Improving the protection of wild mammals: consultation analysis

3. Language of the Act – defining the offence

3.1 Section 1 of the consultation paper concerned the language of the 2002 Act. In the review of the 2002 Act, Lord Bonomy recommended that inconsistencies and inappropriate and unnecessary expressions should be removed from the Act – with a view to introducing greater consistency and clarity of expression. (See Chapter 5 of the review report).

3.2 The consultation contained nine closed (yes / no) questions, numbered 1.1 to 1.9, which addressed specific aspects of the wording of the 2002 Act. Each question invited views on a specific recommendation / suggestion made in the review report. Space was also provided for respondents to give further comments. A tenth question (1.10) invited any other comments or suggestions about improving the language in the Act.

3.3 This chapter presents respondents' views in relation to Questions 1.1 and 1.2, which related to paragraphs 5.6 – 5.22 of the review report.

Definition of 'to hunt' (Q1.1)

3.4 Section 1(1) of the 2002 Act defines hunting with a dog as an offence: 'A person who deliberately hunts a wild mammal with a dog commits an offence.' The term 'to hunt' is then defined in Section 10(1) of the Act: 'In this Act – 'to hunt' includes to search for or course.'

3.5 In the review report (paragraph 5.7), Lord Bonomy commented that it is difficult to determine what is meant by the word 'hunt' in section 1(1) of the Act, and that this difficulty is compounded by the addition of the word 'deliberately'. ^[6] He also noted that the lack of clarity in the definition of 'to hunt' is not helped by the definition provided in Section 10 of the Act, since 'coursing' (which is generally understood as chasing or pursuing an animal) will always be considered to be an offence under the Act. At the same time, the Act stipulates that in certain circumstances 'searching' for a mammal may not be considered to be an offence (and is defined in Section 2 of the Act as an 'exception' to the offences set out in Section 1).

3.6 Question 1.1 of the consultation asked for views about whether clarification was needed in relation to the definition of 'to hunt'.

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.

3.7 There were 216 substantive responses to this question and 3,764 campaign responses. Views were divided among organisations and individuals: in both groups, 45% said 'yes' and 55% said 'no'. However, among the organisational respondents, animal welfare charities and campaign groups unanimously answered 'yes', while countryside management and sporting organisations nearly all answered 'no' to this question. The 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, 97% of all respondents providing a tick-box response to Question 1.1 thought that the definition of 'to hunt' in the 2002 Act should be more specifically defined. See Table 3.1.

Table 3.1: Q1.1 – Do you think the definition of 'to hunt' as provided in the 2002 Act should be more specifically defined?

	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	2	100%	–	0%	2	100%
Total organisations	10	45%	12	55%	22	100%
Individual respondents	88	45%	106	55%	194	100%
Total (organisations and individuals)	98	45%	118	55%	216	100%
Campaign respondents	3,764	100%	–	0%	3,764	100%
Total (all respondents)	3,862	97%	118	3%	3,980	100%

3.8 Altogether, 2,233 respondents (22 organisations, 152 individuals and 2,059 campaign respondents) submitted comments at Question 1.1.

3.9 Comments at Question 1.1 generally expressed diametrically opposed views. One group argued that the definition of 'to hunt' within the legislation was unclear; the other group argued that it was perfectly clear. One group suggested that the lack of clarity in the definition was hindering the enforcement of the law and had resulted in a small number of successful prosecutions; the other group argued that the large number of successful prosecutions brought forward under the legislation were proof that the definition is clear.

3.10 These opposing views are explored further below. At the same time, the two groups suggested largely similar definitions of 'to hunt'.

Views in favour of clarifying the definition of 'to hunt'

3.11 Respondents who answered 'yes' to Question 1.1 thought that there was a need for terminology in the 2002 Act to be made clearer and more consistent throughout. This group were concerned that certain aspects of the current legislation (i) were 'open to interpretation' and (ii) could provide 'loopholes' which may be exploited by those wishing to circumvent the law.

3.12 In relation to the definition of 'to hunt', specifically, respondents in this group described this term as 'vague' and 'unclear' and they argued that it has different meanings in different contexts. This group also pointed to evidence submitted to the review by Police Scotland which (in their view) suggested that different understandings (or misinterpretations) in relation to this term were acting as a barrier to effective enforcement.

