The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 Review: Survey report

2. Survey results

This section outlines the results to each section of the survey.

1. Introduction

There were 55 valid responses to the survey. We received responses from 46 organisations, including 26 local authorities (see Annex 1). The most common sectors covered by the organisations which responded were ‘Enforcement’ (69%), ‘Legal’ (21%) and ‘Non-Governmental Organisation’ (12%).

• This section asked respondents the name of their organisation, and their job title. A list of the organisations from which at least one response was received can be found in Annex 2.
• This section also asked respondents what sector their organisation covered. The majority (69%) of respondents selected ‘Enforcement’; 21% selected ‘Legal’; 16% selected ‘Non-Governmental Organisation’; 12% selected Aquaculture and 9% selected ‘Other’ (see Figure 1).
• This section stated that this survey is for people working for organisations who are involved with Marine Wildlife, Aquaculture and Fisheries, Terrestrial Wildlife, Animal Health and Welfare, and asked respondents if they work for an organisation involved in one or more of these areas. 95% said ‘Yes’ and 5% said ‘No’.

Number of responses = 58

2. Marine Wildlife: Seals

This section included questions relating to amendments to Marine Wildlife policy resulting from the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020. It received 20 responses in total.

2.1. Acoustic Deterrent Device use in the Aquaculture sector

In March 2021 the Scottish Government published the Parliamentary Report Acoustic Deterrent Device (ADD) Use in the Aquaculture Sector. This report considered:

- Information on the use made of acoustic deterrent devices on Scottish finfish 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 finfish farms is sufficiently monitored;

- Consideration of whether existing provision on protection of animals and wildlife in relation to the use of acoustic deterrent devices on Scottish finfish farms is sufficient, and;

- Any future plans for regulation of the use of acoustic deterrent devices.

Summary of results

Over half (65%) of respondents to this section think their organisation is aware of the report, and the same number (65%) think their organisation understands the report’s conclusions. In terms of its impact, 35% of respondents think the Parliamentary Report has had ‘No impact’. A fifth (20%) think it has had a ‘Positive impact’.

In terms of written comments provided in this section, some gave positive feedback on the 2021 report, whilst others highlighted its limited impact as the use of Acoustic Deterrent Devices in the Aquaculture sector ceased shortly after its publication. Others focused on the difficulty of measuring the impacts of these changes, either positive or negative.

• Question 5 asked: ‘Is your organisation involved with Marine Wildlife, Aquaculture and/or Fisheries?’. Over half (64%; 25 respondents) said ‘No’ and over a third (36%; 20 respondents) said ‘Yes’.
• Responses to this section were largely from Enforcement or Legal organisations, with several responses from Animal Welfare organisations.
• Over half (65%) of respondents to this section think their organisation is aware of the Parliamentary Report. A quarter (25%) said ‘No’ and 10% selected ‘Not applicable’.

Total number of cases (N) =20

• Over half (65%) of respondents to this section think that their organisation understands the report’s conclusions. A tenth (10%) said ‘No’ and a quarter (25%) selected ‘Not applicable’.

Total number of cases = 20

• Over a third (35%) of respondents to this section think 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’.

Total number of cases (N) =20

Respondents were asked if they had any comments to provide, and a total of 12 did so. Whilst some responses gave positive feedback on the 2021 report, others highlighted its limited impact, as the use of Acoustic Deterrent Devices in the Aquaculture sector ceased shortly after its publication. Others focused on the difficulty of measuring the impacts of these changes, either positive or negative.

Feedback on the report

Responses to this section, including those from Animal Welfare organisations, gave positive feedback on the Acoustic Deterrent Device (ADD) Use in the Aquaculture Sector 2021 report, stating that it:

• ‘raised awareness’, and ‘highlighted the areas where action is required’;
• ‘contains an extensive, well considered and balanced background to the subject and highlights areas for further research to improve the evidence base that are relevant and necessary’;
• contains ‘meaningful’ commitments that ‘will lead to better regulation and enforcement, and hopefully better developed rules and legislation in the future’.

Other responses, 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 ceased in March 2021 shortly after its publication. The points these responses raised included:

• The report was ‘beneficial’, however it was understandably ‘out-of-date’ shortly afterwards, ‘given the speed of change and science in this area’;
• Due to wider changes in the sector as noted above, ‘the report did not result in any significant positive impact’.

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).

As this response noted, 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 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’.

In addition, this response also noted a 2022 report by Environmental Standards Scotland on Marine Scotland’s Enforcement of Acoustic Deterrent Devices, which ‘responded to a reference concerning Marine Scotland’s duties to ensure that the aquaculture industry complies with Conservation (Natural Habitats, &c.) Regulations 1994 measures for European Protected Species, such as dolphins and whales’:

There were concerns that fish farm operators had been using [Acoustic Deterrent Devices] without the necessary licence. Further compliance and inspection measures were instituted and fish farm operators are now required either to apply for an EPS [European protected species] licence or prove a licence is not required, if they intend to use an [Acoustic Deterrent Device]. It now appears that [Acoustic Deterrent Devices] are no longer being used on salmon farms in Scotland.

Their organisation, they added, supports the view of the Scottish Animal Welfare Commission ‘that the international consensus principles of wildlife control should be applied in the management of seals and a measure providing for this could perhaps replace the current section 15 of the 2020 Act, which arguably has served its purpose as the Scottish Ministers have met the requirement.’

Measuring impacts

Others focused on the difficulty of measuring the impacts of the changes it outlined:

• It is ‘difficult to see any direct, practical impact on the negative effects of removing fish farmers' ability to deter seals through the use of ADDs’;
• ‘Unless new criminal offences were created we would not necessarily be aware of this’.

Some responses, including those from Animal Welfare organisations, noted the positive impacts of a reduction in the use of Acoustic Deterrent Devices:

From our understanding the use of [these devices] has substantially decreased, which is a positive impact due to the known harms these devices cause to aquatic wild animals, particularly cetaceans.

In another response however, an organisation 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 farms where there was existing higher pressure from seal predation’:

Acoustic deterrent devices (ADDs) have been shown to be effective in deterring seals from approaching net pens and depredating farmed fish, however their effectiveness depends on several factors specific to an individual farm location and the predation pressure from seals.

Further research is required to fully evaluate the effectiveness of acoustic deterrent devices on depredation of farmed salmon by seals, and on the impacts of withdrawing this tool on fish welfare and the economic consequences for the Aquaculture sector in Scotland.

One response from an organisation in the Aquaculture sector involved in enforcement focused on the need to assess changes to regulation in a holistic way:

Regarding impact, it is assumed that the regulatory changes made to the use of acoustic deterrent devices on fish farms has resulted in a positive outcome for the health and welfare of non-target species and this should be supported.

Equally, anecdotal evidence from fish farmers and the data reported to the Fish Health Inspectorate on fish escapes would tell us that there has been an increase in the number of seal attacks on fish farms. From a wild fisheries perspective this gives us concern as the likelihood of escape due to seal attacks could be increased. Whilst we understand the concerns about impacts on cetaceans, we believe any changes to regulation should be assessed holistically accounting for any unintended consequences on other protected species (such as wild Atlantic salmon) and ensuring mitigation or alternative methods are fully considered.

A further three respondents stated that they were unable to comment as they had not read the report, and one stated that their organisation was not in a position to state whether the report has had an impact.

2.2. Removal of grounds to take or kill seals

Section 107 of the Marine (Scotland) Act 2010 states it is an offence to kill, injure or take a live seal (intentionally or recklessly). Licensed activity exemptions do apply and changes to these came into force on 1 February 2021 removing two exemptions for which Scottish Ministers previously could grant a license to kill or take seals. The two exemptions removed were: (a) protecting the health and welfare of farmed fish and (b) for preventing serious damage to fisheries and fish farms.

Summary of results

30% of respondents to this section think the removal of two exemptions for which Scottish Ministers previously could grant a license to kill or take seals has had a negative impact. A fifth (20%) think it has had a positive impact.

Written responses in this section highlighted both the positive impacts of the removal of these exemptions, including seal welfare, and a push toward alternative, non-lethal measures, and negative impacts, such as the health and welfare of farmed fish and increased predation challenges.

• Three in ten (30%) respondents to this section think the removal of these exemptions has had a ‘Negative impact’. A fifth (20%) think 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.

Total number of cases (N) =20

Respondents were asked if they had any comments to provide. A total of 15 did so.

