Legislative protection for the UK’s herpetofauna

England               and                Wales

Protection for herpetofauna in England and Wales

A. European Protected Species: The smooth snake, sand lizard, natterjack toad and great crested newt and marine turtles are protected via a combination of Regulation 39 of the Habitats Regulations 1994 (as amended 2007, 2008 and 2009), and via s. 9(4) b & c and s. 9(5) of the Wildlife & Countryside Act 1981 (as amended) and the pool frog (see note *) via Regulation 39 of the Habitats Regulations 1994 (as amended 2007, 2008 and 2009) against:

(a) deliberate capturing, injuring or killing

(b) deliberate disturbance which in particular relates to disturbance likely to -

(i) impair the ability to survive, breed, or rear or nurture their young; or

(ii) impair their ability to hibernate or migrate

(iii) affect significantly the local distribution or abundance of that species;

(c) deliberate taking or destroying the eggs of such an animal; or

(d)     (i) damaging or destroying a breeding site or resting place of such an animal

and/or

(ii) *intentionally or recklessly -

(a) disturbing any such animal while it is occupying a structure or place which it uses for shelter or protection; or

(b) obstructing access to any structure or place which any such animal uses for shelter or protection.

(e)** any person—

(i) having in their possession or control;

(ii) transporting;

(iii) selling or exchanging; or

(iv) offering for sale or exchange, any

(a) live or dead animal or part of an animal—

(i) which has been taken from the wild; and

(ii) which is of a species or subspecies listed in Annex IV(a) to the Habitats Directive; and

(b) part of, or anything derived from, such an animal or any such part of an animal;

unless the animal from which the part or the thing in question is derived, was lawfully taken from the wild (i.e. taken from the wild in the European Union without contravention of appropriate domestic legislation and before the implementation date of the Habitats Directive (in that Country e.g. 1994 in UK) or if it was taken from elsewhere).

*This section does not apply to Pool Frogs

** This section also covers all other species listed on Annex IV of the Habitats Directive.

These relate to ‘wild animals’ and apply regardless of the stage of the life of the animal in question. Unless the contrary is shown, in any proceedings for an offence under paragraph the animal in question is to be presumed to have been a wild animal.

Note that different defences and licensing regimes are appropriate under the Wildlife & Countryside Act 1981 as amended (which relates only in the context of intentional & reckless damage & disturbance while occupying a place used for shelter & protection (d) (ii) a-b above) and the Habitats Regulations 1994 as amended (relating to all other provisions described above.

The legislation & section numbers, and amendments

Regs 39 of Conservation (Natural Habitats, etc) Regulations 1994 http://www.opsi.gov.uk/SI/si1994/Uksi_19942716_en_1.htm as amended by Reg 13 of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 http://www.opsi.gov.uk/si/si2007/uksi_20071843_en.pdf ; with further amendments to disturbance provision (Regulation 39 (1) b) and provision for production of guidance on the application of offences relating to disturbance and habitat damage/destruction via The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2009 http://www.opsi.gov.uk/si/si2009/uksi_20090006_en_1

Section 9 (4) a-c only of The Wildlife & Countryside Act 1981 http://www.jncc.gov.uk/page-3614  as amended:-

(i) Inclusion of Marine turtles on Sch 5 were inserted by article 2 of the Wildlife and Countryside Act 1981 (Variation of Schedules) Order 1988, S.I.1988/288. http://www.opsi.gov.uk/si/si1988/Uksi_19880288_en_1.htm

(ii) Inclusion of Reckless disturbance via Section 9(4) of the Wildlife and Countryside Act 1981 (c.69) was amended by section 81(1) of, and paragraph 5(a) of Schedule 12 to, the Countryside and Rights of Way Act 2000 (c.37). http://www.opsi.gov.uk/acts/acts2000/20000037.htm

(iii) Full amendment of Section 9(4) via Reg 62 (/) of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 http://www.opsi.gov.uk/si/si2007/uksi_20071843_en.pdf

(iv) Amendment of Sch 5 to include EPS only with regards to section 9(4)(b) and (c) and (5) only through Reg 62 of The Conservation (Natural Habitats, &c.) (Amendment) Regulations 2007 http://www.opsi.gov.uk/si/si2007/uksi_20071843_en.pdf – with effect 21 August 2007

(vi) Requirement for monitoring of EPS and assessment of threats from incidental capturing and killing introduced via 2007 Amendment and made more specific in 2009 Amendment to the Habitats Regs.

(viii) the Pool Frog is listed on Annex IV of the Habitats Directive and was added to Schedule 2 of the Habitats Regulations by The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2008 http://www.opsi.gov.uk/si/si2008/uksi_20082172_en_1 ; there is no corresponding change as yet to the Wildlife & Countryside Act though in the fifth quinquennial review of Sch 5, (2008) JNCC have recommended inclusion of the ’northern clade’ of pool frog for addition to Sch 5 of Wildlife & Countryside Act 1981 to the same extent as the other EPS. http://www.jncc.gov.uk/PDF/5qr.pdf

B. Widespread reptiles and amphibians

The adder, grass snake, common lizard, slow worm , common frog, common toad, smooth newt and palmate newt

Reptiles only (adder, grass snake, common lizard and slow worm) are protected via part of S 9(1) of the Wildlife & Countryside Act 1981 (as amended) against:

(a) intentional killing and injuring (note the provision in section 9(1) of Wildlife & Countryside Act 1981 prohibiting “taking” does not apply to reptiles)

Both reptiles (adder, grass snake, common lizard and slow worm) and amphibians (common frog, common toad, smooth newt, palmate newt) are protected via part of S 9(5) of the Wildlife & Countryside Act 1981 (as amended) against:

(b)    (i) selling, offering or exposing for sale, or having in possession or transporting for the purpose of sale, any live or dead wild animal or any part of, or anything derived from, such an animal; or

       (ii) publishing or causing to be published any advertisement likely to be understood as conveying buying or selling, or intending to buy or sell, any of those things.

The legislation relates only to ‘wild animals’, but in any proceedings the animal in question shall be presumed to have been a wild animal unless the contrary is shown. This protection is solely through the Wildlife & Countryside Act 1981 as amended and defences and licensing provisions are provided within that Act.

The legislation & section numbers, and amendments:

Section 9 (4) a-c only of The Wildlife & Countryside Act as amended:-

(i) Inclusion of common lizards, grass snakes, slow worms on Sch. 5 were inserted by article 2 of the Wildlife and Countryside Act 1981 (Variation of Schedules) Order 1988, S.I.1988 No. 288. http://www.opsi.gov.uk/si/si1988/Uksi_19880288_en_1.htm

(ii) Inclusion of Adder: article 2 of the Wildlife and Countryside Act 1981 (Variation of Schedule) Order 1991 S.I. 1991 No. 367 http://www.opsi.gov.uk/SI/si1991/Uksi_19910367_en_1.htm

Further advice and guidance:

Habitats Directive: JNCC http://www.jncc.gov.uk/page-1374 and  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992L0043:EN:HTML

DEFRA: http://www.defra.gov.uk/wildlife-countryside/ewd/ewd09.htm 

Natural England has a web page with guidance on the changes, including some notes on herp species, at: http://www.naturalengland.org.uk/conservation/wildlife-management-licensing/habsregs.htm

Forestry Commission: http://www.forestry.gov.uk/eps