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

Section 4 How wild deer can be killed lawfully

4.1 Shooting

5 Wild deer are Scotland’s largest wild land animals.[1] Due to welfare considerations, it has been an offence in Scotland’s deer legislation since the Deer (Scotland) Act 1959 to kill a wild deer “otherwise than by shooting” with a firearm.[2] It is also an offence to shoot at deer from a moving vehicle,[3] while a vehicle cannot be used to drive deer with the intention of killing them without authorisation from Scottish Natural Heritage (SNH).[4]

6 In 1982, the 1959 Act was amended to include a new s.23A that enabled the Secretary of State to specify the “firearms, ammunition, sights and other equipment which may be lawfully used in connection with killing or taking deer”. This power was then carried forward as s.21 in the 1996 Act. The only use of the power to date has been to make The Deer (Firearms, etc.) (Scotland) Order 1985, which continues in force.

7 The 1985 Order has three main paragraphs, 3, 4 and 5, which deal with rifles, shotguns and other equipment respectively, while paragraph 6 enables Scottish Ministers to authorise a person to kill or take deer by other means for scientific, veterinary or related purposes.

4.2 Rifles

8 Paragraph 3 of the 1985 Order specifies the rifle ammunition that can be used to shoot deer, including the minimum bullet weight, minimum muzzle velocity and minimum muzzle energy.[5] These requirements determine the calibre of rifles that can be used legally and the stipulations on ammunition were seen by the Red Deer Commission (RDC) at the time of the Order to be over-specifications to take account of inaccurate shots.[6]

9 The Group considers that the only concern over the current specifications in the Order is the extent to which they will constrain the change to the use of non-lead ammunition to shoot deer. The Group’s view is that the continued use of lead ammunition is an issue that needs to be addressed, as highlighted by the Lead Ammunition Group (LAG) established by the UK Government’s Department of Environment, Food and Rural Affairs (DEFRA) and the Food Standards Agency (FSA) in 2010. The LAG continues, in its authoritative reviews of the information available on the use of lead ammunition, to increase the level of its concerns over the impacts of lead on human food safety and on wild species in the wider environment.[7]

10 The Group considers that the scale of the impact of lead ammunition contamination on the wider environment is not widely enough recognised. However, the Group’s particular concern in this context is lead contamination in wild venison because of its serious implications for human health.[8] The Group also considers that concern over this contamination, or the risk of it, could possibly develop in ways that have an adverse impact on the market for “healthy eating qualities” of Scotland’s wild venison.[9]

11 The Group recognises that SNH, using the Wild Deer Best Practice (WDBP) guidance, is working “with sporting organisations, stalkers and processors to encourage the removal of meat around the wound channel, bruised and bloody meat and an additional 10cm visibly unaffected by the bullet” to reduce the risk of lead contamination in carcases.[10]

12 However, a substantial proportion of the approximately 3,500 tonnes of wild venison produced each year in Scotland does not go through a licensed venison dealer where this recommended best practice can be monitored.[11] There also appears to be no information on the extent to which SNH’s ‘encouragement’ is being followed more generally to reduce the lead contamination. Lead intake accumulates in the body and as the FSA has noted, this can have particular health implications for pregnant women and young children.[12]

13 The essential requirement in order to address the lead issue is the use of non-lead ammunition. The Group acknowledges that Forestry and Land Scotland (FLS) and SNH have been at the forefront of this.[13] FLS’s Wildlife Rangers currently use non-lead ammunition in over 95% of instances and FLS plans to have specified the use of non-lead ammunition in all agreements with contractors and recreational hunters by 2022.[14] SNH also uses non-lead ammunition in around 95% of instances.[15]

14 As a result of FLS and SNH’s approach, the great majority of deer shot on public land are already killed using non-lead bullets. FLS and SNH also account for over 30% of the recorded annual cull of deer in Scotland.[16] However, wider use of this practice appears to be constrained at present by the limited availability of non-lead, copper bullets with an appropriate standard of efficacy for killing deer using some of the most suited smaller calibres of rifles.[17]

15 FLS and SNH tend to use larger calibre rifles, such as 0.270, and have been involved in commissioning the production of specific batches of suitable non-lead ammunition for their use. However, a particular constraint on the wider use of non-lead ammunition appears to be the lack of availability of copper bullets suitable for shooting red deer using a 0.243 calibre rifle and for the use of 0.223 rifles used by many recreational hunters for shooting roe deer.[18]

16 SNH’s hope is that continuing to encourage the use of non-lead ammunition will increase the demand for non-lead ammunition and promote the availability of suitable copper bullets on the market. However, the Group considers that SNH should, with Scottish Government support, be taking a more vigorous approach than at present to promote the use of non-lead ammunition by the deer hunting sector.

