Report of the Review of the Protection of Wild Mammals (Scotland) Act 2002

5. The Legislation

5.1 Although some submissions reflect a fairly widespread belief that Police Scotland are happy in general that the terms of the Act enable steps to be taken to ensure adequate protection of wild mammals, that is not borne out by the submission by Police Scotland to the Review. That submission points to what are said to be a number of weaknesses in the Act, including the absence of definition of certain expressions such as "stalking", "searching", "flushing", the number and complexity of the exceptions to the offence of "deliberately hunting a wild animal with a dog" and a general consequent lack of clarity in the legislation. It is claimed that as a result it becomes extremely difficult to obtain sufficient evidence to prove the basic offence of deliberately hunting a wild mammal with a dog. The legislation is said to be complex and to need to be simplified to make it more effective. It is also said in the Police Scotland submission that the fluid nature of the activities of a mounted hunt can create issues in determining when an offence is being committed.

5.2 It may be that the police perception of a lack of clarity in the language of the Act, combined with the general difficulty they have in identifying when the bounds of an exception have been exceeded in practice, e.g. when flushing has been completed and chasing has begun, are reflected in a general lack of confidence among wildlife crime investigators in the soundness of their judgment on the sufficiency and strength of the evidence apparently supporting allegations of contraventions of the Act. The small number of prosecutions under the Act may be explained, at least in part, by the difficulties of interpretation presented to both police and prosecutors.

5.3 The format of the Act is clear and simple. The core offence of hunting a wild mammal with a dog is set out in section 1(1). Section 1(2) and (3) deal with ancillary offences where land and dog owners knowingly permit a person to use land or a dog to commit an offence under section 1(1)). Thereafter sections 2 to 6 set out "exceptions", i.e. circumstances in which a person doing something which could conceivably amount to an offence under section 1(1) "does not commit an offence". Sections 1 and 2 lack clarity and are unduly complicated. There are also inconsistencies and at least one omission in the language used to define the exceptional circumstances to which section 2 applies. The language of section 3 is relevant to the way in which section 2 is expressed ^[25] . Where there is no obvious reason for differences in expression at different points in a piece of legislation, the resultant inconsistency can give rise to uncertainty in the minds of those charged with giving effect to it and thus present an obstacle to enforcement of the legislation. These features of the Act are highlighted and discussed further in this chapter to encourage consideration of amendment with a view to presenting investigators with a clear and consistent statement of the law to be applied.

5.4 No submission was critical of the operation of sections 4 or 6. There were, however, a number of submissions about the exception in section 5 which relates to the dispatch of injured mammals or orphaned cubs.

5.5 Before addressing the various concerns that arise about the language used to express the exceptions in section 2, it is appropriate to deal first of all with the language of section 1(1).

"Hunts"
5.6 The first thing to be determined in a prosecution is likely to be whether the accused is shown to have acted in a way that prima facie falls within the definition of hunting. It is only where that appears to be the case that the question arises whether one of the exceptions applies.

5.7 Determining what exactly is meant by "hunts" in section 1(1) is in itself difficult on account of the limited extent to which it is defined. That difficulty is compounded by the addition of the adverb "deliberately".

5.8 Section 10 simply provides that "'to hunt' includes to search for or course". "Coursing" is generally understood as chasing or pursuing, and indeed catching, a running mammal, principally a hare, but can also relate to a fox, usually in a gambling context. Its inclusion in the definition of "to hunt" and the absence of any reference to it in any exception is consistent with the purpose of the Bill to eliminate the cruelty associated with the chase and the kill. Coursing can never be legal. The position in relation to "to search for" is different. Since there is provision for "searching" in the exception in section 2, searching as part of hunting is legal if conducted in accordance with the specified conditions set out in section 2. It is only an offence to search for a wild mammal with a dog if the conditions of section 2 are note complied with.

