Wildlife and the Law – text changes

May 2019

An updated version of Wildlife and the Law is now available. Please see my blog under ‘My Books’

 

April 2020

From 1st April 2020 new conditions were imposed on persons using the various derogations from the law as permitted under general licences issued by Scottish Natural Heritage. Accordingly I have re-written the part of the new version of Wildlife and the Law from pages 38 to 49.  For those still using the original (2011) version of the book the pages re-written are from 32 to 41.

 

  1. TRAPS AND SNARES

 A professional, responsible and humane approach should be the ultimate aim of all who use traps and snares. It should be appreciated that the species being trapped and snared may not be considered pests to all who witness their capture. As an example, stoats may be harmful to game management interests, but beneficial to farmers controlling rats, mice and rabbits. It could also be argued that rooks, while they take some ground-nesting birds’ eggs, and grain flattened by bad weather in advance of harvest-time, may well balance this by the number of insects and grubs that they take that are harmful to agriculture. There are people who don’t like artificial control of species but it may be more acceptable if they see that pest control is being carried out professionally.

Information signs on cage traps and Larsen traps are often helpful, letting any passer-by know the reason that whichever legitimate member of the crow family is being targeted; for example that carrion crows have been taking wild bird’s eggs or chicks, or that rooks and jackdaws have been taking serious amounts of newly drilled grain. Signs are sometimes dual purpose, also displaying the mandatory Scottish Natural Heritage code that must be displayed when the trap is in use. Similar signs are sometimes helpful if used in conjunction with tunnel traps, the sign being hidden under a stone where it does not draw attention to the trap, but can be seen when the stone is lifted, often the prelude to accessing and damaging a trap. The local police wildlife crime officer should be able to help with wording for these signs.

General licences – please note!

General licences, issued annually by Scottish Natural Heritage, facilitate derogations from legislation to allow the legal use of the following bird traps. It should be noted that licence conditions may well change from year to year and the wording of the licences should always be consulted to ensure that actions carried out against ‘pest’ species of birds are legal. It should also be noted that the conditions of use of the licence in Scotland may well be different from the conditions of use of licences in other constituent countries of the UK. The conditions outlined in this book are the conditions in force in Scotland as from 1st April 2020. They may not be the same in subsequent years and the Scottish Natural Heritage website, where copies of current licences can be obtained, should be consulted.                    ( https://www.nature.scot/general-licences-birds )

Officers investigating general licence offences 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. (Be aware that in early 2020 the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill is progressing through Parliament and is likely to substantially increase penalties.)

Multi-catch cage traps

A multi-catch cage trap is defined in the general licences as 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.

These traps may be used to control certain wild birds under the terms of general licences Nos 1 or 2 issued annually by Scottish Natural Heritage. The traps are normally made of a large wooden framework roughly 12’ by 8’ by 6’ high, with wire netting sides and top. The entrance for the birds intended to be caught is of two types. Firstly, there may be a wire netting funnel going down into the centre of the trap – in the manner of a lobster pot – through which the birds can enter, but have great difficulty accessing to escape.  These are referred to as ‘funnel traps.’  The second method involves a ‘V’ shape in the centre of the trap with what looks like either a ladder or letterbox lying horizontally at the bottom of the ‘V’ through which the birds enter.  Appropriately these traps are referred to as ‘ladder’ or ‘letterbox’ traps. Both types have a door so that the user can enter to despatch the birds caught. Cage traps are normally used from about late January/early February until about June, which is consistent with the time that birds would be sitting on eggs or have small chicks. They are also used from time to time for catching rooks or jackdaws in summer.  This use of the traps should be monitored closely by the police since rooks and jackdaws are often caught without proper justification.

One or more captive bird may legally be used to lure others of the same species in to the trap provided they are given sufficient food, water, shelter and a suitable perch. These captive birds, often referred to as decoys or call birds, may by law only be the corvids specified in the particular general licence.

