Oil Leak 185 EPS – part 6

Carry on our series on EPS disturbance – here is more from the Marine Scotland Guidance

1.2.5 What constitutes deliberate disturbance?
Article 12(1)(b) of the Habitats Directive has been considered by the European Court of Justice.

The Commission Guidance (paragraph 33) therefore proposes the following definition:

‘Deliberate’ actions are to be understood as actions by a person who knows, in light of the relevant legislation that applies to the species involved, and the general information delivered to the public, that his action will most likely lead to an offence against a species, but intends this offence or, if not, consciously accepts the foreseeable results of his action. It goes without saying that negligence is not included in the meaning of ‘deliberate’.

Put more simply, a deliberate disturbance is an intentional act knowing that it will or may have a particular consequence, namely disturbance of the relevant protected species. So, anyone carrying out certain activities which they consider likely to cause disturbance of cetaceans could very well be committing an offence under the Habitats Regulations.

1.2.6 What constitutes reckless disturbance?
There is considerable case law on what constitutes ‘recklessness’ and ultimately only a court can definitively decide whether a particular action was reckless. Recklessness would appear to arise:

  • –  if a person was aware of the likelihood that disturbance would result from his actions, but proceeded with the action with gross indifference as to its consequences; or
  • –  if a person undertook an action in circumstances where any reasonable person could be expected to have foreseen the potential for disturbance but proceeded without regard to the consequences.The definitions of ‘deliberate’ and ‘reckless’ outlined here apply equally to the offences of deliberate and reckless injury and deliberate and reckless killing of EPS.

So – it could be argued, that given that the issue of potentially disturbing an EPS has been highlighted to the CFPA, that by continuing with the plans for STS, they would be undertaking deliberate disturbance. Their only defence against that is to obtain an EPS license which gives them permission to undertake an activity that would otherwise be deemed illegal – i.e. disturbing an EPS. The Scottish Government issue such a licence, on the advice of SNH. They have the power to stop this.