# Law on Captruing, Keeping and Disturbing Native UK Reptiles and other Herps



## Lizard Loft (Mar 1, 2008)

Due to so many people either not knowing the laws or getting them wrong concerning captuing, keeping and disturbng native british reptile and other herps i thought i would make this thread in order to make it clear for everyone.

Under the *Wildlife and Countryside Act 1981 *all native reptiles and amphibians are covered by some form of protection and laws, the levels of this protection however differs depending upon the species concerned, and this is where people get confused. 

The protection and laws are explained below;

*1. Full protection*

This applies to the *great crested newt, natterjack toad, sand lizard and smooth snake* and to *all species of marine turtle* (i.e. the families Dermochelyidae and Cheloniidae) when found in British waters. All parts of Section 9 apply. This prohibits the intentional killing. injuring or taking (capture. etc); possession; intentional disturbance whilst occupying a 'place used for shelter or protection' and destruction of these places; sale, barter. exchange. transporting for sale and advertising to sell or to buy.

*2. Protection against killing, injuring and sale*

"This level of protection applies to the four widespread species of reptile, namely the *common lizard, slow-worm, grass snake and adder*. Only part of sub-section 9(1) and all of sub-section 9(5) apply; these prohibit the intentional killing and injuring and trade (i.e. sale, barter, exchange, transporting for sale and advertising to sell or to buy). It is not an offence under the Wildlife and Countryside Act 1981 to possess these animals.

*3. Protection against sale only*

The four widespread species of amphibian, the *smooth and palmate newts, the common frog and common toad*, are protected only by Section 9(5) of the Wildlife and Countryside Act 1981. This section prohibits sale, barter, exchange, transporting for sale and advertising to sell or to buy. Collection and keeping of these widespread amphibian species is not an offence. 

*** sale etc refers not only to live animals but also to any parts or derivitives. Offspring of animals taken from the wild cannot be sold, the animals must be at least 5th generation in order for them to be sold, and proving this to authorities is very difficult ***


In simplified terms....

The species mentioned in *1. Full protection *which are;
_Great crested newt, _
_Natterjack toad, _
_Sand lizard_
_Smooth snake _
_all species of marine turtle_ 

Are under full protection and cannot be, captured, kept, killed, sold or even disturbed!

The species in *2. Protection against killing, injuring and sale,* which are;
_Common lizard, _
_Slow-worm, _
_Grass snake _
_Adder_

Are protected against killing, injuring or selling, but can be captured from the wild and kept as pets for individual purposes

The species mention in *3. Protection against sale only* which are;

_Smooth and palmate newts, _
_Common frog _
_Common toad_

Are only protected againt trade, exchange and sale, this can also be captured from the wild and kept as pets for individual use.

Hope this helps people, and clears up any confusion :2thumb:


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## Lizard Loft (Mar 1, 2008)

oh yeah, if anyone wants to suggest this as a sticky or any mods want to make it a sticky feel free :whistling2:


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## daftlassieEmma (Oct 23, 2008)

good thread! someone made one on slow worm law but it got lost amongst all the arguing....

it's nice to see all the species in one post : victory:


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## Lizard Loft (Mar 1, 2008)

daftlassieEmma said:


> good thread! someone made one on slow worm law but it got lost amongst all the arguing....
> 
> it's nice to see all the species in one post : victory:


Thanks, i thought it was about time and didnt know if it had been done so i did it anyway incase it hadn't


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## EdC (Sep 18, 2008)

Definite sticky!!


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## ian14 (Jan 2, 2008)

Just to add a littlwe extra, sale etc refers not only to live animals but also to any parts or derivitives.
CB natives can be legally sold however to date, I am not aware of any precedent as to how you would prove this.
There is also debate as to whether offspring you have bred from WC parents would be seen as "derivitives" or if the parents would also need to be CB.


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## Lizard Loft (Mar 1, 2008)

ian14 said:


> Just to add a littlwe extra, sale etc refers not only to live animals but also to any parts or derivitives.
> CB natives can be legally sold however to date, I am not aware of any precedent as to how you would prove this.
> There is also debate as to whether offspring you have bred from WC parents would be seen as "derivitives" or if the parents would also need to be CB.


Thanks mate ill add that in :2thumb:


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## wildlifewarrior (Jun 26, 2008)

ian14 said:


> Just to add a littlwe extra, sale etc refers not only to live animals but also to any parts or derivitives.
> CB natives can be legally sold however to date, I am not aware of any precedent as to how you would prove this.
> There is also debate as to whether offspring you have bred from WC parents would be seen as "derivitives" or if the parents would also need to be CB.



