|We thought it was time to review where fungi law is currently. With Autumn fully upon us, and a plethora of various understandings being put about, I’ve attempted to summarize (with extensive notes below).|
The Theft Act 1968 makes it illegal to take fungi or plants from the wild for commercial purposes[*]. But the fines are low enough(£100-300) to be a wrist slap cost-of-doing-business for commercial foragers.
The Wildlife and Countryside Act 1981 makes it illegal to pick any rare (schedule 8 red data list) wild plant including fungi[†]. The CPS Guidance lists much stronger penalties, including up to £5k fine per item, six months jailtime, and forfeiture of vehicles used in the act or to transport goods[‡]. The same act makes it illegal to “uproot” any wild plant without authorisation, but there seems to be neither guidance nor history of prosecution for this.
Sites of Special Scientific Interest (SSSI) – both of the previous examples apply anywhere in the wild, the Wildlife and Countryside Act also provides extra protection for land designated as SSSI. This makes it an offence on SSSI land to “intentionally or recklessly destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which land is of special interest”[§]. The New Forest has one of the few SSSI designations that lists its fungi population as one of its special interest features. The downside of this is that very few prosecutions have been brought under this part of the act, although the fines up to £20k would make a very useful deterrent.
So technically, picking fungi on the New Forest SSSI without authorisation, is completely illegal, but under two less enforced portions of legislation. BUT Picking fungi for any commercial purpose, OR picking rare species for any purpose anywhere are both illegal and realistically arrestable, prosecutable offences.
The Forestry Commission byelaws make it an offence to do anything to a plant, and also lists as prohibited for removal “soil, turf, leafmould, moss, peat, gravel, slag, sands or minerals”[**], strangely this seems to omit fungi, but this is because fungi were originally within the definition of “plant”. The loophole was created when taxonomists reclassified fungi to a separate Kingdom. The Wildlife and Countryside Act and other primary legislation solve this with a codicil that defines their use of “plant” as inclusive of “fungi and algae”. The loophole should be closed in the Byelaws.
But for taxonomists and pedantry, it ought to be illegal in the FC Byelaws. It is due to the loophole that the FC last year publicly suggested that fungi foraging wasn’t strictly illegal, ignoring illegality under the W&C Act. Oddly enough, The Countryside and Rights of Way Act 2000 (CRoW), is widely perceived to have banned all foraging on the access land it created (not applicable to the Crown Lands); yet, it too has the same loophole, in that it prohibits taking of plants, but never explicitly includes fungi within that definition, and virtually all guidance you will find says that it does!
The National Trust Byelaws explicitly prohibit fungi foraging[††], the Wildlife Trusts prohibit on their Nature Reserves, and Epping Forest (whose model of enforcement we hoped to emulate) prohibits “Taking anything”, usefully all inclusive.
Natural England, under the Wildlife and Countryside Act, as modified by the NERC Act 2006, has powers to make Byelaws for SSSI land. However, these have yet to be exercised (saving for existing byelaws on certain National Nature Reserves), and only just this year have DEFRA and NE begun a consultation on how they might formulate such Byelaws. This could be used in future to protect the notified features of the New Forest SSSI, which would include fungi, and effectively cover their accidental exclusion from the FC Byelaws.
Personal use limit. 1.5kg – This was an amount suggest in FC publicity for many years. It has no legal basis, and came from a misreading of guidance, The Wild Mushroom Picker’s Code of Conduct. The Code suggested that amount for culinary forage as a per foray group total per visit, and should only be done with permission of the land owner/manager. The Code deemed culinary forage as inappropriate on SSSI and/or National Nature Reserves. The New Forest is both.
The supposed personal limit is moot and was never applicable, neither legally nor in guidance, on the Crown Lands, the New Forest SSSI. The appropriate limit is 0.
I would prefer a complete ban on the New Forest SSSI in recognition of the precious, delicate and under pressure habitat, that should be protected, not just by on paper designations. Foragers can go elsewhere, but our flora and fauna can’t. Those pretending they care for the environment, but arguing their entitlement to its harvest, regardless of its protections, are raiding the larder of a burning house.
That said, in one stakeholder meeting I suggested a practical measure for enforcement that would let those genuinely taking a small amount for personal use off the hook, whatever you could comfortably hold within your two cupped hands, surely enough for an omelette without waste.
|The Friends of the New Forest support the Forestry Commission’s “Look, Don’t Pick” policy for the New Forest SSSI under their stewardship. We would like to see the FC take a prosecution for picking of Red Data List species, which carries strong penalties capable of putting off commercial foragers.|
ADDENDUM and FOOTNOTES (for those with more will power)
Also worth noting the Forestry Commission’s powers and designations on Crown Lands:
NCC Consent 25 January 1988
The Nature Conservancy Council issued the following consent to the FC regarding the above operation:- “The collection of fungi as authorised by the Forestry Commission, subject to periodic review by the FC and the NCC.”
FC/Verderers/English Nature Declaration of Intent 25 July 1995
“The Forestry Commission will continue to manage the New Forest as an area with the status of a National Nature Reserve and to maintain the nature conservation interests for which it is designated under national and international legislation or agreements.”
|The Theft Act 1968 Section 4 “Property”.
