House of Commons - Environmental Audit

Select Committee on Environmental Audit Twelfth Report

POWERS AND RESOURCES

34. There is a number of bodies who have enforcement powers under current wildlife legislation, including the Police, HM Customs, the Environment Agency, local authorities, English Nature, the Countryside Council for Wales and RSPB. There is also a large number of voluntary bodies working in this field, many of whom have contributed to this inquiry, but who have no enforcement powers. They depend heavily on those agencies and organisations who do have enforcement powers to help them detect, identify and then take action against those committing the crime. Failure to either fully utilise those powers, or to resource the enforcement activity sufficiently, can have an immediate and negative impact on the rest of the wildlife community and their ability to tackle the wildlife crimes in their areas.

Powers

35. A distinction must be made between those powers which are deemed insufficient and which must be strengthened, and those powers which are considered to be sufficient but not used to maximum effect by those that hold them. A number of memoranda focused on the need to either strengthen certain existing powers or to create additional ones. English Nature, in particular, stressed the need for additional powers, similar to those held by the Environment Agency and Local Planning Authorities, which would allow it better to police and protect the land for which it is responsible. It lists these as the power to,

stop people and vehicles within SSSIs and request names and addresses;

require restoration following damage and disturbance to a SSSI, at the offenders own cost, when it is not in the public interest to bring a prosecution;

prevent activities being carried out which are in contravention of the legislation;

demand statements to enable enforcement action to be taken and investigations to take place;

require information as to those persons having an interest in SSSI land.[49]

We would support a review of the powers available to English Nature, and, at the very least, feel that it is vital that English Nature's officers should be able to stop and check vehicles they find on SSSI land, for example. However, we are aware that DEFRA has recently announced the creation of an integrated agency, intended to help deliver its rural strategy and which will incorporate English Nature.[50] It is unclear at this early stage what this will mean, both for English Nature and its role in tackling wildlife crime. However, the move to an integrated agency provides an excellent opportunity for an essential review of the role, responsibilities and powers that at the moment sit with English Nature.

36. The way in which local authorities elect to interpret and use the powers and responsibilities afforded them by current legislation is troubling. In written evidence, The Association of Local Government Ecologists (ALGE), said,

Local authorities have the power to instigate proceedings against anyone found to be committing an offence under Part 1 of the Wildlife and Countryside Act 1981, which should make them a major contributor to the fight against wildlife crime, but ALGE report that many authorities are not aware of these powers, and see wildlife legislation as being "peripheral to core local authority functions".[52] Indeed, in some cases the Local Authorities are themselves committing wildlife crimes, whether intentionally or not, simply by conducting their everyday business. In written evidence, ALGE provided an example where the commonplace and necessary act of mowing a roadside verge by highway maintenance staff killed five protected species of reptiles.[53] In oral evidence session, Mike Oxford, a Project Officer with ALGE, also referred to several cases where local authority ponds containing Great Crested Newts had been pumped out. [54] The rate of disappearance of ponds from our countryside is a matter for concern and we would urge DEFRA to work with the ODPM and local authorities to halt this decline and, if necessary, provide adequate protection through new legislation. There is, of course, a balance to be struck as essential maintenance work still has to be carried out. However, we believe that Local Authorities have a duty to ensure that any work they undertake is carried out only after due care and consideration has been given both to the possible impact on local flora and fauna, and in full compliance with their own legal responsibilities.

37. Local planning authorities also have responsibilities with regard to any development in their region, for example, under the Town and Country Planning Act 1990 and the Habitats Directive. Local planning authorities are required to consider planning applications for development and have performance targets for determining such applications which amount to eight weeks for most applications and sixteen weeks where an Environmental Impact Assessment is necessary. These targets were set in 1995 in the General Development Planning Order and the Office of the Deputy Prime Minister (ODPM) have set additional targets under the Best Value Process. These additional targets require local authorities to determine 60% of major applications within 13 weeks, 65% of minor applications within 8 weeks and 80% of other applications within 8 weeks. Furthermore, the Planning Policy Guidance No.9 Nature Conservation (paragraph 47) states that:

"The presence of a protected species is a material consideration when a local planning authority is considering a development proposal which, if carried out, would be likely to result in harm to the species or its habitat".

The Guidance also goes on to say that consideration should be given to attaching planning conditions or obligations on the developer to ensure the protection of species. We believe this presents local planning authorities with a fundamental difficulty between, on the one hand, their responsibilities with regard to the protection of species and habitat when considering any planning applications, and, on the other, the amount of time and resources with which they have to consider those planning applications. Whilst we can appreciate the value of setting targets for the consideration of planning applications, they should not be so unrealistic as to rule out the possibility of proper consideration of all the pertinent facts, including environmental impact. The targets set for local authorities are now almost ten years old. The ODPM, in conjunction with local planning authorities, should revisit these targets and ensure that they allow sufficient time for all necessary checks to be made.

