For the full legislation, in all of its legal-jargon-glory, click on this link to the government’s legislation website.
The Protection of Badgers Act 1992 consolidated earlier Acts (the Badgers Act 1973, the Badgers Act 1991 and the Badgers (further protection Act 1991). The 1992 Act protected badger setts as well as badgers themselves. Police powers include the power to stop and search suspects and examine items they have on them, to seize and detain any items used in an offence and to enter land without warrant (not including dwellings and locked-up places) in certain circumstances.
Depending on which offence has been committed and how serious it is, offenders could be given up to 6 months in prison or given the maximum fine available under the law… in some situations an offence may be indictable and up to 3 years in prison could be given. If more than one badger is killed or injured, for example, the courts can prosecute an offender (or body corporate) for each offence as though it were a separate incident.
Section 1 – ‘taking, injuring or killing badgers’
This section covers wilful acts of the above and attempts to do the above acts*
It also makes it illegal to have a dead badger, or part of a dead badger, or something derived from a dead badger, in your possession**
A landowner / occupier of land or servant of landowner / occupier (or a constable) can require a person to leave land if they have been caught committing an offence… they can also ask for name and address of the person and it can be an offence if remain or land / don’t give their details
If someone knowingly permits or causes an offence to be committed they are also committing an offence.
*without a licence to do so
**obviously anything that has been legally imported into the country from another where it is not illegally to use badgers – such as shaving brushes made with badger hair (yes, they exist…) will not count
Section 2 – ‘cruelty’
This section covers cruelty and ill-treatment, including using badger tongs while killing / taking a badger (or attempting to) and digging for badgers. It also specifies that any firearm used to kill a badger (obviously with a licence) needs to be a smooth bore weapon (at least 20 bore) or a rifle with ammunition with muzzle energy of at least 160 footpounds (and bullets of at least 38grams).
If evidence provided suggests that a suspect was digging for a badger then it can be assumed that he was unless evidence is provided to the contrary.
Section 3 covers ‘interfering with badger setts’
This is one of the most important sections for us, as it covers hunts blocking badger setts and digging into badger setts for hunted foxes that have gone to ground within them. The subsection are as follows… a person is guilty of an offence if they:
(a) damage a badger sett or any part of it
(b) destroy a badger sett
(c) obstruct access to a sett or entrances of a sett
(d) cause a dog to enter a sett
(e) disturb a badger when it is occupying a sett
or if they intend to do any of the things mentioned above or if their actions are reckless and it should have been obvious that those actions would have the above consequences.
There are allowances made in some situations where Natural England can authorise badgers to be lawfully evicted from their setts so that the land can be developed on, etc. This section only applies to active badger setts, ones which are in use by badgers at the time of any offence, and not inactive setts.
Section 4 refers to the selling and possession of live badgers, Section 5 the marking, ringing or tagging of badgers and the remainder of the Act covers punishment, powers of constables and other legal information. The only bits that really matter to what we are doing from the remainder of the Act are:
You are allowed to take / attempt to take a badger if they are disabled (i.e. sick or injured) as long as you haven’t caused them to become disabled through an unlawful action – to clarify, for example if you’ve accidentally hit a badger while driving and want to take them to a wildlife hospital for treatment, this is ok… if you’ve shot and injured a badger in order to claim that they are disabled and give yourself an excuse to take and keep them, this is not ok. The sole purpose of taking the badger must be to tend to their injuries / sickness (which we suggest should be done by professional wildlife vets and rehabilitation centres, not done in your own home) with the intention of releasing them when recovered.
Killing as an act of mercy may be allowed – again, this does not allow you to shoot a badger illegally and injuring them just so that you can kill them and claim that it is lawful as you were putting them out of their misery… the sickness or injury must be so severe that the badger would not be able to survive it.
The Hunting Act.
There used to be a section under the Protection of Badgers Act which would allow certain activities by hunts. When the Hunting Act came into force, and foxes were no longer supposed to be chased and killed, this section became obsolete and was repealed.
The section once allowed the obstructing of entrances to badger setts for the purpose of hunting foxes with hounds if it was only obstruction (and not damaging, digging into, etc.) and if there was authority from the landowner. The obstruction could only be created using untainted straw or hay, leaf litter, bracken or loose soil, a bundle of sticks or empty paper sacks (or paper sacks filled with leaf litter, untainted straw or hay).
No hard-blocking would be allowed and obstructions were only allowed to be put in place after midday on the day before the hunt or on the day of the hunt itself and must be removed later ono in the day. The hunts were to keep a register of those authorised to put the obstructions in place and it would only be those hunts recognised by the Masters of Foxhounds Association, the Association of Masters of Harriers and Beagles and the Central Committee of Fell Packs – so no unregistered packs…
Hounds marking to ground at a sett would not be classed as a breach of the legislation if they were withdrawn as soon as reasonably practicable.
Considering this last part, where hounds marking to ground would not be an issue as long as hounds were taken away as soon as possible (and, obviously, as long as hunt members then didn’t enter a terrier or other dog into the sett or dig into it to get to the fox) then surely more can be done under this legislation now that hunting a fox with dogs is also (mostly) illegal?
To clarify what we mean… when hunting with dogs was still lawful, hunts would be allowed to chase that fox into a sett but would then have to leave the fox alone as setts are protected under the law and there would be no way to lawfully get to the fox. And yet, since the Hunting Act came into play, we are still seeing hunts marking to ground at setts. We do not always have the fox on camera, so can’t always prove that they were illegally hunting a fox* unless we catch terriermen or other hunt members attempting to dig into the sett for them. However, we often do have hunts on camera allowing the hounds to mark to ground, even if they are then deterred from digging down / entering a terrier.
Surely if, while hunting was still lawful, hounds must be taken away as soon as possible when they mark, the same should be expected of hunts now?
*reading the legislation again, under Section 3 it is an offence to allow a dog to enter a sett – this doesn’t specify terriers, so causing hounds to go into a sett entrance (and especially to damage it by pawing at the earth) should be classed as an offence, whether by allowing them to mark a fox to ground or by laying a trail which ends at a badger sett entrance
The legislation also includes the word ‘recklessly’ meaning that your behaviour was likely to have certain consequences. So laying a false scent trail which ends at a sett entrance would be reckless as it would be likely to cause hounds to damage it. Letting some of your pack stray in an area where there are setts would be reckless. Realising that your hounds are marking at a sett and not ensuring that you have gathered up and taken away the whole pack from the area would be reckless. Any responsible dog-walker would immediately tell their dogs to leave a sett alone, would ensure that no damage had been caused and that all of their dogs were taken away from the sett and not allowed to return. So the North Cotswold Hunt and all their staff and followers would have no excuse to allow part of their pack to remain at a sett to damage it on the 11th October, as an example…