There has been one case with slow worms in newcastle about 4 years ago....defra were asked prior to the person selling them....the babies he was selling were from captivebred adults...those adults were from wc parents.
all breedings and hatchings were photographed and a reptile vet reported that they were captive bred.....and that was enough proof to sell them on.


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## Matt Harris (Aug 21, 2007)

Lizard Loft said:


> *** sale etc refers not only to live animals but also to any parts or derivitives. Offspring of animals taken from the wild cannot be sold, the animals must be at least 5th generation in order for them to be sold, and proving this to authorities is very difficult ***


I wondered when we'd get to 5th generation! This topic has been discussed regularly ever since I've been of these forums over the last five years - It started off that you could only sell 2nd generation, then NO - it's 3rd generation etc etc. I think I'll start taking bets on when someone comes out with 'you can only sell 6th generation cb native animals'!!!

None of it's true of course, and the law only prevents sale of 'wild' animals - there is no mention of captive bred, whether it be 2nd, 6th or 50th generation.

WCA 1981 section 9(5) prohibits trade of 'wild animals' listed in Schedule 5. 'Wild animal' is later defined in S. 27(1) as '...any animal (other than a bird) which is or (before it was killed or taken) was living in the wild'. This implies that F1 offspring are legal to sell, as they were never living in the wild. 

Furthermore, is you extrapolate from birds to other animals, S. 27(2) says ' A bird shall not be treated as bred in captivity for the purposes of this Part unless its parents were lawfully in captivity when the egg was laid.' 

I gather some other forum members have had guidance from DEFRA as to what can be legally traded, and this should be referred to in the guidance above.

Finally it would be worth referring to the general licences which allow sale of common native amphibians, within certain conditions, in England and Wales (don't know about Scotland or NI).


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## Matt Harris (Aug 21, 2007)

Just a general point - many aspects of these laws are open to interpretation and/or have not been clarified by caselaw. Therefore, it's difficult to summarise the law in one post without just copying it straight from the statute. A lot of the time it's difficult to describe accurately what's right and wrong in black and white terms - so much is open to interpretation.


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## ian14 (Jan 2, 2008)

Matt Harris said:


> I wondered when we'd get to 5th generation! This topic has been discussed regularly ever since I've been of these forums over the last five years - It started off that you could only sell 2nd generation, then NO - it's 3rd generation etc etc. I think I'll start taking bets on when someone comes out with 'you can only sell 6th generation cb native animals'!!!
> 
> None of it's true of course, and the law only prevents sale of 'wild' animals - there is no mention of captive bred, whether it be 2nd, 6th or 50th generation.
> 
> ...


Finally!! Someone who corroborates what I have said on the many threads on this subject. I contacted DEFRA sometime ago for clarity on this issue, and was told that the legislation concerning sale relates only to animals living in a wild state prior to being offered for sale. Therefore, those bred and indeed born in captivity could legally be sold. Given that it is DEFRA who administer this legislation I would accept what they say, rather than the army of armchair barristers here. Sadly I had lost the email so no one beleived me!
You can also legally keep the fully protected species with a licence which is not hard to get. I kept a group of crested newts for a couple of years under licence.


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## Lizard Loft (Mar 1, 2008)

Thanks for all your comments everyone, 

ok so the 5th generation thing is rubbish, they must be captive bred before being sold, : victory:

if anyone else has anything else to add your more then welcome, the point of this thread is to get the laws etc down and correct any errors, so its all correct and in one place making it easy to find, :2thumb:


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## Wacky Dan (Aug 6, 2009)

Wow, Very interesting thread, I didn't know the UK had so many native reptiles. Are they many others which are not protected?


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## Natrix (Dec 9, 2006)

Matt Harris said:


> I wondered when we'd get to 5th generation! This topic has been discussed regularly ever since I've been of these forums over the last five years - It started off that you could only sell 2nd generation, then NO - it's 3rd generation etc etc. I think I'll start taking bets on when someone comes out with 'you can only sell 6th generation cb native animals'!!!
> 
> None of it's true of course, and the law only prevents sale of 'wild' animals - there is no mention of captive bred, whether it be 2nd, 6th or 50th generation.
> 
> ...


The answer to what generation can and can't be sold seems to depend on which DEFRA employee you speak too. 
When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies. 
Section 6 then goes on to put the burden of proof on the owner when selling stock as captive bred.

Natrix.