Positive impacts

One group of responses, including those from Animal Welfare organisations, highlighted the positive impacts of the removal of these two exemptions, including:

• Positive impact on the health and welfare of seals;
• As far as they are aware, it ‘has had a positive impact’, and ‘led to a reduction in seals being shot’ due to purposes which were ‘not justifiable’ in their view, however they lack further information to comment in more detail;
• It has led the industry to ‘investigate, research and invest in non-lethal measures’; in their view, ‘these measures should always be used preferentially’.
• Not aware of any reported incidents or complaints since the legislation was implemented, so view that this change has had a positive impact;
• Note that whilst ‘published returns of seals killed under section 110(1) of the Marine (Scotland) Act 2010 indicated a steady reduction in licensed killing up to 2019, it was always a risk that this trend could change’, a concern ‘confirmed by the increase in seal shooting at fish farms immediately prior to the removal of the two exemptions.’

Negative impacts

Another group of responses, including those from organisations within the Aquaculture sector, highlighted negative impacts of the removal of these exemptions, including:

• Negative impact on health and welfare of farmed fish – one response noted this based on anecdotal evidence and mortality data from the industry;
• 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.

One response from this group was as follows:

The removal of these exemptions has led to increased depredation of farmed salmon by seals with both direct negative impact by causing increased mortality and indirect negative impacts for farmed fish welfare by increasing stress with associated disease susceptibility and increased the risk for the escape of farmed fish by persistent seals breaching containment infrastructure.

There is conflict within animal welfare legislation with lack of parity from that of land-based farmed animals and conservation and ecosystem management. The Wild Mammals Protection Act 1996; Animal Health & Welfare Act 2006 and the Marine Scotland Act 2010 all set out legal provisions in respect to the welfare of a seal. Legal interpretation of these legislative articles has indicated that due to the nature of the specific references to seals contained within part 6 of the Marine Scotland Act 2010 that this is the predominant legislation when it comes to the management of human interactions with seals. The 2010 Act conflicts with the welfare wordings contained within both the 2005 and 1996 animal welfare legislation.

Further comments

One response from a Legal organisation stated that whilst ‘there is no longer licensed killing of seals in Scotland, the alleviation of suffering remains a permitted exemption under section 108 of the 2010 Act’:

In October 2022 a grey seal was killed inside a salmon pen in Orkney, supposedly on the grounds that it was suffering poor welfare having been trapped in a cage full of salmon. A post mortem examination commissioned by the Scottish Marine Strandings Scheme indicated that the animal was in good condition and had not been suffering. We would recommend a review of the [Section 108] exemption to ensure that it is tightly enforced and not relied on as an excuse for killing a seal in the absence of the previous licensed exemptions.

One further response from an Aquaculture organisation stated 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 previously taken before this change:

there has likely been a negative impact whereby some farms may have had predation challenges leading to impacts on their fish. The sector has responded by deploying new, strengthened nets across the sector, which have eased the challenges.

Three responses focused on the reporting of cases, with one stating that they are unaware of any offences being reported to their organisation, and another stating that ‘Based on data received by the Scottish Marine Animal Stranding Scheme (SMASS), reporting of cases remains very low and there remains evidence for illegal seal shooting.’

Three responses stated that they were unable to comment on the impact of these changes.

3. Terrestrial Wildlife

This section included questions relating to amendments to Terrestrial Wildlife Policy resulting from the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020. It received 13 responses in total.

3.1 Terrestrial Wildlife: Increased penalties

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 increased the maximum penalties for the most serious animal welfare offences under the Animal Health and Welfare (Scotland) Act 2006. Maximum penalties were originally 12 months in prison and/or a £20,000 fine via summary proceedings, where the Sherrif sits alone, without a jury. The 2020 Act introduced the option to hear serious cases via solemn proceedings, where a jury reaches a verdict and, if a conviction arises, the Sheriff determines the sentence. New maximum sentences for cases heard under solemn proceedings is up to five years in prison and/or an unlimited fine. These increased penalties apply to Wildlife offences under the following Acts: - 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 ability to choose between summary and solemn proceedings also removes the previous statutory time limits for bringing a prosecution (as per the Criminal Procedure (Scotland) Act 1995).

As noted above, 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 impacted the views of respondents on how effectively they considered the changes made by the 2020 Act to have been implemented.

Summary of results

38% of respondents to this section did not consider the ability to choose between summary and solmn proceedings for wildlife offences to have been used effectively; 31% considered that it had been used effectively.

Similarly, 38% of respondents did not consider the higher maximum penalties, up to five years and/or unlimited fines, for the most serious offences to have been utilised and used effectively. The same number (38%) did not think the higher maximum penalties have deterred animal welfare offences; 31% think they have. Over half (54%) of respondents think the provisions in the 2020 Act have been, and continue to be sufficient in this area.

Written responses to this section were largely focused on whether the introduction of the option to hear serious cases via solemn proceedings has been impactful, with several responses stating that it has so far had limited impact for a number of reasons.

Other written responses raised further points, from the need to consider whether the new powers are being effectively used in the minority of cases that do merit solemn proceedings, and the usefulness of having this option, to a perceived shortage of resources to investigate and prosecute these offences.

• Around a quarter (24%; 13 respondents) of survey respondents said their organisation is involved with Terrestrial Wildlife. The majority (76%; 42) said it was not. This section of the survey received 13 responses in total.^[3]
• Responses to this section were largely from Enforcement or Legal organisations, with several responses from Animal Welfare organisations.
• Over a third (38%) of respondents to this section 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 been used effectively (see Figure 6).

Total number of cases (N) =13

• Over a third (38%) of respondents to this section did not consider the higher maximum penalties, up to five years and/or unlimited fines, for the most serious offences to have been utilised and used effectively; less than a quarter (23%) did consider them to have been utilised and used effectively (see Figure 7).

Total number of cases (N) =13

• Over a third (38%) of respondents to this section did not think the higher maximum penalties have deterred animal welfare offences; 31% think they have deterred animal welfare offences (see Figure 8).

Total number of cases (N) =13

• Over half (54%) of respondents to this section think 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.

Total number of cases (N) =13

Respondents were asked if they had any comments to provide. A total of 6 did so. These responses were largely focused on whether the introduction in the 2020 Act of the option to hear serious cases via solemn proceedings has been impactful.

Limited impact

Whilst one respondent stated that their organisaition believes that higher maximum penalties will have had some deterrent effect on offending behaviour, a number of respondents felt that changes in this area - including the introduction of the option to hear serious cases via solemn proceedings, and higher maximum penalties - have so far had limited impact. This group raised points such as:

• The legislation is not being utilised fully by the Crown Office and Procurator Fiscal Service when cases are being prepared for court, as they are being submitted under Summary not solemn proceedings, and the courts are not utilising the maximum sentencing options available to them;
• Criticism from stakeholders that the maximum sentences are not being imposed by the courts, which may reduce the positive impact of the legislation;
• Its effectiveness is limited due to lack of sentencing guidelines and incompatibility with other legal considerations.

As one Animal Welfare organisation stated in its response:

[The] provisions are there but sadly, the legislation is not being utilised fully by the COPFS at the time the case is being prepared for court as proceedings are being submitted under summary not solemn proceedings. Even under Summary proceedings, the courts are not utilising the maximum sentencing options available to them. If the legislation was being used as intended this would provide a greater deterrent with regards to animal welfare offences.

A response from an organisation involved in Enforcement stated that they do not hold information themselves about the use of this option, and that:

It stands to reason the increased penalties must have some deterrent effect […] It is more likely that gamekeepers, for example, will be aware of increased penalties than other individuals (those covered by the animal welfare measures), due to their employment status and ongoing training. However, there is regular criticism from stakeholders, such as wildlife advocacy groups, that the maximum sentences are not being imposed by the courts, and this must reduce the positive impact of the legislation. Anecdotally, we understand that the solemn option is not being consistently used even in serious cases such as animal baiting.

On the final point, this response commented that as the Crown Office and Procurator Fiscal Service are ‘reluctant to take wildlife police reports to court unless they believe the evidence [to] be “beyond all reasonable doubt”’, the additional powers and sentencing are ‘irrelevant’.

Wider issues

Other respondents raised further points, from the need to consider whether the new powers are being effectively used in the minority of cases that do merit solemn proceedings, and the usefulness of having this option, to a perceived shortage of resources to investigate and prosecute these offences.

