Nature Conservation (Scotland) Act 2004

(19ZC) (1) The Scottish Ministers may authorise any person to carry out the functions conferred by this section and section 19ZD(3), (4) and (8) (and any person so authorised is to be known as a “wildlife inspector”). (2) An authorisation under subsection (1)— (a) shall be in writing, and (b) is subject to any conditions or limitations specified in it. (3) A wildlife inspector may, at any reasonable time and (if required to do so) upon producing evidence of authorisation, enter and inspect— (a) any premises for the purpose of ascertaining whether an offence under section 6, 9(5) or 13(2) is being, or has been, committed on those premises; (b) any premises where the inspector has reasonable cause to believe that any birds included in Schedule 4 are kept, for the purpose of ascertaining whether an offence under section 7 is being, or has been, committed on those premises; (c) any premises where the inspector has reasonable cause to believe that any birds are kept, for the purpose of ascertaining whether an offence under section 8(1) is being, or has been, committed on those premises; (d) any premises for the purpose of ascertaining whether an offence under section 14 or 14A is being, or has been, committed on those premises; (e) any premises for the purpose of verifying any statement or representation which has been made by an occupier, or any document or information which has been furnished by the occupier, and which the occupier made or furnished— (i) for the purposes of obtaining (whether for the occupier or another person) a relevant registration or licence; or (ii) in connection with a relevant registration or licence held by the occupier. (4) In subsection (3)— (a) paragraphs (a) to (c) do not confer power to enter a dwelling except for purposes connected with— (i) a relevant registration or licence held by an occupier of the dwelling; or (ii) an application by an occupier of the dwelling for a relevant registration or licence, (b) paragraph (d) does not confer power to enter a dwelling. (5) A wildlife inspector may, for the purpose of ascertaining whether an offence under section 6, 7, 8(1), 9(5), 13(2), 14 or 14A is being, or has been, committed in respect of any specimen, require any person who has possession or control of the specimen to make it available for examination by the inspector. (6) Any person who has possession or control of any live bird or other animal shall give any wildlife inspector acting in the exercise of powers conferred by this section such assistance as the inspector may reasonably require for the purpose of examining the bird or other animal. (7) Any person who— (a) intentionally obstructs a wildlife inspector acting in the exercise of powers conferred by subsection (3) or (5); or (b) fails without reasonable excuse to give any assistance reasonably required under subsection (6), shall be guilty of an offence. (8) Any person who, with intent to deceive, falsely pretends to be a wildlife inspector shall be guilty of an offence. (9) In this section— - “relevant registration or licence” means— 1. a registration in accordance with regulations under section 7(1); or 2. a licence under section 16 authorising anything which would otherwise be an offence under section 6, 7, 8(1), 9(5), 13(2), 14 or 14A; - “specimen” means any bird, other animal or plant or any part of, or anything derived from, a bird, other animal or plant. (19ZD) (1) A constable who suspects with reasonable cause that a specimen found by the constable in the exercise of powers conferred by section 19 is one in respect of which an offence under this Part is being or has been committed may require the taking from it of a sample of blood or tissue in order to determine its origin, identity or ancestry. (2) A constable who suspects with reasonable cause that an offence under this Part is being or has been committed in respect of any specimen (“the relevant specimen”) may require any person to make available for the taking of a sample of blood or tissue any specimen (other than the relevant specimen) in that person’s possession or control which is alleged to be, or which the constable suspects with reasonable cause to be, a specimen a sample from which will tend to establish the origin, identity or ancestry of the relevant specimen. (3) A wildlife inspector may, for the purpose of ascertaining whether an offence under section 6, 7, 9(5), 13(2), 14 or 14A is being or has been committed, require the taking of a sample of blood or tissue from a specimen found by the inspector in the exercise of powers conferred by section 19ZC(3)(a) to (d) in order to determine its origin, identity or ancestry. (4) A wildlife inspector may, for the purpose of ascertaining whether an offence under section 6, 7, 9(5), 13(2), 14 or 14A is being or has been committed in respect of any specimen (“the relevant specimen”), require any person to make available for the taking of a sample of blood or tissue any specimen (other than the relevant specimen) in that person’s possession or control which is alleged to be, or which the inspector suspects with reasonable cause to be, a specimen a sample from which will tend to establish the origin, identity or ancestry of the relevant specimen. (5) No sample from a live bird, other animal or plant shall be taken pursuant to a requirement under this section unless the person taking it is satisfied on reasonable grounds that taking the sample will not cause lasting harm to the specimen. (6) No sample from a live bird or other animal shall be taken pursuant to such a requirement except by a veterinary surgeon. (7) Where a sample from a live bird or other animal is to be taken pursuant to such a requirement, any person who has possession or control of the specimen shall give the person taking the sample such assistance as that person may reasonably require for that purpose. (8) A constable entering premises under section 19(2), and any wildlife inspector entering premises under section 19ZC(3), may take with him a veterinary surgeon if the constable or, as the case may be, inspector has reasonable grounds for believing that such a person will be required for the exercise on the premises of powers under subsection (1) or (2) or, as the case may be, (3) or (4). (9) Any person who— (a) intentionally obstructs a wildlife inspector acting in the exercise of the power conferred by subsection (3), (b) fails without reasonable excuse to make available any specimen in accordance with a requirement under subsection (2) or (4), or (c) fails without reasonable excuse to give any assistance reasonably required under subsection (7), shall be guilty of an offence. (10) In this section— (a) “specimen” has the same meaning as in section 19ZC; (b) in relation to a specimen which is a part of, or is derived from, a bird, other animal or plant, references to determining its origin, identity or ancestry are to determining the origin, identity or ancestry of the bird, other animal or plant.

