Incidental trapping of Schedule 5 and Schedule 6 animals
This note is intended to assist those involved in trapping activities. This note is not exhaustive and is only intended as a reference for key information relating to the incidental trapping of protected animals. It remains the reader’s responsibility to ensure that due consideration has been given to all other relevant legislation. If there are areas that you require more information on then please contact Natural Resources Wales (NRW).
The trapping of certain animal species is an offence under the Wildlife and Countryside Act 1981 (as amended) (“the Act”), if they are listed on either Schedule 5 or Schedule 6 of the Act. If someone has a valid reason for trapping these species, they can apply for a licence from. Valid reasons include, but are not restricted to, preserving pubic health and safety, scientific, educational, research or conservation purposes, including ringing and marking. See the Apply and Buy section of our website for the relevant application forms.
Relevant Section 9 offences
The offences relating to animal species on Schedule 5 are outlined in section 9 of the Act. The main offence is that at section 9(1) which provides that ‘if any person intentionally kills, injures or takes any wild animal included in Schedule 5, he shall be guilty of an offence’.
Section 10 defences
The main defence for offences in section 9 is listed in section 10 (3) (c) of the Act. This section provides that:
‘Notwithstanding anything in section 9, a person shall not be guilty of an offence by reason of -
(c) any act made unlawful by that section if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided.’
NRW’s interpretation of Section 9
If someone intends to trap a Schedule 5 species for a valid purpose, then they should obtain a licence from NRW. If, however, they only intend to capture an animal that is not listed on either Schedule 5 or 6, it could be argued that the unintentional trapping of any Schedule 5 species was ‘the incidental result of a lawful operation…’
However, as set out above, to benefit from the defence, it is also necessary to demonstrate that the incidental trapping could not reasonably have been avoided.
If traps are being set for species not listed on Schedule 5 or 6, it is therefore necessary for the person concerned to take all reasonable steps to avoid trapping non-target, Schedule 5 or 6 species. This could be done by appropriate choice of trap design and bait, by careful positioning of trap, or by selecting a habitat type that favours the target species over non-target ones. Also, there should be regular checking of traps to prevent undue suffering and to ensure that any non-target species caught can be released (without unnecessary handling) at the earliest opportunity.
If, notwithstanding reasonable steps being taken to avoid incidental trapping, Schedule 5 animals are still regularly being trapped, NRW would urge that a licence is applied for in relation to that species. Once it is known that a particular method of trapping is likely to result in a Schedule 5 species being caught, it becomes more difficult to rely on the defences given above, and repeated trapping without the benefit of a licence may expose individuals to potential prosecution.
Section 11 prohibition of types of traps used
There are restrictions on the types of traps and methods that can be used in order to capture wild animals. Section 11(2) of the Act relates to species listed on Schedule 6 and provides that:
‘if any person -
(a) sets in position any of the following articles, being an article which is of such a nature and so placed as to be calculated to cause bodily injury to any wild animal included in Schedule 6 which comes into contact herewith, that is to say, any trap or snare, any electrical device for killing or stunning or any poisonous, poisoned or stupefying substance;
(b) uses for the purpose of killing or taking any such wild animal any such article as aforesaid, whether or not of such a nature and so placed as aforesaid, or any net;
…he shall be guilty of an offence.’
Section 11 defences
The following defence is given in relation to the offence outlined above in section 11(6) of the Act:
‘In any proceedings for an offence under subsection (2)(a) it shall be a defence to show that the article was set in position by the accused for the purpose of killing or taking, in the interests of public health, agriculture, forestry, fisheries or nature conservation, any wild animals which could be lawfully killed or taken by those means and that he took all reasonable precautions to prevent injury thereby to any wild animals included in Schedule 6.’
NRW’s Interpretation of Section 11
If there is a need to trap any Schedule 6 animal, a licence should be obtained from NRW. However, if they are not the intended target, then there would be likely to be a defence as long as ‘all reasonable precautions to prevent injury’ to Schedule 6 animals had been taken.
Accordingly, the appropriate design of trap should be selected to prevent injury to non-target species. Other methods, such as choosing target-specific bait, and selecting the most suitable habitat and position of trap should also be used to minimise the risk of trapping other species. Regular checking of traps will reduce unnecessary suffering and ensure any non-target species can be released promptly.
If, despite taking reasonable steps to avoid trapping non-target species, it is found that a Schedule 6 species is continually caught, again, it would be advisable to apply for a licence for that species. Once it is known that a particular method of trapping is likely to result in a Schedule 6 species being caught, it becomes more difficult to rely on the defence given above and repeated trapping without the benefit of a licence may expose individuals to potential prosecution.
European Protected Species (“EPS”)
Under regulation 43 (1) (a) of the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”), it is an offence for a person to deliberately capture, injure or kill any wild animal of a EPS, listed in Schedule 2 of the Habitats Regulations. This guidance note does not cover regulation 43 in detail, as it is primarily addressing incidental, rather than deliberate, capture.
Regulation 52 requires the appropriate nature conservation body (in Wales this responsibility falls to NRW) to identify the risks and maintain records of incidental capture and killing of EPS animals and to assess to what extent the monitoring of incidental capture of EPS animals is required. This information is then used to advise the Welsh Ministers for future monitoring requirements. It is for this reason that NRW must be informed of any cases of incidental capture or killing of EPS, whether this occurred as part of a licensed or unlicensed activity.
It should be noted that where a prosecution is brought under section 44 of the Habitats Regulations, it does not prevent a prosecution also being pursued under the Wildlife and Countryside Act if appropriate.
Please see also ‘Notes on trapping shrews’ for details of how to ensure shrews can escape from traps if they are not the intended target; and how to provision traps for shrews if they are being trapped under a licence.
The website of the British Association of Shooting and Conservation also gives useful advice on trapping, including the avoidance of non-target species.