One Legal organisation commented in detail on contextual factors that should be considered when assessing the impact of this change:

[The Crown Office and Procurator Fiscal Service]'s decisions in relation whether to prosecute an accused at solemn or summary level will be based on numerous factors such as the accused's previous convictions, the nature of the offence and will involve some degree of assessment of the sentence most likely to be imposed by the court. In the majority of wildlife cases the accused will have never served a custodial sentence before and so a custodial sentence of over 12 months would be highly unlikely to be imposed by the Court, especially given the legal presumption against imprisoning people in such circumstances (s204(2) Criminal Procedure (Scotland) Act 1995).

In such a scenario, taking an outcome focussed approach, it would most likely be considered to be in the public interest to prosecute the accused at summary level. It is, however, helpful to have the option of solemn proceedings as there will no doubt be cases which merit it. In order to properly assess whether the new powers are being used effectively, it is not as straightforward as looking at the number of cases prosecuted at solemn level or the number of cases where custodial sentences in excess of 12 months were imposed. The question is whether the new powers are being effectively used in the minority of cases that merit solemn proceedings or solemn-level custodial sentences. In that regard I think they are being used effectively. 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 (taking into account all the other factors COPFS need to consider when deciding on forum).

A further response from an Enforcement organisation stated that the ‘main issue’ is a shortage of resources to investigate and prosecute these offences:

The main issue with wildlife crime is the shortage of resources to investigate and prosecute these offences. The perpetrators of these crimes are well aware of this and are not deterred by the sentences as they know they are unlikely to be caught.

Finally, one organisation from the Aquaculture sector which is involved in Enforcement highlighted work ‘underway to help deliver increased penalties for a range of offences relating to wild Atlantic salmon’. This response referenced the Scottish Government’s wild salmon strategy,^[4] and argued that due to the critical state of Scotland’s salmon populations, there is justification for enhancing the penalty regime to bring the species in line with the penalties for wildlife covered within the 2020 Act.

The response ended by stating that this organisation is ‘working with officials to consider whether the Natural Environment Bill is a suitable opportunity through which higher penalties for fish and fisheries offences can be delivered’.

3.2 Terrestrial Wildlife: Changes to protection of certain wild animals (mountain hares)

Mountain hares are now a protected species following the passage of the Animals and Wildlife Penalties, Protections and Powers Scotland Act in June 2020. The protection came into force on 1 March 2021.

This means the species can no longer be taken for sporting or recreational purposes. As a consequence of this, falconers have expressed their concerns they are now unable to hunt mountain hares. They are also concerned their falcon may accidently take mountain hares whilst hunting other legal species such as red grouse or rabbits.

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.

Summary of results

The majority (62%) of respondents to this section stated that no concerns have been raised with them or their organisation regarding mountain hares becoming a protected species. Around half (46%) think the provisions in the 2020 Act have been, and continue to be sufficient. Respondents who provided written comments were supportive of this change, and felt that the language used provides adequate protection for falconers.

• The majority (62%) of respondents to this section 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 (see Figure 10).

Total number of cases (N) =13

• Around half (46%) of respondents to this section think the provisions in the 2020 Act have been, and continue to be sufficient. Around a tenth (8%) do not think the provisions in the 2020 Act are sufficient (see Figure 11)

Total number of cases (N) =13

Respondents were asked if they had any comments to provide, and 3 did so. One said they were unaware of any cases being reported to the Crown Office and Procurator Fiscal Service (COPFS) relating to these provisions, so was unable to offer any further comment.

Of the remaining two, both were supportive of the change by which mountain hares became a protected species, and felt that the language used provides adequate protection for falconers, as this response from an Animal Welfare organisation indicates:

This welcome and necessary protection for mountain hares […] should not be diluted due to the somewhat spurious claims made by falconers. We are glad to see that the Scottish Government has responded clearly to the petition on this topic and has shown no indication to change this policy and urge that that continues to be the case.

The second response, from a Legal organisation, was as follows:

[We] see it as a net benefit for animal welfare that falconers can no longer legally hunt mountain hares. The 2020 Act provides this protection by adding the mountain hare to Schedule 5 of the Wildlife and Countryside Act 1981 which lists animals that, according to section 9 of that Act, may not be “intentionally or recklessly” killed. It therefore seems unlikely that any action involving the genuinely accidental taking of a mountain hare would result in a prosecution.

3.3 Terrestrial Wildlife: Introducing Fixed Penalty Notices for Wildlife Crime Offences

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 also introduced the powers to introduce Fixed Penalty Notice (FPN) regimes. These could be developed for a wide range of wildlife offences, which could be addressed outwith the court system, through an appropriate Fixed Penalty Notice.

Summary of results

The majority (85%) of respondents to this section think Fixed Penalty Notices would be a beneficial resource when enforcing Wildlife legislation. The majority (77%) also think that Fixed Penalty Notices would act as a deterrant to Wildlife offences being committed.

In terms of what Wildlife offences Fixed Penalty Notices could be applied to, over a fifth (22%) of respondents think they could be applied to ‘Using a vehicle (including drones) to chase wild birds for the purposes of killing or taking that bird’ and ‘Selling live or dead animals listed on Schedule 5 of the Wildlife and Countryside Act’.

Respondents who provided written comments stated that the effectiveness of Fixed Penalty Notices would depend on factors such as consistency and the level of associated fines. Among respondents who disagreed with the suggested changes, there was a shared view that none of the offences listed were suitable (see Figure 14), with several stating that Fixed Penalty Notices should only be used for technical breaches.

• The majority (85%) of respondents to this section think Fixed Penalty Notices would be a beneficial resource when enforcing Wildlife legislation. Over a tenth (15%) do not think they would be a beneficial resource (see Figure 12).

Total number of cases (N) =13

• The majority (77%) of respondents to this section think that Fixed Penalty Notices would act as a deterrant to Wildlife offences being committed. Almost a quarter (23%) do not think they would act as a deterrant (see Figure 13).

Total number of cases (N) =13

The next question asked respondents what Wildlife offences they think Fixed Penalty Notices could be applied to (see Figure 14). The results were:

• Over a fifth (22%) of respondents think Fixed Penalty Notices could be applied to ‘Using a vehicle (including drones) to chase wild birds for the purposes of killing or taking that bird (Section 5(1)(e) of the Wildlife and Countryside Act)’
• Over a fifth (22%) of respondents think Fixed Penalty Notices could be applied to ‘Selling live or dead animals listed on Schedule 5 of the Wildlife and Countryside Act (Sections 7(3)(a), 7(3)(b), 7(3)(c) (c), 7(4), and 7(5A) of the Wildlife and Countryside Act)’
• Almost a fifth (19%) of respondents think Fixed Penalty Notices could be applied to ‘Selling live or dead birds, or their eggs (Sections 6(1)(b), 6(2)(a), and 6(2)(b) of the Wildlife and Countryside Act)’
• Over a tenth (15%) of respondents think Fixed Penalty Notices could be applied to ‘Taking, killing or injuring badgers (Section 1(5) of the Protection of Badgers Act)’

Total number of cases (N) =13

Respondents were asked if they had any comments to provide, and 6 did so. The responses demonstrated mixed views on the potential use of Fixed Penalty Notices for a wide range of wildlife offences.

Agreement

Whilst several respondents agreed in principle with the suggested changes, and said that they could improve efficiency, they felt that the effectiveness of Fixed Penalty Notices would depend on factors such as consistency and the level of associated fines:

• Fixed Penalty Notices could improve efficiency by achieving quicker resolutions and increasing enforcement of technical offences;
• For lower level wildlife crime offences, the issuing of Fixed Penalty Notices would be beneficial to the police and Crown Office and Procurator Fiscal Service, and would prevent cases being marked ‘no proceedings’;
• Any deterrent effect of Fixed Penalty Notices would depend on how consistently they are used and the level of associated fines;
• The use of Fixed Penalty Notices would only be effective if the perpetrator is identified, and if more than one Fixed Penalty Notice was issued to an individual (for example if found in possession of equipment likely to be used for badger disturbance), a case could be built for further investigation;
• If issued with a Fixed Penalty Notice, there is at least a ‘consequence’ without overburdening police with writing up reports for no purpose.

One Animal Welfare organisation stated:

We agree with the introduction of fixed penalty notices (FPN) as an alternative to prosecution for a limited number of minor animal health and welfare and wildlife offences. We would hope that the availability of FPN would lead to increased enforcement activity without additional burdens on relevant authorities, and indeed might reduce these by achieving more speedy resolution to cases.