(5) Subject to the provision of this part, if any person-

(a) sells, offers or exposes for sale, or has in his possession or transports for the purpose of sale, any live or dead wild animal included in schedule 5, or any part of *or anything derived from, such an animal* ; or
(b) publishes or causes to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell, any of those things, 
he shall be guilty of an offence.

(6) In any proceedings for an offence under subsection (1), (2) or (5)(a), the animal in question shall be presumed to have been a wild animal unless contrary is shown.


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## wildlifewarrior (Jun 26, 2008)

Natrix said:


> The answer to what generation can and can't be sold seems to depend on which DEFRA employee you speak too.
> When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies.
> Section 6 then goes on to put the burden of proof on the owner when selling stock as captive bred.
> 
> Natrix.


This is what i was told when Defra and action earth came out to access our wildlife garden. and also what was told to the person from newcastle selling cb slow worms.: victory:


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## ian14 (Jan 2, 2008)

And herein lies the problem. I was told that providing the animal offered for sale had not been living in a wild state prior to sale there was no offence.
The reality is that until such time as a legal challenge is made subsequent to a charge of illegal trade, this will not be resolved. Case law is needed to clarify this, and case law will not be reached until someone is taken to court for selling/offspring to sell native CB herps.
And how likely is this??
Common sense says that if they were born/bred in captivity the legislation does not apply. It only refers to animals living in a wild state prior to sale.


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## Matt Harris (Aug 21, 2007)

When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies. 


I would be very surprised if this interpretation from DEFRA would stand up in court. It seems to me that the 'derived from' clause is intended to cover things like skins, feathers, eggs, samples, lotions and potions etc made or arising from wild animals.

As Ian says, there is no caselaw on this so it's hard to tell.


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## ian14 (Jan 2, 2008)

Matt Harris said:


> When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies.
> 
> 
> I would be very surprised if this interpretation from DEFRA would stand up in court. *It seems to me that the 'derived from' clause is intended to cover things like skins, feathers, eggs, samples, lotions and potions etc made or arising from wild animals.*
> ...


This is also my understanding of the meaning of derivative


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## SnakeBreeder (Mar 11, 2007)

Some excellent information here : victory:


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## Natrix (Dec 9, 2006)

Matt Harris said:


> When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies.
> 
> 
> I would be very surprised if this interpretation from DEFRA would stand up in court. It seems to me that the 'derived from' clause is intended to cover things like skins, feathers, *eggs*, samples, lotions and potions etc made or arising from wild animals.
> ...


:whistling2::whistling2::whistling2::whistling2::whistling2::whistling2:
Natrix


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## TWGarland (May 24, 2009)

Interesting thread. I'm probably way off here, but although Adders aren't protected from disturbance, don't you need a DWA to keep one?


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## Natrix (Dec 9, 2006)

TWGarland said:


> Interesting thread. I'm probably way off here, but although Adders aren't protected from disturbance, don't you need a DWA to keep one?


Yes

Natrix


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## Matt Harris (Aug 21, 2007)

Natrix said:


> :whistling2::whistling2::whistling2::whistling2::whistling2::whistling2:
> Natrix


Sorry, is there a comment there?


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## ian14 (Jan 2, 2008)

> Quote:
> Originally Posted by *Matt Harris*
> _When I contacted DEFRA to enquire about this I was told that the important bit was section 5 which clearly states *or anything derived from, such an animal . *DEFRA considers babbies to be a derivative of their parents and there for can not be sold if either of the parents are wild caught. This then makes it second generation before you can legally sell the babies.
> 
> ...


I am pretty certain that the reference to eggs relates to bird eggs, due to the trade in eggs, nest raiding etc.
Clealry, you are not going to buy a snake egg, which would be daft. The egg is not an egg once the snake has hatched out, it will just be an empty shell. This would mean that the snake is a deriviative of a derivative! An animal which has been bred is not a "derivative". A test commonly used in law with ambiguous meanings is "how would the average reasonable person understand it to mean?" and I would have thought that if this test was applied, "derivative" would be held as being parts derived from the animal, NOT its offspring.


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## Natrix (Dec 9, 2006)

ian14 said:


> I am pretty certain that the reference to eggs relates to bird eggs, due to the trade in eggs, nest raiding etc.
> Clealry, you are not going to buy a snake egg, which would be daft. The egg is not an egg once the snake has hatched out, it will just be an empty shell. This would mean that the snake is a deriviative of a derivative! An animal which has been bred is not a "derivative". A test commonly used in law with ambiguous meanings is "how would the average reasonable person understand it to mean?" and I would have thought that if this test was applied, "derivative" would be held as being parts derived from the animal, NOT its offspring.


