In my last column I wrote about my innate urge to collect natural objects and my growing unease with how that hobby sits within the whole ‘leave no trace’ ethos. The question I considered was an ethical ‘should I?’, but in this column I’m considering a different question – a very matter-of-fact ‘can I?’
Collecting natural ‘stuff’ and even taking photos might seem the most inconsequential of pursuits, but it isn’t as straight-forward as you might think.
Some things might need landowner permission before you remove them. Other things are generally okay to take but only if you are sparing and you’re not going to sell them commercially. And some things can result in a fine or even imprisonment if you take them.
For the most part our wildlife laws are there to guard against those who would knowingly and deliberately harm or exploit a given species (egg collecting is an obvious high profile example of this), but these days even reckless behaviour or inadvertent disturbance can be considered an offence in some cases. I thought I had a fairly good working knowledge of the ins and outs of wildlife protections but I don’t mind admitting I hadn’t realised just how heavily regulated some animal remains are.
This exact issue came up in the course of writing last month’s column when I was informally chatting to friends, colleagues and other rangers about how much nature ‘stuff’ they have personally accumulated in their homes or offices over the years. Two different people both cited personal experiences of having unwittingly fallen foul of regulations, albeit with the best of intentions.
The first was about as outdoorsy a person as I’ve ever met, whose family were walking along a beach in Sutherland when they found a dolphin skull lying on the sand. They took it home and one of their kids, who was very into the natural world at the time, wrote an online blog about it. I can’t remember whether he was writing it for Scottish Natural Heritage (SNH) or another environmental body, but whoever it was had to contact the family and advise them that the article, which they otherwise loved, was problematic because you need a licence to possess dolphin bones.
The second was someone who’d found a roadkill otter by the side of the road near Inverness. She’d picked it up and transported it to someone who she knew had a licence for possessing otter remains and who might be able to use the animal for environmental education. Years later she was doing a course in ecological consultancy that included a module on protected species, at which point she realised she’d have needed a licence even to transport the otter.
Those stories made me think, that if ecologists and other folk who spend all day every day in the outdoors are unaware of the rules & regulations then what chance do the rest of us have?
I naively thought it might be easy to summarise the rules and regulations for you but it’s been an absolute nightmare! While some rules are pretty straight-forward, the fundamental problem remains that there’s no one place you can go where all this information is displayed in friendly layman’s terms. That’s hardly surprising given the laws protecting wildlife and governing access to the countryside are written in impenetrable language where your brain ties itself in knots with each new clause or subsection. And to make matters worse, if you can’t find a clear answer to your question on official websites then you inevitably have to venture into the wild west of the internet. The forums!
The responses you get can seem cogent and persuasive, but more often than not they contradict one another despite the various contributors stating them as fact. You end up more confused than you were before! Worse still, your investigation takes so much time and effort that you start to wonder if it’s not better to remain in ignorance and instead just rely upon common sense in the field. That’s understandable, but ignorance isn’t a defence. And because I’m sure that most people would want to do the right thing and be above board in the eyes of the law, hopefully this summary of the key rules and laws might be of some use…..but I hasten to add some of it is just my interpretation. Ugh, I’ve got a headache already!
Where to start
The Scottish Outdoor Access Code is undoubtedly the best place to start if you’re wondering what you’re allowed to do in the countryside, because before you even consider taking something home you need to know whether you have the right to actually stand where you’re standing. Fortunately in Scotland we have progressive legislation that secures us access to most of the countryside, but it’s always worth checking to make sure you’ve understood your rights correctly. The Code puts our access rights into simple language that we can all understand, whether you’re walking, cycling, camping, climbing, paddling or whatever. You can find it on the SNH website and download the entire guide as en e-book: https://www.outdooraccess-scotland.scot/. It’s worth having your own copy saved locally somewhere, as it frequently comes in useful not least when you’re challenged and you’re not sure of your rights.
Handily, towards the back of the Code in Annex 1 there’s a list of ‘Existing criminal offences created by statute’, which includes overviews of any laws concerning damage or disturbance to wild animals, birds and plants. However, because the Code is an ‘at a glance’ guide you’ll need to go elsewhere if you’re looking for greater detail.
