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

Protection of plants

Offences relating to wild plants listed in Annex IV(b) to the Habitats Directive

43.—(1) Subject to paragraphs (4) and (5) and regulation 49, a person is guilty of an offence if he—

(a) keeps or transports;

(b) sells or exchanges; or

(c) offers for sale or exchange,

anything to which this paragraph applies.

(2) Paragraph (1) applies to—

(a) any live or dead plant, or part of a plant—

(i) which has been taken in the wild, and

(ii) which is of a species or subspecies listed in Annex II(b) (other than any bryophyte), or listed in Annex IV(b), to the Habitats Directive; and

(b) any part of, or anything derived from, such a plant or such a part of a plant.

(3) Paragraph (1) applies regardless of the stage of the biological cycle of the plant in question.

(4) A person is not guilty of an offence under paragraph (1) if he shows that the plant or part of the plant in question, or the plant or part of the plant from which the part or thing in question is derived, was lawfully taken in the wild.

(5) A person is not guilty of an offence under paragraph (1)(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 is being or has been committed—

(a) an offence under this regulation or regulation 51;

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

(c) an offence under regulation 64 which relates to an offence under this regulation.

(6) For the purposes of paragraph (4) a plant, or part of a plant, shall be treated as having been lawfully taken in the wild if—

(a) it was taken in 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 in the wild elsewhere.

(7) In any proceedings for an offence under this regulation, where it is alleged that a plant, or part of a plant was taken in the wild, it is to be presumed, unless the contrary is shown, that that plant or part of a plant was taken in the wild.

(8) A person guilty of an offence under this regulation is liable—

(a) on summary conviction to a fine not exceeding the statutory maximum; or

(b) on conviction on indictment to a fine.

(9) In this regulation—

“the implementation date”—

(a)

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

(b)

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

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