The Conservation (Natural Habitats, &c.) Regulations 1994

[F1 Protection of certain wild animals E+W

39.— (1) A person commits an offence if he—

(a) deliberately captures, injures or kills any wild animal of a European protected species;

(b) deliberately disturbs wild animals of any such species F2 ...

(c) deliberately takes or destroys the eggs of such an animal; or

(d) damages or destroys a breeding site or resting place of such an animal.

[F3 (1A) For the purposes of paragraph (1)(b), disturbance of animals includes in particular any disturbance which is likely—

(a) to impair their ability—

(i) to survive, to breed or reproduce, or to rear or nurture their young; or

(ii) in the case of animals of a hibernating or migratory species, to hibernate or migrate; or

(b) to affect significantly the local distribution or abundance of the species to which they belong.]

(2) It is an offence for any person—

(a) to have in his possession or control;

(b) to transport;

(c) to sell or exchange; or

(d) to offer for sale or exchange,

anything to which this paragraph applies.

(3) Paragraph (2) applies to—

(a) any live or dead animal or part of an animal—

(i) which has been taken from the wild; and

(ii) which is of a species or subspecies listed in Annex IV(a) to the Habitats Directive; and

(b) any part of, or anything derived from, such an animal or any such part of an animal.

(4) Paragraphs (1) and (2) apply regardless of the stage of the life of the animal in question.

(5) Subject to paragraph (6), a person shall not be guilty of an offence under paragraph (2) if he shows that the animal or part of the animal in question, or the animal or part of the animal from which the part or the thing in question is derived, was lawfully taken from the wild.

(6) The defence in paragraph (5) does not apply—

(a) in respect of the offences in paragraph (2)(a) and (b) if—

(i) the animal in question is an animal of a European protected species or of the species Gortyna borelii lunata (Fisher’s estuarine moth), Lacerta vivipara pannonica (viviparous lizard) or Lycaena dispar (the large copper butterfly), or the part or thing in question is derived from such an animal; and

(ii) the animal, part or thing in question was in the defendant’s possession, or transported by the defendant, for the purpose of sale or exchange; or

(b) in respect of the offences in paragraph (2)(c) and (d), if the animal is an animal of any of the species referred to in sub-paragraph (a), or the part or thing in question is derived from such an animal.

(7) For the purposes of paragraph (5) an animal, or part of an animal, shall be treated as having been lawfully taken from the wild if—

(a) it was taken from the wild in the European territory of a member State, being territory to which the EC Treaty applies, without contravention of the law of that member State and before the implementation date; or

(b) it was taken from the wild elsewhere.

(8) A person shall not be guilty of an offence under paragraph (2) if he shows that the animal, or the animal from which the part or thing in question is derived—

(a) is of a species listed in the second column of Schedule 2A and was from a population occurring in a country or area which is specified in respect of that species in the third column of that Schedule;

(b) is of the species Capra aegagrus (wild goat) and was not from a naturally occurring population;

(c) is of the subspecies Ovis gmelini musimon (European mouflon) and was not from a naturally occurring population in Corsica or Sardinia; or

(d) is of the species Coregonus oxyrhynchus (houting) and either was from Finland or was not from an anadromous population.

(9) Unless the contrary is shown, in any proceedings for an offence under paragraph (1) the animal in question is to be presumed to have been a wild animal.

(10) In any proceedings for an offence under paragraph (2), where it is alleged that an animal or a part of an animal was taken from the wild, it is to be presumed, unless the contrary is shown, that that animal or part of an animal was taken from the wild.

(11) A person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

[F4 (12) Guidance as to the application of the offences in paragraph (1)(b) or (d) in relation to particular species of animals or particular activities may be published by—

(a) the Secretary of State (in relation to England) or the Welsh Ministers (in relation to Wales); or

(b) the appropriate nature conservation body, with the approval of the Secretary of State (in relation to England) or the Welsh Ministers (in relation to Wales).

(13) In proceedings for an offence under paragraph (1)(b) or (d), a court shall take into account any relevant guidance published under paragraph (12).]

F5 (14) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (15) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F5 (16) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(17) In deciding upon the sentence for a person convicted of an offence under paragraph (1)(d), the court shall in particular have regard to whether that person could reasonably have avoided the damage to or destruction of the breeding site or resting place concerned.

(18) For the purposes of any proceedings for an offence under paragraph (2), the common names given in parentheses in paragraphs (6) and (8) shall be disregarded.

(19) In this regulation—

“the implementation date” means—

(a)

where the relevant State became a member State before 10th June 1994, the 10th June 1994; and

(b)

in any other case, the date on which the relevant State became a member State; and

“relevant State” means the State in whose territory the animal, or part of it, was taken from the wild.]

