Improving the protection of wild mammals: consultation analysis

9. Mental state required for illegal hunting

9.1 Section 3, Questions 3 and 4, of the consultation questionnaire addressed issues covered in paragraphs 7.15 – 7.25 of Lord Bonomy's report. These sections discussed (i) the mental state required for illegal hunting and (ii) the subject of vicarious liability. This chapter presents an analysis of responses to these two questions.

Intention to hunt (Q3)

9.2 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. There was also a view that it should be an offence to hunt 'recklessly' – in cases where a huntsman does not exercise sufficient control over the hounds while hunting a wild mammal. Lord Bonomy made several suggestions about how a mental state test ( i.e. the concept of mens rea) might be incorporated into the legislation to clarify when a person is illegally hunting a wild mammal with a dog (see paragraphs 7.16 – 7.20 of the review report); some of these have already been discussed briefly in relation to the language of the Act. (See Chapter 3.) These suggestions were:

• To state clearly that an offence is committed when a person 'intentionally or recklessly' hunts a wild mammal with a dog
• To remove the word 'deliberately' from section 1(1), as this word has the effect of creating an additional hurdle when trying to prove that an offence has been committed
• To amend section 1(1) to state that an offence is committed when an individual 'knowingly causes or permits a dog to hunt a wild mammal' – which would mirror the offences in other wildlife protection legislation
• To amend section 1(1) to state that an offence is committed when an individual 'uses or causes or permits a dog to hunt a wild mammal' – which separates the actions of the hunter from the actions of the dog.

9.3 The consultation asked for views about whether respondents agreed with Lord Bonomy's suggestions for providing greater clarity about the intention of an individual to hunt illegally.

Question 3: Do you agree with Lord Bonomy's suggestions which seek to provide greater clarity on the question of whether someone is hunting illegally (by finding ways to clarify the element of intent)? [Yes / No] Can you suggest ways in which we might do this?

9.4 There were 196 substantive responses and 2,059 campaign responses at Question 3. Among organisations and individuals, two-fifths (39%) answered 'yes' to indicate that they agreed with Lord Bonomy's suggestions, and three-fifths (61%) answered 'no'. Among the organisations, animal welfare charities and campaign groups unanimously agreed, while countryside management and sporting organisations nearly all disagreed. In addition, 2,059 respondents who submitted their views through the campaign organised by the International Fund for Animal Welfare agreed in response to this question. Thus, among those who answered the tick-box question at Question 3, 95% agreed that the Act should provide greater clarity regarding the element of intent. See Table 9.1.

Table 9.1: Q3 – Do you agree with Lord Bonomy's suggestions which seek to provide greater clarity on the question of whether someone is hunting illegally (by finding ways to clarify the element of intent)?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	1	8%	12	92%	13	100%
Animal welfare charities and campaign groups	7	100%	–	0%	7	100%
Other organisational respondents	1	100%	–	0%	1	100%
Total organisations	9	43%	12	57%	21	100%
Individual respondents	68	39%	107	61%	175	100%
Total (organisations and individuals)	77	39%	119	61%	196	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,136	95%	119	5%	2,255	100%

9.5 Altogether, 9,571 respondents (21 organisations, 131 individuals and 9,419 campaign respondents) made comments at Question 3, or comments (in campaign responses) that discussed the issue of 'reckless hunting' and so were relevant to Question 3.

Views in favour of greater clarity in the legislation about intention to hunt

9.6 The key concern for respondents answering 'yes' to Question 3 was that the existing legislation provides what they saw as a 'loophole' – essentially allowing 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 or be prosecuted for 'gross failure to exercise the appropriate degree of care to control the hounds'.

9.7 Given this perspective, these respondents were generally supportive of Lord Bonomy's suggestion to amend the 2002 Act to remove the word 'deliberately' from section 1(1) and to introduce an offence of 'intentionally or recklessly hunting a wild mammal with a dog'. This group commented that the phrase 'intentionally or recklessly' (like the phrase 'knowingly causes or permits…') is familiar to the Scottish courts as it is used in a variety of contexts in other wildlife legislation ^[12] ; thus there would be no difficulties for the courts in interpreting this terminology or understanding what constitutes reckless behaviour.

9.8 Some within this group wanted further clarification (and perhaps a more stringent test) and called for the introduction of an offence of 'intentionally or recklessly allowing a fox [wild mammal] to be killed, taken, injured or harassed by dogs'.

