House of Commons - Wildlife Crime - Environmental Audit Committee

Wildlife Crime - Environmental Audit Committee Contents

3 Domestic Wildlife Crime

25. We received evidence during our inquiry covering wildlife crime in relation to a wide range of UK species. Some of those points relate to the legal framework and enforcement, which we cover in Part 4. This Part focuses on two areas where we believe that change is needed and could make a real difference: on birds of prey, where action is needed to prevent an extinction in England and where clear legislative remedies are available; and on invasive non-native species, which are a growing problem with high costs that require a more strategic response.

Birds of prey

26. Fifteen species of birds of prey[61] breed in the UK, and the Government is required to protect them all under the European Commission Birds Directive and the Wildlife and Countryside Act 1981.[62] Of those 15 species, the hen harrier and the golden eagle are included in the 'Red List' of most threatened species in Birds of Conservation Concern,[63] and the red kite, peregrine, goshawk and white-tailed eagle are also threatened by persecution.[64] There is clear public and political support for governmental action to address bird of prey persecution. In 2010, more than 210,000 people signed the Royal Society for the Protection of Birds (RSPB) bird of prey pledge, which called for an end to the illegal killing of birds of prey, and more than 160 Members of Parliament signed Early-Day Motion 654, which urged the Government to accord greater priority to addressing raptor persecution.[65] More generally, in August 2011 the Government published Biodiversity 2020: A Strategy for England's Wildlife and Ecosystem Services, which includes a commitment to end human induced-extinctions by 2020.

POSSESSION OF CARBOFURAN AND OTHER PESTICIDES

27. It has been an offence to poison birds of prey under any circumstances anywhere in the UK since the Protection of Animals Act 1911, but the practice has nevertheless continued over the past century, with a consequent effect on overall bird of prey populations. Figure 1 illustrates the consistent level of bird poisoning over the past decade and the extent to which bird poisoners used in particular the pesticide carbofuran. The statistics are drawn from the Government's Wildlife Incident Investigation Scheme, which records investigated and confirmed incidents of wild bird poisoning and which therefore covers only a fraction of the actual number of poisonings.

Figure 1. UK wild bird poisonings 2002 to 2011[66]

28. As Figure 1 demonstrates, carbofuran is currently the toxic substance most used by bird poisoners. From 2002 to 2011, there were 633 confirmed bird-poisoning incidents in the UK, of which 316 cases—50%—involved carbofuran.[67] Carbofuran, which is marketed under the trade name Furadan, is a carbamate insecticide, and its approval for use as such was withdrawn in the UK in 2001.[68] There is therefore no legal purpose for which anyone might possess carbofuran in the UK. Carbofuran is especially toxic to birds, and a single grain would kill a large bird of prey such as a golden eagle by breaking down its central nervous system.[69] Carrion-feeding raptors are especially susceptible to carbofuran poisoning, where the poison is administered via a laced bait. A gamekeeper who was convicted of poisoning birds of prey in Skibo, Scotland, in 2011 was found to possess 10 kilogrammes of carbofuran, which would have been sufficient to kill every bird of prey in the UK.[70]

29. Bird poisoners are clearly targeting a range of birds of prey. The RSPB's Birdcrime 2010 lists poisoning cases involving 20 red kites, 30 buzzards, two goshawks, eight peregrines, five golden eagles, one white-tailed eagle and one sparrowhawk, and 36 of those poisoning cases in 2010 involved carbofuran.[71] Figure 2 sets out the number of confirmed cases of bird of prey poisoning over the past decade, showing the species that were targeted and the extent to which those cases involved carbofuran.

