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.”
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.