18

In section 20(2) (summary prosecutions)—

• (a) for “two” substitute “ three ”, and

• (b) at the end insert “ or, in the case of a continuous contravention, after the last date on which the offence was committed ”.

19

In section 21 (penalties etc.)—

• (a) in subsection (1), for “or section 17” substitute “ , 15A, 17, 19ZC (other than an offence under section 19ZC(7) in relation to a wildlife inspector acting in exercise of the power conferred by section 19ZC(3)(d)) or 19ZD ”,

• (b) in subsection (4)—

• (i) after “14” insert “ or 14A ”,

• (ii) in paragraph (a), for “the statutory maximum” substitute “ £40,000 ”,

• (c) after subsection (4) insert—

(4A) A person guilty of an offence under section 19ZC(7) in relation to a wildlife inspector acting in exercise of the power conferred by subsection (3)(d) of that section shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

,

• (d) in subsection (6)(b), after “14” insert “ or 14A ”.

20

In section 22 (power to vary Schedules)—

• (a) in subsection (1)—

• (i) after “year” insert

— (a)

,

• (b) after subsection (2) insert—

(2A) Before making an order under subsection (1) the Scottish Ministers shall consult Scottish Natural Heritage.

,

• (c) subsections (4) and (5) are repealed.

21

In section 26 (procedure for orders)—

• (a) in each of subsections (2) and (3), for “11” substitute “ 11(4) ”,

• (b) in subsection (4)(b), for “22(3)” substitute “ 22 ”.

22

After section 26 insert—

(26A) Regulations under section 2(2) of the European Communities Act 1972 (c. 68) for the purpose of implementing Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora as amended by the Act of Accession to the European Union of Austria, Finland and Sweden and by Council Directive 97/62/EC may, despite paragraph 1(1)(d) of Schedule 2 to that Act, create offences punishable on summary conviction with imprisonment for a term not exceeding six months.

23

• (1) Section 27 (interpretation of Part I) is amended as follows.

• (2) In subsection (1)—

• (a) in the definition of “poultry”, for “domestic” substitute “ the domestic forms of the following, that is to say ”,

• (b) in the definition of “wild bird”—

• (i) for “kind” substitute “ species ”,

• (ii) for “Great Britain” substitute “ any member State or the European territory of any member State ”,

• (c) in the definition of “wild plant”, after “plant” insert “ (including fungi) ”.

• (3) After subsection (2) insert—

(2A) An animal shall not be treated as bred in captivity for the purposes of this Part unless its parents were lawfully held in captivity— (a) where the animal is of a viviparous species, when it was born, (b) where the animal is of an oviparous species, when the egg was laid.