Those who operate any type of bird trap should begin from the base-line that all wild birds are protected by the law. Further, to trap a wild bird is illegal. The general licences allow derogation from the law in certain circumstances. An operator relying on the use of a licence does not require to apply for or even possess the licence, but must act only within its conditions. Firstly, the trap operator must be the owner or occupier of the land on which the trapping is taking place, or a person authorised by the owner or occupier. This may be a gamekeeper or farm worker, a pest controller, or even, in rare cases, the owner or tenant of a garden.

The licences only allow the keeping or confining particular species of wild birds for use as decoy birds in traps and the killing or taking of certain birds, but only for the reasons outlined on the licences. (The licence allows various methods of control, including by shooting and taking by hand, though we are only dealing here with the use of a multi-catch cage trap).  Arguably the main condition on all of these licences is that the operator understands the licence on which he is relying. It is up to the operator to justify the use of the licence. 

 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 responsibility 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.

It is worth re-emphasising the responsibilities of those taking advantage of general licences. General Licences allow authorised people to carry out activities that would otherwise be illegal under the Wildlife & Countryside Act 1981 (as amended). They cover situations where there is no other satisfactory solution in respect of the species to which they relate and the circumstances in which the licensed action may be taken. There are many times when the use is clearly open to challenge and is worth further investigation by the police.

Licence 1 allows the killing or taking of certain birds for the purpose of the conservation of wild birds.

This could allow, for example, a gamekeeper to control carrion crows that are taking gamebirds’ or waders’ eggs, or the owner or tenant of a garden to control magpies if there is genuine evidence that they are taking many eggs or chicks of garden birds, not simply that he may not like magpies. The licence can only be relied on in circumstances where the authorised person is satisfied that appropriate non-lethal methods of control such as scaring or proofing are either ineffective or impracticable. This means, for example, that if a scarecrow or suspended CDs have been tried and are ineffective, or if the ‘pest’ species cannot be excluded by some non-lethal means from the ‘victim’ species, then the ‘pest’ species may be controlled.

The birds that may legally be taken or killed under Licence 1 are carrion crow, hooded crow, jackdaw, magpie, jay, ruddy duck and Canada goose. Great black-backed gull and rook were formerly on this list but were removed as from 1st April 2020. However, the list of birds that may be used as a decoy in a multi-catch cage trap is smaller, limited only to carrion crow, hooded crow, jackdaw and magpie.

If an operator is using a cage trap under the conditions imposed by licence 1 and catches any non-target birds, including rooks, these must be released unharmed.

Further conditions imposed on operators of multi-catch cage traps relying on Licence 1, when the trap is in use, are:

