Wildlife (Amendment) Act 2000

“(cc) any other land held by the Minister for the purposes of the Wildlife Acts, 1976 and 2000,”,

(b) in subsection (2), by the substitution of “seabed nature reserve, or to all or any other land held by the Minister for the purposes of the Wildlife Acts, 1976 and 2000” for “seabed nature reserve” where it last occurs, and

(c) by the substitution of the following for subsection (3):

“(3) Regulations under this section which apply to foreshore shall regulate access to or use of such foreshore to such extent as the Minister considers necessary for the conservation of wildlife or of a wildlife habitat or of geological or geomorphological features, as the case may be, and such regulations shall be made by him only with the consent of the Minister for the Marine and Natural Resources and in addition to the foregoing, where the regulations relate to foreshore other than foreshore which is held by the Minister, they shall be made only after consultation with—

(a) in case such foreshore is held by the Commissioners, the Commissioners,

(b) in any other case, the Minister of the Government by whom the foreshore is held”,

and the said subsection (1) (other than paragraphs (a), (b) and (d)), as so amended, is set out in the Table to this section.

TABLE

(1) Subject to subsections (3), (4) and (7) of this section, the Minister may make regulations permitting the public generally or any particular class or section of the public or the members of any body of persons which is of a particular class or description or the members of a particular body of persons, to have access to and use in accordance with the regulations—

(c) any land (including land covered by inland waters) to which an establishment order applies and which is land owned by the State whether or not the Minister has a joint or several interest in such land (which land is so referred to as a State land nature reserve),

63. Amendment of section 69 (attempts etc. and miscellaneous other offences) of Principal Act.

63.—Section 69 of the Principal Act is hereby amended—

(a) F22[…]

(b) in subsection (5), by the substitution of “any specimen of flora, fauna, fossils or minerals” for “any specimen of flora or fauna” and of “part, product or derivative” for “part or product”,

(c) in subsection (5), by the substitution of “section 72(7) or 73(1)” for “section 73(1)”,

(d) by the insertion, in subsection (6), of “or permission” after “licence”, and

(e) by the addition of the following after subsection (7):

“(7A) Where any person uses or allows or causes to be used a vessel, aircraft or mechanically propelled vehicle as an aid to the commission of an offence under the provisions of the Wildlife Acts, 1976 and 2000, or of any instrument made under those Acts, that person shall be guilty of an offence.”,

and the said subsections (5) and (6), as so amended, are set out in the Table to this section.

TABLE

(5) Any person who conceals from a person lawfully exercising a power under section 72 or 73 of this Act any specimen of flora, fauna, fossils or minerals or part, product or derivative of such specimen or anything which is a thing mentioned in section 72(7) or 73(1) of this Act shall be guilty of an offence.

(6) Any person who contravenes a condition attached to a licence or permission granted by the Minister under this Act shall be guilty of an offence.

64. Amendment of section 70 (prosecution of offences) of Principal Act.

64.—Section 70 of the Principal Act is hereby amended—

(a) in subsection (2) by the deletion of “not below the rank of Assistant Secretary”, and

(b) by the insertion of the following after subsection (3):

“(4) Nothing in this section shall prevent the prosecution under the Customs Acts for offences committed under the said Acts in respect of a contravention of section 53A of this Act.”,

and the said subsection (2), as so amended, is set out in the Table to this section.

TABLE

(2) Subject to section 44(4) of this Act, summary proceedings for any offence under this Act may be prosecuted by a person who is neither the Minister nor a member of the Garda Síochána with the consent of the Minister or an officer of the Minister nominated by the Minister for the purpose.

65. Amendment of section 72 (powers of Garda Síochána and authorised person) of Principal Act.

65.—Section 72 of the Principal Act is hereby amended—

(a) by the substitution of the following for subsections (1) and (2):

“(1) (a) The Minister may appoint in writing, and for such of the purposes of either or both this Act and the CITES Regulations as the Minister shall specify, a person to be an authorised person for the purposes so specified.

(b) In appointing a person to be an authorised person for specified purposes, the Minister may attach limitations to the exercise of functions by the authorised person by reference to all or any of the following, that is to say:

(i) the nature of the functions which such person may exercise or perform, and

(ii) the time, place and circumstances in which such person may exercise or perform such functions.

(c) Where a person has been appointed to be an authorised person under this subsection, the person shall hold office until—

(i) the appointment is terminated by the Minister, or

(ii) a written resignation signed by the person is received by the Minister.

(d) The Minister may terminate the appointment of an authorised person appointed under subsection (1) of this section by giving one month's notice, in writing, to the person.

