Improving the protection of wild mammals: consultation analysis

Annex 3: Campaign response texts

Campaign 1: International Fund for Animal Welfare

Responses submitted by 2,059 respondents

Question 1.1: Do you think the definition of "to hunt" as provided in the 2002 Act should be more specifically defined? [Yes / No] Please explain your answer.

Yes. There are several changes that ought to be made to this piece of legislation in order to make it more effective; and adding a clear-cut definition of hunting is certainly one important aspect that must be addressed.

Any definition included within the Act needs to encompass both the physical activity and the intent. We would suggest a form of words which covers 'those participating in the pursuit of a wild mammal with dogs or those searching for such a mammal with the intention of pursuing once found'.

Question 1.2: Do you agree with Lord Bonomy's suggestion that the word "deliberately" in section 1(1) serves no useful purpose? [Yes / No] Please explain your answer.

Yes. The current use of the word deliberately offers illegal hunters a loophole to exploit by claiming dogs were out of control when they chased and killed a wild animal. It is important that if this word continues to be employed in the Act that it is used in conjunction with language that closes this loophole. We would suggest including a form of words that covers both 'accidental' hunting and 'deliberate' hunting, such as 'recklessly or deliberately'. This should ensure those in charge of a pack of dogs are held accountable for the behaviour of those animals, regardless of whether the dogs are out of control or not.

Question 1.3: Do you think the Act would be clearer if "searching" was included alongside "stalking" and "flushing" in section 2(1)? [Yes / No] Please explain your answer.

Yes. As per our answer to question 1.1, the definition of hunting must contain both the physical act of hunting as well as the intent to hunt. Therefore searching is a vital addition which should be made, to ensure those who are actively searching for an animal to hunt are included within the parameters of the Act. The police have also previously indicated that it would be a useful addition to assist them with investigations and securing convictions for illegal hunting.

Question 1.4: Is "searching" relevant to any other subsections? [Yes / No] Please explain your answer.

Yes. The circumstances under which a person does not commit an offence are detailed in subsections 2(2) and 2 (3). These subsections would both benefit from a clarification through the addition of the word 'searching', for example 'on condition that they do not let any of the dogs under their responsibility to actively chase a wild mammal whilst searching for it.'

Question 1.5a: Do you think the Act would be improved if it included definitions of…:

'To stalk? [Yes / No] Yes

'To search' [Yes / No] Yes

'To flush' [Yes / No] Yes

Question 1.6: What elements would you wish to see included in this definition?

'To stalk': Greater clarification overall within the Act would make for stronger legislation which is easier to enforce, therefore definitions of key phrases such as these would be most useful. However; none of the definitions should allow for the creation of any loopholes through any interpretation that allowing a dog to chase a wild mammal is legal under any circumstances.

'To search': Greater clarification overall within the Act would make for stronger legislation which is easier to enforce, therefore definitions of key phrases such as these would be most useful. However; none of the definitions should allow for the creation of any loopholes through any interpretation that allowing a dog to chase a wild mammal is legal under any circumstances.

'To flush': Greater clarification overall within the Act would make for stronger legislation which is easier to enforce, therefore definitions of key phrases such as these would be most useful. However; none of the definitions should allow for the creation of any loopholes through any interpretation that allowing a dog to chase a wild mammal is legal under any circumstances.

A clearer definition of 'to flush' could, for example, define a minimum number of guns that must be present. Currently the Act does not specify such details, leaving the legislation open to abuse by those who have previously self-regulated the number of guns they require – therefore allowing this clause to be used a loophole for illegal hunting. At the least the legislation should stipulate that the number of guns must be adequate to ensure any mammal flushed from cover is shot as soon as possible.

Question 1.7: Do you think section 2(3) should be framed more narrowly to remove any overlap with section 2(1) by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground? [Yes / No] Please explain your answer.

