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Badgers and the Law

Badgers are protected in law by the Protection of Badgers Act 1992 (passed to consolidate law previously contained in the Badgers Act 1973, the Badgers Act 1991 and the Badgers (Further Protection) Act 1991) and so are their setts (setts include entrances, tunnels, and underground chambers).

Licences may be granted by Defra to kill badgers under certain circumstances (to supposedy control bovine tb or for building developments), but generally it is illegal to harm them in any way.

There is no excuse or exception in law to killing, injuring etc a badger based on perceived or actual nuisance value such as damage to a garden or as a ‘pre-emptive’ action to prevent further damage.

Under the Protection of Badgers Act 1992, it is an offence in England and Wales (the law is basically the same in Scotland and Northern Ireland) for an individual to:

In Scotland badgers and their setts are protected under the Protection of Badgers Act 1992 as amended by the Wildlife and Natural Environment (Scotland) Act 2011. The law includes ‘reckless’ damage to a sett. Penalties In Scotland for offences against badgers were increased by the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (see below).

Badgers and their setts are also protected under the Wildlife (Northern Ireland) Order 1985, which rules that it is an offence to disturb these animals or obstruct access to their place of refuge, or destroy or damage anything which conceals or protects their place of refuge

A sett in current use
Badger baiters. BBC Investigations 2019

The penalty for a breach of the Protection of Badgers Act 1992 may include a fine and/or a prison sentence of up to 6 months.

Though badgers (along with other animals) have protection from ‘unnecessary suffering’ under the > Animal Welfare Act 2006 when they are trapped and under the control of man, many critics say that the protection of Badgers Act needs strengthening and penalties increased in line with the stronger punishments available under the Animal Welfare (Sentencing) Act 2021.

A person is not guilty of a criminal offence if:

  • they are only taking or attempting to take a badger which has been disabled (but not by something they themselves have done) and are taking or attempting to take the badger solely for the purpose of tending it;
  • they kill or attempt to kill a badger which appears to be so seriously injured or in such a condition that to kill the badger would be an act of mercy;
  • they unavoidably kill or injure a badger as an incidental result of a lawful action (If you are accidentally (and unavoidably) involved in a traffic accident with a badger, for example, even if the badger is injured or killed that is not illegal) ;
  • they do anything which is authorised under the Animals (Scientific Procedures) Act 1986.
 

There are also defences to interfering with a badger sett:

  • where the action was necessary in order to prevent serious damage to land, crops, poultry or any other form of property (NB a licence is required and the killing may not take place until that licence has been granted);
  • where the action was incidental to a lawful operation and could not reasonably have been avoided.

No, fox hunts are NOT allowed to block setts.

Before the Hunting Act 2004 came into force a conditional exemption in Section 8 of the Protection of Badgers Act 1992 allowed hunts to earth stop and sett block to prevent a fox ‘going to ground’ in a badger sett (the Act says “obstructing any entrance of a badger sett for the purpose of hunting foxes with hounds”).  This exemption was withdrawn when the Hunting Act came into force.

Schedule 2, Section 13 of the Hunting Act legislation says “Section 8(4) to (9) of the Protection of Badgers Act 1992 (exception for hunting) shall cease to have effect“.

When the Protection of Badgers Act (1992) was passed thirty years ago it was a landmark piece of legislation, but according to eg Badger Trust, since it was passed “sentencing related to animal welfare has moved on and there’s a glaring inequality for crimes against badgers.”

Under the Animal Welfare (Sentencing) Act 2021, anyone committing serious animal cruelty crimes to a domestic animal in England and Wales can face prosecution with up to five years in prison. Similar animal cruelty committed against a wild badger can only be given a maximum of a 6-month prison sentence under the Protection of Badgers Act.

The campaign is calling for tougher sentencing to protect badgers. It wants to:

  • Extend the maximum sentence for convictions under the Protection of Badgers Act (1992) from 6 months to 5 years, bringing it into line with Animal Welfare (Sentencing) Act 2021. This means offenders would be faced with a 5-year sentence for the abuse of a badger, in the same way as they would for the abuse of a dog used in the same crime.

