Improving the protection of wild mammals: consultation analysis

7. Language of the Act – other areas requiring clarification

7.1 This chapter presents respondents' views on Questions 1.9 and 1.10. Question 1.9 related to paragraph 5.35 of the review report. This paragraph discusses the phrase 'by lawful means' in section 2(2) of the 2002 Act:

Where a person is using a dog in connection with the despatch of a wild mammal, being of a pest species, with the intention of flushing the wild mammal from cover or from below ground in order that it may be shot or killed by lawful means, that person does not commit an offence under section 1(1) by virtue of the dog killing that wild mammal in the course of that activity.

7.2 Lord Bonomy commented that it is not specified in this section what these 'lawful means' are, and this should be clarified. Question 1.9 invited views about this issue.

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

Clarification of 'by lawful means' (Q1.9)

7.3 There were 174 substantive responses and 2,059 campaign responses to Question 1.9. Among organisations and individuals, one-third (33%) answered 'yes' and two-thirds (67%) answered 'no'. Countryside management and sporting organisations were unanimously opposed while animal welfare charities and campaign groups were unanimously in favour. A further 2,059 respondents who submitted their views through the International Fund for Animal Welfare campaign answered 'yes' to this question. Thus, 94% of respondents who provided a tick-box response at Question 1.9 thought the 'lawful means' mentioned in section 2(2) should be specified. See Table 7.1.

Table 7.1: Q1.9 – Do you think the 'lawful means' mentioned in section 2(2) should be specified?

	Yes		No		Total
Respondent type	n	%	n	%	n	%
Countryside management and sporting organisations	–	0%	13	100%	13	100%
Animal welfare charities and campaign groups	6	100%	–	0%	6	100%
Other organisational respondents	2	100%	–	0%	2	100%
Total organisations	8	38%	13	62%	21	100%
Individual respondents	57	33%	117	67%	174	100%
Total (organisations and individuals)	65	33%	130	67%	195	100%
Campaign respondents	2,059	100%	–	0%	2,059	100%
Total (all respondents)	2,124	94%	130	6%	2,254	100%

7.4 Altogether, 2,208 respondents (20 organisations, 129 individuals and 2,059 campaign respondents) provided further comments at Question 1.9.

Views in favour of specifying the meaning of 'by lawful means'

7.5 Among respondents who answered 'yes' to Question 1.9, there were two main views about the phrase 'by lawful means'.

7.6 The first view was that any method used for dispatching a wild mammal must be swift and humane, in compliance with the Animal Health and Welfare (Scotland) Act 2006. Humane despatch must ensure an instant kill or rapid onset of unconsciousness. Respondents who held this view generally thought that the Act should specify the permitted lawful methods (other than being shot, which is already permitted by section 2(2)), since these will be limited. Furthermore, these methods should not include permitting a dog to kill a wild mammal; nor should they include drowning or stoning. In addition, some respondents questioned whether the killing of a wild mammal with a bird of prey could meet the standard of being 'swift' and 'humane'; these respondents called for the exception for falconry at section 3 to be removed.

7.7 The second view was that specification of 'by lawful means' was not required in section 2(2). This group called for this phrase to be deleted entirely since it is the Act itself which defines the legality of excepted activities. Those who held this view also reiterated that the legislation should contain explicit references to the need to shoot a wild mammal as soon as possible after it has been flushed from cover.

7.8 One respondent in this group pointed out that this phrase ('by lawful means') is not used elsewhere in section 2 of the Act.

Views that it is unnecessary to specify the meaning of 'by lawful means'

7.9 Respondents who answered 'no' to Question 1.9 made a wide range of comments. While some simply stated that 'I think everyone understands what is meant' or 'it is already obvious (or clear enough)' without further comment, other respondents explained what they understood the phrase to mean, and there were differences of opinion about this.

7.10 Some thought this phrase referred specifically to the use of a bird of prey, since section 2(2) relates to activities under 2(1) and 2(3) and only mentions shooting.

7.11 Others pointed out that the only lawful means would be shooting, snaring or killed by a bird of prey, but that snaring is not relevant in this context.

7.12 A third view was that this phrase indicates that it is for the practitioner, on whom the burden of lawful behaviour rests, to satisfy themselves that they are operating within the law. Those with this view indicated that this allows for a wild mammal to be dispatched by either a gun or bird of prey, and a fox or mink to be dispatched by a gun. However, it should be up to the practitioner to choose their own gun and cartridge / shot-size combination, ensuring compliance with other relevant legislation.

7.13 A fourth view was that this phrase allows for the means of killing to change over time ('the natural evolution of the legislation') without having to amend the Act. A similar view to this was that, having a list of 'lawful means' might mistakenly exclude methods that would otherwise be considered as lawful, thus resulting in an offence being created unintentionally.

7.14 One organisational respondent commented that section 2(2) was designed to protect those operating under either 2(1) or 2(3) from 'malicious prosecution' given that a proportion of foxes are (inadvertently) killed by dogs under the exemptions.

7.15 It was common for respondents who answered 'no' to Question 1.9 to reiterate – as they did in relation to previous questions – that the current wording of this phrase has no impact on the ability to enforce the law or prosecute offenders. Thus, there was no reason to specify it further.

Other views on the language in the Act (Q1.10)

7.16 The final question in Section 1 of the consultation paper – Question 1.10 – was an open question which asked respondents for any other views on inconsistencies, inappropriate or unnecessary features, or omissions or possible improvements regarding the 2002 Act, or the terminology used in the legislation.