5.9 There is no assistance to be derived from definitions in other legislation. The only legislative definitions of "hunting" that have been traced are in Disease Control Orders during an outbreak of foot and mouth disease, where "hunting" is defined as "the use of hounds, beagles or other dogs for the purpose of hunting or coursing any deer, fox, mink, [hare] or rabbit or for hunting any drag or other trail". ^{[26], [27]}

5.10 The inclusion of "to search for" within the definition is also entirely consistent with the ordinary meaning of "to hunt". Although the Oxford English Dictionary lays emphasis on the element of pursuit or chase for food or sport, it also includes "to search, seek (after or for anything), especially with eagerness and exertion" and "to endeavour to capture, obtain, or find". It is interesting to note that the Scottish Contemporary Judicial Dictionary includes the following:

" Hunting. By Act of 1621, it was enacted that no person shall hunt or hawk who has not a plough-gate of land in heritage. An accused person charged under the 1621 Act contended that the hunting prohibited by the Act did not comprehend shooting. The court rejected this contention and delivered the following judgment: 'Finds that the term hunting is a generic word, comprehending every mode of finding and following game with dogs, and is used in that comprehension in other Act of Parliament in Scotland, particularly the Act of 1707, cap.13.'

It is clear that "searching" is an important element of hunting in Scotland, but one that can be done legally using dogs.

5.11 The matter arose in the one Scottish prosecution for a contravention of section 1(1) in which the Court issued a written judgment, Fraser v Adams 2005 SCCR 54 ^[28] . There the Sheriff accepted a submission from the procurator fiscal that it was not necessary that any animal be located or killed for hunting to take place and defined searching as "going about in order to find or ascertain the presence of a thing."

5.12 In England the position is different. "Searching" per se is no part of hunting; it precedes hunting. The Hunting Act 2004 section 11(2) provides:

"For the purpose of this Act a reference to a person hunting a wild mammal with a dog includes, in particular, any case where -

(a) a person engages or participates in the pursuit of a wild animal, and

(b) one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction)."

In DPP v Wright [2009] EWHC 105 (Admin) ^[29] [2010 1 QB 224] the Divisional Court stated:

"In our judgment…….the term 'hunts' a wild mammal with a dog, as used in section 1 of the Hunting Act 2004, does not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it. That said, the question of whether a person 'hunts' a wild mammal is heavily fact specific, and we do not attempt to define by reference to particular hypothetical factual circumstances when hunting takes place for the purpose of the 2004 Act and when it does not."

The Court was very clear that any search prior to the dogs flushing or stalking a wild mammal is no part of hunting.

5.13 In the course of the Review the opinion was expressed that the Divisional Court were correct and that the 2002 Act goes too far by including "searching" within the definition of hunting. However, the notion that a person searching for a wild mammal with a dog may be said to be hunting a wild mammal even though no wild mammal is found is entirely consistent with the ordinary day to day use of the verb "to hunt". Hunting for Easter eggs or hunting for an item that is lost, or indeed hunting for something to wear on a special occasion, all involve searching for something that has not at that time been located, and two of these examples involve as yet unidentified objects.

5.14 A separate question arises about the way in which section 2(1) refers to "searching". I shall deal with the confusion introduced by that when I address the "exceptions" below.

5.15 Should it be decided that "to hunt" should be more specifically defined, that would no doubt be a matter on which the views of parliamentary draftsmen would be sought. The difference between the definition in Scotland and in England and Wales suggests that it is likely to be difficult, if not impossible, to fashion a satisfactory comprehensive definition. The difficulty is illustrated by one definition proposed to the Review:

"To use one or more dogs to find the scent or sight of a live quarry, locate the actual quarry and then pursue it, until the dogs catch it and kill it, or the hunter shoots it or kills it with other means."

The problems of interpretation that could result from the omission or inclusion of relevant elements are obvious. For example, that suggested definition does not refer specifically to the elements of flushing or stalking that may be elements of hunting that are permitted exceptions. Nor does it make clear whether a foray into cover that locates nothing amounts to hunting. It would be more satisfactory to build on the existing provision by setting out more fully, but not exhaustively, what is included in the expression "to hunt". One suggestion made, which avoids the risk of not being able to adapt the definition to unusual or unforeseen circumstances is: "includes to search for, stalk, flush, chase, pursue or course."

