The following notification was circulated today 29 August 2011 by the Department of Agriculture, Fisheries & Food:

“Food Chain Information for Wild Deer

From 1st September 2011, a FCI document must be completed for each wild deer received at Game Handling Establishments approved by this Department. The hunter should complete the first part of the form (see link below). Please note that although the form refers to trained persons, there are currently no trained hunters in Ireland. However, training will commence in the near future. Therefore untrained hunters should tick the box for “No, and a trained person isn’t in a position to sign the declaration” and leave the second part of the form blank. Untrained hunters must present the form along with the whole deer including the head and all viscera (internal organs), expect (stet)* for the stomach and intestines, to the Game Handling Establishment”.

* except?

The FCI Form is available at:

http://www.agriculture.gov.ie/media/migration/foodsafetyconsumerissues/controlsonmeat/foodchaininformation/LargeWildGameFCIdoc24aug11240811.pdf

The following “Trader Notice” has also been circulated, dated 24 August 2011:

Department of Agriculture, Fisheries and Food

Trader Notice: MH No. 12/2011

To: Operators of all DAFF approved Game Handling Establishments

Subject: Large Wild Game Food Chain Information (FCI) Document

Background

From 1st September 2011 a FCI document (attached) must be completed in respect of each wild deer received at DAFF approved Game Handling Establishments. The document should be completed by the hunter, the trained person (where relevant) and the Game Handling Establishment. It should be retained by the Game Handling Establishment.

Obligations on the hunter

The first part of the document must be completed by the hunter. This includes the date and location where the animal was shot. There is a choice of three boxes to be ticked. The first box should be ticked if the hunter is a Trained Person as allowed for under the Hygiene Regulations. (Currently there are no trained hunters in Ireland, but training of hunters will commence in the near future.)

The second box is ticked if the hunter is not a Trained Person, but a Trained Person was present when the animal was shot. This person could be the gamekeeper or the game manager who is part of the hunting team, or located in the immediate vicinity of where hunting is taking place.

In all other cases, the third box should be ticked and the carcase must be accompanied to the Game Handling Establishment by the head and all viscera, except for the stomach and intestines. This will be the case for all Irish hunters at the opening of the 2011 hunting season.

In future, where a Trained Person has signed the declaration the carcase need not be accompanied by the head and viscera.

Obligations on the Trained Person

Box 2 should be completed by a Trained Person who either shot the animal or was present when the animal was shot. If the Trained Person is satisfied that;

• the animal did not display any abnormal behaviour before killing,

• the body and the viscera do not show any abnormal characteristics, and

• there is no suspicion of environmental contamination

then the first part of box 2 should be signed.

However, if the Trained Person has noted any evidence of health risks then the second part of box 2 should be completed detailing the possible health risks and the head and all viscera except for the stomach and intestines must accompany the carcase.

Obligations on the Game Handling Establishment

The Game Handling Establishment should ensure that each wild deer carcase is accompanied by a properly completed FCI document. The final part of the FCI document should be completed by a trained operative at the establishment. The Game Handling Establishment should ensure that the carcase is accompanied by the head and the viscera, other than the stomach and intestines, unless the Trained Person declaration has been completed.

The FCI documents must be kept on site and made available on request for examination by Department staff. The FCI documents must be correlated with the relevant carcase identification.

Any abnormalities recorded by the Trained Person must be brought to the immediate attention of Department personnel.

Meat Hygiene Section

Department of Agriculture, Fisheries and Food

Grattan Business Centre

Portlaoise

24th August 2011

COMMENT

The following comment is addressed to HCAP-Certified deer hunters, from Deer Alliance HCAP:

It is regrettable that neither the Department of Agriculture, Fisheries & Food nor the Food Safety Authority of Ireland saw fit to consult with the different deer organisations representing organised, licensed, competence-assessed and certified hunters in Ireland before adopting the procedures set out in the new “FCI” framework. The Deer Alliance engaged in discussions with DAFF and FSAI some three years ago but could not obtain support or approval for the “Trained Hunter” module which the Deer Alliance wished to incorporate at that time. The imposition of a FCI requirement at short notice (three days before the 2011-2012 Season opens) and without consultation seems unlikely to yield optimum response or effectiveness. However the Deer Alliance is already considering proposals for a FCI Module to form part of a revised HCAP Programme to be introduced in 2012 (subject to discussions and finalisation of planning for 2012, between now and year-end) and in the meanwhile expects shortly to be offering an add-on module to those hunters who are already HCAP-Certified, being more than 1000 in number.

A number of queries have surfaced in recent weeks concerning the nature of the Deer Alliance Hunter Competence Assessment Programme (HCAP).

Deer Alliance HCAP is an assessment and certification body only. It does not provide training, either in preparation for the HCAP process, or generally. The different deer organisations, including the Irish Deer Society through its various branches, or the Wild Deer Association of Ireland, do provide training both on an ongoing basis, and through pre-HCAP Workshops. IDS and WDAI are participating bodies within the Deer Alliance, and interested persons can get further information on membership and membership benefits from their respective websites, www.irishdeersociety.ie or www.wilddeerireland.com.

The Deer Alliance has published a Stalker Training Manual cost €35.00 including p. & p. Order Forms can be downloaded from the website, www.deeralliance.ie, where further information on the framework and terms of reference of HCAP is also available. Candidates are expected not to rely exclusively on the Stalker Training Manual but to look to the many other sources of information which are available, and on their own experience in the field.

