Call the next witness - a bird

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The Independent Online
Today it's natural history time, and a chance to get all your queries about the natural world cleared up by an expert. We couldn't get a natural history expert, unfortunately, but we did at least get an expert ... Yes, all your questions about wild life are being answered today by an experienced lawyer, who wishes to remain anonymous, which I think shows just how experienced a lawyer he is.

How can I tell the difference between a tortoise that's hibernating and a tortoise that's dead?

A lawyer writes: To the naturalist's eye there is no difference between a dead tortoise and a sleeping one, but in the law's eyes there is a great deal of difference, and it's very important that you get the legal situation sorted out as soon as possible. For instance, you can be prosecuted for cruelty to a live tortoise, but not to a dead one. Again, if you put up a notice on your garden saying: "Warning - These Premises Are Patrolled By Loose Tortoises", whereas in fact they are dead, you are technically guilty of wilful distortion. I advise you to take out an affidavit from a commissioner for oaths, stating your uncertainty in the matter.

We had house martins nesting in our eaves last year, and I was wondering if they would return this year to the same place.

A lawyer writes: They are perfectly within their rights to do this, I am afraid, and there is nothing you can do to stop them. Birds of passage have what is known as "passage rights" or "jus migrationis" which means that once they have established squatting rights they enjoy legal protection.

It must be remembered that just because birds are not property owners in the technical sense, it does not mean they do not have residential rights. In the celebrated case of Whittaker vs Joey the Starling, it turned out that the Duke of Northumberland had left the whole of the left wing of his house to his favourite bunch of starlings (who had already lived there for some time). The family sued the starlings for the return of the west wing; the judge decided that the starlings could maintain residence but only externally, and that the internal use of the house reverted to the family.

What is the statistical likelihood of a tortoise outliving its owner?

A lawyer writes: A tortoise has a longer lifespan than the average human, but only in actuarial terms. That is, it lasts longer than the average human temporally, but in terms of its metabolism it lives at a slower rate. That is to say, it lives slower than we do, therefore its life proportionately is no longer than ours. My advice is to leave everything to your tortoise in your will in trust for its lifetime, on condition that the residue then passes to the next of kin after that. We have often heard of money being left to pets; it is not so well-known that pets can leave money to people.

Can any other kind of bird apart from parrots be taught to speak?

A lawyer writes: This has not been sufficiently tested in a court of law. There have been times when a speaking bird has been called as a witness, and in cases where the bird itself was the subject of the case (eg, when a customer claimed that a talking bird sold as such could not in fact talk) this has been admissible.

However, in the only case I know of in which a mynah bird was called as a murder witness, on the grounds that it had been present during the murder of its master, it was found to be capable of uttering one phrase and one phrase only, namely "Get rid of it, you cretin!", which was not a piece of advice about the murder weapon, but a reflection of its master's habit of watching football on TV.

I often find myself unable to identify wild flowers in the botany books I take with me on country walks, sometimes because the flower I am trying to identify looks like none of the pictures in the book, sometimes because it looks like too many of them. Do you have any advice?

A lawyer writes: Yes. Never be tempted to sue nature guides for inaccuracy. They will always win. This dates from the celebrated case of Wilkins vs Birdspotter Publications of 1936, in which Wilkins claimed that their illustration of a curlew was nothing like the real thing, and the defendant claimed successfully that their picture was a reasonable representation, and that it was the real-life curlew which was inaccurate. If you find a wild flower that looks nothing like any of the illustrations in a book, get it registered in your name at once. It might be a new species and could be named after you. I enclose a leaflet on how to set up a trust fund for you to profit from a new kind of wild flower.