"Deliberately"
5.16 The inclusion of the adverb "deliberately" before "hunts" is unusual. If someone does something "deliberately", he means to do it. Equally, if a person is said to "hunt" without any qualification of the verb, then that also is something he means to do. The state of mind involved appears to be addressed twice.

5.17 While it is unusual, it does occur, but usually where the proscribed conduct could, unlike hunting, be done other than deliberately. Examples can be found in the definition of "genocide" in article 6 of Schedule 1 of the International Criminal Court (Scotland) Act 2001 ^[30] and in section 1(1) of the Breastfeeding etc (Scotland) Act 2005 ^[31] . It is used in the Criminal Procedure (Scotland) Act 1995 section 90A(2) ^[32] to (4) and section 156(2) ^[33] to (4) provisions relating to the issuing of a warrant to apprehend a witness who "deliberately and obstructively" fails to attend court or who is being "deliberately obstructive" and is unlikely to attend court. A person who fails to appear at a diet of the court, having been duly cited is presumed to have so failed "deliberately and obstructively". The net result is that traditional language used to express the demanding test to be satisfied by a prosecutor seeking a warrant is redefined as established by mere failure to attend.

5.18 "Deliberately" also appears as part of the definition of offences relating to the alteration or concealment of documents sought by a tribunal as in section 36(1)(c) of the Lobbying (Scotland) Act 2016 ^[34] and para 18(1)(b) of Schedule 8 of the Tribunals (Scotland) Act 2014 ^[35] . It may also occur where the legislation provides specifically that there is more than one mental state in which something can be done, such as permitting a supplementary assessment to be made only where something has been brought about "carelessly or deliberately" under sections 102 to 14 of the Revenue Scotland and Tax Powers Act 2014 ^[36] . In that situation, however, where the definition of a crime is involved, it is more common for the alternatives to be stated as "intentionally or" some other standard such as "recklessly". A good example is in section 1 of the Wildlife and Countryside Act 1981 ^[37] which provides that it is an offence to "intentionally or recklessly" take, kill or injure any wild bird.

5.19 In a number of submissions it has been suggested that the test for the mental element of the offence in section 1(1) should be expanded to include "recklessly" in addition to "deliberately", which would best be written "intentionally or recklessly" in keeping with the other wildlife legislation referred to above.

5.20 In the 2004 Act applying to England and Wales "hunts" is unqualified. The offence is stated in section 1 in simple terms:

"A person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt."

In DPP v Wright the Divisional Court described hunting as "by definition intentional", something that can only be done intentionally or deliberately. Under the 2004 Act a person commits an offence in England and Wales if he hunts a wild mammal with a dog. Yet the way in which the offence is stated in the 2002 Act, where "hunts" is qualified by "deliberately", suggests that some additional particular mental requirement must be proved to show that an offence has been committed.

5.21 In Scotland the final form of section 1(1) was the result of amendment ^[38] . However, the word "deliberately" was already present in the Bill as introduced in section 1(2) which provided:

"A person who deliberately contravenes sub-section (1) commits an offence."

Section 1(1) provided that a person must not hunt a wild mammal with a dog. The debates on the Bill and the material before the Review indicate that it was thought important to retain "deliberately" to ensure that a dog-walker on the moors would not be prosecuted simply because the dog or dogs ran off unexpectedly in pursuit of a wild mammal that suddenly appeared. If that is why "deliberately" is there, then it is unnecessary since the foregoing scenario would not involve intentional conduct. Equally it would not amount to acting recklessly. To act recklessly one must display gross negligence. Mere carelessness is insufficient.

