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’

 

May 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.

In addition, the Agreement on International Humane Trapping Standards (AIHTS), to which the UK is a signatory, was fully implemented on 1 April 2020, meaning that stoats may only legally be caught in certain traps.   

Because of the changes, I have re-written the part of the new version of Wildlife and the Law from pages 38 to 66.  For those still using the original (2011) version of the book the pages re-written are from 32 to 52.

 I have also added in Schedule 6ZA of the Wildlife and Countryside Act 1981 and listed the changes in other parts of the book caused by the re-numbering of the general licences. I have also provided an update on the Ivory Act 2018, written a few paragraphs on the permissions to sell shot greylag geese, listed the 2020 general licences and copied general licence 14, that which allows the trapping of stoats by certain methods and by authorised persons.

Chapter 3. TRAPS AND SNARES (Traps – P38 – 66)

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 to them 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 (and of course benefiting some other small birds). 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 hy 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 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 shoot 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. Though rooks can be taken, they may not be used as decoy birds in a multi-cage trap, with only carrion crow, hooded crow, magpie or jackdaw permitted to be used.

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.  

Spring-over traps

There was a reference on previous licences that any form of spring-over trap 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.

Spring-over traps work on much the same principle as a Fenn trap.  The bait is attached to a plate, which when set is hooked under a catch.  The victim pulling at the bait releases the catch and a net attached to a metal hoop, like the design of a landing net for salmon or a large butterfly net, springs over the top of the bird.  The bird may be caught unharmed though there is real potential for it to be killed or injured if hit by the metal hoop. The offence involved would be to set in position an article of such a nature and so placed as to be likely to cause bodily injury to any wild bird coming in contact therewith (s. 5(1)(a) WCA), or alternatively to use a net for the purpose of killing or taking any wild bird (s 5(1)(b) WCA).

Police officers investigating offences relating to spring-over 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.

A variation of these traps may legally be used by bird ringers. SNH can issue a licence under WCA s. 16(1)(a), (b) and (c), not to the British Trust for Ornithology but to any persons who are trained and accredited by the BTO as ringers. A licence of this type is possible under the terms of WCA s. 16(5)(b) which states a licence may be issued to ‘persons of a class’, the class in this case being BTO ringers. Adherence to BTO permit conditions is a fundamental licence condition that thereby turns the BTO into a quasi-licensing authority as regards practical day-to-day operation of the ringing scheme. This scheme is government-funded, UK-wide, via the Joint Nature Conservancy Council.

Trapping live birds for the illegal cage-bird trade – see Taking live birds from the wild

 

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Live-catch mammal traps  (P51 – 66)

Live-catch mammal traps basically work on the same principle as the crow cage trap: the target mammal is enticed into a cage by a bait. The cage is invariably rectangular, and the target animal usually stands on a treadle which releases a drop-down door. Another variety, to trap grey squirrels, entices the squirrel to push open two one-way doors angled away from it to get to the bait inside. The doors close, preventing its exit. This selection of traps, used for foxes (usually in an urban setting as rural foxes are usually too wily to enter them), feral cats, rabbits, mink and grey squirrels, are humane provided they are checked regularly.

With live-catch mammal traps there is nothing set down in legislation about the checking intervals; the over-riding principle is the welfare of the trapped animal. It seems reasonable to apply the same maximum intervals between checks as in the general licences and in relation to snares: at least one check at intervals of not more than 24 hours. This is the time scale that a court may well take into consideration. In a practical sense (apart from the squirrel trap with the two one-way doors), once the trap has been sprung it cannot catch another target animal until it has been re-set, so frequent checks and the re-setting of traps are likely to result in the catching of more target mammals.

Any protected mammal must be released unharmed as soon as it is discovered. Particular care should be taken with any cat that might be a pure wildcat. While it benefits the overall wildcat population to have hybrids removed, it is an offence to kill a pure wildcat. Many gamekeepers have a copy of a guide to the identification of a wildcat, and those who may be likely to catch a wildcat should obtain one.  http://www.scottishwildcataction.org/about-wildcats/how-to-identify-a-scottish-wildcat/ gives some good identification tips.

Note that from 1st April 2020 if a live-catch trap is to be set for a stoat then an individual Iicence must first be obtained from Scottish Natural Heritage

In relation to mammal traps be aware of the law in relation to hedgehogs (whose numbers, incidentally, have fallen dramatically in recent years). A hedgehog has part-protection, and while there is no offence in shooting a hedgehog (though a strange thing for any normal person to do), the mammal is on Schedule 6 of the Wildlife and Countryside Act 1981. Schedule 6 lists species that may not be killed by certain methods. This refers back to Section 11 of the 1981 Act, which states that a trap (undefined) or indeed a snare, are methods that may not be used for the purpose of killing or taking any wild animal included in Schedule 6. While it could be argued that the trap was not set deliberately for a hedgehog, anyone with knowledge of wildlife and their ecology will know if hedgehogs are likely to be in the area, and if so, that they would be attracted to most baits in a trap.

