THE LEGAL FRAMEWORK
27. Part 1 of the Wildlife and Countryside Act 1981
is the principal legislation for the protection and conservation
of wildlife and their habitats. There are also a number of related
regulations and legislation, including the Control of Trade in
Endangered Species (Enforcement) Regulations (COTES) 1997, the
Convention on International Trade in Endangered Species of Wild
Flora and Fauna (CITES) and the Countryside and Rights of Way
(CRoW) Act 2000, which amended the 1981 Act in part. There are
many more, some of which are so outdated as to be almost obsolete
or are in other ways outmoded. Indeed, in their evidence the
Environment Agency drew attention to the powers currently held
by Water Bailiffs.[33]
Whilst the Salmon and Fisheries Act 1975 gives the Water Bailiff
the same powers and duties as those of a police officer, they
can only use the power of arrest, for example, at night. We understand
that the Agency has been working with DEFRA to remove the time
restrictions on the power of arrest so that it can be used 24hrs
a day. This, and other amendments they are proposing, require
changes to legislation for which parliamentary time is needed.
We support the work of the Environment Agency and DEFRA seeking
long overdue amendments to current legislation which will enable
the Agency to police waterways far more effectively. We urge
the Government to ensure that sufficient parliamentary time is
made available for these amendments.
28. Most of those who contributed to this inquiry
said that they were broadly content that current legislation was
generally robust enough to be effective but almost all took the
opportunity to highlight some notable exceptions where they said
they felt the legislation needed to be amended or re-interpreted.
The absence of a commonly accepted legal definition of wildlife
crime bears testimony to the need for a fundamental review of
some parts of existing legislation and, equally importantly, highlights
the need for a rethink about how it is interpreted. We referred
earlier to a general confusion about what constitutes a wildlife
crime and, indeed, what many of the terms used in current legislation
actually mean. In oral evidence the Countryside Council for Wales
referred to a lack of common understanding between themselves,
English Nature and Scottish National Heritage about such basic
phrases as "in the wild", "to disturb" or
"to take".[34]
Similarly, in their written evidence ACPO highlight not only
the lack of common understanding of a term but also what it describes
as the "lack of clarity on occasions as to what legislators
are seeking to protect".[35]
They go on to say,
"…damage to bat roosts is an offence
under both the Wildlife and Countryside Act and the Conservation
(Natural Habitats) Regulations. However, the term "roost"
is not defined and there is no guidance as to when a place previously
occupied by bats loses its legal protection."[36]
We believe it is essential that DEFRA, again working
through PAW, and in conjunction with key partners across government,
should establish clear and agreed definitions for those phrases
in current legislation whose lack of clarity hinders effective
policing and enforcement action.
29. Many of those who provided evidence to the Sub-committee
eagerly anticipated the promised DEFRA review of Part 1 of the
Wildlife and Countryside Act (WCA) 1981, seeing it as their best
opportunity to influence and effect change. The number and
variety of the suggested amendments to both the Wildlife and Countryside
Act 1981, and other pieces of current legislation and regulation,
prohibits us from referring to all of them in this report but
we expect DEFRA to use the evidence provided to this inquiry in
their review. The Wildlife and Countryside Act 1981 was
amended, in part, by the Countryside and Rights of Way (CRoW)
Act 2000 and, on the whole, these amendments have been welcomed.
The Countryside Council for Wales, for example, told us that
the CRoW Act had, "brought a massive increase in the protection
afforded to SSSIs" and English Nature also welcomed the increased
powers they have under CRoW. [37]
30. However, in their written evidence the Wildlife
Trust draws attention to particular difficulties arising from
some of the CRoW amendments which have, in effect, created inequalities
within the 1981 Act.
"The Countryside and Rights of Way Act 2000
added the term "reckless" to those sub-sections of
the Wildlife and Countryside Act 1981 dealing with the intentional
disturbance of breeding birds and other animals occupying resting
places, namely sub-sections 1(5) and 9(4) [….] There is now
a major inconsistency in the legislation whereby the term "reckless"
is added to the lesser offences of disturbance but not to the
potentially more important offences of killing, taking or destruction
of birds and animals and not at all to any offences involving
wild plants. This means that it is hard to prosecute for this
type of wildlife crime."[38]
Effectively, this means that for the more serious
offences intent has to be proven. This is clearly a nonsense
as it provides a legal loophole through which very serious offences
can often go unpunished. The Wildlife Trust refers to court cases
brought by RSPB, which relate to incidents where protected bird
species have been shot and killed, being lost because the defendant
has claimed to have misidentified the bird in question as a non-protected
species.[39] This legal
loophole must be closed. DEFRA should re-examine all those
sections of Part 1 of the Wildlife and Countryside Act 1981 which
currently require intent to be proven and consider whether the
word "reckless" can be applied when the Act is amended.
