Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020: provisions and requirements for additional animal welfare, animal health and wildlife offences - review

2. Provisions in the 2020 act

Under the 2020 Act, Scottish Ministers are obliged to review whether the provisions of this Act are sufficient to ensure appropriate standards of animal welfare, animal health and protection of wildlife.

This is a wide-ranging ask for a single piece of legislation; however, this section of the review looks specifically at those provisions that were in the 2020 Act.

2.1 Methods

In order to review whether the provisions of this Act are sufficient to ensure appropriate standards of animal welfare, animal health and protection of wildlife we have:

• Surveyed key stakeholders, including animal welfare organisations, and those involved in industry, enforcement and court processes, regarding their views on the wide range of changes made by the 2020 Act and on whether they consider that further primary legislation is required in the areas affected.
• Examined the disposals handed out by the Courts before and after the 2020 Act came into effect for all those charges under offences for which maximum penalties were increased by the 2020 Act.
• Examined the Courts use of disqualifications under Section 40 of the Animal Health and Welfare (Scotland) Act 2006 before and after the 2020 Act came into effect requiring Courts to consider their use in relation to charges under the 2006 Act, and requiring them to state the reasons for their decision.

2.1.1 Stakeholder survey

The wider views of key stakeholders including enforcement agencies, court-aligned organisations, industry representatives and animal welfare organisations were considered particularly important in any review of the provisions in the 2020 Act.

The Scottish Government developed and launched a targeted survey seeking views on the amendments to existing legislation made by the 2020 Act and on whether further primary legislation was required in the areas affected. The survey was issued on 8^th July 2024 to 191 key stakeholders and closed on 26^th August. We received 55 responses from a total of 46 organisations, including 26 local authorities and council areas. The majority of responses were from Enforcement, Legal or Non-Governmental Organisations. We also heard from Animal Welfare organisations (see Annex A).

The full analysis and report of this survey, undertaken by the Scottish Government’s Rural and Environment Science and Analytical Services (RESAS) division was published on 1^st April 20205 on the Scottish Government website. Key findings are repeated in each section of this document for ease of reference.

2.1.2 Disposals data

Penalties

It is important to note that any new or amended penalties are only applied to criminal actions undertaken after the coming into force date and there is usually a lag of at least a few months, if not years, before cases reach court. This means that older crimes tried at court may still be subject to the previous penalties even after new or amended penalties, have come into effect. Given this challenge, along with the statutory deadline for the review of 1 April 2025, and the risks of relying on any single year’s data to compare ‘before’ and ‘after’, the time periods investigated are as follows:

• Before: 1 April 2018 to 31 March 2020
• After: 1 April 2022 to 31 March 2024

This gives 2 years of data on the disposals for relevant crimes committed before the 2020 Act provisions came into force, and 2 years of data where theoretically a good proportion of the relevant crimes tried were committed after the new penalty provisions came into force on 30 November 2020. However, it should be noted that this only leaves 16 months between the coming into force date and the start of the ‘after’ period. According to the Scottish Government’s Collection on Journey times in the Scottish Criminal Justice System, while the most frequent journey time through the Scottish criminal justice system to disposals for those accused is within a year of the offence, there are a significant number of cases that take up to 2 years, and some that take even longer.

The Scottish Government’s Justice Systems Analysis Unit provided ‘before’ and ‘after’ data sets, setting out the year in which cases involving offences affected by the 2020 Act were tried; the procedure by which they were tried (summary or solemn); the offence involved; and the disposals made. Data was requested for all amended and newly introduced offences, as implemented by the 2020 Act.

Disqualifications

The Scottish Government’s Justice Systems Analysis Unit also provided before and after data sets for all charges where disqualifications under Section 40 was one of the disposals issued, setting out the year in which the case involving the charge was tried, and the offence for which they were tried. The same before and after periods were used for the disqualifications data as for the disposals data.

Only charges under offences within the Animal Health and Welfare (Scotland) Act 2006 were considered, as these are the only offences for which the Courts were obliged, by an amendment in the 2020 Act, to consider whether a disqualification order under Section 40 is required.

2.2 Results

Some explanation of the amendments made by the 2020 Act is provided in this section to aid understanding of the results. Further information on specific changes can be found in the Act itself, and in the policy and explanatory notes introduced with the Bill. Disposals data was provided where a charge for an offence was prosecuted within the respective time periods. Offences for which charges were tried were:

Animal Health and Welfare (Scotland) Act 2006

19(1) – Causing unnecessary suffering by an act (any person).

19(2) Causing unnecessary suffering by an act or omission (person responsible for an animal).

23(1)(a) Keeping or training an animal for an animal fight.

23(2) Causing, arranging, or taking part in an animal fight or betting on the outcome.

23(4) Supplying, publishing, showing or possessing a video of an animal fight

Protection of Wild Mammals (Scotland) Act 2002

1(1) Deliberately hunting a wild mammal with a dog.

Protection of Badgers Act 1992

1 Taking, injuring or killing badgers

3(1)(a) Damaging a badger sett or any part of it.

3(1)(c) Obstructing access to, or any entrance of, a badger sett.

3(1)(d) Causing a dog to enter a badger sett.

3(1)(e) Disturbing a badger when it is occupying a badger sett.

The Conservation (Natural Habitats, &C.) Regulations 1994 Reg

39(1)(a/b/c/d) Harassing/disturbing protected wild animals of European protected species, taking eggs/disturbing breeding sites

Wildlife and Countryside Act 1981

1(1)(a) Killing, injuring or taking any wild bird.

1(1)(b) Taking, damaging or destroying the nest of any wild bird while that nest is in use or being built.

1(1)(c) Taking or destroying an egg of any wild bird.

1(2)(a) Possession or control of any live or dead wild bird or any part of, or anything derived from, such a bird

10A(1) Protection of wild hares.

11(1)(aa) Sets in position or otherwise uses any other type of snare which is either of such a nature or so placed (or both) as to be calculated to cause unnecessary suffering to any animal coming into contact with it.

11(2)(a) Using any trap or snare for the purpose of killing or taking or restraining any wild animal included in Schedule 6.

11G(1) Recklessly kills, injures or takes any wild animal included in Schedule 6A.

15(A) Possession of any pesticide containing one or more prescribed active ingredient

5(1)(a) Sets in position any of the following articles, being an article which is of such a nature and is so placed as to be calculated to cause bodily injury to any wild bird coming into contact therewith, that is to say, any springe, trap, gin, snare, hook and line, any electrical device for killing, stunning or frightening or any poisonous, poisoned or stupefying substance.

5(1)(b) Uses for the purpose of killing or taking any wild bird any such article as aforesaid, whether or not of such a nature and so placed as aforesaid, or any net, baited board, bird-lime or substance of a like nature to bird-lime

9(1) Subject to the provisions of this Part, if any person intentionally kills, injures or takes any wild animal included in Schedule 5, he shall be guilty of an offence.

