Review of Wildlife Law: Law Commission

Following commencement of the Law Commission’s project in 2011/2012 and the publication of an interim report in October 2013, the Law Commission has now published its final report (dated 10 November 2015) on its review of Wildlife Law.

The review has focussed on the existing legal regimes for protected species and has not considered the law relating to protection of habitats, offshore legislation, animal welfare or the Hunting Act 2004. It was also not within the Law Commission’s role to alter the level of protection of any protected species through its review, unless required to ensure compliance with the UK’s EU or international legal obligations.

The Law Commission has concluded that the existing legal regimes for various protected species, found spread across in many different pieces of legislation, are inconsistent and unnecessarily complex.

The Law Commission’s key recommendations are as follows, although this represents a very preliminary analysis only and should not be regarded by any means as exhaustive

1. There should be a new single statute to replace the piecemeal statutes. This is presented by the Law Commission it its proposed "Wildlife Bill", incorporating all legislation on the protection, control and exploitation of wild fauna and flora in England and Wales, with a large number of schedules containing lists of species to be protected or controlled. The proposed Wildlife Bill contains Part 1 Protection of Wild Birds; Part 2 Protection of Wild Animals; Part 3 Protection of Wild Plants; Part 4 Pests and Weeds; Part 5 Invasive non native species; Part 6 Miscellaneous; Part 7 Enforcement; Part 8 Surveillance, Monitoring, Advice, Review; Part 9 General; and a total of 34 Schedules. 
2. All species protected under the "deliberate" prohibitions of the EU Wild Birds Directive and Habitats Directive and the Bern Convention should benefit from domestic offences making use of the same concept "deliberate" (rather than, say, "intentional" or "intentional or reckless"), which will also have a statutory definition (to date there has been no statutory definition of "deliberate"). So, for example, the existing offence of "intentionally killing a wild bird" under s1 WCA 1981 should be changed to an offence of killing a wild bird where the statutory definition of "deliberate" is met. And the existing offence for certain current Schedule 5 WCA 1981 wild animals of "intentionally or recklessly damaging a place used for shelter or protection" under s9(4) WCA 1981 should be changed to where the statutory definition of "deliberate" is met. The words "reckless" or "wilful" should be withdrawn and as such do not appear in any of the key protected species offences in the Wildlife Bill. The Law Commission’s proposed definition of "deliberate" requires (in summary) that the prosecution proves that
• the action (or inaction) caused the prohibited act in relation to a protected species;the person intended to cause the prohibited act;the action presented a serious risk to the protected species unless reasonable precautions were taken and the person was aware that that was the case but failed to take reasonable precautions; or the action presented a serious risk to the protected species whether or not reasonable precautions were taken and the person was aware that that was the case.In this definition
• The "seriousness" of the "risk" should be interpreted by reference to either the degree of probability of a protected species being harmed by the activity or the consequent effect on the distribution or abundance of the local population of a protected species that may be affected or (in most cases) a combination of both."Reasonable precautions" are to be judged by reference to the circumstances known to the person suspected of the crime. However, existing "intentional" domestic offences which are unrelated to the UK’s EU / Bern Convention obligations (ie where the term "deliberate" is not relevant) should be retained eg the offences of intentional killing of water voles; or intentional uprooting of certain wild plants should be retained.
• There should be retained two different protected species "deliberate disturbance" offences: one for certain species protected by EU law and the Bern Convention, directed at disturbance to the conservation status of the species; and one directed at disturbance of individual specimens in accordance with domestic-only protection. So
• For wild birds generally, there should be a new offence directed at deliberately disturbing local populations (ie not individuals) of wild birds of a protected species ie so there would no longer be specific protection from disturbance during breeding for certain species of wild birds currently listed under s1(5) and Schedule 2 WCA 1981.
• In addition there should be a new offence of deliberately disturbing (at any time) a wild bird of a species in new Schedule 7 (this lists just two species ie white tailed eagle and Balaeric Shearwater).For European Protected Species (EPS) there should be removal of the "individual specimen" disturbance offence (ie meaning, effectively, removal of the existing s9(4) WCA 1981 in relation to EPS) with reliance instead only on the "conservation status of the species" disturbance offence (which is at present found in regulation 41 Conservation of Species and Habitats Regulations 2010).The definition of "wild bird" should be amended to align it better with Article 1 of the Wild Birds Directive; and should be combined with a power to protect any other bird species which now fall outside the definition of wild birds.The offences relating to damaging / destroying wild bird nests should be retained but there should also be a new offence of deliberately damaging or destroying the breeding sites and resting places, other than nests, of certain wild birds listed on the Bern Convention in new Schedule 6 (the list of species to be included in Schedule 6 has not as yet been listed).