(2) A member of the Garda Síochána or an authorised person who has reasonable grounds for suspecting that a person has committed an offence under any provision of the Wildlife Acts, 1976 and 2000, may, at all reasonable times, stop and search any person who is suspected by such member or authorised person, as the case may be, of being in any way concerned in the offence and require the person to give his name and address and to declare and, if such member or authorised person, as the case may be, considers it necessary to produce on demand for examination—

(a) any specimen of fauna, flora, fossils or minerals or any part, product or derivative of any such specimen, or

(b) any licence or permission granted by the Minister under the Wildlife Acts, 1976 and 2000 (including any certificate deemed, pursuant to section 29(5) of this Act, to be a licence so granted), or

(c) in the case of a person who is resident in a Member State of the European Community other than the State, any European Firearms Pass duly issued to such person to which paragraphs (4) and (5) of Regulation 7 of the European Communities (Acquisition and Possession of Weapons and Ammunition) Regulations 1993 (S.I. No. 362 of 1993), relate or any other permit, licence, authorisation or other document duly issued by a national competent authority of such a Member State, or

(d) any permit or certificate issued for the purposes of the CITES Regulations together with any supporting documents in the person's possession and any permit or certificate to which Article 11 of Council Regulation (EC) No. 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein relates, or

(e) any thing which is mentioned in subsection (7) of this section, which is in the person's possession,

and such member or authorised person may seize and retain any specimen or part, product or derivative of a specimen or any thing so produced which appears to him to be something which might be required as evidence in proceedings for an offence under this Act.

(2A) A member of the Garda Síochána or an authorised person may, if such member or authorised person has reasonable grounds for suspecting from the activity of any person (in this subsection referred to as the ‘suspected person') that an offence under any provision of this Act is being, or has been, committed, in the presence of such member or person, by the suspected person and that person has, or had at the time of being so suspected, in his possession, or under his control, anything which is mentioned in subsection (7) of this section or any other thing capable of being used to commit an offence, then such member or authorised person may, without prejudice to any other function exercisable by such member or person—

(a) require the suspected person—

(i) to desist from continuing or recommencing that activity, and

(ii) to furnish his name and address and, if requested, to verify the information given,

and

(b) arrest or cause any other person acting under direction of such member or authorised person to arrest or to assist in arresting the suspected person if that person continues or recommences that activity or fails to furnish his name or address or furnishes a name or address which in the circumstances there are reasonable grounds to suspect is false or misleading,

and where the suspected person has been so arrested by an authorised person, the authorised person shall, as soon as is practicable in the circumstances, deliver the suspected person into the custody of a member of the Garda Síochána to be dealt with according to law.”,

(b) in subsection (3)—

(i) by the substitution of “for suspecting that a person is committing or has committed an offence under any provision of the Wildlife Acts, 1976 and 2000” for “for suspecting that a person has committed an offence under Part II or under section 45, 47, 51, 52 or 53 of this Act”,

(ii) by the insertion of “enter any land (other than a dwelling) to which the suspicion relates and may also, whether on that land or otherwise” after “at all reasonable times”,

(iii) by the substitution, in paragraph (a), of “any provision of the Wildlife Acts, 1976 and 2000” for “the said section 51, 52 or 53”, of “fauna, flora, fossils or minerals” for “fauna or flora” and of “vessel or aircraft or any mechanically-propelled vehicle used or suspected of being used” for “vessel or aircraft which he reasonably suspects of being used”,

(iv) by the insertion of the following after paragraph (d):

“(e) seize and detain any vehicle, vessel, aircraft or mechanically-propelled vehicle which he reasonably suspects of being used in committing an offence under the Wildlife Acts, 1976 and 2000, and which appears to his to be something which might be required in evidence in proceedings for an offence under the Wildlife Acts, 1976 and 2000,

(f) require, if considered necessary in order to determine the identity or ancestry of any specimen of fauna, the taking from that specimen of a sample of blood or tissue but only if—

(i) the sample is taken by a registered veterinary surgeon, and

(ii) in the opinion of the registered veterinary surgeon the taking of such a sample will not cause lasting harm to the specimen.”,

(c) in subsection (4), by the substitution of “any dwelling” for “buildings on land” in paragraph (b), and

(d) by the substitution of the following for subsection (7):

“(7) The things referred to in subsections (2) and (2A) of this section are—

(a) a dog or a bird or other animal suspected of being capable of use—

(i) to hunt, pen, retrieve or otherwise be involved in the capture of fauna, or

(ii) to find or assist in the finding of flora,

(b) a firearm, trap, snare, net, line, hook, arrow, dart or spear, or a similar device, instrument or missile calculated or likely to cause death or bodily injury to or causes to be captured alive, any wild bird or wild animal coming in contact with it,

