Wildlife Act 1976

Enforcement of protection of wild animals (other than wild birds).

23

23. (1) Subject to subsection (2) hereof, this section applies to any animal which is of a species of fauna specified in the Fifth Schedule to this Act.

(2) Subject to subsection (3) of this section, the Minister may, after consultation with the Minister for Agriculture and Fisheries, by regulations provide that—

( a) an animal of a species of fauna specified in the regulations (not being a species specified in the Fifth Schedule to this Act) shall be an animal to which this section applies,

( b) an animal of a species of fauna specified both in the regulations and in the said Fifth Schedule shall not be an animal to which this section applies,

( c) in such places or areas as are specified in the regulations and as regards such period or periods as are so specified, subsection (5) of this section shall not have effect either, as may be so specified, generally or as regards such species of animal as are so specified,

and in case any regulations under this subsection are for the time being in force, this section shall be construed and have effect subject to and in accordance with them.

(3) Regulations under this section—

( a) which provide that an animal of any species of fish or aquatic invertebrate shall be an animal to which this section applies, or

( b) the effect of which when made would be that this section would, for so long as the regulations are in force, cease to apply to animals which are of such a species,

shall be made or amended by the Minister only with the concurrence of the Minister for Agriculture and Fisheries who shall indicate his concurrence by signing the regulations.

(4) An animal to which this section for the time being applies is in this Act referred to as a protected wild animal.

(5) Any person who—

( a) hunts a protected wild animal which is not an exempted wild mammal otherwise than under and in accordance with a permission or licence granted by the Minister under this Act,

( b) hunts an exempted wild mammal otherwise than,

(i) under and in accordance with such a permission or a licence granted by the Minister under this Act other than section 29, or

(ii) under and in accordance with a licence granted by the Minister under section 29 of this Act and (also) on a day, or during a period of days, specified in a relevant order under section 25 of this Act,

( c) injures a protected wild animal otherwise than while hunting it,

(i) in case the protected wild animal is not an exempted wild mammal, under and in accordance with such a permission or a licence granted by the Minister under this Act,

(ii) in case the protected wild animal is an exempted wild mammal, either,

(A) under and in accordance with such a permission or a licence granted by the Minister under this Act other than section 29, or

(B) in the manner and on a day, or during a period of days, mentioned in subparagraph (ii) of paragraph (b) of this subsection,

( d) wilfully interferes with or destroys the breeding place F60 [ or resting place ] of any protected wild animal,

shall be guilty of an offence.

F61 [ (6) The Minister may grant a licence to a person

( a ) to take, capture or humanely kill or capture and humanely kill at any time a protected wild animal of a species specified in the licence for such educational, scientific or any other purpose as shall be specified in the licence, or

( b ) to take or make photographic, video or other pictures of a protected wild animal of a species so specified on or near the breeding place of such an animal, or

( c ) to have in possession, for a reasonable period of time

(i) an injured or disabled protected wild animal, or

(ii) one or more than one dependant young of a protected wild animal which is orphaned,

with the intention of tending and later releasing such animal or young back into the wild when and only when such animal or young, as the case may be, is no longer injured, disabled or dependant, or

( d ) to retain possession of a protected wild animal, that for reasons of disability or for other reasons deemed reasonable by the Minister, would, if released, be unlikely to survive unaided in the wild. ]

(7) Notwithstanding subsection (5) of this section, it shall not be an offence for a person—

( a) while engaged in agriculture, fishing or F62 [ aquaculture, forestry or turbary, ] unintentionally to injure or kill a protected wild animal, or

( b) while so engaged to interfere with or destroy the breeding place of such an animal, or

( c) 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 other operation or work as may be prescribed, F63 [ unintentionally to kill or injure such an animal or unintentionally to destroy or injure the breeding place or resting place ] of such an animal, or

( d) to capture an injured or disabled protected wild animal F64 [ , or the orphaned and dependant young of such an animal, ] for the purpose of killing it humanely or with the intention of tending it and of later releasing it F64 [ when, but only when, the said animal or its dependant young, as the case may be, are no longer disabled or dependant ] or

( e) 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, F65 [ and where the animal is so injured or disabled that there is no reasonable chance of its recovering, ]

and nothing in this section shall make unlawful,

(i) the taking and killing of hares by coursing at a regulated coursing match which is held both during a period specified as regards hares in a hares order and in a place to which such order applies,

