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Publication - Report

Report of the Review of the Protection of Wild Mammals (Scotland) Act 2002

Published: 21 Nov 2016

A report with recommendations to improve the operation of the Protection of Wild Mammals (Scotland) Act 2002.

95 page PDF

676.6kB

95 page PDF

676.6kB

Contents
Report of the Review of the Protection of Wild Mammals (Scotland) Act 2002
7. Proposals for Change

95 page PDF

676.6kB

7. Proposals for Change

Monitoring
7.1 For years now animal welfare activists have endeavoured to monitor the activities of mounted hunts. For various reasons there has often been tension between those engaging in hunting and the monitors, or saboteurs as some are known. Much of the monitoring that is done is carried out covertly. Although it is asserted by supporters of hunting that their activities are open, public and accountable, these activities are not readily open to public scrutiny [44] . On account of the remoteness of the locations where hunting takes place as well as the nature of the terrain, it is well-nigh impossible to monitor comprehensively the bulk of any day's hunting. Nevertheless, monitoring is probably the only way to get close to establishing how a hunt is being conducted [45] .

7.2 In discussions with persons involved in hunting, there was a recognition that, because there is such a level of public interest in the activities of mounted hunts and yet much of their activity is hidden from public view, there was something to be said for making their activity more transparent. At a meeting with four of the groups which made submissions to the Review, the Scottish Countryside Alliance, the Scottish Gamekeepers Association, OneKind and the League Against Cruel Sports, the possibility of overt monitoring by an official monitor was raised. All could see practical difficulties in viewing hunt activities comprehensively, but none dismissed the idea out of hand. In particular, the Scottish Countryside Alliance, of which all the mounted hunts are members, expressed willingness to participate in such an arrangement. The proposal was that an individual, officially appointed monitor would attend random hunts without notice and compile a report on the day's activities. While, if necessary, provision could be made in the Act for appointing, and regulating the role and functions of, monitors [46] , it should be possible to introduce a scheme by voluntary arrangement governed by a Code of Practice. Any discussions on a voluntary scheme should involve Police Scotland. How much would require to be the subject of statutory regulation would depend on the success of efforts to reach agreement on a voluntary scheme. The Burns Report in discussing a similar idea suggested appointment of monitors by "a reputable, independent body" [47] . That could be an appropriate agency of the Scottish Government. Were it necessary to provide by legislation for the appointment of the monitors, further legislation could be confined to providing for regulation of the scheme by a Code of Practice.

7.3 Such a scheme could lead to the compilation of reliable independent information about hunt activities to enable well-informed decisions to be made about the need, if any, for changes in the provisions regulating hunting with dogs. Provision could be made for the monitor to discuss with hunt officials any concerns about the conduct of the hunt. The monitors' observations should in principle be admissible evidence in court. An annual summary of their observations could be included in the Wildlife Crime in Scotland Annual Report, including details of any breaches of the Code and the parties responsible.

7.4 The cautious approval given to this idea took into account the obvious possibility that behaviour might be altered in response to the attendance of a monitor. There was a view that it was possible that, given time, an accurate picture would emerge.

Fox Control Protocol
7.5 When the Act was passed the mounted packs signed up to the Scottish Mounted Foxhound Packs Fox Control Protocol. The original version was issued in September 2002 and the latest revision made in November 2015. The Protocol provides that the relevant foxhound pack will keep the police informed of their whereabouts and operations "as requested". Some notify the police routinely; others do not, but are committed to doing so if requested. Those who do so routinely telephone the police giving information for a hunt that day or the following day. The police open an incident log in which the location and hunting boundaries for the day are noted. Any changes should thereafter be notified by telephone. At the end of the day a phone call is made to the police to intimate the conclusion of the day's activity and requesting closure of the incident log.

7.6 The protocol provides specifically that the hounds will be used to flush out foxes from cover and the packs will act to ensure that foxes are shot as soon as it is safe to do so. The packs also undertake to use experienced individuals with shotguns and to deploy an appropriate number of guns dependent upon terrain and location as a safety measure. A number of other provisions declare a commitment to acting within the law. There are also a number of "operational recommendations" stated in commendably peremptory terms.