One trap that is slightly different from the usual rectangular wire live-catch mammal trap is the drop-trap for rabbits. Hedgehogs are also likely to be caught in this trap. Since these traps are only used sporadically, it is wise to have them padlocked shut when not in use. The design of a ‘box’ or ‘drop’ trap is a wooden or metal box buried in the ground beside a netted fence. A wooden or metal tunnel runs over the top of the box, which allows the rabbits through the netted fence by using the tunnel. The underside of the tunnel is part of a treadle, which can be locked in an inactive position either by a padlock or by a large stone placed so that the treadle will not tilt. Rabbits are allowed to become accustomed to passing safely through the tunnel, though every so often the padlock or stone are removed for a few nights, allowing the trap to operate. The weight of the rabbit passing over the treadle makes it tip like a see-saw and the rabbit slips sideways off it into the box.

Traps that are padlocked are relatively safe from interference, but it only takes one inquisitive person to remove the large stone to make the trap ‘live’ and rabbits begin to be caught. Because the operator is not using the trap he is not checking it and assumes everything is in order. In the meantime the trapped rabbits die of starvation. If this is reported to the police, an investigation is begun, with suspicion probably falling on the operator. He is then at risk, at the very least, of being taken to a police station for interview. If there is evidence that he has not secured the drop-traps after use he is liable to be charged under the Animal Health and Welfare (Scotland) Act 2006 (s. 19). Trap operators should anticipate problems and avoid them. Traps that are padlocked are much less likely to result in this type of unwelcome suspicion and inquisition.

The most likely method of abuse of live-catch traps (though thankfully not too common) is failing to check them regularly, resulting in the captive animal being deprived of food or water for an unduly long period, or exposed to extreme weather.  These offences may be difficult to prove unless the trap has been under observation for some time, in which case the observer would need to rescue or release the animal before it became ill due to the time spent in the trap.  If the animal is extremely ill or dead (as opposed to simply being thin), then proof of an animal welfare offence is made much easier.

Rabbits, in particular, can lose condition very rapidly, but proof would need to be obtained that the loss of condition of the animal was due to an excessive period in the trap and not due for example to a period of extreme weather when food would be difficult to obtain. Unwell live animals may need to be examined by a vet, and dead specimens should be taken to a Scottish Rural College (SRUC) vet lab.

The investigating officer should treat the trap and its surroundings like a crime scene and carry out a scene of crime investigation.  With a metal trap the possibility of DNA from the operator should be borne in mind, though wet weather or dirty conditions may have reduced this possibility.  Any mammal released from a trap where there is likely to be a report submitted to the procurator fiscal should be photographed first along with a completed production label if possible.

The use of a rabbit box trap or rabbit cage trap on land where the operator does not have permission for its use would be a poaching offence (s.11G of the WCA).

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

Tunnel traps

Tunnel traps, which include bridge traps (often referred to as rail traps), are efficient methods of controlling small mammalian pest species. Operators of these traps should be aware of where the law originates that allows their use, and of the various restrictions imposed. If the law is understood then the tunnel trap operator should have no worries about falling foul of it.

The law permitting the use of these traps is the Spring Traps Approval (Scotland) 2011, as amended by the Spring Traps Approval (Scotland) Amendment Order 2018. A number of traps over the years have been tried and tested by the then MAFF experts, and more have been tested in recent years on behalf of the Scottish Government.  If the trap on test appears to immediately kill the target mammal it is likely to be given approval to be used.

It is worth noting at this point that the Agreement on International Humane Trapping Standards (AIHTS), to which the UK is a signatory, was fully implemented on 1 April 2020 as per the 2018 Amendment Order. The bulk of this Order took effect, amending the 2011 Order, from 3 January 2019.

This Amendment Order sets a date (1 April 2020) after which certain traps (Fenn-type, WCS tube trap, Kania models and BMI Magnum models) may no longer be used to catch stoats. There is approval for the new Tully trap for stoats, weasels and rats, and the use of DOC traps in run-through tunnels (but not for grey squirrels). A new grey squirrel trap – the Goodnature A18 – is also approved.

From 1 April 2020, the capture of stoats will be permitted under General Licence No 14 (similar to those already governing the trapping of corvids). Trap-users do not need to apply for any general licence, but will need to be familiar with what they say.

Traps listed on the Order and which may legally be used in Scotland, provided there is compliance with the Agriculture (Scotland) Act 1948 and the Animal Health and Welfare (Scotland) Act 2006, are listed shortly.

It is worth discussing first the wording in relation to the traps that the traps shall be used only for the purpose of killing or taking grey squirrels, stoats, weasels, edible dormice, rats and mice. They must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species. A trap operator should read and understand the conditions of use for spring traps listed on Scottish Spring Traps Approval Order; and conduct a risk assessment before setting any trap, using baffles and an appropriate tunnel design to minimise the risk of injuring or killing non-target species.

