Schedule 1 species, photography and the law

Buzzard said:

The whole subject of photograhing schedule1 birds against looking through a scope is confusing for the layman and many digiscopers can't get their head around the law.

Thanks Buzzard. I just wanted to highlight this - it's no surprise people find it hard to get their heads around this particular problem, given that it makes no sense. Of course. disturbance to scarce breeding birds must be avoided at all costs, but if you are going to allow the public to view birds with bins/scope from a certain spot, it's obviously a double standard if they cannot legally use a camera from the same spot. The law as it stands is clearly (well, clearly to me) in need of updating, to account for the absurdity of this situation.

Until any change to the law is made, maybe the owners of the reserves need to put signs up to protect their visitors from potential prosecution. It is all very well to say that common sense will prevail in the event of any investigation, but it's certainly not 'common sense' that you can't photograph certain birds from a public hide set up specifically to facilitate viewing of those birds.

Whie we're on the subject, I also think the list of Sched. 1 species is outdated. Surely scarce and vulnerable species like Long-eared Owl, Lesser Spotted Woodpecker, Willow Tit and Turtle Dove should be added.

aiki said:

but if you are going to allow the public to view birds with bins/scope from a certain spot, it's obviously a double standard if they cannot legally use a camera from the same spot. The law as it stands is clearly (well, clearly to me) in need of updating, to account for the absurdity of this situation.

Hi aiki,

I agree about the double standards, but the Law is clear with regards to photographing Schedule1 birds at the nest site. You can legally take photo's if you have the acquired licence.

Unless you're a very experienced bird photographer with a proven track record most amateur photographers won't get that licence and more interestingly woun't even make the application. I would also think that a % won't even be aware of the legalities surrounding schedule1 species. 

The problem lies when the birds are nesting at Public Places or at Reserves.

Tens of thousands of people visit places like the Farnes, Bass Rock and numerous other sites were Little Ringed Plover, Roseate Tern, Little Tern and many of the Schedule 1 birds breed. I have never ever been asked by any of the wardens do I have a Schedule 1 licence and asked to leave my camera if I haven't produced one.

There are little or no enforcers of the Law.

I have also never seen any signage with regards to the photographing schedule 1 species, this could be down to keeping the birds as secret as possible.

RSPB Saltholme has just published articles of  Barn Owl's that had occupied a nest box and successfully reared young.

Do a google search about 750 articles will appear

The photo's appeared in the local paper, it doesn't mention anything about the birds been a Scedule1 species and the photographer been licenced to take the photo.

http://www.gazettelive.co.uk/gazette-communities/2010/08/31/barn-owl-baby-a-welcome-arrival-at-saltholme-wildlife-reserve-84229-27166912/

There are messages on Twitter, Facebook and numerous other forums inviting all and sundry to come down and take a peep.

http://www.facebook.com/Saltholme/posts/146095932074873

The point I'm making is that it is one of those impossible tasks to police and enforce. Unless every single breeding pair of schedule1 birds has been recorded and evey single nesting site accounted for and the birds are been monitored secretly 24hrs a day so if anyone is found disturbing them they can be arrested.

If you have a camera, then most folk will attempt to get the shot. Licence or no Licence, Private or Public!!!

The Rare Bird Alert Forum, I wonder how many have a licence????

http://www.rarebirdalert.co.uk/RealData/gallery.asp?level=4

Regards Buzzard

Hi Buzzard,

I do appreciate what you're saying. However, I think with the hides/public places situation there are some people who would be very surprised and dismayed to learn that they are technically doing something illegal, and that's a pity. I'd also like to think that most normal birders and wildlife-watchers, whether aware of the law or not, would have the sense and compassion not to risk genuine disturbance just to get close nest shots of ANY birds, Sched. 1 or otherwise.

With the RBA rares and megas gallery, there wouldn't be a problem in most cases as those birds are vagrants to the UK so a) not breeding and b) not on Sched. 1.

However, that does bring up another issue - would it be illegal to disturb an extremely rare bird which is attempting to breed, even though it's not on Sched. 1 (because it's never bred here before)? It SHOULD be of course... Cattle Egret, for example, is not on Sched. 1, and bred in Britain for the first time in 2008. Maybe it should be assumed that any bird not currently on the UK list of breeding birds would automatically be added to Sched. 1 when it first attempts to breed here, assuming it arrives naturally rather than being artificially introduced.

There could even be an argument that solo individual rarities that set up territory are at least showing breeding behaviour and so should have the same legal protection from disturbance. Recent examples would include the singing River Warbler in Norfolk, or the Marmora's Warbler in Gwent which was not only singing but collecting nesting material!

Hi all,

There are lots of views and counterviews being banded about, and not all of them are quite correct (though Buzzard got close). I am going to do my best to unravel this for you but perhaps one of the moderators could help too, if necessary with the advice of our Investigations team...

First, let's confirm what the law actually says about Schedule 1 birds, something no-one's mentioned so far. The Wildlife & Countryside Act 1981 states that it is an offence to "intentionally or recklessly disturb any wild bird listed on Schedule while it is nest building or is in, on or near a nest with eggs or young; or disturb the dependent young of such a bird."  Nothing about use of cameras at all.

So, the key question is whether disturbance is likely, not the mechanism of disturbance.

Disturbance may result from any activity. If you approach a barn owl nest (for example) and cause the adults to take flight or the chicks to go 'defensive', you're causing disturbance regardless of whether you have a camera and if you don't hold a Schedule 1 licence for research or photography purposes you're likely to be guilty of an offence.