Lyme disease, or ‘Borreliosis‘, is a bacterial infection passed to humans through a tick bite. It is currently the fastest growing vector-borne disease in the world. The bacteria is shaped like a corkscrew (called a spirochete), which enables it to burrow through body tissue which most other bacteria wouldn’t be able to penetrate. This makes Lyme a serious and potentially debilitating disease causing a host of symptoms such as heart and nervous system problems, including palsies (paralysis) and meningitis and if left untreated can cause motor and sensory nerve damage, brain inflammation and/or arthritis.

Lyme Disease is commonly misdiagnosed as other illnesses such as CFS (Chronic Fatigue Syndrome or ME), Multiple Sclerosis and Fibromyalgia. Early diagnosis and treatment is essential to help those infected make a full recovery. If left undetected it can develop into disseminated or late Lyme Disease and can be extremely difficult to eradicate and can cause serious, long term health problems.

Research has shown that ticks collected in the areas of Counties Kerry, Galway, Connemara and Wicklow do carry the borrelia bacteriam therefore people in these areas may be at risk of being bitten by infected ticks. Followers of deer, whether as stalkers, photographers or just as general enthusiasts, should be aware of the threat to health from this source.

For more information, go to www.ticktalkireland.org, or download an information leaflet at www.ticktalkireland.org/lymeleaflet.pdf

Images of an albino Sika hind.

Photographs taken by Paul Clinch in Wicklow, April 2011. Despite her rounded head, this deer is believed to be three to four years old and has been sighted on numerous occasions. She runs with a herd of “ordinary” Sika, with no apparent behavioural difficulties.

With thanks to Paul Clinch.

“Is it Possible to Build Consensus on a National Deer Management Strategy?” is the theme of a conference to be held at the Hodson Bay Hotel, Athlone, Co. Westmeath on Saturday 2 April 2011. Key speakers have been lined up, including Jamie Dick (Queen’s University, Belfast), Peter Watson (The Deer Initiative, UK), Declan Little (Woodlands of Ireland), Jim Walsh (Irish Deer Society), Ciaran Nugent (Forestry Division, Department of Agriculture, Fisheries & Forestry) and Barry Coad (Coillte Teoranta). Liam Nolan, Deer Alliance HCAP, will deliver a paper dealing with issues affecting hunters.

As places are limited, early booking is advised. Further information is available from Robert Henaghan, telephone 086 822 2838 or email, robhenaghan@yahoo.co.uk. Cost is €25.00 per person, to include lunch & refreshments. Cheques (payable to Irish Deer Society) to R. Henaghan, Callocoon, 104 Caiseal Cam, Roscam, Galway, Co. Galway.

A final Deer Alliance HCAP MCQ for 2010 will be held at 8 p.m. on the evening of Wednesday 29 September 2010 at Lynham’s Hotel, Laragh, Co. Wicklow.

This will be followed (for successful candidates) by a Range Test, to be held on Saturday 9 October 2010 at Midland Rifle Range, Blue Ball, Tullamore, Co. Offaly (commencing at 10 a.m.).

The full calendar of HCAP sctivities for 2010 having concluded on 28 August 2010, these additional events are being held primarily to facilitate applications already on hand from candidates previously unable to participate and now needing HCAP Certification in order to obtain Coillte Stalking Permits, in line with the policy adopted by Coillte Teoranta in 2001 and in place since 2005.

Applications for both dates will be accepted from previously failed candidates provided appications to repeat are received immediately.

In any event, the closing date for applications for both events will be first post on Friday 17 September 2010 and under no circumstances will applications received after that date be accepted.

A final list of candidates eligible for the MCQ will be posted here on or about Friday 24 September 2010, and a list of candidates eligible for the Range Test will be posted here on or about Monday 4 October 2010.

The Green Party Bill as promulgated by the Minister for Environment, Heritage and Culture and moved as a Government Bill, was passed by Dail Eireann on 29 June 2010 and will now go to Seanad Eireann for ratification before going to the President for signature and commencement as the Wildlife (Amendment) Act 2010.

The Bill repeals section 26 of the Principal Act which provided for the granting of a licence for staghunting, and has the effect of ending the life of the Ward Union Hunt, which has been the only staghunting pack of hounds in Ireland and which was formed 156 years ago. Section 3 (2) of the Bill effectively bans staghunting on horseback, and provides as follows:

(2) Subject to subsection (3), a person who hunts deer with two or more dogs shall be guilty of an offence.

(3) It shall not be an offence for a person on foot to hunt deer with 2 or more dogs, under and in accordance with—

(a) a licence granted under section 29 of this Act, or
(b) a permission granted under section 42 of this Act.

Section 4 of the Bill also corrects a legal lacuna in firearms licensing provisions introduced in 2009, whereby the requirement for a game licence as part of the firearms certificate was overlooked by the Department of Justice and the Garda Siochana when giving effect to new provisions.

Section 4 provides as follows>

Section 29 (as substituted by section 4 of the Firearms (Firearm Certificates for Non-Residents) Act 2000) of the Principal Act is amended—
(a) in subsection (5)(a), by substituting “Subject to subsection (5A), where”
for “Where”, and
(b) by inserting the following subsection after subsection (5):

“(5A) (a) A firearm certificate to which this subsection applies shall for the purposes of sections 22(4) and 23(5) of this Act be deemed to be a licence granted by the Minister under this section and, subject to section 75(1) and to the restrictions contained in section 33 of this Act, such certificate shall, for so long as it is in force, operate to authorise the person to whom it is granted, with the firearm to which the certificate relates, to engage in the activities referred to in subparagraphs (i) and (ii) of subsection (5)(a).