In the case of areas known to be frequented by red squirrels for example, a trap operator should only be using a live capture trap to catch grey squirrels. This is standard practice on Forestry Commission ground. Should the trap operator find that he or she has caught a non-target species after taking appropriate measures to minimise this risk then they should change their trapping practices and use live-capture traps accordingly. Ultimately, it is for a court to determine whether the trap operator took appropriate measures to prevent the killing or taking of a non-target or protected species.

One recent development on the use of spring traps listed on the Scottish Spring Traps Approval Order is the research which SASA conducted on the Goodnature A24 rat and stoat trap on risks to non-target species (e.g. hedgehogs, cats and birds). This has enabled prescriptive measures to be listed regarding the conditions of use for the Goodnature A24 trap as outlined at that part of the list of traps below.

BMI Magnum 55 – rats, grey squirrels and mice. This trap (and the Magnum 110 and 116) must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

BMI Magnum 110 – grey squirrels, weasels, edible dormice, rats and mice

BMI Magnum 116 – in addition to the 110 list, mink and rabbits

DOC 150 – This trap is to be used only for the purpose of killing or taking grey squirrels, rats, stoats and weasels. Where used in a closed-end tunnel configuration, the trap may be used only for the purposes of killing or taking grey squirrels, rats, stoats and weasels. Where used in a run-through configuration, the trap may be used only for the purpose of killing or taking rats, stoats and weasels, the trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species. The tunnel may be closed-end or a run-through configuration. The tunnel must include an internal baffle arrangement that conforms to the type described in the Department of Conservation’s design specifications as set out in their trap use instructions published on the website of Science and Advice for Scottish Agriculture on 1st January 2019. The trap must be positioned in relation to the baffle or baffles and to the side of the tunnel so that it conforms with those specifications

DOC 200 and DOC 250 – These traps are to be used only for the purpose of killing or taking grey squirrels, mink, rats, stoats and weasels. Where used in a closed-end tunnel configuration, the trap may only be used for the purpose of killing or taking grey squirrels, mink, rats, stoats and weasels. Where used in a run-through configuration, the trap may be used only for the purpose of killing or taking rats, stoats and weasels. The trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species. The tunnel may be closed – end or a run-through configuration. The tunnel must include an internal baffle arrangement that conforms to the type described in the Department of Conservation’s design specifications as set out in their trap use instructions published on the website of Science and Advice for Scottish Agriculture on 1st January 2019. The trap must be positioned in relation to the baffle or baffles and to the side of the tunnel so that it conforms with those specifications

Duke 116 – grey squirrels

Fenn vermin trap Mk IV, Solway Mk 4, Springer No 4 – grey squirrels, weasels, edible dormice (Glis glis), rats and mice. (Stoats were included until 1 April 2020). These traps (plus the Mk VI versions and the Mk 1 rabbit trap) must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

Fenn vermin trap VI, Solway Mk 6 and Springer No 6 – grey squirrels, mink, rabbits, weasels, edible dormice (Glis glis), rats and mice. (Stoats are included until 1 April 2020).

Fenn rabbit trap Mk I – rabbits

Fuller – grey squirrels. This trap must be set within the housing provided by the manufacturer as part of the trap and used in such a way that minimises the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.+

Goodnature A18 grey squirrel trap – grey squirrels and rats. This trap must be (a) set in a natural or artificial tunnel  or enclosure which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species or (b) set at a minimum height of 30cm off the ground and entered by an artificial tunnel attached to the trap and that protrudes for a distance of no less than 70mm from the trap entrance, which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

Goodnature A18 mink trap – mink. This trap must be (a) set in a natural or artificial tunnel or enclosure which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species or (b) set at a minimum height of 30cm off the ground and entered by an artificial tunnel attached to the trap and that protrudes for a distance of no less than 70mm from the trap entrance, which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

Goodnature A24 Pro – rats and mice. This trap must be (a) set in a natural or artificial tunnel or enclosure which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species (b) or set at a minimum height of 30cm off the ground and entered by an artificial tunnel attached to the trap and that protrudes for a distance of no less than 70mm from the trap entrance, which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

Goodnature A24 rat and stoat trap – stoats, rats, weasels and mice. This trap must be (a) set in a natural or artificial tunnel or enclosure which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species or (b) set at a minimum height of 30cm off the ground and entered by an artificial tunnel attached to the trap and that protrudes for a distance of no less than 70mm from the trap entrance, which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

Kania 2000 – grey squirrels, mink, weasels, edible dormice, rats and mice. (Stoats were included until 31 March 2020). This trap must be set within the housing provided by the manufacturer as part of the trap and used only if entered via an artificial or natural tunnel suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.

Kania 2500 – grey squirrels, mink, rabbits, weasels, edible dormice, rats and mice. (Stoats were included until 31 March 2020). This trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

KORO large rodent double coil spring snap trap – grey squirrels and rats. This trap must be so positioned that animals can only enter it from the front (the front is the side from which the letters KORO can be read face on and the correct way up) and must be set within an artificial closed-end tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.