On the other hand, to use some of the examples posted earlier, photographing the osprey's nest from the Loch Garten hide, or nesting Med gulls from a public hide at Rye Harbour or Dungeness, or avocets on the scrapes at Minsmere or Titchwell, is not illegal if you are not causing disturbance. The hides are there, they are used daily, and provided you behave appropriately inside the hide, there's no problem.

Examples of where you could cross the line even if you were inside a public hide would be if you tried shouting or lobbing pebbles to get a nesting bird to look your way - or perhaps more likely, tried playing taped alarm calls of the target species. And of course if you were daft enough to clamber out of the hide and walk a few yards closer to try and get a better shot you instantly run the risk of committing an offence. Though you'd probably get lynched by your fellow birders before the law had a chance to catch up with you!

Photographing a nesting wild bird away from a public hide without causing ANY disturbance to it is next to impossible. That's why Natural England issue a small number of licences for a selection of Schedule 1 birds (it's a quota system and runs on the first-come first-served principle). There are some Schedule 1 birds for which they won't grant photography licences at all.

I think the RSPB line on this would be simply not to attempt to photograph nesting Schedule 1 birds unless it was from a public hide. Leave it to the professionals and enjoy the insights their work provides.

So just to recap/summarise: the simple act of photographing a nesting Schedule 1 bird without a licence is not illegal, as long as you're not disturbing it. And if you can get your pictures from a public hide, you almost certainly wouldn't be causing disturbance and therefore won't be guilty of an offence whether you've got a licence or not (you were very nearly there, Buzzard!) But realistically, if you approach a Schedule 1 nest without the benefit of a licence and either try to set up your own hide or simply take a quick snap of the nest and walk off, you're likely to be committing an offence because it's next to impossible to do this without causing disturbance. Please don't do it!

The comment about the out-of-date nature of the list of birds under Schedule 1 is an interesting one. There are plenty of species not included on Schedule 1 (nightjars, for instance) which I suggest should not be photographed at the nest without very good reason, regardless of the detail of the law... Reforming the WCA1981 isn't currently our top legislative priority because actual occurrences of disturbance are thankfully rare. But as Britain's avian communities change over time this might need to be looked at again at some future date.

Lastly, it's worth emphasising the birdwatcher's code of conduct and the RPS photographer's code mentioned both go further than the law. Both say that the welfare of the bird must come first (any bird, regardless of whether it's on Schedule 1 or not). Something we all should have at the front of our minds whenever out looking at birds, whether or not it's through a viewfinder.

I hope this helps a bit. Happy (legal) picture-taking!

Colin

Fab, thank you for clearing that up, Colin :)

Interesting and complicated . If i were in a hide,i would usually assume i could take pics.On a walk,if i spotted a bird,i would take a pic. I would never knowingly intrude or upset and certainly wouldn't intentionally , break the law.

I now think that those who are professionals, taking pics for money and much more experienced  regarding the law ,may be tempted to go to greater lengths.A worrying thought, regardless of holding a licence.

Just my opinion.

Sheena said:

Interesting and complicated . If i were in a hide,i would usually assume i could take pics.On a walk,if i spotted a bird,i would take a pic. I would never knowingly intrude or upset and certainly wouldn't intentionally , break the law.

I now think that those who are professionals, taking pics for money and much more experienced  regarding the law ,may be tempted to go to greater lengths.A worrying thought, regardless of holding a licence.

Just my opinion.

At present, actual nest photography is pretty unfashionable. You'll rarely see a professionally taken 'looking into a nest' photo in a modern bird book or birding magazine - most bird photographers don't want to take them and most publishers don't want to buy them.

I suppose this attitude (and long may it continue!) is a result of a) the difficulties of getting a licence (so any nest shots of sched. 1 birds will be eyed with some suspicion) and b) genuine desire to look after the wellbeing of the birds and an understanding of the very real risks of disturbance. Most pro bird photographers (in the UK at least) were birders before they became photographers, after all.

It's the 'near the nest' rather than 'at the nest' that's potentially more of a problem, I think. It may not be obvious from the photos how near the photographer is to the nest, and so that's a more tempting scenario for a minority of photographers who don't respect their subjects. I read on another forum of a known Dipper nest site where the birds were subjected to considerable disturbance by photographers recently :(

Unknown said:

So just to recap/summarise: the simple act of photographing a nesting Schedule 1 bird without a licence is not illegal, as long as you're not disturbing it. And if you can get your pictures from a public hide, you almost certainly wouldn't be causing disturbance and therefore won't be guilty of an offence whether you've got a licence or not (you were very nearly there, Buzzard!) But realistically, if you approach a Schedule 1 nest without the benefit of a licence and either try to set up your own hide or simply take a quick snap of the nest and walk off, you're likely to be committing an offence because it's next to impossible to do this without causing disturbance. Please don't do it!

Hi Colin,

thanks for the clarification. I have collated dozens of reports on this matter over a number of years and some of it appears to be either out dated or misinforming the reader.

The frequently asked questions in the RSPB pages http://www.rspb.org.uk/advice/law/faqs.aspx 

appears to be saying what I mentioned. That you require a Licence.

Regards Buzzard

Hi Buzzard,

Thanks for highlighting this. You're dead right and it might be that the FAQ advice is a bit over-simplified, though of course it errs on the side of caution which is probably the right way to err.

I will mention this to my colleague at HQ who leads on licencing arrangements for RSPB conservation staff to see if she thinks some clarification of this bit of advice is in order.

Regards,

Colin

Update: the advice on this bit of our website is being looked into by our licencing expert and will probably be modified.

Have a good weekend one and all.

Colin