Wildlife and the Law – text changes

The general licences taking effect from 1 January 2017 can be found at:

http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/bird-licensing/general/

The licences are set out in a slightly different format though the wording for the conditions of use are basically the same. In the opening paragraph it should be noted by those using licences 1 to 4 that the actions that can be taken under the licences should only be used as a last resort, and that, if challenged, operators must be able to explain what other alternatives they have tried.

The key changes from 1 January 2017 are:

  • Addition of resident greylag goose on General Licence 2 during July and August
  • Removal of reporting requirement for lesser black-backed gull on General Licence 3
  • Permitting the use of meat bait in Larsen mate and Larsen pod traps on General Licences 1 to 4

NOTE that operators intending to use meat bait in Larsen mate and Larsen pod traps must provide the names and contact details of trap operators, number and types of traps used and the area in which they will be used. This information can be provided by email to licensing@snh.gov.uk  or by phone on 01463 725364. Use of these baits is only permitted once the receipt of the appropriate information has been acknowledged by SNH. Operators using meat bait in Larsen mate and Larsen pod traps must provide a return of non-target capture.

Future developments regarding licensing are to:

  • Develop a code of practice for trap operators during 2017/2018
  • Revise the trap registration system during 2017/2018 in discussion with Police Scotland
  • Develop and implement a communications plan with representative organisations
  • Explore new and responsive licensing solutions to prevent agricultural damage by ravens

Trap operators should note that on the General Licences 1 to 4, at point 1 under the section on general welfare requirements, there is an addition provision, in that decoy birds must also have adequate protection from the prevailing or anticipated wind and rain.

Those using general licences should be aware that there is no offence of being in breach of the general licence; the offence would be the section of the Wildlife and Countryside Act 1981 to which the licence would have provided a derogation had the licence conditions been observed. The penalty is that prescribed under the Wildlife and Countryside Act 1981, namely a fine of up to £5000 and/or 6 months imprisonment.

 

31 March 2016 – add in at P172

The Conservation of Salmon (Scotland) Regulations 2016

1.—(1) These Regulations may be cited as the Conservation of Salmon (Scotland) Regulations 2016 and came into force on 31st March 2016.

(The Regulations are aimed at helping to conserve salmon in rivers where their numbers are currently assessed as being most vulnerable. The Regulations have been produced here in full apart from the extensive Schedules. Schedule 1, Part 1 lists 108 Conservation Status Areas which the Scottish Ministers must assess as per Regulation 3 below. Schedule 1, Part 2 lists a further 16 special areas of conservation.  The Schedules can be found in full at http://www.legislation.gov.uk/ssi/2016/115/pdfs/ssi_20160115_en.pdf  )

(2) In these Regulations—

“fish farming” means the breeding, rearing or cultivating of fish, whether or not for the purpose of producing food for human consumption but does not include fish bred, reared or cultivated in captivity which have later been released to the wild; and

“grid reference” means Ordnance Survey National Grid reference(b);

“salmon” means fish of the species Salmo salar (commonly known as salmon) or any part of such fish and excludes the migratory fish of the species Salmo trutta (commonly known as sea trout) or any part of such fish.

Conservation status assessment

2.—(1) The Scottish Ministers must carry out, or arrange for the carrying out of, an assessment of the conservation status of salmon in inland waters described in Parts 1 and 2 of Schedule 1.

(2) In making the assessment, or making arrangements for the assessment, in respect of those areas of inland waters described in Part 2 of Schedule 1, the Scottish Ministers must have regard to the conservation objectives(a) of any special area of conservation forming part of those areas of inland waters.

(3) For the purposes of this regulation—

(a) “conservation status” means, in relation to salmon,—

(i) the stock levels of the salmon; and

(ii) the condition of the salmon;

(b) “special area of conservation” means an area designated as a special area of conservation within the meaning of Article 1 of Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(b) which is designated for Atlantic salmon pursuant to regulation 8 of the Conservation (Natural Habitats &c.) Regulations 1994(c);

and

(c) “salmon” does not include any salmon produced by fish farming.

