Non-native species: code of practice

4. The Release of Non-Native Animals

Summary

What are the offences relating to non-native animals?

Section 14(1) of the Wildlife and Countryside Act 1981 (the 1981 Act) makes it a criminal offence to release non-native animals. There are three specific ways in which a criminal offence may be committed:

• Release - it is an offence to release any animal to a place outwith its native range. ^[21]
• Allowing to escape from captivity - it is an offence to allow an animal to escape from captivity to a place outwith its native range. ^[22]
• Causing to be at a place - it is an offence to cause any animal outwith the control of any person to be at a place outwith its native range. ^[23]

An animal is considered captive if it is under human control and is constrained from free movement into a new area.

What does 'release' of a non-native animal mean?

If animals are released so that they are no longer under human control, they are considered to be released from captivity - this covers both active release and passive release.

Trained animals do not need to be under constant direct physical control in order to be in captivity for this purpose.

It is essential that you take all reasonable steps and exercise all due diligence to avoid committing an offence when you are responsible for a non-native animal.

When can you release non-native animals?

An offence is not committed if the common pheasant or red-legged partridge are released or allowed to escape from captivity for the purpose of being subsequently killed by shooting. ^[24]

An offence is not committed if the release is authorised by an Order made by the Scottish Ministers ^[25] or according to the terms of a licence issued by the appropriate authority ^[26] .

If you are in any doubt regarding whether the species you plan to release is covered by either of these then don't release. Take advice before acting.

Releasing native animals

It is an offence under the 1981 Act ^[27] to release or allow to escape from captivity any animals of a type specified in an Order made by the Scottish Ministers. This relates to the release of an animal within its native range.

Introduction

4.1 This Chapter explains how the 1981 Act controls the release of non-native (and some native) animals. It explains a number of key terms which are used in the legislation. It also sets out practical examples which help to explain what type of activity may or may not result in a criminal offence being committed.

4.2 There are many reasons why non-native animals should not be released including:

• they may have a serious adverse effect on other species, the environment or land use
• an animal's welfare can suffer if it is released to fend for itself when it is accustomed to human care;
• new areas may lack the required food resources;
• the climate and habitat may not be appropriate for their survival;
• non-native animals may infect native species with diseases for which they have no immunity;
• there can be negative impacts at a population level if different strains or populations are released (this includes animals within their native ranges such as arctic char as well as those outwith their native ranges such as sika deer hybridising with native red deer).

4.3 For these reasons the 1981 Act makes it a criminal offence to release non-native animals unless otherwise exempted ^[28] . There are three specific ways in which a criminal offence may be committed in relation to non-native animals:

Release - it is an offence to release any animal to a place outwith its native range ^[29] .

Allowing to escape from captivity - it is an offence to allow an animal to escape from captivity to a place outwith its native range ^[30] .

Causing to be at a place - it is an offence to cause any animal outwith the control of any person to be at a place outwith its native range ^[31] .

4.4 A full description of each is set out below.

Releasing a non-native animal

4.5 The offence of releasing an animal to a place outwith its native range refers to circumstances where action(s) that you have taken result in that animal no longer being under human control outwith its native range.

4.6 Trained animals do not need to be under constant direct physical control in order to be under human control for this purpose. A trained bird of prey, for example, is under human control for this purpose whether it is secured to a glove or is being flown in a display. The same is true for domestic dogs and cats (including working dogs).

4.7 An offence is not committed if the common pheasant or red-legged partridge are released or allowed to escape from captivity for the purpose of being subsequently killed by shooting ^[32] . This exemption is designed to ensure that the game industry can continue the practice of releasing these two types of bird, which has been taking place for centuries. It should be noted that for the purposes of the 1981 Act green pheasants ( Phasianus versicolor) are considered to be a type of common pheasant ( Phasianus colchicus) and their release is permitted under this exemption.

4.8 The Game and Wildlife Conservation Trust Guidelines for Sustainable Gamebird Releasing ^[33] provide recommended release guidelines for pheasants and red-legged partridge. This aims to avoid negative impacts to habitats and other wildlife and maximises the potential of management practices associated with release, to enhance habitats and wildlife.