(b) This subsection applies to a firearm certificate that is granted—
(i) in respect of a shot-gun, and
(ii) on or after 1 August 2009 but before 1 August 2012.

A further amendment tabled by Deputy Joanna Tuffy, Labour, which would have had the effect of ensuring that female deer could not be shot between May and September of any year under a Section 42 Permission, was not accepted.

The original Bill as drafted would have had the effect of prohibiting the hunting of deer with two or more dogs by ordinary deer hunters but was amended following representations by the Wild Deer Association of Ireland, fully supported by the Irish Deer Society and the Deer Alliance (as previously reported here). WDAI in particular are to be congratulated for their excellent work and sustained lobbying on this issue.

Further to our previous posting on this subject, the statement set out below was issued on 1 June 2010 by Minister of State Michael Finneran in relation to an amendment to the Bill:

“The Wildlife (Amendment) Bill, 2010 was published on 20 April 2010 to give effect to the commitment in the renewed Programme for Government to prohibit the hunting of deer with packs of dogs. The Government decided that this particular hunting practice should cease for animal welfare and public safety reasons. This short Bill also increases the maximum fines for wildlife related offences which were last increased in 2000. This legislation will have no implications for other country pursuits such as fox-hunting, hare-hunting, hare coursing or deer stalking.

The Minister proposes to present the Bill to the Dáil shortly with the intention that it will be enacted before the summer recess.

An issue was raised recently by the Wild Deer Association of Ireland and the Irish Deer Society relating to the practice of deer stalking. They were very concerned that the prohibition on hunting deer with 2 dogs or more would impact on deer stalking in woodlands, where it is now generally regarded as good practice to have a dog for the purpose of retrieving fallen game which can be concealed in undergrowth (it is not uncommon for a deer, even if cleanly shot, to make a last dash for cover). In the event that several hunters were stalking on a property and each had a dog, or if they were bringing two dogs for training or other reasons, they would in effect be breaking the law. Licences for these activities are issued under Section 29 of the Wildlife Acts.

It was never the intention that the legislation would place any restriction on lawful deer stalking. Accordingly, the Minister is in consultation with Parliamentary Counsel on an amendment to the Bill to address the fears expressed by these organisations representing deer hunters that the provisions of the Bill will inadvertently affect the legitimate practice of deer stalking. This amendment relates to Section 3 of the Bill”.

(Posted 2 June 2010)

The Deer Alliance, acting in conjunction with the Wild Deer Association of Ireland and the Irish Deer Society, recently made a presentation to the Oireachtas Joint Committee on the Environment, Heritage and Culture in relation to the Wildlife (Amendment) Bill 2010, which is nearing finalisation in the Oireachtas.

Section 3 (2) of the Bill provides that it shall be an offence to hunt deer with two or more dogs.

The Deer Alliance, WDAI and IDS are of the opinion that this provision, if it becomes law, will impact negatively on the practice of deer stalking and on efficient and humane control and management of wild deer, as it will affect situations where dogs can be used to track shot or injured deer, or where dogs are used to drive deer off farmland.

Discussions, which were initiated by WDAI, are ongoing. All Joint Committee members present at the hearing, which took place on Tuesday 25 May 2010, appeared to support the views expressed by the delegation. A full transcript of the proceedings has been made available to the participating deer organisations.

The Irish Society for Prevention of ruelty to Animasls publish a Legal Handbook for the benefit and information of its members, local and national animal welfare Inspectors, other animal welfare bodies in Ireland, and the Garda Siochána, who have the statutory authority over animal welfare in this country.

The 14-Chapter 40000-word Handbook is authored for the ISPCA by Carrie Jane Canniffe B.L., David Burke B.L. and Barra Faughnan B.L. The full text can be accessed at http://www.ispca.ie/legal-handbook.aspx

Chapter 14 deals with Hunting and the Protection of Wild Animals, and is set out in Q & A format, with 53 questions asked and answered. These are set out below, with acknowledgments to the ISPCA and the joint authors of the Handbook. While all species of wild animals including wild birds are covered, Deer Stalkers, shooters and hunters generally will undoubtedly find much of the information relevant and informative.
__________________________________________________________________
CHAPTER FOURTEEN, ISPCA LEGAL HANDBOOK

HUNTING & THE PROTECTION OF WILDLIFE

CONTENTS

General:
Q.1 What is a protected wild animal?
Q.2 Who in accordance with the Act has the function of conserving wildlife?
Q.3 Are there any general protections in relation to wild animals give under this Act?

Wild Birds:
Q.4 What protections can be afforded to a wild bird which is not specified as being protected ?
Q.5 Is the hunting of wild birds prohibited?
Q.6 Are there any exceptions to this prohibition?
Q.7 Is it an offence to injure a wild bird in the process of hunting the animal?
Q.8 Is it an offence to wilfully remove eggs from the nest of a wild bird, or the nest itself?
Q.9 Is it an offence to destroy, injure or mutilate the nest or eggs of a wild bird?
Q.10 Is it an offence to disturb a protected wild bird on or near its nest?
Q.11 Are there any defences available to persons charged with such offences?
Q.12 Which party bears the onus of proof in relation to such defences?

Wild Animals:
Q.13 Does a wild animal which is not a protected wild animal have any protection under this section?
Q.14 Is the hunting of protected wild animals prohibited?
Q.15 What is an exempted wild animal?
Q.16 Are there any exceptions to this prohibition?
Q.17 Is it an offence to injure a wild animal while in the process of hunting it?
Q.18 Is it an offence to wilfully interfere with or destroy the breeding place of any protected wild animal?
Q.19 Are there any defences to section 23(5) available to a person charged thereunder?
Q.20 Are there any specific provisions in relation to any animals?

