The Conservation of Offshore Marine Habitats and Species Regulations 2017

Protection of wild animals U.K.

Protection of wild animals listed in Annex IV(a) to the Habitats Directive U.K.

45.—(1) Subject to regulations 46 and 55, a person who—

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

(b) deliberately disturbs wild animals of any such species,

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

(d) damages or destroys, or does anything to cause the deterioration of, a breeding site or resting place of such an animal,

is guilty of an offence.

(2) 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.

(3) Subject to regulations 39(3), 46 and 55, it is an offence for a person—

(a) to keep or transport,

(b) to sell or exchange, or

(c) to offer for sale or exchange,

anything to which this paragraph applies.

(4) Paragraph (3) 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.

(5) Paragraphs (1) and (3) apply regardless of the stage of the life of the animal in question.

(6) 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.

(7) In any proceedings for an offence under paragraph (3), 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 the animal in question or part of it was taken from the wild.

(8) The Secretary of State, or the Joint Committee with the approval of the Secretary of State, may publish guidance as to the application of the offence in paragraph (1)(b) or (d) in relation to particular species of animals or particular activities.

(9) In proceedings for an offence under paragraph (1)(b) or (d), a court must take into account any relevant guidance published under paragraph (8).

(10) In any proceedings for an offence under paragraph (1), where this paragraph applies the defendant (“D”) is not to be taken deliberately to have done anything mentioned in sub-paragraph (a), (b) or (c) of that paragraph merely because—

(a) D's actions had the result that D did the thing in question; and

(b) D intended those actions and knew that they might have that result.

(11) Paragraph (10) applies where the defendant (“D”) shows that—

(a) the actions in question were for the purpose, and in the course, of sea fishing;

(b) D did not intend those actions to have the result in question; and

(c) D had taken any steps that could reasonably be taken to ensure compliance with the requirements or conditions of any [F1 relevant retained EU law].

(12) In paragraph (11), “any [F2 relevant retained EU law]” means any instrument relating to sea fishing which—

(a) regulates such fishing for the purpose (whether or not the sole purpose) of minimising the extent to which it has a result of the kind referred to in paragraph (10) or the risk that it may have a result of that kind; and

(b) [F3 transposes an instrument] is adopted by any EU instrument under—

(i) Article 43 of the Treaty on the Functioning of the European Union; or

(ii) Council Regulation (EU) No. 1380/2013 on the Common Fisheries Policy, as amended from time to time M1 or any instrument adopted thereunder.

(13) In determining the amount of any fine to be imposed on a person convicted of an offence under paragraph (1)(d), the court must in particular have regard to whether that person could reasonably have avoided the damage or destruction of the breeding site or resting place concerned.

(14) In this regulation “destroy”, in relation to an egg, includes doing anything to the egg which is calculated to prevent it from hatching.

(15) Regulation 38 does not apply in relation to anything done by a person which is an offence under this regulation.

Textual Amendments

F1 Words in reg. 45(11)(c) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 59(2); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in reg. 45(12) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 59(2); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in reg. 45(12)(b) added (31.12.2020) by virtue of The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 59(3); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M1 OJ No. L 354, 28.12.2013, p. 22, as amended by Council Regulation (EU) 1385/2013 (OJ No. L 354, 28.12.2013, p. 86) and Regulation (EU) 2015/812 (OJ No. L 133, 29.5.2015, p. 1).

Defences to the offences in regulation 45 U.K.

46.—(1) A person (“P”) is not guilty of the offence under regulation 45(1)(a) of deliberately capturing a wild animal of a European protected species, or an offence under regulation 45(3)(a), if P shows that the act in question—

(a) was in relation to an animal that had been disabled otherwise than by P's 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 (“P”) is not guilty of an offence under regulation 45(1)(a) or (3)(a) if P shows that the act in question—

(a) was in relation to an animal that had been seriously disabled otherwise than by P's 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 45(1)(a) of deliberately injuring a wild animal of a European protected species if that person shows that this was done solely for the purpose of taking a sample by virtue of regulation 63(2).

(4) A person is not guilty of an offence under regulation 45(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 part or thing in question is derived, was lawfully taken from the wild.

(5) A person is not guilty of an offence under regulation 45(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 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 45(3)(a) if that person 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 45, 47 or 57;

(b) an offence of attempting to commit an offence under regulation 45 or 47; or

(c) an offence under regulation 71 which relates to an offence under regulation 45 or 47.

(7) 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 (8).

(8) 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.

(9) For the purposes of any proceedings for an offence under regulation 45(3), the common names given in parenthesis in paragraph (5) are to be disregarded.

(10) 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—

[F4 (aa) it was taken from the wild in the United Kingdom without contravention of the law and before 10th June 1994;]

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

(b) it was taken from the wild elsewhere.

(11) 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

F4 Reg. 46(10)(aa) inserted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 60; 2020 c. 1, Sch. 5 para. 1(1)

Prohibition of certain methods of capturing or killing wild animals U.K.

47.—(1) This regulation applies in relation to the capturing or killing of a wild animal—

(a) of any of the species listed in Schedule 3; or

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

(2) Subject to regulation 55, a person is guilty of an offence if that person uses for the purpose of capturing or killing any such wild animal—

[F5 (a) any means listed in paragraph 1 or 2 of Schedule 3A;

(b) any form of capturing or killing from any mode of transport listed in paragraph 3 of Schedule 3A];

(c) any form of capturing or killing from a ship whilst it is being propelled by a motor; or

(d) any form of capturing or killing from an aircraft.

F6 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F5 Reg. 47(2)(a)(b) substituted (31.12.2020) by The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 61(2); 2020 c. 1, Sch. 5 para. 1(1)

F6 Reg. 47(3) omitted (31.12.2020) by virtue of The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 61(3); 2020 c. 1, Sch. 5 para. 1(1)

F7 Reg. 47(4) omitted (31.12.2020) by virtue of The Conservation of Habitats and Species (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/579), regs. 1, 61(3); 2020 c. 1, Sch. 5 para. 1(1)

Penalties U.K.

48.  A person guilty of an offence under regulation 45 or 47 is liable, either on summary conviction or on conviction on indictment, to a fine.