The management of wild deer in Scotland: Deer Working Group report

Section 9 Prevention of Suffering and Wildlife Crime

1 The previous five Sections of this Report have reviewed how, when and by whom wild deer can be killed or taken lawfully in Scotland under the existing deer legislation. This Section considers two related topics. The first is s.25 in the Deer (Scotland) Act 1996 that exempts a person from the other provisions of the Act if they are ending the suffering of a wild deer.

2 The second topic is the extent of criminal offences involving wild deer that are committed in Scotland. This ‘wildlife crime’ can involve a person killing, wounding or injuring a wild deer on an owner’s land without permission or legal right. However, wildlife crime can also involve offences committed by owners and occupiers in breach of the terms of the 1996 Deer Act.

9.1 The Prevention of Suffering by Wild Deer

3 The 1996 Act, like the Deer (Scotland) Act 1959 before it, includes one section that provides an exception to the standards of how, when and by whom a wild deer can be killed that are set out in the other sections of the Act.^[1] The exception is s.25 ‘Action intended to prevent suffering’.

4 Section 25 provides that “A person shall not be guilty of an offence against this Act or any order made under this Act in respect of any act done for the purpose of preventing suffering by” a deer which is either starving, injured or diseased or a young deer that will not survive the death of its mother. In such situations, the deer can be killed with any firearm or the most appropriate method possible in the circumstances.

5 The provision in s.25(za) concerning a starving deer was added by the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’). This might be considered a surprisingly recent addition given the long history discussed in Section 18, of winter mortality reported in most years amongst open hill red deer populations, when that mortality is due to hunger and exposure with the suffering that involves.^[2]

6 The wide scope provided by s.25 to override other statutory provisions in the 1996 Act and its secondary legislation, requires that the types of suffering covered are specified in an exclusive list. Those other provisions include the factors discussed earlier in this Part of the Report such as firearm requirements and close seasons. However, the use of s.25 in appropriate circumstances also means that a person can kill a wild deer on land without the permission of the person who has a legal right to kill deer on that land. That would normally be an offence under s.17(1) of the 1996 Act concerning ‘Unlawful killing, taking and injuring of deer’.

7 While s.25 of the 1996 Act provides an exception to s.17 of the Act, a person still has to conform to the requirements of the firearms legislation. Thus, a person can follow a wounded deer on to somebody else’s land and kill the deer without their consent under s.25, but could still be committing an offence of aggravated trespass under s.20(2) of the Firearms Act 1968. This states that “A person commits an offence if, while he has a firearm or imitation firearm with him, he enters or is on any land as a trespasser and without reasonable excuse (the proof whereof lies on him)”.

8 The use of s.25 of the 1996 Act in appropriate circumstances would count as an “excuse” in law against aggravated trespass. However, a “reasonable excuse” is considered to require evidence of both a deer that was suffering in terms of s.25 and that the person had made reasonable attempts to contact the owner for consent, but without success.^[3] As s.20(2) of the 1968 Act makes clear, the proof of those attempts rests with the person operating under s.25 of the 1996 Act if they are challenged under the law.

9 There appears limited guidance on this topic in the Wild Deer Best Practice (WDBP) guidance. In the guidance under the heading ‘Follow-Up across Property Boundaries’, it is stated that: “Section 25 of the Deer (Scotland) Act 1996, provides a reasonable defence in law if there is a need to follow a wounded deer onto adjacent property and dispatch it in order to prevent suffering. In such circumstances the landowner should be notified of the action as soon as possible, whether before or after the event.”^[4]

10 There appear to have been no court cases in Scotland involving this topic. However, the Group is aware that Scottish Natural Heritage (SNH) has been concerned over whether appropriate effort has been made to try to contact the owner in some recent instances of following-up wounded deer. The Group considers that SNH should provide clearer guidance on the legal position through the WDBP, including on what might be considered a reasonable effort. The Group suggests that one approach to this would be for SNH to seek advice from the Crown Office and Procurator Fiscal Service (COPFS).

11 The Group’s view is that fuller advice through the WDBP on the legal position would be helpful to those involved in shooting wild deer. The Group considers that following-up and dispatching a wounded deer is an important aspect of culling deer to adequate welfare standards. The expansion of deer range and deer culling into more lowland areas where the size of land holdings tends to be smaller, may also increase the number of occasions when property boundaries need to be crossed as part of that.