7.7 That is an indication of an intent on the part of mounted packs to be open about their activities and provides a basis for the development of an arrangement under which the mounted hunts make a commitment to provide advance notice of the information which the police wish and which will help to provide reassurance that the flushing to guns exception requirements are being met. Providing the following information would make the task of investigating any allegation easier and quicker. The crucial details which should be relayed to the police in advance of the hunt include:

  • The identities of the huntsman and any assistants and any other personnel with a role in that day's hunt;
  • The identity of the fieldmaster;
  • The location and hunting boundaries for that day;
  • The number and type of guns to be deployed, and the identities of those carrying the guns;
  • The number of hounds to be used;
  • The identity of any terriermen;
  • The modes of transport to be used by the huntsman, assistants, terriermen, guns and field, if not horse.

In addition, when intimating the conclusion of the day's activity, the number of foxes or other wild mammals roused, injured and killed and the means by which they were injured and killed should be intimated along with the number of shots discharged. The details intimated before and after the hunt should be intimated simultaneously to the hunt monitors.

7.8 It is envisaged that Police Scotland would record the information in a log or register which would form the basis for an annual report to Scottish Ministers with a view to relevant parts being incorporated into the Wildlife Crime in Scotland Annual Report. Each hunt should keep a record of all of the foregoing information. At present, for example, at least one hunt publishes a "Season Summary" stating the number of days hunted and recording the total guns present over the season, the number of foxes roused, the number of shots fired, the proportion of foxes killed that were despatched by guns, the average number of foxes roused per hunting day and the average number of guns present on the average hunting day.

7.9 Commitment by the hunts to provide this information would be a major step towards bringing increased transparency to their activities and ensuring that those with the principal responsibilities for the activities of the hunt that day are clearly identified. A typical hunt is organised, run and operated by the following personnel. The affairs of the hunt are overseen by a committee elected by the subscribers. The committee in turn recommend the appointment of the huntmaster or huntmasters for approval by members at the AGM. The masters of foxhounds are responsible for running the country, i.e. the area over which the hunt operates, for liaising with landowners and farmers and managing the hounds, hunt staff and kennels. The huntsman will either be one of the masters or a professional member of the hunt staff, and is responsible for directing the hounds using both horn and voice. The huntsman may be assisted by one or more whippers-in whose main job is to help keep the pack all together. The fieldmaster, who will usually be one of the masters, will be appointed to act for that day to direct the mounted followers. Those carrying firearms are generally referred to as the "guns". Most hunts will employ a terrierman whose job is to control the terrier or terriers which may be used underground to corner or flush the fox. They and the "guns" often ride quad-bikes. The terriermen operating with the mounted packs in Scotland require to be licensed by the MFHA, the licence being renewed annually. That is an example of further information that might be required to be intimated in advance of the hunt. In some packs one individual will fill multiple roles, e.g. master, huntsman and kennelman. The kennelman looks after hounds in kennels and may double up as a whipper-in at the hunt. In the absence of clear notification of responsibilities on the day, the potential for misunderstanding and uncertainty is clear.

7.10 Similar requirements could be made of foot packs, should that be thought necessary.

Legislative Change
7.11 Pointing to the lack of clarity in the terminology of the Act, Police Scotland make the following submission:

"To make this legislation more effective and workable, offences need to be simplified and terms expanded. Exceptions to the offence to 'deliberately hunt a wild mammal with a dog' are multiple and provide opportunities for exploitation by those who continually and deliberately offend. As a consequence of this lack of clarity, the Police are on occasion unable to establish the high threshold of evidence required to prove and, ultimately, report cases."

They point to the need in certain cases for expert testimony to prove "intent".