Yes. The language in subsection 2 (3) could be tightened, to make clear that this exemption is only applicable to situations when the fox or mink is below ground. It is vital that both subsections 2 (1) and 2 (3) continue to include explicit references to using dogs under control. As explained in our answer to question 1.2 it is important to protect the Act from loopholes which would allow hunting to continue if dogs are deemed out of control.

Question 1.8: Do you think that the various areas of overlap and inconsistency between sections 2(1), 2(3), 3(a) and 5 of the Act should be addressed in the manner suggested? [Yes / No] Please explain your answer.

Yes. Greater consistency between subsections 2(1), 2(3), 3(a), and 5 would undoubtedly aid the understanding of the law for both those seeking to legally remove wild mammals as well as law enforcers policing the countryside. Our recommendation would be to update the timeframes in each section to state 'as soon as possible'. The current partial inclusion of the timeframe 'once it is safe to do so' is too subjective and has allowed illegal hunters to claim a chase has taken place because they deemed it 'unsafe to shoot'.

Question 1.9: Do you think the "lawful means" mentioned in section 2(2) should be specified? [Yes / No] Please explain your answer.

Yes. The phrase 'lawful means' is superfluous in the context of an Act which in itself defines the exemptions for legality. Therefore we would suggest removing the phrase in totality and instead include explicit references to the need to shoot a wild mammal as soon as possible after it has been flushed from cover.

Question 1.10: Do you think there are any other inconsistent, inappropriate or unnecessary features in the Act which could be improved, or do you think there are any terms in the Act which have not been covered above and should be addressed or have been omitted from the Act and should be included? Please identify them and suggest ways in which they might be addressed.

There are two aspects which we feel are currently not adequately addressed within the Act. The first of these is the unlimited number of dogs which may be used to flush an animal from cover. This is at odds with the law in England and Wales and we would urge the government to use this opportunity to harmonise the law in Scotland with neighbouring legislation. Allowing an unlimited number of dogs to be used to flush from cover undermines the purpose of flushing from cover, which is to allow the animal to be identified clearly and swiftly shot. Using a large group of dogs is counterintuitive to this aim as a clear shot will be less likely to be found swiftly when multiple animals are roaming the area.

The second aspect which should be addressed concerns the issue of recklessness, as outlined in our previous answer to question 1.2. The Act in its current state allows for a significant loophole by means of claiming dogs were out of control when they chased a wild mammal. This loophole effectively neuters the legislation by giving any illegal hunter an open excuse for their activity which is hard to dispute in court. Strengthening the Act to ensure those in charge of a pack of dogs are held accountable for the actions of those dogs would seem both sensible in terms of closing this loophole, as well as logical when considering the standard responsibility undertaken by any other dog owner who exercises their animal in public.

Question 2: Do you agree with Lord Bonomy's suggestion that the legislation should impose a restriction in line with the Code of Conduct of the National Working Terrier Federation that, wherever possible and practical, only one terrier should be entered to ground at a time? [Yes / No] Please explain your answer.

Yes. Once again this is an aspect of the Act which appears to lag behind the sister legislation in place in England and Wales. The Hunting Act in England and Wales stipulates a code of conduct by which anyone working a terrier must abide and is enshrined in law. We would recommend the same official inclusion of this code of conduct within the Protection of Wild Mammals Scotland Act, so it becomes law. It should be a clear offence to not abide by all the aspects of this code of conduct, and a specific stipulation must be made to ensure only one terrier is entered into the ground at a time. This is vital on animal welfare grounds as it will help ensure terriers are only used to flush from cover, not to fight, by limiting the amount of time they spend underground.

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] Please explain your answer.

Yes. As per our responses to questions 1.2 and 1.10, it is crucial that the Act does not just cover those who are seen to deliberately participate in hunting activities, but to also close the loophole for those who argue their dogs were 'out of control'. Including provision in the law to convict those whose reckless behaviour leads to hunting would address this concern and sufficiently tighten the law. Any definition of illegal hunting must include both those who act intentionally as well as those who would seek to claim the out of control behaviour of their dogs has exempted them from the law.

