Use of Fixed Penalty Notices for wildlife offences in Scotland: consultation analysis

Annex A Fixed penalty notice consultation: Wildlife

Background

Following the Scottish Government’s announcement that it will legislate to increase penalties for the most serious wildlife offences, it is considering whether there is now a need for an additional level of enforcement that does not require referral to the procurator fiscal nor involvement of the Scottish courts, but provides a meaningful and dissuasive penalty for those who are considered to have committed a relevant wildlife offence, and which will thereby promote future compliance with legislative requirements.

The Government is considering whether Police Scotland should be empowered to issue fixed penalty notices (FPN) in relation to relevant less serious wildlife offences (e.g. those arising in relation to non-compliance of snaring registration). It proposes that such FPNs would be set, by regulations, at an amount that provides a proportionate but effective deterrent.

There is currently no provision in the six pieces of wildlife legislation^[1], to be amended by the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill which specifically gives the Scottish Ministers the power to make regulations providing for the use of FPNs.

An amendment to the legislation to provide for such a power would be in step with proposals for a similar power in relation to animal welfare and animal health offences. The Government recently consulted on proposals to amend the Animal Health and Welfare (Scotland) Act 2006 to make provision for FPNs in relation to less serious animal welfare offences such as identification and licensing rules (e.g. microchipping of dogs). It is also in the process of consulting on proposals to amend the Animal Health Act 1981 to make similar provisions for FPNs in relation to less serious animal health offences such as those arising in relation to non-compliance of biosecurity codes.

It is anticipated FPNs would, for example, be made available as an alternative to prosecution for relatively common minor offences such as failure to comply with record keeping requirements or certain poaching offences. The particular approach to be adopted for different kinds of wildlife offence would be set out in the regulations, including the amount of the FPN which may be imposed for each offence. It would be helpful at this stage to receive views on what these offences should be. The alternative of pursuing a prosecution instead of offering a FPN would continue to be available.

We would not be seeking to introduce FPNs for any of the offences that will be increased through the Animals and Wildlife (Penalties, Protections and Powers) Bill. It is anticipated that FPNs will only be capable of being issued for wildlife offences which attract a maximum term of imprisonment of 6 months or a fine not exceeding level 5 (presently £5,000) on the standard scale or both.

FPNs are widely used by local authorities in circumstances out-with the context of wildlife legislation and can be a valuable enforcement tool. It is expected that FPNs would achieve the following:

• allow minor and technical offences to be dealt with quickly and proportionately;
• reduce the likelihood of re-offending, whilst providing a proportionate deterrent when prosecution in court and any resulting criminal record may be excessive;
• improve standards and encourage compliance;
• speed up the process of dealing with offences (persons issued with a fixed penalty notice would not have to wait to appear in court);
• reduce the number of cases being dealt with by the Crown Office and Procurator Fiscal Service, the court system, welfare enforcers and animal keepers; and
• give more flexibility to enforcement authorities by providing them with an enforcement option as an alternative to prosecution in the criminal courts.

Existing FPN regimes

There are a number of FPN regimes currently operating in Scotland.

For example The Aquaculture and Fisheries (Scotland) Act 2007 allows Marine Enforcement Officers (MEOs) to issue FPNs for the fishing industry. It was introduced in April 2008, and extended to include other marine and aquatic offences in 2013. Between 2008 and 2015, Marine Scotland issued 117 FPNs, 88% of which have been paid.

Under the regime FPNs MEOs can issue FPNs up to £10,000. The FPN regime covers four broad policy areas:

• sea fisheries;
• marine protection and nature conservation;
• aquatic animal health; and
• marine licensing.

The specific offences to which FPNs can be applied are laid out in various pieces of legislation.

Further information about the scheme can be found at: https://www2.gov.scot/Resource/0054/00548071.pdf

Responding to this consultation

Please send your completed consultation response and your Respondent Information Form to our dedicated mailbox: wildlifepenaltiesconsultation2019@gov.scot

Alternatively you can post your response to;
Fixed penalty notice consultation: Wildlife
Scottish Government Wildlife Management Team,
Area 3G South
Victoria Quay,
Edinburgh,
EH6 6QQ

Please ensure that responses are submitted before midnight 19 January 2020