7.12 Noting that the principal situation in which hunts will deal with foxes is to search for and flush them from cover to guns, Police Scotland suggest that the legislation needs to reflect this rigorously with emphasis on immediate despatch. Their submission goes so far as to state that the legislation "has become somewhat unworkable due to the exceptions available, the lack of clarity over key terminology and the lack of individual accountability." They suggest that the Review should take cognisance of this in any subsequent recommendations, recognising that change must provide clarity to those undertaking legitimate pest control as well as those engaged in investigating illegal hunting. At the same time the police acknowledge that the aim of any amendments to existing legislation must be the absolute necessity to ensure that the welfare of the mammal involved is the primary concern on all occasions. The submission ends with these words:

"Through clear explanation and direction of what can and cannot be undertaken by this legislation the welfare aspect will hopefully be secured".

7.13 They refer also to the "common occurrence" that hunts only have two guns out on the day when, as a result, a fox cannot be shot, resulting in the fox being stalked, a situation which the Act was intended to avoid.

7.14 A number of proposals have been made to the Review to change the law in order to provide greater protection for the mammal without significantly impairing the use of dogs for the purposes enumerated in section 2(1). These are in addition to the comments in Chapter 4 about reviewing the language of the Act and the suggestions made there.

Mental State required for Illegal Hunting
7.15 It has been suggested that the element of intent required by section 1(1) is not clearly expressed and on the face of it too demanding, and that it should be an offence to hunt "recklessly". It is said that that would better reflect the relationship between huntsman and hounds. It is the responsibility of the huntsman throughout the hunt to control the hounds. They may number in excess of 35. They may be drawing cover a considerable distance from the huntsman. Material presented to the Review has indicated occasions when it has appeared unlikely that the huntsman would be aware of the position of the hounds in light of the nature of the terrain. Gross failure to exercise the appropriate degree of care to control the hounds is proposed as an appropriate mens rea standard.

7.16 That is a possibility. However, bearing in mind what was said in DPP v Wright about hunting being by definition intentional, it would be sensible to state clearly that the offence is committed when a person "intentionally or recklessly" [48] hunts a wild mammal with a dog.

7.17 Another proposal is to simply delete "deliberately" which would have the effect of removing what is seen as an additional hurdle to be negotiated to prove a breach of section 1(1).

7.18 It has been suggested by Police Scotland that "deliberately" could be replaced by "has possession or control of a dog that". That reflects the reality that it is the dog which does the hunting. Possession and control might be established through a requirement that the identity of the huntsman and the responsibilities of others involved in the hunt should be intimated to the police in advance of the hunt taking place. However, it is doubtful whether possession would cover a situation that would not be adequately covered by "control". Indeed proof of "possession" usually requires two elements, viz knowledge and control.

7.19 Another way of expressing the mental state required and reflecting the fact that it is the dog which does the hunting would be "knowingly causes or permits a dog to hunt a wild mammal". That would mirror the requirement in a number of pieces of wildlife protection legislation, e.g. section 21 [49] of the Wildlife and Natural Environment (Scotland) Act 2011, section 33 of the same Act and section 5(1)(f) of the Wildlife and Countryside Act 1981.

7.20 The separate approaches of focusing attention on the actions of the hunter on the one hand and the actions of the dog on the other could be achieved by "uses, or causes or permits, a dog …" [50]

7.21 These suggestions may give rise to concern about the risk that setting a lower standard might lead to allegations against moorland dog-walkers whose pets set off unexpectedly in pursuit of a fox. As stated above at paragraph 5.21, that concern is misplaced.

7.22 Each of the foregoing mental state tests is clearer than that which exists at present in section 1(1) and would fit well into a scheme in which the offence is clearly stated in section 1(1) and the exceptions are stated with greater clarity than at present.

Vicarious Liability
7.23 Some submissions favour the introduction of vicarious liability on the part of the person in overall charge of the hunt. For this to work in practice it would be necessary to identify that person. That may be a decision to be made by the hunt ad hoc for each event, and could in principle be a requirement. The fieldmaster has the responsibility of directing the followers who should have little, if any, interaction with the hounds. The person in overall charge of the hounds is the huntsman. He is the one most likely to be responsible for any breach of section 1(1). A vicarious liability provision is unlikely to make any difference to his position. He does have some assistance from a whipper-in. However the only situation in which vicarious liability would add protection would be one where a whipper-in acted in some way to take control of the pack from the huntsman. There are other possible approaches to vicarious liability.