9(2) Subject to the provisions of this Part, if any person has in his possession or control any live or dead wild animal included in Schedule 5 or any part of, or anything derived from, such an animal, he shall be guilty of an offence.

9(5)(a) Sells, offers or exposes for sale, or has in possession or transports for the purpose of sale, any live or dead wild animal included in Schedule 5, or any part of, or anything derived from, such an animal.

A full list of the disposals data provided can be found at Annex B. This includes disposal types other than the fines or prison sentences provided under the legislation under which the offence was committed, such as community service or disqualifications under the Dangerous Dogs Act 1991 or the Control of Dogs (Scotland) Act 2010, higher fines or longer custodial sentences.

2.2.1 Ability to try ‘either way’

Change made by 2020 Act

Prior to the 2020 Act coming into force, all offences under the Animal Health and Welfare (Scotland) Act 2006 and most wildlife offences could only be prosecuted using a court procedure known as “summary procedure”. Under this process there is no jury and it is the court, in the form of either a Sheriff or Justice of the Peace (JP), that determines whether an accused person is guilty of an offence and, if so, what the sentence should be. When heard in the Sheriff Court, in a summary case, the court can sentence an accused person up to 12 months in prison or a maximum fine of £10,000, depending on the penalties available for the offence. The maximum sentence a JP can impose is a fine of £2,500 or to send someone to prison for up to 60 days. Prosecutions by summary procedure are also generally subject to time limits. Under Section 136 of the Criminal Procedure (Scotland) Act 1995 there is an automatic time limit for bringing a prosecution of 6 months from the date of the offence. This time limit applies to all offences that are only triable by way of summary procedure, unless a different time limit is specified in statute.

The 2020 Act made provisions to allow offences under Section 19 (unnecessary suffering) and 23 (animal fighting) of the Animal Health and Welfare (Scotland) Act 2006, along with a number of serious wildlife offences, to be tried either way. This means that the Crown Office and Procurator Fiscal Service (COPFS), on assessing a case reported to them, can decide whether to prosecute a crime using summary or solemn procedure. Prosecution by solemn procedure, with a jury, allows Sheriff Courts to issue sentences of up to 5 years in prison or to impose a fine of any amount, and there is no statutory time limit for bringing a prosecution.

Survey responses

Over a third (38%) of respondents to questions on animal welfare considered the ability to choose between summary and solemn proceedings for offences under Section 19 (unnecessary suffering) and Section 23 (animal fighting) to have been used effectively. A fifth (20%) did not, with animal welfare and non-Governmental organisations more likely to fall into this category.

Conversely, over a third (38%) of respondents to questions on wildlife did not consider the ability to choose between summary and solemn proceedings for wildlife offences to have been used effectively; 31% of respondents considered that it had.

On the decision between summary and solemn proceedings, it was noted that there are a number of factors to be considered:

• The nature of the offence and how serious it is considered to be.
• The nature of the accused – this can vary from someone facing mental health or financial challenges to someone involved in organised crime.
• The sentence most likely to be imposed by the court.
• The accused's previous convictions - where the accused has never previously served a custodial sentence a custodial sentence of over 12 months would be highly unlikely to be imposed by the Court.
• Whether the public interest is likely to be best served by a summary or solemn proceeding.

It was noted that if the number of cases being prosecuted at solemn level is low it just means that so far only a small number of cases reported to COPFS have actually merited solemn proceedings. It was suggested that in order to assess the effectiveness of the ability to try either way, focus would need to be on the minority of cases that did merit solemn proceedings. However, one organisation that responded noted an animal fighting case, which despite its seriousness, was not taken on solemn proceedings, and a perceived shortage of resources to investigate and prosecute these offences was also highlighted.

Disposals data

Table 1 shows that only one wildlife charge was taken under solemn proceedings during the four years of disposals data examined. This charge was for an offence under Section 1(2)(a) of the Wildlife and Countryside Act 1981 during the year 2023/2024. The table further shows that animal welfare charges taken under solemn procedure were significantly more numerous; however there were none for animal fighting during the time periods looked at. Prosecution by solemn procedure happened significantly less often for unnecessary suffering caused by the person responsible for an animal (Section 19(2) of the 2006 Act) than for that caused by another person (Section 19(1) of the 2006 Act) despite the number of cases being significantly higher. There was no clear pattern in the use of solemn procedure for offences under section 19(1) of the 2006 Act before/after the 2020 Act coming into effect; however, there was a much larger proportion of charges tried by solemn procedure in 2023/2024 (37%) than in other years (10-17%).

Table 1: Number of charges and number of those charges trialled by solemn proceedings by offence and year

		Number of Charges				Number by Solemn
Legislation	Offence	2018/2019	2019/2020	2022/2023	2023/2024	2018/2019	2019/2020	2022/2023	2023/2024
Animal Health and Welfare (Scotland) Act 2006	19(1)	29	18	31	49	4 (14%)	3 (17%)	3 (10%)	18 (37%)
	19(2)	66	66	99	72	0 (0%)	3 (5%)	5(5%)	0 (0%)
	23(1)(a)	0	5	2	0	-	0 (0%)	0 (0%)	-
	23(2)	0	3	1	1	-	0 (0%)	0 (0%)	0 (0%)
	23(4)	0	1	0	0	-	0 (0%)	-	-
Protection of Wild Mammals (Scotland) Act 2002	1(1)	2	0	16	6	0 (0%)	-	0 (0%)	0 (0%)
Protection of Badgers Act 1992	1	0	1	0	0	-	0 (0%)	-	-
	3(1)(c)	0	0	1	1	-	-	0 (0%)	0 (0%)
	3(1)(d)	0	1	0	0	-	0 (0%)	-	-
The Conversation (Natural Habitats, &C.) Regulations 1994 Reg	39(1) (a/b/c/d)	0	1	1	0	-	0 0 (0%)	0 (0%)	-
Wildlife and Countryside Act 1981	1(1)(a)	1	3	4	6	0 (0%)	0 (0%)	0 (0%)	0 (0%)
	10A(1)	0	0	0	1	-	-	-	0(0%)
	11(1)AA	1	1	0	0	0 (0%)	0 (0%)	-	-
	11(2)(a)	0	1	0	0	-	0(0%)	-	-
	11G(1)	0	2	1	0	-	0 (0%)	0 (0%)	-
	15A	0	1	0	3	-	0 (0%)	-	0 (0%)
	5(1)(a)	0	0	0	3	-	-	-	0 (0%)
	5(1)(b)	0	0	0	1	-	-	-	0 (0%)
	9(1)	0	0	0	1	-	-	-	0 (0%)

2.2.2 Increase in maximum penalties

Change made by 2020 Act

The maximum penalties for the most serious offences under the Animal Health and Welfare (Scotland) Act 2006, those under Section 19 (unnecessary suffering) and Section 23 (animal fighting), previously had maximum penalties of 12 months in prison and/or £20,000 in fines. The wildlife offences that the 2020 Act amended previously attracted penalties under summary conviction ranging from three months’ imprisonment or a fine of up to level 4 on the standard scale (£2,500) or both, up to a maximum of one year of imprisonment or fine up to £40,000 or both.