 

Prohibition on retaining salmon (Regulation 3 creates the only offence within the Regulations – that of retaining any salmon caught. Schedule 2 lists 86 inland waters to which this regulation applies.  The Schedules can be found in full at http://www.legislation.gov.uk/ssi/2016/115/pdfs/ssi_20160115_en.pdf  )

3.—(1) No person may retain any salmon caught in any coastal waters in a salmon fishery district.

(2) No person may retain any salmon caught in any inland waters described in Schedule 2.

(3) Paragraphs (1) and (2) do not apply where a salmon is retained—

(a) for a purpose mentioned in section 27(1)(a) of the 2003 Act (exemption for certain offences in respect of acts done for scientific and other purposes: salmon) and permission to take the salmon has been granted in accordance with section 27(1)(b) of that Act;

(b) within, and in the course of the operation of, a fish farm; or

(c) under the authority of, and in accordance with, a licence granted by the Environment Agency under section 25 of the Salmon and Freshwater Fisheries Act 1975(d).

(4) For the purposes of this regulation—

“coastal waters” means waters other than inland waters(e);

“the 2003 Act” means the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003;

“Environment Agency” means the body corporate known as the Environment Agency established under section 1 of the Environment Act 1995(a); and

“retain” means failing to return the fish at once to the river or other water from which it came and with the least possible injury.

Conservation plans

4.—(1) The Scottish Ministers may agree a conservation plan in respect of an area of inland waters listed and described in Part 1 or Part 2 of Schedule 1 with—

(a) the district salmon fishery board, or boards, for that area; or

(b) where there is no such board for that area, the proprietors of any salmon fishery within that area.

(2) For the purposes of this regulation—

(a) a “conservation plan” means a plan setting out the objectives, priorities and management measures with respect to—

(i) the management of salmon fisheries in that area; and

(ii) the conservation of salmon in that area; and

(b) “salmon” does not include any salmon produced by fish farming.

Consequential amendment

  1. In regulation 2(3) of the Conservation of Salmon (Annual Close Time and Catch and Release) (Scotland) Regulations 2014(b) after “line” insert “in inland waters”.

 

 

1st January 2014

These amendments arise mainly from changes to general licences taking effect on 1 January 2014

Contents: At Part 3, Traps and Snares, to ‘Clam’, ‘butterfly’ or Larsen mate’ traps, add ‘and Larsen Pod traps’.

Page 33 – last line – A jay may no longer be used as a decoy in bird traps

Page 34 – lines 1 to 3 –  A jay may still be taken under licence 1, but not used as a decoy bird under any of the general licences

Page 34 – last para – a multi-catch cage trap is now defined and means a cage large enough to be entered by the operator, which is covered in mesh and uses either a roof-funnel, ground-funnel or ladder/letterbox entry point for birds to gain access to the cage.

P35 – para 2 – should now read: The birds that may legally be caught in a multi-catch cage trap using Licence 1 are great black-backed gull, carrion crow, hooded crow, rook, jackdaw, magpie and jay. However the list of birds that may be used as decoys includes only the carrion crow, hooded crow, rook, jackdaw and magpie

P35 – para 3 – the list of legislation which, if contravened, disqualifies a person from relying on all general licences now includes the Wild Mammals (Protection) Act 1996.

P36 – bullet point 5 – This should now read: When any multi-catch cage trap is not in use you must either remove access doors from the site or securely padlock the access doors open so that no bird can be confined. Any other traps, when not in use, must be rendered incapable of catching any birds or animals by either removing from site or securing shut with a padlock.

P36 – immediately before Licence 2, add: There is a new section in general licences 1 to 4 (Section 5) whereby the right to use a general licence by a person or an area of land may be withdrawn where SNH has reason to believe that wild birds have been taken or killed by such persons and/or on such land other than in accordance with these general licences.

P36 – After 1st para under Licence 2 add in:  Under this licence resident greylag geese may be taken during July and August

P37 – Immediately before Licence 3, add: The ruddy duck had been added in 2013 to licences 1, 2 and 3 as a species that authorised persons were entitled to control. This species has been removed in respect of this licence and licence 3, but remains on licence 1.