• (4) After subsection (3) insert—

(3ZA) Any reference in this Part to a plant which is growing— (a) includes a reference to a bulb, corm or rhizome; (b) does not include a reference to a seed or spore.

24

Before Schedule 1 insert—

Schedule A1

Common name	Scientific name
Eagle, White-tailed	Haliaetus albicilla

.

25

After Schedule 1 insert—

Schedule 1A

Common name	Scientific name
Eagle, White-tailed	Haliaetus albicilla

.

Protection of Badgers Act 1992 (c. 51)

26

• (1) The Protection of Badgers Act 1992 is amended as follows.

• (2) In section 1 (taking, injuring or killing badgers)—

• (a) in subsection (1), the words “, or attempts to kill, injure or take,” are repealed,

• (b) subsection (2) is repealed.

• (3) In section 3 (interfering with badger setts)—

• (a) the existing provision becomes subsection (1),

• (b) after that provision insert—

(2) A person is guilty of an offence if, except as permitted by or under this Act, he knowingly causes or permits to be done an act which is made unlawful by subsection (1) above.

• (4) In section 6 (general exceptions from offences)—

• (a) in paragraph (a)—

• (i) after “his” insert “ unlawful ”,

• (ii) after “it” insert “ and releasing it when no longer disabled ”,

• (b) in paragraph (b), for the words from “appears” to “mercy” substitute “ has been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of it recovering ”.

• (5) In section 8 (exceptions from offence of interfering with badger setts)—

• (a) in subsection (1), for “3” substitute “ 3(1) or (2) ”,

• (b) in subsection (3)—

• (i) for “3(a)” substitute “ 3(1)(a) ”,

• (ii) after “above” insert “ or an offence under section 3(2) above relating to an offence under section 3(1)(a), (c) or (e) above ”.

• (6) In section 9 (exceptions from offence of possessing or controlling live badger), in paragraph (b)—

• (a) after “his”, where first occurring, insert “ unlawful ”,

• (b) after “it”, where second occurring, insert “ and releasing it when no longer disabled ”.

• (7) For section 11 substitute—

(11) (1) A constable who suspects with reasonable cause that any person is committing or has committed an offence under this Act may, without warrant— (a) stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person; (b) search for, search or examine any thing which that person may then be using or may have used, or may have or have had in the person’s possession, if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found in or on that thing; (c) arrest that person; (d) seize and detain for the purposes of proceedings under this Act any thing which may be evidence of the commission of the offence or may be liable to be forfeited under section 12(4) below. (2) A constable who suspects with reasonable cause that any person is committing or has committed an offence under this Act may, for the purpose of exercising the powers conferred by subsection (1) above, enter any land other than a dwelling or lockfast premises. (3) If a sheriff or justice of the peace is satisfied, by evidence on oath, that there are reasonable grounds for suspecting that an offence under this Act has been committed and that evidence of the offence may be found on any premises, the sheriff or justice may grant a warrant authorising a constable to enter those premises, if necessary using reasonable force, and search them for the purposes of obtaining that evidence. (4) A warrant under subsection (3) above continues in force until the purpose for which the entry is required has been satisfied or, if earlier, the expiry of such period as the warrant may specify. (5) A constable authorised by virtue of this section to enter any land must, if required to do so by the occupier or anyone acting on the occupier’s behalf, produce evidence of the constable’s authority. (6) A constable who enters any land in the exercise of a power conferred by this section— (a) may— (i) be accompanied by any other persons; and (ii) take any machinery, other equipment or materials on to the land, for the purpose of assisting the constable in the exercise of that power; (b) may take samples of any articles or substances found there and remove the samples from the land. (7) A power specified in subsection (6)(a) or (b) above which is exercisable under a warrant is subject to the terms of the warrant. (8) A constable leaving any land which has been entered in exercise of a power conferred by subsection (2) above or by a warrant under subsection (3) above, being either unoccupied land or land from which the occupier is temporarily absent, must leave it as effectively secured against unauthorised entry as the constable found it.

