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  #11  
Old 25-07-2011, 12:11 AM
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Derek Canning Derek Canning is offline
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Default Re: Changes to the UK Wildlife Laws?

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Originally Posted by Chicquera View Post
I think it was accepted by Defra some time back that the idea you would be considered guilty until you prove you're innocent wouldn't stand up in court unless there where other circumstances involved. It's not in line with the basic principle of Britsh justice and my guess the European Court of Human Rights wouldn't be too impressed with it either should anyone decide to take it that far. Also any conviction would have to stand the test of "beyond reasonably doubt" so if it was solely down to a closed ring on a bird that's DNA didn't match the documented parents I doubt whether that alone would be enough for the CPS to prosecute someone unless the bird hadn't left the "breeders" premises.
Gary you are totally wrong and may I suggest that you read the Eric Kirkland v Peter Robinson 1986 case as this is still the case law to follow even though it should be reviewed and changed.
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  #12  
Old 25-07-2011, 08:06 AM
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Default Re: Changes to the UK Wildlife Laws?

This could be the biggest changes to the laws that we must follow since the Wildlife and Countryside Ac 1982.
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  #13  
Old 25-07-2011, 10:06 AM
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Default Re: Changes to the UK Wildlife Laws?

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Gary you are totally wrong and may I suggest that you read the Eric Kirkland v Peter Robinson 1986 case as this is still the case law to follow even though it should be reviewed and changed.
That's pre-dna, there have been no cases of "proof" brought by the CPS since proof of parentage through DNA came about because if Defra had any doubts THEY would DNA specimens in question.
I'm not saying it's not something that should be addressed but I think you're missing the bigger picture Derek by focusing on something that's 20 years out of date.
What we need is to focus on Article 7's (338/97) inclusion of captive bred Annex A species through Article 8.1, re commercial use. If Annex A captive bred became Annex B when captive bred, full stop, then we could walk away from all this nonsense for good but on a national level the focus should be on removing criminal conviction of people on paperwork offenses, if we can get the Law Commission to recognise that it will be a huge step forward.
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  #14  
Old 25-07-2011, 11:23 AM
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Default Re: Changes to the UK Wildlife Laws?

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That's pre-dna, there have been no cases of "proof" brought by the CPS since proof of parentage through DNA came about because if Defra had any doubts THEY would DNA specimens in question.
I'm not saying it's not something that should be addressed but I think you're missing the bigger picture Derek by focusing on something that's 20 years out of date.
What we need is to focus on Article 7's (338/97) inclusion of captive bred Annex A species through Article 8.1, re commercial use. If Annex A captive bred became Annex B when captive bred, full stop, then we could walk away from all this nonsense for good but on a national level the focus should be on removing criminal conviction of people on paperwork offenses, if we can get the Law Commission to recognise that it will be a huge step forward.
Gary you are right to say given DNA and modern investigation methods once it is proven a bird is captive bred that should be the end of the situation as the reason for paper work is to stop people dealing in illegal birds. However this is all wrapped up in the overriding out of date reversed burden of proof. The big picture is for a root branch updating of the laws that relate to wildlife laws that are so complex solicitors, Defra and so on struggle understand where people stand.

If an ANNEX A species is captive bred it automatically is treated as an ANNEX B species in court.

For example Gary I asked JNCC a question on the law and they got it wrong I believe. This just one example to show even the expert can get it wrong.


Granville

According to Mrs Dalton of the JNCC there has been no change, are you saying that she must be unaware of the change in legislation?

Regards




-----Original Message-----
From: Wendy Dalton <Wendy.Dalton@jncc.gov.uk>
To: derekcanning@aol.com
Sent: Fri, 22 Jul 2011 14:54
Subject: WLCA Schedule 1 enquiry

Dear Mr Canning

Thank you for your email dated 20 July 2011. In answer to your question the legislation states:


•It is an offence to intentionally take, damage, or destroy the nest of any wild bird while that nest is in use or is being built (Section 1.1.b W&C Act)
•Special penalties apply to the disturbance of any species of bird listed in Schedule 1 (which includes Peregrine) while it is building a nest or is in, on or near a nest containing eggs or young (Section1.5 W&C Act)

The definitive text is at http://www.legislation.gov.uk/ukpga/1981/69/section/1

We are not aware there has been any recent change to the above legislation.

With kind regards

Yours sincerely


Mrs Wendy Dalton
Corporate Governance Officer
JNCC
Monkstone House
City Road
Peterborough
PE1 1JY

Tel: 01733 866884
E-mail: wendy.dalton@jncc.gov.uk

 please consider the environment - do you really need to print this email?