Disagreement

Several organisations, including Animal Welfare organisations, stated that none of the offences listed in Figure 14 was suitable for a Fixed Penalty Notice:

It will be important for the regulations to ensure that no offence which causes harm or distress to an animal is dealt with by way of [a Fixed Penalty Notice]. As such, we would strongly disagree with FPN being applied to the offence of taking, killing or injuring badgers, as suggested as one of the options here (Response 1)

The example offences are of a nature that [the Crown Office and Procurator Fiscal Service] would ordinarily prosecute in court rather than offer fiscal fines for, so fixed penalties may not necessarily be suitable for such offences. But it would ultimately depend on the value of the fixed penalties that could be offered as if these match or exceed the average punishments issued by the Courts then there would be merit in them. (Response 2)

A further point made by two respondents was that Fixed Penalty Notices should only be used for technical breaches, for example failure to keep accurate records, or to submit required documents on time. The examples listed would not be ‘suitable offences’ for a Fixed Penalty Notice as ‘all show intent’, one stated. The second commented that:

Only minor technical offences, where it can be shown that no animal has suffered harm or poor welfare, would be suitable for such a disposal. We do not think [Fixed Penalty Notices] would have a significant deterrent effect, but they could improve efficiency by increasing enforcement of technical offences, which is why we have supported their introduction. They should not be used to take intentional acts, such as those listed (some of which are severe), out of the criminal justice system.

3.4 Terrestrial Wildlife: Police Scotland to have more time to investigate wildlife crimes

The Act also extends the time available for police investigations into certain wildlife crimes. By allowing more time for thorough investigations, law enforcement can gather evidence, identify perpetrators, and build stronger cases against offenders.

Before the Act, some summary proceedings for wildlife offences had to 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 commission of the offence (or, in the case of a continuous contravention, after the last date on which the offence was committed). Some summary proceedings for wildlife offences, had to be commenced within 6 months of the contravention or the last date of a continuous contravention under section 136 of the Criminal Procedure (Scotland) Act 1995.

The Act removed the time limit for bringing proceedings for some of these offences by removing a time limit for commencing summary proceedings, or by making them offences which could also be brought as solemn proceedings and which were not subject to a time limit. For some summary offences to which section 136 of the Criminal Procedure (Scotland) Act 1995 applied, a different time limit was fixed 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 commission of the offence (or, in the case of a continuous contravention, after the last date on which the offence was committed).

Summary of results

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

Written responses to this section largely agreed that the time limit to investigate wildlife crimes should be increased further, for reasons including: the complexity of wildlife crime cases, a lack of resources at the investigation stage, and the time it can take for police to become aware that an offence has been committed.

One response stated that the time limit should be extended depending on the type of offences committed, whilst another said this should occur when there is sufficient evidence. A third response stated that additional time should not be allowed to result in delays which can in turn impact the quality of evidence available and overall strength of the case.

• Over half (62%) of respondents to this section agreed that extending the time available to investigate wildlife crimes been beneficial; but over a third (38%) disagreed (see Figure 15).

Total number of cases (N) =13

• Over half (54%) of respondents to this section thought that the time limit to investigate wildlife crimes could be increased further; 15% did not (see Figure 16).

Total number of cases (N) =13

Respondents were asked if they had any comments to provide, and a total of 5 did so. These were largely Enforcement or Legal organisations. Several agreed that the time limit to investigate wildlife crimes should be increased further, due to the following reasons:

• Wildlife crime cases can be complex and involve multiple witnesses, seizure of multiple items of evidence and retrieval of evidence in multiple locations;
• The lack of expert resources for investigation for complex wildlife offences;
• In some cases the current timeframe is too short as the police may only become aware an offence has been committed months or years later, for example through investigating other crimes.

One organisation noted that the time limit should be extended depending on the type of offences committed, whilst another said this should occur when there is sufficient evidence. A third response, from a Legal organisation, stated that ‘there is a balance to be struck’, and that whilst it would be helpful to increase the time limit further for certain wildlife offences,

delays in reporting a case to [Crown Office and Procurator Fiscal Service] can impact on the overall quality of the evidence available and, regardless of [time-bar],^[5] it always remains open to the [defence] to raise a common law delay challenge based on the principles of fairness. So the additional time can be an asset as long as it does not result in a lack [of] urgency by reporting agencies which in turn can impact on the overall strength of the case.

The final response stated that a lack of resources throughout the investigation and prosecution process, and the time it takes to do all the necessary steps, can lead to prosecutions failing.

3.5 Terrestrial Wildlife: General

This section asked survey respondents if they think the provisions in the 2020 Act have been, and continue to be sufficient, for wildlife; if there are areas where the legislation itself is sufficient, but the way it is enforced or resources available need to be improved; and if they consider there to be other ways in which the legislation can be improved.

Summary of results

A majority (69%) of respondents to this section think the provisions in the 2020 Act have been, and continue to be sufficient, for Wildlife; the same number (69%) think there are areas where the legislation itself is sufficient, but the way it is enforced or resources available need to be improved. Around half (46%) consider there to be other ways in which the legislation can be improved for Wildlife; around a quarter (23%) do not.

Additional comments provided in this section were largely focused on the need to ensure effective implementation of any new legislation, and to go further to protect Scotland’s wild animals.

• A majority (69%) of respondents to this section think the provisions in the 2020 Act have been, and continue to be sufficient, for Wildlife; 8% do not think the provisions are sufficient.

Total number of cases (N) =13

• A majority (69%) of respondents to this section think there are areas where the legislation itself is sufficient, but the way it is enforced or resources available need to be improved, for Wildlife.

Total number of cases (N) =13

• Around half (46%) of respondents to this section consider there to be other ways in which the legislation can be improved for Wildlife. Around a quarter (23%) do not consider this to be the case.

Total number of cases (N) =13

Respondents were asked if they had any comments to provide, and a total of 6 did so. The responses were largely focused on the need to ensure effective implementation of any new legislation, and the need to go further in protecting Scotland’s wild animals.

Focus on implementation

One response stated that the current review should have a wider scope, and ‘should focus at least as much on implementation as on actual provisions of the legislation’:

Scotland’s wild animals deserve greater protection from cruelty, not only for their own sake as sentient individuals, but because they are a valuable part of our national capital and a precious resource, attracting visitors and contributing to the nation’s wellbeing.

In terms of implementation, one response referenced ‘numerous examples where it was felt that the case should have been dealt with under Solemn not Summary proceedings’, including a particularly serious cases that resulted in only a 6 month custodial sentence. Similarly, another response stated that the current legislation is not being implemented consistently by the police, Crown Office and Procurator Fiscal Service and others, in part due to demands on services since the COVID-19 pandemic. To improve implementation, one response focused on the need for:

• More training given to enforcement bodies outlining the legislation;
• Clearer instruction on the type of crimes for Fixed Penalty Notices and the ones to be reported to the Crown Office and Procurator Fiscal Service;
• Consideration of the best enforcement body to adopt the role of reporter in an area given staffing availability, time and ability.

Further legislation

Several responses referenced further legislation, such as the Hunting with Dogs (Scotland) Act 2023 and Wildlife Management and Muirburn (Scotland) Act 2024^[6], and were supportive of these further efforts to increase protections for wild animals and tackle wildlife crime in Scotland. One Animal Welfare organisation stated that it

would like to see this legislation implemented fully with adequate resource for enforcement before further improvements are sought in relation to legislation that is there to protect wildlife.

A second Animal Welfare organisation stated that despite this progress, existing legislation is not ‘sufficient to protect wildlife, as many harms to wild animals continue to be legal’:

For example, the (yet to be enacted) ban on snaring was similarly very welcome, but other legal traps cause widespread and sometimes severe suffering. This is particularly the case for moles and rodents, who have less legal protection than other wild mammals.

Similarly, they added, ‘enforcement of existing legislation is not always sufficient to uphold these legal protections’, but increased powers given to the Scottish Society for the Prevention of Cruelty to Animals is a ‘positive step’ and they ‘look forward to that provision coming into force’.

This organisation also noted that following the 2020 Act, the Scottish Government committed to review the definition of a badger sett, and that whilst this has been delayed due to the COVID-19 pandemic, they agree with the Scottish Animal Welfare Commission’s recent recommendation that the definition be changed.

Finally, one respondent stated that they were unable to provide further comment due to their organisation’s role.

