Wildlife Crime Penalties Review Group: report

6. Range of wildlife crime penalties

23. A range of wildlife crime penalties has been published alongside this report as a standalone document. This is not a comprehensive list but is designed to give the reader an idea of the wide extent of offences and the variety of available penalties. This section provides a narrative of, first, the fines and custodial sentences available and then the alternative penalties, such as forfeiture, that are available. The accompanying textboxes explain some key terms used in penalty provisions.

Pearl mussel shells © Lorne Gill/SNH

Fines and custodial sentences available

Summary Conviction and Conviction on Indictment

Offenders can either be convicted on summary conviction, that is, conviction by a judge sitting alone without a jury; or on conviction on indictment, 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 indictment procedure and the choice will normally be determined by factors including the seriousness of the offence. Some offences can be prosecuted either way but some can only be prosecuted summarily, reflecting their lesser seriousness. So penalty provisions in legislation will stipulate the maximum penalty available on summary conviction and, where applicable, on conviction on indictment.

The Standard Scale

On summary conviction, in some cases maximum fine penalties are specifically stated but in other cases the maximum is given by reference to the Standard Scale. The Standard Scale was originally provided for by the Criminal Justice Act 1982 (as amended by the Criminal Justice Act 1991) and rather than giving a sum it indicates that penalties are to be at Levels 1 to 5 ^[15] . The Standard Scale in Scotland is now provided for by the Criminal Procedure (Scotland) Act 1995, s.225(1) and the setting of the Standard Scale is a devolved matter for the Scottish Government. The idea of the Standard Scale is that the Levels could be altered from time to time to reflect inflation and this would not require wide-ranging legislative change since only one piece of legislation specifying the levels would need to be altered. The Levels have not been uprated since 1 October 1992, when the 1991 amendments took effect, with the result that the relative value of the penalties available is now much lower than it was in 1992 because of inflation.

The Statutory Maximum

In some cases, for offences that are triable either summarily or on indictment, the maximum fine available on summary conviction is expressed as the statutory maximum. The statutory maximum is defined by the Interpretation Act 1978 so as to correspond to the 'prescribed sum'. In England and Wales this is the same as the Level 5 on the standard scale but in Scotland the setting of the prescribed sum is provided for by the Criminal Procedure (Scotland) Act, s.225(8) and is a devolved matter for the Scottish Government. Thus, in Scotland, from 10 December 2007, the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 increased the "prescribed sum", and with it the "statutory maximum" from £5,000 to £10,000. However, it did not alter the level of fines on the Standard Scale.

The Impact of the Criminal Proceedings etc. (Reform) (Scotland) Act 2007

This statute has a considerable impact on penalty levels for statutory offences where the offences are triable either way, that is that it is competent to prosecute either by summary complaint or on indictment. For such offences, all previous maximum fines rated at Level 5 of the Standard Scale or the statutory maximum were raised to £10,000 and prison sentences of up to 6 months increased to 12 months. However, these increases do not apply where, as is the case with many wildlife offences, the offences are only triable on summary complaint.

24. 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 of the Deer (Scotland) Act 1996 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. There are identical penalties (although not on a per fish basis) applicable in the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 and in the River Tweed Order although in the fisheries poaching legislation many offences attract smaller maximum fines on summary conviction with no imprisonment options.

25. In animal welfare cases the penalties are also varied. Under the general cruelty legislation, offences under the Wild Mammals (Protection) Act 1996 are punishable on summary conviction only with the maximum set at Level 5 on the Standard Scale (£5,000) and/or 6 months imprisonment, whilst under the Animal Health and Welfare (Scotland) Act 2006 ^[16] the offences of causing unnecessary suffering to a protected animal or holding fights involving protected ^[17] animals are punishable on summary conviction only by maximum fines up to £20,000 and/or 12 months imprisonment, with other offences (mutilation of protected animal, cruel operations on a protected animal or administration of poisons) being punishable on summary conviction only by maximum penalties of up to Level 5 on the Standard Scale (£5,000) and/or 6 months imprisonment in some cases. Under the 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. By way of contrast under the Protection of Badgers Act 1992 the maximum penalties 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 ^[18] .

26. The principal conservation legislation, the Wildlife and Countryside Act 1981 provides for maximum penalties of Level 5 on the Standard Scale (£5,000) on summary conviction and/or imprisonment of up to 6 months. The penalties for the principal offences under the Conservation (Natural Habitats &c.) Regulations 1994 are the same as for killing domestically protected species under WCA 1981. The principal offences in relation to conservation of seals under the Marine (Scotland) Act 2010 of killing or injuring seals have maximum penalties on summary conviction only of Level 5 on the Standard Scale (£5,000) and/or up to 6 months imprisonment.

