it from hatching.

    
    

    Reform

76. In line with the discussion in the section above, the new prohibition should apply to any animal of a species listed in appendix 2 to the Bern Convention (except birds) and annex 4(a) to the Habitats Directive which have a natural range including any part of Great Britain.

    
    

77. We have concluded that the current domestic transposition of article 6(d) of the Bern Convention and article 12(1)(c) of the Habitats Directive is, broadly speaking, satisfactory and should be replicated under the new framework.

78. We have taken the view, however, that the wording of this offence could be further harmonised with the wording of the equivalent offence designed to give effect to the UK’s obligations under the Wild Birds Directive without substantively altering the protection of animals protected under the Bern Convention and the Habitats Directive.34

    
    

79. The first difference between the prohibition under the Habitats Directive and the equivalent prohibition under the Wild Birds Directive is that the latter prohibits the “taking” of eggs from the wild whether or not the defendant acted “deliberately”. We have concluded that the same approach could be taken in connection with the transposition of article 12(1)(c) of the Habitats Directive, on the basis that it is difficult to think about any realistic situation when a person could take an egg from the wild other than intentionally.

    
    

80. The second difference is that article 5(b) of the Wild Birds Directive prohibits both the deliberate “destruction” of, and deliberate “damage” to, the eggs of a wild bird. We have concluded, again, that in the light of the object and purpose of the Habitats Directive the drafters could not have intended to exclude from the purpose of this offence activities causing damage to the egg of an oviparous protected animal. Any damage to the egg of such an animal runs the risk of interfering with the development of the young and would, therefore, have equivalent impact on the conservation of the relevant species as the destruction of that egg. We have concluded, therefore, that under the new framework it should be an offence to both deliberately “destroy” and “damage” a protected animal’s egg.

    
    

81. Lastly, both the Bern Convention and the Wild Birds Directive prohibit egg collection even if the egg in question turns out to be empty. To give effect to the UK’s obligations under the Bern Convention, we have concluded that the offence under the new framework should apply to any egg, or part of an egg, of wild animals protected under the Bern Convention and the Habitats Directive.

    
    

    Recommendations

    
    

    Recommendation 77: we recommend that it should be an offence to take or “deliberately” damage or destroy (including doing anything which prevents hatching) the egg of a wild animal of the following species:

    
    

    1. wild animals of a species listed in appendix 2 to the Bern Convention (except birds) that have a natural range including Great Britain;

       
       

    2. wild animals of a species listed in annex 4(a) of the Habitats Directive that have a natural range including Great Britain.

    
    

    This recommendation is given effect in the draft Bill by clause 34.

    
    

    34 See Chapter 4 above, paras 4.57 to 4.62.

    Taking or intentionally damaging eggs: species protected in England and Wales

82. While section 9 of the Wildlife and Countryside Act 1981 does not expressly prohibit the collection or destruction of the eggs of protected animals, section 27 of the 1981 Act defines “animal” as including the eggs, or any other immature stage of that animal. Despite the fact that some of the terms adopted in section 9 of the 1981 Act are not easily reconcilable with activities interfering with eggs, in the light of its conservation aim we have taken the view that, on balance, this section appears to indicate that it was Parliament’s intention to prohibit egg collection (taking of “animals”) and activities causing the destruction or damage of the eggs of protected animals (killing or injuring an “animal”).

    
    

83. We have concluded, therefore, that under the new framework it should remain an offence to take or intentionally damage or destroy an egg of a wild animal of a species currently listed in schedule 5 to the 1981 Act. We have taken the view that the language of the new prohibited activity should be harmonised with the language giving effect to the equivalent prohibitions under the Bern Convention, the Habitats Directive and the Wild Birds Directive.

    
    

    Recommendations

    
    

    Recommendation 78: we recommend that it should be an offence to intentionally take, damage or destroy (including doing anything which prevents hatching) the eggs of an animal of a species currently listed in schedule 5 to the Wildlife and Countryside Act 1981.

    
    

    This recommendation is given effect in the draft Bill by clauses 34(8) and 35.

    
    

    Destruction, damage and deterioration of breeding sites and resting places: European protected species

    International and EU obligations

84. Article 6(b) of the Bern Convention requires member states to prohibit deliberate damage to, or destruction of, breeding or resting sites.

    
    

85. Article 12(1)(d) of the Habitats Directive requires member states to prohibit the “deterioration or destruction” of breeding sites or resting places, whether or not brought about “deliberately”.

    
    

    Domestic transposition

86. Article 12(1)(d) of the Habitats Directive is currently transposed in domestic legislation by regulation 41(1)(d) of the Conservation of Habitats and Species Regulations 2010, which makes it an offence to damage or destroy a breeding site or resting place of an animal of a species listed in annex 4 to the Habitats Directive that has a natural range including any part of Great Britain.

    Mental element of the new offence

87. As noted above, article 12(1)(d) of the Habitats Directive does not refer to “deliberate” destruction or deterioration, The absence of a prohibited mental element in article 12(1)(d) of the Habitats Directive was discussed in Case C- 98/03 Commission v Germany, where the Court of Justice of the European Union suggested that by not limiting this prohibition to “deliberate” acts, the Community legislature had demonstrated its intention to give breeding sites or resting places increased protection against acts causing their deterioration or destruction. In the opinion of the Court of Justice, this was proportionate to the importance of the conservation objectives which the Directive aims to achieve.35

    
    

88. In line with regulation 41(1)(d) of the Conservation of Habitats and Species Regulations 2010, therefore, we have concluded that under the new framework damage to or destruction of breeding sites or resting places of species protected under annex 4(a) to the Habitats Directive that have a natural range including Great Britain should be prohibited, whether or not carried out “deliberately”.

    
    

    “Destruction”, “damage” or “deterioration”

89. For the reasons explained in Chapter 4 on the transposition of article 6(b) of the Bern Convention, we have concluded that under the new framework it should also be an offence to “cause the deterioration” of a breeding site or resting place of a protected animal.

    
    

    Obstructing access to a breeding site or resting place

90. As the European Commission guidance to article 12 of the Habitats Directive suggests, the aim of the above prohibitions is to “safeguard the ecological functionality of breeding sites and resting places”. This is because resting places and breeding sites “are crucial to the life cycle of animals and are very important parts of a species’ entire habitat, needed to ensure its survival.”36

    
    

91. In line with the discussion in Chapter 4, therefore, we have concluded that under the new framework it should also be an offence to obstruct access to a protected breeding site or resting place, on the basis that the effect of such activity on protected animals that are reliant upon such breeding sites or resting places is equivalent to the effect of activities causing damage to or destruction or deterioration of that site.

    
    

    Species protected by the new offence

92. We have concluded that the new offence should extend to the breeding sites and resting places of species (other than birds) listed in appendix 2 to the Bern Convention and species listed in annex 4(a) of the Habitats Directive that have a natural range including any part of Great Britain.

    
    

    35 Case C-98/03 Commission v Germany [2006] ECR I-53 at [55].

    36 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 41, para 53.

93. We are mindful of the fact that the Bern Convention, unlike the Habitats Directive, only prohibits deliberate destruction of or damage to breeding sites or resting places. Because the discrepancy between the list of animal species protected under annex 4(a) to the Habitats Directive and the list of animal species protected under appendix 2 to the Bern Convention is negligible in the context of animal species that have a natural range including Great Britain,37 we have taken the view that it would have made little sense, from a policy perspective, to create two separate offences. We have decided, therefore, to harmonise the transposition of the two prohibitions in favour of the stricter formulation under article 12(1)(d) of the Habitats Directive.

    
    

    Guidance

94. In line with the discussion in Chapter 4 on article 6(b) of the Bern Convention and the current transposition of article 12(1)(d) of the Habitats Directive in domestic law,38 we have concluded that under the new framework the Secretary of State or Welsh Ministers should have the power to issue codes of practice for the purpose of providing practical guidance in respect of the application of this offence. As the European Commission guidance acknowledges, it is impossible to provide a definition of “breeding site” and “resting place” that will apply to all protected animal species.39 Codes of practice, therefore, could usefully clarify how the terms “breeding site” and “resting place” should be understood in connection with specific animal species.

    
    

    Recommendations

    
    

    Recommendation 79: we recommend that it should be an offence to damage, destroy, cause the deterioration or obstruct access to the breeding site or resting place of wild animals of the following species:

    
    

    1. Wild animals of a species listed in appendix 2 to the Bern Convention (except birds) that have a natural range including Great Britain;

       
       

    2. Wild animals of a species listed in annex 4(a) of the Habitats Directive that have a natural range including Great Britain.

    
    

    This recommendation is given effect in the draft Bill by clause 48.

    
    

    37 As far as we are aware, animal species with a natural range including Great Britain that are listed in appendix 2 to the Habitats Directive but are not listed in annex 4(a) to the Habitats Directive include the walrus (an animal classified as a “vagrant” in Great Britain) and a small number of other insects that have only been rarely spotted in the British Isles.

    38 See, in particular, SI 2010 No 490, regs 41(9) and (10).

    39 European Commission, Guidance document on the strict protection of animal species of Community interest under the Habitats Directive 92/43/EEC (2007), p 41, Ch 2, para 55.

    Recommendation 80: we recommend that the Secretary of State or Welsh Ministers should have the power to issue codes of practice for the purpose of providing practical guidance in respect of the application of the provisions in connection with the damage, destruction or deterioration of breeding places or resting sites of wild animals (other than birds) protected under the Bern Convention and the Habitats Directive that have a natural range including Great Britain.

    
    

    This recommendation is given effect in the draft Bill by clause 127.

    
    

    Deliberately damaging protected shelters: species protected in England and Wales

95. Under section 9(4)(a) and (c) of the Wildlife and Countryside Act 1981 a person commits an offence if, intentionally or recklessly,

    
    

    (a) he or she damages or destroys any structure or place which any wild animal specified in schedule 5 uses for shelter or protection; [or]

    
    

    (c) he or she obstructs access to any structure or place which any such animal uses for shelter or protection.

    
    

    Mental element of the new offence

96. In line with the general policy discussed above, we have concluded that under the new framework it should be an offence to carry out any of the activities currently prohibited under sections 9(4)(a) and (c) of the 1981 Act “deliberately”.

    
    

    Prohibited activity

97. So as to harmonise the language of the prohibition replicating section 9(4)(a) of the 1981 Act with the prohibition giving effect to article 6(b) of the Bern Convention and article 12(1)(d) of the Habitats Directive, we have concluded that in addition to “damage” and “destruction” it should also be an offence to “cause the deterioration” of a place of shelter of a protected animal species.

    
    

98. In line with section 9(4)(c) of the 1981 Act, we have concluded that under the new framework it should also be an offence to cause access to the shelter of a protected animal to be obstructed.

    
    

    Species protected by the new offence

99. Whilst the prohibition under section 9(4)(a) only extends to places used as shelter or protection by animal species protected for domestic policy reasons, the offence under section 9(4)(c) extends to places used for shelter or protection by a number of animal species that are also protected by article 6(b) of the Bern Convention and article 12(1)(d) of the Habitats Directive.

100. Above we have recommended that to give effect to the UK’s international and EU obligations, under the new framework it should be an offence to obstruct access to the “breeding site or resting place” of animals of species strictly protected under the Bern Convention and the Habitats Directive. As the expression “breeding site or resting place”, in our view, includes “places used for shelter and protection”, we have concluded that it would be unnecessary to protect the same animals from both prohibitions, as doing so would give rise to two overlapping offences. As a result, the new offences replicating the effect of sections 9(4)(a) and (c) of the 1981 Act should only apply to species listed in schedule 5 to the 1981 Act that are not species which are also protected under appendix 2 to the Bern Convention or annex 4(a) to the Habitats Directive.

     
     

     Guidance

101. In line with the discussion in Chapter 4 of article 6(b) of the Bern Convention and the current transposition of article 12(1)(d) of the Habitats Directive in domestic law,40 we have concluded that under the new framework the Secretary of State or Welsh Ministers should have the power to issue codes of practice giving practical guidance in respect of the application of this offence.

     
     

     Protection of badger setts

102. Section 3 of the Protection of Badgers Act 1992 makes it an offence, among other things, intentionally or recklessly to

     
     

     1. damage or destroy a badger sett or any part of it;

        
        

     2. obstruct access to a badger sett;

        
        

     3. cause a dog to enter a badger sett; and

        
        

     4. disturb a badger when it is occupying a badger sett.41

        
        

103. “Badger sett” is defined as “any structure or place which displays signs indicating current use by a badger”.42

     
     

104. In the consultation paper we suggested that all the protection provisions in section 3 of the Protection of Badgers Act 1992 could be adequately covered under the new framework by the prohibitions replicating section 9(4) of the Wildlife and Countryside Act 1981.43 This is because “badger sett” clearly constitutes a place or structure that badgers use as “shelter or protection” and the prohibitions listed in section 3 of the 1992 Act are equivalent to the prohibitions listed in section 9(4) of the 1981 Act.

     
     

     40 See, in particular, SI 2010 No 490, regs 41(9) and (10).

     41 Protection of Badgers Act 1992, ss 3(a) to (c).

     42 Protection of Badgers Act 1992, s 14.

     43 Wildlife Law (2012) Law Commission Consultation Paper No 206, Question 6-9.

105. The only difference between the two lists of prohibitions, we suggested, was the offence of causing a dog to enter a badger sett. We pointed out, however, that causing a dog to enter a sett whilst the sett is occupied by a badger would almost invariably make out the offence of “disturbing a wild animal whilst it is occupying a structure or place which it uses for shelter or protection”.44 Causing a dog to enter a badger sett, in most cases, would also “damage” the sett, thus making out the offence replicating section 9(4)(a) of the 1981 Act. On this basis we suggested that we could not see any reason why badger setts should be protected differently from any other place of shelter used by animals of protected species listed in schedule 5 to the Wildlife and Countryside Act 1981.45

     
     

106. The majority of consultees, including the Department for Environment, Food and Rural Affairs, Natural England, the Countryside Council for Wales,46 the National Wildlife Crime Unit and environmental NGOs disagreed with our analysis. It was pointed out that this particular activity, commonly known as “badger baiting”, is a practice which causes significant suffering to both the badger and the dog and often involves the participation of criminal organisations.47 Causing a dog to enter a badger sett, as a result, should be prohibited without it being necessary for the prosecution to prove actual damage to the sett or disturbance to the badger.

