England’s wildlife laws are currently up for review and a consultation process in now underway. The Law Commission is looking at modernising the laws that protect England’s wildlife. There are lots of little updates but there’s one that could be really major and useful in protecting our bird of prey.
The Law Commission in their proposals have left open the question of whether England should have a ‘vicarious liability’ law which effectively means that land owners and employers are co-responsible for any breaches of the law by their employees.
Scotland has recently bought in the offence but because it is new the Law Commission has decided that it can not come down in favour of it or not. As a consequence they are leaving the proposed offence open to see what responses are received during the consultation.
Scotland has introduced the offence to tackle owners of game shoots who order their game-keepers to kill bird of prey or other predators. While the game keeper can be charged with wildlife offences the owners of the estates basically avoid prosecution.
It’s not often that any laws – let alone wildlife laws – come up for reviews so this could be a rare opportunity for bird lovers and those who want to protect them and other predators to get involved in the consultation process and call for the offence of ’vicarious liability’ to be introduced into England. If you don’t take this opportunity to respond it could be many years before another opportunity arises.
The aim of the review is not to change any protection levels for wildlife species but to modernise the way in which the species are protected and to bring the relevent laws up to date. Currently wildlife and habitat protection is through over 400 different regulations in over 40 pieces of legislation dating back nearly 200 years.
Some of the main proposals that the Law Commission are calling for include:
- Hunting and shooting of birds being bought under Article 7 of the Wild Birds Directive to replace the Game Act, some schedules of the Wildlife and Countryside Act 1981 and general licences.
- Poaching legislation needs to be updated. Currently there needs to be an offense of trespass before poaching can take place. The Law Commission proposes to remove the requirement of trespass before poachers can be prosecuted. The new legislation will just require people to under take actions beyond that allowed by the land owner.
- New regulations based on Scotland’s reforms that can help tackle invasive species. This will allow for powers to introduce a species to an ‘emergency list’ if an invasive species is discovered and takes hold quickly to allow fast responses. There will also be the power to force a person – or group of people – to notify authorities if they discover or become aware of an invasive species. There will also be the power to issue species control orders to require people to tackle invasive species on their land and also to give authorities the power to gain access to land without owners permission to tackle invasive species.
As well as looking at the laws and regulations that cover wildlife the Law Commission is also consulting on sentences for those who break wildlife laws. some of their proposals will see a weakening of sentences for wildlife criminals as they propose to downgrade some laws from criminal to civil.
The Law Commission notes that civil penalties such as stop notices, penalties and enforcement action is not available under some aspects of the Wildlife and Countryside Act and the Conservation of Habitats and Species Regulations 2010. These can only be tackled with criminal sanctions. The Law Commission proposes to decriminalise these and allow for civil sanctions to also be used for those in breach of the law.
The Law Commission estimates that 20% of the cases that are currently tried as criminal cases will be tried as civil cases and that could save the judicial system about £500,000 a year.
One of the proposals will see the standardization of maximum sentences for wildlife crime to be set at 6 months in prison, £5,000 or both on conviction. This is the maximum sentence that is currently set in the Wildlife and conservation Act 1981.
If this proposal is taken up though it does weaken the protection – or sentences – that currently is in places for Sites of Special Scientific Interest (SSSI). At the moment this habitat type is protected under the Countryside and Rights of Way Act 2000 with a maximum penalty of £20,000 fine.
For poaching offenses and invasive species offences the Law Commission proposes a maximum sentences of 4 months in prison or £2500 fine.
The consultation process is open until November 30th so if you want to push for protecting our birds of prey from land owners with the introduction of a vicarious liability offense now is the time to make you voice heard. You could also ask for clarification on the position of SSSI protection and whether their proposals will see a large reduction in penalties for those who destroy or damage these valuable habitats.
If you are going to be calling for the introduction of vicarious liability than it is covered by question 9-9 in the full consultation download Under appendix B (page 185). The email address for the consultation team is wildlife – at – lawcommission.gsi.gov.uk
The proposals we are putting forward in this consultation aim to simplify the existing complex framework, placing wildlife law into a single statute. The new regime would reduce the current dependency on criminal law, by allowing an appropriate mix of regulatory measures such as guidance, advice and a varied and flexible system of civil sanctions – such as fines and bans.
I am pleased that someone added the word “farmer” into the list of catagories of individuals who would be placed in legal difficulties if the “incidental result of a lawful operation and could not reasonably have been avoided” clause located currently in section 4(2)(c) of the Wildlife and Countryside Act 1981 was removed under current proposals.
Can you imagine farmers being legally restricted from entering their out buildings including barns to avoid disturbing nesting barn owls. If that were to happen barn owls would not have much of a future in those buildings!
I think you’ve got it wrong here guys. My understanding of the Law Commission’s proposals is that they do not cover site legislation at all. As such, that legislation will remain as is. There will be no lessening of the penalties given for SSSI offences.
Editor’s Comment, we hope you are correct, thanks for the update much appreciated.