  • The operator must not have been convicted after 1 January 2008 (unless admonished, the subject of an absolute discharge or the conviction is spent) of an offence under the Wildlife and Countryside Act 1981; the Conservation (Natural Habitats etc) Regulations 1994; the Protection of Badgers Act 1992; the Protection of Wild Mammals (Scotland) Act 2002; the Animal Health and Welfare (Scotland) Act 2006 or the Protection of Animals (Scotland) Act 1912, all as amended. (It should be borne in mind that such a conviction not only prohibits the person from trapping any of the species listed on the licence, but from shooting them as well).
  • The operator must display a tag or a sign on the trap while it is in use that shows the code number issued to that person by Scottish Natural Heritage. If a cage trap is not in use and has been disabled as per the relevant condition, there is no need for this tag or sign to be displayed.
  • A “buddy system” is permissible where the registered operator may temporarily authorise another person to check their trap. Estates & farms using a “buddy system” are strongly advised to keep records of this in operation. All traps used must only display a single tag or sign showing one NatureScot Trap Registration Number. The Trap Registration Number which appears on the trap will be presumed to relate to the operator of the trap.
  • The trap must be inspected, except where severe weather prohibits, at least once every day at intervals of not more than 24 hours. In unexpected severe weather they must be checked as soon as possible thereafter.
  • This inspection must be sufficient to determine whether there are any live or dead birds in the trap. This does not mean that the trap must be physically visited. It may be that a trap can be inspected by the use of binoculars or a telescope. In many cases the distance involved would need to be short, as many cage traps have undergrowth that may hide a bird, or a shelter of a type that would not permit the person inspecting to see a bird hidden within.
  • In the case of decoy birds, (there is no condition that only one bird may be used) they must be provided with adequate food, water, a suitable perch and shelter including from the prevailing or anticipated wind and rain. Shelter should be provided off the ground as birds are more likely to make use of it. In addition to invalidating the legal use of the trap and attracting offences under the Wildlife and Countryside Act 1981, failure to comply with this condition is likely to attract additional offences under the Animal Health and Welfare (Scotland) Act 2006.
  • Any unharmed bird not of the species listed on the licence must immediately be released unharmed.
  • Any dead or sickly birds must be removed immediately from the trap
  • Any birds killed shall be destroyed humanely, taking all reasonable precautions to ensure this is by a single, swift, action.
  • When the cage trap is not in use, it must be immobilised (dictionary definition – made unable to move or work) and made incapable of use. Doors or panels must be removed from the site or securely padlocked securely open so that no bird can be confined. This safeguards the operator against any person maliciously closing the door. In this condition they do not need to display a tag or sign, though at all other times this is required. It is worth noting that failure to disable the trap in this manner is the most common offence committed in relation to these traps.
  • NatureScot reserves the right to exclude the use of this General Licence by certain persons and/or on certain areas of land where there is evidence to suggest that a wild bird or birds has / have been killed, injured and / or taken, and / or that an attempt has been made to do so other than in accordance with a licence, or where General Licences are being otherwise misused.
  • The use of this licence does not apply on certain designated sites where permission has not been granted.
  • Authorised persons should not use the general licence within 500m of a designated site
  • A ‘designated site’ means either a Special Area of Conservation (SAC) which protects habitats and/or species listed on Annex I and II of the Habitats Directive, or a Special Protection Area (SPA) which protect rare, threatened or vulnerable bird species listed on Annex I of the Birds Directive.

Note that lesser black-backed gulls, since their numbers are in decline, were removed from licences 1 and 2 in January 2011.

 

Licence 2 is for the purpose of the prevention of serious damage to livestock, foodstuffs for livestock, crops, vegetables and fruit.

This could allow, for example, a farmer to control rooks or jackdaws that are feeding on flattened grain, a farmer to take woodpigeons feeding on crops, a poultry keeper to control rooks or jackdaws that are taking the eggs of poultry, or crows that are picking the eyes of weakly lambs. As in licence 1 the licence can only be relied on in circumstances where the authorised person is satisfied that appropriate non-lethal methods of control such as scaring or proofing are either ineffective or impracticable. This means, for example, that if a scarecrow or suspended CDs have been tried and are ineffective, or if the ‘pest’ species cannot be excluded by some non-lethal means from the ‘victim’ species, then the ‘pest’ species may be controlled.

An authorised person, under the same conditions as licence 1, may control carrion crow, hooded crow, jackdaw, magpie, rook, woodpigeon, feral pigeon, Canada goose and resident greylag goose. Jays may not be controlled under the terms of this licence. Under this licence a rook, along with carrion crow, hooded crow, magpie or jackdaw are permitted to be used as decoy birds.

It is up to the operator to justify the use of the licence.

There have at times been issues if a pigeon is found in a multi-catch cage trap, which may well attract a bird of prey such as a goshawk or sparrowhawk. Nevertheless it would be perfectly legal to bait a trap with grain to attract rooks, jackdaws or feral pigeons, though no pigeon decoy is permitted. In most cases a trap baited with grain and used for feral pigeons will be used in proximity to, or even inside, buildings. The operator might worry that the first pigeon caught could be seen as a decoy. It should be borne in mind that an ‘attempt to kill, injure or take’ a bird of prey must be proved beyond reasonable doubt to have been carried out intentionally or recklessly, or that a trap has been ‘used for the purpose of killing or taking’ a bird other than the legal target list. To dispel any concern that such a trap used to control feral pigeons is reported to and investigated by the police as an illegal trap, it might be an idea for the operator to advise the local WCO of its use in advance.

