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Suppression vs reporting; birders’ obligations during lockdown.

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Old Saturday 4th April 2020, 13:41   #51
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Turning water in to whine...................
And those policemen are breaking the 2 metre rule as well


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Old Saturday 4th April 2020, 14:22   #52
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I think you will find that the police already have most of these powers under PACE - the additional powers (ie temporary emergency powers) are provided for in the Coronavirus Act,2020 ie in relation to police enforcing government and Dept of Health advice/policy.

Statutory instruments are widely used in situations where immediate action is required (since they don’t suffer the tedium of passage through Parliament) as such, they are often drafted in a hurry ( and not intended to be necessarily read as fait accompli but rather to embrace the flexibility for Ministerial discretionary powers). This makes S.I.s ideal for use in changing day to day events that the parent Act can’t legislate for. Unfortunately, as such, they are not characterised by (nor subject to) the same degree of legal ‘certainty’ as the enabling or parent statutes. (Of course the latter, often equally poorly drafted, are the work of Parliamentary Counsel/the Law Commission, so not drafted by politicians)
Here is the Act......

http://www.legislation.gov.uk/ukpga/...ntents/enacted

Here is the Statutory Instrument:-

http://www.legislation.gov.uk/uksi/2020/350/made

I confess for the second time in this thread your statements of legal opinion and the confidence with which you have expressed them - previously the manner in which public policy would be implied so strongly into contractual arrangements - has surprised me a great deal. I may be missing something but you may or may not have seen Lord Sumption's comments - https://www.theguardian.com/world/20...ceful-policing - which match my own on what the police powers are though differ on what I believe they should be!

I may be missing something obvious and I have certainly disagreed with his handling of some cases both as a judge and formerly when he was a barrister but I have messed around in the law for a quarter of a century so have some track record - though in respect of civil rather than criminal matters.

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Old Saturday 4th April 2020, 17:52   #53
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I confess for the second time in this thread your statements of legal opinion and the confidence with which you have expressed them - previously the manner in which public policy would be implied so strongly into contractual arrangements - has surprised me a great deal
I think you have misunderstood me in both incidents -(or I am happy to take responsibility if I wasn’t clear)

Re. contractual/civil claims and public interest/policy - as you know, I was referring specifically to the floodgates principal often cited by the judiciary in civil suits - there are many precedents for claims being upheld or denied for public policy reasons. In this incidence, I was offering no ‘legal opinion’ (and in fact qualified it with it having been a long time since I worked in a legal environment/studied law ) but offering up rather a possiblereason why in a potential claim against the rare bird news organisations for partial withdrawal of service (since someone asked) mightbe seen as having no merit on the grounds of public policy interest since there have been suspension of contracts on a massive scale since the UK restrictions came in.
https://en.wikipedia.org/wiki/Floodgates_principle

This other point has nothing to do with ‘legal opinions’ its high school politics about how legislation is drafted:

As far as legislation is concerned, you made a general comment vis a vis politicians draft poor legislation- I was simply clarifying that they do not draft statutory law/Acts of Parliament, my point being those can be equally poorly drafted, especially when brought into force as a knee jerk reaction or just in a hurry (eg The Paternity Law and Dangerous Dog Act (s) spring to mind).

I’ve read the Act too, which give police (and immigration officers) powers of arrest for those believed to be infected by c19 and powers relating to premises, gatherings, events etc - temporary powers but enshrined in law for the next 24 mnths (I believe). Note also PACE and amendments Section 34 (as referenced in SI)

http://www.legislation.gov.uk/ukpga/1984/60/section/24

Please note too I said ‘most’ police powers of arrest/public order are already enshrined in Law, the Home Secretary, I did not disagree, has extended the application of these powers to enforce the Health and Safety policy using his Ministerial powers in SIs - the new incidences to which police can bring powers of enforcement are laid out (not very difinitively!) in the SI regs

As for the way the police are exercising the powers they have been granted - let me be clear at no time have I said they are not going beyond their legimate powers in the way some of the situations have been handled - I made no claim that these oversteps were enshrined in law in primary or secondary legislation, again, maybe this wasnt clear in my earlier comments - I have recently had personal experience/contact with the police over a non-related issue and it was quite clear there was no reasonable level of comprehension of what rules have been imposed or how far they were supposed to go to enforce them. I totally agree this sets a very dangerous precedent and most certainly the police in some situations are over-reaching in a way that is very disturbing.

