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 Post subject: Disturbance and the Law
PostPosted: Thu Mar 25, 2010 6:58 pm 
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Location: Fulbeck, Grantham
Disturbance and the Law

Mark Thomas from the RSPB, has provided the following advice for Lincolnshire.

For Schedule 1 species (rare/scare breeding birds) it is an offence to intentionally or recklessly disturb the bird(s) whilst it is building a nest, or is in, or near a nest containing eggs or young. It is also an offence to disturb dependent young of Schedule 1 species. Intentional disturbance is clearly when a person carries out an act with the intent to disturb an egg collector flushing a bird off a nest in order to take its eggs for example. Reckless disturbance is when a person considers their actions may possibly cause a disturbance but continues anyway and then in doing so does disturb a bird.

For all non-Schedule 1 species (all commoner birds) there is no law protecting them from disturbance, unless a bird is on a SSSI and is part of that sites designated special feature – such as a Nightjar on a heathland SSSI.

In order for a case of disturbance to reach a prosecution stage then an incident needs to be reported to the Police and sufficient evidence from one or more witness (usually backed up with an avian expert's analysis of the facts) needs to be considered by the CPS, who, based on various criteria, will decide if the case should reach court.

In legal terms, a person luring out a breeding Grasshopper Warbler, Nightingale or Redstart (all non Schedule 1) by playing a tape, commits no offence even if the bird is disturbed. We should not forget the moral aspect however.

BUT if the same situation occurs with say a breeding Woodlark, Bearded Tit or Black-necked Grebe (all Schedule1) then it is likely an offence has been committed if the bird is building a nest, or is in, on or near a nest containing eggs, or young, or has dependent young. It relies on someone witnessing the disturbance. It may be that the person causing the offence does not know that the bird is near an active nest BUT if it is in the breeding season in breeding habitat, then it is likely that a court would focus on the reckless element and on the persons knowledge, intentions and actions.

To assist research, a government licenses can be issued for activities which are likely to cause disturbance to Schedule 1 species. These are considered on merit and relate to the conservation status of the species. Examples could include tape playing to census hard to located breeding species, nest photography, ringing chicks.

Beside the law, these is also the Birdwatchers Code of Conduct which focuses on the moral issues surrounding disturbance

Mark Thomas, RSPB Species Protection.

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Andrew Chick
Website: http://www.forktail.co.uk/


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