Hunting:
Q.21 Is it an offence to capture or humanely kill a protected wild animal?
Q.22 Are there any specific time restrictions in relation to the hunting of wild animals and wild birds in general?
Q.23 Which party bears the onus of proof in relation to defences to prosecutions under these provisions?
Q.24 What happens where a person or organisation carries out an action which falls foul of more than one of the relevant provisions – can they be prosecuted under all sections?
Q.25 Do these provisions affect hare coursing?
Q.26 Can a master of a hunting pack get a group licence?
Q.27 Can open seasons be altered or adjusted?

Firearms:
Q.28 Can a person hunt with firearms?
Q.29 What is a qualified person?

Traps, snares and other devices:
Q.30 Is it permissible to use a snare, trap or poison to hunt or capture a protected wild animal?
Q.31 Are there defences to these prohibitions?
Q.32 Is it an offence to sell traps and snares?
Q.33 What can a person do if they see a wild bird being used as a scarecrow or decoy for the purposes of hunting?
Q.34 Is it also an offence to use a stuffed wild bird for the purpose of hunting any other protected wild bird?
Q.35 Can a licence be granted to use live birds as decoys?
Q.36 Can a mechanically propelled vehicle be used for hunting protected wild birds and animals?
Q.37 Can a person hunting a protected wild bird or animal use a lamp, mirror, light torch orther artificial light, reflecting or dazzling device or appliance for the purpose of hunting?

On Private land:
Q.38 Is it an offence for a person to enter land of which they are not the owner or occupier in order to hunt wild animals or birds, with or without a firearm?
Q.39 What can I do if I see someone on my land hunting with a firearm without my permission?
Q.40 What can a person do where damage is being done to their livestock, poultry or crops, pen- reared birds, other fauna or flora, woodland forestry or fishery by protected wild birds or animals?
Q.41 Who may prosecute this offence under section 44?
Q.42 On whom does the onus of proving where unlawful entry to land is alleged?

Dealing in Wild animals:
Q.43 What can I do if I see someone selling protected wild animals or birds?
Q.44 Are there any defences to Section 45(1), which prohibits the sale of wild birds?
Q.45 Can a dealer have a wild animal or bird or bird’s nest in his possession?
Q.46 Is it an offence for a restaurant to purchase a protected wild bird or animal from a dealer?
Q.47 What defences are available to such an offence?
Q.48 Are there any specific provisions in relation to eggs?
Q.49 Is it an offence to aid or abet the commission of an offence under the Act?
Q.50 What powers do the Gardai and authorised persons (appointed by the Minister) have?
Q.51 Can a person lose possession of property as a result of a conviction under this Act?

Amendments:
Q.52 Have any orders been enacted pursuant to or affecting the Act?
Q.53 Does the 1976 Act amend other legislation?

Wildlife in Ireland is protected by a piece of legislation known as the Wildlife Act, 1976 as amended. The purpose of this legislation is the conservation of the wildlife ( flora and fauna (including game).The Act is very comprehensive and covers many specific methods of hunting an trapping an animal or bird, protecting what are known as protected wild animals and birds. .

In the main any breaches or suspected breaches of this Act should be reported to the Gardai who may take steps towards prosecuting such offences.

Q.1 What is a protected wild animal?

These are generally a type of animal that one would not expect to find on sale. Section 2 of the 1976 Act refers us to Section 23(4) for a definition of a protected wild animal. Such an animal is any animal to which this Section 23 for the time being applies. Section 23(1) refers us to the Fifth Schedule of the Act for the list of protected animals. According to the Act’s definition, a Protected Wild Animal is as follows

LAND MAMMALS Badger, Bat Species, Deer Species, Hare Species, Hedgehog, Otter, Pine Marten, Red Squirrel.

MARINE MAMMALS Dolphin species, Porpoise species, Seal species, Whale species.

AMPHIBIANS Natterjack Toad.

WILD BIRDS Section 22(3) of the Wildlife Act, 1976 refers us to the Third Schedule for a list of those birds which are not protected wild birds:-

Protected Wild Bird is any wild bird other than a Bullfinch, Carrion Crow, Greater Black-backed Gull, Herring Gull, Hooded (Grey) Crow, House Sparrow, Jackdaw, Jay, Lesser Black-backed Gull, Magpie, Pigeons (including Wood Pigeon, but not including Carrier Pigeons, Racing Homing Pigeons or Doves), Rook, Starling .

Q.2 Who in accordance with the Act has the function of conserving wildlife?

The Act stipulates that the Minister for Tourism, Fishery and Forestry is vested with the function of conserving wildlife (section 11)..

Q.3 Are there general protections in relation to wild birds and animals given under this Act?

Yes, Section 19 affords protection to wild birds and their nests and eggs (other than birds mentioned in Schedule 3 of the Act see above for the list of non-protected wild birds). Section 20 affords protection to wild animals protected by section 23 (see above for the list of protected animals.)

Q.4 Can a wild bird specified as not being a protected wild bird have specific protections?

Yes, according to Section 22(2) the Minister may specify in regulations pursuant to Section 22 that Section 22 and the protective measures therein apply equally to a non-protected wild bird as set down in Schedule 3.

Q.5 Is the hunting of protected wild birds prohibited?

Yes, in accordance with Section 22(4)(a) it is an offence to hunt a protected wild bird without a licence to do so.