27. The Control of Trade in Endangered Species (Enforcement) Regulations 1997 only provide for a maximum fine of Level 5 on the Standard Scale (£5,000) and/or imprisonment of up to 3 months on summary conviction with an unlimited fine and/or imprisonment of up to 2 years on conviction on indictment. New offences relating to the purchase or sale of a specimen of a species listed in the 1997 Regulations were subsequently introduced with a maximum fine of Level 5 on the Standard Scale (£5,000) and/or imprisonment of up to 6 months on summary conviction or an unlimited fine and/or up to 5 years imprisonment on conviction on indictment ^[19] . As noted above this legislation is a reserved matter and hence increasing penalties is a matter for the UK government.

28. Offences in the WCA 1981 relating to the introduction of non-native species amended by WANE 2011 provide for a maximum fine of £40,000 on summary conviction and/or imprisonment of up to 12 months and on conviction on indictment an unlimited fine and/or imprisonment of up to 2 years ^[20] .

29. Protected sites tend to attract higher potential fines albeit these again are not consistent. Intentional or reckless damage to Sites of Special Scientific Interest (SSSI) attracts a maximum fine of £40,000 on summary conviction and an unlimited fine on conviction on indictment ^[21] whereas contravention of restrictions on operations damaging a European site where a nature conservation order is in force only attracts a maximum of fine of the statutory maximum (£10,000) on summary conviction with the possibility of an unlimited fine on conviction on indictment. However, in practice it is likely that a European Site will also be a SSSI so the higher penalty would be available for damaging the SSSI. Under the Marine (Scotland) Act 2010 contravention of a Marine Conservation Order made to protect a Marine Protection Area attracts a fine of up to £50,000 on summary conviction and a potentially unlimited fine on conviction on indictment ^[23] .

Alternative or additional penalties available

Introduction

30. Generally, when an accused person is convicted of any offence, a court may order the forfeiture of any property in their ownership or possession or under their control at the time of the offence, or when they were arrested, if it was either used for the purpose of committing the offence or was intended to be used for that purpose ^[24] . In certain circumstances too, the court may disqualify an offender from holding or obtaining a licence to drive a motor vehicle. In addition, alternative or additional penalties including specific forfeiture penalties are extensively available in wildlife crime legislation.

Forfeiture: conservation legislation

31. Thus, in conservation legislation under WCA 1981 the court must order the forfeiture of any bird, nest, egg, other animal, plant or other thing in respect of which the offence was committed; and has a discretionary power to order the forfeiture of any vehicle, animal, weapon or other thing that was used to commit the offence ^[26] .

32. The Conservation (Natural Habitats &c.) Regulations 1994 also include forfeiture provisions in relation to offences concerning European protected species. These again follow the pattern of mandatory forfeiture of any animal, plant or other thing in respect of which the offence was committed; and discretionary forfeiture of any vehicle, animal, weapon or other thing that was used to commit the offence ^[27] .

33. In relation to offences under the Control of Trade in Endangered Species (Enforcement) Regulations 1997, the convicting court must order the forfeiture of any specimen or other thing in respect of which the offence was committed and has a discretionary power to order the forfeiture of any vehicle, equipment or other thing that was used to commit the offence ^[28] .

34. The conservation provisions of the Marine (Scotland) Act 2010 in relation to seals contain forfeiture provisions linked to the offences of killing, injuring or taking seals. These provide a discretionary power to the convicting court to order forfeiture of any seal or seal skin in respect of which the offence was committed, or any thing that the person possessed or controlled at the time of the offence and that was capable of being used in connection with the offence ^[29] .

Forfeiture and disqualification: animal welfare legislation

35. Under animal welfare legislation the Protection of Badgers Act 1992 provides that on convicting an offender the court must order the forfeiture of any badger or badger skin in respect of which the offence was committed and that it has a discretionary power to order the forfeiture of any weapon or article in respect of or by means of which the offence was committed ^[30] . In addition where a dog has been used in or was present at the commission of an offence, the court, on convicting the offender, has the power, in addition to or in substitution for any other punishment, to make (a) an order for the destruction or other disposal of the dog; and/or (b) an order disqualifying the offender, for such period as it thinks fit, for having custody of a dog ^[31] .

36. Under the Wild Mammals (Protection) Act 1996, the convicting court is empowered, in addition to any other punishment, to order the confiscation of any vehicle or equipment used in the commission of the offence ^[32] .

