The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007

Defences to the offences in regulation 39 U.K.

40.—(1) A person is not guilty of the offence under regulation 39(1)(a) of deliberately capturing a wild animal of a European protected species, or an offence under regulation 39(2)(a), if he shows that the act in question—

(a) was in relation to an animal that had been disabled otherwise than by his unlawful act, and

(b) was done solely for one or both of the purposes of—

(i) tending and releasing it when no longer disabled, or

(ii) releasing it after it had been tended.

(2) A person is not guilty of an offence under regulation 39(1)(a) or regulation 39(2)(a) if he shows that the act in question—

(a) was in relation to an animal that had been seriously disabled otherwise than by his unlawful act and that there was no reasonable chance of its recovering, and

(b) was done solely for one or both of the purposes of—

(i) ending the animal’s life, or

(ii) disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.

(3) A person is not guilty of the offence under regulation 39(1)(a) of deliberately injuring a wild animal of a European protected species if he shows that this was done solely for the purpose of taking a sample by virtue of regulation 56(2).

(4) A person is not guilty of an offence under regulation 39(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 thing in question is derived, was lawfully taken from the wild.

(5) A person is not guilty of an offence under regulation 39(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 2 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 population occurring naturally in any member State;

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

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

(6) A person is not guilty of an offence under regulation 39(2)(a) if he shows that the act in question was done solely for the purpose of investigating whether one or more of the following offences was being or had been committed—

(a) an offence under regulation 39, 41 or 51;

(b) an offence of attempting to commit an offence under regulation 39 or 41; or

(c) an offence under regulation 64 which relates to an offence under regulation 39 or 41.

[F1 (6A) The defences in paragraphs (1) to (3) and (6) do not apply where it is shown by the prosecution that the defendant’s action did not satisfy the conditions in paragraph (6B).

(6B) Those conditions are that—

(a) there was no satisfactory alternative; and

(b) the action was not detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.]

(7) For the purposes of any proceedings for an offence under regulation 39(2), the common names given in parenthesis in paragraph (5) shall be disregarded.

(8) For the purposes of paragraph (4), an animal, or part of an animal, is to 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.

(9) 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

F1 Reg. 40(6A)(6B) inserted (30.1.2009) by Offshore Marine Conservation (Natural Habitats, &c.) (Amendment) Regulations 2009 (S.I. 2009/7), regs. 1, 5