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.

Yes. This extension would provide more consistency with some other wildlife crime offences. The lessons learnt from other offences would indicate such an extension would ensure landowners took more of an active interest in what is happening on their property, and therefore make illegal hunting less likely to take place.

Question 5: 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 Act? [Yes / No] Please explain your answer.

Yes. It would appear perfectly logical to expect a person who is conducting activities to remove a wild animal under certain specified exemptions in the Wild Mammals Scotland Act to be able to evidence this fact. The exemption they are following ought to have been front of their mind when they began the activity, to ensure they adhered to the rules carefully so as to not fall foul of the law. Therefore it should not be unreasonable to place the onus on the accused to prove they were following appropriate conditions in line with the exemption they are claiming.

Question 6: Do you agree with Lord Bonomy's recommendation that the time limit for prosecution under the 2002 Act be extended and harmonised with other statutes which create wildlife offences? [Yes / No] Please explain your answer.

Given that the nature of hunting cases are often exceptionally complicated and normally involve multiple witnesses and suspects, it would appear extremely sensible to extend the time limit for prosecutions under this Act. Such an extension would allow for adequate investigation and thorough implementation of the law.

Campaign 2: OneKind and League Against Cruel Sports

Comments submitted by 5,655 respondents

I am responding to the consultation on the Protection of Wild Mammals Act. I feel very strongly that the Scottish Government should amend the Act to stop foxes being chased down and killed, and League Against Cruel Sports polling shows that 85% of the Scottish public support a full ban on hunting.

Lord Bonomy's proposals are helpful in improving animal welfare on hunts, but Lord Bonomy himself is on record as saying he did not intend to produce measures that would amount to a full ban on hunting.

To ban foxhunting, the Government must:

1. Amend any "flushing to guns" exemptions so that they cannot be used by mounted hunts.
Lord Bonomy himself says that mounted hunts appear to be more for exercising horses and hounds, and a social gathering, rather than pest control operations. Only one mounted hunt has ever been convicted under the Protection of Wild Mammals Act, despite evidence that they routinely end with hounds chasing down and killing foxes.

2. Introduce a limit to the number of dogs that can be used to "flush to guns"
In England and Wales, the number of dogs that can be used to flush from cover is limited to two. This makes the Hunting Act a much more robust piece of legislation than the Protection of Wild Mammals Act, in terms of preventing unnecessary suffering to wild mammals. If this was introduced in Scotland then hunts would no longer be able to use a range of excuses that they currently claim prevents them from shooting the fox.

3. Include an offence of "reckless" hunting
The Protection of Wild Mammals Act should outlaw "reckless" hunting, so section 1(a) should state "A person who intentionally or recklessly hunts a wild mammal with a dog commits an offence."

Mounted hunts in England and Wales have invented "trail hunting". This ostensibly involves using a pack of hounds to follow a foxed based scent, and is a cover for illegal hunting as it is designed to hunt by "accidents" that give hunters the defence of claiming the hunting was not intentional. It is possible that this activity will be taken by the Scottish hunts if this review makes it more difficult for them to use the exemptions they have been using.

Campaign 3: OneKind and League Against Cruel Sports

Comments submitted by 9,063 respondents from outside Scotland

I live outside of Scotland and care about wildlife across the UK. I am writing to ask you to strengthen Scotland's foxhunting laws to be at least as robust as those in place in England and Wales.

I was absolutely delighted when, in 2015, the SNP said they would vote to keep the English and Welsh Hunting Act. I was also heartened when they reiterated this promise in 2017.

I am aware that in Scotland, the Protection of Wild Mammals Act is less robust than the Hunting Act. I have been shocked at scenes recorded by League Against Cruel Sports monitors which show that, over the last few years, mounted hunts have routinely used packs of hounds to chase down and kill foxes in Scotland.

These actions would clearly have been illegal if they had taken place in England or Wales.

