Examination of Witnesses (Questions 1
- 19)
THURSDAY 13 MAY 2004
DR TOM
TEW, MR
MARTIN FOX,
MS ALISON
FLOWERS AND
MS JOHANNA
OLDAKER
Q1 Chairman: Good morning. Welcome.
We notice in your memorandum that the outcome of a successful
prosecution in relation to the unauthorised removal of gravel
from the River Camel was due on 6 May for sentencing. Could you
give us an update as to what resulted?
Mr Fox: The case was actually
adjourned for sentencing to June. That was a joint case between
ourselves and the Environment Agency. When we know the outcome
we will of course let you know what it is.
Q2 Chairman: We would be very interested
to know the outcome.
Dr Tew: The court was busy. It
is an anti-climax, but . . .
Q3 Chairman: It is a shame. Keep
trying. We are trying to get a feel for the scale of wildlife
crime. Throughout the evidence we have been receiving—and
thank you for your written evidence, by the way—a theme
has emerged that the lack of a national database to record wildlife
offences means that it is very difficult to get any real idea
of the scale of the problem. Would you agree with that?
Dr Tew: Yes, we do agree with
that. If I may deal with two things separately, species crime
and site-based wildlife crime, as I think it is easiest to take
them in turn. On species crime it is hard for us to comment because
we are not the enforcing authority, but certainly we believe that
for some species, particularly rarer species, such as perhaps
hen harriers or red kites or bats, there is no doubt that wildlife
crime can have a significant effect on the population. It probably
has a moderate effect on a range of other species, on badgers
and great crested newts and so on. For sites, the scale of that
we are much more in touch with because we are the enforcing authority
and we can tell you how many enforcement cases we have progressed.
The overall scale is that it only affects about 0.5% of the sites
by area. One might be led to think therefore that this was a trivial
issue and not important but that is not the case. I hope the Committee
will not jump to that conclusion because for some species which
are restricted to very small numbers of sites an individual incident
can have clearly a very damaging effect on the whole species.
Some of the cases we have prosecuted (bryophytes in Cornwall or
marsh orchids in Wiltshire or shingle on Dungeness) are instances
where the crime is having a really dramatic effect on the individual
habitats. But you are right, Chairman, the issue about recording
is a key one for us. The majority of crimes, as you know, are
not recordable offences. We would very much welcome a change in
that status, because there is a legislative route whereby, if
they were recordable, then there would be a national database.
Another option which is slightly less legalistic is the PAW initiative.
We are strong supporters of that initiative which is to set up
a UK wildlife incident database. That, in the absence of a change
in legislation, would be a good backstop. Of course, we are after
an ability to have a strategic view on wildlife crime so that
we are able to analyse trends and threats and therefore prioritise.
At the moment we feel we and others are slightly lacking in that
strategic view.
Q4 Chairman: Who do you think would
be best placed to set up and run a national database?
Ms Oldaker: I think the best place
might be the National Wildlife Crime Intelligence Unit which was
set up in 2002. They are already established, so that might be
one possible outcome, although perhaps the PAW secretariat might
be able to give a better opinion of which is the better place.
Q5 Chairman: Shingle at Dungeness,
what was going on there?
Dr Tew: Two third-party offences
under regulation 23, in which I think eel fishermen were using
all-terrain vehicles and ploughing across vegetated shingle. It
does not sound a very exciting habitat but it is one of those
that takes centuries to form and is destroyed overnight. It is
very sensitive to damage. There are details in the back of our
evidence.
Q6 Chairman: Thank you. In your memorandum
you produce some pretty horrifying figures. For example, incidents
of damage by owners and occupiers has increased, you say, by 74%
between January 2001 and April this year. The rise in reported
incidents of damage by third parties is even worse: 168% increase
over the same period. Does this reflect a genuine underlying increase
in misdemeanours or better reporting and better attention by the
authorities?
Dr Tew: Of course, you have put
your finger on the crux and it is actually difficult to tell.
On the one hand we have better recording systems these days; on
the other hand, the CROW Act has brought in more offences, so
it may just be there is more recording. But, to try to answer
your question, we do believe that wildlife crime is increasing,
and particularly third-party crime.
Q7 Chairman: What is the reason?
Dr Tew: The bulk of this is vehicular
damage to wildlife sites. We think there is just an increasing
use of 4x4 and multipurpose vehicles out on to sites. English
Nature do not want to give the impression in any way that we are
against access to the countryside. We are not. We are fully in
favour of access to the countryside and it is great to see people
out and enjoying the countryside but there is an issue about appropriate
enjoyment and about educating and informing people about good
ways to enjoy the countryside without damaging it.
Chairman: Sitting in 4x4 trucks is hardly
an environmentally friendly way to enjoy the countryside.
