One of the final throws of the dice by the outgoing SNP Government, before the Scottish Parliament broke up, was to pass the Wildlife and Natural Environment (Scotland) Act 2011.

The intention behind the Act was to tidy up existing laws, and to a large extent that has been achieved, but important new measures for those who own or manage land and sporting rights have been introduced. Game licences are finally abolished.

It is difficult in a few lines to summarise a detailed piece of legislation, but the most important provisions which the Act brings into law are as follows:-

Wild Birds

Greater protection is extended to wild birds, which, for the first time, are to include game birds, including prevention of poaching and Areas of Special Protection.

Red Grouse and Game Bird Poults

It is, however, not an offence to catch up red grouse for the purpose of preventing the spread of disease and with the intention of releasing them within 12 hours. There is continued protection for game bird poults in pens.

Hares

For the first time there are to be close seasons preventing the killing of hares (1 March to 31 July for mountain hares and 1 February to 30 September for brown hares). Killing a hare which is seriously disabled or for the protection of harvested crops, vegetables, fruit, timber, other property or fisheries is permitted in the close season, as is the capture of a hare which is disabled for the purpose of tending to and then releasing it. The sale or possession of wild hares or rabbits killed or taken unlawfully is to be an offence, unless under Licence.

Snares

New statutory provisions are introduced requiring those setting snares to be properly trained, to have an identification number (issued by the Police) which is to be tagged securely to snares set by that person. Snares are to be inspected every 24 hours to see whether any animals have been caught by them and that they are free-running. The person with the identification number is to keep a record of the location of snares, the dates on which they were set and the animals caught in them.

A duty is imposed on Scottish Ministers to review the operation and effect of the provisions in relation to snaring no later than 31 December 2016 and then every five years.

Non-Native and Invasive Species (Animals and Plants)

It becomes an offence to release or keep non-native animals and to plant or have in one’s possession non-native plants. The Scottish Ministers may, by order, make provision for the notification of the presence of invasive species, to draw up a Code of Practice (http://www/scotland.gov.uk/Publications/2011/03/17115253/0) and to make Species Control Orders.

NB : Pheasants and Red-Legged Partridges are specifically excluded from these provisions.

Deer

An obligation is placed on Scottish Natural Heritage to draw up and from time to time to review or replace a Code of Practice for deer management. It is also obliged to review the operations of Deer Management Groups and has power to establish a Register of Persons competent to shoot deer, to make regulations covering registration. SNH is, by 1 April 2014 to review levels of competence among persons who shoot deer and their effect on deer welfare.

There are extensive amending provisions in relation to Control Agreements and Control Schemes as well as Close Seasons.

Badgers

Previous legislation is amended to give extended protection to badgers.

Muirburn

Muirburn may be made only during the “Muirburn Season” which is split into the “Standard” (1 October to 15 April) and “Extended” (16 to 30 April) seasons. Muirburn may only be undertaken in the extended season by the proprietor or those having his authority in writing. The Scottish Ministers may licence Muirburn at other times.

Biodiversity

Public bodies are obliged to prepare and publish a Biodiversity Report, on the actions taken by it in pursuance of its statutory duties, once every three years.

SSSI

Part 5 of the Act permits SNH to combine Sites of Special Scientific Interest and contains amendments to previous legislation in relation to de-notification and Operations Requiring Consent. A Restoration Notice is to be preceded by a “Proposal to issue” the Notice, compliance with which within 28 days will discharge the responsible person from liability to conviction for an offence.

Wildlife Crime

This topic has been left until last in this paper as it includes perhaps the most important (and certainly the most controversial) of the provisions made by the Act.

In the first place, Scottish Ministers are required to lay before the Scottish Parliament after the end of each calendar year a Report on offences relating to wildlife, including information on the incidence and prosecution of offences and information on research and advice relating to wildlife which they consider relevant to such offences. Greater powers of enforcement are to be extended to Wildlife Inspectors.

In the second place, the concept of persons being guilty of offences carried out by others (a familiar concept in Scots Law already – for example in the Licensed Trade) is introduced in the context of Wildlife Crime. Three areas fall to be considered.

1 “Knowingly causing or permitting”

An offence of “knowingly causing or permitting” certain offences is introduced. This relates to the sale of live or dead wild birds and their eggs, the registration of captive birds and the possession of pesticides. This means, for example, that a landowner who supplies his Keeper with illegal poisons, or turns a blind eye to the Keeper having them, will be guilty of an offence himself.

2 Partnerships and Unincorporated Associations

If a Scottish partnership or other unincorporated association is guilty of wildlife crime and that offence is proved to have been committed with the consent or connivance of, or be attributable to any neglect on the part of, a partner in the partnership or a person concerned in the management or control of the association, he (as well as the partnership or association) will be guilty of an offence and liable to prosecution.

3 Vicarious Liability

Where a person (B) has the legal right to kill or take wild birds over land or manages or controls the exercise of that right and his employee, agent or a person providing relevant services to B (A) commits a wildlife offence, B is also guilty of the offence and liable to prosecution unless B can show that he did not know that the offence was being committed by A AND took all reasonable steps and exercised all due diligence to prevent the offence being committed.

Management or control of the exercise of the right to kill or take wild birds includes the management or control of any of (a) the operation or activity of killing or taking (b) the habitat (c) the presence on or over the land of predators and (d) the release of birds for the purpose of their being killed or taken.

A provides “relevant services” for B if A manages or controls any of those activities etc whether A is providing the services by arrangement with B or by arrangement with an employee or agent of any other person who is providing or securing the provision of relevant services for B.

Comment

Vicarious liability has, perhaps unsurprisingly, caused consternation among landowners, sporting tenants and their agents. It should be noted, however, that such persons are liable to prosecution only if, in the first place, a wildlife crime has been committed by one of their employees, agents or contractors. Thus the fact that a dead Sea Eagle is found on one’s land will not lead to prosecution unless, of course, its death was caused by the Keeper. Furthermore, it is a complete defence for the landowner, shooting tenant or agent to demonstrate that he did not know that the offence was being committed AND took steps and exercised diligence to prevent it being committed. NB he must show both of these. In our view taking all reasonable steps and exercising all due diligence to prevent the commission of an offence requires the landowner, shooting tenant or agent to take pro-active measures to do so and not simply to turn a blind eye.

Finally, it should be noted that proceedings may be taken against B in respect of an offence committed by A, whether or not proceedings are also taken against A – although we fail to see how a Court can find B guilty of an offence committed by A unless A is also found guilty of that offence.

While Vicarious Liability is undoubtedly a new trap for the unwary and the careless, it should, in our view, hold no concern for those who abide by the spirit as well as the letter of the law. Otherwise, the provisions of the Act are generally reasonable – and much more reasonable than the official opposition would have liked. The Act does, however, impose duties on Ministers to review many of its provisions, particularly those covering snaring, and we suggest that it is important that those controlling or carrying out such activities or capable of preventing them being carried out illegally “play the game” if more stringent measures and even bans are not to follow. Be certain that, like the grouse in the heather, the next Parliament will be keeping its beady eye open for potential offenders.

For Further Information

For further information please contact Jim Drysdale or John Mitchell or your usual contact at Anderson Strathern.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.