Improving the protection of wild mammals: consultation analysis

Executive summary

Introduction

1. Responding to concerns about fox hunting, the Scottish Government appointed the Right Honourable Lord Bonomy in December 2015 to carry out a review of the operation of the Protection of Wild Mammals (Scotland) Act 2002 (the 2002 Act). The main purpose of the 2002 Act is to ban the deployment of dogs to chase and kill wild mammals. However, it also provides a number of exceptions which allow the limited use of dogs for certain situations – as defined in the Act (sections 2-5). Lord Bonomy's report, published in November 2016, set out recommendations for (i) addressing inconsistencies and a lack of clarity in the language of the Act, and (ii) strengthening aspects of the Act to enable more effective detection, investigation and prosecution of alleged offences.

2. Between 6 October 2017 and 31 January 2018, the Scottish Government undertook a public consultation to gather views on Lord Bonomy's suggested reforms to the 2002 Act. The consultation paper contained 16 questions (Question 1 to Question 7, with Question 1 containing 10 sub-questions), comprising a mix of closed (tick-box) and open questions.

3. Frequency analysis was carried out on responses to all closed questions. Comments made in response to each open question were analysed qualitatively to identify the main themes and range of views expressed, together with areas of agreement and disagreement in the views of different types of respondent.

About the respondents

4. The consultation received 18,787 responses. Of these, the vast majority (n=18,497, 98%) were campaign responses submitted through five different campaigns. These campaigns generally supported the suggestions and recommendations made by Lord Bonomy and / or they called for a further strengthening of the law beyond the recommendations made. The remaining 290 'substantive' ( i.e. personalised) responses were submitted by 25 organisations and 265 individuals. All but two of the organisational respondents fell into one of two categories: (i) those with an interest in countryside management and countryside sporting (n=13) and (ii) animal welfare charities and campaign groups (n=10).

Overall support for the review recommendations

5. Between 94% and 98% of respondents indicated support for or agreement with each of Lord Bonomy's proposals for reform ( i.e. they ticked 'yes' to the closed questions). These figures reflect the very large campaign response. Among the organisational respondents (n=25), animal welfare charities and campaign groups indicated support, whereas countryside management and sporting groups generally indicated opposition.

Language of the Act (Qs 1.1 – 1.10) ( Chapters 3 – 7)

6. Lord Bonomy identified areas where the language of the 2002 Act was unclear or inconsistent, and offered specific suggestions for improvement. Questions 1.1 to 1.9 invited views on these. Question 1.10 provided space for other comments or suggestions for improving the language in the Act.

7. Across all these questions, animal welfare charities and campaign groups, their supporters among the individual respondents, and campaign respondents expressed support for Lord Bonomy's suggestions ( i.e. they answered 'yes' to Questions 1.1 to 1.9). These respondents thought a lack of clarity and inconsistency in the legislation were hindering enforcement and prosecution and they called for certain aspects of the Act to be strengthened to remove perceived loopholes and reduce the likelihood of a wild mammal being killed by dogs.

8. By contrast, countryside management and sporting groups and their supporters among individual respondents thought that the current legislation was already clear and working well. With few exceptions, this group generally answered 'no' to Questions 1.1 to 1.9 and were opposed to amending the 2002 Act.

9. Comments at Question 1.10 came mainly from animal welfare charities and campaign groups, individual respondents opposed to hunting, and campaign respondents. This group suggested the Act should: (i) provide a definition of 'cover'; (ii) specify a maximum number of dogs allowed to be used in flushing activities; (iii) introduce a requirement for dogs used in hunting to wear muzzles; and (iv) introduce a new offence of 'reckless hunting'.

Terriers (Q2) ( Chapter 8)

10. Lord Bonomy suggested that, in line with the Code of Conduct of the National Working Terrier Federation ( NWTF), the Act should specify that, wherever possible and practical, only one terrier should be entered below ground at a time to locate a fox. The consultation asked respondents if they agreed with this suggestion (Question 2).

11. Respondents expressing support for this proposal thought the current legislation needed to be strengthened in this area. This group of respondents repeatedly emphasised that this restriction should be 'on the face of the Act and not part of a code of conduct, binding or otherwise'. These respondents believed that this proposal would result in better protection of the welfare of foxes and terriers and would bring Scottish legislation in line with that in England and Wales on this issue. However, they also thought that the phrase 'wherever possible and practical' would create a loophole and should not be included in the legislation; rather the restriction to one terrier should be absolute. In addition, they wanted clarification that (i) several terriers cannot be entered in succession, as might be implied by the phrase 'one at a time', and (ii) dogs should not be used for any activity which might constitute an offence under other legislation ( e.g. such as the digging of badger setts).

12. Respondents disagreeing with this proposal said they fully supported the principle of entering only one terrier to ground at a time whenever practical or possible, but they also argued that there are a wide range of circumstances where it may be necessary (for practical and welfare reasons) to enter more than one terrier to ground. This group were not in favour of legislation covering this issue; instead they thought the choice about the number of terriers to use in any given situation should be made by the terrier man.