12 The Group is concerned that, while s.25 provides wide exemptions to enable the prevention of suffering by a wild deer, there is no equivalent provision in the Act to enable action to be taken straightaway against a deer posing an immediate threat of serious injury to a person or persons.

13 SNH’s powers under s.10 ‘Emergency Measures’ of the 1996 Act can be used where deer “constitute a danger or potential danger to public safety”, but not to address a situation where deer pose an immediate threat to public safety. Exercising the s.10 powers requires due process and meeting all the other statutory requirements governing the killing of a deer lawfully.^[5] These include the use of an appropriate firearm and ammunition by someone with a legal right to shoot deer on the land involved.

14 The Group’s view is that the risk of situations where deer may pose an immediate threat to human safety could increase as red deer spread into more peri-urban and urban areas. If the circumstances in such an environment cause a stag in antler to panic, serious injuries to a person can result, as illustrated by an example cited later in this Report.^[6] The same could be the case with male fallow deer in antler, although their palmate antlers might be considered less dangerous.

15 The Group considers that there is a disparity between the exemptions in s.25 to end the suffering of a deer, and the lack of any equivalent measure to allow action to be taken straightaway to address a situation where deer pose an imminent or immediate threat to human safety.

16 The Working Group recommends that consideration should be given to having a provision in the Deer (Scotland) Act 1996 which provides exemptions to protect human safety where a deer poses an immediate threat, with those exemptions being similar to the exemptions in s.25 of the Act to end the suffering of a deer.

17 The Group considers that exemptions for action to prevent immediate danger to public safety could be achieved by amending s.25. The Group considers that s.25 might then be appropriately re-titled as ‘Emergency Measures’ as a more accurate use of the title than its current use for s.10. As discussed later in this Report, it can be considered misleading to regard the s.10 powers as an ‘emergency’ measure as such.^[7]

9.2 Wildlife Crime involving Deer

18 Wild deer belong to no-one when they are alive and therefore cannot be stolen. However, the killing or taking of wild deer without the land owner’s permission or ‘poaching’ is the crime most commonly associated with deer management. The topic has deep historical roots and the concern of land owners about poaching was an important factor in the run up to the 1959 Act.^[8] That concern also continued subsequently to influence aspects of Scotland’s deer legislation.^[9]

Source: Dr Roger Evans, ‘The Scottish View on Lyme Disease’, NHS Highland (2015)

19 In the 1959 Act, poaching was an offence under s.22, which was labelled in the side note in the Act as ‘Prohibition of Poaching’.^[10] The term ‘poaching’ was not, however, considered a clear enough term for carrying forward into the 1996 Act, so that the offence is covered in s.17 of the 1996 Act under the section title of ‘Unlawful killing, taking and injury of deer’.

20 In s.17(1) of the 1996 Act, the wilful killing, injuring or taking of wild deer on land without legal right or permission from a person having such a right is an offence, subject to the exemption in s.25 discussed above for ending the suffering of a deer. Similarly, under s.17(2), it is an offence to remove a deer carcase from land without legal right or permission.

21 Crimes involving wild deer do not, however, only consist of offences under s.17 or ‘poaching’. They can also involve firearms offences and offences against other provisions in the 1996 Act and other legislation.^[11] The scope of the crimes that can be committed involving wild deer therefore means that they can be committed by land owners and occupiers as well as others.

22 All offences involving deer tend now to count as ‘wildlife crimes’ in official statistics. However, a distinction might be made between offences that directly involve deer (for example, shooting a deer out of season without authorisation) and offences that might be considered a breach of administrative law (for example, failing to submit a statutory cull return within the legally prescribed time limit).

23 Since the WANE(S) Act 2011, the Scottish Government has been required to publish annual reports on wildlife crime in Scotland.^[12] These reports provide an analysis of the recorded crimes involving wild deer and other species. The nature of the reports means that there is a relatively long delay after the end a year before the report on it is published, with the report covering 2016/17 published in December 2018.^[13]

24 A larger number of incidents that involve deer or might involve deer are reported to the police than are included in the published statistics, as the nature of the reports is very variable. The incidents with sufficient information are recorded in the Police Scotland Intelligence Logs and in 2016/17, 117 of 699 (17%) wildlife incidents logged involved deer.

25 Many incidents may go no further than being logged, either because it is established that no crime was committed or there is insufficient evidence to investigate it further. However, in 2016/17, when it was established that a wildlife crime had been committed in 231 incidents, 14 (6%) involved deer. The average number of cases per year involving deer over the five years 2012/13-2016/17 was 21.

