Use of Fixed Penalty Notices for wildlife offences in Scotland: consultation analysis

Analysis of responses

Question 1

Do you agree that the introduction of proportionate fixed penalty notices help with the enforcement of wildlife offences?

• Nearly all (71.4%) respondents agreed.
• Number of Responses to this Question – 7 (100%)

Option	Total Responses	Percentage of All
Yes	5	71.4%
No	2	28.6%
Not Answered	0	0

Those that agreed

The key themes of those who answered positively to the proposal, were; it was believed that they could provide a rapid response to, prevent and reduce low level wildlife crime. Respondents added that they should only be used for technical offences and should be used as a part of a wider enforcement strategy.

“We believe there is potential for such notices to permit a rapid and proportionate response to less serious wildlife crime offences if such a system is adequately resourced.” (SLE)

Those that disagreed

Of the two responses who disagreed with the proposal the main concern was that the use of FPNs for wildlife offences would not act as an effective deterrent.

Question 2

Do you agree that FPNs would provide a useful and effective alternative to prosecution for wildlife offences which carry a maximum penalty of 6 months imprisonment? For example publishing an advert to sell a live wild bird (Section 6 of the Wildlife and Countryside Act 1981) or specified licensing infringements under section 17 of the Wildlife and Countryside Act).

• 42.9% of respondents agreed.
• Number of Responses to this Question – 4 (57.1%)

Option	All Responses	Percentage of All
Yes	3	42.9%
No	1	14.3%
Not answered	3	42.9%

Those that agreed

The key themes of those who answered positively to the proposal, were; that the suitability of FPNs would depend on the level of the fine and whether this is high enough to be a deterrent against future breaches. Several respondents commented that FPNs would only be appropriate for first-time minor or technical offences. All who responded positively to this question stated that FPNs should not be used where an animal has suffered.

Those that disagreed

The main concern of the respondent not in favour of the proposals was that the evidence of an offence should be fully tested in court before imposing a penalty.

“Due to the technical nature in law and practice of many potential wildlife offences, the evidence should be tested fully in court.” (SACS)

Question 3

Please provide examples of any other existing wildlife offences you feel may be suitable for fixed penalty notices.

• Number of Responses to this Question – 4 (57.1%)

Summary of comments

Of the respondents to answer this question, half stated that FPNs should apply to wildlife offences that are technical/administrative in nature and did not involve the suffering of an animal. Examples given were; a person forgetting to tag a snare, failure to complete or supply accurate records, and failure to comply with all the conditions of a General Licence.

Question 4

Please provide examples of existing wildlife offences you feel would be unsuitable for fixed penalty notices.

• Number of Responses to this Question – 4 (57.1%)

Summary of comments

Again, of those who responded to this question, there was consensus that FPNs should not be used where an animal has suffered. One respondent felt that FPNs were unsuitable for wildlife offences in general, giving several examples; snaring offences, poaching offences and wildlife killing offences, Pearl mussel offences, environmental contamination offences, General Licence and wild bird-related offences.

“The Scottish SPCA would not recommend the use of a FPN where a person is proven to be in possession of any illegal pesticide or poison. FPNs should not be an option for serious or intentional habitat destruction.” (SSPCA)

Question 5

Question 5: If you do not think that FPNs would be a suitable or effective means of enforcement for any wildlife offences please provide your reasons here.

• Number of respondents to this question – 2 (28.6%)

Summary of comments

The majority of respondents did not answer this question. Both responses stated that FPNs may be accepted in cases where there is not enough evidence to prove an offence occurred in court and that the evidence would more fairly be handled and heard in a court of law. It was also put forward that FPNs should only be issued for a first offence and not used as a continual sanction.

“a wildlife crime FPN regime would weaken the narrative that wildlife crime is taken seriously in Scotland” (SACS)

Question 6

A number of different fixed penalty notice regimes exist in Scotland covering a range of offences, for example;

• Marine (Scotland) Act 2010 allows Marine Enforcement Officers to issue FPNs for a variety of sea fisheries or marine conservation offences
• The Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 allows SEPA to issue FPNs for waste crime

Are there any FPN schemes in Scotland you feel are particularly effective and provide a good example of an enforcement regime?

• Number of Responses to this Question – 3 (42.9%)

Summary of comments

Respondents noted the success of the FPNs schemes used for driving, including speeding and failure to insure a vehicle and other traffic offences. The Anti-Social Behaviour etc (Scotland) Act 2004 was also cited, giving police officers the power to issue FPN for a number of offences under licensing and civic government legislation, as well as for common law offences such as breach of the peace and malicious mischief.

“There are advantages to the prosecution system as it reduces the time in court as relatively few will opt into court process to go to trial.

The stress should be on FPNs being available for minor or low-level offending but for any FPN to be issued, there should be adherence to the basic principles of criminal law as to requiring sufficiency of evidence and being in the public interest to prosecute.” (Law Society of Scotland)

Question 7

Do you have any other comments on the use of fixed penalty notices for wildlife offences?

• Number of Responses to this Question – 6 (85.7%)

Summary of comments

Half of the responses to this question expressed a positive view of the proposals, that introduction of fixed penalty notices would provide proportionate and effective responses to a variety of illegal behaviours, that FPNs would increase consistency of enforcement across environmental crime and that FPNs could also help reduce the burden on the court system by providing an alternative disposal of minor offences.

Concerns expressed were that there should be clear guidelines outlining the system to deal with those who either refuse to accept or fail to pay FPNs. Subsequent similar offences by the same person should always be subject to a report to the Procurator Fiscal Service.

One response added that it is important that the law in relation to FPNs is clear, consistent and easily understood, that proportionality is key and it is important that the persons issuing FPNs are competent and trained and are adequately resourced.

“The Regulatory Reform (Scotland) Act 2014 provides SEPA with a wide range of enforcement options. Wider use of these enforcement options should be considered by other regulators (such as SNH) enabling them to operate in a more flexible and proportionate manner to a wide range of breaches of the law.” (Prof Werritty)

Next Steps

The Scottish Government is very grateful to all those who took the time to respond to this consultation. Overall the responses were positive that;

• FPNs are a useful tool when used as part of a wider enforcement strategy.
• FPNs would be appropriate for minor or technical wildlife offences.

Future legislation will take into account the views expressed in the consultation.