5.22 The point to be stressed is that the inclusion of "deliberately" has set the test for proof of an offence under section 1(1) very high, or at the very least complicated the interpretation of the test unduly, by creating the impression that something more than evidence of the hounds apparently acting under the control and direction of the huntsman when they run in a line chasing a fox is required to provide sufficient evidence of the commission of an offence under section 1(1). Is the huntsman who acts on the basis of a misinterpretation of a complicated exception, e.g. who places the guns 500 yards from the cover because he wrongly considers an intervening area to be cover, hunting deliberately in contravention of section 1(1)? That question is more difficult to answer than the question whether he is "hunting", which he would appear to be doing, subject to what might be said in mitigation in the circumstances. Consideration should be given to deleting "deliberately" from section 1(1).

Clarity of Expression of Exceptions

5.23 The element of uncertainty that exists about what falls within the expression "to hunt", together with concern about proving that the hunting is "deliberate", are compounded by the inconsistency and the lack of clarity in the way in which the exceptions are expressed.

5.24 Section 2 relates to flushing a wild mammal from cover to be shot or killed by a bird of prey. It also covers stalking and searching. The expression "searching" is, unlike stalking and flushing, not specifically mentioned again in the section; its inclusion was thought by the procurator fiscal in Fraser v Adams to be an oversight; the Sheriff disagreed. There are what might be thought to be two indirect references to searching in section 2. Section 2(1) stipulates what must be done "once the target wild mammal is found"; section 2(3)(b) stipulates what must be done after the "fox or mink" is located.

5.25 It seems clear that "searching" was included in section 2(1) by design and that further reference to it in the third line of the sub-section was inadvertently omitted. "To search" is an expression that may need no further definition. In Fraser v Adams the Sheriff proceeded on the basis that "searching" meant "going about in order to find or ascertain the presence of a thing".

5.26 The ordinary meaning of "to stalk" in the context of the Act is "to follow or track a quarry stealthily". That has little application to fox-hunting and is more relevant to the hunting of deer in respect of which the use of a dog to kill is outlawed completely ^[39] . The ordinary meaning of "to flush" is "to drive out" or "to force out of concealment or into the open". It may be further definition of these two expressions along these lines would be helpful to those considering whether an offence has been committed.

5.27 Section 2(1) appears to relate to any stalking or flushing above ground and refers in particular to flushing any wild mammal "from cover (including an enclosed space within rocks, or other secure cover) above ground" for any one of six purposes. Section 2(3) relates to using a dog "to flush a fox or mink from below ground or ... to flush a fox from an enclosed space within rocks or other secure cover above ground" for any one of the same six purposes. On the face of it, so far as foxes above ground are concerned, action can be taken to flush the mammal to be shot under Section 2(1) or 2(3).

5.28 The suggestion in the Annotations to the Act in Current Law Statutes that section 2(1) is assumed not to apply where the quarry is fox or mink because they are specifically dealt with in section 2(3) is not consistent with the unqualified application of section 2(1) to all wild mammals as defined in section 10. Both sub-sections appear to apply to fox and mink.

5.29 Those who have to interpret the Act in their daily work tend to regard section 2(3) as applying to the use of terriers to flush a fox or mink that is below ground or goes to ground. If that is so, then it is not clear why that sub-section also refers to flushing a fox "from an enclosed space within rocks or other secure cover above ground". It may well be that section 2(3) was intended to be restricted to flushing from below ground, since there is no provision for the use of a bird of prey and there is a requirement in section 2(3)(c) to take all reasonable steps to prevent injury to the dog which is likely in that situation to be in greater danger from the proximity of dog, fox and gun. Consideration should be given to framing section 2(3) more narrowly by removing reference to using a dog under control to flush a fox from an enclosed space within rocks or other secure cover above ground.

5.30 In relation to the timing of the shooting of the flushed mammal, there are differences between section 2(1) on the one hand and section 2(3) and section 3 on the other. Section 2(1) requires the person flushing to "act…to ensure" that ,"once the target mammal is found or emerges from cover" it is shot or killed by a bird of prey "once it is safe to do so". Section 2(3)(b) requires the person flushing to take "reasonable steps to ensure that the fox or mink is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed". In section 3(a) relating to the use of a dog in connection with falconry and shooting, the requirement is that the person using a dog to stalk a wild mammal or flush it from cover above ground for the purpose of providing quarry for sport must "act… to ensure" that, once a wild mammal is found or emerges from cover, it is shot, or killed by a bird of prey, "as soon as possible".

