08
Dec
20

Tougher penalties for wildlife crime now enacted in Scotland

Press release from Scottish Government (6 December 2020)

Tougher penalties for animal and wildlife crime

Animals and Wildlife Act comes in to force in Scotland

New measures to increase the maximum available penalties for the worst cases of animal cruelty have come in to force.

Taking effect from 30 November, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 increases the maximum penalty for the most serious animal welfare and wildlife crimes to five years imprisonment and unlimited fines.

These tougher penalties will be available to courts when convicting those who are involved in animal fighting, causing unnecessary suffering to animals or committing a wide range of serious crimes against wildlife.

[An illegally poisoned buzzard, found on a notorious grouse moor in the Scottish Borders. Nobody was prosecuted for this crime, or any others that have been uncovered on this estate over a period of many years. Photo by RSPB Scotland]

In addition, the new ‘Finn’s Law’ will prevent those who attack or injure service animals in the course of their duties from claiming they did so in self-defence. The law is named after a police dog called Finn who was injured whilst pursuing a suspect with his handler in England in 2016 and sustained serious injuries.

Other parts of the Act will create flexible new powers to allow various Fixed Penalty Notice (FPN) regimes to be developed for a wide range of less serious animal health, animal welfare and wildlife offences, outwith the court system. These will be introduced in future secondary legislation.

Changes to restrict the licensed killing of seals are due to take effect from 1 February 2021.

The Scottish Government is also preparing a report to be laid before the Scottish Parliament by 1 March 2021 on the use of acoustic deterrent devices on fish farms.

The reclassification of mountain hares as endangered animals, which will protect the species from being killed, injured or taken (except under licence for certain limited purposes) at any time of the year is expected to come into force on 1 March 2021, subject to certain permitted exceptions.

The introduction of new powers to deal more quickly with animals seized to protect their welfare will be brought forward at the earliest opportunity in 2021.

Rural Affairs Minister Mairi Gougeon said:

We take animal welfare and wildlife crime very seriously, and we are committed to ensuring Scotland’s animals have the best possible protection, including our dedicated service animals.

The vast majority of people in Scotland treat animals and wildlife with respect and care, however the small minority who don’t will be held accountable with consequences that reflect the severity of their crime.”

Scottish Society for Prevention of Cruelty to Animals (SSPCA) Chief Superintendent Mike Flynn said:

As Scotland’s animal welfare charity, the Scottish SPCA has long campaigned for harsher sentences for animal and wildlife crime and it is fantastic to see these come in to effect. Sentencing must act as a deterrent and we are hopeful increasing sentences and fines will achieve this.

A number of the proposals due to come in to force will be transformational. We seize thousands of animals for welfare reasons every year, so the prospect of new powers to get these animals in to a home more quickly is welcome. Currently, animals can spend months or even years in our care and we look forward to working with the Scottish Government to implement the reforms as soon as possible. The Act will enhance Scotland’s position as a global leader in animal welfare standards.”

ENDS

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 was passed by the Scottish Parliament on 17th June 2020 and it’s been a long time coming. Seven years, actually.

In 2013, the then Environment Minister Paul Wheelhouse commissioned a review on whether penalties for wildlife crime should be increased, as a direct response to ongoing illegal raptor persecution. Professor Mark Poustie submitted his report and a series of recommendations, including a penalty increase, in 2015. The then Environment Minister Dr Aileen McLeod broadly accepted those recommendations in 2016 and the Scottish Government committed to progressing them in its 2017/2018 Programme for Government.

The usual foot-dragging exercise followed until 2019 when suddenly the Scottish Government got serious and drafted the Animals and Wildlife Bill, with a public consultation and a number of evidence sessions to bash out the details (e.g. see here).

The new legislation increases the penalties available to a court for a wide variety of animal cruelty and wildlife crime offences. Custodial sentences of up to five years and significant fines are now available for some offences and these include crimes relating to Section 1 of the Wildlife & Countryside Act (Protection of wild birds, their nests & eggs), Section 5 (Prohibition of certain methods of killing or taking wild birds), Section 6 (Sale, possession etc of live or dead wild birds, eggs etc), Section 11 (Prohibition of certain methods of killing or taking wild animals) and Section 15 (Possession of pesticides). NB: Not an exhaustive list, just of significance to this blog.

