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

Protection of animals E+W+S

European protected species of animals E+W+S

38.  The species of animals listed in Annex IV(a) to the Habitats Directive whose natural range includes any area in Great Britain are listed in Schedule 2 to these Regulations.

References in these Regulations to a “European protected species” of animal are to any of those species.

Commencement Information

I1 Reg. 38 in force at 30.10.1994, see reg. 1(2)

[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)

[F23 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; [F24 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

F23 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)

F24 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)

[F6 Further defence to the offences in regulation 39 E+W

40.— (1) A person shall not be guilty of the offence under regulation 39(1) of deliberately capturing a wild animal of a European protected species, or an offence under regulation 39(2)(a) or regulation 39(2)(b), 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 it and releasing it when no longer disabled; or

(ii) releasing it after it had been tended.

(2) A person shall not be guilty of an offence under regulation 39(1)(a), regulation 39(2)(a) or regulation 39(2)(b) 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 shall not be guilty of the offence under regulation 39(1) of deliberately injuring a wild animal of a European protected species if he shows that this was done solely—

(a) for the purpose of taking a sample by virtue of—

(i) section 18C, 18E or 19XA of the 1981 Act;

(ii) regulation 101A or 101E of these Regulations;

(iii) regulation 9(3) or (5) of the 1997 Regulations; or

(iv) regulation 56(2) of the 2007 Regulations; or

(b) for the purpose of taking a sample to be used in evidence in any criminal proceedings in respect of the following offences (wherever the offence was committed)—

(i) an offence under section 9, 11 or 17 of the 1981 Act or an offence under section 18 of that Act which relates to an offence under section 9 or 11;

(ii) an offence under regulation 39, 41 or 46 of these Regulations or an offence under regulation 100 of these Regulations which relates to an offence under regulation 39 or 41;

(iii) an offence under the 1997 Regulations or an offence of attempting to commit such an offence; or

(iv) an offence under regulation 39, 41 or 51 of the 2007 Regulations, an offence of attempting to commit an offence under regulation 39 or 41 of those Regulations, or an offence under regulation 64 of those Regulations which relates to an offence under regulation 39 or 41 of those Regulations.

(4) A person shall not be guilty of an offence under regulation 39(2)(a) or (b) if he shows that the act in question was done solely for one or more of the purposes of—

(a) investigating whether any of the following offences is being or has been committed (wherever the offence was committed)—

(i) an offence under section 9, 11 or 17 of the 1981 Act or an offence under section 18 of that Act which relates to an offence under section 9 or 11;

(ii) an offence under regulation 39, 41, or 46 of these Regulations or an offence under regulation 100 of these Regulations which relates to an offence under regulation 39 or 41;

(iii) an offence under the 1997 Regulations or an offence of attempting to commit such an offence; or

(iv) an offence under regulation 39, 41 or 51 of the 2007 Regulations, an offence of attempting to commit an offence under regulation 39 or 41 of those Regulations, or an offence under regulation 64 of those Regulations which relates to an offence under regulation 39 or 41 of those Regulations;

(b) bringing, conducting, or giving evidence in, any criminal proceedings in respect of any such offence; or

(c) giving effect to an order under—

(i) section 21(6) of the 1981 Act;

(ii) regulation 103 of these Regulations; or

(iii) regulation 11 of the 1997 Regulations.

[F7 (4A) The defences in paragraphs (1) to (4) do not apply where it is shown by the prosecution that the defendant’s action did not satisfy the conditions in paragraph (4B).

(4B) 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.]

(5) In this regulation—

“the 1981 Act” means the Wildlife and Countryside Act 1981; and

“the 1997 Regulations” means the Control of Trade in Endangered Species (Enforcement) Regulations 1997.]

Extent Information

E2 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F6 Reg. 40 substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(14) (with reg. 9)

F7 Reg. 40(4A)(4B) inserted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 8

[F25 Exceptions from regulation 39 S

40.— (1) A person shall not be guilty of an offence under regulation 39(1)(a) or (b), (2), or (3)(a) or (b), if that person shows that what was done–

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

(b) was done solely for one or more of the purposes of–

(i) ending the animal's life in a humane manner; or

(ii) where the animal's life had been so ended, disposing of it (otherwise than by sale or exchange) as soon as practicable after it was dead.