4.9 There are a number of common activities that involve allowing animals to roam freely, outside an enclosure and which are not considered to be a release. These are outlined in the list below.

List 1 - Circumstances in which a type of animal is not considered to be released.

(It should be noted that these are illustrative examples, much will depend on individual circumstances. ^[34] )

a) Use of domesticated livestock (not including wild boar and hybrids)

Most livestock are kept in enclosed areas (and the provisions in section 14(1)(a) do not therefore apply) but some may be kept in extensive or free range management systems, for example cattle or sheep kept on open hillsides or used for conservation grazing in unfenced areas, free range poultry or bees. In these cases the animals are kept in such a way that they can be gathered for husbandry purposes or when they otherwise need to be contained in an enclosed area.

These animals are not considered to be released for the purposes of section 14(1)(a) of the 1981 Act.

b) Fish

When fish are introduced to properly secured enclosures they are not considered to be released for the purposes of section 14(1)(a) of the 1981 Act.

This includes salmon introduced to fish farms or rainbow trout introduced into water bodies from which they cannot escape, for angling. It should be noted however that these types of introductions of fish require authorisation from Marine Scotland.

Similarly non-native shellfish are grown, in containment, on shellfish farms in Scotland.

c) Use of domestic ferrets in ferreting

Where ferrets are used responsibly for ferreting, the handler will be able to demonstrate that they remain under control - in that they can reasonably expect to retrieve them. It is advisable to use electronic ferret finding equipment, as that should enable the owner to demonstrate that they have taken all reasonable steps and exercised all due diligence to avoid committing the offence if the ferret cannot be retrieved.

The release of unwanted ferrets, with no intention of retrieval, is an unlawful release for the purposes of section 14(1)(a) of the 1981 Act. Note that in this case, offences relating to abandonment may also be committed under the Animal Health and Welfare (Scotland) Act 2006 - see the Annex to the Code).

d) The flying of non-native birds of prey in falconry and display

Where non-native birds of prey are flown responsibly, for falconry or display, the handler will be able to demonstrate that they remain under the handler's control - in that they can reasonably expect the bird to return. This would also apply to, often longer, training flights - sometimes referred to as tame hacking. The use of telemetry is advisable as that should enable the handler to demonstrate that they have taken all reasonable steps and exercised all due diligence if the bird cannot be retrieved.

The practice of releasing larger numbers of birds with the intention of gathering them after a period of days or weeks, sometimes referred to as wild hacking, will require a licence if it involves non-native birds ^[35] . To obtain a licence, contact Scottish Natural Heritage.

The release of unwanted non-native birds, with no intention of retrieval, is an unlawful release for the purposes of section 14(1)(a) of the 1981 Act. Note that in this case, offences relating to abandonment may also be committed under the Animal Health and Welfare (Scotland) Act 2006 - see the Annex to the Code).

e) The exercising of pet dogs and cats and working dogs

Dogs and cats that are released off the lead or out of the house for exercise or to perform working duties (such as sheepdogs) are not, for the purposes of this legislation, considered to be released by their owner even though no longer under physical control. They are expected to return and are dependent on their owner for food and other requirements. Therefore, they are not being released for the purpose of section 14(1)(a) of the 1981 Act.

The release of unwanted dogs and cats, with no intention of retrieval, is an unlawful release for the purposes of section 14(1)(a) of the 1981 Act. Note that in this case, offences relating to abandonment may also be committed under the Animal Health and Welfare (Scotland) Act 2006 - see the Annex to the Code).

4.10 It is essential that you take all reasonable steps and exercise all due diligence to prevent release when you are responsible for a non-native animal. The list above provides some practical examples of this.

4.11 An offence is not committed if the release is authorised by an Order made by the Scottish Ministers ^[36] or through a licence ^[37] . Further information on Orders can be found on the Scottish Government website and information on licences which have been granted can be obtained from Scottish Natural Heritage ^[38] .