  • Make badger persecution notifiable to the Home Office, so that the real level of crime can be accurately assessed, reported on, and tackled. At present wildlife crimes are not recorded in this way and there are no official national statistics. Increasing sentencing would, by default, make a crime under the Protection of Badgers Act (1992) a notifiable offence.

Coming into force in Scotland on 21 July 2020, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 increased penalties for serious animal welfare and health offences, and also increased penalties for wildlife crime. 

This included penalties under the Animal Health and Welfare (Scotland) Act 2006, the Wildlife and Countryside Act 1981, The Protection of Badgers Act 1992, the Wild Mammals (Protection) Act 1996, the Deer (Scotland) Act 1996, and other animal welfare related legislation in Scotland.

Sections 5 to 14 of the Act increased the maximum available penalties for the most serious wildlife offences to a prison sentence of five years or an unlimited fine, or both, making related procedural changes, and increased the maximum available penalties for other wildlife offences, including the disturbance of animals or damage of nests or shelters, to a prison sentence of one year or a fine up to £40,000, or both.

For badgers specifically, Section 8 of the Act looked at penalties available under the Protection of Badgers Act 1992 and made numerous amendments. The penalties for wilfully killing, injuring or taking a badger together with the associated ‘cause or permit’ offence introduced by the Wildlife and Natural Environmental (Scotland) Act 2011, along with certain cruelty offences (cruel ill treatment, the use of badger tongs in the course of killing, taking or attempting to kill or take a badger, and digging for a badger and the associated ‘cause or permit’ offence) likewise increased to imprisonment for a term not exceeding twelve months or a fine not exceeding £40,000 or both on summary conviction (ie if the case is heard in a magistrate’s court), and to imprisonment for a term not exceeding five years or to a fine or both on conviction on indictment (ie a more serious case heard in the Crown Court).

The Act also increased penalties for ‘animal fights’ (which includes badger baiting) by the same amounts. It’s worth noting that offenders are usually charged under the Animal Welfare Act rather then the Protection of Badgers Act (whch as critics have repeatedly pointed out) did not include a specific badger baiting offence.

A sett is legally defined as “any structure or place which displays signs indicating current use by a badger”. The definition includes sett entrances, and the underground tunnels and chambers where they live.

Badger setts can be surprisingly large structures, most of which is underground of course.

All are entered and exited by tunnels though. Badger tunnels tend to have a distinctive shape, being wider than they are tall, with a flattened base. They are typically around 30cm in diameter, certainly no smaller than 25cm in diameter.

Tunnels excavated by foxes and rabbits tend to be rounder or oval in shape, and taller than they are broad.

 Note the term ‘displays signs indicating current use‘ in the law. This has been used many times by, for example, fox hunts who interfere with setts and claim they saw no signs of current use. It can be difficult for the layperson to be certain but signs of current use include:

  • Smooth polished sides around any entrance holes from repeated use.
  • Sometimes evidence of fresh bedding, for example grass, near the sett entrance.
  • Freshly excavated soil heaps around entrance holes.
  • Evidence of runs radiating out from entrance holes.
  • Signs of trampling and/or footprints at entrance holes and down into the sett.
 

If in doubt about whether a sett is being used check with a local badger group and tell them you are concerned about badger crime.

Badger baiting is an illegal and extremely cruel bloodsport where dogs are set on badgers, either on site as the badger is dug out of a sett or at a later date in eg a warehouse. The animals fight until the badger dies, typically from severe injuries and in great pain.

Contemporary badger baiting often involves criminal gangs and large sums of money being bet on the outcome of fights.

Badger baiting is illegal. If you witness digging out or badger baiting taking place DO NOT approach the particpants as they are usually extremely violent. Record (at a distance) what details you can about location, numbers of people involved, what dogs they have, any vehicle registration details, and call the Police as soon as it is safe to do so.

Few charities give an exact date, but Animal Survival International says that badger baiting usually takes place in the autumn and winter months, between November and March when sows are pregnant and will fight to protect themselves and their unborn young.

However, the 2023 Report ‘Badger baiting in Northern Ireland‘, by the Ulster Society for the Prevention Cruelty to Animals (USPCA), states that “The badger baiting season is September to March, a period of seven months or approximately 30 weeks’.

 

Baiters are extremely violent. DO NOT approach them, but record what details you can about location, numbers of people involved, what dogs they have, any vehicle registration details, and call the Police as soon as it is safe to do so.