17 The Lead Ammunition Group’s view is that there is considerable experience from countries where the change has already been made, that could be used in making the change to non-lead ammunition in the UK.[19] However, the 1985 Order contains a particular constraint on the use of non-lead bullets for deer hunting in Scotland.

18 Paragraph 3(a) of the 1985 Order requires a bullet weight of not less than 100 grains for shooting deer species other than roe. SNH considers that this would need to be reduced to not less than 80 grains to enable a full switch to non-lead ammunition.[20] However, the research that will be necessary before making that change to ensure it would not increase welfare issues, has not been carried out so far.[21]

19 The Group’s view is that the change away from lead ammunition is an issue on which the Scottish Government needs to provide more leadership. The Group considers that the Government should give greater priority to increasing the use of non-lead ammunition to kill deer and make a commitment to ending the use of lead bullets after an adequate transition period. The Government should instruct SNH to promote the use of non-lead bullets more vigorously and also give a clear direction on this issue to its other agencies, including Scottish Forestry and Forestry and Land Scotland.

20 The Group considers that the Scottish Government should also instruct SNH to produce a report reviewing the information available in the UK and elsewhere on the use of non-lead bullets and identifying any necessary ballistic research and associated work that needs to be carried out, including the amendment of paragraph 3(a) in the 1985 Order. SNH’s report should enable the Government to set out a schedule for reducing the use of lead ammunition to kill deer and then ending its use altogether.

21 The Working Group recommends that the Scottish Government should make a clear commitment to end the use of lead bullets to shoot deer in Scotland, carry out the necessary research and promotion to enable that change to be made after a transition period and, as a part of that, amend The Deer (Firearms, etc.) (Scotland) Order 1985 so that the specifications in paragraph 3(a) of the Order are suitable for the use of non-lead bullets.

4.3 Shotguns

22 Paragraph 4 of the 1985 Order allows the occupiers of agricultural land or enclosed woodland to use a 12 bore shotgun with the type of cartridge specified in the Order, to shoot deer to prevent them causing “serious damage” to “crops, pasture, trees or human or animal foodstuffs on that land”.

23 In paragraph 4, there is reference to s.33(3) of the Deer (Scotland) Act 1959 to identify those who can exercise the right of occupiers to use a shotgun. That reference should now be to s.26(2) of the Deer (Scotland) Act 1996, but the list of persons remains essentially the same.[22] They include the occupier in person and a restricted list of others with the occupier’s permission, including the land owner, the land owner or occupier’s employees, or any person authorised by SNH as “fit and competent” for the purpose.

24 Traditionally, farmers and crofters used shotguns to defend their crops from marauding deer and the influence of agricultural interests safeguarded this option in the 1985 Order, despite the welfare concerns over using shotguns on deer. However, as the RDC had noted in the 1960s, increases in the price of venison meant that more farmers and crofters were acquiring a rifle or coming to an arrangement with someone who did.[23]

25 There is no information available on the extent to which the occupiers of agricultural land or enclosed woodland are using shotguns against deer. However, the Group’s inquiries suggested that there are relatively few situations where shotguns might still be used. These situations appear to be mainly to protect specialist crops (such as berry crops and Christmas trees) from damage by roe deer in circumstances where there are few if any safe opportunities to use a rifle.

26 The Group’s view is that there is no longer justification for the occupiers of agricultural land or enclosed woodland to have a general right to use of a shotgun to shoot deer. However, the Group considers that the option of using a shotgun with the correct ammunition to prevent damage by deer should be retained in the legislation in a modified and updated form. This would allow a shotgun to be used in appropriate situations such as the examples above, as well as others where a rifle is not a safe option and the control can be carried out at close quarters (for example, roe deer in urban parks).[24]

27 The Group also considers that the use of a shotgun to shoot deer should be more accountable by requiring it to be authorised by SNH, due to concerns over the risk to deer welfare and in some situations, human safety. However, the Group considers that the option to apply for an authorisation should be less restrictive by being open to the owners and occupiers of any land, rather than just the occupiers of agricultural land and enclosed woodland.