26 The cases involving deer tend to be spread relatively thinly across the 13 police divisions covering Scotland. In 2016/17, the cases occurred in six divisions and in the previous two years eight and seven divisions respectively. While half the cases in 2016/17 were in Police Scotland’s extensive Highlands and Islands Division, the pattern varies year to year.

27 Establishing that a crime has been committed does not necessarily mean that there is a suspect or sufficient evidence to go to court. In 2016/17, 99 wildlife crime cases were passed by Police Scotland to COPFS, with fewer than five cases involving deer.^[14] COPFS then brings proceedings against people in court where it considers there is sufficient evidence and it is in the public interest to do so.

28 There were no court cases involving deer in 2015/16 and one case in 2016/17. However, over the five year 2012/13-2016/17, 11 cases involving deer went to court.^[15] The charges were proved in seven of the 11 cases; a 64% conviction rate. Three of the proved cases were for offences against s.17(1) of the Deer (Scotland) Act 1996 and thus involved the killing or taking deer on land without appropriate authority. The other four proved cases each involved an offence against different provisions in the 1996 Act.^[16] The seven convictions resulted in one community sentence and six fines averaging £517.

29 The statistics quoted above reflect that deer are involved in relatively few wildlife crimes that reach the stage of being considered for prosecution by the COPFS and even fewer result in convictions. While SNH has no responsibility for wildlife offences under the 1996 Act and reports any incidents of which it is aware to the police, SNH staff may accompany police in some situations, for example, on a visit to a venison dealer to locate female deer shot out of season without authorisation.^[17]

30 Overall, poaching remains the most common wildlife crime involving deer. While the number of established cases each year is small, SNH reports that there is anecdotal evidence that it is still an issue in some areas and, similarly, there are also indications that incidents may have become more common south of the Highland Boundary Fault towards the Central Belt.^[18] It might be considered that the spread of wild deer into more lowland areas and the generally high numbers of roe deer, have created more opportunities for poaching in those areas while traditionally it was seen as largely a Highland issue.^[19]

31 Poaching remains a sensitive issue for those affected by it and there is a past history of its extent being overestimated.^[20] The difficulty of obtaining sufficient evidence that a poaching crime has occurred and that is also sufficient to go to prosecution, means that it can still seem to be “an issue dominated by anecdote and rumour” as there is no information to indicate its full extent.^[21]

32 Poaching is an important issue to tackle with other offences against the terms of the Deer (Scotland) Act 1996 and related legislation. However, poaching can be considered of limited significance as a factor in the scale of deer management in Scotland, with over 100,000 wild deer reported as shot lawfully every year.

Footnotes

1 Section 33 in the Deer (Scotland) Act 1959.

2 See Section 18.

3 SNH Information Response 40.

4 Wild Deer Best Practice guidance on ‘Culling’, section on ‘Reaction and follow-up’.

5 See Section 23.

6 See Section 19.

7 See Section 23.

8 For example, Callander, R. and MacKenzie, MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland, p.21.

9 For example, in relation to night-shooting. See Section 6.

10 Side notes were used to label sections in legislation, before the change to giving sections titles.

11 For example, the Protection of Wild Mammals (Scotland) Act 2002.

12 Section 20 of the WANE(S) Act 2011 established this requirement by creating a new section 26B in the Wildlife and Countryside Act 1981.

13 Scottish Government (2018). Wildlife Crime in Scotland 2017. Annual Report.

14 The reports do not now include the actual totals for certain categories of information where there are less than five cases, due to data protection considerations. The number of cases in 2012/13-2015/16 were eight, four, five and four respectively.

15 It might be noted that someone is likely to be charged under the most serious offence potentially committed and therefore, for example, might be recorded as a firearms offence rather than wildlife offence.

16 These were: s.5(1) and (5) (out of season); s.17(3) (killing a deer other than shooting with appropriate firearm and ammunition); s.22 (two or more persons involved in offence); s.23(1) (illegal possession of a deer carcase).

17 SNH reported visiting some dealers with the police in 2017 (DWG meeting with SNH, 13 March 2018, and follow-up response, 26 April 2018).

18 SNH Op cit and Police Wildlife Officer communication with DWG (24 May 2018).

19 Poaching can take various forms including shooting, hunting with dogs, the use of crossbows and snaring.

20 Callander and MacKenzie (1991) Op cit, p.21.

21 Callander and MacKenzie (1991) Op cit, p.21.