Regular readers will know I take a keen interest in wildlife crime and how it affects our birds. This week saw the publication of the House of Commons Environmental Audit Committee report on Wildlife Crime. It has plenty to say about wildlife crime particularly in relation to birds of prey and some pretty good recommendations. I've quoted a few paragraphs below with some of the key points but you can download the pdf here, please consider taking a few minutes out to email your MP and ask that they support the implementation of these recommendations in full, particularly with reference to the proscribing the possession of poisons and the introduction of vicarious liability.
After our predecessor Committee’s wildlife crime inquiry in 2004, Defra has acknowledged the environmental impact of illegal wildlife poisoning and the need to introduce controls by enacting new primary legislation. Section 43 of the Natural Environment and Rural Communities Act 2006 allowed the Secretary of State to proscribe the possession of banned pesticides in England and Wales, but no Order listing the proscribed substances has been made. Given that the power to proscribe possession already exists in primary legislation, this is an inexplicable omission and a failure to follow through
on the logic of the 2006 Act. There is a broad consensus on that point, because the RSPB, the Countryside Alliance, other NGOs and the police support the introduction of an Order under the 2006 Act making it an offence to possess named pesticides.
An offence of possession could drive culture change by sending a clear signal on bird of prey poisoning as well as directly helping to protect the environment by curtailing the activities of the most serious offenders through prosecution and conviction. Carbofuran is so toxic that even a lone poisoner who possesses a relatively small quantity of it has the capacity to cause irreparable environmental damage. An Order made under the 2006 Act would also allow magistrates to impose custodial sentences in the most serious cases.
When we raised the idea that it might be beneficial to proscribe possession of carbofuran in England and Wales with the Defra Minister Richard Benyon MP, he replied, “In view of the legislation already in place, an order under section 43 of the [Natural Environment and Rural Communities Act 2006] will not be pursued at this time”.76 In subsequent correspondence, he set out two reasons why Defra was not minded to introduce an Order making it an offence to possess carbofuran.77 First, the Minister pointed out, “The intentional use of poisoned bait to kill any wild bird is already prohibited
under section 5 of the Wildlife and Countryside Act 1981”.78 However, we took evidence that highlighted the difficulty of securing convictions under that legislation, which consequently lacked a deterrent effect. Such crimes mostly took place in physically isolated locations, which made it difficult to ascertain who had set the poisoned bait and to gather other evidence. The case in Skibo in Scotland (paragraph 29) was investigated following the discovery of the carcasses of several golden eagles and other birds of prey poisoned by carbofuran. Although the manager of the estate was convicted of possession of carbofuran, no one was charged with poisoning offences under Section 5 of the Wildlife and Countryside Act 1981, which illustrated the difficulty of obtaining convictions under that legislation and the value of an offence of possession.
Secondly, the Minister stressed the advantages of a voluntary approach and raised the issue of proportion:
We are carefully considering the laws surrounding possession of pesticides that are harmful to wildlife but so far conclude that an Order may not be a proportionate course of action and that there could be alternative ways to handle the issue. These might include voluntary codes of practice … or encouraging participation in amnesty initiatives such as that run for farmers through Project SOE (Security of the Operational Environment). Under the first phase of that project nearly 1,000 stores
were cleared of 40 metric tons of redundant and unapproved pesticides. It seems doubtful to us that those who are responsible for poisoning of birds of prey would voluntarily surrender their stocks of carbofuran, because, as far as they are concerned, carbofuran is not a redundant substance—indeed, it is highly effective for its purpose. Furthermore, the Scottish experience, where 10 convictions for possession have occurred in the past seven years82, does not suggest the disproportion that the Minister fears.
To discharge its obligations under the EC Birds Directive, to demonstrate its commitment to addressing raptor persecution and to send a clear signal that it regards poisoning birds of prey as wholly unacceptable, we recommend that the Government immediately introduces an Order under Section 43 of the Natural Environment and Rural Communities Act 2006 proscribing possession of carbofuran and other similar substances in England and Wales.
On vicarious liability:
Raptor persecution involves not only poisoning, but nest disturbance or destruction, egg theft, chick theft and unlicensed shooting.84 Species such as the hen harrier feed on live prey and are not vulnerable to poisoning by eating carrion laced with poison. Instead, the Joint Nature Conservation Committee’s Conservation Framework for Hen Harriers found that the most common form of persecution of that species was deliberate nest disturbance.85 Given the isolated physical locations, often on private land, where offences are committed and the ease with which evidence such as carcasses could be disposed of, the precise extent of such persecution in the UK is unknowable, although an RSPB log of reported incidents indicates a consistent level of persecution over the past decade. In addition, scientific analyses of the total number of birds of prey in the UK, such as the
comprehensive Conservation Framework for Hen Harriers, have consistently found that persecution has a measurable impact on population size.
An offence of vicarious liability would impose criminal liability on those whose employee or contractor committed an offence against a bird of prey, unless they could show that they were unaware of the offence and had exercised due diligence. It could make landowners take responsibility for the activities of gamekeepers and others who work on their land. The introduction of such an offence in England and Wales would, like tougher legislation on pesticide possession (paragraph 37), send a clear signal that the Government regarded the persecution of birds of prey as wholly unacceptable. In practical terms, vicarious liability would encourage responsible landowners to make it clear to their employees and contractors that raptor persecution was unacceptable and to check that such practices were not occurring on their land.
Addressing hen harrier persecution is especially necessary because it is on the brink of extinction as a breeding species in England with only four successful nests in 2011, and it is arguably the most vulnerable of all indigenous species.88 Persecution has been identified as a factor affecting the distribution, abundance and productivity of the hen harrier in five academic studies conducted over a number of years.89 The National Gamekeepers Organisation questioned this proposition in its oral evidence,90 but it did not adduce any factors not addressed in the modelling that underpinned the Conservation Framework for Hen Harriers.91 The persecution of birds of prey on moorlands used for shooting is not only illegal and highly damaging to biodiversity, but ineffective in terms of increasing the stock of game birds, because research indicates that only between 1% and 2% of pheasant
poults are taken by birds of prey.
On 23 May 2012, Defra announced a £375,000 research scheme to explore management techniques to curb the supposed predation of pheasant poults by buzzards; it announced that the scheme had been dropped in the light of widespread public concern on 30 May 2012.98 Its total funding for the National Wildlife Crime Unit was £136,000 in 2012, so £375,000 is a relatively large sum in the context of overall Government spending on wildlife crime. When we asked the Defra Minister Richard Benyon MP whether he would be interested in our suggestions on how that money might subsequently be allocated, he replied: Certainly, yes. None of us has a sum total of all the knowledge on these matters. I recognise the sensitivity of this, and I know the Committee does as well, but we want
to ensure that the recommendations that we take forward, as well as being mindful of that sensitivity, push Government to make the right decision for biodiversity.
Given the scale of ongoing persecution of birds of prey, the current law appears to carry insufficient deterrent weight.
We recommend that the Government evaluates the effect of the introduction of an offence of vicarious liability in relation to raptor persecution in Scotland and considers introducing a similar offence in England and Wales in that light. We expect the Government to report to us, or otherwise publish, the results of that review within the next 12 months.