Small dogs like terriers are sent into badger setts by the baiter,  typically with GPS trackers fitted to their collars. If the dog/s find a badger there will be a standoff and the dogs will make the baiter above ground aware by barking.

The badger will either come out of the sett to escape the dog or the sett will be dug into and the badger dragged out. Larger dogs may then be let loose on the badger or the badger may be bagged and taken away.

Badger baiting and sett digging are illegal, and the harm caused to the dogs – many of are badly injured – breaches the Animal Welfare Act (2006).

Baiters are extremely violent. DO NOT approach them, but record what details you can about location, numbers of people involved, what dogs they have, any vehicle registration details, and call the Police as soon as it is safe to do so.

Yes. If a badger is dug out of a sett and not killed on site by dogs belonging to the digger/s, they will often be ‘bagged’ (put in a sack) and taken away to be used in baiting elsewhere.

Badgers are large and powerful animals. An individual carrying a badger will use a large, strong sack. If you see an individual (usually male and usually at night) carrying a sack with what is clearly a live animal inside, they may well be a badger baiter.
 
Baiters are extremely violent. DO NOT approach them, but record what details you can about location, numbers of people involved, what dogs they have, any vehicle registration details, and call the Police as soon as it is safe to do so.

‘Sett blocking’ typically involves blocking the entrances (there are usually more than one) to a badger sett and yes it is illegal.

Terriermen from  hunts routinely and illegally block badger setts in the area where a hunt is planning to meet to stop a fox trying to escape a pack of hounds by hiding in the sett. It is a crime to do so.

Setts might be ‘soft blocked’ with sticks or other soft material that badgers can sometimes push their way out or ‘hard blocked’ with heavy items or completely filled in and compacted.

Badgers and their setts are protected by law and any blocked sett should be reported to the police immediately. Please mention that a hunt was (or had recently been) in the area.

Yes, despite badgers and their setts being protected by law, developers can (sometimes) build on or near active badgers setts lawfully. The final decision on a development going ahead will be taken by a local planning authority who will look to see that mitigation measures have been put in place.

To start with, developers must use an ecologist to determine whether or not a sett is active and what part of the sett is on the land that is to be built on (part of the main sett, an outlier sett, or a subsidiary sett, for example).

By law a 30-metre buffer zone must be left around the setts as tunnels can extend underground and not be visible from the surface.

Badger mitigation measures where a sett can be lawfully accommodated within a development (and that includes the buffer zone) may include:

  • Installing fencing during construction to protect the sett (which badgers must be able to pass underneath or through).
  • Creating unlit ‘green corridors’ to help badgers access their existing foraging habitat.
  • Not allowing artificial lighting to fall on the sett during or after construction.
  • Mitigating against lost foraging areas by planting additional trees and shrubs close to the sett.
  • Not positioning footpaths, benches, and play areas close to a sett.

If a development plan impacts the land within the 30 metres buffer zone mitigation is more complex.

A licence from Natural England is required to close tunnel entrances/exits holes. If more than HALF of a sett’s identified holes need to be closed, an artificial sett may need to be built.

An artifcial sett must be built between between July and the end of October, and it must be in place six months before the original sett is closed. The original sett must be checked every day for 21 days and if badgers have returned the daily checks must re-start from the beginning. If after 21 days the artifical sett is occupied and the original sett is still empty it can then be dug up by the developer.

Fully launched in 2023, the Badger Watch app has been developed as a FREE tool for members of the public and Badger Groups to easily recognise, record and report instances of badger crime when on the move out in the field. This can save crucial time especially when witnessing crime as it occurs. 

It is available for free download in both the Google Play Store and the Apple App Store.

If we come across a wildlife crime scene or a dead bird/object that may be related to a wildlife crime every piece of information is – or might be – important, but it needs to be recorded properly and accurately for the authorities to have a chance of prosecuting an offender.

  • Before we do anything else it is very important that we do NOT approach anyone we suspect of committing a crime – they may be violent and/or aggressive. This is especially true of badger baiters and hare coursers who are typically extremely violent. This must be a first priority!
 