7.24 There may be merit in providing that the owner who gives the hunt permission to hunt over the land would be guilty of an offence in the event that someone involved in the hunt commits an offence. Similar provisions were introduced into the Wildlife and Countryside Act 1981 [51] by section 24 of the Wildlife and Natural Environment (Scotland) Act 2011. They provide that a person who has a legal right to kill or take a wild bird on or over land or manages or controls the exercise of that right is guilty of an offence where his employee or agent or an independent contractor engaged by him commits an offence. It is a defence for the landowner to show that he took all reasonable steps and exercised all due diligence to prevent the offence being committed. Those making the submission consider that the landowner engaging a hunt to perform pest control services would take a close interest in the arrangements being made to satisfy the requirements of section 2. Were this approach to be followed, the offence currently set out in section 1(2) would be unnecessary. No submission critical of the terms in which that and section 1(3) are currently stated has been made to the Review. However, as these provisions stand, any contravention would be difficult to prove.

7.25 One possible obstacle to giving effect to vicarious liability of an owner of land should be noted. There are circumstances where the absence of clear information identifying who holds formal title or right to the land may hinder investigations. It is to be hoped that it is not an issue likely to affect many investigations and that Government land reform legislation will eliminate it in any event [52] .

Restrictions on the Hounds
7.26 Other suggestions for amendment of the legislation with considerable support among those making submissions to the Review are (1) limiting the number of dogs that may be used by hunts to two and (2) requiring the dogs to be muzzled. I am persuaded by the submissions and such other evidence as there is, in particular that of the experience of those who work with packs, the scientific study paper by Naylor and Knott [53] (taking full account of its limitations and the criticisms made of it [54] ) , and the fact that in England and Wales hunts do not generally flush to guns using two dogs, not only that searching and flushing by two dogs would not be as effective as that done by a full pack of hounds, but also that imposing such a restriction could seriously compromise effective pest control in the country, particularly on rough and hilly ground and in extensive areas of dense cover such as conifer woodlands. In relation to muzzles, there are submissions from people with experience of working with hounds that muzzled hounds are exposed to a risk of injury through the muzzle being caught or entangled in undergrowth, and are less able to cry or bark clearly to alert the huntsman to the discovery of a scent or quarry. A muzzled terrier sent underground would also face the risk of attack against which it might have no defence.

Burden of Proof
7.27 It has also been proposed that the burden of proving the application of one of the exceptions should fall upon the accused. Whether such a provision is consistent with Article 6 of the European Convention on Human Rights depends on a number of considerations. In a not dissimilar situation in DPP v Wright, however, the Divisional Court in England took the view that imposing a legal burden of proof on the defendant would be an oppressive, disproportionate, unfair, and in particular unnecessary intrusion upon the presumption of innocence in Article 6 of the Convention. The issue is a controversial one likely to give rise to legal dispute.

7.28 The 2004 Act says nothing about the burden of proof. However, the Divisional Court was faced with the question whether the very fact that an accused relied on one of the exemptions under the Act imposed any onus of proof on the accused. In both England and Wales and Scotland, the basic rule is that the prosecution must prove the case against the accused beyond reasonable doubt. That routinely extends to the prosecution having to exclude any defence raised beyond reasonable doubt. In both jurisdictions there are exceptions to that general rule. Where the law does impose the burden of proving the defence on an accused, it is for the accused to discharge that burden on the balance of probabilities.

7.29 In both jurisdictions there are rules relating to the proof of exceptions or exemptions. In England and Wales, section 101 of the Magistrates' Courts Act 1980 provides:

"Where the defendant to an information or complaint relies for his defence on any exception, exemption, proviso, excuse or qualification, whether or not it accompanies the description of the offence on matter of complaint in the enactment creating the offence or on which the complaint is founded, the burden of proving the exception, exemption, proviso, excuse or qualification shall be on him; and this notwithstanding that the information or complaint contains an allegation negativing the exception, exemption, proviso, excuse or qualification."