38. The requirement to consider the environmental impact of a proposed development assumes a level of commitment and, indeed, competence on the part of the local authority concerned which we believe is missing in many authorities. ALGE report that there is "widespread confusion and discrepancy over the amount of advice that they [local planning authorities] should give applicants about the possible presence of protected species".[55] This is hardly surprising as we understand from ALGE that only around 35% of local authorities in England actually have a professional ecologist on staff and most are resourced only to deal with the most high profile cases.[56] We have already referred to the damage caused to both species and their habitats by developers and there is no doubt that some elements within the building and construction industry have capitalised on lax and ineffective processes and procedures in local planning authorities. Not only is the planning application process itself often weak, but there is also every possibility that, even where environmental conditions have been made part of the planning consent, there is only a small chance that the development will be properly monitored for compliance. The lack of resources to enable local authorities to fulfil their own statutory duties and responsibilities, in terms of conservation, preservation, planning and in tackling wildlife crime reflects at best a woeful ignorance on the part of those in charge and, at worst, neglect or absolute disdain. Local authorities still have a considerable amount of work to do to educate and train their own workforce on their roles and responsibilities.

39. There would also seem to be a need to review and strengthen certain police powers. In their written evidence ACPO point to the benefits gained from the Countryside and Rights of Way Act 2000 and the Criminal Justice Act 2003, which they say have "done much to ensure that Police officers have powers to effectively enforce the law".[57] However, we have been made aware of a pressing need for legislative amendment before certain of the powers contained within the Criminal Justice Act 2003 can be used by the police. A section was added to the Criminal Justice Act 2003 in order to bring the Control of Trade in Endangered Species (Enforcement) Regulations (COTES) more in line with the Customs and Excise Management Act (CEMA) 1979. COTES is the means by which the Police can implement the EU Wildlife Trade Regulations in the UK. This new section not only increases the maximum custodial sentence for offences under COTES from two to five years but it also makes such offences arrestable under the Police and Criminal Evidence Act (PACE). It gives the Police additional powers to enter and search without a warrant properties owned or occupied by the arrested person. It also grants the Police the power to take fingerprints, obtain DNA samples and compel suspects to be interviewed. These are all essential tools in an investigation of any crime but, unfortunately, they are not currently available to the Police because COTES needs to be revised means of secondary legislation to incorporate these new powers. In oral evidence DEFRA conceded that this work was still outstanding but that they hoped to have something in the public domain within "the next two or three months".[58] We urge DEFRA to ensure that no further time is lost and that the necessary amendments are made to COTES to allow the Police to deploy the additional powers provided by the Criminal Justice Act 2003.

Resources

40. Many of those organisations who provided evidence focused on the resources of some of their key partners, most significantly, the Police Service, HM Customs and Local Authorities. It is clear to us that resources in some areas are neither adequate nor, in some cases, properly targeted.

41. The Police Forces of England and Wales have primary responsibility for enforcing wildlife legislation and are the lead agency for investigating offences relating to species. The message from ACPO with regard to the adequacy of Police resource levels for dealing with wildlife crime, and the priority attached to such crime was stark and unexpected:

"Chief Constables undoubtedly have sufficient resources to deal with wildlife crime should we decide that such matters should be resourced. However, we receive no messages from government indicating that these matters should have resources directed towards it. Few Chief constables are therefore prepared to dedicate resources toward areas they are not asked to concentrate on." [

In fact, most police forces, if they make any attempt to tackle wildlife crime, do so through what ACPO refer to as a "network of divisional wildlife officers carrying that responsibility in addition to their other roles".[60] ACPO report that seventeen forces have full-time wildlife crime officers but that the appointment of these officers is frequently at the expense of other areas of the force. Making a business case for such posts is made more difficult without sufficient evidence of crimes being committed because there are no central records, no real national or local statistics to make the case. Once again the absence of any clear, national view of the scale of wildlife crime has a direct impact on the ability of those charged with enforcing current legislation. If the scale and nature of the problem is not known it is unlikely that the correct level of resources can ever be allocated to deal with it.