Q.6 Are there any exceptions to this prohibition?

Yes, by order and pursuant to Section 24 the Minister may by order decree that certain species of wild bird may be hunted during certain time periods. These periods are known as open season on hunting certain animals. In addition if you are the holder of a licence to hunt this animal you may do so.

If a person wished to prosecute someone for an offence under section 22, it would be necessary to ensure that the hunting was not permitted by order of the Minister during the said period or that the person was not a licence holder.

Q.7 Is it an offence to injure a wild bird in the process of hunting the animal?

Yes, unless there is permission to hunt the bird either in accordance with a Section 24 order or a licence issued by the Minister, Section 22(4)(b).

Q.8 Is it an offence to wilfully remove the eggs or the nest of a wild bird ?

Yes, pursuant to Section 22(4)(c) it is an offence to tamper with a protected bird’s nest unless this is done in accordance with a licence.

Q.9 Is it an offence to destroy, injure or mutilate the nest or eggs of a protected wild bird?

Yes, this is an offence pursuant to Section 22(4)(d).

Q.10 Is it an offence to disturb a protected wild bird on or near the nest?

Yes, Section 22(4)(e) states that it is an offence to disturb a protected wild bird on or near the nest.

Q.11 Are there any defences available of which a person hoping to prosecute should be aware?

Yes, there are a number of defences open to a person under section 22(5) as amended by SI No. 397 of 1985, Regulation 3. The following are permitted by Section 22 (5) which states that it shall not be an offence for a person:-

“while engaged in ornithology wilfully to disturb a protected wild bird, or while so engaged or engaged in agriculture, fishing or forestry unintentionally to injure or kill a protected wild bird, or to remove for conservation purposes or to destroy unintentionally the eggs or nest of a protected wild bird in the ordinary course of agriculture, or (Note Section 22(5)(c) was substituted by SI No. 397 of 1985 Regulation 3. – addition of conservation).

to capture an injured or disabled protected wild bird for the purpose of killing it humanely, or with the intention of tending it and of later releasing it, or

to kill humanely a protected wild bird which has been injured in the manner described in paragraph (b) or captured in the manner described in paragraph (d) or injured in the circumstances described in paragraph (h) of this subsection.

to take birds of a protected wild bird for the purpose of having them hatched out for re-population, or reintroduction into the wild or for such purpose, to move such eggs from the nest of such a bird to that of another bird of the same species, or (Note Section 22(5)(f) was substituted by S.I. No. 397 of 1985 Regulation 3).

to destroy or remove any such nest which is built in or on an occupied building, or

while constructing a road or while carrying on any archaeological operation, building operation or work of engineering construction or while constructing or carrying on such operation or work as may be prescribed, unintentionally to kill or injure a protected wild bird or to remove for conservation purposes or to unintentionally destroy, injure or mutilate the eggs or nest of a protected wild bird.” (Note Section 22(5)(h) was substituted by S.I. No. 397 of 1985 Regulation 3).”

This last amendment to Section 22(5)(h) requires that any damage done in the process of construction be unintentional which seems to place an onus on the developers to take reasonable care and to where possible remove the eggs for conservation purposes. This onus was clearly not present under the 1976 Act as it stood.

There is also a general defence in relation to all acts carried out in pursuance of a statute or statutory instrument which might result in a breach of this section .

Another defence would be to commit the offence for the purposes of preventing a damage of the type specified in Section 42(1) from being done by the wild animals. Such an offence in such a case would become permitted according to Section 22(6) .

Q.12 In relation to the prosecution of the offences on which party is the onus of establishing the defences placed ?

The burden of proof is specifically provided for in Section 22(7) in relation to subsection 4(e) offences. It states that the prosecution need not show that the offender was not engaged in ornithology at the time of the offence as alleged. No reference is made in relation to the onus of showing that one of the exemptions applies (which includes the ornithology defence) one must then wonder whether the prosecution must prove that the Defendant does not fall within the subsection 5 exemptions in order to prove their case.

The better view it is submitted is that despite this specific reference to the first of the subsection 5 categories, the onus in relation to proving whether the defence falls within the excused categories rests with the defence and that this specific reference to the burden of proof was inserted to remove any doubt which might arise in relation to this specific provision, Section 22(4)(e).

Q.13 Does a wild animal which is not a protected wild animal have any protection under this section?

Yes, according to section 23(2) the Minister may specify in regulations that the protective measures in relation to protected wild animals contained in section 23 apply equally to non-protected wild animals. In the absence of such regulations, however, unless an animal is listed in the Fifth Schedule, it will not be protection by the Section.

Q.14 Is the hunting of protected wild animals prohibited?

Yes, in accordance with section 23(5)it is an offence to hunt a protected wild animal which is not an exempted wild mammal without a licence to do so. Further it is an offence to hunt an exempted wild mammal without a licence to do so (whether a full licence or a seasonal licence).

Q.15 What is an exempted wild mammal?

Section 2 refers us to section 25 for the definition of an exempted wild mammal. Section 25 states inter alia that an exempted wild mammal is one the subject of a Ministerial order permitting the hunting of the same for a certain specified period in a stated area. This order may limit the total amount of such animals which may be hunted and may distinguish between different species of the animal. Effectively such orders declare an open season on certain types of animals.

Q.16 Are there any exceptions to this prohibition?

Yes, by order and pursuant to section 24 the Minister may by order decree that certain species of wild birds may be hunted during certain time periods. These periods are known as open season on hunting certain animals.

In addition, if you are the holder of a licence to hunt this animal you may do so.