KORO rodent snap trap – rats and weasels. This trap must be so positioned that animals can only enter it from the front (the front is the side from which the letters KORO can be read faceon and the correct way up) and must be set within an artificial closed-end tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.

Nooski – rats. This trap (plus the Nooski mouse trap) must be set within the housing and fitted with the artificial tunnel supplied by the manufacturer as part of the trap, and used in such a way that minimises the chances of killing or injuring non-target species whilst not compromising the killing or taking of target species.

Nooski mouse trap – mice

Procull trap – grey squirrels. The trap must be set in the tunnel provided by the manufacturer as part of the trap and used in such a way that minimises the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of the target species.

Skinns – grey squirrels. This trap must be set within the housing provided by the manufacturer as part of the trap and used in such a way that minimises the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.

Tully trap – stoats, weasel and rats – This trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring nontarget species whilst not compromising the killing or taking of target species.

VS Squirrel trap – grey squirrels. This trap must be set in the artificial tunnel provided by the manufacturer as part of the trap, and used in such a way that minimises the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species.

WCS Collarum – foxes (Note that this is a spring-operated snare rather than a trap). It must be used in such a way that minimises the chances of capturing or injuring non-target species. It must be staked to the ground or attached to an object which will prevent it being dragged by a fox caught by it, but must not be set in such a manner that a captured animal is, or is likely to be, suspended, entangled or drowned by (or in) any fence, obstruction or body of water. It must be checked at least once every day at intervals of no more than 24 hours to see whether any animal is caught in it. The trap must be fitted with a stop which is capable of preventing the noose of the trap reducing in circumference to less than 23 centimetres. In other respects the trap must be free-running.

WCS Tube – grey squirrels, weasels, edible dormice and rats. This trap must be set in the tunnel provided by the manufacturer as part of the trap for use in the United Kingdom and used in such a way that minimises the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of the target species.

Wise 110, 160, 200 and 250 – rats. These traps must be set in a sewer, drainpipe or similar structure and used in accordance with the manufacturers’ operating manual reference UK – 09022010.

By far the most common traps in use prior to April 2020 were the Fenn Mk IV and VI, the Springer No 4 and 6 and the Solway Mk 4 and 6.

In relation to these traps the 2011 Order states that the traps shall be used only for the purpose of killing or taking grey squirrels, (formerly stoats), weasels, edible dormice, rats and mice. They must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of target species. The inclusion of edible dormice (Glis glis) is most likely because they are non-native, as opposed to the native hazel dormouse (Muscardinus avellanarius), which is on Schedule 2 of the Habitats Regulations as a European Protected Species. The UK range of the edible dormouse, at least in the meantime, seems restricted to southern England.

The inclusion of stoats as a legitimate target of these traps was removed as from 1 April 2020, While they may still be used for rats, mice, edible dormice, weasels, grey squirrels and in the case of the larger Mk VI traps, mink and rabbits, it would be an offence in Scotland to set these traps where they are likely to catch stoats. Stoats have a wide range in Scotland, so this severely limits the use of the formerly ubiquitous Fenn-type trap.

There are no offences under the Spring Traps Approval Orders; they simply set out conditions that must be adhered to if traps are now set for stoats. Through the Humane Trapping Standards Regulations 2019, stoats have been included in a new schedule to the Wildlife and Countryside Act 1981, schedule 6ZA. This schedule lists badger, beaver, pine marten, otter and stoat as animals which may not be taken by trapping or snaring. To set a trap for a stoat outwith the conditions of the relevant Spring Traps Approval Order would create the offence.

The legislation contravened is under the Wildlife and Countryside Act as follows:

Section 11   

(2) Subject to the provisions of this Part, a person shall be guilty of an offence if that person—

(a)uses any trap or snare for the purpose of killing or taking or restraining any wild animal included in Schedule 6 or 6ZA; or

(b)sets in position any trap or snare of such a nature and so placed as to be—

(ii)likely to cause bodily injury to any such wild animal 

Animals included in schedule 6ZA were listed earlier. Schedule 6 includes the badger, wildcat, hedgehog, and red squirrel.

In the context of stoats this is quite clear – using a non-approved trap to kill or take a stoat – though this may be difficult to prove if contested in court. Again, in the context of stoats, an example would be setting an unapproved trap in an area where there are known to be stoats since, if caught, they would most certainly sustain bodily injury.

My interpretation of the legislation is that a stoat doesn’t have to be caught in an unapproved trap, simply that an unapproved trap was set in an area where stoats are known or reasonably suspected to be. I’d suggest that this covers a huge part of the UK. Of the many hundreds of thousands of Fenn-type traps that have been set in the countryside most have been set primarily to catch stoats. They are regularly referred to by keepers as ‘stoat traps,’ On this basis if Fenn-type traps are still being set then their presence is worth reporting to the police for investigation.