4. Animal Health and Welfare

This section included questions relating to amendments to Animal Welfare and Animal Health Policy resulting from the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020. It received 50 responses in total.

4.1 Animal Health and Welfare: Increased penalties

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 increased the maximum penalties for the most serious animal welfare offences under the Animal Health and Welfare (Scotland) Act 2006.

Maximum penalties were originally 12 months in prison and/or a £20,000 fine via summary proceedings, where the Sherrif sits alone, without a jury. The 2020 Act introduced the option to hear serious cases via solemn proceedings, where a jury reaches a verdict and, if a conviction arises, the Sheriff determines the sentence.

New maximum sentences for cases heard under solemn proceedings are up to five years in prison and/or an unlimited fine. These increased penalties apply to offences under Section 19 (unnecessary suffering) and Section 23 (animal fighting). The ability to choose between summary and solemn proceedings also removed the previous statutory time limits for bringing a prosecution after these offence were committed.

As noted above, 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 impacted the views of respondents on how effectively they considered the changes made by the 2020 Act to have been implemented.

Summary of results

38% of respondents to this section consider 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%) disagreed. Almost a third (30%) consider the higher maximum penalties, up to five years and/or unlimited fines, for the most serious offences to have been used effectively. Over a fifth (22%) do consider the higher maximum penalties to have deterred animal welfare offences. A higher number (46%) do not. Around a third (32%) do think further changes are required in primary legislation for this area. A higher number (38%) do not.

Whilst many written responses in this section were supportive of higher maximum penalties, they highlighted limitations in terms of their effectiveness, from the extent to which they act as a deterrent to their implementation by the courts. Animal Welfare organisations were supportive of alternative approaches, such as restorative justice, and highlighted the lack of cases being dealt with under Solemn proceedings.

• The majority (91%; 50) of respondents to the survey said their organisation is involved with Animal Health and Welfare. Around a tenth (9%; 5 respondents) said it was not. This section of the survey received 50 responses in total.
• Responses to this section were largely from Enforcement or Legal organisations, with several from Animal Welfare and Non-Governmental organisations.
• Over a third (38%) of respondents to this section consider 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%) do not consider it to have been used effectively (Figure 20).
• Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ or ‘Not applicable’.

Total number of cases (N) =50

• Almost a third (30%) of respondents to this section consider the higher maximum penalties, up to five years and/or unlimited fines, for the most serious offences to have been used effectively. Around a quarter (24%) do not (see Figure 21).
• Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ or ‘Not applicable’.

Total number of cases (N) =50

• Almost half (46%) of respondents to this section do not consider the higher maximum penalties to have deterred animal welfare offences. Over a fifth (22%) do consider them to have deterred animal welfare offences (see Figure 22).
• Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ or ‘Not applicable’.

Total number of cases (N) =50

• 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 (see Figure 23).
• Animal Welfare and Non-Governmental organisations were more likely to say ‘No’ or ‘Not applicable’. Responses from Enforcement / Legal organisations were mixed.

Total number of cases (N) =50

Respondents were asked if they had any comments to provide, and 28 did so. Whilst many were supportive of higher maximum penalties, the responses in this section highlighted limitations in terms of their effectiveness, from the extent to which they act as a deterrent to their implementation by the courts. Animal Welfare organisations were supportive of alternative approaches, such as restorative justice, and highlighted the lack of cases being dealt with under Solemn proceedings.

Effectiveness of higher maximum penalties

In terms of the effectiveness of higher maximum penalties, the responses in this section raised points such as:

• The need for strong deterrents and penalties to deter animal welfare offences;
• Support for introducing fixed penalty notices in relation to certain Animal Health & Welfare offences, and to amend the 2006 Act accordingly;
• The need to increase awareness and communication around higher maximum penalties, as they are not widely known about;
• Whilst increased penalties are a good thing, offenders probably do not weigh up and consider the penalty prior to offending;
• Serious offenders are being let off by a weak judicial system and that more robust legislation with increased penalties may act as a deterrent;
• Higher sentences are beneficial, but are not a deterrent;
• Need to ensure that multiple ‘unnecessary suffering’ offences are taken in a report to the Procurator Fiscal Service over a period of time and not just one isolated incident. As in the Moorov doctrine,^[7] they may be over a consecutive number of years but are all important in terms of deciding whether to give a lifetime ban on working and keeping animals;
• The need to corroborate the views on increased penalties expressed here with quantitative evidence (i.e. data) to assess their effectiveness.

A number of Animal Welfare organisations provided comments in this section. One noted their support for both increasing penalties, and alternative approaches:

It is difficult to assess how or whether penalties act as a deterrent in different circumstances. Penalties are inevitably reactive and retrospective and other approaches such as increased enforcement effort and, potentially, specialist intervention programmes, might have a more practical deterrent effect. Imprisonment is a blunt instrument, and community-based sentences are said to be more effective in preventing recidivism.

This organisation supports restorative justice and empathy-based interventions for animal welfare and wildlife crimes, and would like to see further changes to facilitate the provision of these types of programmes, or to require the courts to consider this approach for all people convicted of offences against animals. They referenced a 2022 Scottish Government report which noted the potential of these approaches, and the need for further follow-up work.^[8]

As noted below, several organisations stated that they were not able to comment on the effectiveness of this legislation, and had not received any feedback or complaints related to these changes which suggests that there are no significant issues.

Implementation

Enforcement

Several responses highlighted limitations to the effectiveness of the changes outlined in this section, including due to issues in implementation:

• Enforcement is a significant issue, and a lack of resources to enforce the law and identify offenders means that increased penalties will be ineffective;
• Without improved policing and chain of evidence in these types of cases, the increased penalties are not useful as they are rarely used;
• Taking a case to court is time-consuming, and submitted cases are often not being taken forward with no response from the court to explain why.

One response reiterated a point made above: that the current legislation is not being implemented consistently by the police, Crown Office and Procurator Fiscal Service and others, in part due to demands on services since the COVID-19 pandemic.

Choice of Solemn or Summary

One respondent from a Legal organisation reiterated points made in Section 3.1 on the different factors that are considered by the courts in deciding whether to prosecute at solemn or summary level, including previous convictions and the nature of the offence. As stated above, in order to assess the effectiveness of these changes, they added, it is helpful to focus on ‘the minority of cases that merit solemn proceedings or solemn-level custodial sentences’. In terms of their deterrent effect, this respondent noted that many of those accused in animal health and welfare cases face mental health and financial challenges:

In such scenarios I don't think the potential for solemn proceedings is likely to impact on the behaviour of those individuals. However, in the small number of cases which involve a more organised and/or commercial operation which impacts on the welfare of animals then I would be more hopeful of the increased sentencing powers having some degree of a deterrent effect.

A further Legal organisation stated:

[Our] understanding is that the full value of the legislation has not been demonstrated due to issues within the criminal justice system. These include the continued use of summary rather than solemn procedure, with animal welfare cases apparently marked for solemn procedure only when other offences are also libelled, and the tendency of courts to sentence at the lower end of the scale even for summary cases. Further information is needed about penalties and post-conviction orders, including disqualification orders, in order to assess the extent to which the Act has been implemented.

One Animal Welfare organisation repeated points made in Section 3.1 in terms of the legislation not acting as a deterrent, as cases are being submitted under Summary not Solemn proceedings. This organisation referred to numerous examples where it was felt that the case should have been dealt with under Solemn proceedings, such as animal fighting. When cases have been dealt with under Summary proceedings, the sentences have ‘varied greatly and it is very rare to see a lifetime ban given’.^[9]

One Animal Welfare organisation highlighted the impact of cases of neglect and abuse on the welfare of animals, and on its own resources and staff, and the need to deal with animal welfare offences ‘swiftly and appropriately’, as animal cruelty can be linked with other forms of violence, including domestic abuse.^[10]

As far as this organisation is aware, ‘no animal welfare offences have been taken on solemn proceedings and therefore, the increased sentencing has not had the opportunity to be utilised by the Courts’:

Tougher sentences would act as an effective deterrent and would go some way to reducing incidents of animal cruelty. We continue to be aware of animal welfare offences where no custodial sentence is received […]

We consider the penalties available for summary cases involving animal welfare offences to be too low, especially when it is considered that reductions can be given for early guilty pleas as well as the possibility to give suspended rather than custodial sentences. The woefully inadequate sentences are not a deterrent, and cases should be taken on solemn proceedings if punishments are expected to fit many crimes against animals.