9.9 Some respondents also made the more general point that there would be benefits in having consistency in the way offences are defined across different wildlife policy areas.

9.10 Less often, respondents suggested other ways of clarifying the intent to hunt illegally – although it was not always clear if those who made these suggestions wanted them to be set out in the legislation, or whether they were proposing that certain types of evidence should be regarded as proof of illegal hunting. For example, suggestions included: 'by stating how many guns were present when hunting a particular area'; 'the level of control the huntsman has over the hounds'; 'how the hunt escalates / progresses through the various stages'; 'how the wild mammal is killed (whether it has been shot or mauled)'; etc. One respondent commented that, if hounds are actively searching an area of cover and there are no guns in position outside that area, illegal hunting is taking place. Such comments were sometimes linked to an alternative view that 'the legislation needs to look at outcomes not intentions'.

9.11 Some respondents noted that none of Lord Bonomy's suggestions would create difficulties for an ordinary dog-walker whose dog runs off after a wild mammal. At worst, such a situation would be seen as carelessness, rather than recklessness.

Alternative views in favour of clarifying the element of intent

9.12 Among those who answered 'yes' to Question 3 were a small number of individual respondents who agreed that the element of intent was important. These respondents suggested it would be helpful for a huntsman to be able to prove intent to hunt within the law in cases where the huntsman's dogs behave in a way he had not intended.

Views that greater clarity in the legislation about intention to hunt is unnecessary

9.13 Respondents who answered 'no' to Question 3 commonly 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. Respondents making these points were generally 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'.

9.14 One organisational respondent commented on Lord Bonomy's analysis, and particularly the point made in paragraphs 7.21 and 5.21 of the review report that a moorland dog-walker would not have to fear prosecution if their dog unexpectedly sets off in pursuit of a wild mammal. This respondent pointed out that this comment only relates to the proposal to replace 'deliberately' with 'intentionally or recklessly' in the definition of the offence; it would not apply equally to Lord Bonomy's other suggested formulations for a mental state test. Moreover, given that hunting in Scotland includes the activity of searching, this respondent believed it was essential that any offence should require a higher standard of proof than 'recklessness', or merely 'permitting' a dog to hunt a wild mammal.

9.15 Another organisational respondent advocated changing the definition of hunting to: 'to deliberately chase a wild mammal with dogs'. This suggestion was also made in response to Question 1.1 (see Chapter 3).

9.16 Some respondents noted that the code of practice currently being drafted in Scotland will help to provide clarity on the element of intent in the legislation.

Vicarious liability for landowners (Q4)

9.17 The review report (paragraphs 7.23 – 7.25) discussed the issue of 'vicarious liability' – whereby one individual 'in charge' of a hunt is held responsible for any breach of the legislation. The report also 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. The consultation invited views about this latter proposal.

Question 4: Do you agree that we should explore a new vicarious liability provision whereby a landowner who permits a person or persons to deploy dogs to stalk, search for and flush wild mammals over their land is guilty of an offence in the event that someone involved in such activity commits an offence? [Yes / No] Please explain your answer.

9.18 There were 216 substantive responses and 3,764 campaign responses to the tick-box part of Question 4. Among organisations and individuals, just over a third (36%) agreed and just under two-thirds (64%) disagreed. Among organisations, countryside management and sporting organisations unanimously disagreed, and animal welfare charities and campaign groups unanimously agreed. In addition, a further 3,764 respondents who submitted their views through the campaigns organised by the International Fund for Animal Welfare and the Scottish Greens answered 'yes' to this question. Thus, among all the respondents who answered Question 4, 97% were in favour of exploring a new vicarious liability provision in relation to landowners. See Table 9.2.

Table 9.2: Q4 – Do you agree that we should explore a new vicarious liability provision whereby a landowner who permits a person or persons to deploy dogs to stalk, search for and flush wild mammals over their land is guilty of an offence in the event that someone involved in such activity commits an offence?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	–	0%	13	100%	13	100%
Animal welfare charities and campaign groups	7	100%	–	0%	7	100%
Other organisational respondents	1	100%	–	0%	1	100%
Total organisations	8	38%	13	62%	21	100%
Individual respondents	70	36%	125	64%	195	100%
Total (organisations and individuals)	78	36%	138	64%	216	100%
Campaign respondents	3,764	100%	–	0%	3,764	100%
Total (all respondents)	3,842	97%	138	3%	3,980	100%

9.19 Altogether, 2,236 respondents (21 organisations, 156 individuals and 2,059 campaign respondents) made further comments at Question 4.

