Crime and punishment in the wildlife trade - WWF UK

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Uppermost in the mind of the Panel appeared to be the concept that certain defined and limited environmental offences “affect the general quality of life”. 82 Additionally, harm to fauna and flora, or the risk of harm to human or animal health, were identified as factors caused by the commission of these offences. There was a perception that the penalties imposed by the courts had been too low: respondents to a consultation on the issue tied this in with the Panel’s view that there was limited experience in dealing with these offences. Particular mention was made of the preparation of cases by the prosecution and defence to ensure that all relevant factors in relation to the gravity of the offence and the defendant’s circumstances were brought before the court, reflecting a view expressed by previous survey respondents that better training in wildlife prosecutions was necessary. Those relevant factors include aggravating factors, which increase the seriousness of the offences. These are considered under two headings: • those affecting the culpability of the defendant; and • those relating to the potential extent of any damage. Below is a (non-exhaustive) sample of certain general aggravating factors which may influence sentencing, and which could also be applied to illegal wildlife traders: Culpability • deliberate or reckless, rather than merely careless, breach of the law; • financial motive; • a knowledge of the specific risks involved; and • attitude towards the environmental authorities was dismissive or obstructive. Extent of damage • human health, animal health or flora were adversely affected, especially where a protected species was affected, or where a site designated for nature conservation was affected; • animal rehabilitation operations were required; and • other lawful activities were significantly interfered with or prevented. Additionally, previous convictions for similar offences would be seen as factors that would increase the sentence. Although little is known about the extent of wildlife offenders’ criminal histories, there is a perception that many of the most serious are repeat offenders. 83 Although there may be no direct comparison between environmental and wildlife trade offences, the available sentencing guidelines provided for the former give a degree of certainty, in rationale as well as effect, that is quite obviously missing in relation to wildlife trade offences. Certainly the view of those involved with environmental law is that sentences more adequately reflect the perceived seriousness of the crimes in a way that they did not before. Similar arguments could usefully be applied in the context of combating the illegal wildlife trade. 82 Specifically, air or water pollution, illegal abstraction of water, illegal deposit recovery or disposal of waste, and failing to meet packing regulation imposed obligations. 83 Roberts, et al, supra. 30
7 Conclusions Several themes have emerged from this report, many of which militate against the effective protection of wildlife from illegal trade. International law, through the operation of CITES, provides a framework which, although not perfect, sets out clear priorities and a rationale for protecting the world’s threatened species. But it is essential that individual countries reflect the principles of CITES in their own laws and practice. Education and training has a key role, so the development of effective guidelines and awareness-raising programmes for those charged with administering the law should be a priority. Where the enforcement of law to combat the illegal wildlife trade is concerned, the challenges in the UK context are considerable. Effective action would involve: • an appropriate, workable and effective legal framework; • the judicial and political will to enforce the laws within that framework; • appropriate use of all available legal sanctions; • adequate resourcing of those agencies responsible for enforcement; • environmental vigilance, in terms of monitoring and updating CITES and EU listings in line with the precautionary principle 84 ; and • heightened public awareness of the consequences of the illegal wildlife trade, which would underpin informed support for the full enforcement of the law; and • environmental vigilance at all times. There are varying and inconsistent approaches to the law and the imposition of penalties for illegal wildlife trade. This clearly raises questions concerning any deterrent value. The fear of a severe penalty is not sufficient on its own to deter; the potential offender must realise that there is a certainty of detection and arrest, and that the authorities will prosecute. At present, this is unlikely in the UK. The risk that wildlife offenders take is minimal, and the rewards extremely high, when balanced against the chance of getting caught and the likely penalty that would be imposed. The penalty is not just an external matter or an occupational hazard – it signifies society’s disapproval. Levels of tolerance can and do shift, as we have seen in attitudes to domestic violence and drink driving. Change may be equally possible in relation to wildlife trade. At present, many feel that the penalties imposed in most cases do not adequately signal the seriousness and impact of offences that threaten the survival of species. Recognition of the scale and impact of illegal trade as far as the UK is concerned is not explicit in the courts’ treatment of the majority of offenders: with a handful of high profile exceptions, the higher available penalties are not utilised. But change is possible: similar criticisms when levelled at environmental prosecutions served to push forward the enforcement agenda and yielded modest returns. There is now a perception that environmental crimes are more than just regulatory offences and deserve to be treated in a manner that reflects social harm in environmental damage. The same thinking should be applied to the protection of wildlife from illegal trade, so that levels of penalty reflect its potentially irrevocable effects in terms of the loss of species and threat to biodiversity. 84 As attempted in relation to the basking shark at COP11. 31
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