If a person wished to prosecute someone for an offence under section 22 it would be necessary to ensure that the hunting was not permitted by order of the Minister during the said period or that the person was not a licence holder.

Q.17 Is it an offence to injure a wild animal while in the process of hunting the animal?
Yes, unless there is permission to hunt the bird either in accordance with a section 25 order or a licence issued by the Minister, Section 23(5)(c).

Q.18 Is it an offence to willfully interfere with or destroy the breeding place of any protected wild animal?

Yes, pursuant to section 23(5)(d) it is an offence to interfere with or destroy the breeding place of a protected wild animal.

Q.19 Are there any defences to section 23(5) available of which a person hoping to prosecute should be aware?

Yes, there are a number of defences to Section 23(5) open to a person under section 23(7). According to Section 23(7) “Notwithstanding section (5) of this section, it shall not be an offence for a person –

while engaged in agriculture, fishing or forestry or in zoology or in any other scientific pursuit, unintentionally to injure or kill a protected wild animal, or
while so engaged to interfere with or destroy the breeding place of such an animal, or while constructing a road or while carrying out any archaeological operation, building operation or work of engineering construction, or while constructing or carrying on such other operation or work as may be prescribed, to kill or injure such an animal or to destroy or injure the breeding place of such an animal, or
to capture an injured or disabled wild animal for the purpose of killing it humanely, or tending it and later releasing it.
to kill humanely a protected wild animal which is either injured in the manner described in paragraph (a) of this subsection or captured in the manner described in paragraph (d) of this subsection, or so to kill a protected wild animal injured in the circumstances described in paragraph (c) of this subsection.

There is also a general defence in relation to all acts carried out in pursuance of a statute or statutory instrument which might result in a breach of this section, Section 23(7)(iv)”.

Another defence would be to commit the offence for the purposes of preventing a damage of the type specified in Section 42(1), Section 23(8). e.g. damage to agricultural crops, flora, other fauna etc..

If Section 3(3) of the Whale Fisheries Act, 1937 permits the act to be done it will not be held to have been an act in contravention of this section, Section 23(7)(iii).

Q.20 Are there specific provisions in relation to any animals?

Yes, Section 23(7) (i)(ii) makes specific provision for hares

Q.21 Is it an offence to capture or humanely kill a protected wild animal?

Yes, unless a licence is granted by the Minister for educational scientific or other purposes as specified in the licence, Section 23(6).

Q.22 Are there any specific time restrictions in relation to the hunting of wild animals and birds in general?

Yes, Section 37 states inter alia that it is an offence (subject to Section 42) to hunt a woodcock between sunrise and sunset, and any other wild bird (other than a duck or a goose) during the period one hour after sunrise and one hour before sunset.
Note: If the person has a licence pursuant to Sections 22(9) or 23(6) and is hunting for certain purposes they may be exempt from these restrictions, Section 37(2).

Q.23 In relation to the prosecution of the offences, on which party is the onus of establishing the defences placed ?

The burden of proof is specifically provided for in Section 23(9) in relation to subsection 7(a) where it states that the prosecution need not show that the offender was not engaged in agriculture, fishing or forestry or in zoology or in any other scientific pursuit, at the time of the offence as alleged.

It is submitted (as it was in relation to wild birds) that despite this specific reference to the first and second of the subsection 7 categories, the onus in relation to proving whether the defence falls within the excused categories remains with the defence.

Q.24 What happens where a person or organisation carries out one action which falls foul of a number of provisions of the 1976 Act and of Section 8 of the Protection of Animals Act, 1911? Can that person then be prosecuted under all sections?

If the offence falls within Section 34, Section 22 or 23 of the 1976 Act and Section 8 of the Protection of Animals Act, 1911, Section 34(7) specifically precludes conviction under all of these sections in respect of the same act. Perhaps a prosecution could be bought under all of these sections with the conviction simply reflecting one breach. It may however be preferable to choose on section which best fits the offence and run with that.

Q.25 Do these provisions affect hare coursing?

No. It will not be unlawful to kill hares by coursing at a regulated coursing match held in a specified place and during a specified time as stated in the order of the Minister in relation to hares. In addition it will not be unlawful to hunt hares using a pack of beagles or harriers within the period specified by the Ministerial order and in the stated area, Section 23(7)(i).

Q.26 Can a Master of a hunting pack get a group licence?

Yes, Sections 26 and 27 permit the licensing of hound hunting for a specified period in a specified area. The Minister may grant licences to hunt deer and otters using hounds, Section 26.

The protection of these aforementioned animals is specifically dealt with in the 1976 Act.

Q.27 Can open seasons be altered or adjusted?

Yes, the Minister may for weather reasons or any other reasons in the interests of conservation of fauna prohibit the hunting of any animal for a specified period and in a specified area where the animal is an exempted wild mammal or an animal which is the subject of a Section 24 order, Section 27.

Q.28 Can a person hunt with firearms?

Yes, if they are in possession of a firearms licence in accordance with Section 29.
Section 28 also allows hunting with firearms where the person is a qualified person.

Q.29 What is a qualified person?Section 28(2) provides that the person must be at least 16 years of age and

“ entitled to sporting rights over the land, or
is the guest, invitee, servant or agent or possesses the written authority of a person who is entitled to sporting rights over the land.
is a member of a body of persons which is entitled to sporting rights over the land or which has authority, or
is a person who is of a class or description which the Minister by regulation declares to be qualified class or description for the purposes of this section.”

Q.30 Is it permissible to use a snare or a trap or poison to hunt or capture a protected wild animal?

