Offences.
1. --(1) A person is guilty of an offence
if, except as permitted by or
under this Act, he wilfully kills, injures or takes, or attempts
to kill,
injure or take, a badger.
(2) If, in any proceedings
for an offence under subsection (1) above
consisting of attempting 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.
(3) A person is guilty
of an offence if, except as permitted by or under
this Act, he has in his possession or under his control any
dead badger or
any part of, or anything derived from, a dead badger.
(4) A person is not
guilty of an offence under subsection (3) above if he
shows that--
(a)
the badger had not been killed, or had been killed otherwise
than
in
contravention of the provisions of this Act or of the Badgers
Act
1973; or
(b)
the badger or other thing in his possession or control had
been
sold
(whether to him or any other person) and, at the time of the
purchase,
the purchaser had had no reason to believe that the
badger
had been killed in contravention of any of those provisions.
(5) If a person is found
committing an offence under this section on any
land it shall be lawful for the owner or occupier of the land,
or any servant
of the owner or occupier, or any constable, to require that
person
forthwith to quit the land and also to give his name and address;
and if
that person on being so required wilfully remains on the land
or refuses to
give his full name or address he is guilty of an offence.
2.--(1) A person is
guilty of an offence if--
(a)
he cruelly ill-treats a badger;
(b) he uses
any badger tongs in the course of killing or taking, or
attempting
to kill or take, a badger;
(c) except
as permitted by or under this Act, he digs for a badger; or
(d) he uses
for the purpose of killing or taking a badger any firearm
other
than a smooth bore weapon of not less than 20 bore or a
rifle
using ammunition having a muzzle energy not less than 160
foot-pounds
and a bullet weighing not less than 38 grains.
(2) If in any proceedings
for an offence under subsection (1)(c) above
there is evidence from which it could reasonably be concluded
that at the
material time the accused was digging for a badger he shall
be presumed
to have been digging for a badger unless the contrary is shown.
3. A person is guilty
of an offence if, except as permitted by or under
this Act, he interferes with a badger sett by doing any of
the following
things--
(a) damaging
a badger sett or any part of it;
(b) destroying
a badger sett;
(c) obstructing
access to, or any entrance of, a badger sett;
(d) causing
a dog to enter a badger sett; or
(e) disturbing
a badger when it is occupying a badger sett,
intending to do any of those things or being reckless as to
whether his
actions would have any of those consequences.
4. A person is guilty
of an offence if, except as permitted by or under
this Act, he sells a live badger or offers one for sale or
has a live badger in
his possession or under his control.
5. A person is guilty
of an offence if, except as authorised by a licence
under section 10 below, he marks, or attaches any ring, tag
or other
marking device to, a badger other than one which is lawfully
in his
possession or under his control.
Exceptions and licences.
6. A person is not
guilty of an offence under this Act by reason only
of--
(a)
taking or attempting to take a badger which has been disabled
otherwise
than by his act and is taken or to be taken solely for
the purpose
of tending it;
(b) killing
or attempting to kill a badger which appears to be so
seriously
injured or in such a condition that to kill it would be
and act of
mercy;
(c) unavoidably
killing or injuring a badger as an incidental result of
a lawful action;
(d) doing
anything which is authorised under the Animals (Scientific
Procedures)
Act 1986.
7.--(1) Subject to
subsection (2) below, a person is not guilty of an
offence under section 1(1) above by reason of --
(a) killing
or taking, or attempting to kill or take, a badger; or
(b)
injuring a badger in the course of taking it or attempting
to kill
or take
it,
if he shows that his action was necessary for the purpose
of preventing
serious damage to land, crops, poultry or any other form of
property.
(2) The defence provided
by subsection (1) above does not apply in
relation to any action taken at any time if it had become
apparent, before
that time, that the action would prove necessary for the purpose
there
mentioned and either--
(a)
a licence under section 10 below authorising that action had
not
been applied
for as soon as reasonably practicable after that fact
had become
apparent; or
(b) an application
for such a licence had been determined.