(2) A person shall not be guilty of the offence under regulation 39(1)(a) of deliberately or recklessly capturing a wild animal of a European protected species, or an offence under regulation 39(3)(a) or (b), if that person shows that what was done–

(a) was in relation to an animal that had been disabled otherwise than by that person's unlawful act; and

(b) was done solely for one or more of the purposes of–

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

(ii) releasing it after it had been tended,

and was done in a manner or in circumstances unlikely to cause the animal unnecessary suffering.

(3) A person shall not be guilty of an offence by reason of any act made unlawful by regulation 39 if that person shows that the act was carried out in relation to an animal bred and, at the time the act was carried out, lawfully held in captivity.

[F26 (4) The exceptions to regulation 39 in paragraphs (1) and (2) shall not apply where it is shown that–

(a) there was a satisfactory alternative to what was done; or

(b) what was done was detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range.]]

Textual Amendments

F25 Reg. 40 substituted (S.) (15.2.2007) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 (S.S.I. 2007/80), regs. 2, 11

F26 Reg. 40(4) inserted (26.1.2009) by The Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2008 (S.S.I. 2008/425), regs. 1(1), 5

Prohibition of certain methods of taking or killing wild animals E+W

41.—(1) This regulation applies in relation to the [F8 capturing] or killing of a wild animal–

(a) of any of the species listed in Schedule 3 to these Regulations (which shows the species listed in Annex V(a) to the Habitats Directive, and to which Article 15 applies, whose natural range includes any area of Great Britain), or

(b) of a European protected species, where the [F8 capturing] or killing of such animals is permitted in accordance with these Regulations.

(2) It is an offence to use for the purpose of [F9 capturing] or killing any such wild animal–

(a) any of the means listed in paragraph (3) or (4) below, F10 ...

(b) any form of [F9 capturing] or killing from the modes of transport listed in paragraph (5) [F11 below, or]

[F12 (c) any other means of capturing or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any species of animal listed in Schedule 3 to these Regulations or any European protected species of animal.]

(3) The prohibited means of [F13 capturing] or killing of mammals are–

(a) blind or mutilated animals used as live decoys;

(b) tape recorders;

(c) electrical and electronic devices capable of killing or stunning;

(d) artificial light sources;

(e) mirrors and other dazzling devices;

(f) devices for illuminating targets;

(g) sighting devices for night shooting comprising an electronic image magnifier or image converter;

(h) explosives;

(i) nets which are non–selective according to their principle or their conditions of use;

(j) traps which are non–selective according to their principle or their conditions of use;

(k) crossbows;

(l) poisons and poisoned or anaesthetic bait;

(m) gassing or smoking out;

(n) semi–automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition.

(4) The prohibited means of [F14 capturing] or killing fish are–

(a) poison;

(b) explosives.

(5) The prohibited modes of transport are–

(a) aircraft;

(b) moving motor vehicles.

(6) A person guilty of an offence under this regulation is liable on summary conviction [F15 to imprisonment for a term not exceeding six months or] to a fine not exceeding level 5 on the standard scale [F16 , or to both].

Extent Information

E3 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F8 Word in reg. 41(1) substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(a) (with reg. 9)

F9 Word in reg. 41(2) substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(b) (with reg. 9)

F10 Word in reg. 41(2)(a) omitted (E.W.) (21.8.2007) by virtue of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(c) (with reg. 9)

F11 Word in reg. 41(2)(b) substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(d) (with reg. 9)

F12 Reg. 41(2)(c) inserted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(e) (with reg. 9)

F13 Word in reg. 41(3) substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(f) (with reg. 9)

F14 Word in reg. 41(4) substituted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(g) (with reg. 9)

F15 Words in reg. 41(6) inserted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(h)(i) (with reg. 9)

F16 Words in reg. 41(6) inserted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(15)(h)(ii) (with reg. 9)

Commencement Information

I2 Reg. 41 in force at 30.10.1994, see reg. 1(2)

Prohibition of certain methods of taking or killing wild animals S

41.—(1) This regulation applies in relation to the taking or killing of a wild animal–

(a) of any of the species listed in Schedule 3 to these Regulations (which shows the species listed in Annex V(a) to the Habitats Directive, and to which Article 15 applies, whose natural range includes any area of Great Britain), or

(b) of a European protected species, where the taking or killing of such animals is permitted in accordance with these Regulations.

(2) It is an offence to use for the purpose of taking or killing any such wild animal–

(a) any of the means listed in paragraph (3) or (4) below, ...