No, Section 34 prohibits the use of traps or snares to hunt or capture protected wild animals.

Section 34 states that subject to Section 42 a person shall not

a) hunt any wild bird or mammal by means of a trap, snare, net, line, hook, arrow, dart, spear, or similar device, instrument or missile, or bird line or any substance of a like nature, or any poisonous, poisoned or stupefying bait, or
affix, place or set-

any trap, snare or net for killing or taking a wild bird or a wild mammal or,
any line, hook, or other device or instrument, calculated or likely to cause death or bodily injury to any wild bird or a wild mammal coming in contact with it,
on any tree, pole, cairn or other structure in or in the vicinity of any place frequented by wild birds or by wild mammals, or
lay any poisonous or poisoned substance or stupefying bait, being a substance or bait which is calculated or is likely to injure, or facilitate the capture of, a wild bird or a wild mammal, in or in the vicinity of any place mentioned in paragraph (b) of this subsection, or on any tree or pole, cairn or other structure in or in the vicinity of such place.”

This is a wide provision and on its face prohibits in relation to wild birds and animals what it often some of the cruelest treatment of animals; setting traps and laying poison .

Q.31 Are there defences to these prohibitions?

Yes, if the animal or bird is not a protected one this section does not apply, Section 34(2)(b).

Also if the affixing a snare or trap is done pursuant to statute or statutory instrument there is a full defence, Section 34(2).

If regulations made pursuant to the section are in force the act may be deemed to be other then an offence, Section 34(2)(a).

The Minister may grant licences to do certain things and if such a licence is issued the person may commit certain of these prohibited acts, Section 34(3)

Q.32 Is it an offence to sell traps and snares?

Yes, Section 34(6) creates the offence of selling traps and snares without a licence.

Q.33 What can a person do if they see a wild bird being used as a scarecrow or decoy for the purposes of hunting?

Such an activity should be reported as the same is an offence according to Section 35 (1).

Q.34 Is it also an offence to use a stuffed decoy wild bird for the purpose of hunting any other protected wild bird?

Yes, pursuant to Section 35 it is an offence to use such a decoy for these purposes unless the same is used for the purposes of hunting wild ducks or geese.

Note it is also an offence pursuant to Section 35(1)(d) to use electrical or other instruments to emit the sound of birds for the purposes of hunting protected wild birds unless this is used for the purposes of hunting ducks, geese or plover.

NB While these items may be used in relation to the hunting of geese and ducks there may be in existence Ministerial orders made in accordance with Section 34(5) specifically prohibiting their use in geese and duck hunting in certain areas during certain times.

Q.35 Can a licence be granted to use live birds as decoys?

Yes, the Minister may issue a licence permitting such use; however there
are strict conditions attaching to such licences in relation to the watering, feeding and confinement of such a decoy. In addition the decoy may only be used to hunt birds of the same species, Section 35(5).

Q.36 Can a mechanically propelled vehicle be used for the hunting of protected wild animals and birds?

No, unless there is a licence to use a mechanically propelled vehicle, vessel or aircraft for the hunting of a protected wild bird or animal, the same is prohibited pursuant to Section 36.

Q.37 Can a person hunting a protected wild bird or animal use a lamp, mirror, light, torch or other artificial light – reflecting or dazzling device or appliance?

No, Section 38 prohibits the use of the aforesaid unless they attach a “band, ring, tag, or other marking device to the same or are hunting for scientific or educational purposes pursuant to a licence issued by the Minister.”

Q.38 Is it an offence for a person to enter onto land of which they are not the owner or occupier in order to hunt wild animals or birds with or without a firearm?

Section 44 states that this is an offence and further states that it is an offence to shoot over such land if the same is not done with the permission of the owner.

Q.39 What can I do if I see someone on my land hunting with a firearm wild birds or animals without my permission?

The owner /occupier, the holder of a Section 29(5) licence or the holder of sporting rights has the right to request that the person who is committing a Section 44 offence and is in possession of a firearm furnish them with their name and address, Section 44(2).

Q.40 What can a person do where damage is being done to their livestock, poultry or agricultural crops (including vegetable or fruit), pen-reared birds, other fauna or flora in a woodland or forest plantation or a fishery by protected wild animals or birds?

Notwithstanding any other provision of the Act, the Minister may permit an authorised person to destroy the said animals, Section 42. There are a number of conditions attaching to this section.

Note also that S.I. No. 254 of 1986 affects this provision in that it permits the Minister to capture or kill any species specified in the First Schedule of the SI which:

is a threat to public health or safety,
is likely to cause serious damage to crops, livestock, fisheries or forestry,
is likely to cause damage to flora and fauna.”

This SI is enacted and takes effect notwithstanding the provisions of the Wildlife Act.

Q.41 Who may prosecute this offence under section 44?

The owner occupier of the land, and the holder of sporting rights over the land be that an individual or a person representing a sporting body holding such rights over the land, Section 44(4).

Q.42 On whom does the onus of proving that the Defendant was on the land without lawful authority lie?

Section 44(7) expressly provides that the onus of proving that the Defendant had no lawful authority to be on the land is for the prosecution. Where it is asserted that there was lawful authority the onus shifts to the Defendant.

Q.43 What can I do if I see a person selling protected wild animals or birds?

It is an offence under Section 45(1) as amended by S.I. No. 397/1985 for a non-licenced person to sell protected wild animals or birds whether dead or alive (taxidermy). The relevant authorities should therefore be contacted.

Q.44 Are there any defences to this Section 45(1) provision prohibiting the sale of wild animals that a person attempting to prosecute should be on the look out for?