8.--(1) Subject to subsection (2)
below, a person is not guilty of an
offence under section 3 above if he shows that his action
was necessary for
the purpose of preventing serious damage to land, crops, poultry
or any
other form of property.
(2) Subsection (2) of
section 7 above applies to the defence in
subsection (1) above as it applies to the defence in subsection
(1) of that
section.
(3) A person is not
guilty of an offence under section 3(a), (c) or (e)
above if he shows that his action was the incidental result
of a lawful
operation and could not reasonably have been avoided.
(4) A person is not
guilty of an offence under section 3(a), (c) or (e)
above by reason of obstructing any entrance of a badger sett
for the
purpose of hunting foxes with hounds if he--
(a)
takes no action other than obstructing such entrances;
(b) does not
dig into the tops or sides of the entrances;
(c) complies
with subsection (5) below as to the materials used for
obstructing
the entrances and with subsection (6) below as to
how and where
they are to be placed and removed; and
(d) is acting
with the authority of the owner or occupier of the land
and the authority
of a recognised Hunt.
(5) The materials used
shall be only--
(a) untainted
straw or hay, or leaf-litter, bracken or loose soil; or
(b) a bundle
of sticks or faggots, or paper sacks either empty or filled
with untainted
straw or hay or leaf-litter, bracken or loose soil.
(6) The materials shall
not be packed hard into the entrances and--
(a)
if they are of the kind mentioned in paragraph (a) of subsection
(5) above,
they shall not be placed in the entrances except on the
day of the
hunt or after midday on the preceding day;
(b) if they
are of the kind mentioned in paragraph (b) of that
subsection,
they shall not be placed in the entrances except on
the day of
the hunt and shall be removed on the same day.
(7) A person is not
guilty of an offence under section 3(a), (c) or (e)
above by reason of his hounds marking at a badger sett provided
they are
withdrawn as soon as reasonably practicable.
(8) Each recognised Hunt shall
keep a register of the persons
authorised to act under subsection (4) above.
(9) In this section "recognised
Hunt" means a Hunt recognised by the
Masters of Fox Hounds Association, the Association of Masters
of
Harriers and Beagles or the Central Committee of Fell Packs.
9. A person is not guilty of an
offence under section 4 above by reason
of having a live badger in his possession or under his control
if--
(a) it
is in his possession or under his control, as the case may
be, in
the course
of his business as a carrier; or
(b) it has
been disabled otherwise than by his act and taken by him
solely for
the purpose of tending it and it is necessary for that
purpose
for it to remain in his possession or under his control,
as the case
may be.
10.--(1) A licence may be granted
to any person by the appropriate
Conservancy Council authorising him notwithstanding anything
in the
foregoing provisions of this Act, but subject to compliance
with any
conditions specified in the licence--
(a) for
scientific or educational purposes or for the conservation
of
badgers--
(i)
to kill or take, within an area specified in the licence
by
any
means so specified, or to sell, or to have in his possession,
any
number of badgers so specified; or
(ii)
to interfere with any badger sett within an area
specified
in the licence by any means so specified;
(b) for
the purpose of any zoological gardens or collection specified
in the licence,
to take within an area specified in the licence by
any means
so specified, or to sell, or to have in his possession,
any number
of badgers so specified;
(c) for
the purpose of ringing or marking, to take badgers within
an area
specified in the licence, to mark such badgers or to
attach to
them any ring, tag or other marking device as specified
in the licence;
(d) for
the purpose of any development as defined in section 55(1)
of
the Town
and Country Planning Act 1990 or, as respects Scotland,
section
19(1) of the Town and Country Planning (Scotland) Act 1972,
to interfere
with a badger sett within an area specified in the licence
by
any means so
specified;
(e) for
the purpose of the preservation, or archaeological investigation,
of a monument
scheduled under section 1 of the Ancient Monuments
and Archaeological
Areas Act 1979, to interfere with a badger sett
within an area
specified in the licence by any means so specified;
(f) for
the purpose of investigating whether any offence has been
committed
or gathering evidence in connection with proceedings before
any court,
to interfere with a badger sett within an area specified
in the
licence
by any means so specified.