P38 – at first bullet point, change legislation to the Animals By-Products (Enforcement) (Scotland Regulations 2011

P.40 – After 2nd bullet point replace wording in the two paragraphs beginning ‘It is also important to realise’ and ending ‘by a gamekeeper’ with:

‘The only birds that can be used as a decoy in a Larsen trap under any of the general licences are carrion crow, hooded crow or magpie. At no time can a rook, jackdaw or jay be used.

In 2013 the condition was added in relation to Larsen traps that they should be securely pegged or staked to the ground. This condition is now removed, though still applies to Larsen Mate (clam) traps and Larsen Pod traps.

P41 – Spring-over traps, first para – change to: Since April 2008 the use of these traps has been illegal. Previous general licences specifically mentioned that the use of spring-over traps is illegal. They are no longer specifically mentioned but from the description of the traps allowed to be used under licences 1 to 4, and the definition of these traps, it is clear that spring-over traps are excluded.

P42 – Replace with:

‘Clam’, ‘Butterfly’, or ‘Larsen Mate’ traps, and Larsen Pod traps

The absence of a definition in earlier general licences of a cage trap has allowed the sometimes questionable use of another small cage trap which is sold commercially as a ‘Larsen Mate’, often referred to as a ‘clam’ or ‘butterfly’ trap because of its action, or home-made variations of this trap. In the 2014 general licence this trap, and the Larsen Pod trap, are defined respectively as:

“Larsen mate trap” means a portable spring-operated cage-trap comprising two shell sections hinged along one edge connected by one or more springs and kept open by a split-rod/trip-perch (as manufactured by Elgeeco; or any trap which is equivalent to it in all relevant respects). When open (set) the minimum distance between any two corners of the trap must be 39 cm. The trap must not shut tightly along the majority of the length of the meeting edges.

“Larsen pod trap” means a portable spring or gravity operated cage-trap which has a single compartment with two side-mounted, spring activated trap-doors which can be set independently.

Trials of these traps took place during 2015. During the trial they could only be used with eggs or bread as bait. They may now be used with meat provided that operators provide the names and contact details of trap operators, number and types of traps used and the area in which they will be used. This information can be provided by email to licensing@snh.gov.uk  or by phone on 01463 725364. Use of these baits is only permitted once the receipt of the appropriate information has been acknowledged by SNH. Operators using meat bait in Larsen mate and Larsen pod traps must provide a return of non-target capture.

These traps must be securely pegged or staked to the ground so that they cannot be pulled away if a larger bird or mammal species becomes trapped.

If there is evidence the trap is being used to catch protected birds it would be a clear offence.

P74 – last line, add: Note for interest that in England and Wales, due to a mistake in the drafting of new legislation, a person in possession of wild birds’ eggs only requires to show they have not been taken after 1982, when the Wildlife and Countryside Act 1981 came into force. (This is also relevant to the fourth para of P75)

P79 – Schedule 4 birds, after first para – See general licence 8 for ringing conditions of captive-bred Schedule 4 birds. Note that captive-bred Schedule 4 birds must be ringed and registered by the time they are 20 days old (formerly 15 days). Note also that a person convicted of certain wildlife crimes (as described in all the licences), cannot use any of the licence derogations.

P80 – Wild – Disabled Schedule 4 birds – General licence 6 allows wild birds on Schedule 4 to be kept for the purpose of rehabilitation.  Note that a person convicted of certain wildlife crimes (as described in all the licences), cannot use any of the licence derogations.

P84 – end of para 2 – In fact general licence 5 has now been issued to permit this

P117 – First para – Change part starting ‘Of these species’ to: Only three of these four species are present in Scotland. Distribution of the great-crested newt is sparse and mainly in the central lowlands, but it is also found in the Scottish Borders, Dumfries and Galloway and within 30 miles of Inverness. The Natterjack toad is found on the Solway at the RSPB Mersehead reserve and WWT Caerlaverock, as well as one or two other isolated populations. There is also a small colony of sand lizards in the Inner Hebrides following an attempted release programme some years ago.