There is also a relevant offence under Section 50 of the Agriculture (Scotland) Act 1948 (we’re dealing with really ancient legislation now):

Section 50 Prohibition of night shooting, and use of spring traps.
(1)Subject to the provisions of this section, a person shall be guilty of an offence under this subsection if—
(b)for the purpose of killing or taking animals, he uses, or knowingly permits the use of, any spring trap other than an approved trap, or uses, or knowingly permits the use of, an approved trap for animals or in circumstances for which it is not approved; or
(c)he sells, or exposes or offers for sale, any spring trap other than an approved trap with a view to its being used for a purpose which is unlawful under the last foregoing paragraph; or
(d)he has any spring trap in his possession for a purpose which is unlawful under this subsection.

Advice on the website of the Game and Wildlife Conservation Trust states: ‘For those wanting a recommendation, we suggest that where stoats and weasels are the main target, tunnel excluders should have apertures no larger than the 51mm used in the DOC run-through trap baffle. This keeps things simple, is defensible, and is amply big enough for stoats and weasels to enter.’ GWCT appear to be talking about a DOC trap approved to catch stoats with this advice.

Sensibly they also state: ‘Where red squirrels and ring ouzels are present, we strongly discourage the use of rail traps.’#

On the subject of using Fenn traps after 1st April they state: ‘Because of the overlap in body size between weasels and stoats, it is very unlikely that a physical excluder can be devised that will allow weasels to pass through while excluding stoats. We therefore urge trappers to fully embrace change and demonstrate full compliance with the law by switching to new generation stoat traps for both species.’

Lastly they state: ‘The old (Fenn-type) traps will also remain legal for rats and grey squirrels, but there are surely very few situations where a keeper can target these species in full confidence that there is no risk of catching a stoat.’

The only traps that can be now be legally be used against stoats are the DOC 150, 200 and 250, the Goodnature A24, and the Tully trap.

Guidance on the use of DOC traps is provided by SASA and can be found on their website at https://www.sasa.gov.uk/sites/default/files/UK%20Doc%20Trap%20instructions_1.pdf

If a genuine effort is made to comply with the law then even if, for example, a red squirrel or pine marten is caught, the law may not necessarily be broken unless it would be reasonable to conclude that the operator should have known that he would be likely to trap an animal listed in schedule 6 or 6ZA. This is as yet untested in court.

In respect of the heavier and more substantial Fenn Mk VI, the Springer No 6 and the Solway No 6, mink and rabbits may legally be caught in addition to the species on the list that may legally be caught using the Mk IV/No 4 versions. The trapping of rabbits in the open is an offence under section 50A(1) of the Agriculture (Scotland) Act 1948, therefore a trap set for a rabbit must be in a rabbit burrow or suitable tunnel. These traps would also catch and kill stoats so may not be used in circumstances or in areas where they are likely to catch any animal in schedule 6 or 6ZA.

The most common method of abuse with tunnel traps is their use in tunnels where the access is considerably greater that the approved use allows.  Examples are stone-built tunnels with no attempt to restrict access, wooden tunnels with no ends fitted and no attempt to restrict access, or simply a couple of twigs stuck in the ground at the tunnel entrance that a hedgehog, cat or other larger mammal could easily bulldoze aside. Worth again being aware of Section 50(1)(b) of the Agriculture (Scotland) Act 1948, which states ‘for the purpose of killing or taking animals, he uses, or knowingly permits the use of, an approved trap in circumstances for which it is not approved’ might be the most relevant offence.

From time to time traps which must by law be set in tunnels are found set in the open. These may be for rats, on a run used by a rat or in a grain store, or for birds on the ground beside a bait or on top of a pole in the manner of a pole trap.  These traps must not be used outwith a tunnel or for the purpose of catching birds. The offences are not committed under the Spring Traps Approval (Scotland) Order, which simply approves certain traps for use; the offence committed, if set for a rat in the manner indicated, would be the use of a spring trap for the purpose of killing or taking animals in circumstances for which it is not approved (s. 50(1)(b) Agriculture (Scotland) Act 1948).

With the example relating to taking a wild bird, there may be an offence under the same section, though it is not clear in the Act whether ‘animals’ assumes its generic meaning of any living organism apart from bacteria and plants, since earlier in the Act it mentions ‘animals and birds.’ In any event there would be one or more of the following offences committed: intentionally or recklessly killing, injuring or taking a wild bird (s. 1 WCA); attempting to do so (s. 18 WCA); or using a trap to kill or take any wild bird (s. 5 WCA). (see Offences against wild birds – bird of prey persecution – Fenn-type traps)

 There is a clear power (s. 19 WCA) without warrant for a police officer to enter and search land if a crime is being committed against wild birds, however there is not always the same power available when a crime is being committed against a mammal. For enforcement purposes with tunnel trap investigations it would seem reasonable to assume that a tunnel trap set illegally is either:

  • Set in the open for birds, in which case the power to enter and search land without warrant would be under section 19 of the Wildlife and Countryside Act 1981; or
  • Set in a place that is likely to catch a protected species of mammal, in which case the same power of entry and search applies.