(2) A licence may be granted to
any person by the appropriate Minister
authorising him, notwithstanding anything in the foregoing
provisions of
this Act, but subject to compliance with any conditions
specified in the
licence--
(a) for
the purpose of preventing the spread of disease, to kill
or take
badgers,
or to interfere with a badger sett, within an area specified
in
the licence
by any means so specified;
(b) for
the purpose of preventing serious damage to land, crops
poultry
or any other form of property, to kill or take badgers,
or to interfere
with a badger sett, within an area specified in the
licence
by any means so specified;
(c) for
the purpose of any agricultural or forestry operation to
interfere
with a badger sett within an area specified in the
licence
by any means so specified;
(d) for
the purpose of any operation (whether by virtue of the Land
Drainage
Act 1991 or otherwise) to maintain or improve any
existing
watercourse or drainage works, or to construct new
works required
for the drainage of any land, including works for
the purpose
of defence against sea water or tidal water, to
interfere
with a badger sett within an area specified in the licence
by any means
so specified.
(3) A licence may be granted to
any person either by the appropriate
Conservancy Council or the appropriate Minister authorising
that
person, notwithstanding anything in the foregoing provisions
of this Act,
but subject to compliance with any conditions specified
in the licence, to
interfere with a badger sett within an area specified in
the licence by any
means so specified for the purpose of controlling foxes
in order to protect
livestock, game or wild life.
(4) In this section "the appropriate
Conservancy Council" means, in
relation to a licence for an area--
(a) in
England , the Nature Conservancy Council for England;
(b) in Wales,
the Countryside Council for Wales; and
(c) in Scotland,
Scottish Natural Heritage.
(5) In this section "the appropriate
Minister" means in relation to a
licence for an area--
(a) in
England, the Minister of Agriculture, Fisheries and Food;
and
(b) in
Wales or in Scotland, the Secretary of State.
(6) The appropriate Minister shall
from time to time consult with the
appropriate Conservancy Council as to the exercise of his
functions under
subsection (2)(b), (c) or (d) above and shall not grant
a licence of any
description unless he has been advised by the appropriate
Conservancy
Council as to the circumstances in which, in that Council's
opinion,
licences of that description should be granted,
(7) In relation to Scottish Natural
Heritage subsection (6) above shall
have effect with the omission of the reference to subsection
(2)(c) and (d).
(8) A licence granted under this
section may be revoked at any time by
the authority by whom it was granted, and without prejudice
to any other
liability to a penalty which he may have incurred under
this or any other
Act, a person who contravenes or fails to comply with any
condition
imposed on the grant of a licence under this section is
guilty of an offence.
(9) A licence under this section
shall not be unreasonably withheld or
revoked.
(10) It shall be a defence in proceedings for
an offence under section
8(b) of the Protection of Animals Act 1911 or section 7(b)
of the
Protection of Animals (Scotland) Act 1912 (each of which
restricts the
placing on land of poison and poisonous substances) to show
that--
(a) the
act alleged to constitute the offence was done under the
authority
of a licence granted under subsection (2)(a) above;
(b) any
conditions specified in the licence were complied with.
Enforcement and penalties.
11. Where a constable
has reasonable grounds or suspecting that a
person committing an offence under the foregoing provisions
of this
Act, or has committed an offence under those provisions
or those of the
Badgers Act 1973 and that evidence of the commission of
the offence is to
be found on that person or any vehicle or article he may
have with him,
the constable may--
(a)
without warrant stop and search that person and any vehicle
or
article
he may have with him;
(b) seize
and detain for the purposes of proceedings under any of
those provisions
anything which may be evidence of the commission
of the offence
or may be liable to be forfeited under section 12(4)
below;
(c) in Scotland
arrest that person without warrant if he fails to give
his full
name and address to the constable's satisfaction.
12.--(1) A person
guilty of an offence under section 1(1) or (3), 2 or
3 above is liable 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; and a person guilty of an offence under section
4, 5 or 10(8) above
or 13(7) below is liable on summary conviction to a fine
not exceeding that
level.
