On yet another wet day when gardening is shelved I had intended to write a blog, but was wondering what might be relevant to summer time (summer time, try telling that to folks at T in the Park today!) Summer is probably the quietest season of the year for wildlife crime but, apart from the destruction of the nests of some birds such as house martins and swallows, one of the more unusual, and thankfully rarer, wildlife crimes that police investigate, is the intentional or reckless disturbance or harassment of cetaceans.
This is an extremely difficult offence to prove, and may well be under-reported. This short chapter on cetaceans from my book Wildlife and the Law outlines some of the difficulties encountered, and may allow readers of this blog to better understand the offence and when to report an incident to the police.
Like bats, all cetaceans (whales, porpoises and dolphins) in the UK are European Protected Species (EPS) under the Habitats Regulations. The main threat to these mammals, particularly dolphins, is their being disturbed or harassed by people on boats or jet-skis (reg.39(1) and (2)). As EPS species, it is also an offence to be in possession of a part or parts of UK cetaceans without a licence, if taken after 10 June 1994 (reg. 39(3)).
The vast majority of investigations are likely to be in relation to disturbance or harassment of dolphins. This poses the questions: when is a cetacean disturbed, when is it harassed and when is such conduct intentional or reckless?
It is first of all necessary to consider the meaning of the terms ‘disturb’ and ‘harass’, and to understand the difference between the two. The dictionary meanings are:
Disturb – to interrupt; to cause to move from the normal position or arrangement; to destroy the quiet or composure of.
Harass – to annoy; to irritate; to trouble by constant raids and attacks
It is clear that to harass a dolphin is the more serious term.
Police officers are unlikely to be able to answer the question on whether or not a cetacean has been disturbed or harassed, and experts from one or more organisations will be required to establish this as a fact in any court case. Blatant cases are slightly more straightforward, such as continuously chasing after dolphins with a jet-ski or speedboat. This is much more likely to constitute harassment rather than disturbance. Complaints of boats with sight-seers going too close to cetaceans are much more difficult to prove. There is no case-law to give guidance as to whether 50 metres or 250 metres is too close. A boat quietly drifting 50 metres from a whale cause may cause little or no disturbance, while the whale will certainly be aware of a boat 250 metres away with the engine running.
Assuming disturbance can be proved, it requires to be established whether the disturbance is intentional or reckless. This may depend on whether it can be established that the person had warning beforehand not to carry out the act. A reckless act, of course, is considerably easier to prove
Evidence of offences is most likely to come from people in boats who witness an incident either nearby or at a distance. Since one of the main criteria obviously involves distance between the offending boat and the particular cetacean, it is important to establish that the witness is correct about the distance. Distances over a mass of water with no landmarks are much more difficult to estimate than over an area of land, especially if the witness, the boat with the suspect and the cetacean are all in a straight line.
It is unlikely that the witnesses, unless experts in their own right, can prove to a court how the particular cetacean had been disturbed. This is likely to be the responsibility of an expert who was not at the scene but is speaking from scientific or practical experience of what would normally disturb or even harass such a cetacean.
Taking account of all the pitfalls, disturbance or harassment of cetaceans is an extremely difficult offence to prove, though this should not prevent police officers discussing with, and submitting cases to, specialist wildlife prosecutors.
Though occurring before the provision for reckless disturbance, a case of deliberate disturbance of dolphins under the Habitats Regulations was heard at Dingwall Sheriff Court on 17 March 2005. In the sheriff’s findings (Sheriff’s judgement – PF Dingwall v Davies 2005) he emphasises the point that it is not enough for a person to act in a manner that is likely to cause disturbance. That the dolphins were actually disturbed must be proved.
It is good use of police time trying to reduce such offences; ensuring in areas where offences are most likely that those using boats and jet-skis, or even swimming with dolphins, are advised of what actions may constitute offences and how to avoid them. Such proactive preventive measures are also likely to aid a prosecution should someone ignore the advice given. Signage at key locations outlining the offence and the penalty are often successful. The wording of a sign I used when with Tayside Police is below.
See Wildlife and the Law and other books on this blog. If you would like a signed copy contact me on email@example.com
Bottlenose dolphins are frequently seen in various parts of Scotland’s coastline, including off the coast of Angus. They are exciting to watch but deserve to have their own space. Appreciate them from a reasonable distance, do not try to feed them and do not harass them with boats or jet skis.
Intentional or reckless disturbance or harassment of dolphins is an offence under the Conservation (Natural Habitats etc) Regulations, 1994. Reports in Tayside of such disturbance should be made to the Tayside Police Wildlife & Environment Officer on 01738 892650 or to the nearest police station.