(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.
This allows foraging activities for purely personal not any commercial use. Commercial use would include resale, but could be applied to those who run commercial foraging forays without permission of the landowner.
|Wildlife and Countryside Act 1981 Section 13 Protection of wild plants
(1)Subject to the provisions of this Part, if any person—
he shall be guilty of an offence.
(2)Subject to the provisions of this Part, if any person—
he shall be guilty of an offence.
Unfortunately, fungi are not terribly well served here. In fact, their inclusion in the act is a bit of an afterthought. This is in part due to the reclassification of fungi into their own kingdom in 1969. A codicil, section 71 subsection 2 “it is hereby declared that in this Act “plants” include fungi and algae.” was added to the bill in subsequent legislation, Natural Environment and Rural Communities Act 2006. (The NERC Act 2006 also established Natural England, and Section 41 species)
[‡] The Crown Prosecution Service does not seem interested in the SSSI related offences, their guidance on Wildlife Offences focusses on more straightforward criminality, mostly pertaining to offences in Sections 9 & 13.
Powers of Arrest, Search and Seizure
Under section 24(2) Police and Criminal Evidence Act, as amended by Schedule 12, paragraph 13 of the Countryside and Rights of Way Act, 2000 (the CROW Act,) the following are arrestable offences:
All offences under Part I WCA 1981 are summary only, except for offences under sections 14, 19ZA(7) and (8) which are either way. ….
Most offences are punishable on summary conviction by six month’s imprisonment and/or by a maximum fine of £5,000 (level 5). Where an offence is committed in respect of more than one bird, nest, egg etc the maximum fine shall be determined as if the person had been convicted of a separate offence in respect of each such item. See Section 21(5) WCA 1981.
Offences under section 14, 14A and 19 XB(4) are punishable on conviction on indictment to a term not exceeding two years imprisonment and/or a fine or both.
Powers of Forfeiture under WCA 1981 and generally
Wherever appropriate, courts should be reminded of their power to make such orders.
Under section 21(6)(a) WCA 1981 a court shall, following conviction for such an offence, order the forfeiture of any bird, egg, animal, plant etc in respect of which the offence was committed. Under s.21 (6) b a court may in the same circumstances order the forfeiture of any vehicle, animal, weapon or other thing used to commit the offence found in the offender’s possession. Forfeiture of a vehicle is often likely to be an effective means of deterring repeat offences relating, for example, to rare birds and eggs as well as of incapacitating an offender’s future ability to conduct such activities. ….
The Forfeiture guidelines are intriguing, adding a nice deterrent that in addition to the heavy fines for taking or selling Schedule 8 species, the vehicles used may be forfeited.
[§]Wildlife and Countryside Act 1981
|Section 28 Establishment of SSSI’s Provision P Offences
(6)A person (other than a section 28G authority acting in the exercise of its functions) who without reasonable excuse—
is guilty of an offence and is liable on summary conviction to a fine not exceeding £20,000 or on conviction on indictment to a fine.
Natural England is the statutory body which determines which features, flora and fauna are key to any given SSSI, these are called notified features as NE, when they designate a SSSI, are required to notify landowners of their obligations to the SSSI. On SSSI’s intentionally or recklessly destroying or damaging flora or fauna by reason of which land is of special interest is an offence under the Wildlife and Countryside Act 1981 Section 28 (P). Whether or not the fungi harvested is one of the notified species, the ancillary consequences of the activity of foraging, including trampling and disturbance may be covered by this as well. Hefty penalties invoked here may give prosecutions considerable bite.
|The Forestry Commission Byelaws 1982
No person shall in or on the lands of the Commissioners:
(vii) dig up, remove, cut or injure any tree, shrub or plant, whether living or not, or remove the seeds therefrom, or dig up or remove any soil, turf, leafmould, moss, peat, gravel, slag, sands or minerals of any kind;
The Forestry Commission byelaws list prohibited substances for removal which includes “plants” which may ambiguously refer to fungi (if we take into account inclusive definitions in Primary Legislation). It may be worth removing this ambiguity by either seeking an inclusive interpretation of the existing byelaw – after all, it is likely that the original byelaws were drafted before fungi were reclassified, and it seems stingy when your list includes soil, turf, leafmold, moss and peat, to insist that plant does not include fungi. Otherwise we could petition the FC to amend the byelaw, this is a long game move, though, and would take as much as five to ten years.
[††]National Trust Byelaws 1965
|Soil and Vegetation
2. (a) No unauthorised person shall dig, cut or take turf, sods, gravel, sand, clay or any other substance on or from Trust Property.
(b) No unauthorised person shall dig up or remove, cut, fell, pluck or injure any flowers, plants, fungi, moss, ferns, shrubs, trees or other vegetation growing on Trust Property or remove any seeds thereof or injure any grass or climb any tree.
The National Trust Byelaws are quite clear, and here in the New Forest they have had to be vocal as they’ve had incidents, such as when their own organized educational fungi walk on one of the Northern Commons under their managagement could find none as the area had been stripped by commercial foragers.