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Protected Birds and Animals

Document Cited authorities 22 Cited in Related
Vincent
AuthorLaura Saunsbury/Nick Doherty
Pages165-192

Chapter 12


Protected Birds and Animals

INTRODUCTION

12.01 Wild birds and animals are protected by a number of Acts of Parliament. The principal measure is the WCA 19811which contains wide-ranging provisions protecting most kinds of wild birds and animals. Deer, seals and badgers are each singled out for individual protection in their own Acts.

12.02 Less important are: the Criminal Damage Act 1971 (CDA 1971), which affects wild creatures no longer in a wild state; and the Wild Mammals (Protection) Act 1996 (WM(P)A 1996), which is concerned with the unnecessary infliction of suffering on wild animals.

12.03 The following sections of this chapter consider each of the foregoing measures in turn. Except for the last section, discussion is confined to those measures which relate to shooting and to those wild creatures which may be the subject of shooting.

WILDLIFE AND COUNTRYSIDE ACT 1981

12.04 It is first necessary to look at a number of definitions which the WCA 1981 uses. A ‘wild bird’ is defined as any bird of a species which is ordinarily resident in, or is a visitor to, the European territory of any EU Member State in a wild state, but does not include poultry or (except of the types mentioned in this paragraph) any game bird.2Within this definition, further terms are defined: ‘poultry’ means domestic fowls, geese, ducks, guinea-fowls, pigeons and quails, and turkeys; a ‘domestic duck’ and a ‘domestic goose’ mean, respectively, any

1In Northern Ireland the relevant legislation is the Wildlife (Northern Ireland) Order 1985

(SI 1985/171).

2WCA 1981, s 27(1). This exception relating to game birds has been repealed in Scotland pursuant to Wildlife and Natural Environment (Scotland) Act 2011, s 2(b).

166 The Firearms Law Handbook

domestic form of duck or goose; ‘game bird’ means any pheasant, partridge, grouse (or moor game), black (or heath) game or ptarmigan.3A wild animal is defined as any animal (other than a bird) which is or was (before it was killed or taken) living wild.4The Act’s provisions extend to the Scilly Isles and the territorial waters adjacent to Great Britain.5

12.05 With the exceptions set out at para 12.06, it is an offence6to intentionally kill, injure or take any wild bird7or to intentionally or recklessly kill, injure or take any of the animals listed in Schedule 5 to the Act.8These animals collectively are referred to at para 12.06 et seq as listed animals.

12.06 The exceptions to these offences are:

(A) A person shall not be guilty of an offence under section 1 by reason of the killing or taking of a bird included in Part I of Schedule 2 outside the close season for that bird, or the injuring of such a bird outside that season in the course of an attempt to kill it,9except:

3WCA 1981, s 27(1). This definition has been repealed in Scotland pursuant to Wildlife and

Natural Environment (Scotland) Act 2011, s 2(a).

4WCA 1981, s 27(1).

5The breadth of territorial waters adjacent to Great Britain is 12 nautical miles (1 nautical mile =

1,852 metres). The baselines from which this measurement is taken are to be laid down by Orders in Council from time to time (Territorial Seas Act 1987, s 1).

6The offence in respect of wild birds is set out in WCA 1981, ss 1(1) and 9(1) in respect of wild animals. WCA 1981, s 18(1) provides that anyone who attempts to commit such offences will be punishable in a like manner for the offence. The maximum punishment on summary conviction for either of these offences is a term of imprisonment not exceeding 6 months and/or an unlimited fine. Where more than one animal or bird is involved in an offence, the maximum fine is as if the offender were convicted of a separate offence for each bird or animal (WCA 1981, s 21(1) and
(5)).

7In this instance ‘wild bird’ does not include any bird which is shown to have been bred in captivity unless it has been lawfully released into the wild as part of a re-population or re-introduction programme. A bird shall not be treated as bred in captivity unless its parents were lawfully in captivity when the egg was laid (WCA 1981, ss 1(6), 27(2)).

8WCA 1981, s 9(1) and Sch 5. The listing may be varied by government order (WCA 1981, s 22(3), (4)). In proceedings for an offence these animals will be presumed to have been wild unless the contrary is shown (WCA 1981, s 9(6)).

9WCA 1981, s 2(1).