Apologies for going off topic! Lets get back to the mundane is suppression a good thing or a bad thing - so I guess it will probably be a lottery depending on where you live, whether you will be arrested for twitching this weekend
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Old Saturday 4th April 2020, 20:14   #54
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Yeah, picking holes in the legislation is easy. Still can't really get away with saying the law was so poorly drafted, you just had to do the stupid thing.

First post by the way, was bored enough to finally register!

Anyway, how is this even a question? Of course a putting out news of an accessible mega is going to encourage other birders to travel from all over and gather one place. We've all seen how badly some numpties behave when things are normal, and who's going to properly social distance when you need your scope in just the right spot?
Meanwhile NHS staff are putting in 48 hour shifts and some of them, very sadly dying of this infection.

Still, good luck to any muppets who do twitch, explaining how ticking an iberian chiffchaff made their journey essential should entertain the police.
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Old Saturday 4th April 2020, 21:29   #55
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DB

Whilst we may be disagreeing on legal niceties (and you appear to be conflating various bits of tort and contract law to me - this really is my bag you know - 25 years at the coal face, Court of Appeal twice - one on contract & one on tort, etc), I suspect we are violently agreeing on the important thing and that's we would like to see stronger clearer prohibitions.

I'll continue to hold politicians responsible for legislation including Statutory Instruments and in particular the Secretary of State for laying down this one in its inadequate form. Sadly, you do not need to pick holes in the Statutory Instrument, the holes are that big you can literally drive through them.

The attached is an interesting read though tangential.

In the meantime, I need American Herring Gull for Britain and I do not have the slightest interest in it despite the fact that it wasn't suppressed. I am unaware that anyone has twitched anything by any proper definition and I would be surprised if anyone tried to see an Iberian Chiffchaff that wasn't.

All the best

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File Type: pdf uksiem_20200129_en (1).pdf (43.3 KB, 4 views)
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Old Saturday 4th April 2020, 23:25   #56
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I'll continue to hold politicians responsible for legislation including Statutory Instruments and in particular the Secretary of State for laying down this one in its inadequate form. Sadly, you do not need to pick holes in the Statutory Instrument, the holes are that big you can literally drive through them

Paul

Just to be clear though vis a vis politicians and legislation- my comments were in regard to Statute Law (as opposed to statutory instruments) and were specifically in response to you saying politicians drafted legislation not as you are saying now responsible for - this is an important difference when one is making general remarks about the ineptitude of politicians in ‘drafting’ legislation as people might assume Politicians draft the Acts of Parliament too. Of course our elected representatives in Parliament are ‘responsible’ - this is one of the foundations of democracy!

I have also had an equal amount of relevant experience in the political arena as you have as a legal practitioner in the past 20 years (and some background in Law) so also stand by my comments regarding the political process of legislation and source of police powers in all of this (check out Section 24 PACE 1984 and Section 9 (7) of the Regulations)

Anyway good luck today everyone if you are recording for the Great Back Yard Watch - resist ye all temptation

Of course Ignorantia juris non excusat if my Latin serves me well but perhaps in this case it might be !
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Old Sunday 5th April 2020, 06:28   #57
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I'm just going outside for a bit.





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Old Sunday 5th April 2020, 06:58   #58
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I'm just going outside for a bit.
Take a book and enjoy - btw This not the first or even the second time you have made a comment to the effect that my posts are not welcome on a thread either due to their length or content - instead of unhelpful sarcastic jabs at my posts why don’t you just block them? (Or just go and watch tv or something )

from another thread
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The
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Read all this too you know
There are other examples but apologies if your comment on this occasion had absolutely nothing to do my preceding comment.
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Old Sunday 5th April 2020, 07:02   #59
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The main alert platforms in Netherlands don't mention rarities since a few weeks to prevent birders' gatherings and unnecessary travel. But I'm sure on app and facebook groups rarities are shared. I don't belong to any of those, working fulltime, can't train travel, so I'm just staying put having a boring spring while I wanted to make a hell of a year list this time around. Well, better next year.
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Old Sunday 5th April 2020, 07:34   #60
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Well it's like all the guys you see with the cycling gear on; you're not telling me they get kitted out in all that just to be out an hour. I live on a route to the Yorkshire Dales and they come past early doors; out for a day's cycling I'm sure.
In France, apparently, you are only allowed out on a bike if its your only mode of transport - ie you have no car.