Extent Information

E1 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F1 Reg. 39 substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(13) (with reg. 9)

F2 Words in reg. 39(1)(b) omitted (30.1.2009) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 7(a)

F3 Reg. 39(1A) inserted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 7(b)

F4 Reg. 39(12)(13) substituted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 7(c)

F5 Reg. 39(14)-(16) omitted (30.1.2009) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 7(d)

[F6 Protection of wild animals of European protected species S

39.— (1) It is an offence–

(a) deliberately or recklessly to capture, injure or kill a wild animal of a European protected species;

(b) deliberately or recklessly–

(i) to harass a wild animal or group of wild animals of a European protected species;

(ii) to disturb such an animal while it is occupying a structure or place which it uses for shelter or protection;

(iii) to disturb such an animal while it is rearing or otherwise caring for its young;

(iv) to obstruct access to a breeding site or resting place of such an animal, or otherwise to deny the animal use of the breeding site or resting place;

(v) to disturb such an animal in a manner that is, or in circumstances which are, likely to significantly affect the local distribution or abundance of the species to which it belongs; ...

(vi) to disturb such an animal in a manner that is, or in circumstances which are, likely to impair its ability to survive, breed or reproduce, or rear or otherwise care for its young; [F7 or

(vii) to disturb such an animal while it is migrating or hibernating;]

(c) deliberately or recklessly to take or destroy the eggs of such an animal; or

(d) to damage or destroy a breeding site or resting place of such an animal.

(2) Subject to the provisions of this Part, it is an offence to deliberately or recklessly disturb any dolphin, porpoise or whale (cetacean).

(3) It is an offence for any person–

(a) on or after 1st May 2007 to possess or control;

(b) on or after 1st May 2007 to transport;

(c) to sell or exchange; or

(d) to offer for sale or exchange,

anything to which paragraph (4) applies.

(4) This paragraph applies to–

(a) any live or dead animal or part of an animal–

(i) which has been taken from the wild; and

(ii) which is of a species or subspecies listed in Annex IV(a) to the Habitats Directive; and

(b) anything derived from, such an animal or part of such an animal.

(5) The offences in paragraph (1), (2) and (3) apply to all stages of the life of the animals to which they apply.

(6) Subject to paragraph (7), a person shall not be guilty of an offence under paragraph (3) if that person shows that the animal, or part of the animal in question, or the animal or part of the animal from which the thing in question is derived, was lawfully taken from the wild.

(7) The defence under paragraph (6) does not apply–

(a) in respect of the offences in paragraph (3)(a) or (b) if–

(i) the animal in question is an animal of a European protected species, or the part or thing in question is derived from such an animal; and

(ii) the animal, part or thing in question was in the defender's possession, or transported by the defender, for the purpose of sale or exchange;

(b) in respect of the offences in paragraph (3)(c) or (d), if the animal is an animal of a European protected species, or the part or thing in question is derived from such an animal.

(8) For the purposes of paragraph (6) an animal, or part of an animal, shall be treated as having been lawfully taken from the wild if–

(a) it was taken from the wild in the European territory of a member State to which the Habitats Directive applies without contravention of the law of that member State and before the implementation date; or

(b) it was taken from the wild elsewhere without contravention of the law of the country or territory from where it was taken.

(9) A person shall not be guilty of an offence under paragraph (3) if that person shows that the animal, or the animal from which the part or thing in question is derived–

(a) is of a species listed in the second column of the table in Schedule 2A and was from a population occurring in a country or area which is specified in respect of that species in the third column of that Schedule;

(b) is of the species Capra aegagrus and was not from a naturally occurring population;

(c) is of the species Ovis gmelini musimon and was not from a naturally occurring population in Corsica or Sardinia; or

(d) is of the species Coregonus oxyrinchus and either was from Finland or was not from an anadromous population.

(10) Subject to the provisions of this Part, it is an offence to knowingly cause or permit to be done an act which is made unlawful by any of the provisions of this regulation.

(11) Unless the contrary is shown, in any proceedings–

(a) for an offence under paragraph (1) or (2), the animal in question shall be presumed to have been a wild animal; and

(b) for an offence under paragraph (3) (as the case may be)–

(i) the animal or part of the animal in question shall be presumed to have been taken from the wild; or

(ii) the part or thing in question shall be presumed to be from an animal or part of an animal taken from the wild.

(12) ... a person guilty of an offence under this regulation is liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(14) In this regulation–

“the implementation date” means–

(a)

where the relevant State became a member State before 10th June 1994, 10th June 1994; and

(b)

in any other case, the date on which the relevant State became a member State; and

“relevant State” means the State in whose territory the animal, or part of it, was taken from the wild.]

Textual Amendments

F6 Reg. 39 substituted (S.) (15.2.2007) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 (S.S.I. 2007/80), regs. 2, 10 (with reg. 31)

F7 Reg. 39(1)(b)(vii) and word inserted (26.1.2009) by The Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2008 (S.S.I. 2008/425), regs. 1(1), 4(b)