 

Licence 3 is for the purpose of preserving public health, public safety and preventing the spread of disease. An authorised person may only control feral pigeons and Canada geese.

Note that no type of trap is permitted to be used under this licence. The only methods allowed are the pricking or oiling of eggs, the destruction of eggs and nests by hand, targeted falconry, or shooting with any firearm, including semi-automatic firearms, shotguns or air guns

It is up to the operator to justify the use of the licence.

This licence is most likely to be used by pest controllers, often acting on behalf of Local Authorities. In many cases it is likely to be used in urban situations.

Gull species, in particular herring gulls with chicks, occasionally attack humans. This cannot now be dealt with under a general licence and, if necessary, an individual licence should be sought from Scottish Natural Heritage.

This General Licence does not provide the authorised person with consent on designated sites where consent is not already held.

Authorised persons should not use the General Licence within 500m of a designated site.

A ‘designated site’ means either a Special Area of Conservation (SAC) which protects habitats and/or species listed on Annex I and II of the Habitats Directive, or a Special Protection Area (SPA) which protect rare, threatened or vulnerable bird species listed on Annex I of the Birds Directive.  

 

The former licence 4, which was for the purpose of preserving air safety at airports & aerodromes, is no longer in existence. As of 1st April 2020, there will no longer be a general licence covering bird control at airports. SNH staff have been in contact with many airport operators to facilitate an individual licence which meets individual needs.

 

Some points to conclude.

  • Some of the changes to general licences 1 and 2 use the term ‘should’. Examples are ‘Shelter should be provided off the ground as birds are more likely to make use of it’ and ‘Authorised persons should not use the general licence within 500m of a designated site’. The term ‘should’ appears to be a recommendation rather than a prohibition, e.g the term ‘must’. This may well cause some confusion if suspected breaches are reported to the police.
  • If a trap operator elects for whatever reason to use a ‘buddy system’, delegating the checking of the trap to someone else, SNH suggest the estate or farm are strongly advised to keep records of this in operation. Let’s say they don’t keep records and an offence in relation to the registered operator’s trap is reported to the police. The police interview the registered operator and he replies that someone else is operating the trap under the ‘buddy system.’ The police ask who this ‘buddy’ is and the registered operator makes a ‘no comment’ response. Bear in mind that if he is a suspect, as he may well be, he must be cautioned by the police that he need not make any reply to questions put to him. Possibly the end of the road for the investigation.
  • It is an offence under the Animal By-Products (Enforcement)(Scotland) Regulations 2013 to use dead domestic livestock, including poultry, as bait or feeding in a cage trap (or in any trap for that matter). Wild game or deer are perfectly legitimate for use.
  • Traps are sometimes vandalised or decoy birds released. There may be very rare, but urgent, occasions when a member of the public is justified in releasing a non-target bird, possibly resulting in some minor damage caused to a padlocked trap in doing so. This must only be done as a last resort, with a call to the police being the first option. Unjustified interference with legally-set cages is an offence. Operators of traps vandalised or where the call bird or birds caught are released, should report this to their local WCO.
  • In the case of a non-target species, for instance a buzzard, being caught in a trap that seems not to have been checked for some time, the investigating officer might consider having the bird checked by a vet before release in case it is suffering from starvation or dehydration. However, unless there are obvious injuries, the best course of action may be simply to release the bird. The stress of taking it to a vet might do the bird harm, it may well have dependent chicks, and it is likely to find water and food once released. It is also being released to territory that it knows, which might be more difficult to accomplish at a later date.

 

Larsen traps 

This part should be read in conjunction with Licence 1, already covered.

