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15 April 2003
Badgers and the Law
National Federation of Badger Groups
23 July 2002
(Filed 15 April 2003)
www.land-care.org.uk
Why are badgers protected?
Badgers and their setts are legally protected
from intentional cruelty, such as badger-baiting, and from the results
of lawful human activities, such as building developments. The protective
legislation has provided a useful tool in deterring the abuse of
badgers and in prosecuting those who continue to break the law.
However, it is a sad fact that many thousands
of badgers are still killed illegally each year, and the incidents
appear to be increasing. Also, due to the nature of the crimes,
there are relatively few successful prosecutions.
These notes are intended to provide some background
to the law relating to badgers. However, the issue is complex and
more detailed information can be obtained by contacting the National
Federation of Badger Groups (see the end of this paper for contact
details).
Threats to badgers
Badgers in the UK are threatened by both legal
and illegal activities. Legal activities, subject to compliance
with conditions in the 1992 Act, include:
- road and housing development;
- forestry and agricultural operations;
- badger culling by the Ministry of Agriculture
in relation to bovine TB in cattle;
- sett-stopping by fox hunts.
Illegal threats to badgers include:
- badger-digging and baiting;
- snaring;
- poisoning (including the misuse of pesticides);
- lamping;
- sett interference.
Relevant legislation
The main legislation protecting badgers is the
Protection of Badgers Act 1992. This Act consolidates all previous
legislation including the Badgers Act 1973 (as amended) and the
Badgers (Further Protection) Act 1991.
Under the 1992 Act it is an offence to:
- wilfully kill, injure, take or attempt to
kill, injure or take a badger;
- possess a dead badger or any part of a badger;
- cruelly ill-treat a badger;
- use badger tongs in the course of killing,
taking or attempting to kill a badger;
- dig for a badger;
- sell or offer for sale or control any live
badger;
- mark, tag or ring a badger;
- interfere with a badger sett by:
- damaging a sett or any part thereof;
- destroying a sett;
- obstructing access to a sett;
- causing a dog to enter a sett;
- disturbing a badger while occupying a sett.
The 1992 Act defines a badger sett as: “any
structure or place which displays signs indicating current use by
a badger”.
1992 Act: powers of sentence
(i) up to six months’ imprisonment or a fine
at level 5 or both. The fine may be multiplied by the number of
badgers;
(ii) forfeiture of any badger or skin relating
to the offence or any weapon or article used;
(iii) order destruction or disposal of dogs;
(iv) disqualification for having custody of a
dog.
Badgers are also listed on Schedule 6 of the Wildlife
and Countryside Act 1981 and s11 prohibits the use of certain methods
of taking or killing a wild animal, including illuminating devices
and some snares.
Other legislation relevant to badgers (and to
dogs which may be used in badger offences) includes the Protection
of Animals Act 1911 and the Abandonment of Animals Act 1960. Offences
include causing unnecessary suffering, or abandoning in circumstances
likely to result in such suffering, and fighting or baiting animals.
The sentence under this Act is a fine at level 5 or imprisonment
up to six months; confiscation or destruction of dogs and a ban
on keeping animals. The Powers of Criminal Courts Act 1973 (s.43)
allows the forfeiture of property used, or intended to be used,
to commit or facilitate the commission of any offence, including
dogs.
There are powers of arrest only for cruelty to,
or abandonment of, domestic or captive animals under the 1911 Animals
Act, or if the general arrest conditions apply (s.25 of PACE, 1984).
The Control of Pesticides Regulations 1986 prohibit
the use of unapproved products to deter or kill animals, including
badgers. The only repellent approved currently for use to deter
badgers is Renardine. If used at the sett, rather than on lawns,
for example, a licence is required, as set out below, otherwise
there will be an offence of sett interference.
Licensing: development and protection of property
The Protection of Badgers Act 1992 allows for
licences to be issued for a number of purposes, including development
under the Town and Country Planning Act 1990 and to prevent serious
damage to property. Licences to interfere with badger setts or disturb
badgers for development, are issued by the Government’s statutory
nature conservation agencies (English Nature, Countryside Council
for Wales or Scottish Natural Heritage).
Licences to prevent serious damage to property
(including land, crops and poultry) are issued by the relevant Government
Agriculture Department (MAFF in England, NAWAD in Wales and SERAD
in Scotland). Damage licences can allow the interference with, and/or
closure of setts. In some cases, licences are issued to allow the
killing of badgers, although this is generally a last resort and
only a handful of such licences are issued each year.
Licences may be granted by the conservation agencies
for interference with badger setts in the course of investigating
offences. Such licences are normally issued to Police Wildlife Liaison
Officers and to others officially involved in this work.
Other purposes for which licences may be granted
are science, education and conservation; zoos; tagging and marking;
archaeology; disease prevention; agriculture and forestry; land
drainage; and controlling foxes for the protection of livestock,
game and wildlife.
Exceptions: fox hunting
The Protection of Badgers Act 1992 also permits
fox hunts to obstruct the entrances of badger setts to prevent foxes
seeking refuge. However, the following conditions apply:
- that no action is taken other than to obstruct
sett entrances;
- the tops and sides of the sett must not be
dug into;
- only specified materials must be used to obstruct
the entrances and must be placed and removed as specified in the
Act;
- the person obstructing the sett entrances must
have the authority of the owner or occupier of the land and the
authority of a recognised hunt.
Materials permitted for obstructing setts
for the purpose of
fox hunting must only be:
(a) untainted straw or hay, or leaf litter, or
bracken or loose soil, or
(b) a bundle of sticks or faggots, or paper sacks
either filled with untainted straw or hay, or leaf litter, or bracken
or loose soil.
Materials in paragraph (a) can only be placed
in the sett entrances on the day of the hunt or after mid-day of
the preceding day, and do not need to be removed;
materials in paragraph (b) can only be placed
in the sett entrances on the day of the hunt and must be removed
the same day. Materials must not be packed hard into the entrances.
Many fox hunts interpret “loose soil”
as large, heavy lumps of clay or rocks, packed hard into a sett
entrance, making it impossible for badgers to exit.
However, there is now a legal definition of loose
soil, which states that loose soil must be ejusdem generis with
the other materials permitted in the Act, that is, “light,
easily removable and of an obstructive character which is not permanent.”
Clay, if used, must be “sufficiently broken up”. “Spit-sized
lumps” are not “loose soil”. (These quotations are
from the judgement. See also the report at (1998) 162 JP 423). Despite
the legislation, badger groups are still finding setts blocked illegally.
Further advice and information
For advice and information on badger-related issues,
contact Dr Elaine King, NFBG Chief Executive:
15 Cloisters Business Centre
8 Battersea Park Road
London SW8 4BG
Tel: 0207 498 3220 or 0976 153389
Fax: 0207 627 4212
Email: elaine.king@nfbg.org.uk
Web: www.nfbg.org.uk
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