Suggested definitions

3.13 Respondents who wanted to see greater clarification of the term 'to hunt' often made suggestions about how the definition could be improved. Some of these suggestions were general in nature. For example, it was suggested that any definition of 'to hunt' should encompass both the activity and the intent ( actus reus and mens reus). Those who made this suggestion often went on to say that 'hunting' should be defined as both the physical pursuit of an animal, and also the searching for an animal with the intention of pursuing once it is discovered. There were also suggestions that the language in the Act should recognise that the intention of hunting is to kill an animal. It was noted that in some countries of Europe it is common to use the term 'hunt' to refer to the pursuit of deer with a rifle (often referred to as 'stalking' in the UK).

3.14 Others within this group offered very specific suggestions. The two mentioned most frequently are discussed here.

3.15 The most common view was that hunting should be defined as follows: 'to (deliberately) chase (or pursue) a wild mammal with dogs or to use dogs to search for a mammal in order to chase (or pursue) it'. A slight variation on this definition was submitted by respondents through the International Fund for Animal Welfare campaign: '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'. It was suggested that this definition would limit the unlawful behaviour to the element of 'the chase' or 'pursuit', while the non-chase activities ('stalking', 'searching' and 'flushing') would continue to be stated as exceptions.

3.16 Related to this latter point, there was also a relatively common view that the term 'to hunt' should be abandoned entirely. Respondents expressing this view argued that it would be simpler and more accurate to use the term 'to chase' since the main purpose of the legislation is to prevent the deliberate chasing of a wild mammal with dogs and since non-chase activities are permitted through exceptions. There was also a suggestion that 'chasing' should cover hunting underground – i.e. that the pursuit of a fox (or other mammal) underground should be considered an offence.

3.17 The second common view was that the definition of 'to hunt' should include all of the following: 'to search for, stalk, flush, chase, pursue or course'. ^[7] In some cases, respondents also stipulated that the offence of 'hunting' should incorporate all of these activities 'when no guns are present to shoot any animal which may break cover'. The point being made was that unless there are guns positioned correctly, within close range, to be able shoot an animal flushed from cover, the activity should be regarded as illegal. (It should not be sufficient simply to have people with guns present.) There was also a suggestion that 'stalk' could be removed from this definition if the Act is amended to remove it from section 2.

3.18 Another significant theme in the comments from this group was an emphasis on the importance of dogs being 'under control'. Respondents who wanted greater clarification of the language in the Act pointed out that searching for a wild mammal with a dog under control is distinctly different to searching and flushing with dogs out of control.

Other points

3.19 Finally, among those who answered 'yes' to Question 1.1, respondents occasionally described scenarios which (in their view) should not be considered to be illegal under any amended definition of 'to hunt'. For example:

• Clarification of the term 'to hunt' should ensure that the activity of using a dog to follow up a wounded deer (or other mammal) is not inadvertently treated as an illegal activity.
• There may be cases (for example during an organised shoot) where a number of dogs are used in a line to search for and flush pheasants. In such a situation, the dog may disturb and then chase after a hare or deer, but this would not necessarily be intentional on the owner's part.

Views that it is unnecessary to clarify the definition of 'to hunt'

3.20 Among the respondents who answered 'no' to Question 1.1 ( i.e. they did not agree that the term 'to hunt' in the 2002 Act should be more specifically defined), it was common for people to simply state that, in their view, the definition of 'to hunt' was 'perfectly clear', 'quite sufficient', 'fine', or 'appropriate'. Some in this group believed that 'everyone knows what it means and entails'; these individuals saw 'no reason to change the term'.

3.21 However, among those who gave reasons for their views, there were three main themes: (i) the current legislation has been sufficient to enable enforcement and prosecution; (ii) those who have opposing views on this subject are unlikely to agree on a more satisfactory definition; and (iii) there could be (a range of) negative consequences if the definition is changed. Each of these reasons is discussed briefly below.

3.22 Despite indicating that the current definition of 'hunt' was clear, respondents in this group also frequently expanded upon (or offered clarifications of) the current definition. These suggestions were (in most cases) very similar to the most common definition offered by those who answered 'yes' to this question. These comments are discussed at the end of this section.

Current legislation has been sufficient to enable enforcement and prosecution

3.23 Respondents in this group pointed to the number of successful prosecutions made under the 2002 Act, which (in their view) proved that the law – and in particular, the term 'to hunt' – has been understood and applied appropriately by enforcement authorities and the courts. They further argued that there is no evidence that any prosecution has been hindered by a lack of understanding of the term.