Figure 2. UK bird of prey poisonings 2002 to 2011[72]

30. After our predecessor Committee's wildlife crime inquiry in 2004, Defra has acknowledged the environmental impact of illegal wildlife poisoning and the need to introduce controls by enacting new primary legislation. Section 43 of the Natural Environment and Rural Communities Act 2006 allowed the Secretary of State to proscribe the possession of banned pesticides in England and Wales, but no Order listing the proscribed substances has been made. Given that the power to proscribe possession already exists in primary legislation, this is an inexplicable omission and a failure to follow through on the logic of the 2006 Act. There is a broad consensus on that point, because the RSPB, the Countryside Alliance, other NGOs and the police support the introduction of an Order under the 2006 Act making it an offence to possess named pesticides.[73]

31. An offence of possession could drive culture change by sending a clear signal on bird of prey poisoning as well as directly helping to protect the environment by curtailing the activities of the most serious offenders through prosecution and conviction. Carbofuran is so toxic that even a lone poisoner who possesses a relatively small quantity of it has the capacity to cause irreparable environmental damage. An Order made under the 2006 Act would also allow magistrates to impose custodial sentences in the most serious cases.[74]

32. It is an offence to possess carbofuran and other named substances in Scotland under the Possession of Pesticides (Scotland) Order 2005. Bearing in mind that evidence from Scotland, there might not be a significant number of prosecutions in England and Wales if an Order making it an offence to possess carbofuran were introduced under the 2006 Act, because such an Order could act as a powerful deterrent to wildlife poisoners and promote behaviour change. The then Home Office Minister Lord Henley acknowledged that the threat of custodial sentences had effectively eliminated the practice of egg collecting without large numbers of prosecutions.[75]

33. When we raised the idea that it might be beneficial to proscribe possession of carbofuran in England and Wales with the Defra Minister Richard Benyon MP, he replied, "In view of the legislation already in place, an order under section 43 of the [Natural Environment and Rural Communities Act 2006] will not be pursued at this time".[76] In subsequent correspondence, he set out two reasons why Defra was not minded to introduce an Order making it an offence to possess carbofuran.[77] First, the Minister pointed out, "The intentional use of poisoned bait to kill any wild bird is already prohibited under section 5 of the Wildlife and Countryside Act 1981".[78] However, we took evidence that highlighted the difficulty of securing convictions under that legislation, which consequently lacked a deterrent effect as evidenced by the statistics in Figures 1 and 2.[79] Such crimes mostly took place in physically isolated locations, which made it difficult to ascertain who had set the poisoned bait and to gather other evidence. The case in Skibo in Scotland (paragraph 29) was investigated following the discovery of the carcasses of several golden eagles and other birds of prey poisoned by carbofuran. Although the manager of the estate was convicted of possession of carbofuran, no one was charged with poisoning offences under Section 5 of the Wildlife and Countryside Act 1981, which illustrated the difficulty of obtaining convictions under that legislation and the value of an offence of possession.[80]

34. Secondly, the Minister stressed the advantages of a voluntary approach and raised the issue of proportion:

We are carefully considering the laws surrounding possession of pesticides that are harmful to wildlife but so far conclude that an Order may not be a proportionate course of action and that there could be alternative ways to handle the issue. These might include voluntary codes of practice … or encouraging participation in amnesty initiatives such as that run for farmers through Project SOE (Security of the Operational Environment). Under the first phase of that project nearly 1,000 stores were cleared of 40 metric tons of redundant and unapproved pesticides.[81]

It seems doubtful to us that those who are responsible for poisoning of birds of prey would voluntarily surrender their stocks of carbofuran, because, as far as they are concerned, carbofuran is not a redundant substance—indeed, it is highly effective for its purpose. Furthermore, the Scottish experience, where 10 convictions for possession have occurred in the past seven years[82], does not suggest the disproportion that the Minister fears. In any case, the Crown Prosecution Service (CPS) should be capable of distinguishing between farmers who possessed redundant and unused pesticides and serious wildlife criminals. One factor would be evidence of actual use, such as the presence of carcasses of poisoned birds, in deciding whether to pursue prosecutions. Designating and training specific CPS wildlife crime prosecutors (paragraph 60) would provide further reassurance on that point.