Police officers investigating offences relating to mammal 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 and the wire attaching the peg to the trap are examples. Identical items may be found in the possession of the suspect.

Returning to the traps likely to replace Fenn-type traps, the DOC 150, 200 and 250, the Goodnature A24, and the Tully trap, these should be the norm from 1 April 2020. They are expensive, and the cost of replacing the hundreds of Fenn-type traps in use in the countryside may discourage some people from replacing their traps, with the result they may continue to risk using their original traps. Of the versions of traps available the DOC traps must be set in a tunnel of the mandatory specifications outlined in the 2018 Amendment Order. This may be complicated unless the specially designed box is bought as well, putting the total cost per unit to close to £100. The Goodnature trap costs over £100. The Tully trap looks to be a good design and costs just over £50 together with a metal box for the trap to fit into. It looks the most likely to be able to be adapted to the present tunnels and bridge/rails that currently house Fenn-type traps.

Gin traps

There are no circumstances in which these traps can legally be used. It is not an offence to possess a gin trap, though it is an offence to possess one with intent to use it (s. 50(1)(d) Agriculture (Scotland) Act 1948).

 There will seldom now be instances where gin traps are used to catch rabbits.  Nevertheless their use when legal was to place the trap, with the jaws end first, in the entrance to a rabbit burrow. The plate was lightly covered with fine earth, making the trap almost invisible.  A chain was attached to the trap and the holding peg was hammered into the ground outside the burrow.  When the rabbit emerged it stood on the plate, activating the trap, and invariably was caught by one or both front legs.  Part of the reason that the gin trap was banned is that it is a leg-hold trap which does not kill its victim but holds it by the leg, causing substantial pain and injuries.

 It must be said that gin trap offences are now extremely uncommon, nevertheless there have been occasional instances when gin traps – either the rabbit gin trap or the larger fox gin trap – have been used at fox dens (use non- approved trap or possess for that purpose – s. 50(1)(b) Agriculture (Scotland) Act 1948, or possibly deliberately crushing a wild mammal – s. 1 Wild Mammals (Protection) Act 1996).  Rabbit gin traps are likely to be used just inside the entrances to the den to catch cubs.  Fox gin traps are likely be used just outside the den to catch an adult fox, though adult foxes are wily creatures and are extremely difficult to catch by this method.

Gin traps have also been used to catch foxes by using them in a ‘pool trap’ situation also sometimes known as a ‘drowning set’.  In this type of incident, a bait, often a long-dead cat or something equally strong smelling, is set out in water about 3 feet or so from the bank but visible above the water.  To get to the bait a fox will wade out, to be caught by a gin trap that the operator has set underwater midway between the bank and the bait.

Gin traps may also be found to be used, in the same way as Fenn traps, covered over with fine earth, grass moss or leaves, to catch mammals, particularly cats. The catching of a cat, which is a domestic animal, can include an animal welfare offence (s.19 Animal Health and Welfare (Scotland) Act 2006).

The police power without warrant to enter land to search for a gin trap offence is not always straightforward and needs to be considered as follows:

  • Known or reasonably suspected that a bird has been caught. –  Power under the Wildlife and Countryside Act (s. 19 WCA) to enter and search land, which allows the gathering of evidence, and by visiting the locus, the chance to relieve suffering.
  • Known or reasonably suspected that a mammal caught is on Schedule 5 or 6 of the WCA, or Schedule 2 or 3 of the Habitats Regs. –  Power under either legislation (s. 19 or reg. 101 respectively) to enter and search land, which allows the gathering of evidence, and by visiting the locus, the chance to relieve suffering.
  • Known or reasonably suspected that a mammal has been caught, though species, or even if it is a wild or domestic mammal, not known. – Power under the Animal Health and Welfare (Scotland) Act 2006 to enter land to relieve the suffering of an animal, though not to gather evidence for a prosecution if a warrant can be obtained. However at paragraph 4(3) of Schedule 1 to the 2006 Act a constable may enter premises (the 2006 Act always mentions premises, though bearing in mind PF Peebles v Andrew Crawford Struthers – see pXX –  it is likely that this would include land) and search for, examine and seize any animal (including the carcass of an animal), equipment, document or other thing tending to provide evidence of the commission of, or participation in a ‘relevant offence’, and do so without warrant if it appears that delay would frustrate the purpose for which the search is to be carried out.    (At Paragraph 4(5) of the 2006 Act a ‘relevant offence’ is
    • an offence under sections 19 to 23 (causing unnecessary suffering; mutilations; cruel operations; administration of poisons; animal fights)
    • an offence under section 24 (ensuring welfare of animals)
    • an offence under section 29 (abandonment of animals)
    • an offence under section 40(11) (breaching a disqualification order))
  • Known that a gin trap has been set, but has not caught anything. – A bit more thought required, though animal welfare must be paramount. Consider if there is reasonable cause to believe that the gin trap has been set for a bird or one of the protected mammals already discussed, or from the knowledge available if it is likely to trap one of those. If so follow the course of action appropriate to the species, as the offence would be an attempt to kill or injure, which carries the same powers. If nothing further is known about the species intended (or likely) to be trapped, then use the powers under the Animal Health and Welfare Act to enter land to relieve suffering – in other words to remove the trap to prevent an animal being caught. If required, a warrant can be applied for to gather evidence for a prosecution.

