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How about an in-situ shot?

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GemmaJF View Drop Down
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 6:02pm
But if one looks at the guidance above

Is the species in question protected?

Yes

Is it likely that I am going to commit an offence in my activity, i.e. disturbance, which it is protected against

Yes

Do I therefore need a licence?

Yes.

The next step is to pick up the phone and talk to the NE licensing department. 

There is really no escaping that Sand Lizards are protected against disturbance and anything other than the most casual of observation ***probably*** could be regarded by some people as disturbing them and therefore potentially as committing an offence. Personally I would have to get close enough to a juvenile to potentially risk disturbing it, even to be sure of the ID.

If one wanted to argue in court that bird watchers do it all the time thereby flouting the law, all one has is an example of what others get away with rather than an defence.


If a case did get to court they would use documents such as that provided earlier to build the case. It is pretty clear to me it is saying one would need a licence. So it would also be clear to a magistrate too?


Edited by GemmaJF - 12 Dec 2013 at 6:05pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 6:29pm
This almost makes me want to be the test case.

We have come full circle, back to the question of what would count as "disturbance". We just don't know, but obviously Natural England and the National Trust take a more relaxed view. They can't think that merely watching is disturbance, because they invite the public to do it. That would be my defence, I think. Natural England, after all, is the licence-issuing authority.

Richard
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 6:43pm
It is a magistrate that will prosecute, not NE. Who can guess what they will think disturbance means.


But to add...

If by chance they happened to ask my opinion what it meant, I would have to say that is very difficult to observe reptiles at close quarters and not risk disturbing them. Regardless how careful one is or how experienced one is...

That's just fact is it not?


Edited by GemmaJF - 12 Dec 2013 at 6:47pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 8:12pm
Once again, it all depends on what the law means by "disturbing". It is difficult to watch reptiles at close quarters without risking making them run for cover. Whether, in the meaning of the law, that constitutes disturbance or whether disturbance means something more serious is what this whole debate is about.

I would have to place my faith in the common sense of a British magistrate. The fact that English Nature had publicly invited me to do it would be a piece of admissible evidence, i would think.

Richard


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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 8:43pm
If they went for a dictionary definition it would be along the lines of 

something that interrupts them or makes them feel worried

I would guess making something run away could qualify?

I guess the most ironic thing is one would pretty much have to creep up stealthily to 'disturb' a reptile.

Perhaps that is the difference. A member of the public probably would not have the ability to achieve this. I know for sure plenty of rangers who never see anything on their own sites from what they say. So now we have a picture of someone creeping through the undergrowth targeting the animals. Again far removed from a member of the public getting a fleeting glance whilst on a path. I don't see how anyone could not see the potential of 'disturbance' in such a situation really. I pretty much give up looking for adders at my local site when other people are about looking for them. They clearly do disturb the animals.


Edited by GemmaJF - 12 Dec 2013 at 8:45pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:01pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:22pm

Thanks, Gemma. I hope you don't think I'm keeping on about this just for the sake of argument. It seems very important to me.


The actual wording of the disturbance clause introduces another complication:

"a person is guilty of an offence if intentionally or recklessly—



(b)he disturbs any such animal while it is occupying a structure or place which it uses for shelter or protection;" 











It has to be using a structure or place for shelter or protection. One could take this to mean that one will be committing an offence if one pursues the animal or otherwise continues to disturb it once it has run under cover, but not in the initial instance of startling it out in the open. Or one could argue, I guess, that the whole nature reserve constitutes the structure or place, but that's a particular interpretation. It's another grey area.




What I have in mind is someone getting, as you say, a fleeting glance on a path, but then stopping and crouching to watch. This doesn't require any great skill or knowledge at all, just a bit of luck. Or not even that if you are following the instructions NE and NT kindly provide on their signage. Lizards don't always run away at the slightest movement. Or one might wait motionlessly for the lizard to come out again. How could that be disturbance?


 

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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:23pm
Sorry about my spacing. Pasting that bit of the Act in made it go crazy.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote GemmaJF Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:31pm
I would as a potential expert witness happily state that an earth bank was a place of refuge for a lizard though. In fact all of its natural habitat qualifies. Surely vegetation provides shelter or protection when you are a lizard or snake. It does not have to be a specific 'den' as such as far as I can see. Much the way a pond qualifies to a GCN or a log if it is under it.

Someone lucky on a path I would say would be very unlucky if they were prosecuted for disturbance.

Someone who regularly wanders off the path to creep about with a camera in the undergrowth (for example even the most amateur of herpetologists) ought to be thinking about what they are doing and whether they ought to have some form of licence if protected species are present.

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Post Options Post Options   Thanks (0) Thanks(0)   Quote Richard2 Quote  Post ReplyReply Direct Link To This Post Posted: 12 Dec 2013 at 9:55pm
If that someone being lucky on a path can be someone who has deliberately gone there to look out for lizards, then I think we have reached common ground.

Richard
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