     
     

107. On those grounds, we were persuaded that a separate criminal offence targeting this activity as an evil in itself should be retained, whether or not it results in the disturbance of a badger or in actual damage to a badger sett.

     
     

108. We have concluded, therefore, that for the purpose of replicating the effect of sections 3(a), (b), (c) and (e) of the 1992 Act in the new framework, badgers should simply be treated as any other wild animal of a species listed in schedule 5 to the Wildlife and Countryside Act 1981. In addition, causing a dog to enter a badger sett should remain a self-standing offence whenever it is established that the defendant carried out the prohibited activity “deliberately”.

     
     

     Recommendations

     
     

     Recommendation 81: we recommend that it should be an offence “deliberately” to damage, destroy, cause the deterioration of, or obstruct access to any structure or place that is used for shelter or protection by a wild animal of the following species:

     
     

     1. an animal of a species currently listed in schedule 5 to the Wildlife and Countryside Act 1981;

        
        

     2. a wild animal of the species Meles meles (a badger).

     
     

     This recommendation is given effect in the draft Bill by clause 49.

     
     

     44 Wildlife and Countryside Act 1981, s 9(4)(b).

     45 Wildlife Law (2012) Law Commission Consultation Paper No 206, para 6.58.

     46 The functions of the Countryside Council for Wales are now exercised by Natural Resources Wales (Natural Resources Wales (Establishment) Order 2012 SI 2012 No 1903 (W 230), art 6(1)(a)(i)).

     47 See for example http://www.northyorkshire.police.uk/badgers (last visited 26 October 2015).

     Recommendation 82: we recommend that the Secretary of State or Welsh Ministers should have the power to issue codes of practice for the purpose of providing practical guidance in respect of the application of the provisions in connection with damage to, destruction or deterioration of structures or places used for shelter or protection.

     
     

     This recommendation is given effect in the draft Bill by clause 124.

     
     

     Disturbance and harassment

109. The transposition of the prohibitions on deliberate disturbance and harassment has been discussed at length in Chapter 3 above. In sum, we have concluded that there should be two separate offences under the new framework to give effect to the UK’s international and EU obligations.

     
     

110. The first offence should prohibit the deliberate disturbance of individual specimens of listed species. The second offence should prohibit the deliberate disturbance of the local populations of all wild animals listed in appendix 2 to the Bern Convention and annex 4(a) to the Habitats Directive that have a natural range including Great Britain. We have recommended that disturbance should include, in particular, any act likely to impair the ability of animals of that species to survive, to breed or rear their young and – in the case of migratory species – migrate, or any act that is likely to have a significant effect on the distribution or abundance of the population of the species in the area.

     
     

111. In Recommendations 30, 32 and 33 we recommended that the first (individual disturbance) offence should apply to species currently protected from individual disturbance under section 9(4) of the Wildlife and Countryside Act 1981 apart from those protected under the Bern Convention and the directives, which should be protected from disturbance of their local populations in line with the requirements of the Convention and the directives. We also recommended that consideration be given to whether particular species protected by the Convention and the directives should be protected from individual disturbance.

     
     

112. Since the individual disturbance offence gives effect to the prohibition of harassment under the Bonn Convention, we have recommended that it should also apply to the basking shark (Cetorhinus maximus), the common sturgeon (Acipenser sturio), the marine turtle (Caretta caretta) and any other species listed in appendix 1 to the Bonn Convention with a natural range including Great Britain.48

     
     

113. Section 9(4A) of the Wildlife and Countryside Act 1981 additionally prohibits the intentional or reckless disturbance of specimens of basking shark, dolphins and whales. The basking shark is covered by our recommendation in the previous paragraph. Dolphins and whales, being species protected by the Habitats Directive, are already covered by our earlier recommendation that consideration be given to whether any such species should be protected from individual harassment as a matter of domestic policy.

     
     

     48 As the Law Commission does not have any specialist scientific expertise, under the Wildlife Bill we have only listed the animals that are treated by existing legislation as having a natural range including Great Britain.

114. As we noted in Chapter 3, section 9(4)(b) of the 1981 Act currently prohibits the intentional or reckless disturbance of an animal of the species listed in schedule 5 to the Act “while it is occupying a structure or place which it uses for shelter or protection”. Schedule 5 of the 1981 Act includes both species protected under the Bern Convention or Habitats Directive and species protected purely for domestic reasons. As just discussed, section 3(e) of the Protection of Badgers Act 1992 includes an equivalent prohibition in connection with badgers.

     
     

115. Under the new framework, therefore, it should also be an offence “deliberately” to disturb a badger whilst it is occupying a structure or place which it uses for shelter or protection.

     
     

     Recommendations

     
     

     Recommendation 83: we recommend that it should be an offence “deliberately” to disturb a wild animal of the species Meles meles (a badger) in circumstances where the animal in question is occupying a structure or place that it uses for shelter or protection.

     
     

     This recommendation is given effect in the draft Bill by clause 52.

     
     

     Recommendation 84: we recommend that it should be an offence to “deliberately” cause a dog to enter a badger sett.

     
     

     This recommendation is given effect in the draft Bill by clauses 62(7) and (8).

     
     

     Protection of Badgers Act 1992: other primary activity prohibitions

116. The Protection of Badgers Act 1992 includes a number of other primary activity prohibitions that are specific to the protection of badgers.

     
     

117. Section 2 of the 1992 Act, for instance, makes it an offence to “cruelly ill-treat a badger” and to “dig for a badger”. Section 5 of the 1992 Act, in addition, makes it an offence to mark, attach any ring, tag or other marking device to a badger other than one which is lawfully in a person’s possession by virtue of a licence.

     
     

118. As those prohibitions give effect to purely domestic policy preference, we have concluded in line with our general policy of retaining the existing species protection levels, that – subject to the general considerations below – they should be replicated under the new framework.

     
     

     Reverse burden of proof in offences against badgers

119. Section 1(2) of the Protection of Badgers Act 1992 imposes a reverse burden on the defendant once the prosecution has provided evidence “from which it could be reasonably concluded” that the defendant was attempting to kill, take or injure a badger.49

     
     

     49 Liability for attempting to commit an activity prohibited under the Wildlife Bill is discussed in Chapter 10 below.

120. Similarly, section 2(2) of the Protection of Badgers Act 1992 provides that if in any proceedings for an offence under section 2(1)(c) of the 1992 Act (digging for a badger) there is evidence from which it could reasonably be concluded that at the material time the accused was digging for a badger, he or she should be presumed to have been digging for a badger unless the contrary is shown.

     
     

121. In the consultation paper, we explained that the use of reverse burdens of proof, if unjustified, may be incompatible with article 6(2) of the European Convention on Human Rights, which guarantees the presumption of innocence in criminal proceedings.50 Relevant case law suggests, however, that a reverse burden of proof will be justified where it is proportionate and is reasonably necessary in all the circumstances.51

     
     

122. As a result, we asked consultees whether in their view there were good reasons for retaining the reverse burden of proof currently imposed on the defendant in proceedings for the offence of “digging for a badger” under section 2(1)(c) of the 1992 Act.52 The majority of consultees, including regulators, enforcement authorities and environmental NGOs argued in favour of retaining the reverse burden in connection with the offence of digging for a badger; organisations representing the interests of landowners, farmers, gamekeepers and the shooting industry opposed it, arguing that it hinders lawful fox control activities and results in unfair private prosecutions against people engaged in legitimate wildlife management.

     
     

123. On the basis of the evidence provided in consultation, we have concluded that, on balance, there are good grounds for retaining the current reverse burden in connection with the “digging for a badger” offence. Because of the particular nature of the prohibited conduct, we are persuaded that in the absence of a reverse burden it could be difficult to prosecute this offence successfully, because of the need to prove by way of prosecution evidence that the defendant’s purpose was to dig for a badger and not (for example) for a fox, given that foxes often use badger setts as places of rest and refuge.

     
     

124. We have not consulted on the reverse burden imposed under section 1(2) of the 1992 Act in connection with offences of attempting to kill, injure or capture a badger. On balance, however, we have come to the conclusion that section 1(2) of the Protection of Badgers Act 1992 is justifiable, on the basis that attempts to kill, take or injure badgers often take place during the night – when badgers come out of their setts – and in remote areas of the countryside. Those circumstances arguably make it extremely difficult for the prosecution to collect enough first hand evidence to satisfy a criminal standard of proof. Anyone stopped for attempting to kill or injure a badger could easily claim that they were legitimately hunting some other animal.

     
     

     50 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 7.51-7.57. See also Chapter 4 paras 4.26 to 4.28 above.

     51 See Sheldrake v DPP [2003] EWCA Crim 762 [2005] 1 AC 246. See also Salabiaku v France (1988) 13 EHRR 379 at [28]; Hoang v France (1993) 16 EHRR 53; X v UK (1972) 42 CD 135; A-G's Reference (No 1 of 2004), R v Edwards and others [2004] EWCA Crim 1025, [2004] 1 WLR 2111.

     52 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 7- 12.

     Cruelly ill-treating a badger

125. Before replicating this offence under the new framework, we considered whether it had been superseded by more recent animal welfare legislation. This is because we found it anomalous that only badgers, as opposed to other large mammals, should be expressly protected from “cruel ill-treatment”.

     
     

126. It is worth noting that whenever any vertebrate is within the control of a person, whether temporary or permanent,53 the protection regime under the Animal Welfare Act 2006 applies.54 The 2006 Act, among other things, makes it an offence to cause unnecessary suffering to a protected animal. It follows that the “cruel ill-treatment” offence under the Protection of Badgers Act 1992 overlaps with the 2006 Act in circumstances where a badger is under the control of a person.

     
     

127. A large number of specific activities that may fall within the definition of “cruel ill- treatment”, committed against mammals that fall outside the scope of the protection provisions of the 2006 Act, are prohibited under the Wild Mammals (Protection) Act 1996.55 Section 1 of the 1996 Act makes it an offence to mutilate, kick, beat, nail or otherwise impale, stab, burn, crush, drown, drag or asphyxiate any wild animal with intent to inflict unnecessary suffering, unless this is authorised under any enactment.56

     
     

128. As discussed below,57 the use of traps to capture or kill wild badgers that do not accord with the standards laid down in annex 1 to the Agreement on International Humane Trapping Standards needs to be prohibited as a matter of compliance with EU law.

     
     

129. Whilst in most cases the cruel ill-treatment of a badger would be prohibited by one of the animal welfare regimes mentioned above, we have concluded that the offence should be replicated under the new framework on the basis that we are not confident that repealing it would have no effect on the level of protection of wild badgers. In discussions with licensing authorities, it was pointed out that because the “cruel ill-treatment” offence cannot be licensed under the 1992 Act, it prevents the issuing of licences authorising the killing or capture of badgers during the periods of the year where the killing of badgers could cause their cubs to starve.

     
     

     53 Animal Welfare Act 2006, s 2.

     54 Animal Welfare Act 2006, s 4.

     55 Wild Mammals (Protection) Act 1996, s 3.

     56 Wild Mammals (Protection) Act 1996, s 2(c).

     57 See Chapter 7 paras 7.193 to 7.194.

130. As discussed in Chapter 1, recommending changes to species protection levels falls outside the Law Commission’s remit. On this basis we have taken the view that substantively reforming provisions aimed at the protection of the welfare of wild animals would almost invariably clash with the scope of our review. We think, nevertheless, that the fact that the cruel ill-treatment prohibition under the 1992 Act still has some application outside the general regime for the protection of the welfare of wild animals is anomalous and indicates the existence of gaps and inconsistencies in the protection of the welfare of wild animals. We suggest, therefore, that consideration should be given to reviewing this area of law with a view to ensuring that animal welfare legislation applies consistently across similar categories of animals.

     
     

     Recommendations

     
     

     Recommendation 85: we recommend that the offences of “cruelly ill- treating a badger”, “digging for a badger” and “marking, attaching any ring, tag or other marking device to a badger other than one which is lawfully in a persons’ possession by virtue of a licence” should be replicated under the new regulatory framework.

     
     

     This recommendation is given effect in the draft Bill by clauses 62(1) to (6).

     
     

     Recommendation 86: we recommend that the reverse burden of proof in the context of the offences of “digging for a badger” and “attempting to kill, injure or capture a badger” should be retained.

     
     

     This recommendation is given effect in the draft Bill by clauses 62(3) and (5).

     
     

     Recommendation 87: we recommend that consideration should be given to reviewing animal welfare legislation insofar as it applies to wild animals falling outside the scope of the Animal Welfare Act 2006 with a view to ensuring consistency across the protection regimes applying to similar categories of animals.

     
     

     PROHIBITED METHODS OF KILLING, INJURING OR CAPTURING WILD ANIMALS

131. As discussed in Chapter 4, methods of killing, injuring or capturing wild animals are generally protected for two, sometimes overlapping, reasons: conservation and animal welfare.

132. Most prohibited methods of killing, injuring or capturing wild animals in domestic legislation reflect the protection provisions of the Bern Convention and the Habitats Directive – the primary aim of which is to prohibit the use of methods of killing or capture that may have negative impacts on the conservation status of the protected species concerned. In the context of the protection of wild animals other than birds, other international and EU legal instruments – such as the Agreement on International Humane Trapping Standards between the European Union, Canada and the Russian Federation – also prescribe the regulation of certain methods of killing or capturing purely for animal welfare reasons.58 Lastly, besides giving effect to the UK’s international and EU obligations, domestic legislation also prohibits the use of certain prohibited methods in connection with the capture or killing of any wild animal and a number of specific methods in connection with the capture or killing of particular species, such as deer and badgers.

     
     

133. Currently, prohibited methods of killing, capturing or injuring wild animals are scattered around a large number of different Acts and Regulations. This makes it difficult for the public to figure out which methods are prohibited in relation to which species. The provisions aimed at protecting wild animals for domestic reasons, in addition, very often overlap with provisions aimed at transposing the UK’s international and EU obligations.59 One of the reasons for such complexities is that, both to satisfy specific domestic preferences and to accommodate developments in international and EU law, a number of self-standing legislative provisions have been developed independently and not integrated properly into existing regulatory structures.

