Section 6 Times of day when wild deer can be killed lawfully
1 As noted in the previous Section, a basic public interest requirement is that there should be adequate statutory provisions in place to ensure that the killing of wild deer is carried out to appropriately high standards of animal welfare and public safety in all circumstances.
2 The previous Section reviewed the times of year when wild deer in Scotland can be killed lawfully under the current provisions of the Deer (Scotland) Act 1996 and related legislation. This Section reviews the times of day when wild deer can be killed lawfully under the legislation.
6.1 Night Shooting Legislation
3 In the Deer (Scotland) Act 1959, it was an offence to shoot deer at night under s.23(1) and this remains the case under s.18(1) of the 1996 Act, with ‘night’ defined as being “between the expiration of the first hour after sunset and the commencement of the last hour before sunrise”. While an exemption to this offence has always applied for the prevention of suffering by a deer, there have also always been other specific exemptions in the legislation that allowed deer to be shot at night.
4 This scope in the 1959 Act was initially through the exemption in s.33(4) which allowed an occupier of agricultural land or enclosed woodland to kill or take wild deer at night on enclosed land. While an occupier could not authorise another person to carry out the night shooting, the exemption covered any species of deer found on the land and was not conditional on the risk of damage by the deer.
5 The Deer (Amendment) (Scotland) Act 1982 then amended the 1959 Act by substituting a replacement s.33(4) that restricted the rights of occupiers of agricultural land or enclosed woodland to killing red and sika deer, and also required that any night shooting was necessary to prevent serious damage to crops, pasture or trees by the deer.
6 While s.33(4) still related to the occupier in person, the 1982 Act also added a new s.33(4A) that enabled the Red Deer Commission (RDC) to authorise a person nominated by the occupier to carry out the night shooting subject to three conditions. These were that the shooting was necessary to prevent damage to agriculture or woodlands, that no other method of control would be adequate and that the nominated person was considered “fit and competent” to carry out the control.
7 When the 1959 Act was replaced by the 1996 Act, occupiers lost the right to carry out night shooting in person without authorisation. Under s.18(2), all night shooting, whether by an occupier or a person nominated by them, required to be authorised by the Deer Commission Scotland (DCS) on the basis of the same three conditions as under the previous s.33(4A). Section 18(2) also covered all species of deer and woodlands rather than just enclosed woodlands.
8 Since the 1996 Act came into force, there has only been one change to s.18(2) other than the replacement of the DCS by Scottish Natural Heritage (SNH) in 2010. The Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’) amended s.18(2) so
that night shooting could be authorised “in the interests of public safety” in addition to agricultural and forestry interests.
6.2 Extent of Night Shooting
9 When authorisations for night shooting were first introduced from 1982/83, the great majority were to protect forestry interests in comparison to out of season authorisations that were predominantly to protect agriculture. In the first year, there were 24 authorisations with 363 deer shot under them. The numbers of authorisations and deer killed gradually increased, with a particular increase from 1993/94. In the RDC’s last full year before it was replaced under the 1996 Act, 174 authorisations were issued for night shooting and 1,659 deer shot under them.
10 During those first 13 years of night shooting authorisations from 1982/83 to 1995/96, while no fallow were reported as killed, the numbers of the other three species killed all increased. Initially, red deer were the most common species shot, before roe deer became the most common, accounting for c.50% of the cull. The numbers of sika remained at a comparatively low level. In 1995/96, the composition of the 1,659 night shooting cull was 46% roe, 39% red and 15% sika.
11 Over the following 20 years, while there continued to be an upward trend in the number of authorisations issued, there was a more marked increase in the cull levels, including fallow for the first time from 1997/98. The night shooting cull of 15,594 in 2015/16 was 10
Source: SNH Information Response 25
times that of 20 years earlier in 1995/96, although the composition of the cull remained similar at 48% roe, 36% red, 14% sika and 2% fallow (Figure 18). The totals also reflect the varying significance of night shooting in controlling the different species. In 2015/16,
36% of the total cull of sika was killed by night shooting, 19% of the roe cull, 9% of the red cull and 5% of the fallow cull.
