New binding guidance issued on the UK prohibition on dealing in elephant ivory from June 2022

From 6 June 2022, dealing in elephant ivory will be prohibited in the UK under the Ivory Act 2018 (the “Act”) unless the ivory item being dealt has a registered or certified exemption.

“Dealing” in this context includes buying, selling, hiring (and offering or arranging to do any of those things), keeping for sale or hire, exporting for sale or hire and importing for sale and hire. The only items that are exempt from the prohibition are:

• pre-1918 items of outstandingly high artistic, cultural or historical value;
• musical instruments made before 1975 with less than 20% ivory by volume;
• items made before 3 March 1947 with less than 10% ivory by volume;
• portrait miniatures made before 1918 with a surface area smaller than 320 square cm; and
• items that a qualifying museum intends to buy or hire.

Under the Act, it is an offence to breach the prohibition, to cause the prohibition to be breached or to facilitate a breach of the prohibition. However, it is a defence for a person charged with an offence to prove that they took all reasonable precautions and exercised all due diligence to avoid committing the offence. No guidance has been given on the level of precaution and due diligence needed to rely on this defence, but the use of “all” suggests that a high standard is envisaged.

On 21 March 2022, DEFRA published statutory guidance detailing the framework for enforcing the prohibition on dealing with ivory under the Act and sanctioning those that do so. Guidance detailing the prohibition and the exemptions was published in February 2022.

The Statutory Guidance

1. Administration of enforcement and sanctionsThe imposition of civil sanctions and the grant of exemption certificates will be dealt with by the Animal and Plant Health Agency (“APHA”).
2. Civil sanctions or criminal proceedings?The more serious the offence, the more likely that APHA will bring criminal proceedings against those dealing in ivory. Criminal penalties may result in £250,000 fine or up to 5 years imprisonment. Less serious offences are more likely to lead to the imposition of civil sanctions. Non-exhaustive factors that indicate the seriousness of an offence are set out below.Additionally, APHA may consider any of the following aspects before deciding whether to initiate criminal proceedings:

• the impact or potential impact the offence has on the environment, people or animals;
• the offenders response to previous advice and guidance; and
• how much the offender has benefitted, financial or otherwise.

Minor breaches that can be easily rectified may result in an advisory warning (orally or in writing). This would not prevent the offender facing civil sanctions or criminal proceedings in the future for the same minor breach or if later evidence showed the breach was more serious than first assumed.

The guidance confirms that where offences involve multiple parties (e.g. a buyer and a seller), each person’s involvement will be considered in isolation and the relevant civil sanctions or criminal proceedings may differ for each party.

• Civil sanctions

The Act sets out three civil sanctions: enforcement undertakings, stop notices and monetary penalties up to £250,000. The civil sanction issued will depend on the seriousness, circumstances, nature (type, intent and scale) and impact of the offence and what can be done to rectify it.

Enforcement undertakings

An enforcement undertaking is an agreement between APHA and a potential offender in which it is agreed that the potential offender stops committing an offence, restores what would have been if the offence had not been committed and prevents a repetition of the offence. APHA may offer an enforcement undertaking but any person under investigation may propose their own enforcement undertaking.

Any party providing and complying with an enforcement undertaking will not face a monetary penalty or a criminal conviction.

APHA have discretion to either accept or reject any proposal. In exercising that discretion, APHA will decide whether:

• the proposal includes enough detail about the offence and any actions to stop the offence;
• the specified time period and proposed enforcement undertaking is proportionate, appropriate and achievable, considering the nature, seriousness and circumstances of the offence;
• to accept a counter-proposal or to make a counter-proposal depending on any willingness to accept any counter-proposal;
• the proposal is made as an early and proactive response to the offence;
• the undertaking is proportionate taking any previous non-compliance under the Act, including previous civil sanctions or prosecution into consideration;
• there is evidence of a positive commitment to the proposed actions and, in the case of a business, whether this commitment is evident at an appropriate level of the business;
• it is likely the commitment will be met, considering the undertaking proposal and information from any other source;
• actions proposed in order to address the breach appear adequate to secure that the offence does not continue;
• actions proposed to prevent future offending (where this is relevant) are adequate; and
• actions proposed are adequate to restore the position as far as possible to what it would have been if the offence had not been committed.

Stop notices

A stop notice prohibits the carrying on a particular activity that APHA reasonably believes involves (or is likely to involve) an offence.

Monetary penalties

A monetary penalty is a requirement to pay up to £250,000 and may be appropriate where civil sanctions previously imposed have failed to secure compliance.

APHA may impose a monetary penalty when satisfied beyond reasonable doubt that an offence has been committed and the amount of the proposed penalty appropriately reflect the financial benefit gained in the commission of the offence.

APHA will determine the value of the penalty based on the impact of the offence, what is needed to deter future offending, the ivory item’s value and the value of financial gain. This figure will be reasonable and proportionate based on the nature, seriousness and circumstances of the offence.

A feature of the procedure for imposing a monetary penalty is known as the “opportunity to discharge liability”. Before a monetary penalty is imposed, an offender will be served with a proposal notice which will set out, among other things, the option of making a discharge payment to remove the offender’s liability for the monetary payment.

Comment

The Act came about following a 2017 consultation on proposals to ban ivory sales in the UK to help bring an end to elephant poaching, which is driven primarily by consumer demand for ivory and speculative acquisition of ivory items. The aim is to reduce poaching, through significantly limiting the legal market for ivory items in the UK. It is the responsibility of anyone intending to be involved in a sale or purchase of an ivory item to find out if the item contains or is made of elephant ivory. If the item does contain or is made of ivory, it will be assumed to be elephant ivory unless it can be proved otherwise. The new prohibitions and duties under the Act should be factored into contractual arrangements and training and due diligence processes reviewed to ensure that they take account of all appropriate steps. Whilst parties should familiarise themselves with the enforcement regime, all will be aware of the real risk of significant reputational harm in the event that the requirements under the Act are not followed.