European Protected Species - Habitats Directive

[devboy]

Further to concerns about this new legislation, any one who keeps one of the many European snakes, lizards, Chenolia or amphibians covered in the EPS, perhaps some emails I've sent and received to and from Natural England would be of interest to those who keep species listed. The replies are in blue.

To whom it may concern,

Can you advise if a license is required for UK reptile (specifically European snake) keepers, to keep and breed captive bred; Elaphe quatuorlineata (syn. Elaphe q. quatuorlineata), E. sauromates (syn. E. q. sauromates), Zamenis longissimus (syn. E. longissima)* and Z. situla (syn. E. situla)?

If so, how may one go about applying for such a license (or licenses if they are specimen specific)? If this is the case, potentially there is a number of UK keepers that will need to know about this, some of which will be members of our society.

If, as it is rumoured, keepers will require to prove that their specimens are captive bred - how on earth is that possible when no form of documentation has been previously required?

* There is a population in the UK of these Aesculapian Snakes, how does the new legislation affect the wild population, as they are non natives but resident within the UK and private keepers of species that were obtained from legal avenues elsewhere? Thank you for your time in advance, if you feel that there is anything else I should know, please inform. I have visited your site and Defra's but truthfully nothing is clearly explained about the European Protected Species and how it directly effects current UK keepers of species listed that are not native to the UK.

Kind regards, Dave Royans.
Chairperson - The Ratsnake Foundation
www.ratsnakefoundation.org

Their reply -

Dear Dave

Thank you for your email dated 2 October regarding possession of reptiles. A licence is required to possess any animal listed Annex IV of the Habitats Directive which was taken from the wild since 10th June 1994. However, this does not apply to captive bred animals. The Natural England guidance contains a full list of all animals listed on Annex IV and this can be found on our website at the following link. The documents is called NEPG1. European Protected Species - Natural England

It is legal to possess, transport, sell or exchange any Annex IV specimen that was captive bred. A licence is not required for captive bred specimens. It is likely that any animal conceived and born in a controlled environment would be considered captive and therefore not taken from the wild. However, an animal produced as a result of a fertile egg taken from the wild and hatched in a controlled (captive) environment, would be considered to have been taken from the wild. Likewise the offspring of a gravid (being with young or pregnant) animal taken from the wild and born in a controlled environment would be considered to be taken from the wild.A licence is not required for captive bred specimens or animals taken from outside the EC, or specimens taken prior to 10th June 1994 hence you will not need to provide Natural England with documentary evidence.If the specimens you possess are not captive bred and have been obtained since 10th June 1994 from within the EC then you are likely to require a licence. The application form is available on the Natural England website at the above link. The form is called WML A37.

Please contact me if you would like any further information

My reply -

Dear Xx Xxxxxxx,

First of all thank you for your response, it is greatly appreciated. Forgive my indulgence but I have a few more questions.

All of my specimens are Captive Bred and I am reassured by your words "A licence is not required for captive bred specimens or animals taken from outside the EC, or specimens taken prior to 10th June 1994 hence you will not need to provide Natural England with documentary evidence."

May I again ask if challenged, would I (or anyone else) be expected to prove my/their innocence and what criteria you would accept as proof of an animal being Captive Bred. In other words, do I have to prove that my animals are CB in any foreseeable scenario and if so how?

Further to that, what documentary proof might be required (if applicable) by breeders of EPS animals, if a scenario presents itself whereby legality has to be proven? I’d imagine that might be quite tricky to accomplish, given that it has previously not been a requirement (or even just prudent) to possess any documentation for such animals.

"It is legal to possess, transport, sell or exchange any Annex IV specimen that was captive bred. A licence is not required for captive bred specimens." Fine, this is great news, I'm gratefully relieved and I totally understand this thank you.

This next sentence I'd like some clarification on please. "It is likely that any animal conceived and born in a controlled environment would be considered captive and therefore not taken from the wild." May I ask under what circumstances an animal might not be considered Captive Bred, other than "an animal produced as a result of a fertile egg taken from the wild and hatched in a controlled (captive) environment, would be considered to have been taken from the wild. Likewise the offspring of a gravid (being with young or pregnant) animal taken from the wild and born in a controlled environment would be considered to be taken from the wild" or "specimens you possess are not captive bred and have been obtained since 10th June 1994 from within the EC then you are likely to require a licence." I just wanted to know the exceptions, as the use of the word likely implies there are some?

Finally, how is it possible to prove that an animal was wild caught before 10th June 1994, when it may have been offered for sale or came into your possession, after 10th June 1994? Again, documentation wasn't previously required, so none are likely to be present now.

Thank you for your time in answering my earlier queries and these ones above, it is appreciated, as myself and other hobbyists wish to remain within the law.

Kind regards, Dave Royans.


The reply -

"]Dave

Apologies for not replying earlier to your email. Natural England's role under the Habitats Regulations is that primarily of a licensing body. We are not responsible for enforcing breaches of the Regulations. It is the police who are responsible for enforcing this legislation though we will provide assistance where appropriate or investigate possible offences. It is possible that a private individual may take a private prosecution.

Regarding a definition of what is considered as captive bred. The relevant offences in the Habitats Regulations relate to wild animals. Ultimately it is the for the court to decide what is considered to be wild as opposed to captive bred. The advice which Natural England has given in relation to what is considered captive bred is guidance only and hence is phrased in such a way. I am not aware of any exceptions to this guidance.

Regards Xx Xxxxxxx.

