Acting to stop harm: the FCA and Appointed Representatives
Following the roar of disapproval regarding the shooting of Cecil, Zimbabwe's 'most famous lion', the two Zimbabwean men who accompanied American Walter Palmer on the hunt were charged with poaching offences.
Media reports reveal that Theo Bronkhorst pleaded not guilty to a charge of 'failing to prevent an unlawful hunt' and is bailed to appear in court in Victoria Falls on today. Honest Ndlovu is due to appear at a later date with Palmer possibly facing charges too.
The United Nations has used these events to shine a light on its efforts to put an end to the global poaching crisis with a resolution adopted on 30 July. The UK government has called wildlife crime a 'scourge on endangered and vulnerable species'.
Yet as headline grabbing as this phrase may be, what do we actually mean by wildlife crime?
In the UK wildlife crime can be any action which contravenes current legislation governing the protection of the UK's wild animals and plants. On the question of big-cat hunting and illegal trading, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) controls the trade in endangered or protected animal or plant species.
CITES controls apply to the import from or export to third countries of dead or living controlled species, as well as parts or derivatives (eg skin, fur and teeth).
The UK is one of 180 signatory countries who have agreed to abide by rules that regulate the import, export and transhipment of protected flora and fauna. Detailed lists of species afforded different levels or types of protection are set out.
The UK already has a National Wildlife Crime Unit, with CITES issues a top priority. The unit seeks to increase the number of disruption activities and detections of illegal trade in priority species (such as ivory, tortoises and traditional medicines) and it is worth knowing they are keen to improve their record on investigation and enforcement.
In the UK, CITES is implemented by the Control of Trade in Endangered Species (Enforcement) Regulations 1997. However, this legislation and the underlying EU framework decisions are a labyrinth of prohibitions and exceptions. Our experience from representing those accused of CITES offences is that both the investigating and prosecuting authorities have difficulty in applying the law consistently and accurately.
The UN wants to go further to tackle this 'increasingly sophisticated cross-border crime'. It wants member states to harmonise their judicial, legal and administrative regulations to support the exchange of evidence in this area.
Tying wildlife trafficking to organised criminal groups, the UN wants countries to treat this activity as a serious crime and ensure that offences connected to the illegal wildlife trade are treated as the 'predicate offence' for the purposes of domestic money-laundering offences. This, it is hoped, will make it easier for the proceeds of this type of crime to be seized and confiscated.
In the UK, regulations came into force in December 2014 (the Criminal Justice and Data Protection Regulations) which facilitate member states in applying for and enforcing criminal restraint and freezing orders against a suspect's assets in the UK.
This, in combination with the UN's renewed vigour in tackling this issue and the public outrage following Cecil's death, is likely to lead to further investigations, prosecutions and enforcement against those suspected of illegal trading of endangered species and their 'ill-gotten gains'.
However, a word of caution: prosecutions under CITES legislation can be complex and are by nature multi-jurisdictional. The authorities in all relevant countries must be careful to ensure that they apply their powers carefully and appropriately.
The imposition of a restraint order freezing a person's assets is a significant and coercive measure. We have had experience of such orders being imposed against those who have been falsely accused of CITES offences with devastating costs to their livelihood and families. It is vital that investigators and prosecutors act in a careful and objective manner in an area which can be highly emotive.
Cecil's death was a tragedy but there should not be a kneejerk reaction.
This article first appeared in Spear's.
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