• (8) After section 11 insert—

(11A) (1) A person who attempts to commit an offence under this Act is guilty of the offence and is liable to be proceeded against and punished accordingly. (2) A person who is in possession, for the purposes of committing an offence under this Act, of anything capable of being used for committing the offence is guilty of the offence and is liable to be proceeded against and punished accordingly. (3) If, in any proceedings for an offence under section 1(1) above consisting of an attempt to kill, injure or take a badger, there is evidence from which it could reasonably be concluded that at the material time the accused was attempting to kill, injure or take a badger, he shall be presumed to have been attempting to kill, injure or take a badger unless the contrary is shown.

• (9) In section 12 (penalties etc.)—

• (a) in subsection (1)—

• (i) for “2 or 3 above ” substitute “ 2(1)(d), 3(1)(a) to (c) or (e) above or under section 3(2) above (in relation to an act made unlawful by section 3(1)(a) to (c) or (e) above) ”,

• (ii) the word “4,” is repealed,

• (b) after subsection (1) insert—

(1A) A person guilty of an offence under section 2(1)(a) to (c), 3(1)(d) or 4 above or under section 3(2) above (in relation to an act made unlawful by section 3(1)(d) above) is liable— (a) on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both, (b) on conviction on indictment to imprisonment for a term not exceeding three years or to a fine or both.

,

• (c) in subsection (2), after “(1)” insert “ or (1A)(a) ”.

• (10) After section 12 insert—

(12A) (1) Summary proceedings for an offence under section 1(1), 2, 3, 5 or 10(8) of this Act may, subject to subsection (2) below, be brought within a period of 6 months from the date on which evidence sufficient in the opinion of the prosecutor to warrant the proceedings came to the prosecutor’s knowledge. (2) No such proceedings may be brought more than 3 years— (a) after the commission of the offence, or (b) in the case of a continuous contravention, after the last date on which the offence was committed. (3) A certificate signed by or on behalf of the prosecutor and stating the date on which such evidence came to the prosecutor’s knowledge is conclusive evidence of that fact; and a certificate stating that matter and purporting to be so signed is to be treated as being so signed unless the contrary is proved. (12B) (1) Where an offence under this Act committed— (a) by a body corporate, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who— (i) is a director, manager or secretary of the body corporate, or (ii) purports to act in any such capacity, (b) by a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who— (i) is a partner, or (ii) purports to act in that capacity, (c) by an unincorporated association other than a Scottish partnership, is committed with the consent or connivance of, or is attributable to any neglect on the part of, a person who— (i) is concerned in the management or control of the association, or (ii) purports to act in the capacity of a person so concerned, the individual (as well as the body corporate, Scottish partnership or, as the case may be, unincorporated association) is guilty of the offence and is liable to be proceeded against and punished accordingly. (2) Where the affairs of a body corporate are managed by its members, subsection (1) above applies in relation to the acts and defaults of a member in connection with the member’s functions of management as if the member were a director of the body corporate. (3) Any penalty imposed on a body corporate, Scottish partnership or, as the case may be, unincorporated association on conviction of an offence under this Act is to be recovered by civil diligence in accordance with section 221 of the Criminal Procedure (Scotland) Act 1995 (c. 46).

• (11) In section 13 (power of court where dog used etc.), in subsection (1), for “3” substitute “ 3(1) or (2) ”.

SCHEDULE 7

Harbours Act 1964 (c. 40)

1

In Schedule 3 to the Harbours Act 1964 (procedure for making harbour revision and empowerment orders), in paragraph 1 (interpretation)—

• (a) for paragraphs (a) and (b) of the definition of “sensitive area” substitute—

(a) land within a site of special scientific interest; (b) land in respect of which a nature conservation order or land management order made under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6) has effect;

,

• (b) in paragraph (k) of that definition, the words “as a natural heritage area under section 6(2) of the Natural Heritage (Scotland) Act 1991 or” are repealed.

Forestry Act 1967 (c. 10)

2

• (1) The Forestry Act 1967 is amended as follows.

• (2) In section 10(2) (decisions of Forestry Commissioners on felling licences)—

• (a) the word “or” at the end of paragraph (a) is repealed,

• (b) after paragraph (b) insert

; or (c) for the purpose of conserving or enhancing the flora, fauna or geological or physiographical features, or the natural beauty or amenity, of any land.