12 Throughout the period, authorisations for night shooting have been predominantly to protect forestry interests and have included multiple licences issued to Forestry and Land Scotland’s (FLS) predecessor Forest Enterprise Scotland (FES) each year, as it submitted a separate application for each district where it needed to carry out night shooting. In 2016, SNH’s Authorisations Review Panel reviewed the information supplied by FES with its applications and highlighted its high quality and the detailed nature in their report. The Panel also concluded that FES had a clear need in managing the National Forest Estate to make use of night shooting authorisations as a routine means of preventing damage. This continuing need can be considered to apply to forestry management in Scotland more generally.
13 The Authorisations Panel also considered SNH’s night shooting authorisation process and proposed some changes for greater transparency and improved efficiency. The Panel also considered the fact that, while the conditions attached to SNH authorisations for night shooting require those carrying it out to be accompanied by a ‘trained dog’ to follow up a wounded deer, there are no agreed standards over what is meant by ‘trained’.
14 SNH has followed up this lack of a standard through discussions with key parties and is revising the Wild Deer Best Practice (WDBP) guidance on the use of dogs. FLS has also developed a list of eight standards that a FLS wildlife ranger’s dog must meet to be ‘fit for purpose’, with the standards being very similar to points made in SNH’s draft WDBP guidance. FLS’s aim is that all rangers’ dogs will meet these standards by 2022.
15 The Group considers that SNH should be actively promoting the standards of dog training set by FLS and explained more fully in the guidance, and starting to require more information from those applying for night shooting authorisations about the standard of ‘trained dog’ that the applicant will be using.
16 However, the Group also agrees with the Authorisations Panel’s conclusion that Scotland should be moving towards adopting the more formal dog training standards already used in many other European countries. The Group considers that SNH should be adopting that as an aim for deer management in Scotland.
6.3 Current Position
17 The Group considers, like the Authorisations Review Panel, that night shooting is a legitimate and helpful method of enabling land owners and occupiers to protect their interests from damage by wild deer where those interests are also in the public interest. The need for night shooting to be authorised ensures that it is an appropriate method in the circumstances, that it will be carried out by a suitably experienced hunter and that the locations of night shooting are known by SNH and Police Scotland.
18 Night shooting is a significant component of the annual cull of deer in Scotland each year, contributing around 15% of the total cull recorded by cull returns. The Group has recommended earlier in Section 4.4 that there would be benefits in removing the historic prohibition against the use of night sights. The Group also considers that there are four aspects of s.18(2) that should be improved as discussed below.
6.3.1 Owners and Occupiers
19 SNH authorises owners and occupiers or persons nominated by them to carry out night shooting under s.18(2) of the 1996 Act and out of season shooting under s.5(6). There is, however, a curious distinction between the wording in the two sub-sections.
20 Both paragraphs start in similar terms, stating that the authorisation is notwithstanding anything in an agreement between an occupier of agricultural land or of woodland and the owner of the land, but subject to s.37 (the requirement that the authorised person is fit and competent). However, while s.5(6) then states that “SNH may authorise the owner or the occupier”, in s.18(2) it is only stated that “SNH may authorise such an occupier”.
21 The fact that there is no reference to ‘an owner’ in s.18(2), when SNH and the DCS before them have used s.18(2) to authorise both owners and occupiers, is an illustration of the arcane anomalies that occur in the 1996 Act because of the long legislative history of some of its provisions.
22 The origins of the fact that s.18(2) only refers to an occupier can be considered to date back to the deer control rights given to occupiers under the Agriculture (Scotland) Act 1948 and the subsequent evolution of those rights in the 1959 Act. Under that Act, occupiers had the right to carry out night shooting in person and, when the Act was amended in 1982, the RDC was able to authorise a person nominated by the occupier. Subsequently, when the 1996 Act incorporated the requirement that all night shooting should be authorised, “it appears that in drafting the ‘96 legislation the wording from the 1982 Amendment was used: simply lifted”. Hence, there is only reference to an occupier.
23 While SNH interprets s.18(2) to cover owners as well as occupiers, this would not be clear to a land owner and others looking at the law to see the position over night shooting. This unnecessary lack of clarity in the law has also been compounded by the fact that the wording in the General Authorisations issued by SNH for out of season shooting since 2012 also only refers to occupiers rather than owners and occupiers, because it “has followed exactly the same pedigree” in terms of the evolution of the rights of the occupiers of agricultural land and enclosed woodland to shoot deer out of season.
24 While General Authorisations have been considered above, the Group considers that the wording in s.18(2) should be amended so that “SNH may authorise the owner or the occupier” as in s.5(6), with the consequential amendment to refer to ‘such an owner or
occupier’ later in the text. This should be done both for legal correctness in conveying the intent of the provision and for clarity for those affected by the law.