Q8 Mr Thomas: On that point of 4x4
damage, I have recently seen something myself in my own constituency
where there is a problem. There is a DEFRA consultation which
has just ended on access. I think it is called byways open to
all traffic. Do you think that consultation and the measures proposed
in that would be useful in trying to tackle some of the issues
which you just mentioned?
Mr Fox: It would certainly help
to restrict the class of vehicles that can use the so-called green
lanes. I think the thrust has been at the moment to base establishment
rights on historical records, so you could be in the position
where someone relies on the fact that someone 100 or 200 years
ago used a horse and cart on a route, therefore that translates
into a motorcycle now. I think anything that can ensure the correct
level of access, the correct level of vehicle is used on the route,
must be beneficial.
Q9 Mr Thomas: Is the problem one
where the routes themselves could be close to an SSSI or traverse
an SSSI, or one where people use these routes to get access to
upland and moorland and then just go off wherever they want?
Mr Fox: I think the issue is that,
whilst people legally use routes, as new routes are reconfirmed—and
we should say, "Once a highway, always a highway"—there
is more opportunity for a small minority to deviate from the route
because people like an adventurous day out; they do not want to
follow a strict line that goes from point A to point B. So there
is the opportunity there, I think, for a small minority to stray
off the main route.
Dr Tew: But you are right, these
routes into the heart of the big SSSIs open up areas to potential
disturbance, and when you have sensitive species like ground-nesting
birds or rare reptiles they are vulnerable to disturbance. We
do not think this is a major issue. I do not want to leave the
impression that this is a dramatic issue, but in isolated circumstances
it can be serious.
Q10 Chairman: Could you give us an
idea of what proportion of reported incidents of damage turn out
to be actual incidents of damage?
Dr Tew: You have stumped us, Chairman.
We do not have information on that. We could try to follow up.
Q11 Chairman: I am trying to get
a feel for the way you relate to the people who bring concerns
to you. Perhaps I could ask a slightly different question: How
many of the cases in which you are involved are initiated by you
and how many by somebody else who comes to you and says, "We
have a problem"?
Ms Flowers: It is very often the
case that some of the reports are made by the general public.
In those circumstances, we would try to work with the general
public local forum groups, local police forces and local authorities
to try to raise the awareness to various users of the sites, so
that they hopefully can then see that where they are going is
not the right place. If the minority then carry on we can then
decide on the appropriate course of action to take if that is
required.
Q12 Chairman: You say that is very
often how it works, but presumably it is almost always that way,
is it not? Because you cannot have English Nature enforcers crawling
over the countryside waiting for people to do something wrong.
We are really entirely dependent on the goodwill and interest
of the public to bring these matters up.
Dr Tew: We are greatly dependent
on it, but of course our site managers at national nature reserves
are very sensitive to looking for damage, so they will certainly
have that in mind.
Ms Flowers: We obviously recognise
that we do have a problem in actually policing the sites on the
ground. That is why we look to other people to help us, such as
the police, and to see if they can use the Road Traffic Act legislation
as well in certain cases.
Q13 Sue Doughty: In your evidence
you point to some successful prosecutions, but the numbers are
relatively small in comparison to the numbers of offences reported.
What determines whether or not you are going to take a case forward
to prosecution?
Mr Fox: Obviously, as a prosecuting
authority we take our role very seriously. In that, we follow
the Code for Crown Prosecutors, and there are two clear tests
within there. There is the evidential test: Do we have the correct
level of evidence to take the matter to court? and there is the
public interest test: Should we be taking this to court? Whilst
we do not always take a prosecution, so far those cases which
have arisen, those seven prosecutions, are cases which met the
test and ended up in court. We have other mechanisms to deal with
enforcement issues as well, such as cautions and warning letters.
With cautions, we follow the Home Office guidelines.
Q14 Sue Doughty: What are the barriers
you find in bringing forward a successful prosecution?
Mr Fox: I think we would perhaps
group this into two: the legislation and the nature of the offence.
In the legislation, the Police and Criminal Evidence Act, because
of the nature of the offence and how suspects are approached—we
do not arrest them—we are not at the police station, so
in fact they are not obliged to take part in the interview. Clearly,
if somebody does not cooperate, you are then having to fall back
on the evidence you have to hand in deciding whether you can take
a case forward. We have no powers to stop people and demand names
and addresses. It might seem an obvious point but, of course,
if we cannot demand names and addresses, we cannot ascertain who
the offender is, we cannot serve papers on that person. In relation
to the third-party offence under Section 28P(6), we have practicalities
in proving beyond reasonable doubt that a person intentionally
or recklessly damaged the site or that they in fact disturbed
a species that was present, and in fact we have to show that they
knew they were in an SSSI when they committed that act. So there
are three key points there. In relation to where the offences
take place—and we have touched on this before—often
these things happen in remote locations, in anti-social hours;
there may be a lack of witnesses or in fact a reluctance for witnesses
to give evidence. So I think that is a key point. In relation
to the third parties, we have practicalities with policing really.
