On 07 March at Derby Crown Court, the first ever Proceeds of Crime Act (POCA) order for offences relating the destruction of a bat roost was made. A company, Isar Enterprises Ltd, was fined £3000 and ordered to pay £2000 costs. In addition the judge made a Proceed of Crime Act order of £5737 against the company. The case had been successfully investigated by a wildlife crime officer from Derbyshire Police and an investigations support officer from the UK National Wildlife Crime Unit. See – http://www.nwcu.police.uk/news/nwcu-police-press-releases/first-proceeds-of-crime-act-order-for-destroying-bat-roost/
While wildlife crime officer with Tayside Police I was involved in a case which had the potential for a similar-type sentence, but to my chagrin came to grief. The story is told in my book A Lone Furrow:
Despite the law, some might consider the presence of bats a real inconvenience. This was exemplified in the summer of 2008, when I received a call from Scottish Natural Heritage to the effect that a building in Angus with a bat roost had been demolished contrary to planning permission. I allocated the investigation to Constable Kenny Linton, one of the divisional wildlife crime officers, but since he was exceptionally busy at the time and was about to go on leave, I agreed to kick off the enquiry. I wanted to establish if indeed there had been an offence committed, if so what were the circumstances and, more importantly, what was the evidence available. I spoke with SNH staff first of all, and learned from them that a property developer in Angus had bought a house which he apparently stated he wanted to substantially alter for his own use. Planning permission had been sought by the man, who I’ll call Dev the Developer for the purposes of the tale.
Dev’s plans were submitted to Angus Council and, as is the norm for council planning departments, were remitted to SNH for comment. SNH knew from records of bat workers that there was – or was likely to be – a bat roost in the property, and instructed that a bat survey be carried out before planning permission was granted. The bat survey was carried out by a long-time friend of mine, Brian Boag, an expert in many aspects of wildlife, and bats in particular. Brian identified, through watching the house for bats emerging at dusk, that there were brown long-eared bats in the attic of the building. He produced a report in June 2006 – two years before the complaint was made to the police – that recommended mitigation measures to ensure the bats were not affected by the alterations to the building. In particular he instructed that the access points were not closed off, the work was not to be started before September of that year as there may still be bats roosting in the building, and that the alterations to the part the bats were living in were to be completed by 1 April 2007, before the bats returned to the property from their winter roosts and re-commenced breeding. Approval was granted on condition that a written plan to accommodate these mitigation measures was submitted. Dev the Developer could now go ahead.
It appeared that unforeseen problems were encountered and SNH staff were informed that due to these problems the work would only be partly completed by the deadline of 1 April 2007. This meant another visit from Brian and another report, which was virtually about how to make the best of a bad job. The bats, when they returned in April, were going to find the house partly demolished and that they had no summer roost in which each of the females could have their single baby bat.
A wee bit on the lifestyle of bats might be useful here for some readers. Long-eared bats hibernate for the winter, probably starting around late October or early November and continuing through till early April. The bats will probably hibernate in trees or places cooler than a house might be, and most will vacate their summer roosts in houses by September. Having slept through the cold winters that we have to endure, bats come out of hibernation hungry, and on warmer April evenings, they are actively moving between several options of breeding sites. They become fully active in May and give birth to their single pup in late June, mostly in loft spaces where there is some scope to fly about. Numbers in the roost are generally low, and they tend to make little noise and if possible avoid areas above ceilings of occupied rooms. By July the pups are learning to fly and by the end of August the maternity colonies begin to disperse. September and October is the mating season, and once this exhausting period is completed the annual cycle is complete and the bats are ready to hibernate again.
But as I said, in April, the breeding site was gone. Brian’s second report recommended that the attic quickly be reinstated to accommodate the bats and that if possible it be done by the end of June. This was apparently ignored; in fact sometime in the last few days of June the whole house was demolished.
During the summer of 2008, once we had notification of the alleged offence, I started gathering evidence for Kenny Linton. I noted numerous statements from Angus Planning Department officers and took possession of a large number of documents that would be of value for a prosecution. I noted statements from the SNH staff involved and learned from them and from Brian that the bats had a maternity roost in the property since at least 2000 and would otherwise still have been there. I interviewed the previous owners of the property, who were incensed at the destruction of the bat roost. In their six years of residence they had been well aware of the bats and hated the thought that the bats had been made homeless.
In due course Kenny interviewed the property owner and charged him with destroying the roost, which is in contravention of the Conservation (Natural Habitats etc) Regulations 1994. This carries a maximum penalty of 6 months imprisonment and/or a fine of up to £5000. If a court considers that a person committed any crime for commercial gain then it is likely to impose a penalty at the higher end of the range. The case seemed sound and we had certainly put in a lot of work to get the necessary evidence. Kenny and I considered that we had done our work well and we and the various witnesses awaited the court case.
I try to monitor what is happening with wildlife crime cases submitted to the fiscal and I was concerned that I was never seeing a court date for this case. I knew the case was unusual and complex, and assumed that the preparation of the case by the fiscal was taking longer than usual. The Regulations state that a case must be called in court within six months of the prosecutor receiving sufficient evidence. This period was slipping away and I had visions of our work going down the tubes. I voiced my concerns to the detective chief inspector about this and another couple of cases nearly reaching their time-bar and he passed my report to the fiscal. I was shortly after contacted by a senior fiscal – not the original one to whom the case was sent – who thought it was a strong case and would progress it immediately.
But the reminder, if fiscals should need a reminder, was too late and the case had run out of time. I hate complaining about fiscals since police officers (and support staff wildlife crime officers) can get things wrong as well, but this was not the only wildlife case that failed to make it to court. I accept valid criticism and expect others to do likewise. I appreciate that fiscals have a heavy case load and their day is completely full; but then so is mine. I regularly take work home; but maybe they do as well. Where the difference lay was that I got it in the neck from the witnesses from Angus Council, from SNH, from Brian Boag, from the Bat Conservation Trust and many others. They had been expecting a court case and whatever outcome may have resulted from that. The fiscals were blissfully unaware of this fall out.
See A Lone Furrow and other books on this blog. If you would like a signed copy contact me on firstname.lastname@example.org