You are allowed to exercise once a day for one hour - but you must stay within a 1km radius of your home.

Each time you go out you must fill in a piece of paper with the reason you are outside, timed dated signed.

With regards to the specific question I love seeing the news of birds that have been seen regardless of how juicy the sightings are - the juicier the better. People should be intelligent enough to know the rules and the consequences if they don't follow them. Twitching would never be considered essential travel.

That said I detoured to see the Ring Necked Duck in Portugal. On my second visit which was after the official lock down I even ticked Iberian Chiffchaff - a real one. Now in our defence we were south of the river anyway and went to a secluded area for a walk - away from the crowds. The route home, without detour, took us passed the roadside site. I could have few complaints if I had been stopped and fined... There are a number of defences - we felt less at risk by being in a secluded area being the main one. Given the gravity as the virus spreads it becomes more and more selfish and inexcusable...
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Old Sunday 5th April 2020, 09:03   #61
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Take a book and enjoy - btw This not the first or even the second time you have made a comment to the effect that my posts are not welcome on a thread either due to their length or content - instead of unhelpful sarcastic jabs at my posts why don’t you just block them? (Or just go and watch tv or something
Oh dear. Sorry if it seems that way - that wasn't the intent at all, I can honestly say that I've never intentionally dismissed your posts or thought they weren't welcome.

(The banter between you and Paul was interesting(!), but hey. (And I've said myself on threads that it is all a mess.)

Smiley added to post above.
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Old Sunday 5th April 2020, 09:10   #62
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Just back from a couple of hours perambulation (didn't meet any policemen, politicians or even lawyers (that I was aware of )).

I'm not really a morning person, but the roads and footpaths were eerily quiet at the unearthly hour of 7:50 when I left the house. Two dog walkers, one jogger, and a few cars was about it. No BBRC rares to keep quiet about either unfortunately.
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Old Sunday 5th April 2020, 09:11   #63
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Rosbifs - this article talks about how the French regulations have tightened - https://amp.theguardian.com/world/20...ws-police-warn

DB - Statutory Instrument came into force at 1.00pm on 26.03.20 (para 1(1)) & reviewed at least every 21 days with the first review by 16.04.20 (para 3(2)). I am not expecting a tightening or clarification in the same way as France and I'm not expecting to be out for my wife's birthday on 17th April and buying a present is definitely not 'essential'. I hope that I am wrong. Not on the present but on the tightening. I would like to see it tightened.

Stay safe all
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Old Sunday 5th April 2020, 09:20   #64
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I have been controlled twice on trips out.

At the same time the police station is opposite me. There are 6? attached houses. Their kids are playing together all the time - football, basketball, bikes etc and all the police got together outside for a bbq yesterday...
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Old Sunday 5th April 2020, 09:33   #65
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DB - Statutory Instrument came into force at 1.00pm on 26.03.20 (para 1(1)) & reviewed at least every 21 days with the first review by 16.04.20 (para 3(2)).
Thanks I realised that - The PACE amendment also is concurrently enacted - Section 24 the police powers of summary arrests now includes in para (5) Public Order and Department of Health offences as outlined in the SI (para 9 (6)) - and of course, even more worrying, the power to detain anyone suspected of being infected (under the Coronavirus Act 2020) so don’t cough if there’s a copper around!

Nothing of note yet from anyone re. interesting sightings/rarities? The suppression argument may end up for me at least being an ‘academic’ one only unfortunately.
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Old Sunday 5th April 2020, 09:51   #66
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Take a book and enjoy - btw This not the first or even the second time you have made a comment to the effect that my posts are not welcome on a thread either due to their length or content - instead of unhelpful sarcastic jabs at my posts why don’t you just block them? (Or just go and watch tv or something )
Your response is harsh and unfair. dantheman posted some 7 hours after your post that you incorrectly and negatively reacted to. He only said he was going out this morning that's all, nothing else as he's explained. A phrase us Southerners, Bobbies on the beat and others use that is succinct is, " Wind you're neck in!". If you think that is rude, and are unwilling to absorb the thought , (not an attack), then please block me. The correct action would be to apologise to dantheman by a PM.

