What is the law that governs the protection of badgers?
Badgers are protected by the Protection of Badgers Act 1992. The Act was passed to consolidate the law, which was previously contained in the Badgers Act 1973, the Badgers Act 1991 and the Badgers (Further Protection) Act 1991.
What acts are forbidden under the Protection of Badgers Act 1992?
Under the Protection of Badgers Act 1992 the following acts are criminal offences:
Taking, injuring or killing badgers
It is a criminal offence, except where permitted by the Act, for a person to wilfully kill, injure or take or to attempt to kill, injure or take a badger.
If there is evidence from which it could reasonably be concluded that a person was attempting to kill, injure or take a badger, if will be presumed that that person was attempting to kill, injure or take the badger unless he can prove otherwise.
It is also a criminal offence, except where permitted by the Act, for a person to have in his possession or under his control a dead badger or any part of, or anything derived from, a dead badger unless he can show that:
- the badger had not been killed, or had been killed otherwise than in contravention of the Act or of the Badgers Act 1973; or
- the badger or other thing in his possession or control has been sold to him or another person and, at the time of the purchase, the purchaser had had no reason to believe that the badger had been killed in contravention of the Act or the Badgers Act 1973.
Where one of these criminal offences is committed the owner or occupier of the land, or any servant of the owner or occupier, or a police constable, has the right to require that the person who has committed the offence leaves the land immediately and provide his name and address. If that person wilfully remains on the land or refuses to give his full name or address he commits a further criminal offence.
The following are criminal offences:
- cruelly ill-treating a badger;
- using badger tongs in the course of killing or taking, or attempting to kill or take, a badger;
- digging for a badger (unless permitted by the Act). If there is evidence from which it could reasonably be concluded that at the material time a person was digging for a badger it will be presumed that that person was digging for a badger unless he can prove otherwise;
- using for the purpose of killing or taking a badger any firearm other than a smooth bore weapon of not less than 20 bore or a rifle using ammunition having a muzzle energy not less than 160 footpounds and a bullet weighing not less than 38 grains.
Interfering with badger setts
The following are criminal offences (unless permitted by the Act):
- damaging a badger sett or any part of it;
- destroying a badger sett;
- obstructing access to, or any entrance of, a badger sett;
- causing a dog to enter a badger sett;
- disturbing a badger when it is occupying a badger sett.
- A criminal offence is committed if a person carries out one of these acts intentionally or is reckless as to whether his actions would have any of these consequences.
Selling and possession of live badgers
It is a criminal offence (unless permitted by the Act) for a person to sell a live badger or offer one for sale. It is also a criminal offence for a person to be in possession of a live badger (unless permitted by the Act).
Marking and ringing
It is a criminal offence to mark, or attach a ring, tag or other marking device to a badger unless the person has a licence to mark and have in his possession a badger.
What are the exceptions?
A person is not guilty of one of the above criminal offences if:
- they are only taking or attempting to take a badger which has been disabled otherwise than by that person’s act and is taking or attempting to take the badger solely for the purpose of tending it;
- they kill or attempt to kill a badger which appears to be so seriously injured or in such a condition that to kill it would be an act of mercy;
- they unavoidably kill or injure a badger as an incidental result of a lawful action;
- they do anything which is authorised under the Animals (Scientific Procedures) Act 1986.
Exceptions to the criminal offence of wilfully killing, injuring, taking or attempting to kill, injure or take a badger
Where a person wilfully kills, injures or takes or attempts to kill, injure or take a badger, that person will not commit a criminal offence if they can show that their action was necessary for the purpose of preventing serious damage to land, crops, poultry or any other form of property. However, this defence does not apply if it was apparent that the person should have applied for a licence beforehand.
Exceptions to the criminal offence of interfering with a badger sett
The following are defences to an offence concerning the interfering with a badger sett:
- where the action was necessary in order to prevent serious damage to land, crops, poultry or any other form of property;
- where the action was incidental to a lawful operation and could not reasonably have been avoided;
- where dogs are used for the hunting of foxes certain acts are permitted.
Exceptions to the criminal offence of selling or possessing a badger
It is a defence where someone is in possession of a live badger and that person is in possession of the badger in the course of his business as a carrier or if it has been disabled other than by that person’s act and has been taken by him solely for the purpose of tending it.
Licences can be obtained to carry out certain acts which would otherwise be forbidden by the Act for the following purposes:
- for scientific or educational purposes or for the conservation of badgers;
- for the purpose of any zoological gardens or collection;
- for the purpose of ringing and marking badgers;
- for the purpose of a development;
- for the purpose of the preservation, or archaeological investigation of a monument;
- for the purpose of investigating whether a criminal offence has been committed or for gather evidence in connection with court proceedings;
- the prevention of the spread of disease;
- the prevention of serious damage to land, crops, poultry or any other form of property;
- for the purpose of an agricultural or forestry operation;
- for the purpose of any operation to maintain or improve an existing watercourse or drainage works or for the construction of a new drainage system.
How is the Act enforced?
The Act gives the police the power to stop and search a person or any vehicle or article he may have with him where there is reasonable grounds for suspecting that a person is committing or has committed an offence. The police also have the power to seize and detain anything which may be used as evidence of the commission of the offence.
What are the penalties and powers of the Court?
The penalties for committing one of the criminal offences under the Act vary. All of the offences are punishable by way of a fine. Some also carry prison sentences of up to six months.
The Court has the power to order the forfeiture of any badger, badger skin or any weapon or article used in the commission of the offence. Where a dog was used in the commission of the offence the Court has the power to order the destruction or disposal of the dog and make an order disqualifying the offender from having custody of a dog.