With this five year custodial threshold comes the re-defining of some of these offences as ‘serious’ (i.e. they attract a custodial sentence of three or more years), which should close some loopholes in relation to the collection of video evidence and its admissibility in court. Effectively it means that Police Scotland now have the authority to apply for permission, under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA), to install covert cameras on private sporting estates for the purpose of detecting wildlife crime. For anyone interested in further detail it was discussed in an earlier blog (here).

The new legislation also widens the use of vicarious liability in relation to wildlife crime. Vicarious liability, where a landowner/sporting agent etc can be held legally responsible for the criminal activity of an employee (e.g. gamekeeper), was introduced on 1st January 2012 for certain crimes against birds of prey. Under the Animals and Wildlife Act, it now also applies to offences under Section 11 of the Wildlife & Countryside Act (Prohibition of certain methods of killing or taking wild animals) and this essentially refers to the use of snares and traps.

To date there have only been two successful prosecutions for vicarious liability for raptor persecution. That’s hardly an indication of success and there have been many cases where vicarious liability might have applied (e.g. see here for most recent case) but for reasons it refuses to divulge, the Crown Office has failed to pursue a prosecution.

However, according to this recent blog by legal firm Brodies, there’s an increased appetite for prosecutions for vicarious liability in wildlife crime cases and conviction rates are expected to increase.

Let’s see.


22 Responses to “Tougher penalties for wildlife crime now enacted in Scotland”


  1. December 8, 2020 at 4:59 am

    About time, let us hope these new penalties are implemented.

  2. 2 Perdix.
    December 8, 2020 at 8:15 am

    Yet another worthwhile step in the fight against wildlife crime – where it exists. As Christopher Edward Lock says – let us hope that these penalties are implemented.

    I have close hand experience of the penalties, not against me, I work actively to protect our BoP – but an estate five miles away – the person responsible, the employed Gamekeeper received 10 hours of Community Service – and considering the gravity and the extent of his undoubted, evidenced and admitted crime, this certainly wasn’t an example of the punishment fitting the crime. I sometimes wonder who’s side the Courts are on.

  3. 3 Stephen Lewis
    December 8, 2020 at 8:46 am

    We can have as many laws with stringent penalties as we like but without proper enforcement they are useless. The vicarious liability example is not a good bellwether for these new laws/penalties but I guess only time will tell.

  4. 4 Brian Bull
    December 8, 2020 at 9:00 am

    Stronger sentences sounds good but courts already have the ability to sentence persons to 1 year in prison and rarely if ever use it.

    They could increase the sentencing powers to what they want but will continue not to send people to prison.

    Also another opportunity missed to make real change by giving SSPCA increased powers to assist with wildlife crimes…

    • 5 Paul V Irving
      December 8, 2020 at 5:46 pm

      Yes but the key here is not just that sentences are longer even given the current penalties have never been used the real message is this means that the police can use and authorise? the use of covert surveillance. a huge step change.

      • 6 Brian Bull
        December 8, 2020 at 10:40 pm

        I agree that doors open in terms of RIP(S)A and welcome this but will be cautiously optimistic to see if and how often police scotland use these powers…dont believe the hype!

    • 7 Raymond Jaeggi
      December 20, 2020 at 9:01 pm

      Why don’t they just make it illegal to be employed as a gamekeeper if you have been convicted of a wildlife crime? That way it does not matter if the sentence is insignificant.

  5. December 8, 2020 at 10:19 am

    I gather this still does not change the acceptance of video evidence in court?

    • 9 Winston
      December 9, 2020 at 3:03 pm

      It does – the increased maximum sentence will now permit covert surveillance to be undertaken which is admissible in court. My understanding, however, is that it will not permit video evidence in court which has been obtained other than in accordance with RIP(S)A. Can’t recall if under RIP(S)A this power can be delegated to non-police but I would suspect not.