As noted previously, by providing for the most serious animal welfare and wildlife offences to be tried either way, the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 increased the maximum penalties available for them up to five years in prison and/or an unlimited fine. A significant proportion of the increases to penalties for wildlife crimes were for offences that remained summary only, but had their maximum penalties increased to 12 months in prison and/or £40,000. The full list of changes to the penalties for wildlife crimes can be found in Annex A of the policy memorandum for the Bill.

These increased penalties apply to offences under:

• Section 19 (unnecessary suffering) and Section 23 (animal fighting) of the Animal Health and Welfare (Scotland) Act 2006 .
• Wildlife and Countryside Act 1981
• Protection of Badgers Act 1992
• Conservation (Natural Habitats, etc) Regulations 1994
• Deer (Scotland) Act 1996
• Wild Mammals (Protection) Act 1996
• Protection of Wild Mammals (Scotland) Act 2002 (now repealed)

The increased penalties introduced by the 2020 Act only applied to offences committed wholly on or after 30 November 2020, when those provisions for increased penalties were commenced. This means, for example, that many trials undertaken after the 2020 Act came into effect may have been using the previous maximum penalties, not the new higher ones. This may have had some impact on disposals data, though we have tried to minimise this by looking at cases from after March 2022, and may also have impacted the views of stakeholders on how effectively they considered the changes made by the 2020 Act to have been implemented.

Survey responses

Results from the survey indicated that over a third (38%) of respondents to questions relating to wildlife did not consider the higher maximum penalties for the most serious wildlife offences to have been utilised and used effectively. Less than a quarter (23%) did consider them to have been utilised and used effectively. Over half (54%) of these respondents considered that the provisions in the 2020 Act have been, and continue to be sufficient. 15% do not think the provisions in the 2020 Act are sufficient.

Conversely, almost a third (30%) of respondents to questions relating to animal welfare considered the higher maximum penalties for the most serious animal welfare offences to have been used effectively. Around a quarter (24%) did not. Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ or ‘Not applicable’. Around four in ten (38%) respondents to this section do not think any further changes are required in primary legislation for this area. Around a third (32%) do think that further changes are required. Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ to the need for further changes or ‘Not applicable’. Responses from Enforcement / Legal organisations were mixed.

A number of respondents felt that higher maximum penalties have so far had limited impact. Reasons suggested included:

• When cases are being prepared for court The Crown Office and Procurator Fiscal Service are submitting them under summary not solemn proceedings.
• Animal welfare cases appear to be marked for solemn procedure only when other offences are also libelled.
• The courts are not utilising the maximum sentencing options available to them.
• The tendency of courts to sentence at the lower end of the scale even for summary cases.
• There are no relevant sentencing guidelines.
• There may be incompatibility with other legal considerations.

On the need for sentencing guidelines, it was suggested that:

• Scottish Ministers should make a statutory request to the Scottish Sentencing Council to develop sentencing guidelines for animal welfare offences.
• Sentencing guidance would help to ensure punishments for offences fit the crime, help ensure consistency and may help to minimise the Courts’ time and resources.
• Any guidance should outline high culpability crimes that should be awarded the maximum custodial sentence of five years to ensure that the legislation is being utilised to its fullest extent.

Other key points raised around the impact of higher penalties included:

• There is a perceived shortage of resources to investigate and prosecute these offences in the first place.
• Perpetrators of these crimes are not deterred by higher sentences as they consider that they are unlikely to be caught.

Disposals data

For the wildlife charges heard, there was no clear change in the data on fines or prison sentences handed out as part of disposals before and after the 2020 Act came into effect. This was the case in terms of the proportion of cases for which fines or custodial sentences were handed out (Table 2), the size of the fines (Table 3) and for the length of the custodial sentences given (Table 4). There were too few charges tried under wildlife offences to discern any pattern, and only a single custodial sentence was handed out for a wildlife offence within the time period investigated.

This scarcity of charges tried within the time periods looked at was also the case for charges under most offences affected under the Animal Health and Welfare (Scotland) Act 2006. However, charges for offences under Section 19 were significantly more numerous (Table 2). Despite this, in line with other offences, charges under 19(1) and 19(2) generally showed no clear pattern in the proportion of charges for which fines or custodial sentences were given, the size of the fines, or the length of custodial sentences handed out before and after the 2020 Act came into effect. There was one exception: Table 3 shows a gradual and consistent increase in the size of the minimum fines handed out for charges under 19(1) from 2018/19 to 2023/24 - however this seems to be a general trend rather than being a clear effect of the 2020 Act provisions.

The only prison sentences handed out that were longer than 365 days were for offences under Section 19 of the Animal Health and Welfare (Scotland) Act 2006. These were rare, and showed no clear change in occurrence between the before and after data sets (Table 5).

Table 2: Number of charges, fines and prison sentences by offence and year

		Number of Charges				Number of Fines				Number Prison sentences
Legislation	Offence	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24
Animal Health and Welfare (Scotland) Act 2006	19(1)	29	18	31	49	9 (31%)	5 (28%)	6 (19%)	8 (16%)	6 (21%)	8 (44%)	6 (19%)	22(45%)
	19(2)	66	66	99	72	28(42%)	23(35%)	31(31%)	28(39%)	4 (6%)	11(17%)	10(10%)	5 (7%)
	23(1)(a)	0	5	2	0	-	0 (0%)	0 (0%)	-	-	3 (60%)	2(100%)	-
	23(2)	0	3	1	1	-	0 (0%)	0 (0%)	0 (0%)	-	1 (33%)	1(100%)	0 (0%)
	23(4)	0	1	0	0	-	0 (0%)	-	-	-	1(100%)	-	-
Protection of Wild Mammals (Scotland) Act 2002	1(1)	2	0	16	6	2(100%)	-	3 (19%)	4 (67%)	0 (0%)	-	0 (0%)	0 (0%)
Protection of Badgers Act1992	1	0	1	0	0	-	0 (0%)	-	-	-	0 (0%)	-	-
	3(1)(a)	0	0	2	2	-	-	2(100%)	2(100%)	-	-	0 (0%)	0 (0%)
	3(1)(c)	0	0	1	1	-	-	1(100%)	1(100%)	-	-	0 (0%)	0 (0%)
	3(1)(d)	0	1	0	0	-	0 (0%)	-	-	-	0 (0%)	-	-
	3(1)(e)	0	1	0	1	-	0 (0%)	-	1(100%)	-	0 (0%)	-	0 (0%)
The Conservation (Natural Habitats, &C.) Regulations 1994 Reg	39(1) (a/b/c/d)	0	1	1	0	-	0 (0%)	1(100%)	-	-	0 (0%)	0 (0%)	-
Wildlife and Countryside Act 1981	1(1)(a)	1	3	4	6	1(100%)	1 (33%)	2 (50%)	0 (0%)	0 (0%)	0 (0%)	1 (25%)	0 (0%)
	1(1)(b)	0	1	1	0	-	0 (0%)	1(100%)	-	-	0 (0%)	0 (0%)	-
	1(1)(c)	0	0	2	0	-	-	0(0%)	-	-	-	0(0%)	-
	1(2)(a)	1	1	0	1	0 (0%)	1(100%)	-	0 (0%)	0 (0%)	0 (0%)	-	0 (0%)
	10A(1)	0	0	0	1	-	-	-	0(0%)	-	-	-	0(0%)
	11(1)(aa)	1	1	0	0	0 (0%)	0 (0%)	-	-	0 (0%)	0 (0%)	-	-
	11(2)(a)	0	1	0	0	-		-	-	-	0(0%)	-	-
	11G(1)	0	2	1	0	-	2(100%)	1(100%)	-	-	0 (0%)	0 (0%)	-
	15A	0	1	0	3	-	0 (0%)	-	0 (0%)	-	0 (0%)	-	0 (0%)
	5(1)(a)	0	0	0	3	-	-	-	0(0%)	-	-	-	0(0%)
	5(1)(b)	0	0	0	1	-	-	-	0(0%)	-	-	-	0(0%)
	9(1)	0	0	0	1	-	-	-	1(100%)	-	-	-	0(0%)
	9(2)	0	0	0	1	-	-	-	0(0%)	-	-	-	0(0%)
	9(5)(a)	0	1	0	0	-	1(100%)	-	-	-	0 (0%)	-	-