(c) birdlime or any substance of a like nature,

(d) poisonous, poisoned or stupefying bait, tracer shot or a gun or explosive mentioned in section 33(2) of this Act, or any containers of gas or smoke or chemical wetting agents mentioned in section 34(1) of this Act,

(e) a decoy or electrical or other instrument, device or appliance mentioned in section 35(1) or 38 of this Act, and

(f) any type of material or form of equipment used for geological or geomorphological purposes.”,

and the said subsections (3) (down to and including paragraph (a)) and (4)(b), as so amended, are set out in the Table to this section.

TABLE

(3) A member of the Garda Síochána or an authorised person may, if he has reasonable grounds for suspecting that a person is committing or has committed an offence under any provision of the Wildlife Acts, 1976 and 2000, at all reasonable times enter any land (other than a dwelling) to which the suspicion relates and may also, whether on that land or otherwise—

(a) search any vehicle, vessel or aircraft or any mechanically-propelled vehicle used or suspected of being used to transport, export or import any specimen of fauna, flora, fossils or minerals or any part, product or derivative of any such specimen contrary to any provision of the Wildlife Acts, 1976 and 2000, and such member or authorised person, for the purpose of carrying out the search, may, if he thinks fit, require the person who for the time being is in control of the vehicle, vessel or aircraft to bring it to a stop or refrain from moving it,

(b) Paragraph (a) of this subsection shall not be construed as enabling a member of the Garda Síochána or an authorised person to enter any dwelling.

66. Inspection of land.

66.—(1) Without prejudice to the powers of an authorised person by virtue of section 72 of the Principal Act, any person appointed in writing by the Minister under the said section 72 to be an authorised person may at any reasonable time enter on, inspect and survey any land (other than any dwelling thereon) for any purpose (apart from the purposes mentioned in subsection (2)) in connection with the performance by the Minister of functions under this Act and the Principal Act.

(2) (a) An authorised person may at any reasonable time enter on and inspect any land to which a recognition order relates to ascertain whether or not the objectives indicated in the order are being, or have been, attained, or, where attained, are being maintained.

(b) An authorised person may on reasonable grounds at any reasonable time enter on, inspect and survey any land (other than any dwelling thereon) for the purpose of—

(i) ascertaining whether the lands form or are part of, or are in need of protection as, a natural heritage area, or

(ii) ascertaining whether there is any fauna or flora on the land in need of protection under section 17 of the Principal Act, or

(iii) surveying or monitoring relevant to the conservation status of habitats or species.

(3) When exercising a function conferred by this section, an authorised officer shall, if requested by any person affected, inform such person of the nature of the function being exercised and produce for inspection that officer's certificate of authorisation.

(4) An authorised person entering on land under this section may do thereon all things reasonably necessary for the purpose for which the entry is made and may be accompanied by such other persons as may be reasonably necessary in assisting him or her so to do.

(5) Before an authorised person enters on any land for the purposes of subsection (1) of this section, he or she shall either obtain the consent, in the case of occupied land, of the occupier, or, in the case of unoccupied land, of the owner, or shall give to the owner or occupier, as the case may be, not less than 14 days' notice in writing of his or her intention to make the entry.

(6) A person to whom a notice of intention to enter on land has been given under this section by an authorised person may, not later than 14 days after the giving of such notice, apply, on notice to such person, to the Judge of the District Court having jurisdiction in the district court district in which the land is situate for an order prohibiting the entry, and, upon the hearing of the application, the Judge may, if he or she so thinks proper, either wholly prohibit the entry or specify conditions to be observed by the person making the entry.

(7) Where a Judge of the District Court prohibits under this section a proposed entry on land, it shall not be lawful for any person to enter on the land and where a Judge of the District Court specifies under this section conditions to be observed by persons entering on land, every person who enters land shall observe the conditions so specified.

(8) An authorised person may request the owner or occupier of such land so entered to give assistance, to carry out such instructions and to give such information as may be reasonably necessary for the purposes of the performance by the authorised officer of his or her functions.

(9) Any person who by act or omission impedes or obstructs an authorised person or a person mentioned in subsection (4) in the lawful exercise of any power conferred on them by this section shall be guilty of an offence.