A Larsen trap is defined in general licences 1 to 4 as a portable cage trap which has a closed compartment for confining a live bird as a decoy and one or more spring or gravity- activated trap-doors which are either top or side mounted.

Normally these traps have three compartments; one for the decoy and a further two in which a corvid attracted by the decoy can be caught.  They work on the principle that the bird attracted to the trap enters and stands on a split perch which is holding open the spring door of one of the compartments.  The perch gives way and the spring door shuts, trapping the bird unharmed inside that compartment.  A second corvid can be caught by the same method in the other compartment. Another variety of trap is circular, with the call bird in a compartment in the centre and several catching compartments round the perimeter. These traps work best at nesting time with territorial birds such as crow and magpie. These birds defend their territory and come to the trap to investigate an intruding bird of the same species.

Generally, keeping a bird confined in a cage, such as a Larsen trap, where it is unable to fully stretch its wings would be an offence under Section 8(1) of the Wildlife and Countryside Act, 1981.  In order to use a permitted corvid (carrion crow, hooded crow or magpie) as a ‘decoy’ bird in a Larsen trap, annual general licences 1 and 2 (no traps may be used under licence 3) derogate from these dimensional requirements provided the operator abides by the terms and conditions. Failure to do so would attract prosecution for offences under the Wildlife and Countryside Act and the Animal Health and Welfare (Scotland) Act 2006.

As detailed under Licence 1 earlier, the licences give authorised persons the right to use a Larsen trap to control crows and magpies, but only if they are causing any of problems set out in the general licence, and only if the operator is satisfied that appropriate non-lethal methods of control such as scaring or proofing are either ineffective or impracticable.

The conditions of use are identical to those in Licence 1 under multi-catch cage traps except for the following:

  • In the case of a Larsen trap, only one decoy bird may be used, and it must be removed from the trap when not in use. In the Larsen trap there must be a separate compartment for the decoy bird
  • When any Larsen trap is not in use, access doors must be secured with a padlock, or it must be removed from the site and stored in such a manner as to prevent its accidental use.

Some birds of prey will readily enter legally-set Larsen traps or multi-catch crow cage traps. In most cases the operator releases the birds, with some stating that particular buzzards are caught and released several times. It is easy for a passer-by to release a bird of prey caught in a Larsen trap or if it is the only occupant of an unlocked multi-catch cage trap, but it is a different story if a buzzard is in a crow cage along with several carrion crows. It should be borne in mind that without proof that an operator is deliberately trying to catch birds of prey, he or she must be given the benefit of the doubt. It would be completely wrong for a passer-by to release all of the birds in a crow cage trap so that a bird of prey can escape. Instead, the witness should either make contact with the trap operator or with the police wildlife crime officer. The police should be advised of the location of the trap and the code number issued by Scottish Natural Heritage on the tag or sign. The officer can then determine the operator’s details from SNH and either visit the trap or make contact with the operator. (see Frequently asked questions)

When the identification of traps by number codes first started around 2007 the number was issued by the police in relation to the land (farm, estate or beat) on which the trap was situated. This was found to be insufficient to pin down any illegal use of the trap to the individual responsible. Scottish Natural Heritage are now responsible for issuing tag numbers for traps. These are issued to an individual operator, which is a more suitable method for the police to follow up any suspected offences. There is a presumption that the identification number which is fitted to a trap means it is that person who is using the trap.

If there are birds – or indeed baits – in a set Larsen or crow cage trap, and there is no tag or sign, an offence is being committed and the police should be informed. Anything done to alter the situation before the police arrive, and not corroborated, may mean that a prosecution would be less likely.

There is no offence of ‘failing to comply with the conditions of a general licence’. The general licence allows certain actions to be taken that would not otherwise be legal. For example if a Larsen trap or a crow cage is not being checked and a bird trapped inside dies (whether that be a decoy bird or a bird that has subsequently entered), likely charges could arise from the use of a trap for the purposes of killing or taking any wild bird (s. 5 WCA); intentional or reckless killing of the bird (s. 1 WCA); causing unnecessary suffering to a wild bird which is under the control of man on a temporary or permanent basis (s.19 Animal Health and Welfare (Scotland) Act 2006) or all three.

