The Wildlife and Natural Environment (Scotland) Act 2011 (WANE) introduced a number of changes to the legislation dealing with wildlife crime and wildlife management in Scotland.
- Introduction of vicarious liability;
- New regulation requiring training for snaring operators and tagging of snares; and
- A new approach to dealing with non-native species.
Parliamentary debates on the Wildlife and Natural Environment Bill highlighted the need for further measures to help deal with crimes against birds of prey. This followed a number of high-profile cases in the north of Scotland. The provisions introducing vicarious liability came into force on 1 January 2012.
Golden Eagle: SASA
Vicarious liability applies to offences committed by an employee, agent or contractor of anyone who has the legal right to shoot wild birds on a piece of land, or anyone who manages operations connected with that right. Owners or managers cannot be convicted under vicarious liability unless it can be proved that a person for whom they are responsible committed a relevant offence. It would be a defence if the owner or manager can show they took all reasonable steps and exercised all due diligence, and did not know of the offence.
Vicarious liability is not in itself an offence, but rather a land owner or manager may be held to be vicariously liable for relevant offences as set out in Section 18 of the 1981 Act. The relevant offences are those in:
- Section 1(1), (5) or (5B)
- Section 5(1)(a) or (b)
- Section 15A(1).
These offences are in relation to the intentional or reckless killing, injuring of a wild bird or the damage to, or destruction of a nest or egg(s); the prohibition of certain methods of killing wild birds (e.g. by the use of traps or poisons); and the possession of certain prescribed pesticides.
The offences to which vicarious liability applies carry a maximum penalty of six months imprisonment or a maximum fine of £5,000 or both.
There have not been any convictions under the vicarious liability provisions as yet. Any relevant offence which is investigated will be considered for vicarious liability implications. In the meantime it is reported that many responsible land owners and managers have been prompted to review their management and training practices to ensure their employees are aware of duties and responsibilities under the law. This in itself is a positive effect of the new legislation.
Snaring is commonly used in Scotland as a means of control for some predator and pest species but must be carried out in accordance with the requirements set out in Section 11 of the Wildlife and Countryside Act 1981.
Following a public consultation on snaring in 2006, the then Minister for Environment, Michael Russell MSP, decided to allow snaring to continue but announced a package of measures to the Scottish Parliament in March 2008 designed to deliver improvements in the animal welfare aspects of the use of snares to control predator and pest species.
As part of the package of measures to improve snaring, The Snares (Scotland) Order 2010 introduced changes to snaring legislation in that:
- snares must be fitted with effective stops to prevent nooses from closing too far;
- the action of each snare must be checked each time before it is set to ensure that it is free running;
- all snares that are not staked in place must be fixed with an effective anchor; and
- snares must never be set on or near features that could result in unnecessary suffering to the target animal, such as setting snares in such a place where an animal caught by the snare is likely to become fully or partially suspended or drown.
Further amendments to the 1981 Act were introduced through the Wildlife and Natural Environment (Scotland) Act 2011. From 1 April 2013, it has been an offence to set a snare in Scotland unless a snaring operator has successfully completed a snaring training course run by an approved body as set out in the Snares (Training) (Scotland) Order 2012.
A snaring operator who has successfully completed a snaring training course should apply to their local police station for a unique identification number which must be attached to all snares set from 1st April 2013. The Snares (Identification Numbers and Tags) (Scotland) Order 2012 sets out the process for obtaining a snaring identification number and tagging requirements.
Anyone found guilty of an offence under Section 11 of the 1981 Act will be liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or both.
Invasive Marbled Crayfish: Charles Everitt
The legislation governing the release and planting of non-native species in Scotland was also modernised by the WANE Act 2011, coming into force on 2 July 2012. This legislation is based on the precautionary principle, creating offences designed to prevent further establishment of non-native species in Scotland.
New tools for dealing with non-native species problems were also created - these 'Species Control Orders' can be made to oblige owners or occupiers to take action in relation to invasive species. This could be a simple as requiring them to allow contractors to access their land but it could require some real action on their part to contain, control or eradicate an invasive species.
In recognition of the depth and variety of knowledge required to outline what action is necessary to deal with non-native species issues, the power to create Species Control Orders was given to Scottish Ministers, Scottish Natural Heritage, the Scottish Environment Protection Agency and Forestry Commissioners. At the time of writing no Species Control Orders have been created.
It is anticipated that the second wildlife crime annual report to be published in 2014, will cover any effects that these changes in legislation have made.