For Scotland Schedule 3, paragraph 16 of the Criminal Procedure (Scotland) Act 1995 provides:

"Where, in relation to an offence created by or under an enactment any exception, exemption, proviso, excuse, or qualification, is expressed to have effect whether by the same or any other enactment, the exception, exemption, proviso, excuse, or qualification need not be specified or negative in the indictment or complaint, and the prosecution is not required to prove it, but the accused may do so."

The bulk of the judgment of the Divisional Court is taken up with determining whether relying on an exemption in Schedule 1 of the 2004 Act placed either an evidential burden or alternatively a legal or persuasive burden on the defendant. An evidential burden is a burden to raise the point as an issue in the course of the evidence, whereupon the burden falls on the prosecution to prove beyond reasonable doubt that the exemption does not apply. A legal or persuasive burden is a burden placed on the defendant or accused to prove on the balance of probabilities that his conduct fell within the exemption.

7.30 The Divisional Court reviewed the authorities, most of which are cases decided after the enactment of the Scotland Act which requires that legislation must be read and given effect to, so far as it is possible to do so, in a way which is compatible with Article 6 of the European Convention on Human Rights. Article 6(2) provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The Divisional Court engaged in detailed analysis of these authorities and reached the conclusion noted above. The test the Court applied was the risk of miscarriage of justice in the event that the onus of proof was transferred, particularly because of the potential difficulty for the defendant of proving certain aspects of the defence. Reference was made in particular to it being difficult for the defendant to prove the fifth condition applying to stalking and flushing out in terms of paragraph 1(7) of the Schedule to the 2004 Act, viz that he had taken reasonable steps for the purpose of ensuring that as soon as possible after being found or flushed out the wild mammal was shot dead by a competent person and that each dog used in the stalking or flushing out was kept under sufficiently close control to ensure that it did not prevent or obstruct achievement of that objective. The Court considered that the burden imposed was merely the evidential burden of raising the point as an issue. The Court concluded:

"We consider that many prosecutions would be unfairly unbalanced if section 1 and Schedule 1 placed a legal burden on the defendant. Where, for instance, a defendant intended that his hunting was exempt under paragraph 1, he would have to prove the substantial issues in the case, once the prosecution had established a prima facie case that he was in pursuit of a wild mammal with a dog."

7.31 The Divisional Court referred to what was, prior to the introduction of the requirement of compatibility with Article 6 of the European Convention on Human Rights, one of the leading Scottish cases on this issue, albeit in a civil context, vis Nimmo v Alexander Cowan & Sons Ltd 1967 SC(HL) 79, [1968] AC 107. The orthodox principle applied in that case was, in the words of Lord Wilberforce, "that exceptions, etc are to be set up by those who rely on them". In Nimmo it was held that the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the responsible employer. If an exception was to be established, it was for the party claiming the exception to establish it. A majority of the Court expressed the opinion that where a linguistic construction of the statute did not clearly indicate upon whom the burden should lie, the Court should look to other considerations to determine the intention of Parliament, such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respected parties would encounter in discharging the burden. Since Nimmo the courts have tended to emphasise the significance of the difficulty of proof in determining where the burden lies. It may be simple for a person to prove that he has permission or holds a licence to do something, but other matters may be much more difficult to establish. In analysing Nimmo in the later case of R v Hunt [1987] 1 AC 352 Lord Griffiths said:

"When all the cases are analysed, those in which the courts have held that the burden lies on the defendant are cases in which the burden can be easily discharged."

However it is not immediately obvious that what had to be proved in Nimmo could be more easily established than the terms of the flushing exemption under paragraph 1 of the Schedule to the Hunting Act 2004. Much might be said on both sides, and it is not appropriate to try to give a definitive interpretation in the contest of this Review.