During the investigation, officers should consider who might have a motive to set the gin trap, particularly if the target species is known. When taking a gin trap as a production, bear in mind that like Fenn traps set in tunnels, a wooden peg is made and fitted to the gin trap by the person using it.  The pin and the way the pin is secured to the trap often give them a degree of uniqueness.  If there is a suspect, gin traps with similar fittings may be found in a shed, store or vehicle used by the suspect.

Offences under the WCA, Habitats Regulations and the Animal Health and Welfare (Scotland) Act are punishable by imprisonment.

Deadfall trap

A deadfall trap is a device not commonly encountered in Scotland. Two flat slabs of rock are used; one slab lies flat on the ground, while the other is propped up at roughly a 45-degree angle to it, held up by a configuration of sticks. The sticks hold down a small piece of bait. It is designed to catch small pest species, which come along and pull at the bait, dislodging the sticks and causing the 45-degree slab to fall on top of them, potentially crushing them.

Since the traps are non-selective it is possible that they may catch non-target species which, if they are larger than the target species – for instance a wildcat or pine marten – they may be injured rather than killed. In general terms the use of these traps does not appear illegal, though if they are set in an area where they are likely to catch an animal included in schedule 6 or 6ZA they would be illegal. The prosecution, however, would need to show that the person accused knew, or at least ought to have known, of the presence of any schedule 6 or 6ZA animals and the likelihood of one being caught, thus making the use of the trap reckless. (S.11 WCA)

 Lastly there may be an offence under the Animal Health and Welfare (Scotland) Act 2006 (section 19) if the trap is not being checked regularly and an injured animal is left suffering. Though this legislation mainly deals with cruelty to domestic animals, once a wild animal is under the control of man it is covered by the Act.

 

…………………

 

Schedule 6ZA

Animals which may not be killed or taken by trapping or snaring

Badger                                                   Meles meles

Beaver, European                                Castor fiber

Marten, Pine                                        Martes martes

Otter, Common                                    Lutra lutra

Stoat (otherwise known as Ermine)               Mustela erminea

 

                                                      ……………………

P101

This section relates to the sale of wild birds legitimately kept or bred in captivity. This was formerly permitted under general licence 11. The relevant licence is now general licence 10.

 P101/102

These pages also cover the rearing of chicks from Schedule 4 birds.  The relevant general licence in this case has changed from licence 8 to licence 7

 P106

This section relates to the keeping of wild-disabled Schedule 4 birds for rehabilitation purposes. This was formerly permitted under general licence 6. The relevant licence is now general licence 5. In relation to keeping these birds for veterinary treatment the licence has changed from licence 7 to licence 6.

P107

In the section relating to the catching up of grouse for the purpose of preventing disease this was formerly permitted under general licence 5. The relevant licence is now general licence 4.

 

                                                             ……………………

 P187 The Ivory Act 2018 – update

Despite this Act receiving royal assent in December 2018 its implementation was delayed because of a court action by the antiques lobby. In May 2020 the courts dismissed the action so it is likely that implementation of the Act will follow shortly.

 

………………………….

P234.

The following may be inserted at the end of the chapter on legally taking or killing ‘game’ species. Wild geese of course are not game birds.

For many years it has been illegal to trade in wild geese. General licence 15 now permits an authorised person to sell, advertise, possess and transport whole carcasses, meat or other products derived from greylag geese for the purpose of sale. An authorised person is a person legally able to kill greylag geese and also those who operate according to Food Hygiene legislation. An authorised person must keep records to comply with food hygiene regulations.

This relaxation is only valid only for greylag geese killed on Orkney, the Outer Hebrides and Tiree and Coll. The sale is permitted Scotland-wide from 1st April 2020 until 31st December 2020 unless previously revoked.

…………………………………

List of general licences for 2020

Below are the SNH General Licences for Birds valid for 2020 (from 1st April).  GL 04 for air safety no longer exists, and the General Licences have been re-numbered to reflect this.