42. Even where there are wildlife crime officers ACPO admit that their job is not made easy by the prevailing negative attitude towards wildlife crime:

The consequences of this attitude are made all too obvious in other memoranda we received. The lack of wildlife crime officers was raised by TRAFFIC, who describe the police response to wildlife crime as "extremely varied and patchy in the UK".[62] They too point to a lack of support and encouragement for wildlife crime officers and call for their numbers to be increased and for them to be given more time and resources. In their written evidence The National Gamekeepers' Organisation referred to poaching as "the biggest aspect of wildlife crime" and said that it was "widespread and 90% of gamekeepers have been affected by it at some time or other". And yet they report that this is considered virtually unpoliceable by some rural police forces, despite many gamekeepers identifying clear patterns of abuse by poachers which could be investigated by police, who have a responsibility to do so under the Game Acts.[63] We believe that there must be at least one full-time Wildlife Crime Officer for each Police force. These officers must be fully trained in intelligence gathering .

43. Furthermore, we believe there is enormous scope for Police Forces to combine their resources. There is no doubt that even if wildlife crime is given a higher priority by the Home Office, Police Forces will not have unlimited resources with which to deal with such crimes. By moving to a more intelligence led approach, with wildlife crime officers and other enforcement officers feeding properly analysed intelligence into a central database at the NWCIU, it should be easier to identify wildlife crime hotspots and then really target what might only need to be very limited resources at solving the problem. We would encourage Police Forces and those with enforcement responsibilities to consider developing Memoranda of Understanding (MOUs) to enable them to work together for one off operations, identified through the use of intelligence, which will allow them to better target their limited resources.

44. The negative attitude to wildlife crime in so many police forces calls into question the value of the work currently being undertaken by the NWCIU. DEFRA, in supplementary evidence to the Committee, told us that the NWCIU was proactive in intelligence gathering and that they were able to develop "actionable intelligence packages for law enforcers in the UK and beyond". They go on to list one of the Unit's main achievements as being the establishment and maintenance of productive working relationships with, among others, the police service.[64] The apparent failure of the Police Service to take advantage of the NWCIUs work must be addressed by the Home Office and DEFRA. It is a nonsense to have the NWCIU expending time and resources on developing intelligence packages for police forces who have no intention of devoting any real resources to the crime themselves. This only serves to emphasise the need for wildlife crime to be re-classified as recordable so that police forces feel compelled to address these crimes.

45. However, there are some police forces which are attempting to tackle wildlife crime and which are willing and able to devote resources to this work. North and South Wales Police have successfully seconded officers to work with the Countryside Council for Wales. This working partnership has allowed for the exchange of expertise and ideas to the benefit of not only of North Wales Police and the Countryside Council for Wales, but also for the fight against wildlife crime. This should be seen as an example of best practice to be duplicated wherever possible.

46. HM Customs and Excise enforce import and export controls in relation to traffic to and from third countries in those species covered by EU Regulation 338/97. In their written evidence to the Committee HM Customs said that they "apply checks on a risk-assessed and targeted basis in relation to all prohibitions and restrictions that we enforce at the frontier".[65] In effect, and this was confirmed by them in evidence before us, this means that they do not attend at UK ports and airports for all arriving ships, aircraft or passengers but rely on intelligence to determine where they should place their resources at any given time. This, they argue, allows them to be more flexible and to keep the opposition guessing. In a move away from having a designated CITES Wildlife and Endangered Species Officer (CWESO) in each Customs region, the majority of the resources are focused in their Customs Intelligence and Research Team (CIRT) and at their specialist CITES Enforcement Team based at Heathrow Airport. The Enforcement Team is considered by many to be a centre of excellence and wins praise from others who have contributed to this inquiry. Whilst in their written evidence TRAFFIC applauded H.M Customs for its support of the Team and acknowledges the Team's "huge accumulated knowledge", they also expressed some concern at the reduction in the number of CWESOs. [66] In evidence session HM Customs acknowledged this disquiet amongst some of its PAW partners, accepting that they could have done more to bring them on-side with the changes to their working practices.[67] Whilst we accept that intelligence is the way forward if there is to be any hope of matching resources to activity, we are concerned that the move to an intelligence led approach is not being sufficiently well monitored to demonstrate the benefits of such a move. We would, therefore, like to see a much more robust method of measuring outcomes being devised by HM Customs.

47. We remain deeply concerned about the level of resourcing in DEFRA, which will bear the brunt of much of the work involved in amending legislation and increasing powers in so many areas. A lack of team members and the scarcity of sufficient parliamentary time have already been cited as barriers to progress by DEFRA.[68] We are concerned that DEFRA do not have sufficient resources allocated to the proposed review of Part 1 of the Wildlife and Countryside Act 1981, which is due to commence with the publication of a consultation document later this year (2004). As a result, there is a risk that it will extend far beyond a timescale that would be reasonably acceptable to those who depend on this legislation. DEFRA must review the resources assigned to the review and also look beyond the review to securing sufficient Parliamentary time to take through the necessary amendments.

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