The British bird fancy is reeling at the huge fine levied last month on one of its most respected members. So how can fanciers be sure they’re on the right side of the law? Here, JAMES PAVEY of specialist solicitors Knights offers his advice. Questions: Rob Innes
Q What does the Ted Easter ruling mean for the British bird fancy?
A According to media reports, Mr Easter was ordered to pay nearly £20,000 in fines and prosecution costs. This serves as a stark reminder of the importance of having written records establishing the parentage and provenance of birds in your possession. Failure to do so will leave a birdkeeper in a vulnerable position if the parentage and provenance of his birds is queried in the context of a criminal investigation and, subsequently, in criminal proceedings before a magistrates’ court.
It is, however, important to bear in mind that the case was decided in the magistrates’ court and, so, it does not set a legal precedent.
Q What exactly did Mr Easter do wrong?
A It is difficult to answer this question precisely, as we did not act for Mr Easter or attend the trial, and the District Judge’s judgment is not published as a matter of public record. From the media coverage we have seen, it appears that Mr Easter did not keep documentary evidence which would have enabled him to demonstrate that birds in his possession were not taken from the wild.
Section 1(2) of the Wildlife and Countryside Act 1981 (WCA) makes the possession of a wild bird, living or dead, or the egg of a wild bird, a criminal offence. Section 1(3) WCA 1981 provides a number of defences to the accused: for example, that the bird had not been sold in contravention of the WCA 1981. The burden, however, is on the accused in any investigation or proceedings to demonstrate that the bird was not captured from the wild. It appears that Mr Easter was unable to establish that the birds in his possession were not wild, as he did not possess any records establishing their origin or parentage.
Q What does “wild” mean according to the law?
A There is no statutory definition of the word “wild” itself, when used in a legal context, so you have to fall back on the dictionary definition of the word. In relation to “wild birds”, however, things are a little clearer.
Section 27(2) WCA 1981 defines a wild bird as “any bird of a species which is ordinarily resident in or is a visitor to any member State or the European territory of any member State in a wild state but does not include poultry or, except in sections 5 and 16, any game bird”. For the purposes of an offence under s.1(2) WCA 1981, however, a wild bird “does not include any bird which is shown to have been bred in captivity” (s.1(6) WCA).
Q What rings and/or documentation do I need to own a British bird legally – say a greenfinch?
A The law does not require you to have a ring on a captive bird of a species that occurs naturally in Britain, such as a greenfinch, simply for the purposes of keeping it; nor does the law require you as its keeper to record its provenance. However, if you offer such a bird for sale or exchange, it must have been bred in captivity and be close-ringed, otherwise you do commit an offence (s.6(1) and s.6(5) WCA 1981).
As we have explained above, if such birds are not ringed and you do not have a record of how they came to be in your possession, you have a practical difficulty: proving that they were not taken from the wild, either by you or by the person who sold or gave them to you.
Q I’ve heard that now we all need documentation going back to a bird’s grandparents. Is that correct?
A Not quite correct. If you are selling or offering to sell or advertising for sale a bird such as a Greenfinch, it must have been bred in captivity and must have been ringed, otherwise you commit an offence (s.6(1) and s.6(5)).
As a matter of proof, it is rather easier to demonstrate that a bird was bred in captivity if you have records showing that both its parents were captive-bred.
Further, it is an offence to show or allow someone else to show a bird such as a Greenfinch in a competition in two circumstances. The first circumstance is where the bird was not bred in captivity and has not been ringed. The second circumstance is where one of the parents of the bird was not bred in captivity and was not ringed. It is that second circumstance that takes you back to the bird’s grandparents.
Q What single piece of advice would you offer to those in the British bird fancy?
A As inconvenient as it might be to keep written records of the provenance of the captive-bred birds in your aviary, it is crucial to do so and to ensure that the records are both comprehensive and accurate.
Ultimately, it is no use just being certain in your own mind that you are not committing any criminal offences under s.1(2) and s.6 WCA 1981: it is about being able to demonstrate that you are not.
ABOUT KNIGHTS: Knights Solicitors is a specialist law firm, focusing on civil, criminal and regulatory litigation. The firm, based in Tunbridge Wells, Kent, is best known for its public law, property and regulatory work. It is the appointed solicitor of the Parrot Society UK.
Website: www.knights-solicitors.co.uk. Tel: 01892 537311.