(ii) the hunting of hares by means of a pack of beagles or harriers both during a period specified as regards hares in a hares order and in a place to which the order applies,

(iii) anything which section 3 (3) of the Whale Fisheries Act, 1937, permits to be done, or

(iv) anything which is duly done pursuant to F66 [ a licence or other permission granted or issued pursuant to the Wildlife Acts, 1976 and 2000 , or which is duly done pursuant to any other statute ] or statutory instrument, which is permitted to be done under such a statute or instrument or which is done pursuant to and in accordance with a licence or other permission granted or issued pursuant to such a statute or instrument or anything caused by or which results from, or is consequent upon or the effect of any other act or thing which is lawfully done.

F67 [ (7A) the provisions of subsection (7) of this section shall not apply to the species listed in Annex IV (A) of Council Directive 92/43/EEC of 21 May 1992, and including any amendments that shall be made thereto. ]

(8) In any proceedings for an offence under this section relating to a protected wild animal which is of a species other than a species specified in Part II of the Fourth Schedule to this Act, it shall be a defence for the defendant to prove that any capturing or killing complained of was urgently necessary for the purpose of stopping damage described in section 42 (1) of this Act being caused and that in the particular circumstances of the case it was not practical for him to apply to the Minister beforehand for a permission under section 42 of this Act and that the defendant reasonably believed that damage mentioned in the said section 42 (1) was being caused by the protected wild animal to which the alleged offence relates or by protected wild animals of the same species as that of such protected wild animal.

(9) In any proceedings for an offence under this section it shall not be necessary for the prosecution to prove that any act constituting (whether in whole or in part) the alleged offence was done otherwise than while the defendant was engaged in agriculture, fishing or F68 [ , aquaculture, forestry or turbary ] F69 [ ].

(10) Proceedings for an offence under this section may be taken in any District Court District, and in case such proceedings are taken and apart from this section the Justice before whom the proceedings are brought would not have jurisdiction to hear and determine the proceedings, then for the purpose of conferring such jurisdiction the offence may be treated as having been committed within the District Court District to which such Justice is assigned.

(11) The Minister may by regulations provide that—

( a) subsection (8) of this section shall have effect in relation to any proceedings for offences under this section relating to protected wild animals of a species specified both in Part II of the Fourth Schedule to this Act and in the regulations,

( b) the said subsection (8) shall not have effect in relation to any such proceedings relating to protected wild animals of a species specified in the regulations,

and the said subsection (8) shall have effect accordingly.

Annotations

Amendments:

F60

Inserted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(a), S.I. No. 371 of 2001.

F61

Substituted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(b), S.I. No. 371 of 2001.

F62

Substituted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(c)(i), S.I. No. 371 of 2001.

F63

Substituted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(c)(ii), S.I. No. 371 of 2001.

F64

Inserted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(c)(iii), S.I. No. 371 of 2001.

F65

Inserted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(c)(iv), S.I. No. 371 of 2001.

F66

Substituted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(c)(v), S.I. No. 371 of 2001.

F67

Inserted (18.07.2005) by European Communities (Natural Habitats) (Amendment) Regulations 2005 (S.I. No. 378 of 2005), reg. 2(3).

F68

Substituted (31.07.2001) by Wildlife (Amendment) Act 2000 (38/2000), s. 31(d), S.I. No. 371 of 2001.

F69

Deleted (31.07.2001) by Wildlife (Amendment) Act 2000, (38/2000), s. 31(d).

Modifications (not altering text):

C16

Application of subs. (7) potentially restricted (4.10.2010) by European Communities (Birds and Natural Habitats) (Restrictions on Use of Poisoned Bait) Regulations 2010 (S.I. No. 481 of 2010), reg. 4(4).

Prohibition of use of certain poisoned bait

4. ...

(4) For the avoidance of doubt, in the event of conflict between these Regulations and sections 22(5) and 23(7) of the Wildlife Act 1976 these Regulations prevail.

Editorial Notes:

E155

Power pursuant to section exercised (1.06.1990) by Wildlife Act, 1976 (Protection of Wild Animals) Regulations 1990 (S.I. No. 112 of 1990), in effect as per art. 2.

E156

Power pursuant to section exercised (1.10.1980) by Wildlife Act 1976 (Protection of Wild Animals) Regulations 1980 (S.I. No. 282 of 1980), in effect as per art. 2.