35. Substances other than carbofuran, such as aldicarb, alphachloralose, aluminium phosphide, bendiocarb, mevinphos, sodium cyanide and strychnine, have also been used illegally to poison birds of prey in the UK.[83] Some of those substances have also had their approval for use withdrawn, while others have legal applications as pesticides. If Defra accepted the logic of utilising the 2006 Act to proscribe possession of carbofuran, it would make sense to proscribe possession of other substances used to poison birds of prey in the same Statutory Instrument, with appropriate derogations in relation to the Food and Environment Protection Act 1985 and the Biocidal Products Regulations 2001 to allow legal use of approved substances by appropriately licensed individuals working in pest control or laboratories. Tackling any new wildlife poisons could be readily taken forward in further secondary legislation, which would allow a rapid, tailored response to the evolution of offending.

36. To discharge its obligations under the EC Birds Directive, to demonstrate its commitment to addressing raptor persecution and to send a clear signal that it regards poisoning birds of prey as wholly unacceptable, we recommend that the Government immediately introduces an Order under Section 43 of the Natural Environment and Rural Communities Act 2006 proscribing possession of carbofuran and other similar substances in England and Wales.

VICARIOUS LIABILITY

37. Raptor persecution involves not only poisoning, but nest disturbance or destruction, egg theft, chick theft and unlicensed shooting.[84] Species such as the hen harrier feed on live prey and are not vulnerable to poisoning by eating carrion laced with poison. Instead, the Joint Nature Conservation Committee's Conservation Framework for Hen Harriers found that the most common form of persecution of that species was deliberate nest disturbance.[85] Given the isolated physical locations, often on private land, where offences are committed and the ease with which evidence such as carcasses could be disposed of, the precise extent of such persecution in the UK is unknowable, although an RSPB log of reported incidents indicates a consistent level of persecution over the past decade.[86] In addition, scientific analyses of the total number of birds of prey in the UK, such as the comprehensive Conservation Framework for Hen Harriers, have consistently found that persecution has a measurable impact on population size.[87]

38. An offence of vicarious liability would impose criminal liability on those whose employee or contractor committed an offence against a bird of prey, unless they could show that they were unaware of the offence and had exercised due diligence. It could make landowners take responsibility for the activities of gamekeepers and others who work on their land. The introduction of such an offence in England and Wales would, like tougher legislation on pesticide possession (paragraph 37), send a clear signal that the Government regarded the persecution of birds of prey as wholly unacceptable. In practical terms, vicarious liability would encourage responsible landowners to make it clear to their employees and contractors that raptor persecution was unacceptable and to check that such practices were not occurring on their land.

39. Addressing hen harrier persecution is especially necessary because it is on the brink of extinction as a breeding species in England with only four successful nests in 2011, and it is arguably the most vulnerable of all indigenous species.[88] Persecution has been identified as a factor affecting the distribution, abundance and productivity of the hen harrier in five academic studies conducted over a number of years.[89] The National Gamekeepers Organisation questioned this proposition in its oral evidence,[90] but it did not adduce any factors not addressed in the modelling that underpinned the Conservation Framework for Hen Harriers.[91] The persecution of birds of prey on moorlands used for shooting is not only illegal and highly damaging to biodiversity, but ineffective in terms of increasing the stock of game birds, because research indicates that only between 1% and 2% of pheasant poults are taken by birds of prey.[92]

40. The golden eagle is also threatened by extinction due to persecution. The most recent national survey in 2003 found a British population of about 440, with all but one or two pairs in Scotland. A recent Scottish Natural Heritage report found that persecution was the most severe constraint on golden eagle populations and that incidents of persecution were more common where grouse moor management predominated. The report also concluded that the rarity of golden eagles in England was probably a result of persecution limiting potential recruits from Scotland and to raptor persecution in upland areas of England.[93]

41. The buzzard is also persecuted, but it is thriving in the UK. The buzzard population increased from an estimated 31,000 to 44,000 pairs in 2000 to between 72,000 and 90,000 pairs in 2009.[94] The National Gamekeepers Organisation told us that this population growth is a symptom of "over-protection" and expressed its frustration that

licence applications for buzzard control to prevent serious damage to gamebirds and other wildlife have so far all been declined by Natural England … Illogicalities like this bring wildlife law into disrepute and build frustrations in the countryside among the farmers, gamekeepers and others who are normally among the most law-abiding sections of society but who are driven to distraction by such over-protection … A licensed route to limited control where it is proven necessary already exists but licences are not forthcoming.[95]