(i) in Scotland on Sundays and Christmas Day,10and
(ii) in England and Wales in any area prescribed for the purpose by government order.11

The names of the birds so listed and the close seasons for them are given in Appendix E. Both may be varied by government order, and orders may be made giving special protection to any listed bird, which have the same effect as a close season for it. Prior to making an order giving any special protection, the Secretary of State shall consult a representative of persons interested in the shooting of birds of the kind proposed to be protected by the order.12

(B) To prevent damage to crops, pasture, animal or human foodstuffs, livestock,13trees, hedges, banks or any works on land, government ministers may require the person having the right to do so to kill wild birds and animals causing such damage. Such a killing or an injuring of a wild bird or a listed animal is excused in these circumstances.14

(C) Any act done in pursuance of the provisions of the Animal Health Act 1981 or of any order made under it is excused.15

(D) A person shall not be guilty of the killing of a wild bird or listed animal if it is shown that it had been so seriously disabled, otherwise than by his unlawful act, that there was no reasonable chance of its recovering.16

10The Wildlife and Natural Environment (Scotland) Act 2011, s 3(8) introduces Part 1A to Sch 2 in respect of Scotland. This Part lists a number of species of birds which cannot be shot in Scotland on Sundays or Christmas Day. See Appendix E.

11WCA 1981, s 2(3).

12WCA 1981, ss 2(5)–(7), 22(1). Notice of the making of all orders must be published in the London

Gazette, or the Edinburgh Gazette for orders affecting Scotland (WCA 1981, s 26(5)).

13‘Livestock’ includes any animal which is kept: for the provision of food, wool, skins or fur; for the purpose of its use in the carrying on of any agricultural activity; or for the provision or improvement of shooting or fishing (WCA 1981, s 27(1)).

14AA 1947, s 98 and in respect of Scotland, Agriculture (Scotland) Act 1948, s 39; WCA 1981, ss 4(1)(a), 10(1)(a).

15WCA 1981, ss 4(1)(b) and (c), 10(1)(b); Animal Health Act 1981, ss 21 and 22. This does not apply in all instances to wild birds listed in WCA 1981, Schs ZA1 and 1, for which see Appendix D.

16WCA 1981, ss 4(2)(b), 10(3)(b). However, a person shall not be permitted to rely on the defence under s 10(3)(c) as respects anything done in relation to a bat otherwise than in the living area of a dwelling house unless he had notified the conservation body for the area in which the house is situated or, as the case may be, for the area where the act is to take place, or of the proposed action or operation, and has allowed them a reasonable time to advise him as to whether it should be carried out and, if so, the method to be used (WCA 1981, s 10(5)).

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Similarly, he shall not be guilty of taking a wild bird or listed animal if it is shown that the animal had been disabled otherwise than by his unlawful act and was taken solely for the purpose of tending it and releasing it when no longer disabled.17

(E) Any act done if it is shown that the act was the incidental result of a lawful operation18and could not reasonably have been avoided.19

(F) The killing, injuring or taking of a wild bird (except one included in Schedule 1 of the Act)20by an authorised person21shall not be an offence if it is shown that it was necessary for the purpose of preventing serious damage to livestock,22foodstuffs for livestock, crops, vegetables, fruit, growing timber, fisheries or inland waters.23

But this exception cannot be relied on if any of the following apply:

(i) the authorised person was unable to show that, as regards the purpose of preventing the serious damage, there was no other satisfactory solution;

(ii) it had become apparent, before the time of killing or injuring, that that action would prove necessary for the purpose of preventing the serious damage and either:

17WCA 1981, ss 4(2)(b), 10(3)(a).

18E.g. an accidental killing or injury of a wild bird or listed animal by a moving vehicle or by a shot lawfully fired at something else.

19WCA 1981, ss 4(2)(c), 10(3)(c). However, note the point made in fn 16 above regarding bats.

20For the birds listed in Sch 1, see Appendix D.

21An ‘authorised person’ means: the owner or occupier, or any person authorised by the owner or occupier, of the land on which the action authorised is taken; any person authorised in writing by the local authority for the area within which the action authorised is taken; a person authorised in writing by certain authorities and other statutory bodies who may also authorise persons for this purpose. (WCA 1981, s 27(1)).

22‘Livestock’ includes any animal which is kept: for the provision of food, wool, skins or fur; for the purpose of its use in the carrying on of any agricultural activity; or for the provision or improvement of shooting or fishing (WCA 1981, s 27(1)).

23WCA 1981, s 4(3)(c). The expression ‘inland waters’ means: (a) inland waters within the meaning of the Water Resources Act 1991; (b) any waters not falling within paragraph (a) which are within the seaward limits of the territorial sea; (c) controlled waters within the meaning of Part II of the Control of Pollution Act 1974 other than ground waters as defined in s 30A(1)(d) of that...

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