31. The Wildlife and Countryside Act 1981 creates
a further problem in relation to protected species killed or injured
"incidentally" during the course of an otherwise lawful
operation. Section 10 (3)(c) of the Act states that a person
shall not be guilty of an offence "if he shows that the
act was the incidental result of a lawful operation and could
not reasonably have been avoided". In their written evidence
the Wildlife Trust highlighted the bycatch of small cetaceans,
turtles and sharks in fisheries and the destruction of species
such as the pink sea fan by "rockhopper trawls".[40]
The primary activities in these cases are entirely legal but
the consequences can be dire for what are, in fact, protected
species. Clearly there is a need to be practical and realistic
and accept that sometimes damage to species or habitat is regrettably
unavoidable and that the potential to cause harm is outweighed
by the need for the lawful operation. However, the key here is
whether efforts have been made to avoid, or at the very least
limit, damage in any way and it is here that we believe amendment
may be necessary. In oral evidence session DEFRA officials admitted
that this was a difficult issue to which, at the moment, they
have no solution.[41]
They are, we were told, "banking ideas" and would be
producing a consultation document, prior to developing ideas for
future legislation.[42]
We would encourage DEFRA to include consideration of the issue
of incidental killing or injury in the course of a lawful operation
when it reviews Part 1 of the Wildlife and Countryside Act 1981.
32. The plethora of Acts, Regulations and EU Directives,
some of which should have been updated or revised long before
now, serve only to over complicate what is already a very complex
area of work. This is particularly evident when considering the
legislation which governs the marine environment. Under Section
36 of the Wildlife and Countryside Act 1981 statutory Marine Nature
Reserves (MNR) can be established to conserve marine flora and
fauna and geological and physiographical features of interest.
However, these provisions are entirely voluntary and depend largely
on the co-operation of the relevant interested parties at the
local level. We were advised by WWF-UK that there have been no
prosecutions for offences against marine wildlife since the Act
was passed in 1981.[43]
WWF-UK also highlighted the very complex and confusing issue
of marine environment legislation in oral evidence session,
"In terms of the marine environment, we
have a myriad of layers of national legislation, European legislation
and international legislation. This very complicated web is impossible
for people to penetrate, both people who want to get consents
and permissions and people who want to protect the marine environment.
Added to that, you have a situation where the protection of our
nationally important sites is all done voluntarily at the moment.
So if you have a number of stakeholders involved in trying to
protect areas, whether they are fishery, industry, whatever, if
that voluntary co-operation breaks down, you very often do not
have any protection for the site."[44]
We understand that WWF-UK are working with DEFRA
in an attempt to bring clarity and purpose to the legislation
governing the marine environment and have even gone so far as
to prepare their own draft Bill.[45]
We look forward to seeing the draft UK Marine Bill currently
being prepared by WWF-UK and would encourage DEFRA to work closely
with WWF-UK on fine-tuning the draft and securing parliamentary
time to take the Bill forward.
33. Whilst we do not intend to repeat at length the
findings of our earlier inquiry, Environmental Crime and the Courts,
it is clear that in wildlife crime terms many of the problems
we highlighted in that report are repeated here.[46]
There is a lack of case law and precedent, a problem highlighted
by ACPO in their written evidence, where they said,
"The small number of cases being dealt with
by the courts has resulted in few stated cases and as a consequence
many of the provisions in both acts and regulations are not understood."[47]
In far too many wildlife crime cases, the sentences
handed down do not bear any relation either to the damage caused
or the profit gained. This is particularly pertinent to the building
and construction industry and is highlighted by WWF-UK in their
written evidence when they refer to a case cited by the Bat Conservation
Trust and RSPB in which a property developer, having pleaded guilty
to damaging a roost site for Natterer's bats, was fined just £500
and ordered to pay £100 in costs.[48]
Not only did this completely fail to recognise the cost of the
damage caused, or take into account either the overall expenditure
on the development and the considerable profit to be gained, but
it also provided absolutely no deterrent to anyone else considering
flouting wildlife legislation or regulations. This failure
to recognise the true impact of a wildlife crime, and then apply
a punishment commensurate with that impact, simply reinforces
the notion that wildlife crime is "low risk and high reward"
for offenders.
33 Q71, Mr Williams Back
34
Q175 Back
35
Ev39 Back
36
Ev39, 3.2 Back
37
Ev59, 2.5 Back
38
Ev163 ,2.1 Back
39
Ev164 Back
40
Ev164 Back
41
Q259 Back
42
Q260 Back
43
Ev123 Back
44
Q351 Back
45
see also Environment, Food and Rural Affairs Committee, Sixth
Report of Session 2003-04, The Marine Environment Back
46
HC 126 Back
47
Ev39, 3.2 Back
48
Ev126 Back
|
