Examination of Witnesses (Questions 260
- 277)
THURSDAY 8 JULY 2004
MR MARTIN
BRASHER, MR
MARTIN CAPSTICK
AND MR
NICK P WILLIAMS
Q260 Chairman: Are you giving active
consideration to this little legal knot, though?
Mr Capstick: Not now, at the moment.
We are producing a consultation document, and, clearly, suggestions
that are put forward in response to that we will want to explore,
with a view to developing proposals for specific legislative changes.
We are banking ideas at the moment, and as far as people are giving
us ideas, those are the ones that we will take into account.
Q261 Sue Doughty: Are you starting
from the premise that you need to provide protection in these
cases, and seeing how you can do it, or are you just tinkering
with words in the hopes that you will get it right?
Mr Capstick: No, we are hoping
we will get it right—if I can start off with that. It is
a complicated area where, in particular, there are also some variations
between what is in the Wildlife & Countryside Act, and the
Habitats Directive, which came later, and what is in the Habitat
Regulations which implement the Habitats Directive; so trying
to tidy things up a bit and make things more coherent is something
that a number of people have again called for. Issues of how strong
your defence of intent and recklessness is, and how well you should
have known what the implications of your actions were, are going
to be part of that. I must admit that today I do not have a solution
and a form of wording to that. Everybody will be looking at the
overall result of the legislation, rather than saying, "Defra
found some quite nice wording, which is very elegant but did not
work". I know that we will not score any Brownie points for
that.
Q262 Sue Doughty: That is much appreciated.
A number of the memoranda we also received referred to the Defra
review of COTES, and anticipate revised regulations. What is the
state of play on that one?
Mr Williams: We have some very
clear ideas of how we are going to go about that. We issued a
consultation document, which concluded last year, and part of
that document was generated through liaison through PAW, so we
believe that the provisions we are planning are very much targeted
and focused on effective enforcement. In that initial consultation
period, though, we identified two areas which required primary
legislation, regarding raising the penalties to five years, and
the powers of arrest that follow from that. Because our secondary
legislation could not include these provisions, we managed to
work with our Home Office colleagues to incorporate them within
the Criminal Justice Act, which came in late last year. We moved
a stage ahead by securing primary legislation, which has now given
us the facility to provide regulations that will give the opportunity
for up to five-year penalties, and then include the powers of
arrest. We are planning to publish these proposals for the regulation
later this year.
Q263 Sue Doughty: You have the powers
in the Criminal Justice Act. You need to have the revisions to
COTES, so is the delay just getting the consultation in place
and then going forward with it, or are there any other reasons
for delays or things that would stop this going forward and giving
the police the necessary powers?
Mr Williams: There are no other
delays. The delays have been that we are a small team. We pushed
ahead with the Criminal Justice Act proposals and have now got
those in place. We are now driving ahead with the regulation.
As I say, it is in the next two or three months that we will have
something in the public domain.
Q264 Sue Doughty: You said in your
evidence that you are striving to ensure better compliance with
wildlife legislation. What do you see currently are the barriers
to compliance?
Mr Brasher: We had better speak
separately as there are two sides to that. There is a lack of
information, and as I mentioned I have a few examples of our communication
efforts. I have a lot of them here, and I am quite happy to leave
them with you, but it is the sort of thing we are trying to do
to get across to the target audiences, where there may be offences
and things may need to be spelled out. In some cases we are dealing
with organised crime, which is extremely difficult to identify
and come to terms with; it is very sophisticated and we have to
try to make sure that our enforcement and identification mechanisms
are sophisticated as well.
Q265 Sue Doughty: Is there a resource
issue here?
Mr Brasher: There is always more
that can be done. We have had a programme of DNA research, which
Nick will tell you more about, which has been funded by Defra.
Mr Williams: Within the Partnership
for Action Against Wildlife Crime we have identified a number
of areas where we are trying to raise awareness. PAW, rather than
treating enforcement within the traditional definition of investigation,
prosecution and penalties, has stepped back and focused on informed
policy-making, to make sure that we provide workable legislation
that can be enforced effectively, and then to raise awareness
and publicise those controls so that we deliver a holistic approach.
One of the things we identified in PAW some time ago was that
the forensic techniques that the police are using in other crimes
are not necessarily applied across to wildlife crime areas. Defra
has financed three separate pieces of research, which has brought
together existing human-related DNA research, to bring it up to
speed so that it can be used as economically and effectively as
possible in wildlife crime investigations.
Mr Brasher: We also need to be
sure that the penalties deter criminals. The increased sentences
we talked about earlier are helpful in that regard. We believe
it is important that the available sentences are used, and we
have a dialogue with the Magistrates' Association about that.