Thanks.
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Old Sunday 5th April 2020, 10:32   #67
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Just back from a couple of hours perambulation (didn't meet any policemen, politicians or even lawyers (that I was aware of )).

I'm not really a morning person, but the roads and footpaths were eerily quiet at the unearthly hour of 7:50 when I left the house. Two dog walkers, one jogger, and a few cars was about it. No BBRC rares to keep quiet about either unfortunately.
So basically, restrictions are just for the rest of us are they, you're ignoring them and telling us all you're doing it............?
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Old Sunday 5th April 2020, 11:32   #68
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So basically, restrictions are just for the rest of us are they, you're ignoring them and telling us all you're doing it............?
First time been out for a few days, on foot and didn't come within yards of anyone else. Can't seem to find any guidance on how long you can/should stay out on eg the Gov.uk website. Wouldn't dream of going twitching or anything similarly frivolous.
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Old Sunday 5th April 2020, 11:47   #69
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First time been out for a few days, on foot and didn't come within yards of anyone else. Can't seem to find any guidance on how long you can/should stay out on eg the Gov.uk website. Wouldn't dream of going twitching or anything similarly frivolous.
Agreed. Whilst several cabinet ministers have at various times made references to limiting exercise to one hour a day, the official guidance makes no mention of how long you can exercise for.
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Old Sunday 5th April 2020, 11:56   #70
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The Jersey government has issued guidance that we can leave our homes to exercise or get fresh air for a maximum of 2 hours once per day, so long as we maintain a 2m gap from other people. We are expressly permitted to drive to a location to do so, the return journey being included in the 2 hour maximum. Surprisingly sensible for our authorities.
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Old Sunday 5th April 2020, 13:59   #71
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The Jersey government has issued guidance that we can leave our homes to exercise or get fresh air for a maximum of 2 hours once per day, so long as we maintain a 2m gap from other people. We are expressly permitted to drive to a location to do so, the return journey being included in the 2 hour maximum. Surprisingly sensible for our authorities.
Whilst the Scottish government adopt a 'do as I say, not what I do' attitude, priceless.

https://www.bbc.co.uk/news/uk-scotland-52171694
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Old Sunday 5th April 2020, 15:00   #72
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It’s been really interesting seeing everyone’s take on this, with the expected range of views, very well expressed.

Thank you to Paul & Deb for the legal stuff, not that I’ve waded through it in any greet detail, I fear my grasp on the legal finer points is every bit as vague as that of any Secretary of State. Although, while I couldn’t possibly say where the precise demarcation between essential and non-essential travel lies, I think I can still clearly see that certain things lie beyond it, which has stopped me from going anywhere at all by car for nearly two weeks now. (I haven’t even been shopping, the missus reckons she is temperamentally better suited to doing the weekly shop in the current conditions than I am, and who am I to argue.)

A certain amount has been said on responsibility, so I though I would offer my take. Responsibility is not a zero sum game. If I were to release news of a rarity then any birder turning up to it, particularly by car, is entirely responsible for his or her decision to do so. But also, I am entirely responsible for creating the circumstances for their decision to twitch. My responsibility is in no way lessened by the recognition of theirs. I’ve been birding a wee while now, been on a few twitches, met some twitchers. If I broadcast the news that there is a big rarity, and as a result 40 or 50 people turn up for it the following morning, I cannot in all honestly say “I had no idea that would happen”. A more appropriate comment would be “yeah, thought that might happen”. Whether their actions do or don’t contravene the current stipulations (they do, in my opinion), they certainly run the risk of spreading the virus. A very, very small risk, some might say, but a deadly one, and if fatalities occurred as a result of their actions that would be my fault. Their fault too, but undisputedly mine.

So how about this; someone finds a biggy on your local patch and, following the rationale outlined above, supresses it. What is your response? Disappointment for sure, probably anger, but would it be anger at the situation you were in? Or anger at the birder in question? Are rarity finders that take the tough but, in my view, responsible decision to keep news quiet going to find themselves ostracised? Trolled and abused online? Harassed and abused out in the field? This might seem melodramatic, but someone, somewhere, in the next few weeks, is going to have to make this kind of decision. If my (walking distance) local patch were a west country headland, or some east Anglian backwater, or a stretch of scrubby east coast (rather than a small dead gravel pit and flooded field corner in north east Wales) then these questions would certainly be exercising me right now.
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Old Sunday 5th April 2020, 15:26   #73
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It’s been really interesting seeing everyone’s take on this, with the expected range of views, very well expressed.