__________________________________________________ ___________________
The Joint Nature Conservation Committee (JNCC) is the statutory adviser to Government on UK and international nature conservation, on behalf of the Council for Nature Conservation and the Countryside, the Countryside Council for Wales, Natural England and Scottish Natural Heritage. Its work contributes to maintaining and enriching biological diversity, conserving geological features and sustaining natural systems.

JNCC SUPPORT CO. Registered in England and Wales, company no. 05380206. Registered office: Monkstone House, City Road, Peterborough, Cambridgeshire PE1 1JY


This message has been checked for all known viruses by JNCC delivered through the MessageLabs Virus Control Centre.


The special penalty provision was repealed by the Countryside and Rights of Way Act 2000 except for offences committed prior to 30th January 2001 concerning Schedule 1 birds. The reason for this was that all other penalties were increased to the schedule 1 level. This was in schedule 16.

There were amendments to WCA under schedule 12 which introduced a new S. 7 (3A) offence that connected to schedule 1, but that concerns the requirement to register if keeping schedule 4 birds and concerns prohibition to be able to be so registered having been previously convicted.

If she is not aware of this then I am surprised given that it happened 11 years ago.

The reasoning behind special penalty was that at that time those birds in that schedule were considered to be at greater risk. Factually that was inaccurate for some that were on the schedule and others that arguably should have been there. Legally the fact was that all birds were protected it was just that some meant conviction could produce a higher penalty. Given that this was merely a reflection of thinking 30 years ago shows the idiocy of translating this it some kind of meaning for todays purposes eg. “these are endangered species”. The schedules are there for legislative purposes and little if anything to do with the degree or otherwise of endangerment. Why schedule 1 remains appears to be because to remove it would require primary legislation so they keep it, but its only significance was when there the provision for the special penalty and the “fiction”, from a legal viewpoint, of the fact that these were particularly endangered.

Nothing in the legislation ever made any comment about degrees or otherwise of endangerment.

Just shows the quality of the advice that government gets!!!!!
GR
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  #15  
Old 25-07-2011, 11:46 AM
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Default Re: Changes to the UK Wildlife Laws?

Like I said Derek, I think you're 20 years behind, Defra would not ask for "proof" if they had any doubts about parentage, there would be a knock on your door from a police officer and vet, end of story !

Captive bred Annex A species are treated as Annex B except when it comes to commercial use then they're treated as Annex A and and exemption from Article 8.1 has to be obtained in the form of an A10 so it's not that clear cut. If all that was required was a certificate of captive breeding issued by the breeder to downgrade an Annex A to an Annex B species then we wouldn't be open to criminal conviction on all this meaningless paperwork !

Neither JNCC or Defra can advise on law, that's up to a solicitor and ultimately the courts to decide how law in defined.
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  #16  
Old 25-07-2011, 12:45 PM
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Default Re: Changes to the UK Wildlife Laws?

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Like I said Derek, I think you're 20 years behind, Defra would not ask for "proof" if they had any doubts about parentage, there would be a knock on your door from a police officer and vet, end of story !

Captive bred Annex A species are treated as Annex B except when it comes to commercial use then they're treated as Annex A and and exemption from Article 8.1 has to be obtained in the form of an A10 so it's not that clear cut. If all that was required was a certificate of captive breeding issued by the breeder to downgrade an Annex A to an Annex B species then we wouldn't be open to criminal conviction on all this meaningless paperwork !

Neither JNCC or Defra can advise on law, that's up to a solicitor and ultimately the courts to decide how law in defined.
Gary I have been to many court cases and the starting point is always the same: the defendant has to prove his innocence, which is wrong given many reasons including the Human Rights Act. On the 28 July 2011 am being called as a witness against the RSPB and the reason why is the fact the defendant has to prove he is right and Mr Shorrock is not correct. It cannot be more up to date than that.