There was a toolkit issued about 18 months ago for magistrates,
and the Magistrates' Association representatives came to our annual
PAW seminar to discuss this, in February last year. On the CITES
side, we need to keep in touch with developments internationally
because there is a potential problem that if criminals are concerned
that the UK becomes too tough to access, then they will go elsewhere
and try to bring things in illegally through that route into the
community and thereafter they would be able to be traded within
the community. That is a concern. I went to a seminar on this
in Sweden last month. Firstly, it was useful as an exchange of
experience, and secondly we have agreed to set up an Internet
information network, which is already working and is drawing attention
to sentences being given in other parts of Europe. We have been
notified of a five-year sentence for a CITES offence in the Czech
Republic; and other snippets are coming through. We need to keep
in touch with the international situation.
Q266 Chairman: It is amazing what
an innocent little question about resources can produce by way
of an answer!
Mr Capstick: Would it be helpful
for me to add two quick points on domestic enforcement? There
are probably a couple of things to highlight. The first would
be a concern over crime which has a particular impact on rare
and struggling species, which is why we particularly welcomed
for example Operation Artemis, which was launched through the
Partnership for Action Against Wildlife Crime to tackle crime
against hen harriers, which is a species that is particularly
struggling. The other thing would be inadvertent crime against
species, which you touched on in the previous discussion. We are
having some success in raising awareness. The number of people
who, when producing developments now, are applying for a licence
from Defra as part of the process is increasing very significantly.
I do not think that is because there is a lot more development;
I think it is because there is growing awareness. Obviously, as
we all know, we are not there yet.
Q267 Paul Flynn: You state in your
evidence that the EU regulations, as set out in COTES, are strictly
enforced by Police and Customs. How do you know that?
Mr Williams: There is quite a
lot of evidence—Customs will be providing you with further
evidence shortly—about the number of seizures that they
make.
Q268 Paul Flynn: That is a notoriously
unreliable way of measuring whether things are strictly controlled
by Customs. Customs will give evidence of seizures of drugs but
drugs flood in in an uncontrolled way. How are you monitoring
this? Seizures are no measure at all; X amount is seized, but
twenty times X amount eventually comes in. I am not telling you
anything that is not new. Have you any way of monitoring this
that would make sense and allow you to make judgments as you did
in your paper?
Mr Williams: We collect information
through issuing some 20,000 or 30,000 licences a year of CITES
import and export permits, and we monitor the information we are
asked to provide to the enforcement authorities that are following
up potential offences that come to light or are presented to them.
We provide information on that. Equally, on the national side,
with the bird registration system we provide information on a
daily basis to the enforcement authorities that secures whether
or not something is a potential offence.
Q269 Paul Flynn: What about police?
We have had evidence to the effect that the ability of police
forces to deal with wildlife crime is certainly not consistent
across the country; there is a very uneven pattern. How do you
monitor that, and is it strictly controlled? Is it strictly controlled
in a small number of areas or universally?
Mr Williams: It is fair to say
that where you have a police force with a full-time, fully-trained
police wildlife crime officer, and you compare that with a police
force that has a part-time or just a nominal officer who is doing
it effectively in his spare time, then inevitably you will have
a different response if an offence comes to light.
Q270 Paul Flynn: You are saying that
as far as the police, the enforcer, is giving you evidence, and
the Customs, and on the basis of that you know little else, and
on the basis of a very uneven pattern of police activity. Do you
think that that comment is justified? You are saying that they
are strictly enforced by Customs and Police. Is that entirely
accurate, do you think, on reflection?
Mr Brasher: It is very difficult
to answer that in those terms. I understand your concern, but
we cannot demonstrate to you that that is the case.
Q271 Paul Flynn: There is not any
system of monitoring other than the information you get from the
parties with an interest in possibly exaggerating the effect of
their activities, which would be both police and Customs.
Mr Williams: That is true, but
we also get information from the non-government organisations
some of which do not have that interest at all; in fact their
interest may be completely the opposite, in trying to demonstrate
that it has not been properly enforced or there should be more
resources or more time put into it.
Q272 Paul Flynn: You also say in
your evidence that the illegal trade in wildlife can be lucrative,
as is well known, and you provide examples that illustrate that
the high price of the commodity, as you describe it, justifies
the risk of criminality. Does this not mean that the legislation
and the enforcement procedure that you are supporting is just
not robust enough to offer an effective deterrent? If that is
so, what do we do about it?
Mr Williams: With the Countryside
& Rights of Way Act amendment which we made to the national
legislation that brought in custodial sentences, that was a major
step forward. We have real evidence that some individuals who
were convicted on more than one occasion, once they had been prosecuted
or seen their friends go inside for a few months, have now contacted
the enforcement authorities and said "I am going to give
you some information". We think that a real message has gone
out on the revised national legislation. Now that we have secured
the facility for five-year penalties in the COTES Regulations,
the international endangered species offences, when we get that
into place we believe that that will be a major deterrent.