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 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?

7.17 Altogether, 18,666 respondents commented at Question 1.10. This comprised 21 organisations, 148 individuals and 18,497 campaign respondents.

7.18 Around two thirds of organisations and individuals answering Question 10.1 did not offer specific points for consideration but offered general views about the current legislation, or on hunting more broadly. These views will be discussed in Chapter 12 of this report. In addition, most countryside management and sporting organisations and around half of individual respondents simply stated that the current legislation was working well and required no further clarification.

7.19 Thus, specific comments at Question 1.10 came mainly from animal welfare charities and campaign groups, individual respondents opposed to hunting and campaign respondents.

7.20 Those who made specific suggestions focused on four main issues: (i) providing a definition of 'cover'; (ii) the inclusion of a specific limit on the number of dogs used in hunting activities; (iii) introducing a requirement for dogs used in hunting to wear muzzles; and (iv) the introduction of a new offence of 'reckless hunting'. The fourth point has already been discussed briefly in relation to Question 1.2 (see Chapter 3) and will be discussed again in more detail in relation to Question 3 ( Chapter 9). Therefore, this section focuses on the first three points.

Definition of 'cover'

7.21 Respondents noted that the definition of 'cover' is crucial to the understanding and implementation of the exception of 'flushing from cover' (at section 2 of the Act), given that this exception can no longer be invoked once an animal is not 'in cover' and can be seen.

7.22 One animal welfare group described how the current undefined term was open to interpretation in applying the Act – they cited a court case involving the Jedburgh Hunt (Jedburgh PF v Riley and Richardson), and the slightly different definitions of the term 'covert' (a variation on 'cover') used by the Scottish Mounted Foxhound Packs voluntary protocol and the Masters of Foxhounds Association ( MFHA).

7.23 Respondents suggested that, for the purposes of the legislation, a definition of cover should be added to section 10 of the Act and should incorporate the following:

• When an animal is in cover, it is not visible.
• Once the animal becomes visible, it is not in cover and from that point onwards, the exceptions for flushing from cover can no longer be invoked.
• Cover is wood, thicket, area of gorse or other vegetation above ground where a wild mammal cannot be seen.

7.24 The animal welfare group referred to in paragraph 7.22 above suggested the legislation should be amended to include the definition as follows: 'Cover' means 'a wood, thicket, area of gorse or other vegetation above ground where a wild mammal cannot be seen but may be flushed by dogs up to the point that it becomes visible to the waiting guns.'

Limiting the number of dogs used in flushing activities

7.25 In paragraph 7.26 of the review report, Lord Bonomy states that, on the basis of the submissions and other evidence available, he was persuaded that 'searching and flushing by two dogs would not be as effective as that done by a full pack of hounds', and that 'imposing such a restriction could seriously compromise effective pest control' – particularly on rough and hilly ground and in extensive areas of dense cover such as conifer woodlands.

7.26 Nevertheless, respondents to the consultation called for section 10(1) of the Act to be amended to limit, to two, the number of dogs that can be used to flush a mammal from cover. This view was expressed by all five campaigns taking part in the consultation – thus, by nearly 18,500 respondents. Some respondents suggested that this could be achieved by removing the phrase 'or more' from the current wording in section 10(1).

7.27 Respondents thought this change was required to stop hunts operating with full packs and claiming that the exception outlined in section 2(1) for flushing applied – some made the point that allowing an unlimited number of dogs to be used to flush from cover undermined the purpose of flushing from cover, which was to allow the wild mammal to be identified clearly and swiftly shot. It was also noted that the introduction of such a limit would be in line with the equivalent legislation in England and Wales.

Require dogs used for flushing to wear muzzles

7.28 The campaign from Animal Concern (15 respondents) called for it to be made mandatory for dogs used for flushing foxes from cover to be fitted with safe muzzles.

Other points raised

7.29 Respondents made a wide range of other points in response to Question 10.1 relating to specific sections of the 2002 Act. These were all raised by only a few respondents in each case. Only those points which have not previously been covered (in relation to Questions 1.1 to 1.9) are listed here:

• The requirement to have the dog under control is essential – all references to the use of a dog within the exceptions provided by the Act should be amended to read 'a dog under control'. The relevant sections for this would be 2(2), 3 (section title) and 4(1).
• Section 2(1)(d) states that hunting with a dog may be carried out for the purpose of preventing the spread of disease. It should be clarified whether the intention here is to prevent the spread of disease in livestock or humans, or in the hunted species.
• There was a query about the use of the term 'pest species' in section 2(2) and its application to hunting foxes. The point was made that foxes have never been classed as a pest species by the Ministry of Agriculture, Fisheries and Food ( MAAF), the Department of Environment, Food and Rural Affairs ( DEFRA) or any government agricultural department in Scotland or Wales.
• The current drafting of sections 2(3) suggests that all terrier men are required to be in possession of a firearm, although it was thought that this was not the intention of Act. (This point is discussed further in Chapter 8.)
• The exceptions covered by section 5(1)(b), 5(1)(c) and 5(3) should not apply as the killing of the wild mammals is not necessary in the circumstances covered.
• The option of 'disposal' in relation to disqualification orders relating to the care or disposal of a dog (section 9(1)(a)) was deemed 'inappropriate and unnecessary' on the basis that every effort should be made to rehome a dog.