P129 – Before Sec 14A – Scotland’s native black bee is now protected on the islands of Colonsay and Oronsay in the Western Isles.  The black bee, Apis mellifera mellifera, is thought to be the only native bee in Scotland and new legislation, The Bee Keeping (Colonsay and Oronsay) Order 2013, came into force on 1 January 2014. It protects the species from cross-breeding and disease, and means it will be an offence for anyone to keep any honeybees that are not black bees on Colonsay and Oronsay.

For policing purposes, all of the Non-Native Species offences are contained in the primary legislation, the Wildlife and Countryside Act 1981. In this case, the offence would be as set out in Section 14ZC(1), specifically –

(1)Subject to the provisions of this Part, any person who keeps, has in the person’s possession, or has under the person’s control—

(a)any invasive animal of a type which the Scottish Ministers, by order, specify; or

(b)any invasive plant of a type so specified,

is guilty of an offence.

P213 Appendices – Annual General Licences – completely replace with:

 

10 March 2013

These amendments arise from (1) my omission of the close seasons for brown hares and mountain hares from the book, and (2) secondary legislation taking effect from 16 March 2013 adding bird species to Schedules 1A and A1 of the Wildlife and Countryside Act 1981.

New or additional text is in bold.

 

P64

Line 7 to end of para does not apply after 16 March 2013 as hen harrier (and indeed golden eagle and red kite) added to Schedule 1A and, like the white-tailed eagle,  protected from harassment at all times.

P71

Last line of page starting ‘These schedules’ should now read ‘Since 16 March 2013 the golden eagle, hen harrier and red kite have been added to Schedule 1A and are now protected from harassment at all times. The golden eagle has been added to Schedule A1, and as such its nest or nests are given full protected at all times’.

 

P179

First bullet point – add in that the close seasons for hares are: mountain hare – 1 March to 31 July; brown hare 1 February to 30 September

 

P260

SCHEDULE 1A

BIRDS WHICH ARE PROTECTED FROM HARASSMENT

Golden eagle, hen harrier and red kite introduced from 16/03/13 through theWildlife and Countryside Act 1981 (Variation of Schedules A1 and 1A) (Scotland) Order 2013

Common name                Scientific name

Eagle, White-tailed         Haliaetus albicilla

Eagle, Golden              Aquila chrysaetos

Harrier, Hen                Circus cyaneus

Kite, Red                        Milvus milvus

SCHEDULE A1

PROTECTED NESTS AND NEST SITES: BIRDS

Golden eagle introduced from 16/03/13 through the Wildlife and Countryside Act 1981 (Variation of Schedules A1 and 1A) (Scotland) Order 2013

Common name                Scientific name

Eagle, White-tailed        Haliaetus albicilla

Eagle, Golden            Aquila chrysaetos

P266

SCHEDULE 5A

(introduced by sections 10A and 22)

ANIMALS WHICH ARE PROTECTED UNDER SECTION 10A IN THEIR CLOSE SEASON

Common name          Scientific name

Hare, mountain         Lepus timidus (close season 1 March to 31 July)

Hare, brown               Lepus europaeus (close season 1 February to 30 September)

…………………………………………………………………………………………………………………….

P8

Appendix D – Conservation (Natural Habitats etc) Regulations  1994  The contents reference to this should show page 275 rather than page 258.

P33

From 1 January 2014 general licences 1 to 4 have been made more user-friendly, and incorporate some changes. The main changes are:

The licences now permit a person to keep or confine wild birds for use as decoy birds in traps. Though birds that can legally be used as decoys, particularly carrion crows, hooded crows and magpies, have for years been transferred from cage to cage, or even over-wintered in captivity, this was not legal within the conditions. This change now permits this.

While a person relying on the use of the general licence in the past must have ‘read and understood’ the conditions, this is now altered to read that the person must understand its terms and conditions and comply with them.