Stakeholders are unlikely to agree on a more satisfactory definition

3.24 Respondents highlighted the statement in the review report (paragraph 5.15) that 'it is likely to be difficult, if not impossible, to fashion a satisfactory comprehensive definition', and they argued that any change in the current definition of 'to hunt' is unlikely to lead to greater clarity. There was also a view that 'playing with words' will not persuade those who are fundamentally opposed to hunting with dogs in any form.

There may be negative consequences from changing the definition

3.25 Occasionally, respondents highlighted possible negative effects which could arise from changing the definition. These could include (i) confusion for those involved in hunting and / or for law enforcement authorities and (ii) a reduction in the court's ability to exercise discretion. It was noted that the current legislation permits effective pest control, and there was concern about whether a change in the legislation might jeopardise this activity.

Defining 'to hunt'

3.26 Respondents who thought there was no need to clarify the definition of 'to hunt' nevertheless frequently offered a definition, namely 'to stalk, search, flush or course' – four activities which they believed the 2002 Act specified as being included in the definition of hunting.

3.27 It should be noted that this definition overlapped to a large extent with the definition most commonly suggested by those calling for greater clarification of term – although it does not include 'to chase' or 'to pursue'. (See paragraph 3.15 above.)

3.28 Respondents who defined 'to hunt' as 'to stalk, search, flush or course' generally also provided definitions of these additional terms. Definitions of the terms 'stalk', 'search' and 'flush' are discussed in Chapter 5 of this report; 'to course' was defined as 'pursuit by a dog or dogs using their sense of sight'.

3.29 Some respondents noted that the definition of 'to hunt' currently given in the Act is 'broad' and 'non-exhaustive'. Moreover, it does not distinguish between different types of hunting: it covers both a formal mounted hunt or a hunt on foot; or individuals / groups hunting informally. This aspect of the Act was seen to be well reflected in the range of prosecutions which had been brought forward.

Use of the word 'deliberately' (Q1.2)

3.30 Section 1(1) of the 2002 Act states: 'A person who deliberately hunts a wild mammal with a dog commits an offence.' In the review report (paragraph 5.16), Lord Bonomy comments that the use of the adverb 'deliberately' before 'hunts' is unusual since hunting is regarded as an activity which, by definition, can only be done intentionally. Thus, the use of the word 'deliberately' appears to address the person's state of mind ( i.e. the intention to hunt) twice, and in effect has set the test for proof of an offence under section 1(1) very high or, at the very least, it has complicated the interpretation of the test unduly. Furthermore, the scenario which the inclusion of this word was meant to address – i.e. a dog-walker on the moors whose dog ran off unexpectedly in pursuit of a wild mammal that suddenly appeared – could not be prosecuted even if the word 'deliberately' were not included, because this scenario does not involve the intention to hunt.

3.31 Lord Bonomy thus suggested that the word 'deliberately' could be deleted from section 1(1), and respondents were asked for their views on this question.

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.

3.32 There were 213 substantive responses to this question and 3,764 campaign responses. Among the organisations and individuals, 40% answered 'yes' and 60% answered 'no'. Countryside management and sporting organisations unanimously disagreed, while animal welfare charities and campaign groups unanimously agreed. The 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, 97% of all respondents who answered the tick-box question at 1.2 agreed with Lord Bonomy that the word 'deliberately in section 1(1) serves no useful purpose. See Table 3.2.

Table 3.2: Q1.2 – Do you agree with Lord Bonomy's suggestion that the word 'deliberately' in section 1(1) serves no useful purpose?

	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	50%	1	50%	2	100%
Total organisations	8	36%	14	64%	23	100%
Individual respondents	77	40%	114	60%	191	100%
Total (organisations and individuals)	85	40%	128	60%	213	100%
Campaign respondents	3,764	100%	–	0%	3,764	100%
Total (all respondents)	3,849	97%	128	3%	3,977	100%

3.33 Altogether, 7,875 respondents (21 organisations, 140 individuals and 7,714 campaign respondents) made comments at (or which were relevant to) Question 1.2.

3.34 An analysis of these comments indicates that there may have been some confusion about what the question was asking, since a small number of individual respondents (less than 10) answered 'no' to this question, then made comments which indicated that they agreed with the question's premise ( e.g. 'the word 'deliberately in this context serves no purpose in this section and adds nothing to the meaning'; 'I don't think it serves any particular purpose.'; 'The word deliberately is unnecessary.'). A smaller number (less than 5) answered 'yes' to this question, but then made comments indicating they disagreed ( e.g. 'The term deliberately in relation to this issue is an absolute essential due to the fact it prevents unjustified prosecution.') Therefore, caution should be exercised in interpreting the figures for individual respondents in Table 3.2 above.