Scottish Natural Heritage (SNH) is our national nature agency, and their website has a good A to Z of protected species in Scotland, in which they outline all the relevant laws relating to each species and the circumstances under which you might require a licence.
Another good place to get an overview of wildlife and countryside law is on Naturenet. Although they’re coming at the legal aspect of things from a mostly England & Wales perspective, their overviews of UK-wide and EU wildlife laws are very useful and easy to understand.
Animal bones and the law
Most of the animals you might encounter when you’re out and about are afforded a degree of protection under various laws. Some, like badgers, have their own special legislation but the Wildlife and Countryside Act 1981 is the main piece of legislation that protects our wild animals. Some of these animals are legally protected not only from exploitation and harm, but also from disturbance.
The species with extra protections within that Act are called ‘Schedule 5 species’. SNH have a full list of all the ones you’ll find in Scotland but they include red squirrel, pine marten, adder, common lizard and common frog. An offence is committed if you ‘kill, injure or take’ a Schedule 5 specimen, but importantly for our purposes, an offence is also committed if you ‘have in your possession or control any live or dead wild animal ….. or anything derived from, such an animal’. That would of course include bones.
However, the Act does list exceptions so I checked SNH’s licensing website to clarify. They say that where most Schedule 5 species (and also badgers) are concerned ‘a licence isn’t required to possess a specimen if you can show that it was killed or taken legally.’ I wasn’t sure whether ‘taken legally’ allows for taking the remains of an animal that died of natural causes so I contacted SNH directly, who replied:
‘The legislation doesn’t specify circumstances that would be considered legal or otherwise, but it would be up to the individual taking the specimen to satisfy themselves that the animal has died lawfully, or naturally. If they suspect the animal did not die lawfully, then we would recommend they report this as a possible wildlife crime to Police Scotland on 101.’
The upshot of this in a practical sense is that in most instances, provided you simply happen upon bones when you are out and about, and you aren’t intending to sell whatever you’ve found, then it’s probably okay to possess animal bones. That said, as I understand it the ‘burden of proof’ would still be on you if for some reason you were ever asked how you acquired them. Hence it being entirely sensible to document and photograph such remains when you find them so that you can show evidence of how they came to be in your possession.
However, the dolphin and the otter are exceptions because they are European Protected Species under the Conservation (Natural Habitats, &c.) Regulations 1994, and these require licences to possess ANY part of them, even a bone or a skull. Other European Protected Species in Scotland include all our species of bat, all our porpoises and whales, the great crested newt and the Scottish wildcat. Licences for possession aren’t just handed out to just anyone, however. They’re only issued for scientific, research or educational purposes.
But…. who actually owns remains?
Having established whether or not it’s ‘lawful’ to actually possess the remains of certain animals, you might think it was case closed. But no, because the question remains as to who actually owns animal remains when you find them. The landowner? Do you need permission to take them? Or does nobody own them?
My own investigation into whether or not I’m legally allowed to take antlers (and presumably, therefore, any other animal bones) from a hillside perfectly illustrates the problem. I searched online and found that same question innocently and cheerfully posted in several walking and stalking forums, only for the subsequent ‘debates’ to grow increasingly ranty as they became conduits for wider access gripes in Scotland. Among the many opinions stated as fact that I encountered were:
- Deer don’t belong to anyone, therefore nobody owns the antlers. So it’s okay to take them.
- Anything on the land is the property of the landowner and it would therefore be theft.
- Taking antlers is like foraging for berries….which is permitted.
- Taking antlers is like taking firewood….which isn’t permitted and therefore needs landowner permission.
- Keepers will sell cast antlers. They have a commercial value so you must ask permission.
See what I mean? I put the question out on Twitter in relation to antlers and I got good answers from experienced and professional people of various different fields and backgrounds, but again there wasn’t a unanimous view or consensus. In the end it was suggested that contacting a lawyer might be worthwhile as it would be interesting to know for certain, and after weeks of frustrating dead ends I was seriously tempted. However, in the end I decided that would be ridiculously excessive for something that few landowners likely have a problem with. The consensus on Twitter was basically that if you DO need permission to remove antlers or bones, nobody is going to care enough to prosecute so what’s the problem? Perhaps, but it really bugs me that I still don’t know what my actual rights are.