The facts are Gary the Police and so on can arrive at your premises and say we want you to prove that your birds are all legally held. No doubt you would be able to prove that as you are without doubt one of the best breeders in the UK of birds of prey and all your birds would match up by DNA profiling however the damage down to your birds proving the point would be another matter. This fact is well known, I myself have birds bred by you. However what about some of the birds that are 15 years old and you do not have the parents because they have died a long time ago or the bird was imported or bought many years ago. It does not end there. After you have proved all your birds are legally held you could then be asked to prove the grandparents were legally held and the grandparents of the grandparents and so on. In other words an impossible burden. Another little example, like all breeders including me, you will have infertile eggs under your control. If the authorities said to you prove on the balance of probability that these infertile eggs under your control were produced by your lawfully held birds how would you prove it? This is why I video my bird laying eggs, me inseminating my birds, my birds hatching, keeping detailed records and putting my birds breeding on YouTube. This takes up all my spare time with only a fraction of the birds that you have and other top line breeders. The point I am making is the fact the reversed burden of proof lays us all vulnerable to vindictive prosecutions as has occurred in the past. I accept you have far more experience in relation to matters relating to the interrelations between bird breeders and Defra however ever day I am working on court cases like the case on the 28 July 2011 and I see injustices time and time again due to the reversed burden of proof. One man spent £70000 proving his innocence then was told he could not claim his legal cost back and this was due to the reversed burden of proof as the case would not have been started otherwise. I am not criticizing you Gary as you talk a lot of good sense but you need to look to overall picture supported on the bed rock of the reversed burden of proof set in force by the RSPB.


This is one of your birds that bred for me this year, thank you very much she is a beautifully bird but she very noisy.
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  #17  
Old 25-07-2011, 01:06 PM
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Default Re: Changes to the UK Wildlife Laws?

I'm not saying it doesn't need addressing but if that's all you're going to focus on you're missing a big opportunity. Although if there is no responsibility of proof how are the authorities to catch someone who is trying to launder illegally taken birds, other than catching them in the act of taking them from a nest ?
Any infertile eggs I have go in the bin as soon as they are indentified, a symbol of defeat I dont like to be reminded of !
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  #18  
Old 25-07-2011, 01:14 PM
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Default Re: Changes to the UK Wildlife Laws?

Quote:
Originally Posted by Chicquera View Post
I'm not saying it doesn't need addressing but if that's all you're going to focus on you're missing a big opportunity. Although if there is no responsibility of proof how are the authorities to catch someone who is trying to launder illegally taken birds, other than catching them in the act of taking them from a nest ?
Any infertile eggs I have go in the bin as soon as they are indentified, a symbol of defeat I dont like to be reminded of !
I'm not saying it doesn't need addressing but if that's all you're going to focus on you're missing a big opportunity.

The burden of proof you are right is one one aspect which is what I mean by a root and branch changes.

Although if there is no responsibility of proof how are the authorities to catch someone who is trying to launder illegally taken birds, other than catching them in the act of taking them from a nest ?

The same way other offences are proven: by evidence produced by they authorities.


Any infertile eggs I have go in the bin as soon as they are indentified, a symbol of defeat I dont like to be reminded of

Still under your control while in your bin.
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  #19  
Old 25-07-2011, 01:32 PM
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Default Re: Changes to the UK Wildlife Laws?

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The same way other offences are proven: by evidence produced by they authorities.
And if the police could satisfy a magistrate they had sufficient evidence to show someone maybe in possession of illegally taken birds then they should be able to obtain a warrant to take samples for DNA testing, and by "sufficent evidence" I would expect more than a single individual pointing a finger.
This is what the Law Commission should be recommending.
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  #20  
Old 25-07-2011, 02:35 PM
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Derek Canning Derek Canning is offline
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Default Re: Changes to the UK Wildlife Laws?

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And if the police could satisfy a magistrate they had sufficient evidence to show someone maybe in possession of illegally taken birds then they should be able to obtain a warrant to take samples for DNA testing, and by "sufficent evidence" I would expect more than a single individual pointing a finger.
This is what the Law Commission should be recommending.
You are right however all that is said to magistrates court is 'we have reasonable grounds to suspect' and the warrant is signed without any meaningful checks. They case I am dealing with this week evidence was fabricated for the search warrant. We asked for the evidence the search warrant was based on we were told ‘we cannot tell you that as we would have to name the informant’ to which we replied we have the name of the informant from a confidential document from the IPCC and clear statement from the so called informant stating he was not the informant. We then said ‘if you will not tell us then give the information to the judge and let him decide’. We are still waiting and the case is on the 28 July 2011.


I will accept that you do make a very good point about the need to amend paper work offences once a bird is shown to be captive bred. There is a good example that supports what you have to say that involved a big breeder. In this case the DNA proved that he had bred all of his bird so the RSPB then started trying to find some trivial paper work offence, anything to get a prosecution to ban the legitimate breeder to justify their action and get publicity to generate money. It has to be said that from confidential email Defra seemed to find this less than tasteful which supports what you said earlier on.
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