37. The Protection of Wild Mammals (Scotland) Act 2002 contains almost identical provisions to the Protection of Badgers Act 1992 in relation to care or disposal and/or disqualification orders in relation to dogs involved in the commission of the offence ^[33] .

38. Under the Animal Health and Welfare (Scotland) Act 2006, a court may impose a deprivation and/or disqualification order "in respect of any animal in relation to which the offence was committed" on a person who has been convicted of a relevant animal welfare offence under the Act ^[34] .

Forfeiture and disqualification: poaching legislation

39. Under the Deer (Scotland) Act 1996, if the offender has committed an offence under sections 17 to 23 the convicting court has the power to cancel any firearm or shotgun certificate held by the offender ^[35] . Any deer illegally taken, killed or removed by an offender or in his possession at the time of the offence is liable to forfeiture ^[36] . Conviction for offences in relation to deer and venison dealing also entitle the court to disqualify the person from holding a venison licence. ^[37]

40. The Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 also contains forfeiture provisions ^[38] . Under these a person convicted of an offence under the Act shall be liable to forfeit not only any fish illegally taken or in that person's possession at the time of the offence but also any instrument or article by which the offence was committed and any vehicle or boat used by that person to assist in the commission of the offence ^[39] .

41. The Scotland Act 1998 (River Tweed) Order 2006 has identical forfeiture provisions in relation to offences committed on the Tweed ^[40] .

Restoration and remediation

42. Under the Conservation (Natural Habitats &c.) Regulations 1994 the convicting court has the power to make an order to restore land to its former condition following damage to a protected site ^[41] .

43. The Nature Conservation (Scotland) Act 2004, which enhances the protection of SSSIs in Scotland, empowers courts to impose restoration orders on those who are convicted of the offences of intentionally or recklessly damaging an SSSI or causing or permitting the carrying out of a prohibited operation on land subject to a nature conservation order. Such restoration orders require the land to be restored to its former condition insofar as is reasonably practicable ^[42] .

Proceeds of Crime

44. The Proceeds of Crime Act 2002 also potentially has a role in this context as it enables the court to impose an order to recover the amount equal to the accused's benefit from the conduct concerned ^[43] .

Loss of rights or benefits under other legislation

45. In addition to the above penalties there may be considerable additional consequences for a convicted offender through loss of rights or benefits under other relevant legislation as a result of a conviction for a wildlife crime offence. These consequences are not penalties imposed by the sentencing criminal court but follow as a result of action by, for example, the Scottish Government, Scottish Natural Heritage (SNH) and Police Scotland.

46. Thus, the terms of general licences provide that a person convicted of a wildlife offence cannot use a general licence granted by SNH under WCA 1981, s.16 and this measure has been extended to include the possibility of removing the application of general licences from specified areas of land by administrative procedures. Such licences can enable measures to be taken for a variety of purposes where there is no other satisfactory solution, including measures to protect flora and fauna, to protect public health and to protect livestock, crops, fruits etc. from damage ^[44] . The licence can make lawful an activity that would otherwise be unlawful (such as killing particular types of birds) and in that sense is conceptually akin to an environmental law permit granted to an industrial plant to allow it to emit to a certain level which can also be suspended or revoked in certain circumstances.

47. In addition these consequences could also include cross compliance whereby conviction for a wildlife offence leads to the withdrawal of a Single Farm Payment (now known as a Basis Payment) subsidy by the Scottish Government under EU rules. Although there has recently been a narrowing of the European rules on this to exclude compliance with general European wildlife legislation, the subsidy could still be withdrawn were a person to be convicted of possession of banned poisons.

48. Firearms certificates can be reviewed and revoked by the police if a wildlife offence involving firearms has been committed, even if there are no specific provisions to that effect in the relevant legislation. Generally, the Chief Constable for the area in which a certificate holder resides may revoke a certificate if, for example, the Chief Constable has reason to believe that the holder of a firearm certificate is not deemed fit to be entrusted with a firearm ^[45] or if satisfied that the holder of a shotgun certificate cannot be permitted to possess a shot gun without danger to the public safety or to the peace ^[46] . However, firearms legislation is currently reserved and hence any amendments are a matter for Westminster.

Civil Penalties

49. Civil penalties are penalties imposed by the relevant regulator under a published scheme dealing with particular types of regulatory offences and were not imposed by a court following court process. Such schemes have been provided for in England and Wales in relation to environmental offences under the Regulatory Enforcement and Sanctions Act 2008 and there is now provision for the introduction of similar schemes in Scotland under the Regulatory Reform (Scotland) Act 2014.