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

[F1 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.

[F2 (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

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. 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)

F2 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

[F3 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.

[F4 (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

F3 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

F4 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