Ultimately it is the for the court to decide what is considered to be wild as opposed to captive bred

It seems the burden of proof remains as it is in the rest of UK law and the onus is not on the accused to prove their innocence. Comments welcome.

[gaz]

guessing they will nab someone and use them as a test case to gain clarification
regards gaz

[Athravan]

If someone was taken to court, provided some photographic or written statements from the breeder and/or seller/shop/importer, the courts would surely want to accept this evidence and not spend a lengthy time and amount of money trying to disprove it, which is not possible.

I wonder if clarification could be gained from a judge or a lawyer regarding this then, as it seems as it would be a case for the law not for natural england or DEFRA...

If the onus is on the prosecutor (who would be the state appointed I suppose) to prove that the animal is wild caught, or disprove the evidence of captivity, then I would think very few people have anything to worry about. It would be much harder for a government official to actually prove an animal was wild caught in the EU, than for a UK breeder to prove it wasn't.

It would be interesting to engage a lawyer and ask, very simply - is there any chance that the courts would actually go ahead, if they had no evidence that the animals were obtained illegally?

[ratboy]

It's very interesting that you would be prosecuted by the police ( and therefore a public prosecution by the CPS ) and not by the likes of the RSPCA who do private prosecutions.

This, in my opinion, is great news since the CPS would not take it to court unless there was, in their opinion, a case to answer. They are not going to want to go off half-cocked and lose the case as it would set a precedent and undermine the new law.

[PendleHog]

Oh I dont know ratboy....

It is the police who are responsible for enforcing this legislation though we will provide assistance where appropriate or investigate possible offences. It is possible that a private individual may take a private prosecution.

That reads RSPCA in my mind!

[purejurrasic]

I may be wrong, but did I not read somewhere that there was a reverse burdon of proof in these cases, ie, the animal will be deamed WC unless otherwise proved?

Of course, when they say it does not effect CB animals, its not quite correct.

It Does.

Why??

Well, breeders will now have to provide proof that the animals the breed are CB, so will need to produce some kind of document that any new owner can rely upon to defend them if the worse happens and they have to prove origins

To be honest, theres nothing new in that letter that is not already known.

[Fixx]

Originally Posted by PendleHog

Oh I dont know ratboy....



That reads RSPCA in my mind!

Yep, it falls under the Common Informers Act 1951, anyone can bring about a private prosecution, you, me the RSPCA, anybody.

[ratboy]

Originally Posted by PendleHog

Oh I dont know ratboy....

That reads RSPCA in my mind!

Indeed, but the main onus is on the police. My guess would be that the RSPCA would be waiting in the wings to prosecute privately if the public prosecutions do not amount to anything.... Mind you, I was not aware that the RSPCA had much interest in EPS ? Keeping them does not really equate to cruelty.

[devboy]

If the onus is on the prosecutor (who would be the state appointed I suppose) to prove that the animal is wild caught, or disprove the evidence of captivity, then I would think very few people have anything to worry about. It would be much harder for a government official to actually prove an animal was wild caught in the EU, than for a

UK breeder to prove it wasn't.

If the onus is on the prosecutor, then yes. It still might not be however, this is something that really needs to be clarified and no doubt a lengthy process will ensue to do just that.

It would be interesting to engage a lawyer and ask, very simply - is there any chance that the courts would actually go ahead, if they had no evidence that the animals were obtained illegally?

Yes, worth £22 of anybodies money.

It's very interesting that you would be prosecuted by the police ( and therefore a public prosecution by the CPS ) and not by the likes of the RSPCA who do private prosecutions.

This, in my opinion, is great news since the CPS would not take it to court unless there was, in their opinion, a case to answer. They are not going to want to go off half-cocked and lose the case as it would set a precedent and undermine the new law.

…but an inspector from the RSPCA (or any other private individual for that matter) could potentially attempt to prosecute someone. I could flip that on its head and say, someone from the Ratsnake Foundation could start a case against the RSPCA, if they kept a EPS species I believed was WC. Depending on the criteria for establishing ‘what is captive bred’ and whether or not we have to prove our innocence, we don’t really know much more than before. Although the licensing body is of the opinion that we haven’t got to prove our innocence, they admit that it would be ‘down to the courts to decide’. Basically, although the reply is encouraging, it’s also not resolved. The EPS has seemingly been hastily prepared and not as thoroughly worked out as it should have been nor is the actual policy of what constitutes ‘proof’ if you (or anyone) is challenged, of legality.

That reads RSPCA in my mind!

Perhaps not, we have been told that it won’t be, at least not as an organisation. I confess it rang alarm bells to me to.

I may be wrong, but did I not read somewhere that there was a reverse burdon of proof in these cases, ie, the animal will be deamed WC unless otherwise proved?

Of course, when they say it does not effect CB animals, its not quite correct.

It Does.

Why??

Well, breeders will now have to provide proof that the animals the breed are CB, so will need to produce some kind of document that any new owner can rely upon to defend them if the worse happens and they have to prove origins

To be honest, theres nothing new in that letter that is not already known.

Apart from an answer… of sorts, I agree. It’s a long haul. To be fair, the response demonstrates that the licensing body at least, believes the burden of proof remains as it does for all UK law and not the reverse – they are not aware of it being different. Fair comment about whether or not this is actually the case however. It is clearly not the intention of Natural England to provide paperwork/licensing for legal CB animals, which leads to the (possible) problem you highlight - as there is no proof that they are legal either. This is something to take on board and it is being considered I believe.

Sorry for the borken quotes, I'd remove the coding but everytime I preview it, it seems to return.