Despite the increasing buzzard population, buzzards are still subject to illegal persecution, and 290 buzzards were poisoned in the UK between 2002 and 2011.[96] Natural England told us:

We see it as a great success in many respects, that buzzards and some other raptors have been recovering, after a time in the past when clearly their populations plummeted and were very low—pesticides, persecution and so on. The buzzard recovery story is a great one … Although, in truth, there are still not the numbers that there were historically, but that is a great, great story … We do not think they are too numerous.[97]

42. On 23 May 2012, Defra announced a £375,000 research scheme to explore management techniques to curb the supposed predation of pheasant poults by buzzards; it announced that the scheme had been dropped in the light of widespread public concern on 30 May 2012.[98] Its total funding for the National Wildlife Crime Unit was £136,000 in 2012, so £375,000 is a relatively large sum in the context of overall Government spending on wildlife crime. When we asked the Defra Minister Richard Benyon MP whether he would be interested in our suggestions on how that money might subsequently be allocated, he replied:

Certainly, yes. None of us has a sum total of all the knowledge on these matters. I recognise the sensitivity of this, and I know the Committee does as well, but we want to ensure that the recommendations that we take forward, as well as being mindful of that sensitivity, push Government to make the right decision for biodiversity.[99]

In Part 4, we have set out recommendations on enhancing the NWCU's database and internet monitoring capabilities where even a fraction of that money might make a significant difference for wildlife conservation, both nationally and internationally.

43. On the introduction of vicarious liability in relation to raptor persecution, Richard Crompton, the former Association of Chief Police Officers (ACPO) wildlife crime lead, told us that "any gamekeeper who is not in the business of illegally persecuting raptors would have absolutely nothing to fear".[100] We recognise the commitment of the law-abiding majority in the gamekeeping community to tackling wildlife crime, as exemplified by the contribution of the National Gamekeepers Organisation to the Partnership for Action against Wildlife Crime (PAW). Unfortunately, some gamekeepers persecute birds of prey. One study found only five successful hen harrier nests on the 3,700 square kilometresof driven grouse moor in the UK in 2008, an area which has the potential to support 500 pairs.[101] Of the 152 people who have been convicted of offences against all birds of prey under the Wildlife and Countryside Act 1981 since 1990, some 70% were gamekeepers employed on shooting estates.[102] The maximum penalty for such offences is a £5,000 fine and/or six months in prison, but the RSPB told us that most of those cases were sentenced with a small fine and that only three custodial sentences, all suspended, had been issued.[103] Given the scale of ongoing persecution of birds of prey, the current law appears to carry insufficient deterrent weight.[104]

44. An offence of vicarious liability in relation to the persecution of birds of prey has been introduced in Scotland under the Wildlife and Natural Environment Act (Scotland) 2011, and the National Gamekeepers Organisation pointed out that more evidence from the Scottish experience would be helpful before introducing such a provision in England and Wales.[105] We recommend that the Government evaluates the effect of the introduction of an offence of vicarious liability in relation to raptor persecution in Scotland and considers introducing a similar offence in England and Wales in that light. We expect the Government to report to us, or otherwise publish, the results of that review within the next 12 months.

Invasive non-native species

45. Failing to control invasive non-native species (invasive species) is a wildlife crime. Defra defines invasive species as "species whose introduction and/or spread threaten biological diversity or have other unforeseen impacts".[106] Section 14 of the Wildlife and Countryside Act 1981 sets out offences around releasing or allowing the escape of non-native animals and the planting or sale of the invasive non-native plants listed in Schedule 9 to the 1981 Act.