Experience has shown that with trap operators who are lax and sloppy in their work, a range of offences are often uncovered.

The use of this licence does not apply on certain designated sites where permission has not been granted.

Authorised persons should not use the general licence within 500m of a designated site

A ‘designated site’ means either a Special Area of Conservation (SAC) which protects habitats and/or species listed on Annex I and II of the Habitats Directive, or a Special Protection Area (SPA) which protect rare, threatened or vulnerable bird species listed on Annex I of the Birds Directive.  

Police officers investigating offences relating to Larsen traps should always bear in mind the possibility of DNA evidence, especially since many of the traps are metal.

 

Larsen mate, Clam or Butterfly trap and the Larsen pod trap

The Larsen mate trap is defined in the general licences as 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.

The Larsen pod trap is defined as 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.

There are mixed views of the clam trap, known also as the butterfly trap or the Larsen mate trap. Around 2008, home-made versions of the trap began to appear and it was clear that there was a real risk to birds being caught with their wings still protruding through the joint where the top of the trap closes. The springs on the traps were so strong and some of the edges were so jagged that there was also a real risk of injury to the bird when the trap closed. If a mammal, such as a fox, pine marten or badger tried to take the bait it would be likely to be caught around the neck and could make off in that condition with the trap attached. There was a strong view from many quarters that the use of the trap was illegal.

In 2013 the Larsen mate and the Larsen pod traps were included on the general licences for the first time. Their use was only legal with bread or eggs as bait, which was likely to reduce the risk to birds of prey. Meantime the Scottish Government commissioned a report into the use of the traps, which took place over 2014/15.

The results of this study were published in 2016. As a result, the specifications of a Larsen mate trap that could be used legally were defined and the restriction of limiting the bait to bread or eggs was lifted and meat-based baits may now be used. Though there is less risk to victims captured in a Larsen pod trap the conditions of use have been made the same as for a Larsen mate trap.

Any Larsen mate or Larsen pod trap must be firmly pegged or staked down, or tethered prior to use so that the trap cannot be moved should a non-target species be caught. Operators intending to use meat-based bait in Larsen mate and Larsen pod traps must register with NatureScot by visiting https://licensing.nature.scot/trap-registration in advance. Operators using meat-based baits in Larsen mate or Larsen pod traps will be asked to provide an annual return comprising their registration number, the number and type(s) of traps used and the location in which they were used. SNH will also ask for details of the type and number of non-target species caught and subsequently released.

It is rather surprising that operators of these traps using meat bait are only ‘asked’ to provide the details of their trapping as listed above rather than this being a condition of use. It may be reasonable to assume that if they fail to give details they will be denied the use of the licence for the next three years, tough this is not stipulated.

Larsen mate and Larsen pod traps are subject to the conditions of use in the licences in relation to checking and necessity of use. They must also display a tag with a code issued by SNH.

If either of these traps are believed to be illegally set and a meat-based bait is used then in advance of an investigation details of the user can be obtained from Scottish Natural Heritage licensing department in Inverness.  If there is evidence the trap is being used to catch protected birds it would be a clear offence.

Police officers investigating offences relating to these traps should always bear in mind the possibility of DNA evidence, especially since many of the traps are metal. Also consider any part of the trap that would not be bought along with the trap and may be unique to the user. Securing pegs or wires are examples. Identical items may be found in the possession of the suspect.

The use of this licence does not apply on certain designated sites where permission has not been granted.

Authorised persons should not use the general licence within 500m of a designated site

A ‘designated site’ means either a Special Area of Conservation (SAC) which protects habitats and/or species listed on Annex I and II of the Habitats Directive, or a Special Protection Area (SPA) which protect rare, threatened or vulnerable bird species listed on Annex I of the Birds Directive.  

 

 

 

 

 

     

 

  

 

  

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