     
     

134. In this section, therefore, our recommendations are aimed at bringing all prohibited methods of killing, taking or injuring wild animals within a coherent, flexible and accessible regime which reflects domestic preferences whilst giving effect to the UK’s international and EU obligations.

     
     

     Generally prohibited methods of killing, capturing or injuring wild animals

135. The use of a number of devices, substances or methods in connection with the killing or capture of wild animals – such as the use of explosives – is generally prohibited. In broad terms, our policy is that those generally applicable prohibitions should be retained.

     
     

136. To retain domestic preferences of general application and give effect to the UK’s international and domestic obligations through a transparent and consistent regulatory structure, therefore, we have decided to create two main prohibitions with two separate associated schedules: the first giving effect to the UK’s international and EU species-specific obligations together with any residual domestic protection preference; the second replicating the existing generally applicable prohibitions in domestic law in respect of any other wild animal.

     
     

     58 Agreement on International Humane trapping Standards, art 7 and annex 1.

     59 The protection provisions listed under section 11 of the Wildlife and Countryside Act 1981, for example, apply to a list of wild animals (schedule 6 of the Wildlife and Countryside Act 1981) which are protected from almost identical methods of killing or taking under the reg 43 of the Conservation of Habitats and Species Regulations 2010 (see schs 2 and 4 of the Conservation of Habitats and Species Regulations 2010).

137. In this section we discuss the content of the latter set of prohibitions, together with recommendations for simplifying and rationalising the existing legal framework. The subsequent section deals with EU and international law obligations.

     
     

     Current law

     
     

     THE WILDLIFE AND COUNTRYSIDE ACT 1981

138. Section 11 of the Wildlife and Countryside Act 1981 lists a number of methods of killing, capturing or injuring wild animals that are prohibited generally.

     
     

139. Section 11(1)(a) prohibits the setting in position any self-locking snare which is of such a nature and so placed as to be calculated to cause bodily injury to any wild animal coming into contact therewith.

     
     

140. Section 11(1)(b) prohibits the use of the following articles for the purpose of killing or taking any wild animal:

     
     

     1. any self-locking snare;

        
        

     2. any bow or cross-bow; or

        
        

     3. any explosive other than ammunition for a firearm.

        
        

141. Section 11(1)(c) further prohibits the use of any live mammal or bird as a decoy, for the purpose of killing or taking any wild animal.

     
     

142. Lastly, section 11(3) makes it an offence to

     
     

     1. use any snare which is of such a nature and so placed as to be calculated to cause bodily injury to any animal coming into contact therewith; and

        
        

     2. while the snare remains in position, fail – without reasonable excuse – to inspect it once every day.

        
        

        THE PROTECTION OF ANIMALS ACT 1911

143. Section 8(b) of the Protection of Animals Act 1911, which – after the coming into force of the Animal Welfare Act 2006 – is one of the very few remaining prohibitions under the 1911 Act, makes it an offence knowingly to put or place, or cause or procure any person to put or place, or knowingly be a party to the putting or placing, in or upon any land or building any poison, or any fluid or edible matter (not being sown seed or grain) which has been rendered poisonous.60

     
     

     60 It is worth noting that the use of a limited number of specific poisons is also prohibited under the Animals (Cruel Poisons) Regulations 1963 SI 1963 No 1278 issued under s 2 of the Animals (Cruel Poisons) Act 1962.

     THE PESTS ACT 1954

144. The Pests Act 1954 makes it an offence to use any spring trap other than a trap approved by regulations or in circumstances not approved by regulations issued by the Secretary of State or Welsh Ministers. The prohibition does not apply to the experimental use of a spring trap authorised under a licence issued by the Secretary of State or Welsh Ministers or to the use of traps specified by order as being adapted solely for the destruction of rats, mice and other small ground vermin.61

     
     

     Reform

145. As the protection of the welfare of captive animals is now regulated by the Animal Welfare Act 2006, it is apparent that despite the use of a number of different formulations, the residual function of the prohibitions under the Pests Act 1954 and the Protection of Animals Act 1911 is to regulate the use of spring traps or poison in connection with the killing, injuring or capturing of wild animals.

     
     

146. Subject to the comments below, therefore, we have concluded that all of the above prohibitions of general application should be consolidated into a single offence of using a listed device, substance of method for or in connection with the purpose of killing, injuring or capturing any wild animal other than protected wild animals.

     
     

     SNARES OTHER THAN SELF-LOCKING SNARES

147. We have noted that, as currently drafted, the existing prohibition does not appear to provide sufficient guidance as to what should be done, for instance, once the snare is inspected and an injured animal is found trapped in the snare. It is our view, therefore, that the operation and inspection of snares may benefit, in the future, from additional regulations prescribing how relevant snares should be operated and inspected.

     
     

148. We have concluded, therefore, that under the new framework it should be an offence to use a snare other than a self-locking snare in connection with the purpose of killing, capturing or injuring a wild animal (other than a protected animal) unless the snare

     
     

     1. is inspected at least once in every 24 hour period that it is in use;62 and

        
        

     2. complies with, and is operated in accordance with, such other requirement, if any, as may be prescribed by regulations.

        
        

        61 Pests Act 1954, s 8(1)(a).

        62 Whilst s 11(3)(b) requires that a person inspects a snare “every day”, we have concluded that using the expression “once in every 24 hour period that it is in use” would provide more legal certainty, on the basis that the expression “every day” would make it possible to leave a snare uninspected for up to 48 hours. Despite our lack of expertise in animal suffering, we find it difficult to believe that this could have been the intention of Parliament.

        SELF-LOCKING SNARES

149. The 1981 Act prohibits both the “use” of a self-locking snare for the purpose of killing or capturing a wild animal and the “setting in position” of a self-locking snare of such a nature and so placed as to be calculated to cause bodily injury to any wild animal. As a snare may only be “used” by “setting it in position”, we have concluded that the “setting in position” offence will be covered under the new framework by the general prohibition on the “use” of a prohibited article for or in connection with the purpose of killing, injuring or capturing a wild animal.63

     
     

     POISON

150. We have noted that placing poison in or upon any land or building is a strict liability offence. We have concluded, however, that harmonising this prohibition with the prohibition replicating the effect of section 11 of the Wildlife and Countryside Act 1981 would be unlikely to have any substantive impact on the scope of application of this offence. First, the Animal Welfare Act 2006 already makes it an offence to cause any poisonous or injurious drug or substance to be taken by any domesticated animal or any other animal that is not a wild animal.64 Secondly, the use of poison when there would be a serious risk that it would result in the death or injury of any protected wild animal or bird will be prohibited by a separate offence that may be extended, if necessary, to other animal or bird species.65 Lastly, a strict liability offence of placing poison in any building – in any event – would appear to cast the net too wide, on the basis that poisoned substances may be placed in buildings in circumstances where it would be unlikely that a wild animal would ever come into contact therewith.66

     
     

151. We have also concluded that the prohibition under the new framework should merely refer to the use of “poison”, on the basis that the expression “any fluid or edible matter (not being sown seed or grain) which has been rendered poisonous” is already covered by the word “poison”. The exclusion of “sown seed or grain” could, if necessary, be replicated by means of a general licence.67

     
     

     63 This conclusion is supported by the fact that in order to convict a person for the “use” of a prohibited article for the purpose of capturing or killing a protected species, the prosecution does not need to provide evidence that any wild animal was actually killed or captured by the relevant prohibited article (see Robinson v Whittle [1980] 1 WLR 1476, Donaldson LJ, 1481).

     64 Animal Welfare Act 2006, s 7.

     65 Wildlife Bill, cls 5 and 36.

     66 As discussed in Chapter 7, s 8(b) of the Protection of Animals Act 1911, provides a defence if the person can show that that the poison was placed for the purpose of destroying insects and other invertebrates, rats, mice, or other small ground vermin, where such is found to be necessary in the preservation of public health, agriculture, or the preservation of other animals, domestic or wild, or for the purpose of manuring the land, and that he took all reasonable precautions to prevent injury thereby to dogs, cats, fowls, or other domestic animals and wild birds. It is also a defence to do anything in accordance with a permit granted under Regulation 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market.

     67 The substantive defence to this general prohibition is discussed in Chapter 7 below.

     SPRING TRAPS

152. The use of any spring trap is generally prohibited unless the trap is of a description or is used in circumstances authorised in an order or licence issued by the Secretary of State or Welsh Ministers. As the only plausible use of spring traps is for the purpose of killing or capturing an animal, and the residual function of this prohibition would appear to be limited to the protection of wild animals, we have concluded that under the new framework this offence should be integrated into a general prohibition of the use of a prohibited item for or in connection with the purpose of killing, capturing or injuring a wild animal.

     
     

     EXPLOSIVES

153. For the same reasons as were discussed in Chapter 4,68 we have concluded that the prohibition on the use of “explosives other than ammunition for firearms” should be simply replicated as a prohibition on the use of “explosives”.

     
     

     Recommendations

     
     

     Recommendation 88: we recommend that existing methods and means prohibitions of general application, including the prohibition on the use of unregulated spring traps under the Pests Act 1954 and the prohibition on the use of poison under the Protection of Animals Act 1911, should be consolidated into a single offence of using a listed device, substance of method for or in connection with the purpose of killing, injuring or capturing any wild animal other than protected wild animals.

     
     

     Recommendation 89: we recommend that it should be an offence to use a snare, other than a self-locking snare, unless the snare

     
     

     1. is inspected at least once in every 24 hour period that it is in use; and

        
        

     2. complies with, and is operated in accordance with, such other requirement, if any, as may be prescribed by regulations.

     
     

     These recommendations are given effect in the draft Bill by clause 37.

     
     

     The Leghold Traps Regulation

154. Article 2 of Council Regulation (EEC) No 3254/91 (“the Leghold Traps Regulation”) states that the:

     
     

     Use of leghold traps in the Community shall be prohibited by 1 January 1995 at the latest.

     
     

155. “Leghold trap” is defined as “a device designed to restrain or capture an animal by means of jaws which close tightly upon one or more of the animal's limbs, thereby preventing withdrawal of the limb or limbs from the trap”.69

     
     

     68 Chapter 4, paras 4.143 to 4.144.

     69 Council Regulation on Leghold Traps (EEC) No 3254/91, Official Journal L 308/1 of 9.11.1991, p 1, art 1.

156. While the prohibition in article 2 of the Leghold Traps Regulation is partially given effect in domestic law through the general ban on the use of unregulated spring traps and the prohibitions giving effect to the UK’s obligations under the Habitats and Wild Birds Directives, there is currently no criminal offence in domestic law that fully implements the general prohibition on the use of leghold traps under article 2 of the Regulation.

     
     

157. As the preamble to the Regulation makes clear that its object and purpose is the protection of wild fauna species, we have concluded that – in line with the wording of the prohibitions of general application discussed above – under the new framework it should be an offence to use a leghold trap for or in connection with the purpose of killing, injuring or capturing any wild bird or wild animal.

     
     

     Recommendations

     
     

     Recommendation 90: we recommend that it should be an offence to use leghold traps for the purpose of killing, injuring or capturing any wild animal (including wild birds).

     
     

     This recommendation is given effect in the draft Bill by clause 108.

     
     

     Regulated devices, substances and activities: European protected species

     
     

     International and EU obligations

158. We now turn to the prohibitions required in order to give effect to EU and international obligations.

     
     

     BERN CONVENTION

159. As discussed in Chapter 4, article 8 of the Bern Convention requires member states to prohibit, in respect of the capture or killing of wild fauna species listed in appendixes 2 and 3, the use of all indiscriminate means of capture and killing and the use of all means capable of causing the local disappearance of, or serious disturbance to populations of a protected species, and in particular, the means specified in appendix 4.

     
     

160. The prohibited means of capturing or killing wild mammals specified in appendix 4 include snares, live animals used as decoys which are blind or mutilated, tape recorders, electrical devices capable of killing or stunning, artificial light sources, devices for illuminating targets, mirrors and other dazzling devices, sighting devices for night shooting, explosives, nets or traps,70 poison and poisoned or anaesthetic bait, gassing or smoking out, semi-automatic or automatic weapons, aircraft and motor vehicles in motion. Prohibited means of killing or capturing freshwater fish include, in particular, explosives, firearms, poisons, anaesthetics, electricity with alternating current and artificial light sources. Lastly, prohibited means of killing or capturing crayfish include explosives and poisons.

     
     

     70 If applied for large scale or non-selective capture or killing.

     THE HABITATS DIRECTIVE

161. Article 15 of the Habitats Directive purports to give effect to article 8 of the Bern Convention by prohibiting, in respect of the capture or killing of species of wild fauna listed in annexes 4 and 5 to the Directive, the use of all indiscriminate means capable of causing the local disappearance of, or serious disturbance to, populations of such species, and in particular, the means specified in annex 6.

     
     

162. The list of prohibited methods under annex 6(a) to the Habitats Directive, insofar as it applies to protected mammals, is, subject to a limited number of exceptions,71 consistent with the list of prohibited methods under appendix 4 to the Bern Convention.

     
     

     AGREEMENT ON INTERNATIONAL HUMANE TRAPPING STANDARDS BETWEEN THE EUROPEAN COMMUNITY, CANADA AND THE RUSSIAN FEDERATION

163. In 1997 the European Union concluded an agreement with Canada and the Russian Federation. The Agreement was inspired by the desire to agree on international humane trapping standards as well as to avoid trade disputes with the main international fur exporters. The aim of the established humane trapping standards is to ensure a sufficient level of welfare for trapped animals.72

     
     

164. As discussed in Chapter 3,73 agreements concluded by the Union are, as a general rule, binding upon the institutions of the Union and its member states.74

     
     

165. The core obligations of the Agreement are set out in article 7, which requires contracting parties to ensure that their respective competent authorities

     
     

     1. establish appropriate processes for certifying traps in accordance with the agreed trapping Standards set out in annex 1 to the Agreement;

        
        

     2. ensure that the trapping methods conducted in their respective territories are in accordance with the Standards;

        
        

     3. prohibit the use of traps that are not certified in accordance with the Standards; and

        
        

     4. require manufacturers to identify certified traps and provide instructions for their appropriate setting, safe operation and maintenance.