Table 3: Minimum, average and maximum fines by offence and year

		Minimum Fine £				Average Fine £				Maximum Fine £
Legislation	Offence	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24
Animal Health and Welfare (Scotland) Act 2006	19(1)	90	100	135	180	269	256	336	366	500	550	500	800
	19(2)	135	200	135	135	570	362	372	965	5000	650	2700	2400
Protection of Wild Mammals (Scotland) Act 2002	1(1)	500	-	450	900	500	-	733	1200	500	-	1000	1500
Protection of Badgers Act 1992	3(1)(a)	-	-	1000	3600	-	-	5000	3600	-	-	9000	3600
	3(1)(c)	-	-	1000	3600	-	-	1000	3600	-	-	1000	3600
	3(1)(e)	-	-	-	3600	-	-	-	3600	-	-	-	3600
The Conservation (Natural Habitats, &C.) Regulations 1994 Reg	39(1)(a/b/c/d)	-	-	700	-	-	-	700	-	-	-	700	-
Wildlife and Countryside Act 1981	1(1)(a)	335	450	250	-	335	450	875	-	335	450	1500	-
	1(1)(b)	-	-	700	-	-	-	700	-	-	-	700	-
	1(2)(a)	-	150	-	-	-	150	-	-	-	150	-	-
	11G(1)	-	150	750	-	-	150	750	-	-	150	750	-
	9(1)	-	-	-	8000	-	-	-	8000	-	-	-	8000
	9(5)(a)	-	120	-	-	-	120	-	-	-	120	-	-

Table 4: Minimum, average and maximum prison sentences by offence and year

		Minimum Prison days				Average Prison days				Maximum Prison days
Legislation	Offence	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24
Animal Health and Welfare (Scotland) Act 2006	19(1)	31	92	63	30	104	278	173	267	305	458	304	730
	19(2)	98	61	90	274	119	272	288	274	183	547	820	274
	23(1)(a)	-	147	183	-	-	222	196	-	-	305	210	-
	23(2)	-	305	183	-	-	305	183	-	-	305	183	-
	23(4)	-	213	-	-	-	213	-	-	-	213	-	-
Wildlife and Countryside Act 1981	1(1)(a)	-	-	123	-	-	-	123	-	-	-	123	-

Table 5: Prison Sentences longer than 365 days by offence and year

		Prison longer than 365 days
Legislation	Offence	18/19	19/20	22/23	23/24
Animal Health and Welfare (Scotland) Act 2006	19(1)	0	3	0	1
	19(2)	0	2	2	0

2.2.3 More time to investigate wildlife crimes

Change made by 2020 Act

As noted previously, for summary offences to which section 136 of the Criminal Procedure (Scotland) Act 1995 apply, criminal proceedings must be commenced within six months after the offence occurred, or in the case of a continuous contravention, within six months after the last date of such an offence. Offences that may be tried under either summary or solemn procedure are not subject to any time limit, unless specified by the enactment.

As noted above, the 2020 Act made certain animal welfare and wildlife offences triable either way which were previously only capable of being tried under summary procedure. The effect of this is that it removed the statutory time limits for bringing a prosecution. The 2020 Act also extended the time limit for some of those wildlife offences that remained triable only by summary procedure so that proceedings for those offences could now be brought within a period of 6 months from the date on which evidence sufficient to warrant proceedings came to the prosecutor’s knowledge, but no more than 3 years after the offence was committed, or on the last date it was committed.

Survey responses

Over half (62%) of respondents to questions on wildlife agreed that extending the time available to investigate wildlife crimes had been beneficial; over a third (38%) disagreed. Over half (54%) of respondents to this section thought that the time limit to investigate wildlife crimes could be increased further; 15% did not.

Reasons given for further increasing the time limit to investigate wildlife crimes included:

• Wildlife crime cases can be complex and involve multiple witnesses, seizure of multiple items of evidence and retrieval of evidence in multiple locations.
• There is a perceived lack of expert resources for investigation for complex wildlife offences.
• The police may only become aware a wildlife offence has been committed months or years later, for example through investigating other crimes.

However, it was also noted that delays in reporting a case to the Crown Office and Procurator Fiscal Service can impact the sense of urgency and overall strength of the case.

2.2.4 Around harming a service animal

Change made by 2020 Act

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 made a change to the facts that must be considered when trying an offence under Section 19 (unnecessary suffering) of the Animal Health and Welfare (Scotland) Act 2006. It added a requirement that any claim that the harm was inflicted for the purpose of protecting a person, property or another animal must be disregarded where that animal was under the control of a relevant officer at the time of the conduct; and was being used by that officer at that time in the course of the officer's duties in a way that was reasonable in the circumstances, and where that officer is not the person accused of committing the offence.

This change was to make it easier to convict people of causing service animals unnecessary suffering. Service animals affected by this change are those under the control of a constable, a special constable, any other person who has the powers of a constable or is otherwise employed or engaged to carry out, or assist in the carrying out of, police functions, or a prisoner custody officer.

Survey Responses

Results from the survey indicate that around three in ten (28%) respondents to this section think this change has been effective; 4% do not think it has been effective. Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Enforcement and Legal organisations largely answered ‘Yes’ or ‘Not applicable’.