This organisation also referenced a recent animal fighting case, which despite its seriousness, was not taken on solemn proceedings. The six-month sentence given was not ‘fair or proportionate’, and the perpetrator was not issued with a lifetime ban on keeping or owning animals. The organisation added:

We believe Scottish Ministers should make a statutory request to the Scottish Sentencing Council to develop sentencing guidelines for animal welfare offences. Similar guidance is in place in England. Sentencing guidance would help to ensure punishments for animal cruelty offences fit the crime and that offenders are sufficiently deterred. It would also help ensure consistency and may help to minimise the Courts’ time and resources when determining sentences in animal welfare offences. 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.

Not able to comment

Finally, over a third of written responses to this section stated that they were unable to comment or give an informed opinion as, for example:

• Their organisation has not had the need to use this legislation;
• No cases have been taken in their area or been brought against individuals or companies from their sector, or they have not been involved in any cases that have gone to solemn proceedings;
• Their organisation has a different role or remit, and is not actively involved in court cases or the delivery of penalties;
• They lack the evidence to comment further.

4.2 Animal Health and Welfare: Around harming a service animal

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.

This change was to make it easier to convict people of causing service animals unnecessary suffering. By requiring any claim that the harm was inflicted for the purpose of protecting a person, property or another animal to be disregarded where that animal was under the control of a:

- relevant officer at the time of the conduct;

- 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.

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.

Summary of results

28% respondents to this section think this change has been effective. 4% do not think it has been effective. Over a fifth (22%) do not think any further changes are required in primary legislation for this area; 8% do think further changes are required.

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.

• Around three in ten (28%) respondents to this section think this change has been effective; 4% do not think it has been effective (see Figure 24).
• Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Enforcement and Legal organisations largely answered ‘Yes’ or ‘Not applicable’.

Total number of cases (N) =50

• Over a fifth (22%) of respondents to this section do not think any further changes are required in primary legislation for this area. Around a tenth (8%) do think further changes are required (see Figure 25).
• 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’.

Total number of cases (N) =50

There were no substantial comments in this section, with respondents stating that they were not able to comment for reasons including:

• They have not had the need to use this legislation;
• They do not enforce this legislation or it is not relevant to their work;
• Lack of experience or involvement in this area;
• A lack of evidence.

Several stated that they were not aware of any cases where this legislation has been used. Three further points were:

• Continued support for this legislative change;
• The need to increase public awareness about harm to service animals;
• The need to encourage the Courts to utilise the sentences available under solemn proceedings to ‘ensure the bravery and dedication of police dogs is reflected in the sentences issued for these crimes’.

4.3 Animal Health and Welfare: Requiring Court reasoning around disqualification orders

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).

Summary of results

One in three (30%) respondents to this section said the requirement for Courts to consider a disqualification has been used. Over a fifth (22%) said it has not been used. A fifth (20%) said the disqualifications has not been implemented effectively; 14% said it has.

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

Almost a third (32%) do not think any further changes are required in primary legislation for this area; 16% do think further changes are required.

Written responses to this section focused largely on practical issues, such as the need to review the wording of this provision to ensure it is effectively implemented. Animal welfare organisations highlighted further issues including the lack of a mechanism to monitor those who have received a ban as part of their sentencing.

• One in three (30%) respondents to this section said the requirement for Courts to consider a disqualification has been used. Over a fifth (22%) said it has not been used (see Figure 26).
• Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• A fifth (20%) of respondents to this section said the disqualifications has not been implemented effectively; 14% said it has (see Figure 27).
• Animal Welfare and Non-Governmental organisations largely answered ‘No’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed, with over a fifth of this group answering ‘No’.

Total number of cases (N) =50

• Around a quarter (24%) of respondents to this section consider the obligation on the Scottish Courts and Tribunals Service to establish and maintain a record of reasons relating to disqualification orders to have been implemented effectively; 14% do not consider this obligation to have been implemented effectively (see Figure 28).
• Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• Almost a third (32%) of respondents to this section do not think any further changes are required in primary legislation for this area; 16% do think further changes are required (see Figure 29).
• Animal Welfare and Non-Governmental organisations largely answered ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

Respondents were asked if they had any comments to provide on requiring Court reasoning around disqualification orders, and a total of 23 did so. Written responses in this section focused largely on practical issues, such as the need to review the wording of this provision to ensure it is effectively implemented. Animal welfare organisations highlighted further issues including the lack of a mechanism to monitor those who have received a ban as part of their sentencing.

Implementation

Responses to this section raised points including:

• The need for wording on disqualifications to be clearly set out to prevent it being interpreted differently;
• The implementation of disqualifications appears to still be lenient, and is therefore not effective as a deterrent;
• The judicial system needs a specialist fiscals and Sheriffs to deal with Animal Health and Welfare cases effectively;
• The need to take into account all offences committed by a perpetrator relating to the Animal Health and Welfare (Scotland) Act 2006;

One Legal organisation suggested that:

The Scottish Courts and Tribunal Service has taken the view that the 2020 Act imposed no additional duty on it, arguing that the relevant information is already contained in court records and its management of these records adequately meets its statutory duty. Not only is such a position contrary to the wording of the legislation which requires the [Scottish Courts and Tribunal Service] positively 'to establish and maintain' a record of reasons relating to disqualification orders, it is also clearly contrary to the intention of the Scottish Parliament.

By reference to the parliamentary record, it is self-evident that those who proposed this provision intended that - and the basis on which the Scottish Parliament adopted it - it should increase transparency about decisions regarding disqualification orders. Leaving the relevant information incorporated in the court records entirely defeats this purpose as they are exempt from disclosure under section 37 of the Freedom of Information (Scotland) Act 2002. It may be necessary to review the wording of this provision to ensure that it is implemented.^[11]

Animal Welfare organisations

In a response to another section of the survey, one organisation suggested that ‘a centralised and digitalised database of persons who have been issued with a disqualification order is created’. This ‘should be accessible by the relevant enforcement agencies (including SSPCA, local authorities and the police), 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).’

As one Animal Welfare organisation stated, it is not possible for them to know if an applicant has been disqualified. A second organisation, whilst unable to ‘comment on the effectiveness of the requirement for Courts to consider a disqualification order’, stated that:

[If] someone has been convicted of an animal welfare offence, then we believe that a disqualification order should be issued and this should be a permanent disqualification order for the most serious offences. Where an animal welfare offence has been committed and a disqualification order is not issued, there should also be a requirement for the Courts to state why the decision has been made not to issue an order. This will help ensure there is due consideration with regards to the issuing of a ban and assist with consistency of approach.

This response highlighted two recent cases in which five-year bans were given, for animal neglect and fighting, where they believed that longer bans on keeping or owning animals should have been issued.

A second Animal Welfare organisation highlighted the fact that there is ‘currently no mechanism to monitor those who have received a ban as part of their sentencing’, and that they rely on the public ‘to report if someone they know who has been banned from owning an animal has breached that ban’:

If another agency such as Police Scotland are visiting a property in response to a non-animal welfare related matter and animals are present within that property they will not know whether that person is banned from keeping animals or indeed has any conviction in relation to animal welfare at that point in their enquiry. The investigating officers would have to actively seek that information.

This organisation has campaigned for a UK National Animal Offenders register to be ‘incorporated into existing intelligence systems and accessible to all enforcement agencies’ to ‘tackle the link between animal abuse and human abuse’.

They gave the example of an officer interviewing a victim of domestic abuse, and using the DASH checklist^[12] to ask if the accused has ever mistreated an animal or the family pet. Whilst this ‘increases the risk score’, ‘whether animals are currently occupying [the residence] is not always considered therefore those animals could remain in the property with the perpetrator and be at risk of harm’.

Lastly, over half of the responses stated that they were unable to provide any comment, for example as they have no practical involvement in this area. One Animal Welfare organisation stated that they were unable to comment on the effectiveness of the changes as due to delays in court proceedings, they have not yet been involved in any cases which the new legislation applies to.

4.4 Animal Health and Welfare: Powers in relation to seized animals

The Animal Health and Welfare (Scotland) Act 2006 introduced powers for enforcement authorities to take possession of animals if they are “likely to suffer”.

This introduction 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 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.

Summary of results

Almost half (44%) of respondents to this section consider the new power to make permanent arrangements for animals seized to protect their welfare to have been used; a fifth (20%) said they did not consider the new power to have been used. 40% consider the new power to make permanent arrangements for animals seized to protect their welfare to have been implemented effectively; around a fifth (18%) do not.