13. Those disagreeing with the proposal also expressed concern about the phrase 'wherever possible and practical' being included in legislation. These respondents thought this phrase was open to interpretation, and that it would be difficult to legislate for what constitutes the 'possible and practical'. These respondents advocated leaving this issue to be covered by the new code of practice being drafted in Scotland.

Mental state required for illegal hunting (Qs 3 and 4) ( Chapter 9)

Intention to hunt

14. One argument made to the review of the 2002 Act was that section 1(1) of the Act does not clearly express the element of intent (or mens rea) which is generally required within criminal law. Lord Bonomy made several suggestions about how a mental state test might be incorporated into the legislation to clarify when a person is illegally hunting a wild mammal with a dog. Question 3 asked if respondents agreed with these suggestions.

15. Among those who agreed, a key concern was that the existing legislation allowed a person to avoid prosecution by claiming that their dogs were out of control when they killed a wild mammal and, therefore, that the killing of that wild mammal was not deliberately intended. This group believed that this loophole should be removed, and that the legislation should require a hunter to be in control of their dogs at all times. This group supported Lord Bonomy's suggestions to remove the word 'deliberately' from section 1(1) of the Act and to introduce an offence of 'intentionally or recklessly hunting a wild mammal with a dog'.

16. Respondents who disagreed with Lord Bonomy's suggestions made the following points: (i) that 'hunting' is a deliberate activity and therefore intention is already clear; (ii) that the definition of hunting within the 2002 Act includes the activity of 'searching', and therefore it cannot be difficult for the police and courts to establish when hunting has taken place; and (iii) the only question should be whether the hunting is lawful – because it falls within one of the exceptions and the conditions of the exception have been met. These respondents were opposed to removing the word 'deliberately' from section 1(1), as they considered this word was necessary to provide 'fair justice and defence to a person accused of illegal hunting who finds themselves in circumstances outwith their reasonable control'. They also opposed the introduction of an offence of 'reckless' hunting.

Vicarious liability for landowners

17. The review report discussed the possibility of attributing vicarious liability to a landowner – whereby an owner who gives a hunt permission to hunt over his / her land would also be guilty of an offence if anyone involved in the hunt committed an offence. Respondents were asked if they agreed that a new vicarious liability provision should be explored (Question 4).

18. Respondents agreeing with this proposal thought it would have several benefits: (i) it would help define the responsibilities of those who permit hunting on their land and make them more aware of the legal implications of their decisions; (ii) it would ensure that landowners took more interest in activities taking place on their land – and therefore make illegal hunting less likely to occur; (iii) it would ensure that hunters took greater care to be in control of their dogs at all times; (iv) it would support landowners to dissent to an activity they would not necessarily support or engage in themselves; and (v) it would achieve consistency in the law (landowners can be held vicariously liable for the actions of a gamekeeper who kills a bird of prey).

19. Those opposing this proposal argued that the current law already makes it an offence for a landowner or occupier knowingly to permit another person to enter or use their land for the purpose of illegal hunting. These respondents thought it was unjust and impractical for a landowner to be prosecuted for an offence committed by someone else when permission for a legal hunt had been given in good faith. This group identified possible negative consequences, including increased predation by foxes and the related impacts on livestock, conservation, biodiversity and rural economies.

Burden of proof (Q5) ( Chapter 10)

20. Question 5 asked whether the onus for establishing that conduct falls within one of the exceptions provided in the 2002 Act should rest with the person accused of an offence.

21. Those supporting this proposition argued that if an individual is carrying out what would otherwise be an illegal activity (hunting wild mammals with dogs) under the limited exceptions set out in the 2002 Act, then it was reasonable and proportionate to expect that individual to be able to demonstrate he (i) was fully entitled to claim that exception, and (ii) had taken steps to follow the conditions required by it.

22. Those opposing the proposition believed that the principle of a person being innocent until proven guilty should not be dispensed with lightly. This group considered that putting the burden of proof on the defendant was disproportionate, unreasonable and contrary to the Human Rights Act 1998, and that it would result in 'vexatious prosecutions'.

Time limit for prosecution (Q6) ( Chapter 11)

23. Lord Bonomy recommended that the time limit for bringing prosecutions under the 2002 Act should be extended to three years after the offence has been committed, in line with other wildlife offences. Question 6 asked respondents for their views on this proposal.

24. Those in favour emphasised that extending the time limit would allow for adequate investigation and thorough implementation of the law. This group supported greater consistency between the 2002 Act and other wildlife offences.

25. Those opposed believed there was no need to extend the time limit for prosecution beyond the current six months since the new code of practice in Scotland will introduce changes to make it easier to investigate any allegations of illegal hunting with dogs.

Other comments (Q7) ( Chapter 12)

26. The final question in the consultation (Question 7) invited other comments on the use of dogs to stalk, flush or search for wild mammals. The three main views expressed were: (i) that the management / control of foxes was necessary, and legislation should continue to enable this; (ii) that although the control of foxes may be necessary, the law should be strengthened to ensure the chasing and killing of foxes by dogs did not occur; and (iii) that there should be a complete ban on fox hunting.