Over a fifth (22%) of respondents to this section did not consider that further changes are required in primary legislation for this area. Around a tenth (8%) did think further changes are required. Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed, with around a quarter of this group answering ‘No’.

There were no substantial comments in this section, with respondents stating that they were not able to comment due to a lack of experience or involvement in this area. Several stated that they were not aware of any cases where this legislation has been used.

Data

We were unable to obtain any information on whether or not this provision has been applied in Court. From communication with the Scottish Courts and Tribunal Services, it appears that if the provision was relevant to a case it would be discussed and considered during the course of a court hearing. However, there is not a transcript of each case produced and the criminal case management system would not capture such information

2.2.5 Disqualification orders

Change Made by the 2020 Act

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 made a change to how the power for Courts to issue disqualification orders under Section 40 of the Animal Health and Welfare (Scotland) Act 2006 must be used. Previously Section 40 gave the Courts the power to issue orders to prohibit those convicted of certain offences under the 2006 Act from owning and/or keeping animals and/or undertaking various other animal related activities. The 2020 Act introduced an obligation on the Courts to consider whether it is necessary, to protect animal welfare, to make a disqualification order under Section 40, and also introduced an obligation on the Courts to state their reasons for their decision. The 2020 Act also placed an obligation on the Scottish Courts and Tribunals Service to establish and maintain a record of reasons relating to disqualification orders stated by the court under sections 40(5) and 42(6) of the 2006 Act.

Survey responses

One in three (30%) survey respondents considered that the requirement for Courts to consider a disqualification has been used. Over a fifth (22%) did not think it had been used. Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

A fifth (20%) of respondents considered that disqualifications had not been implemented effectively; 14% considered they had. Animal Welfare and Non-Governmental organisations largely considered implementation ineffective or answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed, with over a fifth of this group considering implementation ineffective.

Around a quarter (24%) of respondents considered that the obligation on the Scottish Courts and Tribunals Service to establish and maintain a record of reasons relating to disqualification orders has been implemented effectively; 14% do not consider this obligation to have been implemented effectively.

Almost a third (32%) of respondents to this section did not think any further changes are required in primary legislation for this area; 16% do consider that further changes are required. Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Key points raised included:

• The need to include multiple offences under the 2006 Act over a period of time in a report to the Procurator Fiscal Service to inform decisions on whether to issue a disqualification, and the form of the disqualification required.
• Animal welfare organisations noted the lack of a mechanism to monitor those who have received a ban as part of their sentencing.
• A suggestion was made to create a central database of persons who have been issued with a disqualification order, to be accessible by the relevant enforcement agencies, with processes in place to allow information to be shared with agencies in other UK countries (in order to prevent any individual with a ban from owning a horse in another UK country).
• The need for specialist fiscals and Sheriffs within the judicial system to deal with Animal Health and Welfare cases effectively.

A concern was raised that the Scottish Courts and Tribunal Service may have taken the view that the 2020 Act imposed no additional duty on it, as the reasoning behind decisions on disqualification orders is already contained in court records, and its management of these records adequately meets its statutory duty. It was suggested that the reasoning behind the obligation on SCTS was to increase the transparency regarding decisions around disqualification orders and that Court records are exempt from FOI requests. It was also suggested that it may be necessary to review the wording of this provision to ensure that it is implemented.

It should be noted that the duty placed on the SCTS by the 2020 Act was to establish and maintain a record of the reasons stated by the court relating to disqualification orders – not to make those reasons public. From communication with the SCTS, we understand that their internal IT systems were updated to record the reasons stated by the court for deciding to make, or not make, a disqualification order, along with the reasons for varying or terminating a disqualification order. The reasons behind decisions made are retrievable from the criminal case management system, meaning that SCTS has fulfilled its duty; however as this information relates to living persons, the provisions of the Data Protection Act 2018 are likely to apply.

Disposals data

As well as charges related to unnecessary suffering and animal fighting, data on charges under other offences for which a disqualification under the 2006 Act can be handed was also provided. Those additional offences were;:

Animal Health and Welfare (Scotland) Act 2006

20(1)(b) Causes a prohibited procedure (mutilation) to be carried out on a protected animal.

24 Not taking steps to ensure that the needs of an animal for which responsible are met to the extent required by good practice.

29(1)(a)(b) Abandons an animal for which responsible in circumstances likely to cause unnecessary suffering.

29(2)(a) & (b) Leaves animal for which responsible unattended and fails to make adequate provision for its welfare.

Table 6 shows that no animal welfare charges prosecuted before the 2020 Act came into effect resulted in a disqualification under the 2006 Act, although some resulted in disqualifications under either the Dangerous Dogs Act 1991 or the Control of Dogs (Scotland) Act 2010.

After the 2020 Act came into effect, a large number of disqualifications were issued under the 2006 Act. These were most numerous for charges for Section 19(2) offences (unnecessary suffering caused by the person responsible for an animal), followed by charges for offences under Section 19(1) (unnecessary suffering caused by another person) and Section 24 (not taking steps to ensure the welfare of animals).

Table 6: Number of disqualifications issued for offences under the Animal Health and Welfare (Scotland) Act 2006

		Number DDA				Number CDA				Number AHWSA
Legislation	Offence	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24	18/19	19/20	22/23	23/24
Animal Health and Welfare (Scotland) Act 2006	19(1)	0	0	1	1	2	2	2	2	0	0	12	12
	19(2)	1	3	2	2	5	5	4	0	0	0	58	45
	20(1)(b)	0	0	0	0	0	0	0	0	0	0	1	0
	23(1)(a)	0	2	0	0	0	0	0	0	0	0	2	0
	23(2)	0	1	0	0	0	0	0	0	0	0	1	1
	23(4)	0	1	0	0	0	0	0	0	0	0	0	0
	24	0	0	0	0	2	4	1	0	0	0	14	12
	29(1)(a)(b)	0	0	0	0	0	0	0	0	0	0	0	1
	29(2)(a) & (b)	0	0	0	0	0	0	0	1	0	0	2	0
	Total	1	7	3	3	9	11	7	3	0	0	90	71

2.2.6 Powers in relation into animals taken into possession

Change made by the 2020 Act

The Animal Health and Welfare (Scotland) Act 2006 had previously introduced powers for enforcement authorities to take possession of animals if they are “likely to suffer”. This allowed for immediate improvements to the safety and welfare of animals that may have been found in low welfare conditions.

However, it is also important that such animals find appropriate homes as soon as possible. In practice, when animals were taken into the possession of enforcement authorities they often remained their responsibility for an extended period of time due to complicated circumstances. Primarily these were because an animal could not be rehomed whilst a Court case was pending completion as a Court Order was required. While the accommodation provided by enforcement authorities was an improvement over the environment animals were removed from, in the case of pets especially, long term stays in animal shelters are not ideal.

