I read today in the blog Raptor Politics that there is an apparently legal strategy being used by estates in Lancashire’s Forest of Bowland and elsewhere ‘to deter raptors from returning to nest at traditional breeding territories, particularly at ground nesting sites.’ The methods described in the article are strategically placing the following near traditional nesting sites:
- grit feeder trays filled with medicated grit used to treat worm infestations in red grouse
- tunnel traps deployed to kill pest species (note I changed the term in the article from ‘vermin’ to ‘pest species’. I detest the term ‘vermin’ referring to mammals or birds.)
- using gas guns to frighten off hen harriers from moorland as pairs or raptors were prospecting for a nesting sites.
The allegation in relation to the first two methods is that gamekeepers are regularly visiting the grit trays and tunnel traps, and in so doing are disturbing the birds and making them move on before they start to nest. Whether or not these visits are being made with regularity, grit trays hardly need topped up daily, and there is no legal requirement to check tunnel traps daily provided they are set as per the Spring Traps Approval Orders, in other words set in an artificial or natural tunnel, the entrance (or entrances) of which are large enough only to allow access to the species against which the trap is permitted to be used. In the case of the most regularly-used trap – a Mk IV or No. 4 – this is a grey squirrel, and in the case of the stronger but lesser-used trap – Mk VI or No 6, a mink. While that is the legal position, I accept that some keepers do like to check their tunnel traps on a daily basis.
There are some issues to consider before an offence is shown to be committed:
- Is the bird at issue a bird listed under Schedule 1 Wildlife and Countryside Act 1981 (WCA)? The birds to which the article relates are most likely to be hen harriers or peregrines, both Schedule 1 birds.
- If so, has it started to nest? In the case of a harrier, this would be as soon as it sets down the first heather twig on its chosen nesting place. In the case of a peregrine I suspect this would be as soon as it begins to prepare its scrape. However very little in wildlife law is easily proved, none more so than proving the first steps of a nesting attempt. In Scotland, in relation to the hen harrier (but not the peregrine) it is protected at all times under Schedule 1 A of the WCA (birds that may not be intentionally or recklessly harassed at any time), as is the white-tailed eagle, golden eagle and red kite. ‘Harassed’, of course, is a slightly stronger term to that of ‘disturbed’.
- Other than the Schedule 1A listed birds in Scotland, if the bird has not started to nest no offence has been committed.
- If the bird is Schedule 1 and has started to nest then it has to be proved that the action taken did disturb the bird and that it was carried out recklessly or intentionally.
To help in proving the last bullet point I would suggest that whoever is aware of (or suspects) any of the strategies above should make contact with their wildlife crime officer at the earliest opportunity. If the Schedule 1 bird has indeed started to nest then the police officer can make contact with the gamekeeper(s) (and the landowner, bearing in mind to knowingly cause or permit the offence), advise them of the presence and the state of the nest and that visits to grit boxes, traps or the use of gas guns could make them liable to being charged under the WCA. If this is not done it is unlikely there can be evidence led that any offence was carried out recklessly or intentionally. (And don’t jump down my throat about giving away the location of the nest to the keeper. A keeper is on the hill every day and, unless driving about with his eyes closed, will be already well aware of the location.)
In England and Wales, in relation to the much more limited use of the term ‘recklessly’ within the WCA, the absence of Schedules A1 and 1A, and the absence of vicarious liability, this legislation urgently needs to be brought in line with the law as it is in Scotland. I know this is an extremely difficult task with the present UK government but it is one of the first of several routes that could begin to address the problem.