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SECTION 3 - GAME LAW

PART I - BACKGROUND INFORMATION

The game laws in Scotland

The laws regulating shooting and the protection of wild animals in Scotland are very old. Their intention and purpose have varied over time depending on whether the animal is viewed as essential for the provision of food and pelt, a quarry for the purpose of sport or an endangered species requiring protection. In general, a wild animal which is hunted for sport and capable of being eaten is defined as game ².

"Game" in this section of the consultation document is concerned with game birds and ground game (e.g. hares, rabbits, pheasants, partridges and grouse).

The game laws in Scotland cover three separate areas:

• (i) game licensing - legislation which governs who may take/kill game, and deal in game
• (ii) poaching - legislation which governs the offence of illegally taking game, the penalties involved, and the enforcement mechanisms
• (iii) C lose Seasons - legislation which governs the dates in which game may be taken/killed

Game law is governed by the following statutes:

• the Game (Scotland) Act 1772
• the Game Act 1831
• the Night Poaching Act 1828
• the Game (Scotland) Act 1832
• the Game Licences Act 1860
• the Poaching Prevention Act 1862

Copies of these acts can be obtained from the statute law database: http://www.statutelaw.gov.uk/

Rationale for considering legislative reform

Game law is very old, with most of the legislation dating from the 19 ^th Century in large part unchanged. The Scottish Government recognises that elements of game statute may be out of date and in need of modernisation to make their operation more efficient and effective.

In 2007, the UK Government abolished licensing systems for killing game or dealing in game in England and Wales. The same proposal was consulted on for Northern Ireland in 2008. We wish to consult specifically on the future of the game licensing system in Scotland, and consider there is merit also in seeking views on other areas of game law at the same time.

PART II - OPTIONS FOR LEGISLATIVE REFORM

The Scottish Government wishes to consult on how the three main areas of game law might be modernised. In this section of the consultation document we provide general context to each area of statute, set out some of the key options for potential reform and invite views on a number of specific issues.

Q21. If the game laws are modernised, do you have a view on whether existing statute should be (a) amended but retained in broadly its existing form; (b) repealed and consolidated into a single game law statute; or (c) repealed and brought within the Wildlife and Countryside Act 1981?

Game Licensing

Licence to take/kill game

Background

Under the Game Licences Act 1860, before anyone (with some statutory exemptions) may take or kill game they must obtain a licence to do so. A number of different licences can be obtained, the most expensive licence of which - the yearly licence - costs £6.

The original basis for the licence is unclear but may have been to help combat poaching and to limit the sport of shooting game to those who could afford the licence fee.

It is argued that the game licence now represents a bygone age and has not been updated in a way that reflects changing social and conservation attitudes. The main criticisms are:

• game licences do not perform a conservation role as they do not impose any limit on the number that can be taken
• the cost of game licences has not changed since 1968, and they consequently generate marginal revenue
• compliance is low, with about 1 in 10 shooters estimated to possess a licence

Main option for reform

Given the criticisms made of the system, the main option for reform is to remove the requirement to hold a licence to kill/take game. Removing the game licence would mean that those seeking to hunt game would no longer have to purchase a game licence. This would remove a level of bureaucracy without compromising wildlife protection. The main negative effects would be that local authorities would no longer receive the marginal rate of revenue which the licence generates, and it would no longer be possible to use the game licence as an enforcement tool against poaching (persons suspected of poaching can be asked by landowners to produce a game licence).

Alternative means of reform

There are two alternatives to abolition of the licence:

(1) The current system could be improved by issuing licences electronically to make the system more customer friendly, and would allow for easier enforcement as information on licence holders could be made available more quickly than is currently the case.

(2) Alternatively or in tandem, the cost of licences could be increased substantially, attempts to increase compliance would be made and the revenues raised could be used for game conservation projects, administration and enforcement.

Q22. What is your view on the proposal to abolish the requirement to have a licence to take/kill game?

Q23. If the licence requirement is abolished, should either of the alternatives above be pursued, or in what ways, and for what purpose(s), do you consider that the current system could be reformed?

Licence to deal in game and selling game out of season

Background

The Game Act 1831 and Game Licences Act 1860 together regulate who can sell game and detail the conditions of being a licensed dealer. Anyone intending to deal in game (excluding deer, which is dealt with under the Deer (Scotland) Act 1996) must obtain two licences - a local authority licence and an excise licence. The excise licence costs £4, and like the licence to take or kill game, the cost has not changed since 1968. The cost of the local authority licence is set by individual local authorities and tends to be similarly low.

The licence to deal in game appears to have been introduced as a means to deter dealing of poached game, and to control the basis of game dealing in general.