        
        

        71 Under annex 6(a) protected animals are also protected from the use of crossbows. A more limited number of prohibited methods, on the other hand, are prohibited in connection with the capture or killing of fish.

        72 The European Community ratified the Agreement in 1998, followed by the Government of Canada in 1999 and the Russian Federation in 2008, which enabled the Agreement to enter into force in July 2008 and the schedule for the implementation of the provisions to start from that date.

        73 Chapter 3, paras 3.18.

        74 Treaty on the Functioning of the European Union, art 216.

166. The use of uncertified traps is prohibited for the capture, killing or injuring of animals listed in part 2 of annex 1 to the Agreement.75 Part 2 of annex 1 to the Agreement includes a number of animals that are normally present in the wild state in England and Wales, including the badger (Meles meles), the European otter (Lutra lutra), the Pine marten (Martes martes) and the stoat (Mustela erminea).76

     
     

     Domestic legislation

     
     

     THE CONSERVATION OF HABITATS AND SPECIES REGULATIONS 2010

167. The Conservation of Habitats and Species Regulations 2010 copy out the list of prohibited methods and means in annex 6 to the Habitats Directive. In line with the Court of Justice’s ruling in Commission v United Kingdom,77 the 2010 Regulations also make it an offence to use, for the purpose of killing or capturing any wild animal

     
     

     Any other means of capturing or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any species of animal listed in schedule 4 or any European protected species of animal.78

     
     

     WILDLIFE AND COUNTRYSIDE ACT 1981

168. The Wildlife and Countryside Act 1981, broadly speaking, purports to give effect to article 8 of, and appendix 4 to the Bern Convention by specifically prohibiting the use of the following methods for the purpose of killing, capturing or injuring wild animals of a species listed in schedule 6 to the 1981 Act:

     
     

     1. any trap or snare;

        
        

     2. any electrical device for killing or stunning;

        
        

     3. any poisonous, poisoned or stupefying substance;

        
        

     4. any automatic or semi-automatic weapon;

        
        

     5. any device for illuminating a target or sighting device for night shooting;

        
        

     6. any form of artificial light or any mirror or other dazzling device;

        
        

     7. any gas or smoke not falling within paragraphs (a) and (b);

        
        

     8. the use of sound recordings as a decoy;

        
        

        75 Agreement on International Humane Trapping Standards, Official Journal L42 of 14/02/1998 p. 43, art 3.

        76 All animals protected by the Agreement on International Trapping Standards that are normally present in Great Britain are also listed in appendix 3 to the Bern Convention and protected by the methods and means prohibitions in article 8 and appendix 4.

        77 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, [94-98].

        78 SI 2010 No 490, reg 43.

     9. any mechanically propelled vehicle in the immediate pursuit of any such wild animal for the purpose of driving, killing or taking that animal.79

        
        

169. As discussed above, the use of a number of other prohibited methods, such as explosives, is generally prohibited by section 11(1) of the 1981 Act. There is, however, no general prohibition on the use of any other means of capturing or killing which is indiscriminate or capable of causing the local disappearance of, or serious disturbance to, a population of a protected species.

     
     

170. It is worth noting, in addition, that schedule 6 to the 1981 Act would not appear to include all species listed in appendixes 2 and 3 to the Bern Convention that have a natural range including England and Wales.

     
     

     Discussion

     
     

     SCOPE OF THE PROHIBITION UNDER THE NEW FRAMEWORK

171. Currently a large number of animal species protected by the methods and means prohibitions listed in regulation 43 of the Conservation of Habitats and Species Regulations 2010 are protected by a virtually identical list of methods and means prohibitions under section 11 of the Wildlife and Countryside Act 1981.80

     
     

172. As both prohibitions purport to give effect to equivalent obligations under the Habitats Directive and the Bern Convention, we have concluded that under the new framework there should only be one set of provisions on prohibited methods of killing and capture in relation to wild animals of the following species

     
     

     1. Species listed in appendixes 2 and 3 to the Bern Convention with a natural range including Great Britain; and

        
        

     2. Species listed in annex 4(a) and 5 to the Habitats Directive with a natural range including Great Britain.

        
        

173. Giving effect to the United Kingdom’s reservations against the Bern Convention in connection with seals, hares, stoats, weasels and deer involves adding extra detail into the legislation as regards the last three of those species.81 The effect of the reservations on the new regulatory framework is discussed in a separate section below.

     
     

     79 Wildlife and Countryside Act 1981, s 11(2).

     80 Those include horseshoe bats (all species) (Rhinolophidae); typical bats (all species) (Vespertilionidae); wild cat (Felis silvestris); bottle-nosed dolphin (Tursiops truncates); common dolphin (Delphinis delphis); dormouse (Muscardinus avellanarius); pine marten (Martes martes); common otter (Lutra lutra); polecat (Mustela putorius); and the harbour porpoise (Phocaena phocaena).

     81 The reservations in connection with methods and means for the killing or capture of seals are now irrelevant, since all seal species with a natural range including Great Britain are protected from the prohibited methods and means under annex 6 to the Habitats Directive. As further explained below, the reservations in connection with methods and means for the killing or capture of hares are also irrelevant, on the basis that the Mountain hare (the only species of hare with a natural range including Great Britain) is protected by the methods and means prohibitions listed in annex 6 to the Habitats Directive,

     MENTAL ELEMENT

174. In line with the discussion in Chapter 4, we have concluded that the required mental element should be the “deliberate” use of prohibited methods in relation to the killing or capture of wild animals protected under the Bern Convention and the Habitats Directive.

     
     

     ARTICLE 8 OF THE BERN CONVENTION AND ARTICLE 15 OF THE HABITATS DIRECTIVE

175. Following the Court of Justice’s ruling in Commission v United Kingdom,82 it is now clear that to give full effect to article 15 of the Habitats Directive and article 8 of the Bern Convention member states should enact an express prohibition on the use of any indiscriminate means capable of causing the local disappearance of, or serious disturbance to, a population of an animal species protected from the list of prohibitions under appendix 4 to the Bern Convention and annex 6 to the Habitats Directive.

     
     

176. We have noted that article 8 of the Bern Convention requires contracting parties generally to prohibit any method which is either indiscriminate or capable of causing the local disappearance of, or serious disturbance to protected animals. Article 15 of the Habitats Directive, on the other hand, appears to require member states only to prohibit methods that are both indiscriminate and capable of causing the local disappearance or local disturbance to the population of a protected species. As the primary aim of the Habitats Directive is to give effect to the Bern Convention obligations across the European Union, we have concluded that the approach of the Bern Convention should be preferred.

     
     

     EXPRESSLY PROHIBITED METHODS AND MEANS

177. As discussed in Chapter 4, the Wildlife and Countryside Act 1981 prohibits a number of methods that are not expressly prohibited under the Bern Convention or the Habitats Directive. We have concluded, however, that because the lists of prohibited methods under the Bern Convention and the Habitats Directive is non- exhaustive, any method prohibited under domestic law – including generally prohibited methods – that is not expressly listed in appendix 4 to the Bern Convention or annex 6 to the Habitats Directive should not be treated as goldplating the UK’s international or EU obligations.

     
     

178. In general terms, therefore, the list of prohibited methods under the new framework should include all methods prohibited under the Bern Convention, the Habitats Directive and the Wildlife and Countryside Act 1981. For this reason, partial overlaps between methods prohibited under international and EU law, or between external obligations and domestic law, have been generally resolved in favour of the broader prohibition. A number of relevant examples are discussed below.

     
     

     82 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017, [94-98].

     Poison and explosives

179. As discussed in Chapter 4, we have concluded that the expression “explosives other than ammunitions for firearms” should be simply replicated as a general prohibition on the use of “explosives” and the prohibition on the use of “poisons and poisoned or anaesthetic bait” should be simply replicated as a general prohibition on the use of “poison” or “anaesthetic or stupefying substances”.

     
     

     Nets and traps

180. The Bern Convention only prohibits the use of traps and nets “if applied for large scale or non-selective capture or killing”. The Habitats Directive, similarly, only prohibits the use of nets and traps “which are non-selective according to their principle or conditions of use”. The prohibitions under the Wildlife and Countryside Act 1981 are broader, on the basis that they generally prohibit the use of nets and traps, whether or not they are non-selective.83 In this context we have concluded that the current domestic transposition under the 1981 Act should be preferred for two reasons.

     
     

181. First, we have taken the view that prohibiting the use of nets or traps “if applied for large scale or non-selective capture or killing” could create significant legal uncertainty for regulatory addressees. Prohibiting the use of all traps and nets and (where appropriate) authorising the use of selective traps through the licensing regime is, in our view, the most effective way of giving effect to the UK’s obligations under international and EU law.

     
     

182. Secondly, as further discussed in Chapter 7, prohibiting the use of all nets and traps will also ensure that the same regulatory structure may be used to give effect to the UK’s obligation to comply with the Agreement on International Humane Trapping Standards. This would be achieved by authorising the trapping of animals protected by the Agreement only when the licensing authority is satisfied that traps in question comply with the standards prescribed under part 1 of annex 1 to the Agreement.

     
     

     THE USE OF VEHICLES IN THE COURSE OF HUNTING PROTECTED ANIMALS

183. In line with the discussion in Chapter 4, we have concluded that to give effect to the Bern Convention and the Habitats Directive, under the new framework it should be an offence to use a motor vehicle, boat or aircraft in the course of hunting relevant wild animals protected under the Bern Convention and the Habitats Directive. The detail of the permitted exceptions can be dealt with by way of licensing.

     
     

     Recommendations

     
     

     Recommendation 91: we recommend that the methods and means prohibitions giving effect to article 8 of the Bern Convention, article 15 of the Habitats Directive and section 5 of the Wildlife and Countryside Act 1981 should apply to the following species:

     
     

     83 Wildlife and Countryside Act 1981, ss 11(2)(a) and (b).

     1. Species listed in appendixes 2 and 3 to the Bern Convention with a natural range including Great Britain (other than those subject to the UK’s reservations); and

        
        

     2. Species listed in annex 4(a) and 5 to the Habitats Directive with a natural range including Great Britain.

     
     

     Recommendation 92: we recommend that a person should be guilty of a methods and means offence if he or she “deliberately” uses the item or substance, or carries out the activity.

     
     

     Recommendation 93: we recommend that the use of a device or substance which is indiscriminate or capable of having a significant effect on the abundance of, or causing serious disturbance to, the population of a protected animal species in the area in which it is used should constitute a stand-alone offence.

     
     

     Recommendation 94: we recommend that the list of prohibited methods under the new framework should reflect and consolidate the lists in annex 6 of the Habitats Directive, appendix 4 to the Bern Convention and section 11(2) of the Wildlife and Countryside Act 1981 by giving precedence, as a general rule, to the most stringent formulation of the prohibition.

     
     

     Recommendation 95: we recommend that the use of all traps and nets in connection with the killing, injuring or capture of animals of a protected species should be generally prohibited.

     
     

     These recommendations are given effect in the draft Bill by clauses 36 and 46 and schedule 15.

     
     

     The UK’s reservations to the Bern Convention

184. This section focuses on the extent of the changes and additional detail needed in order for the regulatory regime to give full effect to the UK’s reservations to the Bern Convention, with a view to enabling the Government to evaluate more closely the pros and cons of maintaining the reservations.

     
     

     Hares and seals

185. The UK entered reservations to annex 4 to the Bern Convention in connection with a number of prohibited methods of killing or capturing “seals” and “hares”. For the reasons explained below, we have concluded that such reservations no longer have any effect on the required list of prohibited methods in connection with those species.

186. All species of seal are now protected by the methods and means prohibitions in article 15 and annex 6 to the Habitats Directive.84 We have concluded, therefore, that the reservations to the Bern Convention in connection with seals no longer have any practical effect, on the basis that they do not affect the UK’s obligation to apply the same list of prohibitions under the Habitats Directive.85

     
     

187. The Bern Convention protects two species of hare from the use of prohibited methods of killing or capturing: the Lepus timidus (Mountain hare) and the Lepus capensis (Europaeus) (European brown hare).86

     
     

188. The Mountain hare is now protected by the methods and means prohibitions in article 15 and annex 6 to the Habitats Directive.87 It follows that the reservations to the Bern Convention in connection with “hares” should be disregarded insofar as they apply to the Mountain hare, on the basis that they do not affect the UK’s obligation to apply with the same list of prohibitions under the Habitats Directive.88

     
     

189. As far as we are aware, the natural range of the European brown hare does not include Great Britain.89 Their presence in Great Britain, in fact, appears to be the result of their artificial introduction by the Romans about 2000 years ago.90 As discussed at the beginning of this Chapter, we have taken the view that the prohibitions – other than secondary activity prohibitions – under the Bern Convention should only be transposed in domestic law insofar as they relate to wild animals or plants that have a natural range including Great Britain. As a result, we have concluded that insofar as the reservations to the Bern Convention apply to the European brown hare, they would not appear to have any substantive effect on the UK’s obligations under the Bern Convention.

     
     

     84 Directive 92/43/EEC, annexes 4(a) and 5.

     85 See SI 2010 No 490, sch 4.

     86 It would seem that a more common scientific name for the European brown hare is Lepus europaeus. The reason for the use of different scientific names, it would appear, is that there is ongoing scientific uncertainty as to whether the European hare is a separate species from the North African hare (Lepus capensis) (see http://www.iucnredlist.org/details/41280/0 (last visited 26 October 2015)).

     87 Directive 92/43/EEC, annex 5.

     88 See SI 2010 No 490, sch 4.

     89 http://www.iucnredlist.org/details/41280/0 (last visited 26 October 2015).

     90 Hutchings and Harris, The Current Status of the Brown Hare (Lepus europaeus) in Britain 1996, chapter 1, http://jncc.defra.gov.uk/pdf/pub96_brownhare_ch1.pdf (last visited 26 October 2015)

     Stoats

190. The UK reservations under the Bern Convention include “stoats”.

     
     

191. “Stoats” are listed in appendix 3 to the Bern Convention under the scientific name Mustela erminea and protected, in principle, from the methods and means prohibitions under article 8 and appendix 4 to the Convention. Stoats are also a protected animal under the Agreement on International Humane Trapping Standards.91

     
     

192. In domestic law, stoats are not currently individually protected by specific wildlife protection provisions. As any wild animal, however, they are protected from the methods and means prohibitions of general application under section 11(1) of the Wildlife and Countryside Act 1981, section 8 of the Pests Act 1954 and section 8(b) of the Protection of Animals Act 1911.