Over half (58%) of respondents to this section consider the new power to make permanent arrangements for animals seized to protect their welfare to have been beneficial to animal welfare; around a tenth (12%) do not. Almost a third (28%) do not think any further changes are required in primary legislation for this area; the same number (28%) do think further changes are required.

In written responses to this section: enforcement bodies highlighted the significant costs involved in seizing animals and the lack of suitable accommodation; animal welfare organisations were supportive of the change, and stated that it has had a positive impact on animal welfare; legal and enforcement organisations highlighted the impact of the court appeals process, which can cause additional costs, delays and negative impacts on animal welfare - they support introducing a time-limit on appeals in these types of cases.

• Almost half (44%) of respondents to this section consider the new power to make permanent arrangements for animals seized to protect their welfare to have been used; a fifth (20%) said ‘No’ (see Figure 30).
• Animal Welfare and Non-Governmental organisations largely answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• Four in ten (40%) of respondents to this section consider the new power to make permanent arrangements for animals seized to protect their welfare to have been implemented effectively; around a fifth (18%) do not (see Figure 31).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• Over half (58%) of respondents to this section consider the new power to make permanent arrangements for animals seized to protect their welfare to have been beneficial to animal welfare; around a tenth (12%) do not (see Figure 32).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• Almost a third (28%) of respondents to this section do not think any further changes are required in primary legislation for this area; the same number (28%) do think further changes are required (see Figure 33).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

Respondents were asked if they had any comments to provide on the introduction of powers to make permanent arrangements for seized animals, and a total of 26 did so:

• One group of respondents, largely enforcement bodies including local authorities, highlighted the significant costs involved in seizing animals and the lack of suitable accommodation;
• Animal Welfare organisations were supportive of the change, and stated that it has had a positive impact on animal welfare;
• Legal and enforcement organisations highlighted specific issues, including the impact of the court appeals process, which can cause additional costs, delays and negative impacts on animal welfare; they support introducing a time-limit on appeals in these types of cases.

Costs involved

One group of respondents, largely enforcement bodies including local authorities, highlighted the significant costs involved in seizing animals, raising points such as:

• There is no avenue to claim costs from the person(s) responsible, and no financial support is available for local authorities from the Scottish Government to support this function;
• When seizing livestock, local authorities encounter significant costs in transporting animals to an appropriate and safe place, and caring for them, with additional costs if animals are pregnant and cannot be transported;
• More training and additional budget is required to carry out this work;
• Some animals require destruction and no costs can be reclaimed; work needs to be done to facilitate the compulsory slaughter of seized NOR cattle.

Several responses stated 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.

Accommodation facilities

Several responses in this area highlighted the problem of accommodation, and the need for sufficient facilities available for use by enforcement agencies (including local authorities and the police) with an obligation to ensure animals’ welfare, with one response noting that ‘Police don't have ready access to sufficient places to take seized animals. In addition the costs associated with seizure until court can go into thousands of pounds’.

A second response referenced a case where animals were seized and ‘the courts were not fully aware of the legislation’; it took longer than needed to sell the animals and ‘cost the council a large sum of money’.

Another response stated that enforcement authority management ‘refuse to allow their authorised officer to seize such animals for financial cost reasons’, and that it should be ‘an offence for enforcement agencies to fail to take action to protect such animals. Provision for fixed penalty notices should be extended to include these offences as necessary’.

Animal Welfare organisations

Animal Welfare organisations were supportive of the introduction of this power to make permanent arrangements for seized animals, 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.

Legal and enforcement organisations

Legal and enforcement organisations highlighted specific issues, including the impact of the court appeals process, which can cause delays and have an impact on animal welfare and additional costs for charities and enforcement agencies. They were supportive of introducing a time-limit on appeals in these types of cases. One organisation stated:

The changes have improved the situation but there is still the high risk of appeal against disposal and therefore a significant inhibitory factor which actively limits enforcement agencies to take possession of animals. There have been cases whereby the sheriff extended the window for appeal imposing considerably greater costs on the enforcement body. We would like this time window to be given a maximum and ideally shortened from three weeks. If there was a requirement for central government to finance the possession operations this would improve animal welfare. If an appeal was to go ahead, to have a window when this had to be heard would reduce the financial risk. A mechanism to make it more straightforward to get the owner to pay for the difference if the costs of taking possession exceed the revenue from disposal.

A second organisation noted that since the introduction of this legislation, over 100 decision notices have been serviced in relation to 842 animals, with dogs being the most common animal involved alongside other animals such as cats, snakes and horses.

However, this organisation noted that ‘if the accused appeals the decision notice’, they are in the same position as before, with animals having to be ‘kept within a rescue centre until the court case has been heard’, in some instances resulting in a 1-2 year wait:

We have instances where the duration of the appeals process is 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. If this request is granted, then the animals remain within [our] care for the same length of time as before this new legislation came into effect resulting in poor animal welfare and increased costs […] in relation to animal husbandry, ongoing veterinary care and legal fees.

The response added that they are ‘never awarded any of these costs even if proceeds of crime is pursued’. To date, 14 appeals have been lodged. A third organisation stated:

We understand that the decision notice procedure implemented by the Scottish SPCA has been used in many cases, reducing the time spent in shelters by hundreds of animals removed on welfare grounds. This is beneficial for their welfare and reduces the burden on charities and agencies charged with caring for the animals […]

Lastly, six responses stated that they were unable to provide any comment, for example as they have no involvement in this area.

4.5 Animal Health and Welfare: Introducing fixed penalty notices for animal health offences

Section 6 of the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 inserted a new section 76A (fixed penalty notices) into the Animal Health Act 1981. The new section conferred a power on the Scottish Ministers to make provision by regulations for or in connection with the issuing of Fixed Penalty Notices (FPNs) in relation to certain offences. The offences which may be specified are those under the Animal Health Act 1981, the Bees Act 1980, orders or regulations made under those Acts, or other enactments which the Scottish Ministers consider relate to animal health.

The power may only be used to make provision for Fixed Penalty Notices in relation to offences for which the maximum penalty on conviction does not exceed a term of imprisonment of 6 months or a fine of level 5 on the standard scale (or both).

Whilst the power in section 76A of the Animal Health Act 1981 has yet to be exercised, it is intended that a separate Scottish Government consultation will set out proposals to use the power to make provision for an Animal Health Fixed Penalty Notice (FPN) scheme. The consultation would set out the proposed characteristics of the scheme, including penalty levels and amounts and specified offences.

Summary of results

Respondents were asked to enter their e-mail address if they would like to be kept informed about a planned consultation which will set out the proposed characteristics of an Animal Health Fixed Penalty Notice (FPN) scheme, and 38 did so.

• Respondents were asked to enter their e-mail address if they would like to be kept informed about a planned consultation which will set out the proposed characteristics of an Animal Health Fixed Penalty Notice (FPN) scheme, including penalty levels and amounts and specified offences, and 38 did so.

4.6 Animal Health and Welfare: General

A majority (66%) of respondents to this section think the provisions in the 2020 Act have been, and continue to be sufficient, for Animal Health and Welfare; a fifth (20%) do not think the provisions are sufficient.

A majority (76%) think there are areas where the legislation itself is sufficient, but the way it is enforced or resources available need to be improved; 6% disagree with this. Over half (58%) of respondents to this section think there are other ways in which the legislation can be improved, for Animal Health & Welfare; 16% did not think so.

Enforcement bodies who provided written responses to this section focused on the need for sufficient funding, budget and resources. Animal welfare organisations also focused on enforcement, alongside specific issues such as creating a specific offence for dog abduction, and banning of the use of e-collars. Several responses expressed support for the introduction of Fixed Penalty Notices (FPNs) for offences under the 2006 Act, however Animal Welfare organisations were less supportive, stating that would only be appropriate for administrative errors and first-time offences.

• A majority (66%) of respondents to this section think the provisions in the 2020 Act have been, and continue to be sufficient, for Animal Health and Welfare; a fifth (20%) do not think the provisions are sufficient (see Figure 34).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

• A majority (76%) of respondents to this section think there are areas where the legislation itself is sufficient, but the way it is enforced or resources available need to be improved; 6% disagree with this (see Figure 35).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Enforcement and Legal organisations mostly answered ‘Yes’.