46. In recent decades, the global impact of invasive species has increased significantly, mainly due to increased world trade and the movement of people. Almost 2,000 invasive species are currently established in Britain, some 15% of which have a negative environmental impact. On average, six new invasive species become established every year, the cumulative extent of which is captured by the UK Biodiversity Indicators 2012.[107] In Britain, several endangered species are threatened by invasive species, including the red squirrel, which has declined due to the introduction of the American grey squirrel, the Tansy beetle, which is threatened by the spread of Himalayan balsam, water voles, which are subject to predation by American mink, and various indigenous tree species, which are damaged by pests and diseases such as the Asian Longhorn beetle.[108]

47. In addition to their negative impact on biodiversity, invasive species impose significant economic costs. The Centre for Agricultural Bioscience International has estimated the direct cost of invasive species to the UK economy at £1.3 billion a year in control and eradication measures, damage to infrastructure and loss of production.[109] It has been estimated that developers spend more than £150 million a year on tackling Japanese knotweed, which was originally introduced in Britain as an ornamental plant.[110] Those figures do not take into account knock-on socio-economic costs, which can be particularly significant in relation to the aquatic environment. Signal crayfish, for example, decrease the overall fish population, which has an impact on the amenity and economic values of fisheries, and floating pennywort can prevent angling by starving water of oxygen.[111] The Angling Trust told us that "these problems are not new, but there is a lack of co-ordinated action to address them".[112]

PREVENTION

48. As an island, Britain is protected by water against the spread of some invasive species from continental Europe. This natural advantage has, however, been undermined by third-country plant imports from Europe, where plants which may be invasive in themselves or which may carry invasive pests have been imported into EU countries before being re-exported into the UK.[113] Such third-country plant imports evade biosecurity checks at the UK border, because they are classified under EU trade rules as internal trade. The EU has been working towards the development of an invasive species strategy since 2008, and its latest consultation on the subject closed in April 2012. There is, however, no agreement to introduce a directive on invasive species, and even if one were introduced, the Law Commission noted that it might not address third-country imports, leaving the UK to deal with this unilaterally while hamstrung by EU rules.[114]

49. Given the environmental and financial costs imposed by invasive species and the difficulty—in some cases, impossibility—of eradication once invasive species are established, preventing invasive species arriving in Britain in the first place is likely to be the most effective policy option. One way to reduce risk would be to decrease imports of garden plants, vegetables, cut flowers, houseplants and trees by encouraging purchasers to source such products locally along the lines set out in our recent Report on Sustainable Food.[115] Another option would be to impose a levy on imported plants to address the environmental and financial cost of invasive species, although this approach might contravene EU and World Trade Organisation rules.[116]

50. The Wildfowl and Wetlands Trust told us that invasive non-native plants that cannot be legally imported into the UK because they are listed in Schedule 9 to the Wildlife and Countryside Act 1981 were sometimes deliberately misidentified by retailers on internet sites in order to evade the law.[117] Tighter controls are also needed on plants purchased online from overseas. Fuchsias ordered from South America online were, for example, imported via Jersey with no checks, which led to the introduction of the Fuchsia gall mite into Britain.[118] It is possible that the deterrent effect of even a modest amount of online enforcement activity, which would be entirely new, could produce a broad change in behaviour across the online plant importation sector. This adds force to our recommendation on policing wildlife crime on the internet (paragraph 69).

ERADICATION

51. Once invasive species are established in the ecosystem, eradication is expensive and difficult.[119] For example, the Environment Agency told us, "top mouth gudgeon[120] is one of our top priorities, and we have eradicated them from nine of 34 known sites now",[121] which means that it has managed to remove this invasive species from less than one third of known sites in a top priority case. That illustrates the difficulty of successfully eradicating an established invasive species, which prompts the question whether funds spent on eradication might more usefully be disbursed on prevention. The Royal Botanic Gardens, Kew believed that, "we must not dissipate already inadequate resources on species where there is no possibility of eradication".[122] The least-worst option may be learning to live with established invasive species by ameliorating their impact and concentrating the limited available resources on prevention.