     
     

     RESIDUAL OBLIGATIONS UNDER THE BERN CONVENTION

193. The UK’s reservations in relation to stoats cover all prohibited methods of killing or capture listed in appendix 4 to the Convention except for the use of self-locking snares, live animals used as decoys which are blind or mutilated, explosives and poison, poisoned and anaesthetic bait. The prohibition on the use of those prohibited methods, as a result, remains within the scope of the UK’s obligations under the Bern Convention.

     
     

194. It is also worth noting that the UK’s reservations under the Bern Convention only apply in connection with the methods of killing or capture that are specifically listed under appendix 4 to the Bern Convention. They do not apply to the general obligation under article 8 to prohibit the use of all other “indiscriminate means of capture and killing and the use of all means capable of causing local disappearance of, or serious disturbance to, populations of a species” listed in appendix 2 or 3 to the Convention.

     
     

     OBLIGATIONS UNDER THE AGREEMENT ON INTERNATIONAL HUMANE TRAPPING STANDARDS

195. In the section above we have taken the view that because all animals listed in part 2 of annex 1 to the Agreement on International Humane Trapping Standards that are normally present in Great Britain are also animals protected under the Bern Convention, the easiest mechanism to ensure compliance with the Agreement would be to simply give effect to the general prohibition on the use of traps under the Bern Convention. The introduction of an additional licensing condition would ensure that the trapping of those animals may not be authorised unless the licensing authority is satisfied that the prohibited traps or trapping methods accord with the Standards set out in annex 1 to the Agreement.92

     
     

     91 Agreement on International Humane Trapping Standards, annex 1, part 2.

     92 Pt 2 of annex 1 to the Agreement on International Humane Trapping Standards includes stoats.

     PROTECTION OF STOATS UNDER THE NEW FRAMEWORK

196. We have concluded that for the purpose of complying with the residual obligations under the Bern Convention whilst giving effect to general domestic protection preferences, under the new framework stoats should be expressly listed together with all other species protected from methods and means prohibitions as a matter of international and EU law. The list of methods and means prohibited in connection with the killing or capture of stoats, however, should be limited to:

     
     

     1. Anaesthetic or stupefying substances.

        
        

     2. Bows and crossbows;

        
        

     3. Explosives;

        
        

     4. Poison;

        
        

     5. Snares

        
        

     6. Traps;

        
        

     7. Live animals which are blind or mutilated, or any mammal or bird, used as decoy.

        
        

197. In addition, stoats should also be protected from the use of any other item that is indiscriminate or capable of causing local disappearance of, or serious disturbance to, the population of a protected species.

     
     

198. For the purpose of ensuring compliance with the Agreement on International Humane Trapping Standards, we have concluded that stoats should be generally protected from the use of any trap or snare, on the basis that “snares” (whether self-locking or not) are trapping methods that may fall within the scope of the Agreement on International Humane Trapping Standards.

     
     

199. Because the use of traps and snares (other than self-locking snares or other regulated snares that are regularly inspected every 24 hours) against stoats will only be prohibited for the purpose of giving effect to the Agreement on International Humane Trapping Standards, we have concluded that under the new framework the relevant licensing authority should be able to license the use of the above traps or snares whenever it is satisfied that granting a licence would not be contrary to the UK’s obligations to comply with the Agreement.

     Weasels

200. The UK’s reservations under the Bern Convention also include “weasels”.

     
     

201. In British English, a reference to “weasels” is generally understood as a reference to animals that belong to the species Mustela nivalis (the least weasel), the smallest species of the genus Mustela.93 The word “weasel”, however, is sometimes used to refer to any species of the genus Mustela, which includes the polecat and the stoat.

     
     

202. By looking at appendixes 2 and 3 to the Bern Convention and annexes 4 and 5 to the Habitats Directive, we have concluded that the reference to “weasels” in the UK’s reservations to the Bern Convention should be taken as a reference to the species Mustela nivalis. This is because the other protected species that belong to the genus Mustela, except for stoats, are either protected under the Habitats Directive or have a natural range that does not include Great Britain.

     
     

203. The UK’s reservations in connection with weasels are coextensive with the reservations in connection with stoats. In terms of international and EU obligations, therefore, the only difference between the least weasel and stoats is that the former is not protected under the Agreement on International Humane Trapping Standards. We have concluded, therefore, that under the new framework the least weasel should be expressly listed together with all other species protected from methods and means prohibitions as a matter of international and EU law. The list of methods and means prohibited in connection with the killing or capture of the least weasel, however, should be limited to:

     
     

     1. Anaesthetic or stupefying substances;

        
        

     2. Bows and crossbows;

        
        

     3. Explosives;

        
        

     4. Poison;

        
        

     5. Self-locking snares and snares that are not inspected daily or used in accordance with regulations;

        
        

     6. Spring traps;

        
        

     7. Live animals which are blind or mutilated, or any mammal or bird, used as decoy.

        
        

204. In addition, the least weasel should also be protected from the use of any other item that is indiscriminate or capable of causing local disappearance of, or serious disturbance to, the population of a protected species.

     
     

     93 Oxford English Dictionary.

     Deer

205. The Bern Convention prohibits the use of the methods and means listed in appendix 4 in connection with the killing or capture of any species of deer. The UK entered reservations in connection both with species of deer that have a natural range that include Great Britain and with certain non-native species of deer, such as the Sika deer. This is because the domestic protection regime under the Deer Act 1963 (subsequently consolidated under the Deer Act 1991) extends to both native and non-native deer.

     
     

206. The way the reservations in connection with deer have been drafted is rather obscure. In essence, however, it would appear that their primary aim was to preserve the existing domestic protection of deer under the Deer Act 1963. The effect of the reservations was to exempt the UK from the obligation to prohibit the use of the following items (in connection with the capture of killing of deer protected under the Deer Act 1963) during the open season for the deer in question:

     
     

     1. Tape recorders;

        
        

     2. Electrical devices capable of killing and stunning;

        
        

     3. Mirrors and other dazzling devices;

        
        

     4. Semi-automatic weapons with a magazine capable of holding more than two rounds of ammunition;

        
        

     5. Devices for illuminating targets.

        
        

207. This approach is problematic for a number of reasons.

     
     

208. First, the Deer Act 1991 – which has now superseded the 1963 Act – also imposes a close season on the Chinese water deer and hybrids between the red and sika deer. While Chinese water deer clearly do not have a natural range including Great Britain, whether a hybrid between a native and a non-native species should be considered as a species with a natural range including Great Britain is a more difficult question.

     
     

209. Secondly, the dates of the close season for certain species of deer have changed. It follows that there is now a gap between the dates certain close seasons start and the dates when the reservations cease to have effect.

210. Thirdly, the reservations only appear to apply during the open season. It follows that current domestic legislation, arguably, is not in line with the UK’s obligations under the Convention on the basis that it fails to prohibit the use of those methods during the close season. Even though the capture or killing of deer during the close season is generally prohibited, it may currently be authorised by a licensing regime and a number of specific defences. In that context, for the purpose of ensuring compliance with article 8 and appendix 4 to the Bern Convention, the use of those prohibited methods should be banned unless the licensing authority is satisfied that the use of those prohibited methods may be authorised in accordance with the derogation regime under article 9 of the Convention.94

     
     

     PROTECTION OF DEER UNDER THE NEW FRAMEWORK

211. In the light of the above discussion, we have concluded that the only way to give effect to the UK’s reservations to the Bern Convention whilst ensuring compliance with the residual obligations under the Convention and retaining domestic protection preferences, is to introduce a different set of obligations during the close seasons and open seasons as defined in the text of the UK’s reservations.

     
     

212. During the close season, the relevant species of deer should be protected from all methods and means prohibitions that apply in connection to any other wild mammal protected under the Bern Convention or the Habitats Directive.

     
     

213. As highlighted above, we have noted that the close seasons defined in the text of the reservations are inconsistent with the close seasons under the Deer Act 1991. In practice, this means that for the doe and hinds of certain species of deer, the full list of prohibitions required by article 8 of, and appendix 4 to, the Bern Convention will continue to apply during the first month of the open season. Whilst we are conscious that this approach, in policy terms, makes very little sense, we have concluded that it is the only way of correctly giving effect to the UK’s obligations under the Bern Convention whilst fully giving effect to the UK’s reservations.95

     
     

214. Outside the close season, the same prohibitions should apply except for the following:

     
     

     1. Using a sound recording as a decoy;

        
        

     2. Electrical devices that are capable of killing or stunning an animal;

        
        

        94 The reservations do mention exceptions and defences in the following sentence: “for any person entering land without the consent of the owner/occupier/lawful authority (unless subject to limited exception under ss 10, 10A and 11 of the Deer Act 1963 as amended by sch 7 of the Wildlife and Countryside Act 1981)”. A plain reading of the above sentence, however, would appear to suggest that it was merely intended to enter a reservation for trespassers, except when they are authorised to carry out an activity by the limited exceptions in ss 10, 10A and 11 of the Deer Act 1963. Supposedly, the reason is that the capture or killing of deer (whether during the open season or the close season) by a trespasser is, in any event, prohibited by poaching legislation at all times.

        95 Whilst no reservations were entered in connection with Chinese water deer or hybrids of red and sika deer, we suggest that the same regulatory approach should apply to those species.

     3. Mirrors or other dazzling devices;

        
        

     4. Semi-automatic weapons;

        
        

     5. Devices for illuminating targets.

        
        

        Recommendations

        
        

        Recommendation 96: we recommend that the protection of stoats, weasels and deer from the use of methods of killing or capture prohibited under the Bern Convention should be restricted in accordance with the wording of the UK’s reservations to the Bern Convention.

        
        

        Recommendation 97: we recommend that wild animals of the species Mustela erminea (stoats) should, for the purpose of ensuring compliance with the International Agreement on Humane Trapping Standards, be additionally protected from the use of any trap or snare.

        
        

        These recommendations are given effect in the draft Bill by clauses 38, 39, 40 and 41 and schedules 17, 18, 19, 20 and 67(10).

        
        

        Other prohibited methods under domestic legislation

215. As discussed at the beginning of this Chapter, a number of existing methods and means prohibitions under the Protection of Badgers Act 1992,96 the Deer Act 1991,97 the Conservation of Seals Act 1970,98 the Pests Act 1954,99 the Protection of Animals Act 1911,100 the Ground Game Act 1880101 and the Game Act 1831102 only protect individual species. This is sometimes the case where particular prohibited items, such as badger tongs, are unique to a species. In other cases different prohibitions, such as the prohibitions of firearms below a certain power, reflect the different physiology of the species in question or attempt to tackle specific human activities that affect particular species.

     
     

216. A number of specific methods and means prohibitions under the above Acts have been superseded by subsequent prohibitions of general application and should, therefore, be repealed. We consider these in turn below.

     
     

     Seals

217. Section 1(1)(a) of the Conservation of Seals Act 1970 prohibits the use, for the purpose of killing or taking any seal, of any poisonous substance.

     
     

     96 Protection of Badgers Act 1992, ss 2(1)(b) and (d).

     97 Deer Act 1991, s 4(2) and sch 2.

     98 Conservation of Seals Act 1970, ss 1(1)(a) and (b).

     99 Pests Act 1954, ss 9(1) and 12.

     100 Protection of Animals Act 1911, s 10.

     101 Ground Game Act 1880, s 6.

     102 Game Act 1831, s 3.

218. As discussed above, under the new framework all species of seal that have a natural range including Great Britain will have to be protected by the prohibition on the use of any poison – as well as any anaesthetic or stupefying substance – to give effect to the UK’s obligations under the Bern Convention and the Habitats Directive. Similarly, species of seal that do not have a natural range including Great Britain will have to be generally protected by the prohibition on the use of poison for the purpose of killing or capturing any wild animal other than a protected animal. On those grounds, we have concluded that it is unnecessary to replicate this specific prohibition under the new framework.

     
     

     Hares

219. Section 3 of the Game Act 1831 prohibits the use of “any dog, gun, net or other engine or instrument” for the purpose of taking any game on a Sunday or Christmas Day. Because, as discussed in Chapter 10, under the new framework it will be generally prohibited to attempt to kill, injure or capture a protected animal, it is unclear what the prohibition on the use of dogs, guns, nets or other engines or instruments would add to the general prohibition of killing, injuring or capturing hares on a Sunday or a Christmas Day. We have concluded, therefore, that this prohibition need not be replicated under the new framework.

     
     

220. Section 3 of the Game Act 1831 also prohibits the use of poison for the purpose of killing hares.103 As discussed above, we have taken the view that this prohibition will be generally superseded under the new framework by the general prohibition on the use of poison for the purpose of killing any wild animal which replicates the effect of section 8(b) of the Protection of Animals Act 1911. As the mountain hare is listed in annex 5 to the Habitats Directive, similarly, it will be protected by the prohibition on the use of any poison – as well as any anaesthetic or stupefying substance – in connection with the killing, injuring or capturing of protected animals. We have concluded, therefore, that this prohibition need not be replicated under the new framework.

     
     

     Hares and rabbits

221. Section 10 of the Protection of Animals Act 1911 prohibits the use of spring traps for the purpose of capturing hares or rabbits if the spring trap is not inspected at least once every day between sunrise and sunset. The use of any spring trap other than in circumstances approved by the Secretary of State or Welsh Ministers, nevertheless, was subsequently generally prohibited by section 8(1)(a) of the Pests Act 1954. It follows that section 10 of the 1911 Act has, in practice, been superseded by the general prohibition under section 8 of the 1954 Act. In line with section 8, therefore, under the new framework the use of spring traps will be generally prohibited unless authorised by a licence issued by the Secretary of State or Welsh Ministers. On this basis the prohibition in the 1911 Act need not be replicated under the new framework.