(b) any form of taking or killing from the modes of transport listed in paragraph (5) below [F27 , or

(c) any other means of taking or killing which is indiscriminate and capable of causing the local disappearance of, or serious disturbance to, a population of any species of animal listed in Schedule 3 to these Regulations or any European protected species of animal.]

(3) The prohibited means of taking or killing of mammals are–

(a) blind or mutilated animals used as live decoys;

(b) tape recorders;

(c) electrical and electronic devices capable of killing or stunning;

(d) artificial light sources;

(e) mirrors and other dazzling devices;

(f) devices for illuminating targets;

(g) sighting devices for night shooting comprising an electronic image magnifier or image converter;

(h) explosives;

(i) nets which are non–selective according to their principle or their conditions of use;

(j) traps which are non–selective according to their principle or their conditions of use;

(k) crossbows;

(l) poisons and poisoned or anaesthetic bait;

(m) gassing or smoking out;

(n) semi–automatic or automatic weapons with a magazine capable of holding more than two rounds of ammunition.

(4) The prohibited means of taking or killing fish are–

(a) poison;

(b) explosives.

(5) The prohibited modes of transport are–

(a) aircraft;

(b) moving motor vehicles.

(6) A person guilty of an offence under this regulation is liable on summary conviction [F28 to imprisonment for a term not exceeding six months or] to a fine not exceeding level 5 on the standard scale [F29 , or to both].

Textual Amendments

F27 Reg. 41(2)(c) and word inserted (S.) (15.2.2007) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2007 (S.S.I. 2007/80), regs. 2, 12(b)

F28 Words in reg. 41(6) inserted (S.) (29.11.2004) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2004 (S.S.I. 2004/475), regs. 1(1), 12(a) (with regs. 20, 21)

F29 Words in reg. 41(6) inserted (S.) (29.11.2004) by The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2004 (S.S.I. 2004/475), regs. 1(1), 12(b) (with regs. 20, 21)

[F17 Monitoring incidental capture and killing E+W

41A.— (1) The Secretary of State shall make arrangements [F18 in accordance with paragraphs (4A) to (4C)] to establish a system to monitor—

(a) the incidental capture of animals of the species listed in Annex IV(a) to the Habitats Directive, and

(b) the incidental killing of such animals,

which (in either case) takes place in England.

(2) The Secretary of State shall from time to time—

(a) consult the devolved administrations about the arrangements he has made under paragraph (1);

(b) provide the devolved administrations with such information as he considers appropriate derived from the monitoring arranged by him under paragraph (1); and

(c) review the arrangements he has made under paragraph (1) and, if he thinks it appropriate, revise those arrangements.

(3) The Welsh Ministers shall make arrangements [F18 in accordance with paragraphs (4A) to (4C)] to establish a system to monitor—

(a) the incidental capture of animals of the species listed in Annex IV(a) to the Habitats Directive, and

(b) the incidental killing of such animals,

which (in either case) takes place in Wales.

(4) The Welsh Ministers shall from time to time—

(a) consult the Secretary of State and the other devolved administrations about the arrangements it has made under paragraph (3);

(b) provide the Secretary of State and the other devolved administrations with such information as it considers appropriate derived from the monitoring arranged by it under paragraph (3); and

(c) review the arrangements it has made under paragraph (3) and, if it thinks it appropriate, revise those arrangements.

[F19 (4A) The appropriate nature conservation body shall, in relation to the species of animals listed in Annex IV(a) to the Habitats Directive which are found in England or in Wales (as the case may be)—

(a) identify the risks of incidental capture and killing to which those species are subject, and the activities which give rise to such risks;

(b) maintain a record of instances of incidental capture or killing of animals of those species of which the nature conservation body is aware as a result of the surveillance carried out under regulation 37A, the monitoring carried out under this regulation or otherwise;

(c) assess to what extent monitoring of incidental capture and killing is needed, having regard to—

(i) the risks identified under sub-paragraph (a);

(ii) the instances of incidental capture or killing recorded under sub-paragraph (b);

(iii) whether the species is a priority species; and

(iv) the conservation status of the species; and

(d) advise the Secretary of State or the Welsh Ministers as to the need for such monitoring.

(4B) The Secretary of State (in England) and the Welsh Ministers (in Wales) shall ensure that the necessary monitoring of incidental capture and killing is carried out.