So how about this; someone finds a biggy on your local patch and, following the rationale outlined above, supresses it. What is your response? Disappointment for sure, probably anger, but would it be anger at the situation you were in? Or anger at the birder in question? Are rarity finders that take the tough but, in my view, responsible decision to keep news quiet going to find themselves ostracised? Trolled and abused online? Harassed and abused out in the field? This might seem melodramatic, but someone, somewhere, in the next few weeks, is going to have to make this kind of decision. If my (walking distance) local patch were a west country headland, or some east Anglian backwater, or a stretch of scrubby east coast (rather than a small dead gravel pit and flooded field corner in north east Wales) then these questions would certainly be exercising me right now.
Almost certainly as the result of not sticking to the rules if they do.

Some people are just coming up with bespoke, interpretations of the rules, tailored to excuse them of any responsibility whilst doing just as they please.
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Old Sunday 5th April 2020, 15:37   #74
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The Jersey government has issued guidance that we can leave our homes to exercise or get fresh air for a maximum of 2 hours once per day, so long as we maintain a 2m gap from other people. We are expressly permitted to drive to a location to do so, the return journey being included in the 2 hour maximum. Surprisingly sensible for our authorities.
How long does it take to drive round Jersey?

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Old Sunday 5th April 2020, 15:55   #75
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It’s been really interesting seeing everyone’s take on this, with the expected range of views, very well expressed.

Thank you to Paul & Deb for the legal stuff, not that I’ve waded through it in any greet detail, I fear my grasp on the legal finer points is every bit as vague as that of any Secretary of State. Although, while I couldn’t possibly say where the precise demarcation between essential and non-essential travel lies, I think I can still clearly see that certain things lie beyond it, which has stopped me from going anywhere at all by car for nearly two weeks now. (I haven’t even been shopping, the missus reckons she is temperamentally better suited to doing the weekly shop in the current conditions than I am, and who am I to argue.)

A certain amount has been said on responsibility, so I though I would offer my take. Responsibility is not a zero sum game. If I were to release news of a rarity then any birder turning up to it, particularly by car, is entirely responsible for his or her decision to do so. But also, I am entirely responsible for creating the circumstances for their decision to twitch. My responsibility is in no way lessened by the recognition of theirs. I’ve been birding a wee while now, been on a few twitches, met some twitchers. If I broadcast the news that there is a big rarity, and as a result 40 or 50 people turn up for it the following morning, I cannot in all honestly say “I had no idea that would happen”. A more appropriate comment would be “yeah, thought that might happen”. Whether their actions do or don’t contravene the current stipulations (they do, in my opinion), they certainly run the risk of spreading the virus. A very, very small risk, some might say, but a deadly one, and if fatalities occurred as a result of their actions that would be my fault. Their fault too, but undisputedly mine.

So how about this; someone finds a biggy on your local patch and, following the rationale outlined above, supresses it. What is your response? Disappointment for sure, probably anger, but would it be anger at the situation you were in? Or anger at the birder in question? Are rarity finders that take the tough but, in my view, responsible decision to keep news quiet going to find themselves ostracised? Trolled and abused online? Harassed and abused out in the field? This might seem melodramatic, but someone, somewhere, in the next few weeks, is going to have to make this kind of decision. If my (walking distance) local patch were a west country headland, or some east Anglian backwater, or a stretch of scrubby east coast (rather than a small dead gravel pit and flooded field corner in north east Wales) then these questions would certainly be exercising me right now.

I think in the law that releasing information is not accepting responsibility for others actions. Yes you might be perceived as tempting them but you are not the one jumping in the car and travelling. I don't think any court would argue that you compelled them...

Who in their right mind would try and use that as a defence? What would you gain by it? My car does 100mph and there is an accelerator under my right foot but that doesn't mean I could claim that the car manufacturer is responsible for my speeding.

I love reading about these 'rare' birds wherever they are, next door next town next country England Finland I could on.
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