     
     

     103 Game Act 1831, s 2.

222. Section 9 of the Pests Act 1954 prohibits the use of spring traps other than in a rabbit hole for the purpose of killing or taking hares or rabbits. We have concluded that this is largely redundant.104 As nothing in section 9 of the 1954 Act renders unlawful the “use of spring traps in such circumstances and subject to such conditions as may be prescribed by regulations” made by the relevant minister, the only function of the prohibition in section 9(1) is to prohibit unauthorised use of spring traps, other than in a rabbit hole, for the purpose of killing or capturing hares and rabbits. We have concluded that under the new framework this provision could be simply given effect by a licence prescribing how hares and rabbits may be lawfully trapped.

     
     

223. Lastly, it has come to our attention that section 6 of the Ground Game Act 1880 continues to prohibit the use of poison for the purpose of killing rabbits or hares in Greater London (other than the outer London boroughs).105 We have concluded that this provision is redundant and should not be retained under the new framework.

     
     

     Recommendations

     
     

     Recommendation 98: subject to recommendations 100 to 103, we recommend that the residual methods and means prohibitions under Protection of Badgers Act 1992, the Deer Act 1991, the Conservation of Seals Act 1970, the Pests Act 1954, the Protection of Animals Act 1911 and the Ground Game Act 1880 should be replicated under the new framework.

     
     

     This recommendation is given effect in the draft Bill by clause 43 and schedule 21.

     
     

     Recommendation 99: we recommend that the prohibition on using poison for the purpose of killing seals under section 1(1)(a) of the Conservation of Seals Act 1970 should not be replicated under the new framework.

     
     

     Recommendation 100: we recommend that the list of prohibited methods of killing or capturing hares under section 3 of the Game Act 1831 should not be replicated under the new framework.

     
     

     Recommendation 101: we recommend that the specific prohibition on the use of spring traps in connection with the purpose of killing hares and rabbits under section 10 of the Protection of Animals Act 1911 and section 9 of the Pests Act 1954 should not be replicated under the new framework.

     
     

     Recommendation 102: we recommend that the prohibition on using poison for the purpose of killing rabbits or hares in Greater London (other than the outer London boroughs) should not be replicated under the new framework.

     
     

     104 Pests Act 1954, s 9(1).

     105 Ground Game Act 1880, s 6, as amended by the Prevention of Damage by Rabbits Act 1939.

     Weights and measurements

224. Certain provisions in current domestic legislation express quantities in units of measurement which are not in conformity with the International System of Units.

     
     

225. The Protection of Badgers Act 1992, for example, makes it an offence to shoot a badger with

     
     

     any firearm other than a smooth bore weapon of not less than 20 bore or a rifle using ammunition having a muzzle energy not less than 160 footpounds and a bullet weighing not less than 38 grains.106

     
     

226. The Wildlife and Countryside Act 1981, similarly, prohibits the use, for the purpose of killing or taking a wild bird, of any shot-gun of which the barrel has an internal diameter at the muzzle of more than one and three-quarter inches.107

     
     

227. Article 1 of the Units of Measurement Directive No 80/181/EEC,108 as amended,109 lists the units of measurement that must be used by member states for the purpose of expressing quantities and prohibits the use of any other unit. The Directive nevertheless allows, the use of supplementary indicators – although units of measurement listed in chapter 1 of annex 1 to the Directive should always predominate.110

     
     

228. The current use of units of measurement such as the “grain”, the “footpound” or the “inch” in domestic legislation is not in line with the requirements of Council Directive 80/181/EEC. We have concluded, therefore, that under the new framework any reference to grains, footpounds and inches should be replaced by references to multiples of the kilogram, joule and metre. In line with article 3 of the Directive, references to grains, footpounds and inches should be retained, in brackets, as supplementary indicators.

     
     

     Recommendations

     
     

     Recommendation 103: we recommend that any reference to grains, footpounds and inches should be replaced by references to multiples of the kilogram, joule and metre. In line with article 3 of the Directive, references to grains, footpounds and inches should be retained, in brackets, as supplementary indicators.

     
     

     106 Protection of Badgers Act 1991, s 2(1)(d).

     107 Wildlife and Countryside Act 1981, s 5(1)(c)(iv).

     108 Units of Measurement Directive 80/181/EEC Official Journal L 39 of 15.2.1980 p 40 (repealing Directive 71/354/EEC).

     109 Amended by Council Directive 85/1/EEC Official Journal L 2 of 18.12.1984, Council Directive 89/617/EEC Official Journal L 357 of 7.12.1989 p 28, Directive 1999/103/EC Official Journal L 34 of 9.2.2000 p 17 and Directive 2009/3/EC Official Journal L 114 of 7.5.2009 p 10.

     110 Units of Measurement Directive 80/181/EEC, art 3.

     SECONDARY ACTIVITY PROHIBITIONS

229. As discussed in Chapter 4,111 the aim of secondary activity prohibitions is to regulate activities that may constitute an important incentive for direct interferences with wild animals. The regulation of secondary activity prohibitions, therefore, constitutes an important part of the protective regime for wildlife, on the basis that its aim is to reduce the incentive for a number of unlawful activities that negatively affect wild populations of protected animals.

     
     

230. Whilst the main focus of our reform of secondary activity prohibitions in connection with wild birds has been compliance with EU law, in the context of provisions prohibiting the possession of, or trade in, protected wild animals the main problem that we have identified is the absence of consistency in the terminology and scope of a number of the existing secondary activity prohibitions.

     
     

231. The inconsistent terminology appears in a number of cases to be purely the result of the fragmented nature of wildlife protection legislation rather than conscious decisions to create different levels of protection for different animals. The result, however, is that some of the prohibitions of trading in specimens are currently more difficult to enforce than others for no apparent reason.

     
     

232. Keeping in mind the need to retain the current level of protection for species protected as a matter of domestic law, in this section our recommendations aim at harmonising trade and possession prohibitions with a view to ensuring that the language of the new offences is consistent and guarantees the effective enforcement of domestic legislation.

     
     

     International obligations

     
     

     Convention on the International Trade in Endangered Species

233. The principal international instrument regulating the international trade in wild animals is the Convention on the International Trade in Endangered Species, which is implemented across the European Union through a number of EU Regulations.112 The EU Regulations are enforced domestically through the Control of Trade in Endangered Species (Enforcement) Regulations 1997113 and the Endangered Species (Import and Export) Act 1976.

     
     

     111 Chapter 4, paras 4.151 to 4.154.

     112 See, in particular, Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein.

     113 SI 1997 No 1372.

234. The Convention, and the EU Regulations implementing the Convention in EU law, prohibit trade in a number of species that are also protected in domestic law for the purpose of giving effect to the UK’s obligations under the Bern Convention and the Habitats Directive. Those species include, for instance, all cetaceans, marine turtles, sturgeon and otters. Nevertheless, we have concluded that the implementation of the Convention should fall outside the scope of this project on the basis that there is virtually no scope for reforming its implementation in the law of England and Wales (the EU Regulations only being capable of amendment by the EU itself) and no scope for removing or rationalising the existing overlaps between the obligations under the Convention and obligations giving effect to other international and EU obligations.114

     
     

     Bern Convention

235. As discussed in Chapter 4, article 6(e) of the Bern Convention requires contracting parties to prohibit the trade in, and possession of, animal species listed in appendix 2 “when this would contribute to the effectiveness of the other primary activity prohibitions in article 6”. It would appear, therefore, that this prohibition is “softer” than the other prohibitions in article 6, in that it does not require member states to prohibit the trade in species in cases where, for example, the threat to that species is unrelated to collection for the purpose of trade.

     
     

236. Article 7, in addition, requires member states to take appropriate measures to ensure the protection of the wild fauna species listed in appendix 3. Appropriate measures include, among other things, the regulation of trade in those species.

     
     

     EU obligations

     
     

     Habitats Directive

237. Article 12(2) of the Habitats Directive requires member states to prohibit the “keeping, transport and sale or exchange, and offering for sale or exchange, of [specimens of the species listed in annex 4(a)] taken from the wild except for those taken legally before [the implementation date of the Directive]”.

     
     

238. In this context, it is worth noting that while the primary activity prohibitions under article 12(1) of the Habitats Directive only apply to animal species listed in annex 4(a) to the Directive “in their natural range”, the secondary activity prohibitions flowing from article 12(2) of the Habitats Directive apply to animal species listed in annex 4(a) without any geographical limitation. As the aim of the Habitats Directive is to “contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the member states to which the Treaty applies”, it is obvious that the trade in, or possession of, any species strictly protected under the Directive should be prohibited in all member states. This is because the trade in protected species creates an incentive for illegal killing and capture of strictly protected species, whether or not the trade is carried out in member states where the protected species in question is native.

     
     

     114 See further the discussion in Chapter 4 paras 4.152 to 4.154 above.

     Other EU obligations falling outside the scope of this review

239. It is also worth noting that there are three other specific pieces of EU legislation which are relevant to the protection of wild animals in that they regulate the import, export and trade in seal products and pelts derived from other protected animals for the primary purpose of protecting their welfare.

     
     

240. The Seal Pups Directive requires that member states take “all necessary measures to ensure that the products listed in the annex are not commercially imported into their territories”.115 The annex to the Directive refers to the whitecoat pups of harp seals and pups of hooded seals, and does not extend to any species naturally occurring in the UK.

     
     

241. The Seal Products Regulation provides that “the placing on the market of seal products shall be allowed only where the seal products result from hunts traditionally conducted by Inuit and other indigenous communities and contribute to their subsistence”.116 This is subject to a limited set of derogations listed in article 3(2).

     
     

242. Lastly, the Leghold Traps Regulation prohibits “the introduction into the Community of the pelts of the animal species listed in annex 1 and of the other goods listed in annex 2, inasmuch as they incorporate pelts of the species listed in annex 2”. This is unless the European Commission determines that there is sufficient protection in place in a particular exporting state.117

     
     

243. In line with the approach to the implementation of the Convention on the International Trade in Endangered Species, at the outset of the project it was decided that provisions directly regulating the import and export of products derived from protected fauna or flora should fall outside the scope of the project. As a result, we have concluded that the implementation of the Seals Pups Directive and article 3 of the Leghold Trap Regulation falls outside the scope of this review.

     
     

244. The Seal Products Regulation is directly applicable in domestic law and trade prohibited by article 3(1) was expressly made a criminal offence under the Seal Products Regulations 2010.118 As the trade in seal products is substantively regulated by the EU Regulation through a self-contained regulatory regime, we have concluded that there would be no benefit in integrating it into the new framework.

     
     

     Current domestic law

     
     

     Conservation of Habitats and Species Regulations 2010

245. In line with article 12(2) of the Habitats Directive, regulation 41(3) of the Conservation of Habitats and Species Regulations 2010 makes it an offence to

     
     

     115 Seal Pups Directive 83/129/EEC, Official Journal L 91 of 9.4.1983 p 30, art 1.

     116 Regulation on Trade in Seal Products (EC) No 1007/2009, Official Journal L286 of 31.10.2009 p36, art 3(1).

     117 Regulation on Leghold Traps (EEC) No 3254/91, Official Journal L308 of 9.11.1991 p 1, arts 3 and 5.

     118 SI 2010 No 2068, reg 3(1).

     1. be in possession of, or control;

        
        

     2. transport;

        
        

     3. sell or exchange; or

        
        

     4. offer for sale or exchange

        
        

        any live animal (regardless of the stage of its life), any dead animal, any part of an animal or anything derived from an animal of a species or sub-species listed in annex 4(a) to the Habitats Directive.119

        
        

246. Where it is alleged that an animal or a part of an animal was taken from the wild, it is presumed, unless the contrary is shown, that that animal or part was taken from the wild.120

     
     

247. In line with the Wild Birds Directive, the aim of the Habitats Directive is to contribute towards insuring biodiversity through the conservation of wild fauna and flora in the European territory of the member states to which the treaty applies.121 It is reasonable to conclude, therefore, that the trade in protected species of wild fauna taken outside the European territory of the member states falls outside the scope of the prohibitions in article 12(2) of the Habitats Directive. Article 12(2), in addition, expressly excludes from the scope of its prohibitions wild species of fauna that were taken legally before the implementation date of the Directive.

     
     

248. The temporal and geographical restrictions of the Habitats Directive discussed above are given effect in domestic law through regulation 42(5) and (7) of the 2010 Regulations. The geographical restrictions, however, are limited by regulation 42(6), which provides that they do not constitute a defence to the offence of trading in wild fauna species listed in annex 4(a) to the Habitats Directive which have a natural range including Great Britain or in animals of the species Lacerta vivipara pannonica (viviparous lizard) or Lycaena dispar (the large copper butterfly).

     
     

249. Lastly, to give effect to a number of specific geographical restrictions specified in annex 4(a) to the Habitats Directive, regulation 42(8) provides that a person is not guilty of an offence under regulation 41(3) if that person shows that the animal or part of the animal, or the animal from which the thing in question is derived –

     
     

     1. is of a species listed in the second column of Schedule 3 to the 2010 Regulations (excluded populations of certain species) and was from a population occurring in a country or area which is specified in respect of that species in the third column of that schedule;

        
        

        119 SI 2010 No 490, regs 41(3) to (5).

        120 SI 2010 No 490, reg 41(7).

        121 Directive 1992/43/EEC, art 2(1).

     2. is of the species Capra aegagrus (wild goat) and was not from a naturally occurring population; is of the subspecies Ovis gmelini musimon (European mouflon) and was not from a naturally occurring population in Corsica or Sardinia; or is of the species Coregonus oxyrhynchus (houting) and either was from Finland or was not from an anadromous population.

        
        

        Wildlife and Countryside Act 1981

250. Section 9(2) of the Wildlife and Countryside Act 1981 makes it an offence for a person to have in his possession or control any live or dead wild animal included in schedule 5 or any part of, or anything derived from, such an animal. A person, however, is not guilty of an offence if he shows that

     
     

     1. the animal had not been killed or taken, or had been killed or taken otherwise than in contravention of the relevant provisions;122 or

        
        

     2. the animal or other thing in his possession or control had been sold (whether to him or any other person) otherwise than in contravention of Part 1 of the 1981 Act or the (now repealed) Conservation of Wild Creatures and Wild Plants Act 1975.123

        
        

251. Trade in protected wild fauna species is prohibited by section 9(5)(a) of the Wildlife and Countryside Act 1981, which makes it an offence to

     
     

     1. sell;124

        
        

     2. offer for sale;

        
        

     3. expose for sale,

        
        

     4. be in possession for the purpose of sale; and

        
        

     5. transport for the purpose of sale;

        
        

        any live or dead wild animal included in schedule 5, or any part of, or anything derived from, such an animal.