What do we need to record?
  • What we can see happening – what sort of crime is being committed
  • Are any firearms involved, could we or the public be in danger?
  • The exact location. Most smartphones have map apps or download the free What3Words app. If in open countryside look for obvious landmarks or fence lines, a tall or isolated tree, a wind turbine, any streams or brooks etc. Think about what would you need to re find a remote location.
  • It is important to record if at all possible whether we are on or near public land as this will determine the type of police response.
  • Never put ourselves in danger, but can we see who is involved and what they look like (e.g. number of people, their gender(s), age(s), the clothing worn, tools being carried)? Can we hear them – if so what are they saying, are they using any names etc?
  • If any dogs are involved how many are there, what colour are they, do we know what breed they are (even information like ‘terriers’ or ‘lurcher-types’ can be very useful).
  • The make, colour and registration number of any vehicle (we can take photos of a car if we think it is being used or might be used to commit a crime). Does it have any obvious dents, branding or markings, spotlights, bullbars etc.

 

DO and DO NOT

  • Do NOT disturb the scene by walking around unnecessarily – small pieces of evidence (cigarette ends, footprints, the marks left by a spade etc) may be lost or trampled into the mud or grass.
  • If photographing an object do try to use eg a coin or a notebook/field guide for scale – providing it won’t disturb the crime scene.
  • If in the countryside take wide angle photographs of any landmarks (a tree, a distinctive fenceline, a hill) that might help officers relocate the crime scene. DO NOT mark a site with eg a white plastic bag though. Being able to see a marker from a distance might sound like a good idea, but it will also alert an offender that someone has been at the site: they may go back and remove the evidence
  • Do NOT move any items at the scene – the exception being if they are likely to disappear before the police arrive when we can collect them as evidence.
  • Do NOT touch any dead birds or animals with bare hands. They may be poisoned baits or victims of poisoning. Many poisons (eg Carbofuran) are extremely dangerous in even very small amounts and can be absorbed through the skin.
  • Do NOT do anything illegal ourselves – that might mean our evidence is not admissible.

 our evidence is not admissible.

While it is vitally important to RECORD and REPORT crime and persecution involving badgers so that they will continue to be recognised as a UK Wildlife Crime priority, please DO NOT APPROACH badger baiters as they are typically extremely violent individuals.

  • Note that a badger sett that has been dug or interfered with is a crime scene. Please do not walk over it as for example footprints left in the soil may be important. Keep your distance until the police or investigators can gather all available evidence.
 
Even if members of the public have permission to be on land (in Scotland have the right to roam) to survey and monitoring badger setts, we have no legal powers to enter or remain on land to investigate crime. Even if we believe a crime has been committed we must not go back to a site once we’ve reported a crime unless accompanied by an investigatory body and at their reque
 If we see a wildlife crime taking place (or someone is at risk of getting injured or is being threatened) call 999 immediately.
They will want to know what we can see happening:
  • What sort of crime is being committed
  • Are any firearms involved
  • Could we or the public be in danger
  • Do we have photos or video footage which may be used as evidence
  • Tell whoever you REPORT the crime to exactly what you have RECORDED as described in the section above.
 
To report a historic crime – that is, a crime that is no longer taking place – use 101 or a local organisation instead.
  • If calling the police ask to speak to a Wildlife Crime Officer and make sure to get an Incident Report number.
  • Please always follow any advice given and – if they are not available – insist that a Wildlife Crime Officer is made aware of your report.
  •  Our options are wider if the event is over, and it may be preferable to talk first to a charity or NGO to get advice. Crimestoppers (an independent charity) can be contacted in complete confidence on 0800 555 111
  • When thinking about reporting a crime it’s worth noting that only the police have statutory powers to make an arrest. RSPCA and RSPB investigation officers work with the police for successful prosecutions.
 
Reporting a wildlife crime (or even a suspected wildlife crime) is important for two reasons.
  • If the event is still happening it may enable the authorities to catch the criminals ‘in the act’ (which means a higher chance of prosecution),
  • and if the event is over a report can still help to build up a more accurate picture of what might be happening in a specific location or across the country as a whole.

While it is vitally important to RECORD and REPORT crime and persecution involving badgers, please DO NOT APPROACH badger baiters as they are typically extremely violent individuals.