(2) Where an offence
was committed in respect of more than one
badger the maximum fine which may be imposed under subsection
(1)
above shall be determined as if the person convicted had
been convicted
of a separate offence in respect of each badger.
(3) A person guilty
of an offence under section 1(5) above is liable on
summary conviction to a fine not exceeding level 3 on the
standard scale.
(4) The court by which
a person is convicted of an offence under this
Act shall order the forfeiture of any badger or badger skin
in respect of
which the offence was committed and may, if they think fit,
order the
forfeiture of any weapon or article in respect of or by
means of which the
offence was committed.
13.--(1) Where a
dog has been used in or was present at the
commission of an offence under sections 1(1), 2, or 3 above,
the court, on
convicting the offender, may, in addition to or in substitution
for any
other punishment, make either or both of the following orders--
(a)
an order for the destruction or other disposal of the dog;
(b) an order
disqualifying the offender, for such period as it thinks
fit, for
having custody of a dog.
(2) Where the court
makes an order under subsection (1)(a) above, it
may--
(a)
appoint a person to undertake the destruction or other disposal
of the dog
and require any person having custody of the dog to
deliver
it up for that purpose; and
(b) order
the offender to pay such sum as the court may determine
to be the
reasonable expenses of destroying or otherwise disposing
of the dog
and of keeping it pending its destruction or disposal.
(3) Where an order
under subsection (1)(a) above is made in relation
to a dog owned by a person other than the offender, the
owner of the dog
may appeal to the Crown Court against the order.
(4) A dog shall not
be destroyed pursuant to an order under subsection
(1)(a) above--
(a)
until the end of the period within which notice of appeal
to the
Crown Court
against the order can be given; and
(b) if notice
of appeal is given in that period, until the appeal is
determined
or withdrawn,
unless the owner of the dog gives notice to
the court which made the order
that he does not intend to appeal against it.
(5) A person who is
disqualified for having custody of a dog by virtue
of an order made under subsection (1)(b) above may, at any
time after the
end of the period of one year beginning with the date of
the order, apply
to the court that made it (or any magistrates' court acting
for the same petty sessions area as that court) for a direction
terminating the disqualification.
(6) On an application
under subsection (5) above the court may--
(a)
having regard to the applicant's character, his conduct
since the
disqualification
was imposed and any other circumstances of
the case,
grant or refuse the application; and
(b) order
the applicant to pay all or any part of the costs of the
application;
and where an application in respect of an
order is refused no further
application in respect of that order shall be entertained
if made before the
end of the period of one year beginning with the date of
the refusal.
(7) Any person who--
(a)
has custody of a dog in contravention of an order under
subsection
(1)(b) above; or
(b) fails
to comply with a requirement imposed on him under
subsection
(2)(a) above,
is guilty of an offence.
(8) A sum ordered
to be paid by an order under subsection (2)(b) above
shall be recoverable summarily as a civil debt.
(9) In the application
of this section to Scotland--
(a)
in subsection (3), for the words "Crown Court against
the order"
there shall
be substituted the words "High Court of Justiciary
against
the order within the period of seven days beginning with
the date
of the order";
(b) for
subsection (4)(a) there shall be substituted--
"(a)
until the end of the period of seven days beginning with
the
date
of the order"; and
(c) in subsection
(5), the words "( or any magistrates' court acting
for
the same
petty sessions area as that court)" shall be omitted.
14. In this Act--
"ammunition"
has the same meaning as in the Firearms Act 1968;
"badger"
means any animal of the species Meles meles;
"badger sett"
means any structure or place which displays signs
indicating current
use by a badger;
"firearm"
has the same meaning as in the Firearms Act 1968;
"sale"
includes hire, barter and exchange and cognate expressions
shall be construed
accordingly.
15.--(1) This Act
may be cited as the Protection of Badgers Act 1992.
(2) The enactment's
mentioned in the Schedule to this Act are repealed
to the extent specified in the third column of that Schedule.
(3) This Act shall
come into force at the end of the period of three
months beginning with the day on which it is passed.
(4) This Act does
not extend to Northern Ireland.
SCHEDULE
Repeals