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 therefore introduced a new power into the 2006 Act to enable enforcement authorities to make appropriate permanent arrangements for animals taken into possession more quickly and without the need for a court order. The power can only be exercised following the service of a notice on a person established to be the owner of the animal, who has 3 weeks to appeal the decisions taken in relation to the animals by summary application to the sheriff. The owner of the animals is in some circumstances entitled to compensation following implementation of the decision taken in relation to the animal, if the animal in question had monetary value.

Survey Responses

Almost half (44%) of those responding to questions on this topic considered the new power to make permanent arrangements for animals seized to protect their welfare to have been used; a fifth (20%) did not. Four in ten (40%) respondents considered the new power to have been implemented effectively; around a fifth (18%) did not. Over half (58%) of respondents to this section considered the new power to have been beneficial to animal welfare; around a tenth (12%) did not.

Almost a third (28%) of respondents to this section did not think any further changes are required in primary legislation for this area; the same number (28%) thought that further changes are required. For all these questions, animal welfare and non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’, while responses from Enforcement and Legal organisations were mixed.

Many respondents had further comments to make, which are summarised below.

• Costs of seizing animals - Some respondents, largely enforcement bodies including local authorities, highlighted the significant costs involved in seizing and transporting animals to an appropriate and safe place, and caring for them, with additional costs if animals are pregnant and cannot be transported. Some animals require destruction, which also incurs costs. It was noted that there is no clear avenue to re-claim costs from the person(s) responsible, and that no financial support is available for local authorities from the Scottish Government to support this function. One response suggested that enforcement authority management ‘refuse to allow their authorised officer to seize animals for financial cost reasons’, and that it should be ‘an offence for enforcement agencies to fail to take action to protect such animals’. It was suggested that provision should be made for establishing a central fund to assist local authorities with the substantial costs involved in seizing livestock, and to help finance these operations, with suitably experienced people identified to look after animals living in poor welfare conditions.
• Limited accommodation - Several respondents highlighted issues around the perceived lack of and need for sufficient facilities available for use by enforcement agencies (including local authorities and the police), with an obligation to ensure animals’ welfare.
• Benefits of the new powers - Animal Welfare organisations were supportive of the introduction of the new powers, and stated that it has had a positive impact on animal welfare. For example, three organisations highlighted that it has prevented animals being kept in rescue centres or kennels for a prolonged period of time until cases reach court, with one stating that: ‘Prior to the introduction of the legislation, seized dogs could spend lengthy periods of time in kennels whilst a court case concluded […] We believe the ability to rehome dogs sooner will have reduced their time in kennels and had a positive impact on their welfare.’ An organisation also noted that since the introduction of the new powers, over 100 decision notices had been served in relation to 842 animals, with dogs being the most common animal involved alongside other animals such as cats, snakes and horses.
• Issues around appeals - Legal and enforcement organisations highlighted the impact of the court appeals process, which can cause delays, have an impact on animal welfare and add costs for charities and enforcement agencies. It was noted that while the new powers have improved the situation, there is still a high risk of appeal against disposal. If the accused appeals the decision notice’, the organisation in possession of the animals is in the same position as before, with animals having to be held until the court case has been heard, in some instances resulting in a 1-2 year wait. It was suggested that a significant factor potentially inhibiting enforcement agencies from taking possession of animals therefore remains. It was also reported that there have been cases where the sheriff extended the window for appeal, imposing considerably greater costs on the enforcement body and potentially compromising the long-term welfare of the animals concerned. An example was given where the duration of the appeals process was apparently extended due to the accused making multiple appeals for legal aid and the defence requesting for the criminal case to be heard first before the appeals process is completed. Some respondents requested a maximum time window for appeal, ideally shortened from 3 weeks, and an additional limited time window for appeals to be heard in order to limit delays and financial risk due to appeals.

Data

We were unable to obtain data on how often the new provisions not requiring a Court Order were used compared with the original provisions, which did require a Court Order. We were also unable to obtain information on how often appeals were made against proposed actions under the new provisions.

2.2.7 Fixed Penalty Notices

Change made by the 2020 Act

The 2020 Act made amendments to the Animal Health and Welfare (Scotland) Act 2006 and the Animal Health Act 1981 to provide powers to introduce fixed penalties relating to animal welfare and animal health offences by regulation. The Act also provided powers to make provision by regulations for the issuing of fixed penalty notices in relation to certain offences relating to wildlife. In all three cases, the Act also set out requirements around the introduction of fixed penalty notices, a key requirement being that they must only be used for offences where the maximum penalty on conviction does not exceed imprisonment for a term of 6 months or a fine of level 5 on the standard scale (or both). This means that they cannot be used for serious offences, which would attract higher maximum penalties.

No regulations introducing fixed penalties have yet been made; however discussions with enforcement organisations and other stakeholders are on-going as to how and where it would be best to use these new powers..

2.2.8 Changes to seal management

Changes made by the 2020 Act

Section 107 of the Marine (Scotland) Act 2010 states that it is an offence to kill, injure or take a live seal (intentionally or recklessly). Licensed activity exemptions do apply and are listed in Section 110. The 2020 Act amended the Marine (Scotland) Act 2010 by removing two exemptions from this list for which Scottish Ministers could grant a license to kill or take seals: protecting the health and welfare of farmed fish, and for preventing serious damage to fisheries and fish farms.

Survey Responses

Three in ten (30%) respondents thought that the removal of these exemptions has had a negative impact. A fifth (20%) consider that it has had a ‘Positive impact’, and 10% think it has had no impact. Animal Welfare organisations were more likely to say it has had a ‘Positive impact’, whilst responses from other sectors were mixed.

Positive impacts noted included:

• Improved health and welfare of seals.
• Reduction in seals being shot.
• Industry investigation and investment into non-lethal measures.

Negative impacts noted included:

• Worsened health and welfare of farmed fish.
• Increased depredation of farmed salmon by seals, which causes increased mortality and other impacts including stress and disease susceptibility.
• Increased risk of containment loss on aquaculture facilities.
• Continued harm and stress to farmed fish caused by seals, despite farmers' use of best practice to deter seal entry.
• Removal of this exemption may leave fish farmers with no options to deal with serious seal predation.

It was suggested by one aquaculture organisation that the overall impact of this change is difficult to assess, as there have been both positive and negative impacts, and that whilst very few live seals were taken before these exemptions were removed, some farms may have had predation challenges leading to impacts on their fish as a result of the change. It was noted by a sector representative that their sector has responded by deploying new, strengthened nets across the sector, which have eased the challenges.

It was suggested that there is conflict (in objectives) between different legislation relating to the welfare of seals, with the Wild Mammals Protection Act 1996, Animal Health & Welfare Act 2006 and the Marine Scotland Act 2010 all setting out legal provisions in respect to the welfare of a seal and management of human interactions.