7.32 In Fraser v Adams 2005 SCCR 54 the Crown do not appear to have suggested that the onus of proof fell upon the accused, and the Sheriff at paragraph 4 emphasised the burden on the Crown to prove the case. However, recent Opinions of the Court of Criminal Appeal indicate a possibility that that Court could interpret Schedule 3, paragraph 16, of the 1995 Act as applying to transfer the legal or persuasive burden of proof of each of the exceptions under the 2002 Act to the accused.

7.33 In Doonin Plant Ltd v HM Advocate [2014] HCJAC 26, 2014 SCCR 234 [55] the Court decided that, where a company was charged with a contravention of section 33(1)(b) of the Environmental Pollution Act 1990 prohibiting the storage of waste except under and in accordance with a waste licence, but Regulation 17 of the Waste Management Licensing Regulations 1994 disapplied these provisions in relation to activities exempted under paragraph 13 or Schedule 3 to the Regulations, including the storage of a limited quantity of specified types of waste at a place where certain specified products are to be manufactured from it, the question whether the company was operating within a paragraph 13 exemption was clearly a matter within their knowledge and that it was for them to prove that they came within the exemption.

7.34 In Cunningham v HM Advocate [2012] HCJAC 90, 2012 SCCR 605 [56] paragraph 16 of Schedule 3 was held to apply where the accused was made the subject of an order by the Chancery Division of the High Court in England prohibiting him from being a director of or being concerned in the management of a company "without leave of the court" and that it was for him to prove that he had the leave of the court to act.

7.35 In McMurdo v HM Advocate [2015] HCJAC 37, 2015 SCCR 271 [57] the issue arose in the context of the interpretation of section 52 of the Civic Government (Scotland) Act 1982 which makes it an offence to have any indecent photographs of children in one's possession. Section 52(2)(b) provides that it shall be a defence for the accused to prove that he had not himself seen the photograph and did not know that it was indecent. In deciding that the onus of proving that defence lay on the accused, the Court said this:

"Whether a statutory defence carries with it a legal (reverse) onus or only an evidential burden depends upon an interpretation of the particular provision, the activity prohibited and whether a departure from the normal incidence of the presumption of innocence is justified, balancing the interests of the public with the rights of the individual."

7.36 The Court founded upon the analysis of the subject recently carried out in Adam v HM Advocate [2013] HCJAC 14, 2013 SCCR 209 [58] . That case related to section 3(2) of the Dangerous Dogs Act 1991 which provides that it shall be a defence for the owner of a dog who is charged with an offence under section 3(1) because the dog was dangerously out of control to prove that the dog was at the material time in the charge of a person he reasonably believed to be a fit and proper person to be in charge of it. Following an analysis of the issue under reference to many of the cases considered by the Divisional Court in DPP v Wright, the Court held that the 1991 Act was enacted to deal with what was perceived to be a serious problem of dogs attacking particularly children (as in fact happened in this case), that one of the purposes of the Act was accordingly to prevent a serious danger to the public; that in light of this legitimate object there was nothing objectionable in a requirement on a person accused of an offence under section 3(1) to discharge the legal burden imposed by section 3(2); that in all the circumstances, balancing the interests of the public and the appellant's fundamental rights, the imposition of a legal burden in section 3(2) of the 1991 Act was not unacceptable, unreasonable or disproportionate.

7.37 In light of the opinions expressed in these cases, it is far from clear that the Court of Criminal Appeal in Scotland would reach the same conclusion as the Divisional Court in England on the question whether an exception to the offence of hunting a wild mammal with a dog is for the accused to prove or the Crown to exclude should the accused raise it. The lack of prosecutions in Scotland has meant that the Court of Criminal Appeal has had no opportunity to interpret any of the provisions of the 2002 Act and give guidance on their application. I have addressed them in some detail because there is considerable public interest in the matter; the aim of the legislation was to bring an end to the chase and the kill by dogs and yet there remains widespread suspicion that the chase and possibly even the kill continue to occur; the exceptions were intended to allow the use of dogs in connection with genuinely necessary activities and, in limited circumstances, certain sporting activities; there is a view, for which there is some supporting evidence, that the flushing from cover for pest control exception is a decoy for the continuation of some traditional hunting practices; observation and investigation of any offending is very difficult because the activity is conducted over a wide area of often remote countryside; and because taken together these may amount to circumstances justifying a decision by Parliament to provide specifically in the Act that the onus of proof of compliance with an exception lies on the accused. It should be sufficient for the prosecutor to show that a person is using dogs to carry out acts which are generally part of hunting of a wild mammal in circumstances where there are no firearms and no potential "guns" to be seen. That should be sufficient to prove illegal hunting in the absence of other evidence to indicate a genuine activity falling within an exception.