I am aware that the Scottish Government is consulting on strengthening the law in Scotland. I am writing to ask you to give wild mammals in Scotland the same protection that they are afforded in England and Wales; protection they are currently given thanks to the actions of the SNP.

Please use this opportunity to remove altogether the exemptions that allow mounted hunts to use dogs to flush to guns and limit the number of dogs that can be used in other exceptions to two.

Scotland has a great reputation for wildlife crime legislation, above all other parts of the UK. Please take this opportunity not just to protect mammals in Scotland, but to maintain Scotland's moral and progressive leadership in this crucial policy area.

Campaign 4: Scottish Greens

Responses submitted by 1,705 respondents via the Scottish Green Party website.

Question 1.1: Do you think the definition of 'to hunt' as provided in the 2002 Act should be more specifically defined? [Yes / No]

Yes.

Question 1.2: Do you agree with Lord Bonomy's suggestion that the word 'deliberately' in section 1(1) serves no useful purpose? [Yes / No]

Yes.

Question 1.3: Do you think the Act would be clearer if 'searching' was included alongside 'stalking and 'flushing' in section 2(1)? [Yes / No]

Yes.

Question 1.10: Do you think there are any other inconsistent, inappropriate or unnecessary features in the Act which could be improved, or do you think there are any terms in the Act which have not been covered above and should be addressed or have been omitted from the Act and should be included? Please identify them and suggest ways in which they might be addressed.

I believe there should be a real ban on foxhunting in Scotland. There are two more changes to the 2002 Act that would help to deliver this: a restriction on the number of dogs and a provision to prevent hunts happening under the guise of trail hunts. The legislation in England and Wales limits the number of dogs that can be used to flush to two and this has made it a comparatively stronger piece of legislation. The offence of hunting in Scotland should include "reckless" hunting to ensure the practice where a 'trail hunt' becomes the hunt of a live fox when one is discovered, is illegal.

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.

Question 6: Do you agree with Lord Bonomy's recommendation that the time limit for prosecution under the 2002 Act be extended and harmonised with other statutes which create wildlife offences?

Yes.

Question 7: Please use this space to provide us with any other comments you wish to submit on the use of dogs to stalk, flush or search for wild mammals.

I believe that changes to the legislation should go further than the changes recommended by the Bonomy Review as it did not aim to produce measures that would amount to a full ban on hunting. Specifically, I believe the proposed changes must remove the 'flush to guns' exemption that mounted hunts use to continue hunting.

Campaign 5: Animal Concern

Comments submitted by 15 respondents

I have looked at your prepared response questionnaire for the consultation on Improving the Protection of Wild Mammals in Scotland. Your questionnaire does not properly reflect my feelings on this and I wish you to accept this e-mail as my submission to this consultation. I give permission for my details to be published along with my submission.

Like the vast majority of people in Scotland I believe there is no place for hunting with hounds in the 21st Century. The Protection of Wild Mammals (Scotland) Act 2002 sought to end the killing of foxes by hounds but failed miserably.

Fox hunters had their chance to change to drag hunting and stop killing foxes. They chose not to do that and, free from the attention of hunt saboteurs and of the police who totally failed to police the new law, they continued killing foxes.

Instead of tweaking and tinkering with The Protection of Wild Mammals (Scotland) Act 2002 I ask the Scottish Government to replace that Act with a new law which truly bans hunting, lethal or otherwise, with dogs. I ask that it be made illegal to use dogs to deliberately chase wild mammals and that it be made illegal for people on horseback to chase wild mammals.

While I disagree that there is any legitimate need to kill foxes I fear the Scottish Government will continue to allow dogs to be used to flush foxes out of cover to be shot. If that is the case I urge you to do three things.

1. Limit the number of dogs to be used to two.

2. Make it mandatory that dogs used are fitted with safe muzzles.

3. Make it illegal to put terriers or other dogs into any hole in the ground to force any animal to the surface.

I urge the Scottish Government to create a law which truly bans fox hunting.