        
        

252. Section 9(5)(b) also makes it an offence to “publish or cause to be published any advertisement125 likely to be understood as conveying that [the person publishing or causing the advertisement to be published] buys or sells, or intends to buy or sell, any of those things”.

     
     

     122 The “relevant provisions” are those of the 1981 Act or of the Conservation of Wild Creatures and Plants Act 1975.

     123 Wildlife and Countryside Act 1981, s 9(3).

     124 According to s 27 of the Wildlife and Countryside Act 1981 “sale” includes “hire, barter and exchange and cognate expressions shall be construed accordingly”.

     125 According to s 27 of the Wildlife and Countryside Act 1981, “advertisement” includes a “catalogue, a circular and a price list”.

253. By section 9(6), in any proceedings for an offence under section 9(5)(a), the animal in question is be presumed to be a wild animal126 unless the contrary is shown. As “animal” is defined as including an egg of an animal, it is reasonable to conclude that the above prohibitions also apply to the eggs of protected wild fauna species.127

     
     

254. As mentioned in previous sections of this Chapter, a number of species of fauna and flora listed in schedule 5 to the 1981 Act are also listed in annex 4(a) to the Habitats Directive and protected by equivalent prohibitions under regulation 41(3) of the 2010 Regulations.

     
     

     Protection of Badgers Act 1992

255. Section 1(3) of the Protection of Badgers Act 1992 makes it an offence to be in possession or in control of any dead badger, or any part of, or anything derived from, a dead badger. A person, however, is not guilty of an offence under subsection (3) above if he shows that –

     
     

     1. the badger had not been killed, or had been killed otherwise than in contravention of the provisions of the Act or of the Badgers Act 1973; or

        
        

     2. the badger or other thing in his possession or control had been sold (whether to him or any other person) and, at the time of the purchase, the purchaser had had no reason to believe that the badger had been killed in contravention of any of those provisions.128

        
        

256. Being in possession or in control of a live badger, on the other hand, is generally prohibited, whether or not the defendant shows that the badger had been lawfully captured.129 Section 4 of the 1992 Act also makes it an offence to sell or offer for sale any live badger whether or not the badger in question had been lawfully captured.

     
     

     Deer Act 1991

257. Sections 10(3) and (4) of the Deer Act 1991 make it an offence for any person to

     
     

     1. sell;

        
        

     2. offer for sale;

        
        

     3. be in possession for the purpose of sale;

        
        

     4. purchase;

        
        

     5. offer to purchase; or

        
        

        126 That is, an animal that was living wild before it was killed or taken: Wildlife and Countryside Act 1981, s 27(1).

        127 Wildlife and Countryside Act 1981, s 27.

        128 Protection of Badgers Act 1992, s 1(4).

        129 Protection of Badgers Act 1992, s 4. This is subject to the exceptions in section 9; see Chapter 7.

     6. receive;

        
        

        any venison which comes from a deer which has been taken or killed in circumstances which constitute an offence under the Deer Act 1991 and which the person concerned knows or has reason to believe has been so taken or killed.

        
        

258. The Deer Act 1991 prohibits, among other things, the poaching of deer, the killing or capture of deer during the close season, the killing or capture of deer at night and the use of prohibited methods of killing or capture.

     
     

     Hares Preservation Act 1892

259. Section 2 of the Hares Preservation Act 1892 makes it an offence to sell any hare or leveret – except for “foreign hares” imported into Great Britain130 – during the months of March, April, May, June and July.

     
     

     General harmonisation of the language of secondary activity prohibitions

260. The basic structure of the offences is essentially similar as between the different offences described above. There are, however, certain inconsistencies as to the exact terms used.

     
     

261. As mentioned above, certain variations between the different offences clearly indicate the intention of Parliament to prohibit different forms of conduct so as to give effect to specific policy aims. A good example is the extension of the secondary activity prohibitions in connection with venison to people purchasing venison with the knowledge that it may have been obtained from a deer that was killed or taken in circumstances that constitute an offence under the Deer Act 1991.

     
     

262. In the consultation paper, however, we noted a number of variations the harmonisation of which, we suggested, would continue to capture the original intention of Parliament whilst improving the consistency and effectiveness of the legislation.131

     
     

     130 Hares Preservation Act 1892, s 3.

     131 Wildlife Law (2012) Law Commission Consultation Paper No 206, paras 7.19 to 7.22.

263. The Conservation of Habitats and Species Regulations 2010 and the Protection of Badgers Act 1992, for instance, make it an offence to “offer for sale” rather than “expose for sale”.132 In the consultation paper we explained that the expression “expose for sale” is broader – in contract law, exposing items for sale in a shop is generally regarded as an “invitation to treat” rather than an offer for sale.133 It is difficult, however, to find a rational reason why a person should not be liable for an offence if they invite people to buy prohibited items. Similarly, we suggested that it is difficult to find good reasons why a statute making it an offence to offer for sale a wild animal of a protected species should not also prohibit “advertisements likely to be understood as conveying that [a person] buys or sells, or intends to buy or sell” the protected animal in question.134

     
     

264. We asked, therefore, whether consultees thought that the offence of selling certain protected wild animals, plants and fish should include offences of offering for sale, exposing for sale and advertising to the public.135 In the light of the overwhelming support for this proposal, we have concluded that – in line with sections 9(5) and (6) of the 1981 Act – all trade prohibitions in relation to protected animals should cover the following conduct:

     
     

     1. sale;

        
        

     2. offering for sale;

        
        

     3. exposing for sale;

        
        

     4. being in possession for the purpose of sale

        
        

     5. transporting for the purpose of sale;

        
        

     6. publishing or causing to be published any advertisement likely to be understood as conveying that a person buys or sells or intends to buy or sell.

        
        

        132 The Wildlife and Countryside Act 1981, ss 6, 9 and 13, prohibits both “offering” and “exposing for sale” protected species.

        133 In Fisher v Bell [1961] 1 QB 394, a flick knife placed in a shop window was found not to be an offer for sale under the law of contract but an “invitation to treat”. Similarly in Partridge v Crittenden [1968] 1 WLR 1204 the defendant was acquitted for the offence of “offering for sale” a protected bird in contravention of s 6(1) of the Protection of Birds Act 1954 on the basis that the Court of Appeal held that advertising the sale of the relevant bird only constituted an “invitation to treat”. The phrase “expose for sale” was therefore introduced to avoid such an interpretation under the law of contract. For further discussion of the interpretation of “offer” in criminal offences see D Ormerod, Smith and Hogan’s Criminal Law (13th ed 2011) p 924.

        134 Under s 9(5)(b) of the Wildlife and Countryside Act 1981, advertising the sale of a wild animal of a species listed in sch 5 is now expressly prohibited.

        135 Wildlife Law (2012) Law Commission Consultation Paper No 206, Provisional Proposal 7- 2.

265. “Advertisement” is currently defined as including “a catalogue, a circular or a price list”. Certain stakeholders queried whether further examples should be added in light of developments such as internet trading. Whilst we agree that the language of the current definition is hardly modern, we have taken the view that the most effective and flexible way of replicating the effect of the term “advertisement” under the new framework is to leave it undefined. This is because the word “advertisement” is hardly ambiguous and the means through which the sale of a product may be advertised will constantly evolve over time.

     
     

     Recommendations

     
     

     Recommendation 104: we recommend that all trade prohibitions in relation to protected animals should cover the following conduct:

     
     

     1. sale;

        
        

     2. offering for sale;

        
        

     3. exposing for sale;

        
        

     4. being in possession for the purpose of sale

        
        

     5. transporting for the purpose of sale;

        
        

     6. publishing or causing to be published any advertisement likely to be understood as conveying that a person buys or sells or intends to buy or sell.

     
     

     This recommendation is given effect in the draft Bill by clauses 54(1) and 56.

     
     

     Possession and sale of wild animals and their eggs: European protected species

     Possession and sale of wild animals

266. Regulation 41(3) of the Conservation of Habitats and Species Regulations 2010 and the relevant defences under regulations 42(5) to (8) appear to be fully compliant with article 12(2) of the Habitats Directive. In replicating those provisions under the new framework, however, we have concluded that – beside the harmonisation of the language with the offences with the other domestic secondary activity offences – a number of additional amendments could have the effect of making the new legislation clearer.

     
     

     Possession and sale of eggs

267. Article 12(3) of the Habitats Directive provides that the prohibitions in article 12(2) of the Directive apply to “all stages of life of the animal” in question. “Specimen”, in addition, is defined as including “any part or derivative” of a wild animal of a protected species.136 Regulation 41 of the 2010 Regulations employs a similar definition.

     
     

     136 Directive 92/43/EEC, art 1(m).

268. We have taken the view that the current legislation is unclear as to whether the definition extends to the eggs of an oviparous wild animal. It follows that copying out the definitions of the Habitats Directive, in this context, does not appear to be the most effective and accessible way to give effect to its requirements. In Chapter 4 above, we have concluded that in the light of the object and purpose of the Wild Birds Directive the prohibition on the trade of wild birds should be read as implying that the trade in their eggs should also be prohibited. This is because the sale and possession of the eggs of protected birds or animals is often the primary driver for their illegal collection from the wild.

     
     

269. We have concluded, therefore, that in the light of the object and purpose of the Habitats Directive, the definitions in articles 1(m) and 12(3) of the Directive must be read as including a reference to the eggs of a protected animal. Consequently, we think that under the new framework the possession and trade in eggs of oviparous animals of a species listed in annex 4(a) to the Habitats Directive should be expressly prohibited.

     
     

     Exemptions

270. As discussed above, regulation 42(5) and (7) of the 2010 Regulations – in line with the temporal and geographical restrictions of the Habitats Directive – exempts from the scope of secondary activity prohibitions animals of a protected species that have been taken outside the European territory of member states to which the Treaty on the Functioning of the European Union (TFEU) applies or animals lawfully taken in that territory before the implementation date of the Habitats Directive. Similarly, regulation 42(8) further restricts the possession and trade prohibitions in relation to a limited list of animals on the basis that their protection under the Habitats Directive is limited to certain geographical areas. As the above restrictions appear to be fully in line with the territorial and temporal application of the Habitats Directive, we have concluded that they should be retained in the new framework.

     
     

271. Regulation 42(6) of the 2010 Regulations, however, further restricts the trade in a number of species to an extent that goes beyond the scope of application of the Habitats Directive. It would appear that the rationale for these restrictions is to ensure the strict protection of protected wild animals that have a natural range including Great Britain by entirely prohibiting trade in specimens of them whenever and wherever those animals were originally taken.

     
     

272. The restrictions also extend to the viviparous lizard and the large copper butterfly: two sub-species listed under annex 4(a) to the Habitats Directive which do not have a natural range including Great Britain. In this context, it would appear that the rationale for extending the temporal and geographical application of the trade prohibitions in regulation 41(3) was to effectively ensure the complete prohibition on the trade of other species protected under schedule 5 to the Wildlife and Countryside Act 1981 that may not be easily distinguished from those sub- species.

     
     

273. We have concluded that the above exceptions under regulation 42(6) should not be retained under the new framework on the basis that they goldplate the requirements of the Habitats Directive.

274. Our view is that regulation 42(6) of the 2010 Regulations was most likely inserted to ensure consistency with the scope of the trade prohibitions under section 9(5) of the Wildlife and Countryside Act 1981. This is because section 9(5) of the 1981 Act also prohibits the trade in species listed in annex 4(a) to the Habitats Directive that have a natural range including Great Britain regardless of their origin or the time of collection.

     
     

275. However, as is further discussed in the section below, we do not see any good reason why species listed in annex 4(a) to the Habitats Directive that have a natural range including Great Britain should be protected by two identical criminal offences under different legal instruments. In principle, therefore, we have taken the view that under the new framework all species protected under the Habitats Directive should be protected by the provisions giving effect to article 12(2) of the Habitats Directive. Species listed under schedule 5 to the 1981 Act that are not listed in annex 4(a) to the Habitats Directive should be protected by the prohibitions giving effect to section 9(2) and (5) of the 1981 Act.

     
     

276. This, of course, is a default position the purpose of which is to ensure that domestic legislation does not goldplate the requirements of the Habitats Directive. It follows that if the Secretary of State or Welsh Ministers consider that there are valid policy reasons for removing the temporal and geographical restrictions that apply to the trade prohibitions in connection with certain species listed in annex 4(a) to the Habitats Directive, it will be possible to do so under the new framework by moving the relevant species from one protection regime to the other.

     
     

     Recommendations

     
     

     Recommendation 105: we recommend that, subject to the existing exceptions, the possession, control, transport and trade in wild animals of a species listed in annex 4(a) to the Habitats Directive or the eggs of oviparous animals of a species listed in annex 4(a) to the Habitats Directive should be expressly prohibited.

     
     

     This recommendation is given effect in the draft Bill by clauses 54(2) and 56.

     
     

     Recommendation 106: we recommend that a person should not be guilty of an offence of possessing or selling a wild animal of a species listed in annex 4(a) of the Habitats Directive, a part a such an animal, anything derived from such an animal, or an egg of such an animal (or any part of an egg of such an animal) if he or she shows that the animal or egg in question was killed, captured or taken from the wild

     
     

     1. before the implementation date of the Habitats Directive (as long as the killing, capture or taking was lawful); or

        
        

     2. outside the European territory of a member state to which the TFEU applies.

     
     

     This recommendation is given effect in the draft Bill by clauses 55(1), (2) and (8).

     Possession and sale of wild animals and their eggs: species protected in England and Wales

     Possession of wild animals and their eggs

277. We have concluded that, in line with section 9(2) of the Wildlife and Countryside Act 1981, under the new framework it should be an offence to be in possession or be in control of any live or dead wild animal, listed in schedule 5 to the 1981 Act,137 including any part of, anything derived from, or an egg138 of, such an animal. The same offence should be extended to badgers so as to replicate the equivalent prohibitions under the Protection of Badgers Act 1992.