(4C) Monitoring for the purposes of this regulation may be carried out by—

(a) a nature conservation body;

(b) any other competent authority;

(c) any other person acting pursuant to, and in accordance with—

(i) an agreement with the Secretary of State, the Welsh Ministers or a nature conservation body; or

(ii) a condition of a licence or other authorisation granted by a competent authority.]

(5) In this regulation “the devolved administrations” means the Welsh Ministers, the Department of the Environment in Northern Ireland and the Scottish Ministers.]

Extent Information

E4 This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F17 Reg. 41A- 41B inserted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(16) (with reg. 9)

F18 Words in reg. 41A(1)(3) inserted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 9(a)

F19 Reg. 41A(4A)-(4C) inserted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 9(b)

[F30 Monitoring incidental capture or killing S

41A.— (1) Scottish Natural Heritage must make arrangements in accordance with paragraphs (2) to (5) for monitoring the incidental capture or killing (a “monitoring system”) of animals of the species listed in Annex IV(a) to the Habitats Directive.

(2) Scottish Natural Heritage must, from time to time, review the monitoring system and, if they think it appropriate, revise it.

(3) In light of the information gathered from the monitoring system, Scottish Natural Heritage must–

(a) make arrangements for the carrying out of such research, or

(b) where appropriate, advise the Scottish Ministers on such conservation measures

as appears or appear to Scottish Natural Heritage to be necessary to ensure that such incidental capture or killing does not have a significant negative impact on the species in question.

(4) In implementing that monitoring system Scottish Natural Heritage must, in relation to the species of animal listed in Annex IV(a) to the Habitats Directive which are found in Scotland–

(a) identify the risks of incidental capture or killing to which those species are subject, and the activities which give rise to such risks;

(b) maintain a record of instances of incidental capture or killing of animals of those species of which Scottish Natural Heritage is aware as a result of the surveillance carried out under regulation 37A, the monitoring carried out under this regulation, or otherwise;

(c) assess to what extent monitoring of incidental capture or killing is needed, having regard to–

(i) the risks identified under sub-paragraph (a);

(ii) the instances of incidental capture or killing recorded under sub-paragraph (b);

(iii) whether the species is a priority species; and

(iv) the conservation status of the species; and

(d) ensure that monitoring of incidental capture or killing is carried out.

(5) Monitoring for the purposes of this regulation may be carried out by–

(a) Scottish Natural Heritage; or

(b) any other body or person–

(i) pursuant to an agreement with Scottish Natural Heritage, provided that Scottish Natural Heritage is satisfied as to the standards and methods of monitoring used by that body or person; or

(ii) as a condition of a licence or other authorisation granted by a competent authority.

(6) The Scottish Ministers may, from time to time, give directions to Scottish Natural Heritage as to the exercise of its functions under paragraphs (1) to (5).]

Textual Amendments

F30 Reg. 41A substituted (26.1.2009) by The Conservation (Natural Habitats, &c.) Amendment (No. 2) (Scotland) Regulations 2008 (S.S.I. 2008/425), regs. 1(1), 6

[F20 Protection from incidental capture and killing E+W

41B.— [F21 (1) The Secretary of State shall (in England), as required in the light of information derived from monitoring arranged under regulation 41A or otherwise arranged for the purpose of Article 12(4) of the Habitats Directive, make arrangements for further research for, or ensure that conservation measures are taken for, the purpose specified in paragraph (2).]

(2) The purpose referred to in paragraph (1) is to ensure that any incidental capture or incidental killing of animals of a species listed in Annex IV(a) to the Habitats Directive which takes place in England does not have a significant negative impact on that species.

[F22 (3) The Welsh Ministers shall (in Wales), as required in the light of information derived from monitoring arranged under regulation 41A or otherwise arranged for the purpose of Article 12(4) of the Habitats Directive, make arrangements for further research for, or ensure that conservation measures are taken for, the purpose specified in paragraph (4).]

(4) The purpose referred to in paragraph (3) is to ensure that any incidental capture or incidental killing of animals of a species listed in Annex IV(a) to the Habitats Directive which takes place in Wales does not have a significant negative impact on that species.]

Textual Amendments

F20 Regs. 41A, 41B inserted (E.W.) (21.8.2007) by The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 (S.I. 2007/1843), regs. 2(1), 5(16) (with reg. 9)

F21 Reg. 41B(1) substituted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 10(a)

F22 Reg. 41B(3) substituted (30.1.2009) by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 (S.I. 2009/6), regs. 1(1), 10(b)