• There should be new powers of the Secretary of State / Welsh Ministers to control, and to monitor, the hunting of wild birds.The existing wild bird legal defence in Part 1 of the WCA 1981 ie that the unlawful action was "the incidental result of lawful operation that could not reasonably have been avoided" should be removed entirely. The same defence for other domestically protected species, such as badgers and water voles, should however be retained.
• There should be two new EPS strict liability (ie no fault) offences of "obstructing access to a protected breeding site or resting place" and "causing deterioration of a breeding site or resting place of an EPS".A "breach of licence condition offence" will be available for all protected species licences (to date this has been absent in, for example, WCA m1981 licences). However the wording of the proposed offence in the Wildlife Bill only applies to the licence holder (not to anyone else), which would appear to be a backward step and incorrect / an oversight.
• There should be a wide catch-all licence granting power in respect of "capture" or "possession" or "other judicious use" of species of wild birds, wild animals and certain wild plants if certain (potentially onerous) conditions can be met. At present the WCA 1981 does not permit licences to be granted for economic or development purposes. This change may potentially make it possible in the future to obtain, say, a wild bird or a water vole licence in respect of harm arising from development activities, but in practice this is still likely to be rare due to the need to meet the further new conditions.
• Licences for wild birds, badgers, water voles and other protected species should be subject to both a "no satisfactory alternative" licensing test and a "favourable conservation status test" licensing test (ie "will not be detrimental to the maintenance of the population of the protected species concerned at a favourable conservation status in its natural range"), as is currently the case only for EPS under the Conservation of Habitats and Species Regulations 2010.There should be a new power on the Secretary of State / Welsh Ministers to require certain persons (or types of persons) to notify a relevant authority about the presence of an invasive non-native animal or plant.
• The current offence under s14(1) of "releasing into the wild" or "allowing to escape into the wild" of a non-native species should be amended to "releasing from captivity" and "allowing to escape from captivity", to avoid the difficulties of interpretation of "into the wild".
• There should not be a new "vicarious liability" offence in England and Wales, as per the new(ish) s18A WCA 1981 which applies in Scotland only. Instead there is proposed a new offence for a person (the principal) to "knowingly to cause or permit the commission of a wildlife crime by a person under his or her control". The Wildlife Bill proposes definitions for each of "knowingly cause" and "knowingly permit". With this new offence the burden of proof is with the prosecution (contrast with the vicarious liability offence where the burden of proof is with the defendant who has to show that he has taken reasonable steps to prevent the offence).
• For a specific list of offences only (ie to implement Article 6 of the Environmental Crime Directive) there is proposed a new free-standing offence on legal persons (eg companies) where "an individual has committed an offence while acting as employee or agent of the legal person and the offence would not have been committed but for the failure of an officer of the legal person to exercise appropriate supervision or control over the employee or agent in question". The reference to an officer means a director, manager, secretary or similar officer of the body. The specific offences are those listed under Articles 3(f) and (g) of the Environmental Crime Directive, applying to EPS and Wild Birds Directive Annex 1 and Article 4(2) species. A "due diligence" defence is available for this offence.
• A new system of civil sanctions should be provided through new regulations empowered under Wildlife Bill, making available a whole range of civil sanctions for all substantive wildlife offences under the new framework (Schedule 34). These can apply widely ie to EA, NE, Forestry Commissioners, the MMO and NRW (but not to the police or CPS). They cover a fixed monetary penalty, a discretionary requirement, a stop notice and acceptance of an enforcement undertaking.
• There is a proposed increase in the penalties for criminal offences. Offences will no longer be limited to being tried in the magistrates’ court only. They will be tried in the Magistrates or the Crown Court. At the Magistrates Court there is to be a custodial sentence of up to 6 months and / or an unlimited fine (ie the fine no longer being limited to £5000) and in the Crown Court there is to be a custodial sentence of up to 2 years and / or an unlimited fine. This appears not to have taken into account that the £5000 fine cap in the Magistrates’ Court has in fact already been lifted following the coming into force on 12 March 2015 of provisions of the Legal Aid Sentencing and Punishment of Offenders Act 2012.
• The offences can take place through actions or omissions.
• There should be 5 yearly review of schedules; and greater flexibility in adding items to and removing items from the schedules.
• There should be a new general power to introduce / remove / alter the "close seasons" of any animal (other than wild birds listed in Annex 2 Wild Birds Directive, which will be subject to a separate new hunting regime).
• There should be a legal duty to give reasons in writing in connection with decisions to grant / refuse licences.
• There should not be the creation of any "appeal" mechanism for wildlife licences.
• There should be a new power of the licence granting authority to charge a reasonable fee for issuing protected species licences.