Views agreeing that the word 'deliberately' in section 1(1) serves no useful purpose

3.35 In general, those who answered 'yes' to Question 1.2 agreed with Lord Bonomy that hunting is by its very nature a deliberate activity. This group believed that the use of the word 'deliberately' in the definition of the offence allows a person to claim, as a defence, that their dogs were out of control when they chased and killed a wild animal – thus, their actions were not deliberate but accidental. These respondents saw the use of this word as a loophole in the current legislation and called for this loophole to be removed. In their view, any individual in charge of a pack of dogs should be held accountable for the behaviour of those animals.

3.36 Within this group, there were three suggestions about how the language in section 1(1) of the Act could be improved. One group suggested that 'intentionally or recklessly' should be substituted for 'deliberately' in the definition of the offence as this form of words would rule out a defence of 'accidental hunting' and outlaw the practice of 'trail hunting'. ^[8] They argued that this would also bring the wording of the 2002 Act into line with the wording of Wildlife and Countryside Act 1981. Furthermore, they noted that, with this form of words, the scenario in which a person's dog runs off after a hare or fox unexpectedly would not be regarded as an offence because there was no intention by that person to hunt.

3.37 A second group simply advocated deletion of the word 'deliberately'. This group argued that, 'as with other offences, such as robbery and assault, hunting cannot be committed negligently or recklessly'. Removal of the word (it was suggested) would result in greater consistency with the ( UK) Hunting Act 2004.

3.38 A third suggestion was to refer to terminology used in relation to vandalism – where there is reference to 'without reasonable excuse' and 'wilfully or recklessly' in relation to the destruction or damage of property belonging to another. ^[9]

Views that the word 'deliberately' in section 1(1) serves a useful purpose and / or should be retained

3.39 Those who answered 'no' to Question 1.2 (thus indicating a preference to retain the word 'deliberately' in the definition of the offence) repeatedly gave two reasons for their views: that the word is necessary (i) to emphasise the intention to hunt – that it is a 'deliberate' and not 'accidental' activity and (ii) to reassure the person whose dog unexpectedly ran off in pursuit of a wild animal whilst out walking.

3.40 The point was also made that the definition of 'to hunt' in the 2002 Act explicitly includes the activity of 'searching', unlike the law in England and Wales, where the activity of a dog searching for a wild mammal does not in itself constitute an offence. Given the broad scope of the definition of 'hunting' in Scotland, it was seen to be imperative that the legislation makes it clear that 'a person's dog sniffing in the undergrowth' does not amount to an offence unless the dog was being used deliberately.

3.41 Some respondents acknowledged that hunting is a deliberate activity ('this is not disputed') but believed that the word 'deliberately' should be retained to cover any unfortunate and accidental events during a formal hunt, such as the temporary loss of control of hounds, which results in them chasing a wild mammal. The word 'deliberately' was seen to be important because it allowed a distinction to be made between someone who is 'contemptuous' of the law, and someone who is 'demonstrably intending' to comply with the law. These respondents thought that the test for proof of an offence under the Act should be – and should remain – high.

3.42 For this reason, this group also expressed opposition to the notion of 'reckless' hunting. They argued that an introduction of the concept of recklessness would not only put hunting practitioners at risk of prosecution for unintended events but would also set a 'dangerous precedent' for other wildlife legislation. (The latter statement was not further elaborated.) This group emphasised that the 2002 Act was a practical piece of legislation which must be fit for practitioners ( i.e. hunters).

3.43 Two other points made by some respondents in this group were that (i) if the word 'deliberately' serves no useful purpose, then it 'neither aids nor hinders the Act's enforcement and successful prosecutions'; thus, there is no reason to change it; and (ii) the courts may ignore the word if they choose.

Views in support of strengthening the language of the Act

3.44 It should be noted that a relatively small number of respondents (both individuals and organisations) answered 'no' to this question because they thought the word 'deliberately' did serve a purpose in that it enabled organised hunts to avoid prosecution by claiming the 'accidental' killing a fox. These respondents argued that the word 'deliberately' created a loophole for hunts, and they called for the wording of the 2002 Act to be strengthened. These views indicate, again, that care should be taken in interpreting the figures in Table 3.2 above.