5.31 There is no obvious explanation for section 2(1) requiring that the wild mammal should be shot "once it is safe to do so", whereas section 2(3) and section 3 require that the mammal should be shot "as soon as possible". The expression in section 2(1) "once it is safe to do so" is the least demanding of these expressions. It is subjective and less peremptory than the others. It leaves scope for a chase to begin. It also defines the point of shooting by reference to safety, which common sense would suggest is implied in the requirement that the mammal should be shot "as soon as possible". Any court would inevitably read that requirement as subject to it being safe to shoot.

5.32 There is also no obvious reason why in section 2(1) the person doing the flushing is required to "act… to ensure" that the mammal is shot or killed by a bird of prey, as in section 3, whereas in section 2(3) the requirement is that the person using the dog should "take(s) reasonable steps to ensure that the fox or mink is flushed as soon as reasonably possible after it is located and shot as soon as possible after it is flushed" and in section 5(3) the requirement is to "take… reasonable steps to ensure that" an orphaned fox once located is despatched by a single dog. Consideration should be given to amending sections 2 and 5 by bringing consistency to the requirements by aligning them with those of section 3.

5.33 If for some reason it were to be thought essential to retain the qualification "once it is safe to do so", then the aim of preventing the chase could be expressed in terms of the duty of the huntsman as follows: "but only if that person acts to ensure that, once the target wild mammal is found or emerges from cover, the dog does not continue to hunt the wild mammal and the wild mammal is shot, or killed by a bird of prey, once it is safe to do so".

5.34 Section 2(1) makes no mention of any person involved in flushing to guns or associated shooting holding a firearms or shotgun certificate. That is probably because it goes without saying that any person carrying and using a firearm must hold appropriate certification. In both section 2(3) and section 3 reference is made to the person using the dog holding a firearms or shotgun certificate. The language used in each of these sections is different, but apparently to the same effect. Neither provision appears to allow for the possibility that the person or persons with the dog might not be the person or persons with the firearm(s). Consideration should be given to whether the apparently unduly restrictive provisions of sections 2(3) and 3 should be amended.

5.35 A separate issue arises in relation to section 2(2), which is in the following terms:

"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".

It is not obvious why there is reference in this sub-section to killing "by lawful means". What these are is not specified. That should be clarified.

5.36 That sub-section is said by some of the submissions to permit the continuation of the "cruel" practice of dogs killing a wild mammal. A similar point is made about the provisions in section 5(1)(c) and (3) permitting the killing or despatch of seriously injured or orphaned mammals and in section 5(3) the killing of orphaned fox cubs following the shooting of the mother. The practice of using dogs or a single dog to dispatch another injured animal or orphaned cubs may seem to many distasteful. The same may be said of the sight of the breaking up of the carcass of a fox. However, the weight of the evidence, as noted in the Burns Report at paragraph 6.48, is that in the vast majority of cases the time to insensibility and death in these situations is no more than a few seconds. These provisions were enacted in the knowledge of the terms of the Burns Report. No evidence has been presented to this Review to indicate the abuse of these provisions by using dogs to despatch seriously injured or orphaned wild mammals.

5.37 This analysis of the language used in prescribing the circumstances where no offence is committed has identified examples of expressions which may be adding unnecessary complications into fairly detailed provisions. Uncertainty, vagueness or lack of clarity in any statutory provision is often resolved by judicial interpretation in the context of cases brought to court. To date there has been only one case in which the interpretation of the Act has been addressed in a written judgment. While that has provided some clarity in relation to certain issues, it neither was nor was intended to be comprehensive.

5.38 The various features of the language of the Act discussed in this chapter should be reviewed with a view to removing inconsistencies and inappropriate and unnecessary expressions and introducing greater consistency and clarity of expression. Because it started life as a Member's Bill, the Act has never been subject to the scrutiny of parliamentary draftsmen from which it would undoubtedly benefit.