Wildlife crime penalties: consultation

Current Situation

Current maximum penalties in Scotland

The maximum available penalties for wildlife offences are set at different levels depending on the offence and are laid out in the following legislation:  

• Conservation (Natural Habitats &c) Regulations 1994
• Protection of Badgers Act 1992
• Protection of Wild Mammals (Scotland) Act 2002
• Wild Mammals (Protection) Act 1996
• Wildlife and Countryside Act 1981
• Deer (Scotland) Act 1996

Most wildlife offences can only be tried summarily, that is, conviction by a sheriff sitting alone without a jury.  At present, only a few offences have the option to be tried under summary or solemn procedure, that is, conviction by a jury. Where both options are available, it is up to the Crown whether a case is brought under summary or solemn procedure and the choice will normally be determined by factors including the seriousness of the offence. 

Some examples of the penalties currently available are given below:

• The Wildlife and Countryside Act 1981: Maximum penalties of Level 5 on the Standard Scale (£5,000) on summary conviction and/or imprisonment of up to 6 months for the un-licensed killing of protected wild birds or animals. 

• The Conservation (Natural Habitats &c.) Regulations 1994: The same as for killing domestically protected species under the Wildlife and Countryside Act 1981.

• The Wild Mammals (Protection) Act 1996: Offences relating to the mutilation or beating of protected wild mammals are punishable on summary conviction only with the maximum set at Level 5 on the Standard Scale (£5,000) and/or 6 months imprisonment.

• Protection of Wild Mammals (Scotland) Act 2002: The maximum penalties on summary conviction only are a fine of up to Level 5 on the Standard Scale (£5,000) and/or
  6 months imprisonment for offences relating to the deliberate hunting of a mammal
  with dogs.

• Protection of Badgers Act 1992: The maximum penalties for killing, injuring or taking a badger on summary conviction are a fine of the statutory maximum (£10,000) and/or imprisonment of up to 12 months and there is the possibility of conviction on indictment with provision for a potentially unlimited fine and/or up to 3 years imprisonment for the principal offences under the Act.

• The Deer (Scotland) Act 1996:  In relation to poaching, organised offences involving 2 or more persons attract higher penalties than poaching by individuals. So where an individual kills a deer in contravention of the provisions, the maximum penalties are a fine of Level 4 on the Standard Scale (£2,500) per deer and/or up to 3 months imprisonment. However, in cases of organised poaching the maximum fine on summary conviction is the statutory maximum (£10,000) per deer and conviction on indictment is possible with a potentially unlimited fine and/or up to 2 years imprisonment being provided for.

Concerns about maximum penalties

In recent years there have been a number of wildlife offences committed against wild animals of threatened conservation status.  The impact of these crimes on such species can be so significant that the maximum sentence available to the court is considered by many to be insufficiently punitive. 

The illegal killing or taking of some rare Scottish species, including freshwater pearl mussels^[1], golden eagles^[2] and hen harriers^[3] has serious implications.  It has resulted in localised loss of bird of prey populations and the complete extinction of mussel populations from many rivers.

In other cases, especially those that involve deliberate, calculated and sadistic behaviour we believe that higher penalties than those currently available are required. Crimes of this type include badger baiting, in which a badger is dug out of its den and then set upon by dogs, resulting in the death of the badger and often serious injury to the dogs used. 

In his review of wildlife crime penalties, Professor Poustie noted that in general, penalties for wildlife crimes have not been raised for many years, except in the case of new offences or legislation. This stands in contrast to other areas of environmental law such as pollution control where penalties have been raised regularly. For example, since 1991 the maximum fine on summary conviction for the principal environmental pollution offences has been raised twenty-fold from £2,000 to £40,000 while at the same time maximum fine on summary conviction for the principal Wildlife Crime Act offences has remained unchanged at £5,000. Even if simply adjusted in relation to inflation it should be noted that a penalty of £5,000 in 1981 would equate to over £18,800^[4] today. 

The Scottish Government considers that the current maximum available prison term is too short and the maximum available fine is too low in relation to the most serious wildlife offences. These maximum penalties may neither recognise the seriousness of the offence nor act as an effective deterrent.

Where the maximum penalties are increased it will be still be for the courts to decide the appropriate sentence to impose, after taking into account all the evidence and mitigating factors presented to them.  We do not expect that all individuals convicted of a wildlife offence will be awarded the maximum sentence.  

Above all we consider that an appropriate range of penalties should be available to the courts to ensure maximum deterrent impact to deal with the range of offenders from corporate entities to individuals with few or no resources.