Improving the protection of wild mammals: consultation analysis

10. Burden of proof (Q5)

10.1 Section 4 of the consultation paper referred to paragraph 7.27 to 7.39 of Lord Bonomy's report. This section of the report discussed the issue of 'burden of proof'.

10.2 As noted elsewhere in this report, hunting wild mammals with dogs is permitted in certain specific circumstances as set out in Section 2 of the 2002 Act. These circumstances may be used as a defence by an individual who may be charged under the Act. These exceptions are for the purpose of:

(a) Protecting livestock, ground-nesting birds, timber, fowl (including wild fowl), game birds or crops from attack by wild mammals;

(b) Providing food for consumption by a living creature, including a person;

(c) Protecting human health;

(d) Preventing the spread of disease;

(e) Controlling the number of pest species; or

(f) Controlling the number of a particular species to safeguard the welfare of that species.

10.3 During the review, it was proposed that the burden of proving the application of one of the exceptions should fall upon the accused. The review report considers this proposal, examines relevant court decisions, and concludes that there may be sufficient justification, given the circumstances and public interest in the hunting debate, for Parliament to provide specifically in the Act that the onus of proof of compliance with an exception lies on the accused. The consultation invited views on this issue.

Question 5: Do you agree with the proposition that the onus should lie upon the accused to establish that their conduct falls within one of the exceptions provided in the 2002 Act? [Yes / No] Please explain your answer.

10.4 There were 198 substantive responses and 2,059 campaign responses to Question 5. Among organisations and individuals, one-third (34%) agreed and two-thirds (66%) disagreed with this proposition. However, among the organisations, countryside management and sporting organisations were unanimously opposed, and animal welfare charities and campaign groups unanimously in favour. The 2,059 respondents whose views were submitted through the International Fund for Animal Welfare campaign answered 'yes' to this question. Thus, among those who replied to the tick-box part of Question 5, 94% agreed with the proposition that the onus should lie with the accused to establish that their conduct falls within one of the exceptions provided in the 2002 Act. See Table 10.1.

Table 10.1: Q5 – Do you agree with the proposition that the onus should lie upon an accused to establish that their conduct falls within one of the exceptions provided in the 2002 Act?

10.5 Altogether, 2,230 respondents (20 organisations, 151 individuals and 2,059 campaign respondents) commented at Question 5.

Views agreeing that the burden of proof should lie with the accused

10.6 Respondents answering 'yes' to Question 5 expressed concern that (in their view) illegal hunting was continuing to take place under the guise of flushing from cover for pest control purposes. In addition, they highlighted the difficulties of gathering evidence in fox hunting cases, which they believed was acting as a deterrent to prosecution and even enforcement. This group 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.

10.7 Some respondents commented on Lord Bonomy's analysis set out in the review report. These respondents acknowledged that the proposition to place the burden of proof on the accused may appear at first glance to be contrary to Article 6 of the European Convention on Human Rights ( ECHR) which provides for the right to a fair trial, and the right of everyone charged with an offence to be presumed innocent until proved guilty. However, one respondent noted that the proposition is consistent with other aspects of criminal procedure in Scotland and recent case law. Moreover, the prosecution would still be required to prove beyond reasonable doubt that the accused had committed the offence, while the accused would only have to prove 'on the balance of probabilities' that the alleged offence fell within one the statutory exemptions. This respondent suggested that these factors 'serve to ameliorate the perceived incompatibility with the ECHR'.

Views disagreeing that the burden of proof should lie with the accused

10.8 Respondents answering 'no' to Question 5 repeatedly stated that the principle of a person being innocent until proven guilty should not be dispensed with lightly. These respondents suggested that for a prosecution to succeed it is only necessary to prove beyond reasonable doubt that any one of the conditions of an exception has not been met, whereas if the burden of proof was reversed, a defendant would have to prove on the balance of probabilities that all conditions were met. This group considered that putting the onus on the defendant was disproportionate, unreasonable and contrary to the Human Rights Act 1998. Some respondents also expressed concern that this proposal could result in 'vexatious prosecutions'.

10.9 One respondent in this group commented on Lord Bonomy's analysis in the review report and discussed the decision by Justice and Home Affairs Committee (when the original Bill was going through Parliament) not to require the onus of proof to be put into the accused. This respondent pointed out that cases where the burden of proof lies with the defendant are cases where that burden can be easily discharged. In the view of this respondent, that was not the case under the 2002 Act.

Other considerations

10.10 One organisational respondent with expertise in Scottish law answered neither 'yes' nor 'no' but commented on the requirement for the accused to provide evidence that his conduct falls within one the exceptions permitted by the 2002 Act. This respondent stated that:

'This should only impose an evidential as compared to a legal burden on the accused'. Much of the behaviour falling into the category of one of the exceptions will tend to be led as part of the Crown case. It will be the accused's explanation of his conduct that will fall within one of the exceptions that will be pertinent to the defence. Such evidence should require to be uncorroborated and the standard of proof to be on the balance of probabilities. We do not consider that the onus should present a legal burden on the accused. The burden of proving the case remains with the Crown. This position seems to be supported in the case of Fraser….'