Our help is always welcomed
  • Whoever we decide to contact we have been assured that our help is welcomed and that if we’re in any doubt that what we’re seeing is a crime we should report it anyway. Remember, if what we see ‘feels’ wrong, it probably is!
  • Even if we’re not sure about what we’re seeing, we can take a photograph and email it to the police or an investigations officer – they are trained to quickly recognise for example when a snare is illegally placed, whether a trap is being used illegally, or whether a crime is being committed or not.
  • We may help stop or solve future crimes by helping build up a pattern of behaviour in an area.

Have you ever wondered what UK law says about hunting with dogs, shooting, or collecting bird eggs? Or what protection foxes, badgers, bats, and birds of prey have? Whether a gamekeeper is using a snare, spring trap, or a cage trap legally? Wanted to know more about operating drones, using airguns, or driving quad bikes legally? What the different forms of trespass are, what constitutes assault, or what we should do if we’re arrested?

And have you ever been unimpressed with having to search hunting and shooting websites to find some of the information you need?

Us too! Which is why we have developed ‘Protectors of the Wild‘ and laid out the information we need in over thirty simple, mobile-friendly pages just like this one.

Protectors of the Wild‘ is a free resource to help us all become ‘eyes in the field’ by learning how to recognise, record, and report wildlife crime and wildlife persecution.

After all, the more we know, the more any potential criminal will have to be looking over their shoulder wondering if we know enough to Recognise, Record, and Report what they’re up to.

And the more we can all do to help protect the wild.

Have you ever wondered what UK law says about hunting with dogs, shooting, or collecting bird eggs? Or what protection foxes, badgers, bats, and birds of prey have? Whether a gamekeeper is using a snare, spring trap, or a cage trap legally? Wanted to know more about operating drones, using airguns, or driving quad bikes legally? What the different forms of trespass are, what constitutes assault or harassment, or what we should do if we’re stopped and searched or even arrested?

And have you ever been unimpressed with having to search hunting and shooting websites to find some of the information you need?

Us too! Which is why we have developed ‘Protectors of the Wild‘ and laid out the information we need in forty-one simple, mobile-friendly pages and over 500 FAQs just like this one.

Protectors of the Wild‘ is a free resource with two aims: to help us all become ‘eyes in the field’ by learning how to recognise, record, and report wildlife crime and wildlife persecution; and to provide a ‘quick guide’ to anyone interacting with hunts, hunt supporters, or the police.

After all, the more we know, the more any potential criminal will have to be looking over their shoulder wondering if we know enough to Recognise, Record, and Report what they’re up to, and the more we know our rights the better we can protect ourselves.

And the more we can all do to help protect the wild.

The National Wildlife Crime Unit currently has seven priority offences for wildlife crime.

Badger persecution

It is illegal to interfere with or block a badger’s home or ‘sett’. Badger baiting is a centuries-old now illegal blood sport, where small dogs such as terriers or lurchers seek badgers out of their setts before fighting and killing them.

Bat persecution

Bats and their homes are legally protected, so disturbing or removing them is an offence. If bats roost in your roof, you need to obtain a special ‘bat mitigation licence’ from Natural England to be allowed to disturb them. They are hugely important to our ecosystem.

Trade of endangered species

The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) sets out which endangered animals and plants have protected status. It is illegal to remove any of them from their natural habitat, possess, or sell them. Currently, the top priorities are European eels, birds of prey, ivory, medicinal and health products, reptiles, rhino horns, and timber.

Freshwater pearl mussel offences

These Endangered mussels (Margaritifera margaritifera) are only found in rivers in Scotland and small parts of England. They can live for more than 130 years but are extremely sensitive to water pollution and have been illegally farmed for years. It is illegal to damage or destroy their habitat or to take, injure or kill them.

Poaching

Fox, deer, and hare hunting are all illegal under the Hunting Act 2004. Poaching offences also cover illegal fishing – when anglers do not obtain a licence or remove protected fish from lakes and rivers without returning them.

Raptor persecution

Birds of prey are often targeted on shooting estates. Their eggs are also traded illegally. It is an offence to target, poison, or kill them, with a particular focus on Golden Sagles, Goshawks, Hen Harriers, Peregrines, Red Kites, and White-tailed Eagles. Disturbing or taking their eggs or chicks is also illegal.