Allowing a non-native animal to escape from captivity

4.12 An animal is considered to be in captivity if it is under human control and is constrained from free movement into a new area. An example of this would be an animal held within an enclosure from which it cannot escape. An offence is complete when a person allows an animals to escape from captivity to a place outwith it native range ^[39] .

4.13 Allowing a non-native animal to escape from captivity will include situations where steps are not taken to ensure the animal is contained. For example, not repairing a hole in the fence of an enclosure, or releasing the animal to an enclosure which is not of a sufficient specification to keep that animal contained.

4.14 You should take all reasonable steps and exercise all due diligence to avoid committing an offence when you are responsible for a non-native animal.

4.15 For example, if you introduce an animal into an enclosure outwith its native range which is of a suitable specification to prevent escape and you inspect and repair the enclosure on a regular basis, and you can provide evidence of this, you should be able to demonstrate that you have exercised all due diligence. This will include taking steps to prevent damage to your enclosure, for example, in the case of a storm blowing down nearby trees.

4.16 If a tree had damaged the enclosure, despite your taking all reasonable steps to avoid this happening, and you had taken no action within a reasonable timeframe to repair it to a suitable standard then it may be difficult for you to show that you had taken all reasonable steps and exercised all due diligence to avoid committing the offence.

Causing a non-native animal to be at a place

4.18 It is an offence to cause any animal outwith your control to be at a place outwith its native range ^[40] . The offence applies where an animal that is not in captivity for the purpose of section 14(1) is enabled by some act or omission to move to a new place outwith its native range.

4.19 Your actions may cause an animal to be at a place outwith its native range albeit that the animal is not within your control. For example, a non-native sea squirt that becomes attached to the bottom of your boat before it arrives in Scotland is not "in captivity". However, whilst the sea squirt may have been outwith your control, by moving the boat you will have caused the sea squirt to be at a place outwith its native range. In such circumstances, you should take all reasonable steps and exercise all due diligence to avoid committing the offence. For example following good practice advice regarding antifouling and regular haul out. If you scrape that sea squirt off the boat and wash it into the harbour in Scottish waters, you will have caused it to be at a place outwith its native range. In addition, moving that boat from the harbour to another area while the sea squirt is still attached to it would move the sea squirt to other locations and may constitute a further offence.

4.20 If you are moving equipment, or substances such as soil or water, which may contain animals or plant material, it is important to assess whether species are likely to be present which would be outwith their native range at the intended destination. If so, you must take all reasonable steps and exercise all due diligence to avoid committing the offence of causing the animals or plant material to be at a place outwith its native range. The following examples illustrate this:

Moving Water A company that was pumping water for the purpose of a hydroelectric scheme between catchments should take steps to establish if the source catchment is known to contain fish which would be outwith their native range in the new catchment. If so the company should take steps (such as screening agreed with appropriate experts) to prevent those fish being moved to the new catchment and therefore being caused to be at another place outwith their native range.

Moving Soil A company moving materials such as soil that contains animals should follow good practice guidance such as that found in the Environment and Efficiency section of www.business.scotland.gov.uk. In addition, they should follow the guidance outlined in the Code of Practice to Prevent the Spread of Non-Indigenous Flatworms to ensure that non-native flatworms (such as the New Zealand flatworm) and flatworm eggs are not transported to new areas.

Watersports An individual participating in watersports such as angling, canoeing, yachting or wild swimming should take precautions to ensure they do not transfer animals from one river, canal, loch or coastal area to another. Guidance on suitable biosecurity measures, such as cleaning and drying equipment, can be found on the Scottish Government website (see Chapter 10).

Releasing native animals

4.21 It is an offence under the 1981 Act to release or allow to escape from captivity any animals specified in an Order made by the Scottish Ministers ^[41] . This relates to the release of an animal within its native range.

4.22 This Code does not list the Orders - or the species listed in the Orders - made under the 1981 Act as these are subject to change. More information on the Orders made under the 1981 Act can be found on the Scottish Government website (see Chapter 10).