Under section 4 of the Game Act 1831, it is an offence to buy or sell game birds after ten days from the start of the close season of the relevant species. This close season on dealing was implemented to ensure that there was no market for meat illegally obtained during the close season, and to help game bird populations.

Refrigeration options mean that game bird meat could now be sold throughout the year without endangering the species involved. Today's comprehensive food standards legislation covers the food safety aspects of game dealing, requiring those receiving or supplying food to have in place systems and procedures to identify to whom they have supplied it or from whom they have received it. As game is included in the definition of food, it is subject to the same traceability requirements as other food.

Main option for reform

The main options for reform in relation to dealing in game are to remove the requirement to hold licences to deal in game, and to remove the restriction on dealing in game birds during the close season.

Removing the restriction on selling game birds would allow domestic suppliers of game to sell game birds throughout the year, and would remove a further layer of bureaucracy.

A concern with removing the restriction on dealing in game during close seasons would be in ensuring that the game being sold had been killed legally during the open season. To help ensure this, an offence of selling a bird which has been unlawfully killed or taken could be created. This offence would prohibit the selling of game birds that have been killed outside the open season or had been poached. This would prohibit the sale of birds that have been killed in a manner that would constitute an offence under the Game (Scotland) Act 1772, the Night Poaching Act 1828, the Game (Scotland) Act 1832, the Prevention of Poaching Act 1862 and the Wildlife and Countryside Act 1981, where the person knew or had reason to believe that it had been killed in an unlawful manner.

The new offence could be framed to provide that the prosecution would not have to prove all elements of the offence. The prosecution would need to prove that a game bird had been offered for sale or sold, and that the bird had been unlawfully killed or taken. However, the accused would be required to show that they did not know nor had reason to believe that the bird was unlawfully killed or taken. Justification for this approach would be that the defence is in a position to provide the required information in some form relatively easily while it may be considerably more difficult for the prosecution to prove this. The overall burden of proof would remain on the prosecution and given the information that is required to be recorded under food hygiene system, the game dealer could reasonably easily provide information showing that they had no knowledge or reason to believe that the bird they were selling was taken illegally.

Q24. What is your view on the proposal to remove the requirement to have licences to deal in game?

Q25. What is your view on the proposal to create a new offence of selling a game bird which has been unlawfully killed or taken (if the restriction on dealing in game in the Close Season is removed)?

Poaching

Background

The game-poaching laws create offences and enforcement mechanisms for the unlawful taking of game in Scotland. These laws deal principally with game birds and ground game. Deer and salmon poaching legislation has been consolidated separately and is not included in this section of the consultation document.

In common law, game species have no owner and therefore become the property of anyone who catches them. However, every landowner has the right to exclusive use of their own land which includes the right to hunt game on their land and to prevent all unauthorised persons entering their land to pursue and take game.

The right to hunt and capture wild animals and birds cannot be owned separately from the land. A landowner can, however, grant "sporting leases" and will frequently do so. In addition (unless reserved to the landlord), an agricultural tenant has certain rights to capture and take certain animals if this is necessary to protect their crop.

The legislation underpinning poaching offences dates from the 19 ^th century and has not been substantially modernised since that time. The language is often archaic and some of the terminology no longer has common usage. This can give rise to a lack of clarity of meaning and anomalies. The enforcement provisions are also outdated with, for example, police having few specific powers to proactively intervene where poaching is suspected. For these reasons, there is a case for considering the modernisation and consolidation of poaching law.

Daytime and night-time poaching

Poaching legislation draws a distinction between daytime poaching and night-time poaching.

Daytime poaching

Daytime is defined in the Game (Scotland) Act 1832 as one hour before sunrise to one hour after sunset.

The 1832 Act makes it an offence for any person to trespass on land without leave of the owner or the proprietor in search of game, woodcock, snipe, wild ducks or rabbits and carries a fine not exceeding level 3 on the standard scale (£1000). A greater penalty applies where five or more persons are acting together to commit the offence (a fine not exceeding level 4, (£2500)). A greater penalty also applies should any of the poachers have their face blackened coloured or otherwise disfigured for the purpose of disguise (a fine not exceeding level 4). An offence is also committed by any trespasser who assaults or obstructs any person exercising their powers (set out below) under the 1832 Act (a fine not exceeding level 3).

Anyone found committing an offence under the 1832 Act may be asked by an authorised person to give their full name and address and to leave the land. If they give a false name or address or refuse to give their name and address, or refuse to leave the land, or return to the land, they may be apprehended by authorised persons and conveyed to the police.

