Our red squirrels at home had been missing since September last year, apart from a brief visit by one in February. Thankfully one is back – or at least a young one possibly from the parents that were here. It is in the wood and at the bird feeders most mornings, though seems to disappear for the rest of the day. It is probably exploring its territory; hopefully the territory is to its liking and it will take permanent residence. Its presence got me thinking back to an incident in which I was involved in the mid-1990s when I was wildlife crime officer with Tayside Police and which I narrated in my first book, Wildlife Detective………
One incident that caused me great frustration for a number of reasons was the felling of a number of mature conifers to make way for a housing development. With complaints about development I am always wary that the police are being manipulated to influence the cessation of work, as a particular development may not suit either an individual or a number of people. In this case that may or may not have been the case but the person who telephoned me stated that there were a number of red squirrels resident in the condemned woodland and was adamant that there were red squirrel dreys in some of the trees.
The law in relation to red squirrels, as a Schedule 5 animal, is that any structure or place which that animal uses for shelter must not intentionally or recklessly be damaged or destroyed and that it must not intentionally or recklessly be disturbed while it is occupying a structure or place that it uses for that purpose. Does this mean a drey or is there a wider definition, such as a small woodland? To establish that there is at least one active red squirrel drey in any particular woodland is a job for experts, and not a fact about which I could give evidence in court. Normally I would ask Scottish Natural Heritage or someone from a red squirrel group to establish this for me but it cannot be done in an instant. Further, as it is primary evidence and crucial to a conviction, it requires to be corroborated, hence two experts are required. Unlike pine cones, a favourite food of the red squirrel, experts don’t grow on trees. In the meantime trees were being felled and I had no means of knowing whether or not the tree fellers or developers had any idea of the presence of red squirrels. An offence is only committed if the act is carried out intentionally or recklessly, not in ignorance.
In this instance I established details of the developer and his agent from the local council, and made contact by telephone. The developers knew of the presence of red squirrels and assured me they were aware of the law in relation to the felling of a tree that has a red squirrel drey. They sounded competent and were co-operative. They assured me that this was not to be a clean fell, as many of the mature trees were being left to make the housing development more aesthetic.
I monitored the situation and when the work was completed there were indeed several conifers left standing and no evidence of any being taken down that held a red squirrel drey. The law may have been complied with but I suspect that the red squirrel population would still have been displaced. Red squirrels are much more secretive and much more arboreal than greys. They prefer to move from tree to tree via the branches rather than come on to the ground and with the scattering of trees left I doubted that would suit them.
Should I have considered the whole piece of woodland as ‘a place a red squirrel uses for shelter or protection?’ I thought not, but was I entitled to use my own interpretation of the law or should I have reported the case for the consideration of the procurator fiscal. To have done this would have meant stopping all the development work and would be an extremely serious decision to have taken. Where cases are more clear-cut this has been done in the past but I was of the view that this was not the road to go down in this instance. A lesson I learned from this and other similar incidents since is that we must put more pressure on developers to produce an environmental impact assessment before any planning permission is granted and I am working closely with local authorities to try to ensure that this is done.
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