Sometimes the criminal activities are ongoing over large areas,
large upland sites, so again we need to cooperate with others
to address those issues. I think that would possibly be the main
points there.
Dr Tew: In terms of success, we
of course want to see the prosecution work, and we want to see
the court take substantial action because we want fines to act
as a deterrent, but in fact the main one for us is that restoration
orders are made, so that the site is repaired as much as possible,
so that wildlife is restored. The overall thing I would like to
add is that a prosecution is in itself a failure because a prosecution
in itself means that sites have been damaged. We would rather
not see any prosecutions. We would rather see no one damaging
these sites, but where damage is occurring we believe we are firm
but fair regulators.
Q15 Sue Doughty: Going on to what
happens when you have a successful prosecution—and you have
touched on restoration orders—when you are pushing for a
restoration order, do you actually take into account the offender's
ability to do the job, whether they are able to afford it or have
the wherewithal in other ways to make good that damage personally?
How far does that come into account?
Ms Flowers: Just to cite one example,
in the Sutton Lane prosecution case, because of the management
that was required to reinstate the grassland, we felt that needed
to be carried out by a specialist contractor with supervision
from ourselves. That was written into the restoration order that
was granted by the court. In some cases, it may well be that the
site is simply left alone by the owners and in other cases it
may well be, as I have described, that it requires appropriate
management by specialist contractors.
Dr Tew: Of course, under caution
people can agree to accept a caution and agree to restore the
site. That is an effective way of dealing with the issue that
may not involve prosecution.
Q16 Sue Doughty: If in fact you do
get a conviction and restoration is not what is going to happen
here, are you satisfied about the level of punishment? Do you
think it is really based on the person's ability to pay, that
it is sufficiently punitive, that it takes into account the impact
of that offence on the habitat or species?
Mr Fox: With the cases we have
had to date, certainly under the CROW Act we have been satisfied
with the level of penalty. We have also included the penalties
in the annex to our evidence. The courts have taken the matter
seriously and they have dealt with it in a robust way.
Q17 Sue Doughty: Looking at the situation,
if you have robust penalties and you are reasonably happy about
restoration, we then go on to re-offenders. Do you have any measures
yourselves about prevention of re-offending? You were talking
about a failure if these things come to court because the damage
has taken place in the first place, do you set targets? Do you
know how many people re-offend? Do you have any follow-up to stop
re-offending?
Dr Tew: The issue on these wildlife
sites is that the management of the site is going to depend on
the owner or occupier or land manager. It is a very strong emphasis
for us in getting a good relationship with that owner or occupier.
We do not want to have to keep going back, constantly bringing
enforcement actions. We will of course go out of our way to make
sure that a good relationship is maintained.
Mr Fox: It is quite difficult
to measure how effective deterrents are. In our cases, we do obviously
keep a record of all the incidents reported to us, we keep a record
of the prosecutions taken, and we can take those factors into
account when we address issues again if they arrive on sites.
Sometimes there are cases where there has been a piecemeal technical
infringement of the legislation. We start off by dealing with
things with warning letters and if the damage becomes at such
a level that further enforcement action is taken, we then look
at the next level up of action which might actually be the prosecution
route. In terms of figures, we would not have figures as such,
but we would know if somebody did re-offend on site.
Q18 Sue Doughty: Then we have the
situation when relationships break down altogether; in other words,
you have done your best with the owner to sort it all out but
you do have the powers of compulsory purchase in the case of an
SSSI which is at risk of further damage. How often do you have
to use these powers?
Dr Tew: Compulsory purchase power
has been used once since 1949. That was in 1979 and it concerned
a large national nature reserve on the river with a small piece
of land in the middle of it and no one knew who owned it. Eventually,
after a great deal of digging around, it was compulsorily purchased,
and I do not think they ever did find out who owned it. That gives
an indication, I think. Never say never, but it is very, very
rarely used. It raises a question of whether it is a useful tool.
We believe it is, however, because it certainly focuses the mind
of the people we are talking to. If they are aware the powers
are there, it gives you that very severe backstop that you might
need. But for us it is absolutely a last resort.
Q19 Chairman: Do you threaten it
quite often?
Dr Tew: We point out that the
powers are there in the legislation. I do not think English Nature
would ever threaten anyone.
Mr Fox: Obviously since the strengthening
of the provisions brought in by CROW, we now have a range of mechanisms
that we did not have before to address issues on site, so we have
broader prosecuting powers, management schemes and management
notices which are there now to address neglected sites. Management
notices come with an offence of failing to comply with that notice,
so there are steps now that we can take without actually going
down the CPO route.
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