67. Amendment of section 73 (search warrants) of Principal Act.

67.—Section 73 of the Principal Act is hereby amended by the substitution of the following for subsection (1):

“(1) If a Judge of the District Court is satisfied by information on oath of an authorised person or a member of the Garda Síochána that there are reasonable grounds for suspecting that a person is in possession on any premises or other land of any specimen of fauna, flora, fossils or minerals or any part, product or derivative of any such specimen or anything mentioned in section 72(7) of this Act or anything liable or believed to be liable to forfeiture under this Act and that as regards the specimen, part, product, derivative or thing an offence under this Act has been or is being committed, the Judge may issue a search warrant under this section.”.

68. Amendment of section 74 (penalties) of Principal Act.

68.—F23[…]

69. Amendment of section 76 (forfeiture) of Principal Act.

69.—Section 76 of the Principal Act is hereby amended—

(a) by the substitution of the following for subsection (1):

“(1) (a) Where any specimen of fauna, flora, fossils or minerals or any part, product or derivative of such a specimen or any firearm, trap, snare, net or any mechanically-propelled vehicle or any vessel or aircraft or other thing has come into the possession of a member of the Garda Síochána or an authorised person in respect of which, or with which, or by means of which, an offence is with reasonable cause suspected by the member or authorised person of having been committed under the Wildlife Acts, 1976 and 2000, or where an offence has been committed or is alleged to have been committed under those Acts, and on the application before a court of—

(i) the Minister, or

(ii) where criminal proceedings have been instituted, the person who instituted those proceedings,

then, subject to subsections (2), (3) and (4) of this section, the appropriate court may, at its discretion and where it is satisfied that an offence has been committed (whether or not any person has been convicted of the offence) order the forfeiture of the thing concerned.

(b) In this subsection—

‘appropriate court' means—

(i) in case the estimated value of the thing to be forfeited does not exceed £5,000, the District Court,

(ii) in case the estimated value of the thing to be forfeited does not exceed £30,000, the Circuit Court,

(iii) in any case, the High Court;

‘estimated value', in relation to the thing sought to be forfeited, means the estimated amount of money which, in the opinion of the court, a willing purchaser would pay to a willing seller when such a thing could be sold legally and after deduction for—

(i) the estimated costs incidental to such a sale, and

(ii) the estimated amount of any tax or duty owing to the State in respect of that thing,

and when it cannot be sold legally then such estimated value, if any, as the court considers appropriate.

(c) (i) If, in relation to an application under this section to the District Court, that court becomes of opinion during the hearing of the application that—

(I) the estimated value of the thing to be forfeited exceeds £5,000, or

(II) that for any reason it should decline jurisdiction,

it may, if it so thinks fit, transfer the application to the Circuit Court or the High Court, whichever it considers appropriate having regard to the estimated value aforesaid or to such other matters that it considers appropriate.

(ii) If, in relation to an application under this section to the Circuit Court, that court becomes of opinion during the hearing of the application that—

(I) the estimated value of the thing to be forfeited exceeds £30,000, or

(II) that for any reason it should decline jurisdiction,

it may, if it so thinks fit, by order transfer the application to the High Court.

(d) An application under this section shall be brought in a summary manner.

(e) (i) An order shall not be made by a court under this section unless the court is satisfied that in the circumstances all practicable steps have been taken to notify any person of the proceedings relating to the application for the order and who, in the opinion of the court, should be given the opportunity of being heard by it on that application.

(ii) The court concerned may make such order as to the costs of the parties to, or heard by the court in, the proceedings relating to an application for an order under this section as it considers appropriate.”,

(b) by the substitution of the following for subsection (4):

“(4) Where an order is made under this section in relation to a thing other than a firearm to which subsection (3) of this section applies, such thing shall, as the court shall direct, either be returned to the person appearing to the court to be the owner or sold or disposed of in such other manner as the court thinks fit.”,

and

(c) in subsection (5), by the insertion of “or mechanically-propelled vehicle or vessel or aircraft” after “firearm”,

and the said subsection (5), as so amended, is set out in the Table to this section.

TABLE

(5) Where a firearm or mechanically-propelled vehicle or vessel or aircraft or other thing is sold pursuant to this section, the net proceeds of the sale shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Finance shall direct.

70. Amendment of section 77 (appeal against seizures) of Principal Act.

70.—Section 77 of the Principal Act is hereby amended by the insertion of “, including any seizure or detention to which the CITES Regulations relate” after “under this Act” and of “Judge” for “Justice” in both places where it occurs, and the said section, other than paragraphs (a) and (b), as so amended, is set out in the Table to this section.