Table 7 shows that before the 2020 Act came into force a significant number of seals were being killed under licence each year, and that no seals were killed after the exemptions were removed, suggesting that previous licenced killings were undertaken for the purpose of protecting the health and welfare of farmed fish, and for preventing serious damage to fisheries (including wild Atlantic salmon fisheries) and fish farms.

Table 7: Number of seals granted and killed under licence by species, and annual PBR for each species, from 2015 to 2024. Shaded rows represent years since changes made by the 2020 Act came into effect.

Grey seals				Harbour seals
Licence year	Granted	Killed	PBR	Granted	Killed	PBR
2015	662	118	2830	197	42	627
2016	284	82	3136	113	17	733
2017	253	53	3584	115	19	805
2018	228	64	5979	105	25	804
2019	235	75	6370	111	22	1143
2020	226	62	6079	103	42	1147
2021	0	0	5880	0	0	1147
2022	1*	0	5682	0	0	1147
2023	1	0	5505	0	0	1144
2024	4**	0	5505	0	0	1144

* The single licence granted in 2022 was for 3 years so there is potentially 1 grey seal per year on that licence, hence the increase to 4 in 2024.

**Three licences are not active until 2025

2.2.9 Changes to protection of certain wild animals

Change made by the 2020 Act

The 2020 Act amended the Wildlife and Countryside Act 1981 to add the mountain hare (Lepus timidus) into Schedule 5 (protected animals). This means the species can no longer be taken for sporting or recreational purposes. Birds of prey can still be used to take mountain hares for other purposes where carried out under a licence granted by NatureScot, as specified in section 16(3) of the Wildlife and Countryside Act 1981.

Survey Responses

The majority (62%) of respondents to this section of the survey stated that no concerns have been raised with them or their organisation regarding mountain hares becoming a protected species; just under a tenth (8%) said they had. Around half (46%) of respondents thought that the provisions in the 2020 Act have been, and continue to be sufficient in this area. Around a tenth (8%) do not think the provisions in the 2020 Act are sufficient.

Very few comments were provided. One respondent noted that they were unaware of any cases being reported to the Crown Office and Procurator Fiscal Service (COPFS) relating to these provisions. Another considered that ‘the language used’ provides adequate protection for falconers, and that the protection for hares should not be diluted due to the concerns of falconers. A respondent from a Legal organisation considered it a net benefit for animal welfare that falconers can no longer legally hunt mountain hares. They noted that Schedule 5 of the Wildlife and Countryside Act 1981 lists animals that, according to section 9 of that Act, may not be “intentionally or recklessly” killed and considered it unlikely that any action involving the genuinely accidental taking of a mountain hare would result in a prosecution.

2.2.10 Acoustic deterrent devices (ADDs)

Change made by the 2020 Act

Acoustic deterrent devices (ADDs) are a non-lethal measure for deterring seals, including from depredation at fish farms. However, they can also affect species other than seals, including cetaceans (whales, dolphins and porpoises), which are European Protected Species (EPS). Under the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) it is an offence to intentionally or recklessly disturb any cetacean unless a licence is granted by the appropriate authority.

The 2020 Act required Scottish Ministers to lay a report before the Scottish Parliament on the use of acoustic deterrent devices on land constituting a fish farm by 1 March 2021. The report was to include: information on the use made of acoustic deterrent devices on Scottish fish farms; any known impacts that the use of acoustic deterrent devices has on marine mammals; consideration of whether the use of acoustic deterrent devices on Scottish fish farms is sufficiently monitored; consideration of whether existing provision on the protection of animals and wildlife in relation to the use of acoustic deterrent devices on Scottish fish farms is sufficient; and any future plans for regulation of the use of acoustic deterrent devices. The Parliamentary Report on Acoustic Deterrent Device Use was published in March 2021.

Furthermore, The Aquaculture Code of Practice was published in September 2021, and approved in legislation under The Fish Farming Code of Practice (Scotland) Order 2021 in November 2021. The Code of Practice sets out the standards expected from Aquaculture Production Businesses in order to provide for the containment of fish on fish farms and to prevent their escape in relation to marine mammal interactions. Mandatory standards in Section 3.2 of the Code require that where a fish farm plans to deploy an ADD they must consult Marine Directorate and obtain the relevant consents, or demonstrate to Marine Directorate that their planned use will not harm European protected species, which includes cetaceans.

Survey Responses

Over half (65%) of respondents said that their organisation was aware of the Parliamentary Report. A quarter (25%) said ‘No’. Over half (65%) of respondents thought that their organisation understands the report’s conclusions; a tenth (10%) did not. Over a third (35%) of respondents considered that the Parliamentary Report has had no impact. A fifth (20%) think it has had a positive impact. Animal Welfare organisations were more likely to say it has had a ‘Positive impact’, whilst organisations in the Aquaculture sector were more likely to say it has had ‘No impact’.

In comments, respondents noted that the report raised awareness, and highlighted areas where action is required. Other comments included that the report contains an extensive, well considered and balanced background to the subject and highlights areas for further research to improve the evidence base, and that it contains meaningful commitments that will lead to better regulation and enforcement, and hopefully better developed rules and legislation in the future.

Other comments, including those from organisations in the aquaculture sector, highlighted the limited impact of the report, largely due to the fact that the use of Acoustic Deterrent Devices in the aquaculture sector had ceased in March 2021 shortly after the report’s publication. Despite this, several respondents noted the usefulness of the report in providing a record of Acoustic Deterrent Device use at the time.

In their response, one legal organisation noted that subsequent reports and policy developments may be more relevant than the 2021 report in terms of animal welfare, including a 2022 report on the use and efficacy of Acoustic Deterrent Devices (Scottish Government) and a 2023 report on the use of acoustic deterrent devices in salmon farming (Scottish Animal Welfare Commission). They noted that both reports highlight the need for further research into ‘effective non-lethal methods of seal deterrence that minimise the risk to seals and other marine wildlife’, and that the second report ‘recommended minimising ADD use and reserving use for critical periods or as part of a suite of controls that can be used at different times’. They also noted a 2022 report by Environmental Standards Scotland on Marine Scotland’s Enforcement of Acoustic Deterrent Devices, which responded to a reference relating to the Scottish Government’s duties to ensure that the aquaculture industry complies with the Conservation (Natural Habitats, &c.) Regulations 1994 (as amended) for European Protected Species, such as dolphins, porpoises and whales.

It was noted that concerns had been raised that fish farm operators had been using Acoustic Deterrent Devices without the necessary licence but that further compliance and inspection measures were instituted. It was also noted that it now appears that Acoustic Deterrent Devices are no longer being used on salmon farms in Scotland, and it was suggested that a measure providing for the application of international consensus principles of wildlife control in the management of seals replace the current section 15 of the 2020 Act, which arguably has served its purpose as the Scottish Ministers have met the requirement. Concerns were also raised around the difficulty of measuring the impacts of the report.