52. Attempts to eradicate invasive species usually involve chemical pesticides or physical extraction, which is expensive and often unsuccessful. The more radical option of "biocontrol"—fighting fire with fire by introducing another non-native species that predates a particular invasive—is potentially more effective than conventional methods, but it is also more risky. The Royal Botanic Gardens, Kew, pointed out:

Introducing predators and parasites is fraught with dangers unless there is lengthy and comprehensive testing and the timescales involved would likely mean the target organism is well established in large areas before release is licensed.[123]

The extensive testing associated with biocontrol may be too lengthy for it to be an effective policy response to new invasive species, but it could be the most effective option for already established invasive species. Comprehensive research will help to prevent mistakes such as the introduction of the cane toad in Australia, which itself became an invasive pest. Biocontrol has been used successfully to control invasive species, such as the control of Azolla with the Azolla weevil, and ongoing trials of the psyllid bug to control Japanese knotweed have apparently achieved promising early results.[124]

AN INVASIVE SPECIES STRATEGY

53. The governmental responses to invasive species in the UK are organised on geographical rather than national lines. The Invasive Non-Native Species Framework Strategy for Great Britain was launched in 2008 and was a joint endeavour between Defra, the Scottish Government and the Welsh Assembly Government. It was set up to co-ordinate the actions of departments, agencies and key stakeholders, and the Northern Ireland Executive and the Republic of Ireland have agreed a similar strategy covering the island of Ireland. The 2008 strategy is due for review in 2013, which is timely given the burgeoning environmental and financial costs imposed by invasive species.[125] In addition, the Law Commission is considering the law in relation to invasive species and has published a consultation document, which may lead to the publication of a draft Bill in 2014.[126] Those reviews might consider the evidence received in our inquiry.

54. In the meantime, in 2011 the Scottish Government amended the Wildlife and Countryside Act 1981 in Scotland to make it an offence to release any plants or animals "outwith their native range".[127] Such an overarching precautionary approach might overcome the inherent inflexibility of maintaining a list of banned species—speed is of the essence in banning the sale of invasive species before they can establish themselves—but it may prove difficult to define the "native range" of an invasive species. Indeed, this concept might lead to adverse unintended consequences, where the native range of a species is not clear, but there would be a clear threat if it were released.[128] The Scottish provisions also allowed Scottish Natural Heritage to make Species Control Orders to control or eradicate invasive species, and a similarly innovative approach might prove effective in England and Wales.[129]

55. On the other hand, Scotland's unilateral action on invasive species somewhat undermines the concept of the 2008 joined-up British strategy, and it could be ineffective to operate two different regimes on either side of a land border that invasive species neither recognise nor respect. Defra should examine with the Scottish Government and the Welsh Assembly Government how their commitment to joint strategic action on invasive non-native species in Britain could be refocused, with an emphasis on bolstering a strategy of prevention and setting clear milestones for implementation. In its 2013 review of The Invasive Non-Native Species Framework Strategy for Great Britain, Defra should study (a) the impact of the Wildlife and Natural Environment (Scotland) Act 2011; (b) the impact of third-country imports via other EU countries; (c) the scope for promoting sustainable domestic production of plants and vegetables in the UK to minimise the risk of importing invasive non-native species. We intend to further examine invasive species in the future.

61 Buzzard, Kestrel, Peregrine, Osprey, Merlin, Hobby, Sparrowhawk, Montagu's Harrier, Marsh Harrier, Honey Buzzard, Goshawk, Hen Harrier, White-Tailed Eagle, Golden Eagle and Red Kite. Back

62 Council Directive 79/409/EC Back

63 A review of the status of birds published by 12 conservation organisations and five statutory agencies. Back

64 Ev 141 Back

65 Ev 134 Back

66 RSPB, Birdcrime 2011. Back

67 RSPB, Birdcrime 2011. Back

68 Carbofuran was banned across the European Union in 2008 in light of concerns about its possible carcinogenic qualities. It is also banned in Canada and the USA. Back

69 Scottish Raptor Study Groups, website, 18 April 2012. A quarter of a teaspoon of carbofuran will kill a human or, as a recent case in Kenya demonstrated, a lion. Back

70 Ev 135; The Guardian, 27 May 2011. Back

71 RSPB, Birdcrime 2010. Back

72 RSPB, Birdcrime 2011. Back