28 An authorisation process would enable SNH to judge both whether a situation warrants the use of a shotgun as the only or best practical option and whether the person to be authorised is considered “fit and competent” to use a shotgun in the circumstances. SNH would need to consider how fitness and competence are to be assessed for the use of a shotgun, as SNH’s current use of these standards is based on the use of rifles.[25]

29 The proposals above would require the terms of paragraph 4 of the 1985 Order to be amended and as part of that, the Group considers that the current specifications in the paragraph for shotgun ammunition should be reviewed against current standards and the opportunity to require the use of non-lead cartridges.

30 The proposals would also require a new provision in the 1996 Act to enable SNH to authorise an owner or occupier to use a shotgun where appropriate to protect “public interests of a social, economic or environmental nature” from damage by deer.[26] The authorisation should be for a period not exceeding 12 months. The Group anticipates that there would be relatively few applications for this type of authorisation, particularly compared to the numbers of out of season and night shooting authorisations granted by SNH each year.[27]

31 The Working Group recommends that the use a shotgun to kill wild deer should be made subject to authorisation by Scottish Natural Heritage through a new provision in the Deer (Scotland) Act 1996, that the owner or occupier of any land should be able to apply for such authorisation and that the terms of paragraph 4 of The Deer (Firearms, etc.) (Scotland) Order 1985 should be amended accordingly.

4.4 Other Equipment

32 Paragraph 5 of the 1985 Order covers two topics. Firstly, it states that it shall be lawful to use “a slaughtering instrument using any ammunition intended for use in it”. This provision was to accommodate the position with farmed deer, with a ‘slaughtering instrument’ being defined as “a firearm which is specially designed or adapted for the instantaneous slaughter of animals or for the instantaneous stunning of animals with a view to slaughtering them”.[28]

33 Secondly, paragraph 5 states that it shall be lawful to use “a sight which is not a light-intensifying, heat-sensitive or other special device for night shooting”. While framed as a permission, this provision has the effect of prohibiting any sights that fall outwith the permission. This prohibition on the use of any type of ‘night sight’ reflected the concern expressed in the House of Lords at the time, that such devices might assist poachers

taking deer illegally.[29] As a result, over 30 years later, all shooting of deer at night still has to be carried out with a telescopic sight and a separate light or ‘lamp’.

34 The context has changed considerably over that period. The current extent of deer poaching is limited as discussed in Section 9 of this Report, and good quality night sights are now widely available. Night sights can also be used legally for shooting species other than deer. As SNH’s Authorisation Review Panel noted, they are already “used effectively for controlling other wildlife species”.[30]

35 Shooting deer at night requires to be authorised by SNH and carried out by a hunter deemed “fit and competent” by SNH, as discussed in Section 8 of this Report. Night shooting is a valuable part of controlling deer in some situations to prevent damage and the option to use night sights offers a number of potential benefits. The improved vision could help ensure public safety in some locations, while clearer sight of the deer could help reduce the chances of wounding it. There could also be other benefits in particular situations.[31]

36 SNH’s Authorisations Panel recommended in 2016 that “SNH should consider undertaking work to establish whether there are benefits for safety, efficacy and deer welfare associated with permitting use of night vision and image intensifying scopes for culling deer”.[32] While night sights are already legally used to shoot other wild animals, their use on deer has to be tested through controlled shooting trials as part of ‘due diligence’.

37 In response to the Panel’s recommendation, SNH commissioned an independent expert to design the trials required and agreed FLS’s involvement in carrying out the trials and purchasing the necessary equipment.[33] As the trials counted as animal research, SNH also required a licence from the UK Home Office to carry them out. Delays in receiving the licence meant the trials were scheduled for late October 2018, with the findings due in March 2019.[34] However, SNH did not carry out the trials as scheduled due to other “staff priorities” and related factors.[35]

38 The Working Group recommends that the Scottish Government should instruct Scottish Natural Heritage to carry out the planned trials into the use of night sights without further undue delay.

39 The Group is not aware of any potential disadvantages of removing the prohibition on the use of night sights to shoot deer. The Group therefore considers that there is no public interest case for continuing to deny land owners, occupiers and those with their permission the option of using night sights to control deer to prevent damage. The Group considers that the prohibition is now an historical anomaly and that, subject to the outcome of SNH’s trials, it should be removed by repealing paragraph 5(b) in the 1985 Order.