As with so many things in the absence of hard guidance, if you’re unsure what to do then you should do what feels right and responsible….although I’m well aware that these are sliding scales depending on your outlook and integrity. The general view out there appears to be that the odd antler here or there for your own collection is unlikely to cause much concern. Personally though, if I encountered a keeper or walked past the estate office and had an antler strapped to my rucksack then I’d say hi, show them what I’d found and ask if it’s okay to keep it…regardless of the legalities. It would likely help foster a positive relationship between recreational users and land managers if nothing else, which is surely a good thing.
Birds
EGGS
First things first. Taking bird eggs from nests is strictly forbidden and has been since The Protection of Birds Act 1954. The Wildlife and Countryside Act 1981 went further by making it illegal to even possess birds’ eggs, or indeed any derivatives of birds’ eggs. You cannot take them under any circumstances, not from the rarest species nor the most common birds in your garden. Not even if one egg doesn’t hatch and is left in the nest after all the other chicks have fledged. The penalties can be severe, so just leave them be.
However, as a ranger it’s an almost weekly occurrence for a kid of primary school age to proudly show me the egg fragments from naturally hatched or predated eggs that they’ve found on the ground around the school, so I phoned the RSPB Wildlife team to get their steer on whether you’re allowed to keep such fragments. They confirmed that it doesn’t matter if they’re whole eggs or fragments, or whether you happened upon them innocently or not, you still cannot legally possess them.
FEATHERS AND BONES
I know we all pick feathers up and take them home but there’s nothing online to say whether or not you’re allowed to. The RSPB told me that while it is an offence to take or possess ‘any part of a wild bird’, provided you happened upon feathers innocently and they were cast from the bird naturally, then it’s okay to take them. The same goes for bird bones and skulls although, as with the Schedule 5 animals the burden of proof that you obtained them lawfully would remain with you.
PELLETS
I routinely pick pellets up on guided walks and open them up to show people, which is always grimly fascinating. There’s very little online about them specifically, but it appears to be okay to take them provided there is no disturbance to the bird in question. The RSPB’s guide to owl pellets says:
“The bird’s welfare must always come first. NEVER disturb a site where a bird of prey may be nesting, or disturb roosting birds. All birds are protected by law, and there are special penalties for disturbing a barn owl close to its nest”
NESTS
All bird nests have substantial legal protection during the breeding season. You cannot interfere with the nest of any wild bird while it is being built or in use, and some even have protection all year round. The breeding season is generally regarded as 1st February to 31st August but that’s not to say that nests mightn’t be used in January or September, what with climate change. Personally, I used to have a dunnock nest and a wren nest, both of which I found during winter and both of which I kept because I planned to take them into a primary school. As far as I’m aware it’s okay to keep them, but unless you are planning to use them in an educational capacity then I’d recommend just leaving them in situ.
TAKING PHOTOS
As with many other creatures, a growing risk to birds these days from the general public is disturbance, whether it’s deliberate or not. Arguably you should show all nesting birds proper respect by keeping a safe enough distance away from them to avoid altering their natural behaviour, but some species have additional legal protections to guard against disturbance during nesting season. That includes reckless as well as deliberate behaviour, and also disturbing a bird’s dependent young, any of which can result in criminal convictions or even imprisonment.
These birds with extra protections are called Schedule 1 species and include kingfishers, capercaillie, hen harriers and golden eagles among others. Eagles, red kites and hen harriers also benefit from additional protection from ‘harassment’ all year round, while golden eagles and white tailed eagles also have their nests under legal protection even when are unoccupied. SNH have a handy list of all protected birds in Scotland.:
INVERTEBRATES
There are unlikely to be many people out there who’d want insect, mollusc or crustacean curios in their homes, but there are still some rules out there to consider. Invertebrates do feature on Schedule 5 of the Wildlife and Countryside Act 1981 and some (such as the Marsh Fritillary butterfly and the freshwater pearl mussel) receive as much protection as the animals and birds. Most of us are unlikely to encounter them, but it should be noted that reckless disturbance of their habitat can also be considered an offence.