      • 10 Stephen Lewis
        December 9, 2020 at 7:13 pm

        RIP(S)A can and is used by local authorities for example, but the hoops one has to jump through are considerable. In other words it is not a simple exercise (rightly) to gain permission covertly surveil someone or an activity either by using humans or cameras. Not sure if RSPB or SSPCA can directly deploy RIP(S)A or whether they need to work with Police Scotland?

  6. 12 Dougie
    December 8, 2020 at 11:42 am

    Window dressing : the means by which something is made to look deceptively attractive or favourable.

    The SG seem to employ people whose contribution is defined by their qualifications …….. Phd’s in embroidery.

    Increasing sentences and creating new offences are of no tangible value when the apprehension rate is abysmal, the conviction rate is abysmal and the sentences given to the small handful who are convicted are but a pinprick.

    In the same vein the SG cannot, or will not, make the police promptly seek public help quickly when a wildlife crime is discovered.

    The SG can be well satisfied that again they have managed to enact legislation that is superficially worthwhile, but will do nothing to harm all those whose activities lie at the heart of the problem. Job done – objective achieved.

  7. 13 olivia Ortyl
    December 8, 2020 at 11:50 am

    About time. We need to see offenders and their employers jailed

  8. December 8, 2020 at 1:01 pm

    It is good that Scottish Government are improving legislative protection for wildlife. However Marine Scotland have never enforced the law protection porpoises, dolphins and whales from fish farm acoustic deterrent devices which disturb and can cause hearing injury to porpoises, dolphins and whales. We hope that the report to be published next March will end the use of these acoustic deterrents, and lead to the fitting of stronger nets or double nets on all farms to keep farmed salmon and seals separated. Please join the 26,500 people who have signed this petition. https://www.change.org/p/roseanna-cunninham-scottish-government-cabinet-secretary-for-the-environment-save-dolphins-porpoises-and-seals-from-scottish-salmon-farms

  9. 15 Alister J Clunas
    December 8, 2020 at 5:20 pm

    While the increased penalties for wildlife crime are welcome, the real opportunity here is to use covert camera surveillance. I hope that the police will use these powers to their full extent. If not, I don’t think increased penalties in themselves will have any effect as the likelihood of detection is so small. What is required is that the those who commit wildlife crime perceive that there is a greater risk of crimes being detected and are deterred by the increased likelihood of a conviction.

    • 16 Dougie
      December 10, 2020 at 10:50 am

      Alister wrote:-

      “What is required is that the those who commit wildlife crime perceive that there is a greater risk of crimes being detected and are deterred by the increased likelihood of a conviction.”

      Absolutely correct – that is the big factor and it is missing.

  10. 17 Helen Ann Dunn
    December 8, 2020 at 6:43 pm

    Is there anywhere in this new legislation that mentions the terrible practice of using live crows in traps on grouse moors? I couldn’t believe that they were legal in this country when I found 1 last year on a hike in the Lammermuirs. I know they’re illegal in some European countries.

  11. 19 Jill Willmott
    December 8, 2020 at 7:22 pm

    If the Licensing can be tied to the land, then the Shoot manager/owner and/or the Landowner should be able to be held accountable, either alone or severally. It should give them the kick to reel in the miscreants on their land/shoot.
    Hopefully, this might see a lot of landowners realising that bad Practice will no longer be tolerated.

  12. 20 Keith Dancey
    December 8, 2020 at 10:37 pm

    When the penalties for crimes are significantly increased, the Police take those crimes more seriously, and more resources are released. This is an ‘official’ message from ‘Society’ to the Police that the electorate want such crimes to be ‘properly’ dealt with.

    Likewise, the judiciary also react by increasing sentencing, because the tariff is proportional to the maximum.

    As such, this is another watershed moment.

  13. 21 Matt Dalby
    December 10, 2020 at 2:33 am

    Protection for mountain hares to come into force March 2021. Unbelievable! this allows estates one final killing spree this season. I can’t think of any reason, other than pressure from the shooting lobby, why the new rules couldn’t have become effective immediately.


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