A person authorised to exercise the power to apprehend must fall within one of the following categories:

• anyone having a right to kill game on the land
• occupiers
• anyone authorised by the two categories above
• gamekeepers or servants

No explicit power is given to the police in respect of daytime poaching, but they may use their common law power of arrest if this is applicable (e.g. where someone refuses to provide a name and address), or may be invited by the landowner to exercise the powers above.

Poaching at night

Night-time is defined in the Night Poaching Act 1828 as one hour after sunset to one hour before sunrise.

The 1828 Act makes it an offence to unlawfully take or kill any game or rabbits at night (a fine not exceeding level 3). It is also an offence to enter or be on any land at night with any gun, net, engine or other instrument for the purpose of taking or killing game (a fine not exceeding level 3). Where three or more people together unlawfully enter land for the purpose of taking or killing game or rabbits and any of them are armed with a gun, crossbow or other offensive weapon, a further offence is committed (a fine not exceeding level 4).

A distinction is created in the 1828 Act between rabbits and hares. Anyone unlawfully on land at night in search of rabbits does not commit the offence of night poaching, even if they have the equipment with them for the purpose. However, hares are included in the definition of game under the second offence of entering for the purpose of taking or destroying game.

The 1828 Act was drafted on the basis that poaching by night, in a gang or with offensive weapons, was a more serious matter than daylight poaching, since a poacher caught in such circumstances was considered more likely to fight to escape capture and recognition. Stronger powers of arrest for night poaching were therefore introduced than for day poaching.

Anyone found committing night-poaching offences may be apprehended by the owner or occupier or their gamekeepers or servants or persons assisting them on the land (or adjoining land). Anyone apprehended must be delivered to a police officer as soon as possible.

Powers to search and seize

Where a poacher is found on any land in search or pursuit of game and is in possession of game, the following may demand that the game be immediately handed over and, if this demand is refused, it may be taken from the poacher:

• anyone holding the right to kill game on the land
• the occupier of the land
• any gamekeeper or servant employed by the above
• anyone assisting or acting on behalf of any of the above

Police powers

The Poaching Prevention Act 1862 outlines police powers in relation to poaching. It enables the police to stop and search any person or vehicle in a public place if they have reasonable cause to suspect someone of coming from land, having been unlawfully in search of game. The power does not extend to a person suspected of going poaching.

Anyone found with game unlawfully obtained, or any gun, part of a gun, cartridges or other ammunition, nets, traps, snares or any other evidence of a kind used for the killing or taking of game, commits one or more of the following offences:

• obtaining game unlawfully by trespass
• using a gun, net, etc., for unlawfully killing or taking game
• aiding or abetting a poacher to commit either of the above offences

Key issues for consultation

Set out below are the broad areas of poaching law on which views are sought.

Drafting clarity and multiplicity of statutes

The age of game poaching legislation means that the language used is often archaic, and some terms are no longer commonly used (e.g. there are references to moor and black game instead of ptarmigan and black grouse).

Q26. Do you have a view on whether poaching law should be modernised? If so, how should the offence(s) be framed in statute?

Definitions and anomalies

Game is defined differently across the game acts, and in some cases not at all. Consolidation would provide for a single term to be used. Night poaching is limited to game (defined as hares, pheasants, partridges, grouse, heath or moor game, black game and bustards) and rabbits, whereas day poaching relates to game, woodcock, snipes, wild ducks and rabbits, and police powers under the 1862 Act relate to "hares, pheasants, partridges, eggs of pheasants and partridges, woodcocks, snipes, rabbits, grouse, black or moor game, and eggs of grouse, black or moor game".

Q27. Do you have a view on whether the definition of game used in poaching legislation should be standardised? If so, what should the definition be?

There is an apparent anomaly under the Night Poaching Act where it is an offence to take or destroy rabbits while unlawfully entering on to land but it is not an offence to enter on to land with the appropriate implements with the purpose of taking or destroying rabbits (although it is an offence where three or more people enter land with the purpose of taking or destroying rabbit). Hares are, however, protected on both counts which can give rise to enforcement problems given the difficulty in proving intent in relation to taking hares or rabbits.

Q28. What are your views on how rabbits and hares should be treated under poaching statute?

Police powers

The 1828 and 1832 Acts do not expressly refer to police powers (possibly due to the fact that the enactment of the game laws corresponds with the initial development of a regular police force in the UK). The 1862 Act does specify police powers but they are limited in that they do not allow for the police to exercise their powers on private land and do not afford the police a power of arrest. There may be a case for bringing police powers into line with those already provided for in other forms of wildlife crime, for example, in the Wildlife and Countryside Act 1981 (this would involve giving police the power to enter onto land, to stop and search, and to arrest, with facility to seek a warrant to enter and search premises, in relation to poaching offences).