40 The Working Group recommends that, subject to the successful outcome of Scottish Natural Heritage’s trials, paragraph 5(b) of The Deer (Firearms, etc.) (Scotland) Order 1985 should be repealed to allow the use of night sights to shoot deer .

41 The Group considers that the 1985 Order should be replaced in due course to revise the terms of the current paragraphs 3, 4 and 5, as discussed above. The Group recognises that further work is required by SNH and others to clarify the specifications for non-lead bullets, and also to review the ammunition that can be used in shotguns. However, the Group considers an earlier legislative opportunity should be taken to repeal paragraph 5(b) in the Order to enable the use of night sights, if SNH’s trials are completed successfully. The 1996 Act could also be amended to require the authorisation of any use of a shotgun to shoot deer, independent of whether the terms of paragraph 4 in the Order have been replaced.

Footnotes

1 Excluding feral pigs established from escapes or release, which can grow to heavier weights than wild deer.

2 Deer (Scotland) Act 1959, s.23(2); Deer (Scotland) Act 1996, s.17(3).

3 Deer (Scotland) Act 1996, s.20(1)(a).

4 Deer (Scotland) Act 1996, s.19. SNH has never granted an authorisation under s.19(2) and it appears that there have been no s.19(2) authorisations for at least 15 years and possibly much longer (DWG and SNH correspondence, 27 February 2018). SNH does not have a standard form for an application as they are so rare.

5 The specifications are set out in the Wild Deer Best Practice guide: ‘Rifles and Ammunition’.

6 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland, p.53.

7 Lead Ammunition Group (2018). Update Report from the Lead Ammunition Group, April 2018.

8 The Group notes that lead contaminated gralloch could be consumed by carrion eaters including, for example, golden eagles in some situations.

9 Scottish Venison website: https://www.scottish-venison.info/.

10 SNH Information Response 26 (SNH position paper on the use of lead ammunition to kill deer, September 2016).

11 See Section 11.

12 Food Standards Agency (2012). Risk to human health from exposure to lead bullets and shot used to shoot wild game, cited in SNH Information Response 26 position paper, Op cit.

13 FES changed into Forestry and Land Scotland on 1 April 2018.

14 Deer Management Round Table, Minutes of Meeting on 20 November 2018.

15 Deer Management Round Table, Op cit.

16 See Section 2.

17 SNH Information Response 26 (follow-up email correspondence from SNH, 10 July 2018).

18 SNH Information Response 26 follow-up, Op cit.

19 Lead Ammunition Group (2018) Op cit.

20 SNH Information Response 26 follow-up, Op cit.

21 SNH Information Response 26 follow-up, Op cit.

22 Subject to an amendment to s.26(2) by the Crofting Reform etc. Act 2007 that clarified the position on common grazings.

23 Callander and MacKenzie (1991) Op cit. Factors other than the price of venison are likely to have included the general increased familiarity with rifles from the War and subsequently, National Service in the armed forces.

24 Under s.25 of the 1996 Act, it would continue to be legal to use a shotgun as an effective means of despatch at close range to prevent suffering by a wounded or injured deer.

25 See Section 8.

26 For discussion of the phrase quoted, see Section 1.3 of this Report.

27 Statistics for out of season and night shooting authorisations are given in Sections 5 and 6.

28 The Deer (Firearms etc.) (Scotland) Order, paragraph 1(2), with the meaning as in s.57(4) of the Firearms Act 1968.

29 ‘Night sights’ is used as a generic term in this report recognising, for example, that some people use terms such as ‘night vision’ and also that thermal imaging sights can be useful for locating deer in thick cover during daylight hours.

30 Deer Panel – Review of Authorisations, Report to SNH, September 2016.

31 For example: (a) in situations that require an intense level of night shooting, the use of night sights could avoid the stress to the deer reflected in them becoming ‘lamp-shy’; (b) the use of lamps in woods at night can be conspicuous from a distance and lead to someone viewing it as suspicious activity and reporting it to the police.

32 Deer Panel – Authorisations Review Op cit, Recommendation 11.

33 The agreement was when FLS was still Forest Enterprise Scotland; SNH Information Response 32

34 SNH Information Response 32.

35 Correspondence between DWG and SNH, 30 May 2019.