A rare case of wildlife law enforcement in action in December 2018 saw a Hampshire man plead guilty to damaging great crested newt habitat. ARC’s Conservation Director, Jim Foster, assisted police with the investigation. Here he provides commentary on this unusual yet important case.

The great crested newt is Britain’s most strictly protected amphibian. Government agencies, police forces, wildlife organisations and citizens play their part in preventing offences, detecting crime and enforcing the law. We are confident that there are many cases where offences appear to have been committed. And yet very few cases reach the courts; indeed we are aware of only around a dozen cases since 1994, when the strictest laws came into force.

This latest case is significant for a number of reasons. On 4 December 2018, Colonel John De Benham-Crosswell, 83, from Bordon, Hampshire, pleaded guilty at Basingstoke Magistrates Court to one charge of damaging a resting place of a European protected species, namely the great crested newt, contrary to the Conservation of Species and Habitats Regulations 2010. The offence occurred between 24 September 2016 and 30 November 2017 on land owned by Col. De Benham-Crosswell at the Selborne Brickworks site in Hampshire. The offence was committed when earth was moved and dumped in the vicinity of a pond confirmed previously to have been used by great crested newts (see photographs below). Dumping of the earth was judged to have affected good quality terrestrial habitat, as was the compaction of ground and creation of new banks and hard-standing tracks. Therefore, the offence of damaging a resting place occurred. Hampshire Police visited the site shortly after the works, and officers of Natural England and ARC attended to provide specialist assessments and witness statements. The defendant pleaded guilty and was fined £1,200 and required to pay costs of £85 plus a victim surcharge of £120.

The same defendant was found guilty in 2016 of offences involving great crested newts at the same site. In that case, he was found to have damaged resting places and a breeding site. The activities included earth-moving, creating a trench that allowed fish to enter the breeding pond, and eventually draining the breeding pond. The background is complex: newt surveys had been undertaken in relation to a proposed anaerobic digester, mitigation plans drawn up, and a licence issued by Natural England. However, the defendant then acted contrary to the mitigation plans, including withdrawing permission from the agreed developer, and undertaking damaging groundworks. The mitigation licence was therefore no longer deemed valid. Despite advice from Hampshire Police to desist from harmful activities and to amend plans, the defendant undertook further damaging works. This resulted in him being charged, and he pleaded guilty on 23 September 2016. He was fined £250 for each of three offences including damaging a resting place, and £415 for one offence of damage to a breeding site, totalling £1,165, plus costs of £85 and a victim surcharge of £117.

Anyone interested in amphibian conservation will want to better understand the decision-making in this case. Why, for instance, was the fine in the 2018 case apparently so small? To explain the size of the penalty, it is worth considering how magistrates determine sentences. Firstly, courts must decide on a verdict for the charges before them. The offences in both the 2016 and 2018 cases related to breaches of the Conservation of Species and Habitats Regulations 2010 (note that these have now been superseded by the 2017 Regulations, which came into force on 1 December 2017). The maximum penalty for a conviction is up to 6 months custodial sentence, and/or an unlimited fine (fines for these offences have been unlimited since 2015). Those penalties are per offence. Courts can also order the forfeiture of property used to commit offences, under the 2010 Regulations or the Powers of Criminal Courts (Sentencing) Act 2000. So on a simple reading of the law, there is potential for significant penalties. However, the way that penalties are in fact decided by a court is rather complex. The Magistrate assesses the balance of aggravating and mitigating circumstances. Magistrates also take into account guidance on sentencing, and may have regard to the means of the defendant and penalties awarded in previous similar cases

In the December 2018 case, some illuminating comments were made by the District Judge when summing up (unusually, the case was heard by a Judge rather than a Magistrate). He stated that the key aggravating factor was the fact that this was a second offence, committed shortly after a conviction for a like offence. The District Judge stated this was a “blatant offence”, since Col. De Benham-Crosswell was clearly “on notice” about complying with the law: he knew of the presence of the newts and the legal issues arising. The mitigating factors were that the defendant undertook the works intending to repair a track for agricultural purposes, and that a report by an ecological consultant (Peter Shepherd of BSG Ecology) suggested it was likely that the newt population would prosper despite the habitat damage. The District Judge also took into consideration the defendant’s financial circumstances, and the fact that he pleaded guilty at the first opportunity (the latter fact reducing the fine by £600). Interestingly, whilst the total fines were similar in the 2016 and 2018 convictions, there was only one offence in the latter case versus four in the earlier case, and the per offence penalty was significantly larger (£1,200 vs a maximum of £415). The aggravating factors presumably influenced this increase in penalty.

The prosecution argued that there was a sound case for forfeiture of the digger used to commit the offence, owned by the defendant and valued at £50,000. However, the District Judge held that whilst “this was a reasonable application to make”, he rejected it on the grounds of proportionality and value, and noted that the defendant used it legitimately for agricultural purposes.

It is especially concerning to ARC that there was a relatively modest penalty, and the first conviction apparently had no effect as a deterrent. As outlined above, the way that courts reach a decision on penalties is, necessarily, via a series of considerations. One could no doubt debate the relative significance of the aggravating and mitigating circumstances in this case. But one of the most telling points in the summing up was the fact that there is no sentencing guidance directly applicable to these types of offences. Without this, there will continue to be a risk that penalties are insufficiently harsh. One should not forget, however, that the offences do result in a criminal record, and that in appropriate circumstances magistrates may well decide on higher fines or even custodial sentences. Furthermore, for some cases the use of the Proceeds of Crime Act can result in significant additional penalties, as seen with some recent bat cases. This case was significant for the prosecution’s attempt to have the digger forfeited. In our experience of amphibian cases this is a rare tactic, and although it ultimately failed here, we would like to see forfeiture of property pursued in other cases where appropriate.

A common but incorrect assumption is that offenders in this sort of case are required to remedy the damage they were convicted for. But regrettably, wildlife law does not allow for this following a conviction – at least, not in the straightforward way that laws in some other sectors include a power to order restoration. Even if a defendant is found guilty of a wildlife offence and fined a significant amount, that will not directly lead to any positive change in conditions on the ground. ARC would like to see this situation changed, so that a better conservation outcome is assured when habitats are damaged.

ARC is working with others to improve the detection and enforcement of offences involving amphibians and reptiles. Notably, we are part of the Bearing Witness for Wildlife Project led by the Bat Conservation Trust (funded by the Esmée Fairbairn Foundation). That project is helping to generate more rigorous data on crime as well as raising awareness, and we are already seeing the number of police investigations increasing. As a member of Wildlife and Countryside Link’s Wildlife Crime working group, we are pressing for policy change and better implementation. You can read the latest report here, which for the first time includes a section on amphibians and reptiles. Along with other WCL members we are calling for significant changes, not least since whilst the number of wildlife crime incidents has risen, the number of convictions has fallen. Most encouragingly in light of the Selborne Brickworks case, there are moves via WCL to improve the situation with sentencing guidance, and ARC will be feeding in its experience here.

It is most encouraging to see the activities at Selborne Brickworks resulting in a conviction, when so many reports of wildlife crime that we hear about go unanswered. ARC would like to thank Natural England, Hampshire Police - notably Country Watch Officer PC Lynn Owen - and the Crown Prosecution Service Wessex Region, for their determined efforts to bring this case to court.

Assisting with wildlife crime investigations requires significant expertise and resources. If you would like to help ARC’s efforts in this crucial area, please consider sponsoring the great crested newt or becoming an ARC Friend.