TABLE

77.—Any person who is aggrieved by a seizure and detention under this Act, including any seizure or detention to which the CITES Regulations relate, may appeal to a Judge of the District Court and in determining the appeal the Judge may—

71. Amendment of section 78 (disposal of things seized) of Principal Act.

71.—Section 78 of the Principal Act is hereby amended—

(a) in subsection (1), by the substitution, in paragraph (b), of “a Judge of the District Court” for “a Peace Commissioner”,

(b) by the substitution of the following for subsection (2):

“(2) A person who under this Act has seized any thing may, subject to such person giving notice in writing to—

(a) the owner, or

(b) the person who, when the seizure was made, was in apparent charge or control of it,

where such owner or person is known to the person who so seized that thing or whose identity and the address at which such owner or person resides can be ascertained by reasonable inquiries of the intention to do so, apply to a Judge of the District Court for a direction that the thing be disposed of (by destruction or otherwise) in a manner specified in the direction.”,

(c) in subsection (3), by the substitution of “a Judge of the District Court” for “a Peace Commissioner”,

(d) by the insertion of the following after subsection (3):

“(3A) Where any thing has been seized under this Act is, in the opinion of any person entitled to seize it, of a perishable nature, then the thing seized may be sold or otherwise destroyed as appropriate and where it is sold the person causing it to be sold shall out of the proceeds of such sale defray all expenses incurred in the seizure, removal, storage and sale of it and, except where a court has otherwise decided in relation to the thing so sold or court proceedings relating to the thing so sold have been instituted but not concluded, shall pay the surplus of such proceeds to the person who at the time of the seizure was the owner of it.”,

and

(e) by the deletion of subsections (5), (6) and (7),

and the said subsections (1) (other than paragraph (a)) and (3), as so amended, are set out in the Table to this section.

TABLE

(1) A person who, in accordance with this Act, has seized any document or other thing shall not dispose of it—

(b) in the case of any thing other than a document, unless a direction is given pursuant to this section by a Judge of the District Court for its disposal.

(3) A Judge of the District Court to whom an application in that behalf is duly made under this section shall, if he is satisfied that any thing in respect of which the application is made is likely, before it can be used as evidence in proceedings for an offence under this Act, to become unfit for human consumption, or if he is satisfied for any other reason that the thing ought not to be further detained, give a direction under this section authorising its disposal (by destruction or otherwise).

PART VII Miscellaneous Amendment of Enactments

72. Amendment of Forestry Act 1946.

72.—The Forestry Act 1946, is hereby amended—

(a) by the insertion, in subsection (4) of section 37, of the following after paragraph (b):

“(bb) the tree is standing on land held or managed by the Minister for Arts, Heritage, Gaeltacht and the Islands, or”,

and

(b) by the insertion, in section 62, of the following after subsection (1):

“(1A) Where either or both the wood and land to which subsection (1) of this section relates is or forms part of either or both wood and land to which Chapter III of Part II, or Regulation 17 or 18, of the European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997), applies, then the Minister may only serve a notice under subsection (1) of this section—

(a) where all relevant provisions of the European Communities (Natural Habitats) Regulations 1997, have been complied with, and

(b) where appropriate, the service of the notice under subsection (1) of this section is necessary for the imperative reasons of overriding public interest as provided for in those Regulations and Article 6 of Council Directive No. 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora^(1).”.

73. Amendment of Registration of Title Act 1964.

73.—The Registration of Title Act 1964 (as amended by section 66 of the Principal Act), is hereby amended by the insertion, in subsection (1) of section 69, of the following after paragraph (rr):

“(rrr) an order under section 18(1) of the Wildlife (Amendment) Act 2000;”.

74. Amendment of State Property Act; 1954.

74.—The State Property Act 1954, is hereby amended by the insertion of the following paragraph after paragraph 1 of the First Schedule to that Act:

“1A. Any land acquired under the Wildlife Acts, 1976 and 2000.”.

75. Amendment of European Communities (Natural Habitats) Regulations 1997.

75.—The European Communities (Natural Habitats) Regulations 1997 (S.I. No. 94 of 1997), are hereby amended—

(a) in Regulation 2, by the substitution of the following for the definition given to “European site”:

“‘European site' means—

(a) a site—

(i) notified for the purposes of Regulation 4, subject to any amendments made to it by virtue of Regulation 5, or

(ii) transmitted to the Commission in accordance with Regulation 5(4), or

(iii) added by virtue of Regulation 6 to the list transmitted to the Commission in accordance with Regulation 5(4),

but only until the adoption in respect of the site of a decision by the Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive,

(b) a site adopted by the Commission as a site of community importance for the purposes of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive,

(c) a special area of conservation,

(d) an area classified pursuant to paragraph (1) or (2) of Article 4 of the Birds Directive;”,

and

(b) by the revocation of Regulations 21, 22 and 39.