The law states 
(5) Subject to the provision of this part, if any person-

(a) sells, offers or exposes for sale, or has in his possession or transports for the purpose of sale, any live or dead wild animal included in schedule 5, or any part of *or anything derived from, such an animal* ; or
(b) publishes or causes to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell, any of those things, 
he shall be guilty of an offence.

(6) In any proceedings for an offence under subsection (1), (2) or (5)(a), the animal in question shall be presumed to have been a wild animal unless contrary is shown.

This is from the general animal section and not the part relating purely to birds. It clearly states that anything derived from a wild caught animal on schedule 5 is covered by Section (b).
According to DEFRA any baby produced from a wild caught animal is a derivative of that animal regardless of any egg stage. 
Only babies produced from babies derived from wild caught parents can legally be sold. Also if you pair a captive bred animal to a wild caught animal the babies become a derivative of a wild caught animal again and can't be sold. 
This was all discussed at a meeting with DEFRA durring the animal welfare bill.

Natrix


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## Natrix (Dec 9, 2006)

Matt Harris said:


> Sorry, is there a comment there?


Matt if an egg as you quote is a derivative then so are babies. By writing egg you have basically answered your own argument. Something that comes from a wild caught animal be it egg or baby is a derivative and therefor can not be sold under section (5) part (b) of the act.



Natrix


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## Adamsky (Aug 16, 2009)

Sticky ?


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## Matt Harris (Aug 21, 2007)

ian14 said:


> I am pretty certain that the reference to eggs relates to bird eggs, due to the trade in eggs, nest raiding etc.
> Clealry, you are not going to buy a snake egg, which would be daft. The egg is not an egg once the snake has hatched out, it will just be an empty shell. This would mean that the snake is a deriviative of a derivative! An animal which has been bred is not a "derivative". A test commonly used in law with ambiguous meanings is "how would the average reasonable person understand it to mean?" and I would have thought that if this test was applied, "derivative" would be held as being parts derived from the animal, NOT its offspring.


What he said....

...and as I said earlier, I do not believe that the interpretation of the term 'derivative' to include 'offspring' would stand up in court; it seems clear to me that the inclusion of this term was intended to cover the by-products, or secondary or incidental products of wild animals such as mammal skins, birds eggs, skeletons, antler trophies etc etc.


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## wildlifewarrior (Jun 26, 2008)

I am not going to get into one of these over the head law debates...all i know is a man from newscastle was told by defra that there would be no legal issues for him to sell his slow worms provided the offspring were from captive bred parents.
He did this with a vets report written up aswell and photographic evidence of pairings and offspring.....and he he was still selling them last year from las i heard of him

which would tie in with what natrix is saying: victory:


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## Matt Harris (Aug 21, 2007)

wildlifewarrior said:


> I am not going to get into one of these over the head law debates...all i know is a man from newscastle was told by defra that there would be no legal issues for him to sell his slow worms provided the offspring were from captive bred parents.
> He did this with a vets report written up aswell and photographic evidence of pairings and offspring.....and he he was still selling them last year from las i heard of him
> 
> which would tie in with what natrix is saying: victory:


That ties in with what we're all saying - F2 animals can be sold, the question is whether F1 offspring are legal to sell.


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## ian14 (Jan 2, 2008)

I have emailed DEFRA to try and clear this up, unfortunately it can be up to 15 days for a response!


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## ian14 (Jan 2, 2008)

I have finally received a reply, which I have pasted below.
This would show that the 2nd/3rd generation is incorrect, provided the animal was conceived and bred in captivity then it can be sold.




> Thank you for your email of 21 August about the sale of native reptiles.
> 
> It is correct that the Wildlife and Countryside Act 1981 only relates to wild animals and does not cover captive bred reptiles. The Habitat Regulations (which apply to certain native reptiles e.g. sand lizards and smooth snakes) also only apply to wild animals and not to captive bred animals.
> 
> ...


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## Grond (Jun 17, 2008)

ian14 said:


> I have finally received a reply, which I have pasted below.
> This would show that the 2nd/3rd generation is incorrect, provided the animal was conceived and bred in captivity then it can be sold.


The difficulty then lies in proving that your animals are captive bred.

You'd have to photograph the parents and the eggs and the offspring. Even then you'd have trouble proving you hadn't lifted the eggs from the wild unless you photograph them being layed!


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