Q273 Chairman: How many people have
gone inside, as you put it, for this type of activity?
Mr Williams: On the egg-collecting
side, there are some figures that the RSPB presented. I think
there were four or five individuals who have had custodial sentences
for that type of offence.
Mr Brasher: Some examples were
given at the back of the Customs memorandum. In one particular
case a sentence of six and a half years was given, and there was
another one of two and a half years, which was reduced to 18 months
on appeal. I do not think we suggest for a second that there are
a very large number of these, but it is important to us that from
time to time deterrent sentences are given. With the best will
in the world to the individual concerned, we were delighted when
the six and a half year sentence was given.
Q274 Paul Flynn: In your evidence
you refer to a code of practice for the horticultural sector,
which you are working on with other stakeholders. When do you
expect to see this published? Will it have any teeth to it? How
will you persuade people to adopt it?
Mr Capstick: I lead on that as
part of tackling non-native species. At the moment, we are still
very much in the early stages of that. As chance would have it,
we have set up a working group, which includes representatives
from the Horticultural Trades' Association, the Royal Horticultural
Society, the Garden Centres Association, the Ornamental and Aquatic
Trade Association, Gardening Which?, Kew, Plant Life International,
the National Trust and various people from government departments,
to try and tackle this. The second meeting of this group is due
to be held on 13 July—this was organised before we knew
the Committee was going to ask us about it. We do think that gardening
is a significant risk area for bringing non-native plants into
the country, perfectly legally but which can cause significant
damage if they are then planted in the wild or escape in some
way into the wild. Therefore, it is a very high priority. If you
are looking at prioritising your measures to tackle non-native
species, it is a very significant way of addressing it. At the
moment, I do not know quite what the code will produce. I know
you are concerned about what teeth it will have. I think a point
I would make about the code of practice, one which applies to
a lot of what we have said today, is that tackling crime is one
end of the spectrum, where our real aim is to try and encourage
good practice and a breadth of biodiversity and wildlife in this
country. Therefore, a lot of what we will be looking to do through
the code of practice will not be trying to stop people doing illegal
things; it will be trying to get people to do things which are
perfectly legal, but which we would rather they did not, because
of the potential risks attached to it. It is very much focused
on the educational and constructive end of the process rather
than tackling criminality.
Q275 Paul Flynn: We will hear about
that meeting in due course perhaps, on the 21st. There was a report
in The Times recently about the increase in bovine
TB in deer, and it quotes farmers as calling for a badger cull,
citing badgers as the principal cause of the disease spreading,
which is a familiar call from farmers. As we understand it, there
is no link that has been established between badgers and TB and
the other suggestions put forward such as the re-stocking of cattle
after Foot and Mouth. Are you worried that calls like this by
farmers and deer hunters could lead to the culling of badgers
and so on for whatever reasons they are giving, whether it is
infecting cattle or deer?
Mr Capstick: I obviously do not
have lead responsibility within Defra on TB policy, although we
liaise closely with colleagues who do work on that because the
question about badgers' involvement particularly in TB is being
trialled at the moment. I do not think that ministers will take
precipitate action, they will want to have a chance to consider
issues carefully. We do have powers under the Protection of Badgers
Act to license the taking or killing of badgers for the purpose
of disease prevention, though none have ever been issued since
the Act was established in 1992, partly because of the issue of
being able to prove that the culling of badgers would lead to
the prevention of spread of disease.
Q276 Paul Flynn: The trial was interrupted
because of foot and mouth and it will go on for some long time;
and it will be some time before we get a definitive view on whether
or not there is a link; but do you not feel a responsibility to
deal with the protection of badgers in the meantime and to emphasise
that that link has not been established? Is that something that
you are actively doing?
Mr Capstick: The Government is
constantly updating people on progress and developments, and responding
to stories of this sort, by pointing out our position and the
Government's policy. I am not sure that we do more than that at
this stage.
Q277 Paul Flynn: I am not sure that
the responses are as audible or as visible as they might be. Thank
you for answer.
Mr Capstick: I am conscious of
one or two letters that my Minister, Ben Bradshaw, has written
to the newspapers on these issues, which have been in part to
try to address these concerns.
Chairman: We are out of time, I am afraid.
We are most grateful to you. You mentioned a pack of information,
but if you could provide a bit more information about the National
Wildlife Crime Intelligence Unit, we would very much welcome that.
We were hoping to ask you about that, but have not had time. Can
you also give us a short memo on the work you are doing vis-a"-vis
e-Bay and auction sites, which we would also very much appreciate.
Thank you.
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