Total number of cases (N) =50

• Over half (58%) of respondents to this section think there are other ways in which the legislation can be improved, for Animal Health & Welfare; 16% did not think so (see Figure 36).
• Animal Welfare and Non-Governmental organisations mostly answered ‘Yes’ or ‘Not applicable’. Responses from Enforcement and Legal organisations were mixed.

Total number of cases (N) =50

Respondents were asked if they had any comments to provide, and a total of 25 did so. Some made specific suggestions to improve implementation of these changes, including training and information sharing between agencies. Enforcement bodies who provided comments focused on the need for sufficient funding, budget and resource allocation. Animal welfare organisations also focused on enforcement, alongside specific issues such as the inclusion of cephalopods and decapod crustaceans, creating a specific offence for dog abduction, and banning of the use of e-collars.

Specific suggestions to improve implementation of provisions within the 2020 Act included:

• Legislation should clearly state who is responsible for delivering enforcement responsibilities;
• More training to be given to update enforcement bodies and ensure consistency;
• Agencies to work together more successfully and share information;
• Animal welfare organisations involved in rehoming to be able to check if someone has been disqualified from having an animal;
• Support for the introduction of fixed penalty notices (FPN) for offences under the 2006 Act where the issue of a notice is appropriate.

The responses are outlined in more detail below.

Need for sufficient funding, budget and resource allocation

Enforcement bodies who provided comments focused on the need for sufficient funding and resources, and recruitment issues. One commented:

With additional legislative requirements and work must come the resources for financing the effective enforcement. Currently we only can enforce [Animal Health & Welfare] in a reactive capacity - only have one officer, meaning we are unable to programme pro-active work to ensure adequate enforcement.

A second highlighted that the degree of resources allocated varies, many officers are ‘overstretched’, and ‘the lack of staff and resource is a problem across the country’:

Services are finding recruitment and the allocation of budget problematic. The addition of fixed penalties may be a useful enforcement tool.

Another stated that it ‘would be better if funding for the provision of these services was ringfenced so it was available to the specific service that carries out the enforcement of Animal Health & Welfare’.

One animal welfare organisation stated that local authority resourcing is a ‘significant barrier to implement and enforce legislation, particularly around licensing of animal activities (such as riding establishments and animal welfare establishments)’.

Legal improvements

Several responses related to legal improvements:

• Strengthen enforcement and compliance and improve reporting mechanisms;
• Expand legal protection by recognition of animal sentience, extend legal protections to a wider range of wild animals;
• Require assessments of potential animal welfare impacts, not just population numbers or mortality estimations for new policies or developments;
• Specialist courts, correct marking of reports to fiscal to prevent cases being trialled in the wrong courts, acting quicker and not letting time bars elapse.

Further points

Other responses raised points in relation to specific types of animals:

• The legislation doesn't work for large seizures of farmed animals or where the seizure is challenged;
• The issue of NOR cattle as an animal health and welfare issue, as well as a threat to Scotland's livestock industry, needs to be looked at and addressed in Animal Health & Welfare legislation;
• Invertebrates/cephalopods are recognised as sentient and should be included;
• Legislation that helps enforce animal health and welfare legislation, such as Equine ID, can be significantly improved (via digitalisation);
• Registration of all equine premises would also be beneficial, including for biosecurity and disease control.

Animal welfare organisations

Animal welfare organisations focused on a range of issues, including:

• The importance of enforcement, for example in terms of the limited use so far of higher sentences;
• Appropriate uses for Fixed Penalty Notices, for example administrative errors and first-time offences;
• Support for alternative behavioural approaches, to reduce reoffending;
• The need to extend the scope of section 16 of the 2006 Act to include cephalopods and decapod crustaceans as protected animals;
• Support for the proposed introduction of a bill to create a specific offence of dog abduction, and further legislation to protect other species kept as pets;
• Support for the banning of the use of e-collars;
• Wider knowledge developments in terms of understanding and assessing animal welfare since the 2006 Act came in, and the need to update legislation and policies accordingly.

The following sections explore these responses in more detail.

Enforcement and Fixed Penalty Notices

Several responses in this section expressed support for the introduction of fixed penalty notices for offences under the 2006 Act, however Animal Welfare organisations were less supportive, stating that would only be appropriate for administrative errors and first-time offences. One Animal Welfare organisation began by commenting:

Legislation is only as good as its enforcement, and we are not aware of any cases where the higher sentences available have been utilised. The Courts must take animal welfare offences on solemn proceedings to be able to make use of the increased sentencing to its maximum extent to act as a deterrent to help stop animal abuse. It may also reduce pressure on enforcement agencies and rescue and rehoming centres.

The Procurator Fiscal and the Courts must take cases of animal welfare seriously. To ensure consistency and punishments appropriate to the crime, the Scottish Government should make a statutory request to the Scottish Sentencing Council to develop sentencing guidelines for animal cruelty offences, in a similar vein to the guidance produced by the Sentencing Council in England. The guidance will help to ensure punishments for animal cruelty offences truly fit the crime and that offenders are sufficiently deterred.

This organisation added that they do not believe that Fixed Penalty Notices should be an enforcement tool ‘for all animal welfare related offences that are considered less serious’:

Whilst [a Fixed Penalty Notice] could be an available tool for administrative errors, such as first-time offences of not keeping microchip details up to date, it is crucial that where an animal's welfare is compromised, prosecution is considered as the most appropriate punishment. This includes effective deterrents from future incidents, such as disqualification which would be imposed at prosecution.

Lastly, this organisation expressed its support for alternative interventions to ‘change attitudes and behaviours towards animals among those who have committed an animal welfare offence’, to reduce reoffending.

A second Animal Welfare organisation expressed their support for the provisions of the 2020 Act, but felt they were not ‘sufficient to protect animal welfare as many harms to animals continue to be legal, for example, the confinement of sows in farrowing crates’. They felt that ‘enforcement of existing legislation is not always sufficient to uphold these legal protections’:

This is particularly the case where local authorities are responsible for enforcement, but lack of resources and expertise makes that impossible.

Inclusion of cephalopods and decapod crustaceans

This Animal Welfare organisation has also ‘advocated for amendments that would extend the scope of section 16 of the Animal Health and Welfare (Scotland) Act 2006 to include cephalopods and decapod crustaceans as protected animals’ based on scientific evidence which ‘strongly suggests that these animals are sentient’:

This was recognised by the UK government and these animals were included in the definition of animal in the Animal Welfare (Sentience) Act 2022, strengthening the case for their inclusion in the 2006 Act.

The response referenced a scientific review of the evidence for sentience in cephalopods and decapods which has since been carried out, and that in its response, the Scottish Animal Welfare Commission concluded that ‘these animals should be recognised as sentient and recommend[ed] policy changes to protect them accordingly. We therefore urge the Scottish Government to take the necessary steps to make those changes without delay, as it committed to do’.

Proposed bill to create a specific offence of dog abduction

This organisation then referenced relevant clauses in the 2020 Act review requirement^[13] to express their support for the proposed introduction of a Member’s Bill to create a specific offence of dog abduction, and stated that the Scottish Government should use this bill ‘a blueprint to bring forward similar legislation to protect other species kept as pets’.

They also noted that the Scottish Animal Welfare Commission has ‘recommended that the use of e-collars be banned’, and urged the Scottish Government to follow this recommendation, alongside any further recommendations the SAWC may make following their current review of other types of aversive training collars.

Lastly, and more broadly, the organisation noted a ‘deepening of knowledge of how best to understand and assess animal welfare since the 2006 Act came in’:

That Act is based upon the Five Freedoms model, which is now outdated. The Five Domains is considered by many to be [one] of the best currently available and policymakers should remain cognisant of that and seek opportunities to update legislation and policies accordingly.

Review methods

Finally, one Legal organisation expressed their support for this review, but was concerned that the results of this survey will be largely subjective, and there is therefore a need to combine this data with other types of evidence:

We trust that it is intended that other elements of the review will include a transparent and objective assessment of the Act's measures based on relevant information made available by the Crown Office and the Scottish Courts and Tribunal Service. Stakeholder concerns about the Act are more about implementation than the legislation itself and the only way to allay or verify these concerns is by comparing disposals since 2020 with those in preceding years. In compiling this information, it would be necessary to identify which sections of the 2006 Act form the basis for charges, so that animal health and animal welfare cases are distinguished.

Five responses in this section stated that they had no further comments to provide.