GL01/2020 – To kill or take birds for the conservation of wild birds – 1st April to 31st December

GL02/2020 – To kill or take certain birds for the prevention of serious damage – 1st April to 31st December

 

GL03/2020 – To kill or take certain birds for the preservation of public health, public safety and preventing the spread of disease – 1st April to 31st December

 

GL04/2020 – To take red grouse using certain methods in order to administer medication or collect samples – 1st April to 31st December

 

GL05/2020 – To keep disabled, wild-bred Schedule 4 birds for rehabilitation – 1st April to 31st December

 

GL06/2020 – To keep disabled, wild-bred Schedule 4 birds for veterinary treatment – 1st April to 31st December

 

GL07/2020 – To rear chicks from captive-bred Schedule 4 birds – 1st April to 31st December

 

GL08/2020 – To permit the competitive showing of certain captive-bred live birds – 1st April to 31st December

 

GL09/2020 – To keep certain captive-bred live birds in show cages for training purposes – 1st April to 31st December

 

GL10/2020 – To sell certain live captive-bred species of wild bird – 1st April to 31st December

 

GL11/2020 – To sell feathers and parts of certain dead birds which have been captive bred or legally taken from the UK – 1st April to 31st December

 

GL12/2020 – To sell certain dead birds which have been captive-bred or legally taken from the European Union – 1st April to 31st December

 

GL13/2020 – To take unsuccessful eggs laid by wild birds from nest boxes – 1st April to 31st December

 

GL15/2020 – Sale, advertisement, possession, transportation of greylag goose & greylag goose meat by hunters, caterers and retailers – 1st April to 31st December

 

…………………….

GL 14/2020: To use certain traps to kill stoats for the conservation of wild birds or for prevention of serious damage to livestock.

General Licences allow authorised people to carry out activities that would otherwise be illegal under the Wildlife & Countryside Act 1981 (as amended).

Terms and conditions

If you operate under General Licence 14/2020 you must meet the following terms and conditions otherwise your actions may constitute an offence which could lead to prosecution.

What can this General Licence be used for?

Authorised persons (trap operators) can carry out the following activities for the purpose of conserving wild birds and/or prevention of serious damage to livestock:

  • to use traps to kill certain wild mammals listed below

Who is an authorised person?

An authorised person is the owner or occupier of the land on which the action will be carried out, or any person nominated by the owner or occupier of that land.

When and where is this General Licence valid?

Across Scotland from 1 April to 31 December 2020

What restrictions apply to the use of this General Licence?

This General Licence cannot be used by those convicted of a wildlife crime on or after 1 January 2015 unless, in respect of that offence, they are a rehabilitated person (for the purposes of the Rehabilitation of Offenders Act 1974 and that conviction is spent), or a court discharged them absolutely.

Any person not able to use the General Licence can still apply to NatureScot for an individual licence. Email: Licensing@nature.scot

What other information must authorised persons know before considering the use of this General Licence?

Trap operators must:

  • understand this General Licence and comply with its terms and conditions
  • only use it for the conservation of wild birds or for prevention of damage to livestock
  • Comply with the Spring Traps Approval (Scotland) Amendment Order 2018

What are the registration & reporting requirements for this General Licence?

There are no registration nor reporting requirements under this Licence.

What species may be taken or killed under this General Licence?

Stoat Mustela erminea

What methods of taking or killing are permitted under this General Licence?

Kill traps of the following types DOC 150 DOC 200 DOC 250 Tully Trap Goodnature A24 rat & stoat trap

What general animal welfare requirements are there when using this General Licence? Operators must comply with the manufacturer’s instructions relevant to the type of trap operated under this Licence.

What other trapping conditions are there?

Anyone wishing to use live traps to control stoats must apply for an individual licence by contacting Licensing@nature.scot

Trap use conditions

DOC 150/200/250 The trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing of stoat. The tunnel may be closed-end or a run-through configuration. In either case, the tunnel must include an internal baffle arrangement as set out in the manufacturer’s instructions for use of DOC traps in the UK, available on the website of Science and Advice for Scottish Agriculture The trap must be positioned in relation to the baffle or baffles and to the side of the tunnel so that it conforms to those specifications.

Tully Trap The trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of stoat.

Goodnature A24 rat & stoat trap The trap must be (a) set in a natural or artificial tunnel or enclosure which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of stoat or (b) set at a minimum height of 30cm off the ground and entered by an artificial tunnel attached to the trap and that protrudes for a distance of no less than 70mm from the trap entrance, which is suitable for minimising the chances of capturing, killing or injuring non-target species whilst not compromising the killing or taking of stoat.

Definitions For the purposes of this General Licence;

“wildlife crime” means any offence under the Wildlife & Countryside Act 1981, the Conservation (Natural Habitats &c.) Regulations 1994, the Protection of Badgers Act 1992, the Protection of Wild Mammals (Scotland) Act 2002, Deer (Scotland) Act 1996, Agriculture (Scotland) Act 1948, the Animal Health & Welfare (Scotland) Act 2006, the Protection of Animals (Scotland) Act 1912 and the Wild Mammals (Protection) Act 1996 (all as amended). “wild bird” means any bird of a species which is ordinarily resident in or is a visitor to any member State or the European territory of any member State in a wild state but does not include poultry.

“Bird” includes all stages from egg to adult.

“livestock” means any animal which is kept— (a) for the provision of food, wool, skins or fur; (b) for the purpose of its use in the carrying on of any agricultural activity; or (c) for the provision or improvement of shooting or fishing

“NatureScot” means Scottish Natural Heritage acting under its operating name NatureScot

 

 

 

 

 

 

 

 

 

 

     

 

  

 

  

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