As a result of our discussions around Larsen traps and killing magpies, Malcolm Watson wrote to the Scottish Office for clarification. He received the following detailed reply.
The control of “pest species” such as magpies and other corvids is governed by a series of general licences issued under Section 16 of the Wildlife and Countryside Act 1981 (“the Act”). Use of Larsen traps as a method of capturing birds is also regulated by a general licence.
As you will be aware, all wild birds are protected under the Act. It is therefore an offence to kill, take, injure etc. any wild bird. Having established this fundamental principle, the Act then allows for exceptions to be made in certain specific circumstances. The Section 16 licences represent one means of “derogating” from the universal prohibition on killing, taking or injuring a wild bird.
Such licences may be issued for a wide range of reasons, ranging from agricultural pest control and preservation of aircraft safety to scientific research. A licence to disturb birds would also be necessary for an activity such as wildlife photography, if it were intended to approach close to the nest site of one of the rarer species listed on Schedule 1 of the Act, since disturbance of such species on or near an active nest is an offence.
One of the purposes for which a licence may be issued is “conserving wild birds” – given in Section 16(1)(c). A general licence (ref SEGEN/09) has indeed been issued by the Scottish Executive for this purpose and I attach, for your information, a PDF file showing the licence.
Use of the licence to control magpies does however presuppose that the person taking the action has established that magpies in the locality in question are having a directly negative effect on the conservation of wild birds. This amounts to rather more than just the belief that magpies may be disturbing small birds on peanut feeders. Thus, it might be the case that predation of eggs and chicks by magpies is locally significant in a particular area during the breeding season, especially where the locality in question offers limited cover for small birds and nests are easily discovered and robbed. In such circumstances it may well be arguable that control of magpies would be “for the purpose of conserving wild birds”.
But the licence is specific in its intent. It does not amount to the authorisation of a general “open season” for magpies or any of the other birds listed. Control of the birds must be shown to be for the particular purpose stated in the licence and the licence does not cover actions which may be taken for any other reason. This can perhaps best be illustrated by pointing out that shooting magpies simply for sport, rather than for the particular purpose of conserving wild birds (or one of the other purposes for which a general licence has been issued), is not covered by the licence and therefore remains a criminal offence.
Having established that action to take or kill a species such as the magpie is indeed justified under a relevant Section 16 licence, it may well be that a Larsen trap is the most appropriate method to employ. Larsen traps are licensed separately, and additionally, under licence SEGEN/01 because the dimensions of a typical Larsen trap do not meet the prescriptions set out in Section 8(1) of the Act. This makes it an offence to confine any bird in a cage of such a size that it is unable to stretch its wings freely. Without the existence of the relevant general licence it would therefore be an offence to use a decoy bird in a Larsen trap or indeed capture any wild bird in such a trap. Larsen traps may only be used for members of the corvid family and the permitted species are listed on the licence. ....
Ultimately then, the answer to your question is that yes, anyone can in theory build and place a Larsen trap. No individual licence is required, since a general licence exists.
But, the trap may only be used by an “authorised person” (generally the owner/occupier or someone acting on their instructions) and the trap must only be used for the explicit purpose stated on the relevant general licences. Any person deploying a trap should therefore, before taking any action, consider carefully how they would justify their actions if, for example, questioned on the matter by a police officer. They should only set such a trap if they are fully satisfied that they are acting entirely within the parameters of the licence and are satisfied that, in the event of any complaint or dispute, they can clearly demonstrate that their actions are lawful. They must also abide by the conditions set out in the licence which relate to the welfare of any decoy bird. It is also important to note that the general licences do not absolve the authorised person of the need to comply in full with legislation prohibiting cruel or inhumane acts.
I hope the above is helpful and answers your query in reasonable detail.