Views in support of vicarious liability for landowners

9.20 Respondents answering 'yes' to Question 4 identified what they saw as a range of possible benefits of this proposal:

• It would help to define the responsibilities of those who permit hunting on their land and make them more aware of the legal implications of their decisions.
• It would ensure that landowners took more interest in activities taking place on their land – and therefore make illegal hunting less likely to occur.
• It would ensure that hunters took greater care to be in control of their dogs at all times.
• It would support landowners and occupiers to dissent to an activity they would not necessarily support or engage in themselves.
• It would achieve consistency in the law (just as landowners may be held vicariously liable for the actions of a gamekeeper who kills a bird of prey).

9.21 Some within this group also called for hunt masters to be prosecuted through vicarious liability where their employees are convicted of illegal hunting. There was a further suggestion that anyone who wishes to hunt should be required to obtain a licence – with the licence specifying details of the hunt.

9.22 A small number of respondents who answered 'yes' to Question 4 queried whether someone who was not present could be held accountable for the illegal actions of someone else. One individual thought this proposal should be restricted to landowners who were negligent or reckless, who did not exercise due caution in granting permission, or who knew or ought to have known that an offence occurred.

9.23 There was also a query about how it could be proven, beyond all reasonable doubt, that a landowner had permitted a hunt to take place. One suggestion was that anyone wishing to hunt should be required to obtain written consent from the landowner.

Views opposed to vicarious liability for landowners

9.24 Respondents answering 'no' to Question 4 repeatedly made the point that the current law (section 1(2)) already makes it an offence for an owner or occupier knowingly to permit another person to enter or use their land for the purpose of illegal hunting. This group of respondents thought it was both 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.

9.25 Some respondents equated this proposal to 'bullying'. Others compared it to a range of other scenarios, e.g.: 'would be tantamount to a landowner being held liable where a tenant of one of his properties was found to be dealing drugs from the property'; 'just because someone assaults you on a property, it does not mean the property owner is vicariously liable'; 'is the Queen vicariously liable if foreign vessels fish illegally in UK waters?'

9.26 The main argument against this proposal was that the relationship between a landowner and a hunt is not the same as in other situations where vicarious liability operates – in particular, the landowner is not the employer of those involved in the hunt. Thus, the relationship between a landowner and a hunt, is not equivalent to the relationship between a landowner and a gamekeeper. The proposal was, in effect, suggesting that the landowner should be held liable for the actions of a third party, regardless of any care or attention the land owner had taken. It was suggested this could be an infringement of the land owner's human rights.

9.27 This group of respondents raised what they saw as a number of other difficulties with this proposal:

• Fox control can be granted permission by shooting rights holders rather than the land owner / occupier directly.
• Some land is owned by corporate bodies / trusts where no one individual is responsible. Even with reforms to land registration, it may not be straightforward to identify the owner of a piece of land where an alleged offence was committed.
• If an offence takes place near the boundary of lands owned by different individuals / organisations, it may be difficult to determine on whose land the offence was committed.
• Landowners do not always know who is on their land. Or they may simply deny knowledge of the hunt. How can it be proven that a landowner had given permission?

9.28 Some respondents identified possible unintended consequences, suggesting that, rather than risk unfounded prosecution, landowners may require dogs to no longer be used for hunting foxes on their land, and instead would suffer increased predation by foxes and the related impacts on livestock, conservation, biodiversity and rural economies.

9.29 Finally, one organisational respondent pointed out that the review report refers to various forms of vicarious liability within hunts and queried why the consultation asks only about attributing vicarious liability to landowners.

Other issues for consideration in relation to vicarious liability

9.30 One organisational respondent answered neither 'yes' nor 'no' to this question, but suggested there may be merit in considering the creation of such an offence if it can be shown that any conviction of a landowner would achieve the policy intentions of the 2002 Act with regard to protecting wild mammals. However, this respondent raised the following issues for consideration:

• Would this proposal be workable in practice? How many prosecutions have been undertaken in relation to vicarious liability provisions in other wildlife legislation? Have these provisions made employers more accountable?
• The extent to which it would be possible to institute proceedings against the landowner will depend on the normal employment type relationships between the parties. Would it be possible to establish the necessary close connection between the landowner and the accused? If the connection and duties between the accused and landowner cannot be established, any landowner will be able to claim a defence of due diligence.