PLANTS, FUNGI AND FORAGING
All wild plants are protected under the Wildlife and Countryside Act 1981, which makes it an offence to uproot (dig them up) regardless of how common they might be. In terms of foraging, picking foliage / fruits / seeds / flowers / fungi tends to be allowed provided it is done sparingly and only for your own consumption or use, although that changes once you’re on a National Nature Reserve (NNR) or a Site of Special Scientific Interest (SSSI).
That said, I’ve struggled to find anything in the legislation that specifically references picking (rather than uprooting) from protected sites where plants are concerned, but I’ve found plenty of websites (including Plantlife) who state that you can’t pick anything from plants in those protected sites without prior consent from Scottish Natural Heritage. Arguably, given that NNRs and SSSIs are refuges for rare or endangered wildlife then the morality of foraging within them is on dodgy ground at best, so in the absence of clear guidance I’d recommend just checking with whoever manages the site in question before taking anything.
However, for about 75 rare species of plants and fungi in Scotland, picking them or their seeds or spores would be an offence, and even trampling them could land you in trouble. These are called Schedule 8 species. Then there are the European Protected Species in Scotland that require licenses, of which there are just three (Killarney Fern, Slender Naiad and Yellow Marsh Saxifrage).
FOSSILS AND ROCKS
I dare say many of us have spent a happy hour or so turning over stones in favoured spots, and perhaps taken a small fossil specimen home. I certainly have. Strictly speaking though, if you are taking fossils away then you do need permission from whoever owns the mineral rights to that land, which is usually (but not always) the landowner, and in that regard it doesn’t matter how small or commonplace the fossils are.
In practice though, seeking permission for everyone and everything is impossible to administer and so, generally speaking, small scale recreational fossil hunting of the kind described above, is tolerated. The Scottish Fossil Code is pretty good in that regard, promoting a pragmatic approach to amateur collecting, and implicitly acknowledging that a blanket ban on collecting fossils isn’t realistic or….to be frank….desirable. However, if fossils are particularly notable, large and/or they would need to be ‘cut’ away from the rock in order to extract them, then there are likely to be restrictions on fossil collecting. This is most definitely the case if they are located in any of Scotland’s 1423 Sites of Special Scientific Interest (SSSI) or anywhere protected by a Nature Conservation Order (such as parts of Skye), where you could be charged with an offence if it can be shown that you ‘intentionally or recklessly damaged the natural features’.
Information about collecting rocks and minerals is less easy to come by than for fossils, but from what I can tell the same rules apply. That being, that they are the property of whoever owns the mineral rights, and on paper at least that means you need their permission to remove them. But again, it seems to be tolerated provided it is being done responsibly and isn’t for commercial gain. Gold and silver however are ‘Mines Royal’ by virtue of the Royal Mines Act 1424, which means that the Crown owns the right to all naturally occurring gold and silver in Scotland, except in a few places where those rights were historically granted to someone else, such as in Sutherland.
In all instances of fossil / rock / mineral collection, common sense and personal responsibility have to come into play when something cannot be actively regulated or controlled on the ground. And in that sense I think most of us would know a line is being crossed if we find something that really stands out as extraordinary and would hopefully not only seek professional advice accordingly, but would let the landowner know too.
BEACHCOMBING
“Beachcombing involves the collection of small inanimate objects including the driftwood which has traditionally been used to light fires for picnics. Such objects must have been washed up by the sea, be of negligible value and capable of being carried away by hand. In addition, they must have been abandoned by their owner and therefore be ownerless but for the rule that such property belongs to the Crown” – Scottish Law Commission, 2003.
Beachcombing is a public right in Scotland and covers the foreshore, which is the area between the mean high and low spring tide marks on the beach. That means you can collect driftwood and natural objects like mermaid’s purses (shark and ray egg cases), and I’d assume that covers sea shells and stones too. That said, the Coast Protection Act seems to give folk, notably councils, the power to stop people from taking even a single pebble from a beach on the basis that the pebble contributes to coastal defence. There have been instances down south where this has actually happened, but the chances of anyone hunting you down for taking a pebble or two are slim. However, you’d clearly be on dodgy ground if you were to start filling sacks with stones or sand for your garden.
Big thanks to RSPB, SNH and Scottish Badgers for their speedy and helpful advice in compiling this article.