Recent weeks have seen a number of stories about the ivory and rhino horn trades, which shine a spotlight on the issue of wildlife crime.
As pressure continues to build on the UK government to follow China’s lead and introduce a blanket ban on the commercial trade in elephant ivory, the BBC’s Antiques Roadshow is also considering whether to stop showing items made of ivory on its programme. This issue continues to attract significant attention as activists seek to raise awareness about the slaughter of elephants for their tusks, and the contribution this makes to the decimation of their numbers in the wild. Though trading of new and unworked ivory has been illegal in the UK for many years, trade in “worked” pieces is allowed if proper certificates are obtained, and worked pieces made prior to 1947 may be traded with no certification. Activists say that allowing some trade in old ivory means that newer ivory can be passed off as old, and effectively laundered so that it may enter the system and continue to be profitable. A government consultation on the issue closed on 29 December 2017 and a decision is awaited.
In the same week, it has been reported that a database of rhino DNA has been developed to help prosecute poachers. By mapping the rhino DNA genome, scientists are now able to definitively match rhino horns to the carcass from which they came, allowing them to demonstrate that the horn came from a poached rhino. The system is known as RhoDIS (Rhinoceros DNA index system). According to the reports, so far more than 120 criminal investigations have included genetic evidence, though it is not clear in which countries these have taken place and to what extent the DNA matching has helped to secure convictions. Nevertheless, the increased likelihood of being able to link horn to poached animals seems capable of having a deterrent effect in jurisdictions where that link is key to a successful prosecution.
Position in the UK
It’s easy to think that criminal prosecutions would occur primarily in the jurisdictions where the poaching takes place, and those of the end users (rhino horn in particular is in high demand in Asia, where it is used to make traditional medicines). However, the high demand and the rarity of the products make the trade in illegal horn and ivory very lucrative (it is commonly reported that the price of rhino horn is higher per kilogram than that of gold or cocaine) and trading in ivory and rhino horn is now considered a form of organised crime. And, as with much organised crime, the grisly proceeds of poaching may travel through or end up in the UK.
An example is the case of Abbas Allawi, who in November 2017 was jailed for 14 months when rhino horn and elephant ivory worth up to £2m on the black market was found in his attic. He had been advertising the horn for sale on Instagram and the search, interestingly, used sniffer dogs trained to scent rhino horn.
In addition, as old ivory may be passed off as new, those selling antiques and other types of worked ivory may also find themselves falling foul of the law if they do not adhere to certain regulations. We have experience of representing those who have been charged and prosecuted for these types of offences. One of the problems for legitimate traders is that confirming the exact source of a particular product and whether for example a licence generated in another jurisdiction is legitimate and even if genuine whether it relates to that particular specimen. The legislation is labyrinthine and can catch even those with the best intentions.
Criminal offences for ivory and horn trading in the UK
The instrument which governs trade in endangered species around the world is the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), to which the EU and all its member states are signatories. There are two EU Regulations which enact CITES, the “Principal Regulation” being No 338/997, “on the protection of species of wild fauna and flora by regulating trade therein”. The Principal Regulation has direct effect in EU states. In addition the UK has legislation providing for the enforcement of the Principal Regulation, the Control of Trade in Endangered Species (Enforcement) Regulations 1997 (“COTES”).
Where some trade is allowed, it is necessary to obtain permits and licenses as stipulated in CITES and COTES. These are issued by the Animal Plant and Health Agency (APHA) in the UK.
Section 8 of the Regulations makes it an offence for a person, without the appropriate certificates, to purchase, offer to purchase, acquire for commercial purposes, display to the public for commercial purposes, use for commercial gain, sell, keep for sale, offer for sale or transport for sale any specimen of a species listed in Annex A to the Principal Regulation. Annex A includes rhinos and elephants.
Article 8(3) of the Principal Regulation provides that exemption may be sought under the prohibitions by issuance of a certificate (by the AHPA in the UK). Article 62 of EC Regulation 865/2006 provides that no certificate is required for ivory worked more than 50 years prior to 1997.
In addition to these exemptions (and some others not covered here) it is a defence to prove that at the time of the offence the person accused had no reason to believe that the specimen belonged to an Annex A or B species (as relevant). A similar provision applies to Annex B species, and has a slightly wider set of defences, which include taking steps to check the provenance of specimens at the time of receiving them.
Offences under section 8 carry a maximum sentence of two years’ imprisonment and/or an unlimited fine.
There are also various offences related to permits set out in the Regulations, for example, knowingly or recklessly making false statements in relation to permits (section 3) or falsifying and altering permits (section 4).
Are either of these developments likely to lead to an increase in UK prosecutions?
Given that most trade in rhino horn is prohibited in the UK, anyone attempting to sell would be caught by the law without the need to prove the horn was poached. However, rhino DNA mapping seems to be having an impact elsewhere.
The position with ivory is slightly different, and in fact it is partly because another scientific technique, carbon dating, is not a sufficiently accurate tool with which to date ivory to pre or post 1947, that enforcement of the current regime is difficult and further steps are required. It is not yet clear what the government will decide following its consultation on the outright ban but there has reportedly been a massive public response to the government consultation, largely in support of a ban.
The government proposal is that there will be an outright prohibition on ivory sales within the UK, and imports and exports of ivory for sale to or from the UK, with a few limited exemptions (e.g. sale of musical instruments containing ivory). The government says this should make enforcement more straightforward as there is no need to date the item. It would instead be assumed that an item of ivory advertised for sale is illegal and it is proposed that it would be the responsibility of the person selling it to demonstrate that it falls within one of the exemptions.
It is not clear yet how the new rules will be enforced (how to do this was one of the consultation questions). It is to be hoped in any event that these initiatives and others may lead to a reduction in the loss of animals to poaching.