     
     

278. We have noted that in addition to prohibiting the “possession” or “control” of a protected species, regulation 41(3) of the Conservation of Habitats and Species Regulations 2010 – so as to give effect to article 12(2) of the Habitats Directive – also prohibits the “transport” of that species. As we could not see any reason why a person who causes a protected specimen to be transported without being directly in possession or in control of that specimen should not also be liable for the same offence, we have concluded that under the new framework it should also be an offence to transport a species listed in schedule 5 to the 1981 Act or a badger.

     
     

279. We have concluded that the list of exceptions in section 9(3) of the 1981 Act should be replicated under the new framework subject to the following three changes.

     
     

280. First, while showing that the animal in question had been lawfully captured or killed should remain a defence, the term “lawful” should be redefined as restricted to activities carried out without contravention of the new Wildlife Act, the Wildlife and Countryside Act 1981 or the Protection of Badgers Act 1992. In other words, we have taken the view that a person should not be guilty of an offence if he or she shows that the animal in question had been killed or captured before the 1981 Act and the 1992 Act came into force. This is because we cannot see any conservation reason for continuing to require proof of compliance with legislation that was in force before that time by continuing to criminalise, for instance, the possession of a badger that was killed or captured in the 1970s in contravention of the Badgers Act 1973.139

     
     

281. Secondly, in line with section 1(3) of the 1981 Act,140 equivalent exceptions should expressly refer to the eggs of a wild animal to which the new provision applies.

     
     

     137 For the purpose of s 9(2) of the Wildlife and Countryside Act 1981, sch 5 does not include species listed in annex 4(a) of the Habitats Directive.

     138 Wildlife and Countryside Act 1981, s 27.

     139 Currently the term “lawful”, in the context of the 1981 Act, is defined as “not in contravention of the 1981 Act or the Conservation of Wild Creatures and Wild Plants Act 1975”; in the context of the 1992 Act it is defined as “not in contravention of the 1992 Act or the Badgers Act 1973”.

     140 Section 1(3) makes it a defence to the offence of possessing an egg that the egg had been lawfully taken.

282. Thirdly, so as to retain the effect of section 1(4)(b) of the Protection of Badgers Act 1992, we have concluded that in proceedings for a possession offence in connection with the possession of a dead badger it should be a defence to show that the badger, or part of the badger, had been sold to a person and that person had no reason to believe that the animal had been unlawfully killed.

     
     

     Recommendations

     
     

     Recommendation 107: we recommend that it should be an offence to be in possession, be in control or transport wild animals, any part of a wild animal, anything derived from a wild animal or the eggs of a wild animal of a species listed in schedule 5 to the Wildlife and Countryside Act 1981 (other than a species listed in annex 4(a) of the Habitats Directive) or a wild animal of a species Meles meles (badger).

     
     

     This recommendation is given effect in the draft Bill by clause 57.

     
     

     Recommendation 108: we recommend that the exceptions listed in section 9(3) of the Wildlife and Countryside Act 1981 should be replicated under the new framework subject to the following modifications:

     
     

     1. the term “lawful” should be redefined as restricted to activities carried out without contravention of the new Wildlife Act, the Wildlife and Countryside Act 1981 or the Protection of Badgers Act 1992.

        
        

     2. the exceptions should expressly extend to the possession of the eggs of relevant oviparous animals;

        
        

     3. in proceedings for a possession offence in connection with the possession of a dead badger it should be a defence to show that the badger, or part of the badger, had been sold to a person and that person had no reason to believe that the animal had been unlawfully killed.

     
     

     This recommendation is given effect in the draft Bill by clauses 58(1), (3), (4) and (5).

     
     

     Sale of wild animals and their eggs

283. We have concluded that the trade prohibitions under section 9(5) and (6) of the Wildlife and Countryside Act 1981 should be replicated under the new framework and apply to the following protected animals:

     
     

     1. Any live or dead wild animal, any part of or derivative of such a wild animal or the eggs of a wild animal of any species listed in schedule 5 of the 1981 Act that is not listed in annex 4(a) to the Habitats Directive;

        
        

     2. Live badgers.

284. As discussed above, this prohibition goes beyond the requirements of the Habitats Directive. As a result, we have taken the default position that the prohibitions replicating section 9(5) and (6) of the 1981 Act should only apply to species other than those listed under annex 4(a) to the Habitats Directive and protected by the secondary activity prohibitions discussed above. Of course, the secondary activity prohibitions applying to species listed in annex 4(a) of the Habitats Directive and those replicating section 9(5) and (6) of the 1981 Act could, in principle, be further harmonised. As doing so would substantially alter the protection level of a large number of species, however, we have concluded that making recommendations for that purpose would fall outside the scope of this review.

     
     

285. Live badgers are included in the same list on the basis that the Protection of Badgers Act 1992 only includes an equivalent prohibition in connection with the trade in live, as opposed to dead badgers.

     
     

     Recommendations

     Recommendation 109: we recommend that the trade prohibitions under section 9(5) and 9(6) of the Wildlife and Countryside Act 1981 should be replicated under the new framework and apply to the following species:

     
     

     1. Any live or dead wild animal, any part of or derivative of such a wild animal or the eggs of a wild animal of any species listed in schedule 5 of the Wildlife and Countryside Act 1981 that is not listed in annex 4(a) to the Habitats Directive;

        
        

     2. Live wild animals of the species Meles meles (badgers).

     
     

     This recommendation is given effect in the draft Bill by clauses 59(3) and (4).

     
     

     Sale of venison

286. We have concluded that the prohibition on the sale and purchase of venison under section 10 of the Deer Act 1991 should be replicated under the new framework in line with the general harmonisation policies discussed above.

     
     

287. The new provision, therefore, should make it an offence to:

     
     

     1. sell;

        
        

     2. offer or expose for sale;

        
        

     3. possess or transport for the purpose of sale; and

        
        

     4. publish or cause to be published any advertisement likely to be understood as conveying that a person buys or sells or intends to buy or sell;

        venison which comes from a deer which has been killed in circumstances which constitute an offence141 and which the person knows, or has reason to believe has been so taken or killed.

        
        

288. Currently the definition of “venison” under section 16 of the Deer Act 1991 excludes any carcase of a deer or any edible part of the carcase of a deer which has been “cooked or canned”. We have concluded that this restriction should not be replicated under the new framework. The above restriction derives from the original version of section 10 of the Deer Act 1991, which prohibited unlicensed game dealers from selling venison during “prohibited periods” (the period beginning with the expiry of the tenth day, and ending with the expiry of the last day, of the close season imposed in connection with the relevant deer species). Whilst in the context of that prohibition it made sense to exempt unlicensed game dealers from selling canned venison on the basis that venison which has been canned may remain edible for years, since the repeal of that prohibition we were unable to find any rational reason for retaining the exclusion.142

     
     

     Recommendations

     Recommendation 110: we recommend that under the new framework it should be an offence to

     
     

     1. sell;

        
        

     2. offer or expose for sale;

        
        

     3. possess or transport for the purpose of sale;

        
        

     4. publish or cause to be published any advertisement likely to be understood as conveying that a person buys or sells or intends to buy or sell;

     
     

     venison which comes from a deer which has been killed in circumstances which constitute a wildlife offence and which the person knows, or has reason to believe has been so taken or killed.

     
     

     This recommendation is given effect in the draft Bill by clause 66.

     
     

     141 “Circumstances which constitute an offence” should include all protection provisions under the Deer Act 1991 and the new Wildlife Act except for those concerning poaching, on the basis that, as discussed in Chapter 8, we have concluded that the offence of trading in venison taken from a deer that has been poached should be integrated into a general prohibition on the trade in poached animals.

     142 In line with the discussion of the Hares Preservation Act 1892 in the following section, we think that the prohibition to sell venison during certain periods of the year was repealed, among other things, on the basis that, since the invention (and widespread use) of freezers, prohibiting the sale of venison during the close season as a means of preventing the unlawful killing of deer during that period has become an unnecessary and anachronistic market restriction.

     Hares

289. We have concluded that the Hares Preservation Act 1892 should be repealed on the basis that its prohibitions are obsolete. Since the invention of refrigerators and freezers, prohibiting the trade in hares or leverets during particular times of the year is neither an effective, nor a proportional mechanism to remove the incentive to kill or capture wild hares during that time.

     
     

290. Under the new framework, of course, the Secretary of State or Welsh Ministers will be able to provide additional protection to hares by prohibiting, if appropriate, their killing or capture during a prescribed close season, prohibiting the use of particular methods of killing or capture or generally prohibiting the trade in them subject to a licensing regime.

     
     

     Recommendations

     Recommendation 111: we recommend that the Hares Preservation Act 1892 should be repealed and replicated, if necessary, by a prohibition of killing, injuring or capturing hares during particular periods of the year.

     
     

     Other animals protected under the Bern Convention

291. As discussed in previous sections, not all species listed in appendix 2 to the Bern Convention are included in annex 4(a) to the Habitats Directive. As a result, the secondary activity prohibitions under the Conservation of Habitats and Species Regulations 2010 – the aim of which is to give effect to the UK’s obligations under the Habitats Directive – omit a number of species the trade in and possession of which may need to be banned so as to give effect to the UK’s international commitments under the Bern Convention. A limited number of those species are currently listed in schedule 5 and protected by the secondary activity prohibitions in section 9(2), (5) and (6) of the Wildlife and Countryside Act

     1981.143 The list of appendix 2 species in schedule 5 to the 1981 Act, however, is limited to species that have a natural range including Great Britain. It does not extend to species the trade in which may have to be prohibited in Great Britain so as to protect the wild populations of that species in other contracting states.

     
     

292. Article 6(e) of the Bern Convention provides that the trade in and possession of species listed in appendix 2 need only be prohibited where this would contribute to the effectiveness of primary activity prohibitions. As whether or not prohibiting the trade in a certain species would contribute to the effectiveness of the prohibitions under article 6 of the Bern Convention is a question of fact that falls outside the Law Commission’s remit, we have decided to refrain from making specific recommendations in connection with the implementation of article 6(e) in domestic law. Serious consideration, however, should be given to whether limiting the trade prohibitions to certain appendix 2 species that have a natural range including Great Britain is sufficient to give effect to the UK’s obligations under article 6(e).

     
     

     143 Species listed in schedule 5 to the Wildlife and Countryside Act 1981 that are only strictly protected under the Bern Convention include, among others, the walrus (Odobenus rosmarus) and the Southern damselfly (Coenagrion mercuriale).

     POSSESSION AND SALE OF OTHER PROHIBITED ARTICLES

     
     

     Poisoned grain or seed and spring traps

293. The Pests Act 1954 makes it an offence to be in possession of, sell, offer or expose for sale any spring trap other than an approved trap with a view to its being used for a purpose which is unlawful.144 The Protection of Animals Act 1911 makes it an offence to sell, offer or expose for sale or give away any grain or seed which has been rendered poisonous except for bona fide use in agriculture. 145

     
     

294. We have concluded that the above prohibitions should be replicated under the new framework on the basis that they are primarily relevant to the protection of wild animals. In line with our policy of harmonising the language of secondary activity prohibitions, we have concluded that under the new framework it should also be an offence to publish or caused to be published any advertisement likely to be understood as conveying that a person sells or buys, or intends to sell or buy, a prohibited article. In line with our general policy of increasing the flexibility of the new regulatory regime, in addition, we have concluded that the prohibited items should be listed in a schedule that the Secretary of State or Welsh Ministers may update by regulations.

     
     

295. Section 8 of the Pests Act 1954 currently provides that the sale and possession of spring traps should only be prohibited where they are possessed or sold with a view to the relevant trap being used for a purpose which is unlawful under section 8 of the 1954 Act. In essence, an “unlawful purpose” is any use of a spring trap which is not authorised by regulations issued by the Secretary of State or Welsh Ministers.

     
     

296. As discussed earlier in this Chapter, we have concluded that under the new framework any use of spring traps should be prohibited unless expressly authorised by a licence issued by the Secretary of State or Welsh Ministers. In line with that approach, we have concluded that the possession and sale of spring traps, similarly, should be generally prohibited except when authorised by a licence.

     
     

297. Because, as discussed in Chapter 10, under the new framework the possession of anything capable of being used for committing an offence for the purpose of committing that offence will constitute a criminal offence of general application,146 we have also concluded that it would be unnecessary to expressly replicate the prohibition of possessing a spring trap with a view to its being used for the purpose of committing a criminal offence.

     
     

     144 Pests Act 1954, ss 8(1)(b) and (c).

     145 Protection of Animals Act 1911, s 8(a).

     146 See Chapter 10, paras 10.55 to 10.62 and Wildlife Bill, cl 114.

298. We have concluded, therefore, that under the new framework the effect of sections 8(1)(b) and (c) of the Pests Act 1954 and section 8(a) of the Protection of Animals Act 1911 should be expressly replicated through making it generally unlawful to sell, give away,147 offer for sale, expose for sale, be in possession for the purpose of sale, transport for the purpose of sale, or to publish or cause to be published any advertisement likely to be understood as conveying that a person sells or buys, or intends to sell or buy, any scheduled item, including spring traps and grains or seeds that have been rendered poisonous.

     
     

     Recommendations

     
     

     Recommendation 112: we recommend that the effect of sections 8(1)(b) and

     (c) of the Pests Act 1954 and section 8(a) of the Protection of Animals Act 1911 should be expressly replicated through a general prohibition to sell, give away, offer for sale, expose for sale, be in possession for the purpose of sale, transport for the purpose of sale, or to publish or cause to be published any advertisement likely to be understood as conveying that a person sells or buys, or intends to sell or buy, any scheduled item, including spring traps and grains or seeds that have been rendered poisonous.

     
     

     This recommendation is given effect in the draft Bill by clauses 114 and 115.

     
     

     Possession of pesticides harmful to wildlife

299. Section 43 of the Natural Environment and Rural Communities Act 2006 empowers the Secretary of State to prohibit the possession of particular pesticides by order, when satisfied that it would be expedient to do so in the interests of protecting wild birds or wild animals from harm. Because the use of a number of pesticides is regulated by specific sectoral legislation, under section 43(3) it a defence to show that the possession of the pesticide in question was for the purpose of doing anything authorised by relevant sectoral legislation.

     
     

300. As the aim of this power is to prevent the use of pesticides that may cause harm to wild birds or wild animals, we have concluded that it should be integrated into the new framework.