7.38 If the onus on the accused is simply an evidential burden, ie to raise the exception under which he was acting as an issue, the task on the Crown of proving beyond reasonable doubt that he was not acting in accordance with the exception is an extremely difficult one. First of all, it involves proving a negative. It also involves obtaining evidence about events that occurred in remote areas far from the public gaze where the loyalties of those who are most likely to have had the best view of what happened may make investigation difficult. Police Scotland have encountered unwillingness on the part of hunt participants, and also on the part of estate staff in relation to other wildlife crime ,to give witness statements to investigating officers "on legal advice", and on at least one occasion witness statements noted verbatim by a solicitor were read out in response to police enquiries. Legal advisers for insurers have also apparently given advice that hunt participants should not give witness statements to the police without legal representation.

7.39 I note that at Stage 1 of the passage of the Bill the Justice and Home Affairs Committee opposed placing the onus of proof of an exception on the accused.

Licensing

7.40 The existence of hunting licence schemes in a number of jurisdictions in mainland Europe was noted by the Burns Report. A scheme of licensing to enable pest control activities to proceed was also envisaged in the Bill as originally drafted. The licensing provisions were removed in the course of the passage of the Bill. While greater transparency by way of advanced notification of certain information about the activity of hunts has been proposed in submissions and addressed above, it is not clear that establishing a formal system of licensing would do more for the protection of wild mammals than amending the legislation would. The same difficulties of proof and enforcement would remain. The bureaucracy and expense involved are unlikely to be adequately reflected in resultant benefit. That is a very broad assessment based on an overview of the material gathered by the Review. In the absence of any details submission about the benefits of licensing, it is not possible to explore the matter in more detail. The one obvious gain would be the possibility of licence revocation in the event of non-compliance. However the difficulty of proof of non-compliance would remain.

Penalties for Offending

7.41 Little was said in submissions about the penalties available to the courts in the event of conviction. They have not been highlighted as inadequate in any respect. It is in any event not long since the penalties for wildlife crime in general were reviewed by the Wildlife Crime Penalties Review Group.

Time Limit for Prosecution

7.42 The time limit for completing an investigation into an alleged offence and instituting the prosecution has given rise to problems for both the police and the Crown. Section 5(1) of the Act provides for prosecution of an offence under the Act as a summary offence. Section 136 of the Criminal Procedure (Scotland) Act 1995 sets the general limit for bringing summary prosecutions as within six months after the contravention occurred or, in the case of a continuous contravention, within six months after the last date of such contravention. That limit does not apply where the enactment creating the offence fixes a different time limit. The reporting of one case two weeks before the expiry of that period made proper investigation impossible. Increasingly wildlife offences are the subject of forensic science investigation and post-mortem examination which often take time. Where skilled opinion evidence is required, obtaining a fully researched expert report may also take time. In addition enquiries can be delayed by unwillingness of witnesses to give statements.

7.43 A number of statues which create wildlife offences provide for summary prosecution but with an extended time limit, which is six months from the date on which sufficient evidence came to the knowledge of the prosecutor, but no more than three years from the date of the offence. (See Conservation (Natural Habitats, &c) Regulations 1994, regulation 102 [59] ; Protection of Badgers Act 1992, section 12A [60] ; Nature Conservation (Scotland) Act 2004, section 46 [61] ; and Wildlife and Countryside Act 1981, section 22 [62] ). Both the police and the Crown would welcome amendment of section 5 to extend the time bar in that way.


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