The remit of the Review posed a question in two parts, viz whether the Act is providing a sufficient level of protection for wild mammals, while at the same time allowing effective and humane control of wild mammals. In the course of the Review the question has turned out to be more specifically whether the Act has resulted in the elimination so far as possible of the chase and kill by hounds or other dogs of traditional fox-hunting, while allowing effective and humane control of foxes by flushing to guns by a pack of hounds or an unspecified number of dogs.
To neither part of the question is it possible to give a clear yes/no answer. There are reasons to be concerned in relation to both aspects. On the other hand, revising and amending the terms of the Act, and introducing measures aimed at making the actions of hunts more transparent and accountable, could over time lead to a situation where a positive answer can be given to both.
The following paragraphs discuss changes in hunting practices following the legislation in 2002, the statistics for reports of offending and prosecutions, significant features of the legislation, and the practice of flushing to guns and the different perspectives on its effectiveness in achieving a satisfactory outcome on both aspects of the question. The final chapter looks at various proposals for change.
The Review has led to two broad conclusions: in the first place, that there are aspects and features of the legislation which complicate unduly the detection, investigation and prosecution of alleged offences; secondly, that there is a basis for suspecting that there may be occasions when hunting, which does not fall within one of the exceptions, does take place and that the grounds for that suspicion should be addressed. These conclusions have in turn led to the following recommendations.
The language of the Act should be reviewed with a view to removing inconsistencies and inappropriate and unnecessary expressions and introducing greater consistency and clarity of expression (paragraph 5.38). That review should extend to considering whether section 2(3) should provide that only one dog should be used underground as in section 5(3) (paragraph 6.29).
Consideration should be given to the appointment of part-time, independent hunt monitors to observe on a random basis the activities of hunts using packs of hounds. While it is conceivable that such an arrangement could be provided for in legislation, there is reason to believe that it should be possible to develop a voluntary Protocol or Code of Practice to regulate this through discussions in which Police Scotland should be involved. It is envisaged that the monitors would be engaged by an appropriate agency of the Scottish Ministers to whom they would submit a report of their observations. An annual summary of their observations could be included in the Wildlife Crime in Scotland Annual Report. It is also envisaged that the monitors’ observations would in principle be admissible evidence in court (paragraphs 7.2 and 7.3).
The existing Scottish Mounted Foxhound Packs Fox Control Protocol should form the starting point for the development of a separate Code of Practice for the conduct of hunt activities, including requirements for notification to the police in advance of the hunt of the identities of those responsible for the activities of the hunt, the number of hounds to be used, the identities of the guns and other information, and also provisions about the conduct of those participating in the activities of the hunt. The material should be recorded in the form of a log or register which would form the basis for an annual report by Police Scotland to Scottish Ministers with a view to relevant parts being incorporated into the Wildlife Crime in Scotland Annual Report (paragraphs 7.7 to 7.10).
Consideration should be given to amending section 1 of the Act in one of the following ways: either to provide that a person who “intentionally or recklessly hunts” a wild mammal with a dog commits an offence, or alternatively to provide that a person who “uses, or causes or permits, a dog to hunt” a wild mammal commits an offence (paragraphs 5.22 and 7.15 to 7.22).
Consideration should be given to providing that the landowner who permits the hunt to carry out their activities over his land would be guilty of an offence in the event that someone involved in the hunt commits an offence, i.e. would be liable vicariously in the sense in which that term is used in this debate (paragraph 7.24).
The Act should be amended to provide that the onus of establishing that conduct fell within one of the exceptions lies upon the accused (paragraph 7.27).
The time limit for bringing prosecutions under the Act should be extended (paragraph 7.43).