Some responses, including those from animal welfare organisations, noted the positive impacts of a reduction in use of Acoustic Deterrent Devices also reducing the known disturbance some devices can cause to aquatic wild animals, particularly cetaceans. However, a respondent from the aquaculture sector argued that the cessation of the use of the devices, alongside the removal of lethal last resort, has led to significantly increased depredation of farmed salmon by seals at some farms. They considered that Acoustic Deterrent Devices have been shown to be effective in deterring seals from approaching net pens and depredating farmed fish, and that further research is required to evaluate their effectiveness, the impacts of withdrawing this tool on fish welfare, and the economic consequences for the Aquaculture sector in Scotland.

A respondent from the Aquaculture sector involved in enforcement suggested that the regulatory changes (the Code of Practice) made to the use of acoustic deterrent devices on fish farms will also have resulted in a positive outcome for the health and welfare of non-target species, which should be supported. However, they also noted that anecdotal evidence from fish farmers and the data reported to the Fish Health Inspectorate on fish escapes suggests that there has been an increase in the number of seal attacks on fish farms, raising concerns about escaped farmed fish and unintended consequences for wild fisheries and other protected species (such as wild Atlantic salmon). They suggested that ensuring mitigation of these impacts or providing alternative methods was required.

2.3 Discussion

2.3.1 Proceedings and penalties

The results show no clear impact of the 2020 Act on either the proportion of related charges being tried by solemn proceedings, or on the penalties handed out. As noted in the relevant result section, it is for the Crown Office of the Procurator Fiscal bringing a case to determine if it merits solemn proceedings, where there is a choice available, and their decision will depend on the particulars of each given case. This will include additional offences from other legislation not dealt with here being considered within a case, which allowed solemn proceedings to be used for some animal welfare and wildlife charges before the 2020 Act came into effect. The added availability of solemn proceedings for serious wildlife and animal welfare charges means that these crimes can now be tried via solemn proceedings without having to rely on legislation un-related to animal welfare or wildlife to do so. However, it does not necessarily follow that there should be significantly more solemn proceedings as a result of this as the types of cases that might merit solemn proceedings, for example involving organised crime or extreme cruelty, are relatively rare.

Similarly, it is for the Court to determine sentencing and penalties handed out on a case by case basis, according to the particulars of each case and any mitigating factors involved. While data at charge level was considered to be the most useful in terms of looking for potential changes in disposals relating to specific offences, it is not straightforward to interpret. Courts try and hand out disposals at case level. Within each case there may be multiple people involved, and each person may be subject to multiple charges. Fines and penalties are decided by the Courts on the full facts of a case, including all charges, the roles each person played, the evidence provided and any mitigating circumstances. This means that higher fines and longer sentences than those previously present in animal welfare and wildlife legislation prior to the 2020 Act were often available to the Courts from other legislation. Again, the added availability of higher penalties for serious wildlife and animal welfare charges provided by the 2020 Act does not necessarily mean that there should be significantly more large fines and long prison sentences handed out as the types of cases that might merit them are relatively rare.

There was a general trend of increased sizes of minimum fines handed out year on year for causing unnecessary suffering (Section 19(1) of the Animal Health and Welfare (Scotland) Act 2006), which might suggest that less extreme cases are being treated more seriously over time.

There were also a number of points raised about the idea of higher fines potentially acting as a deterrent not being borne out. The main reason for this is suggested to be resource constraints on enforcement agencies meaning that perpetrators consider that they are unlikely to get caught. In addition, animal welfare investigations are generally led by Local Authorities, who face pressure on resources and who have a wide range of human health, welfare and safety responsibilities to which they tend to direct resources to first.

To date there have not been any regulations made introducing Fixed Penalty Notices for animal health, animal welfare or wildlife offences. Although welcomed in principle as an additional tool by enforcement agencies, their ultimate effectiveness will depend very much on how they are implemented. The Scottish Government is currently in discussion with stakeholders and enforcement agencies regarding the best way to take Fixed Penalty Notices forwards, and will develop and lay the appropriate regulations in due course.

2.3.2 Additional wildlife measures

The increased time made available to investigate wildlife offences by the 2020 Act was considered to be beneficial by the majority of survey respondents; however, over half of the respondents would like to see the time available increased further due to the complexity of the crimes involved.

Adding mountain hares to the list of protected animals under the Wildlife and Countryside Act 1981 appears to have been uncontroversial, with the majority of respondents considering the move beneficial

2.3.3 Additional marine measures

The 2020 Act implemented the removal of lethal control as a way to prevent predation of seals at fish farms. This was seen by survey respondents as positive for seal welfare, but negative for farmed fish welfare, and the number of seals killed under licence by fish farms dropped to zero with the removal of these exemptions.

There is an on-going need for alternative, non-lethal, approaches to seal management to protect farmed fish from predation. In 2023 the majority of businesses reported using toughened or reinforced pen netting, tensioned pen nets, and dead fish removal systems to address marine mammal interactions. Any fish farm wishing to use ADDs is required to consult Marine Directorate and obtain relevant consents, or demonstrate to Marine Directorate that the planned use will not harm marine mammals. Guidance published by Marine Directorate sets out the requirement for a EPS licence, and the circumstances in which they may be granted.

2.3.4 Additional Animal Welfare measures

It is notable that only around a third of survey respondents considered that the requirement for Courts to consider disqualification orders for offences under the Animal Health and Welfare (Scotland) Act 2006 introduced by the 2020 Act had been used, and even less thought that it had been implemented effectively. Yet only 16% of respondents thought that further legislation was required, and the disposals data demonstrated a clear and significant impact, with no disqualification orders being issued before the 2020 Act came into force (within the data set investigated), and significant numbers being issued after the 2020 Act was in force. Concerns were raised regarding the transparency of the decision making, with suggestions that the reasoning being in the Court notes was not sufficient. There were also calls for a central database of persons subject to disqualification orders. It is possible that these perceived lacks contributed to the dissatisfaction of respondents.

The new powers for re-homing animals seized to protect their welfare under the 2006 Act were better received, with over half of respondents considering that they had been beneficial. The benefits were seen as the reduction in time to permanent re-homing, and the impact of this on both increasing animal welfare and reducing costs to the enforcement agencies that had taken possession of the animals. However, around a third of respondents thought that further changes to the legislation were required. The lack of a clear route for enforcement agencies to recoup the costs of taking animals into possession, including transport, medical care and on-going husbandry, was seen as a major barrier to taking animals into possession, as was the limited suitable accommodation available in which to hold them. Whilst the 2020 Act was seen as having improved the situation, the high risk of appeals and the entanglement of these with Court cases were still seen as placing enforcement agencies at continued risk of significant financial losses should they choose to take animals into possession to protect their welfare.

There was little feedback on the change to make it easier to successfully prosecute those charged with causing unnecessary suffering to certain service animals. Less than half of respondents thought the change had been effective, yet only a tenth thought that further legislation was required. This may be explained by the fact that it is not clear that Scottish Courts have yet had cause to use this provision.