Q29. What are your views on the proposal that police powers should be extended in relation to poaching offences and brought into line with those which apply under the 1981 Act?

Other enforcement powers

Enforcement powers available to landowners, gamekeepers etc. - i.e. the ability to apprehend suspect poachers - are exceptional in modern statute.

Q30A. Do you have a view on whether landowners and their employees should no longer continue to have powers to deal with suspected poachers?

Q30B. If you believe that these powers should be retained, how they should be framed in statute?

Single witness evidence

Convictions for the various offences under the poaching acts can be gained by "proof on oath by one or more credible witness or witnesses". This puts poaching offences in a relatively small minority that allow for single witness evidence, although there are other wildlife crime examples in the Wildlife and Countryside Act 1981. Where single witness evidence is adopted, the Act involved tends to place a burden on the accused to provide evidence to corroborate that they are exempt from conviction.

Q31. What are your views on the proposal that poaching offences should continue to be prosecutable on single witness evidence?

Penalties

There is variation in the penalties which apply to offences in the game acts, and when compared with other poaching offences relating to deer offences, salmon poaching and offences in relation to wild birds, generally speaking, poaching of game is on the lower end of the scale. The opportunity could be taken to rationalise and standardise penalties.

Q32A. What are your views on the current penalties for poaching offences?

Q32B. What level of penalties should apply?

Game bird eggs

The only protection currently awarded to game bird eggs is under the 1862 Act, which allows the police to act where after exercising their stop and search powers they find game eggs that have been unlawfully taken, items which have been used in the unlawful taking of game bird eggs or have assisted in the unlawful taking these eggs. This contrasts with the position in England and Wales, where under section 24 of the Game Act 1831 it is an offence for any person not having the right to kill game or the permission of someone who does, to wilfully take or destroy in the nest, the eggs of "any bird of game, or of any swan, wild duck or teal or widgeon" or to have these eggs in their possession. Similarly, the Wildlife and Countryside Act 1981 makes it an offence (subject to licensed exemptions) to take or destroy the egg of a wild bird or to sell the egg of a wild bird.

Q33. What are your views on the proposal that the provision protecting game bird eggs in Scotland should be brought into line with that which applies in England and Wales?

Close Seasons

Close Seasons on shooting birds are essential to protect game and quarry species during their various breeding seasons and while they have dependent young. Close Seasons for game and quarry species in Scotland vary between species, and are split between two statutes:

• game seasons are set out in the Game (Scotland) Act 1772
• quarry seasons are set out in the Wildlife and Countryside Act 1981

The close seasons for different species

The current close seasons for game and quarry species are set out below.

It is illegal to take/kill birds' outwith the relevant open season, punishable by:

• a fine not exceeding level 1 on the standard scale (£200) for game birds
• a fine not exceeding level 5 (£5000) on the standard scale and/or 6 months imprisonment for quarry birds

Q34. Do you have a view on whether penalties for game bird Close Season offences should be harmonized with those which apply to quarry species?

Section 2(5) of the 1981 Act gives Ministers the power to vary the Close Seasons for quarry species. This provision does not currently apply to game birds.

Q35. What are your views on the proposal that Ministers should have a power to vary the Close Seasons of game birds?

Section 2(6) of the 1981 Act enables Ministers to issue orders protecting quarry species outwith their Close Season for a period of up to 14 days, where special protection of a species is required. This type of order has the effect of enforcing a temporary Close Season. This provision does not currently apply to game birds.

Q36. What are your views on the proposal that Ministers should have the facility to issue an order protecting game birds outwith their Close Season?

Injured birds

Section 4(2) of the 1981 Act contains exceptions relating to compassion to injured animals. It allows birds to be taken providing that they were not injured by that person's illegal act and as along as they have the intention of tending to the bird and releasing the bird later. Section 4(2)(b) allows an individual to kill a bird where it has been 'seriously disabled otherwise than by his unlawful act' and providing it has no reasonable chance of recovery. These provisions do not currently apply to game birds.

Q37. Do you have a view on whether the provisions described above relating to injured wild birds should be applied to game birds?

Licences and game birds

Under section 16 of the Wildlife and Countryside Act 1981, it is possible to obtain licences to control species in various circumstances where the action would be illegal under other sections of the Act. The facility to licence the taking/killing of game in the close season could be used, for example, where game birds were endangering air safety or public health or for "catching-up" purposes.

Q38. Should provision be made to licence the taking/killing of game birds in their Close Seasons in specified?

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