Cyber-enabled wildlife crime

Social media is often used to promote wildlife crime and recruit people to take part in it. Endangered plants and animals are also traded illegally online.

  • Punishment must fit the crime. Conditional discharges and paltry fines are not a disincentive for criminals.

A common complaint is that even if wildlife criminals are brought to court the fines or sentences they get are pathetic and not a disincentive. In most cases judges are giving out the penalties they are allowed to under the law. Changes can be made though. In 2022 the maximum sentence for ‘causing uneccesary suffering’ went from six months to five years. That was the result of targeted public pressure and campaigning. We need to identify where changes should be made and push hard for them.

 

  • Wildlife crime must be notifiable and statistics accurately compiled so that resources can be properly targeted.

Police forces are required by law to inform the Home Office of any notifiable offences, which then uses the reports to compile the crime statistics known as ‘recorded crime’. Currently, wildlife crimes are not ‘notifiable’ though (and wildlife crime involving firearms are also not recorded as firearms offences by the Police).  Without them being notifiable, no one knows how many wildlife crimes are being committed across the UK and where the hotspots are (though ‘grouse moors’ is one obvious response). As we have stated many times on this website, law and legislative enforcement is hugely underfunded and under-resourced. Some of this has undoubtedly been through political choice, but if we at least know which crimes are being committed and where, the resources that are available can be placed where they are needed most.

 

  • There must be changes to make it far easier for all of us to play our part in ‘Recognising, Reporting, Recording’ wildlife cime.

As even a quick glance at the Protectors pages makes clear, laws protecting wildlife are hard to understand. Major pieces of legislation like the Hunting Act 2004  and other laws are riddled with exemptions which strongly favour the hunting, shooting, and agricultural industries. Some date from a century or more ago and don’t reflect the modern world. These need to be updated. While there has undoubtedly been efforts made by successive governmants to use ‘plain english’ to explain legislation, any government wanting to tackle wildlife crime needs to make understanding what is and what isn’t a crime far more easily understood and put resources into a reporting system that the public feel confident using. Crucially, the public need to be sure that if they do report a crime it will be acted upon.

 

  • We have to protect the environment and wildlife properly.

Laws protecting wildlife and the environment need to be revised to reflect the 21st century and the biodiversity and climate crises we are in. Animals (and plants) are not an add-on or a ‘nice to have’ – they have shaped the systems that life depends on, and our laws need to reflect how critically important they are.

 

If you’d like to support just one legislative change, Protect the Wild has launched ‘The Hunting of Mammals Bill: A Proper Ban on Hunting‘ – please sign our petition calling for a proper ban on hunting with dogs.

We would like Protectors of the Wild to be the ‘go to’ free resource, packed with the kind of information that really does help all of us become ‘eyes in the field. But we can’t possibly think of every question that might need answering or every situation someone might find themselves in! And while the information in these pages is largely taken from Government online advice and was compiled in 2023 (and constantlyy updated), perhaps we’ve missed something out.

If you could provide us with legal advice get in touch. Or if you find a mistake or a gap please let us know. That way we can continually improve Protectors of the Wild – for the benefit of animals and all of us. Thanks.

‘Protectors of the Wild’ is a project of Protect the Wild. We have a dedicated email address for anyone wishing to get in touch with a specific Protectors query or with additional information etc. Please use the form on our Contact Protectors page or email protectors@protectthewild.org.uk. Thank you.

Much of the information we give in these pages is very technical or to do with legislation which can be revised without much notice. While we have worked very hard on these pages and we take keeping our information accurate and up-to-date very seriously, Protect the Wild are not legal professionals. Just to make sure no-one thinks we’re offering professional legal advice, we feel obliged to include the following disclaimer on every page.

  • Please think of the ‘Protectors of the Wild’ pages as a ‘first stop’ before seeking legal advice. We provide detailed information but not professional advice. The information provided by Protect the Wild should NOT be considered or relied on as legal advice and is for general informational purposes only. Any of the material on our website may be out of date at any given time, and we are under no legal obligation to update such material. While we update and revise as often as we can, Protect the Wild assumes no responsibility for the accuracy and correctness of any information, or for any consequences of relying on it. Please do not act or refrain from acting upon this information without seeking professional legal advice.

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