Selling a protected wild animal or bird is lawful where according to Section 45(3)

“a)The sale by a person of any live specimen of a protected wild bird or protected wild animal solely for the purposes of propagating or improving the quality of such species, the sale by a person of live hares to a coursing club affiliated to the Irish Coursing Club.
the sale to a licenced wildlife dealer by a person of any protected wild bird or protected wild animal lawfully killed by him.”

These defences take into consideration that there are licences which permit the killing of a protected species and that as such a licence holder is entitled to sell his kill. There is also an exemption given to the Irish Coursing Club in relation to live hares.
Some protected wild animals and birds are endangered species or are in danger of becoming such. Therefore the legislature have given cognisance to the fact that on occasion some of these species may in fact benefit from the sale of another of their species in order to propagate their kind.

Q.45 Can a dealer have a wild animal or bird or bird’s eggs in his possession?

No according to Section 45 (2) as this constitutes an offence.

Q.46 Is it an offence for a restaurant to purchase a protected wild bird or animal from a dealer?

Yes, if the dealer has no wildlife licence to so deal, Section 45(4).

Q.47 What defences are available?

The only relevant defence open would be to show that the animals/birds were obtained lawfully, Section 45(8) as amended by S.I. No. 397/1985.

Q.48 Are there any provisions specifically in relation to eggs?

The 1976 Act has been amended by S.I. No. 397/1985 which has inserted three new subsections dealing with eggs, Section 44 (11), (12), and (13) and they provide as follows:

11 and 12 neither a licenced wildlife dealer nor an unlicenced dealer may keep for sale, purchase for resale or engage in taxidermy in respect of eggs taken from the wild of a protected wild bird. Further,

Ss. 13 A licenced wildlife dealer shall not have these eggs in his possession.
Note Sections 46, 47, 48 and 49 relate to wildlife dealer licences.

Q.49 For the purposes of the 1976 Act is it an offence to aid and abet in the commission of an offence?

Yes, anyone aiding or abetting in the commission of an offence under the 1976 Act is guilty of an offence, Section 69(1).

Q.50 What powers do the Gardai and authorised persons (appointed by the Minister) have under the Act?

Section 72 lays down the extensive powers of both the Gardai and authorised persons.

They may if they reasonably suspect a person of being guilty of a Part II (Sections 11-44) or Sections 45, 47, 51, 52, or 53 offence stop such a person at a reasonable time, require that they furnish their name and address, demand production of the flora or fauna or product and seize the same or part thereof as a specimen, Section 72(2). Further they may search any vehicle, vessel or aircraft which they reasonably suspect of being used for the transport import or export of flora or fauna or product or part thereof contrary to Sections 51, 52, or 53 and they may require that to facilitate the search the vehicle be stopped, Section 72(3) (a).

They may open and search any package/container, Section 72(3)(b).

Request that they be permitted to inspect any relevant documentation, obtain the name and address of the owner and the person operating or controlling the vehicle vessel or aircraft, Section 72(3)(c).

Inspect any relevant books or records and take copies of the same and seize and detain any relevant document where there is a reasonable suspicion that an offence is or has been committed.

For the purposes of the Act the Gardai may enter onto any land (not into buildings – This would require a warrant etc..)

Search Warrants may be obtained under Section 73 following the compliance with certain criteria. A member of the Gardai or an authorised person should place their suspicions on an information on oath which will be brought before a Peace Commissioner or a District Judge. The latter will grant a search warrant where they are satisfied that there are reasonable grounds for suspecting that a person is in possession on any premises or other land –
“
a protected wild bird,
a protected wild animal,
the eggs of a protected wild bird,
the carcass or any other part of or any product of a protected wild bird or protected wild animal, or
any plant or part or product of a plant which is of a species to which an order under section 21 of the Act applies.”

Note : The powers as aforesaid are in addition to the Gardai’s existing powers of search and seizure, Section 72(6).

Penalties are provided for in Section 74 and they are dependent on the provision of the Act which has been breached.

Q.51 Can a person lose possession of any property as a result of being found to have committed an offence for the purposes of this Act?

Yes, where a person is convicted of an offence involving a trap or snare etc. they may by order of the court forfeit the same, Section 76. The same applies where the offence involves a firearm. The owner or other interested party has a right to be heard in relation to the forfeiture.

Q.52 Have any orders being enacted pursuant to or affecting this 1976 Act?

Yes, there have been a number of Transfers of Ministerial Functions. S.I. No. 307/1977 specifies what constitutes a trap, net and snare for the purposes of section 34 of the 1976 Act. There have also been some amendments to the Act of 1976

Q.53 Does the 1976 Act itself amend any other pieces of legislation?

Yes, Sections 62, 63, 64, 65, 66, and 67 amend a number of acts.

Firearms Act, 1925, section 3
Forestry Act 1946 Act
State Property Act, 1954
Firearms Act, 1964
Registration of Title Act, 1964 section 69
Protection of Animals (Amendment) Act, 1965 , Sections 23-26, and Section 67 of the 1976 Act effectively reduces the remit of the 1965 Act so that it no longer applies to protected wild animals and wild birds.

Section 10 and the First Schedule of the 1976 Act repeals a number of Acts and sections therein as follows :-
Deer Protection Act, 1698
Game Act, 1787
Night Poaching Act, 1826
Poaching Prevention Act, 1862
Game Preservation Act, 1930
Wild Birds Protection Act, 1930
Forestry Act, 1946 Section 61
Protection of Animals (Amendment) Act, 1965 Section 8