In addition to the former methods of taking permitted birds, the taking of birds by hand has now been added. This would have been done many times in the past, technically illegally, when pest controllers in particular removed young gulls from nests.

 

There was a reference on previous licences that any form of spring-over trap (see P.41) is prohibited. Though this reference has been removed, a spring-over trap does not fall within any of the definitions of the traps permitted. It is therefore prohibited by omission.

A person using a general licence is responsible for the welfare of any bird or other animal under his control and must comply with all relevant legislation including the Animal Health and Welfare (Scotland) Act 2006. Formerly this wording just applied to decoy birds but through this new wording is now extended to cover any species caught. Since any bird (or indeed mammal) caught is then under the trap operator’s control, there may be an argument for more frequent checking of the traps in times of extreme weather such as torrential rain to prevent the birds succumbing to hypothermia.

The condition of use that a tag bearing a police code and police contact number must be attached to a trap in use now also includes a Larsen mate or Larsen pod trap.

 

Page 79

Licence 11 permits the sale of certain captive-bred species of bird. In relation to the ringing of Schedule 4 birds, this must be in accordance with section 7 of the WCA 1981 and the Wildlife and Countryside (Registration and Ringing of Certain Captive Birds) (Scotland) Regulations 2009 (formerly the latter regulations were the Wildlife and Countryside (Registration and Ringing of certain Captive Birds) Regulations 1982.

The licences can be viewed in full at http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/bird-licensing/general/

 

Page 80

Licence 8 permits the incubation of eggs and rearing of chicks of captive-bred Schedule 4 birds. Formerly the ringing and registration of the chicks had to be carried out by the time they were 7 days old. This period has now been extended to 20 days.

The licences can be viewed in full at http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/bird-licensing/general/

Page 84, 179 and 180

Where there is a reference to grouse being caught up (formerly technically illegally) for dosing with medicine, general licence 15 now permits this.

The licences can be viewed in full at http://www.snh.gov.uk/protecting-scotlands-nature/species-licensing/bird-licensing/general/

P253 (an additional general licence)

General Licence 15

Period valid:   1 January to 31 December 2013 unless previously revoked

Licence purpose:   For the control of disease in red grouse

Legislation:    S16(1)(j) Wildlife & Countryside Act 1981 (as amended)

Area valid:    Scotland

Reporting requirements:  None

What is a General Licence?

A General Licence allows people to carry out activities that would normally be illegal.  You do not need to apply for a General Licence but in order to use one you must ensure that you meet all of the criteria, terms and conditions stated in the Licence.

You can only use a General Licence for the purpose, species and activities specified.

Failure to use it in this way or to abide by any one of the conditions may invalidate the Licence and could lead to prosecution.

Terms and Conditions of General Licence 15/2013

What this General Licence allows:

  1. Subject to compliance with all other terms and conditions, this General Licence permits  authorised persons to temporarily take red grouse Lagopus lagopus using nets or lamps (any form of artificial lighting, mirror or other dazzling device) to allow the administration of medication or to collect samples for disease analysis.

Who can use this licence and under what circumstances

  1. This General Licence can only be used by authorised persons. An authorised person can be the owner or occupier, or any person authorised by the owner or occupier of the land on which the action authorised is taken.
  2. Authorised persons using this General Licence must:

* understand its terms and conditions and comply with them;

* only use it for the purpose specified

* only use it where they are satisfied that there is no other satisfactory solution

Additional conditions

  1. Red grouse may not be taken under this licence between 16thApril and 31st July.
  2. Birds may be caught by hand or by hand-held net. Hand-held nets must have a minimum opening diameter of 30 cm.
  3. Treatment of individual birds must be by a method and medication prescribed by a veterinary surgeon.
  4. Red grouse caught under the terms of this licence may be held in ventilated individual containers of not less than 30cm depth by 30cm width by 30cm height in order to collect samples of faeces for disease assay.
  5. Birds must be released within 12 hours of being taken.

 

 

 

 

 

 

 

 

     

 

  

 

  

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