• (3) In section 12 (conditions attached to felling licences)—

• (a) in subsection (1), for “10(2)” substitute “ 10(2)(a) or (b) ”,

• (b) in subsection (2), after “imposed” insert “ under section 10(2)(a) or (b) above ”.

Conservation of Seals Act 1970 (c. 30)

3

In section 10 of the Conservation of Seals Act 1970 (power to grant licences to kill or take seals), in subsection (4)—

• (a) for paragraphs (b) and (c) substitute—

(b) is a site of special scientific interest; (c) is an area in respect of which a nature conservation order or land management order made under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6) has effect; or

,

• (b) in paragraph (d), for “that Act” substitute “ the Wildlife and Countryside Act 1981 ”.

Wildlife and Countryside Act 1981 (c. 69)

4

Sections 28 to 34, 41, 50, 51 and 74(5A) of, and Schedule 11 to, the 1981 Act are repealed.

Road Traffic Regulation Act 1984 (c. 27)

5

In section 22(1)(b) (traffic regulation for special areas in the countryside) of the Road Traffic Regulation Act 1984, sub-paragraph (iii) is repealed.

Channel Tunnel Act 1987 (c. 53)

6

Section 9(7) of the Channel Tunnel Act 1987 is repealed.

Environmental Protection Act 1990 (c. 43)

7

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Natural Heritage (Scotland) Act 1991 (c. 28)

8

Sections 6 (Natural Heritage Areas) and 12 (Advisory Committee on SIs) of the Natural Heritage (Scotland) Act 1991 are repealed.

Scottish Land Court Act 1993 (c. 45)

9

In section 1(7) (determination by Court of Session of point of law) of the Scottish Land Court Act 1993, after “enactment” there is inserted “ , or under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6), ”.

Environment Act 1995 (c. 25)

10

• (1) Section 35 (duties of SEPA in relation to Natural Heritage Areas and sites of special interest) of the Environment Act 1995 is repealed.

• (2) In section 36 (codes of practice) of that Act—

• (a) in subsection (1)(a), for “, 34(2) and 35” substitute “ and 34(2) ”,

• (b) in subsection (2), for “, 34(2) or 35” substitute “ or 34(2) ”.

Deer (Scotland) Act 1996 (c. 58)

11

In schedule 3 (penalties for offences relating to deer) to the Deer (Scotland) Act 1996, after the entry for section 17(2) insert—

17(3)	Killing or injuring deer otherwise than by shooting	a fine of level 4 on the standard scale for each deer in respect of which the offence is committed or 3 months imprisonment or both

.

Town and Country Planning (Scotland) Act 1997 (c. 8)

12

• (1) In section 54(1) (land which may not be included in simplified planning zone) of the Town and Country Planning (Scotland) Act 1997, for paragraph (d) substitute—

(d) land in a site of special scientific interest; (e) land in respect of which a nature conservation order or land management order made under Part 2 of the Nature Conservation (Scotland) Act 2004 (asp 6) has effect;

.

• (2) Section 264 (Natural Heritage Areas) is repealed.

Water Industry (Scotland) Act 2002 (asp 3)

13

In section 54 (protection of natural heritage) of the Water Industry (Scotland) Act 2002—

• (a) in subsection (1), for “protected area” substitute “ European site within the meaning of Regulation 10 of the Conservation (Natural Habitats, &c.) Regulations 1994 (S.I. 1994/2716) ”,

• (b) subsection (2) is repealed,

• (c) in subsection (3)—

• (i) paragraphs (a) and (b), and

• (ii) the words “in the case of an area mentioned in subsection (2)(c),” in paragraph (c),

are repealed,

• (d) in subsection (4)—

• (i) for “protected area” substitute “ European site ”,

• (ii) the words from “was” to “be,” are repealed.

Duty to further the conservation of biodiversity

Duty to give notification of sites of special scientific interest

Protection of wildlife

Scottish Fossil Code

Orders and regulations: general

Extension of period during which notification is to be confirmed or withdrawn

Protection of animals: offences

Appeals in connection with operations requiring consent

Miscellaneous

Editorial notes