6.3.2 Types of Land
25 A second legacy of the legislative history of s.18(2) is that SNH can only authorise night shooting on agricultural land or woodland. In s.5(6) for out of season shooting, authorisation can be issued to the owner or the occupier “of any land”.
26 The restriction on the types of land in s.18(2) is an historical anomaly and at odds with the concerns that led to public safety being added in 2011 to the interests that can be protected by night shooting. The places where public safety issues can arise that might require night shooting include locations that are neither agricultural land nor woodland.
|Season||Fit and competent controllers|
Source: SNH Information Response 5
27 The Group therefore considers that the current wording in s.18(2) should be amended so that “SNH may authorise the owner or the occupier of any land” as in s.5(6), and the current wording in the sub-section “on such land or woodland” should be replaced with ‘on that land’.
6.3.3 Public Interests
28 Under s.18(2), night shooting can only be authorised to protect public interests involving agriculture, forestry and public safety. The difficulties that can arise from a restricted list of interests that can be protected by a power in the Act is illustrated by the history of s.18(2).
29 The protection of public safety was first introduced into Scotland’s deer legislation by the 1996 Act, which added it to the interests that can be protected under SNH’s control powers (ss.7, 8 and 10) and for which out of season shooting can be authorised in s.5(6). However, it was not added as an interest for which night shooting could be authorised.
30 Therefore, prior to the addition of public safety to s.18(2) by the WANE(S) Act in 2011, a convoluted approach needed to be used by the DCS and SNH when public safety issues arose that needed to be addressed by night shooting. The DCS had to use its s.10 ‘Emergency Measures’ powers which included the interests of public safety, combined with the provisions in s.14 ‘Limitation to Criminal Liability’ under which SNH’s staff and contractors were able to carry out night shooting as part of implementing s.10 measures.
31 The Group considers that there is no public interest in still having such a restricted list of interests that can be protected by night shooting. The Group considers that there should be scope to protect any public interests by night shooting if the need arises, without the need for convoluted procedures until a legislative opportunity eventually arises to amend s.18(2) to include an additional interest. At present, for example, SNH can authorise an owner or occupier to shoot wild deer out of season to protect natural heritage interests, while night shooting cannot be used to protect the natural heritage.
32 While the Group considers that natural heritage interests should be added to s.18(2), there are other interests that should be considered. The protection of deer welfare, for example, is covered under SNH’s control powers. However, as discussed earlier in this report, the Group considers that an inclusive rather than exclusive approach should be taken to defining the public interests that can be protected by using the phrase “public interests of a social, economic or environmental nature”, as currently used in ss.6 and 7 of the 1996 Act.
33 The Group considers that an owner or occupier should be able to apply for a night shooting authorisation to protect an interest on their land from damage by deer, and that SNH should have the scope to decide if protecting that interest (e.g. a cultural heritage feature) is in the public interest and whether night shooting is an appropriate means to achieve that.
6.3.4 No Other Means
34 While s.18(2)(a) identifies the interests that can be protected by night shooting, s.18(2)(b) then requires that “no other means of control which might reasonably be adopted in the circumstances would be adequate”.
35 This last resort qualification might be considered a legacy of the traditional antipathy to night shooting in some quarters, including amongst peers in the House of Lords during the passage of Scottish deer legislation through Westminster, including the Deer (Firearms etc.) (Scotland) Order 1985 and the Deer (Amendment) (Scotland) Act 1996.
36 That antipathy is often linked with a longstanding concern that night shooting can lead to increases in poaching; a view that was expressed to the Authorisations Review Panel and has deep historical roots (e.g. the Night Poaching Act 1828). However, the Panel concluded that the current arrangements in place for authorising night shooting are adequate to address that concern and other concerns that night shooting present increased risk to public safety and deer welfare.
37 The Group considers that, rather than the current last resort phrase in s.18(2)(b), the question that SNH should be able to consider is whether night shooting is the most appropriate means of control in the circumstances. The Group therefore considers that the current s.18(2)(b) should be replaced by: ‘is the most appropriate means of control in the circumstances’.
38 The Working Group recommends that section 18(2) of the Deer (Scotland) Act 1996 should be amended to refer to both owners and occupiers, to be applicable to any land and to cover public interests of a social, economic and environmental nature.
1 s.33(1) of the 1959 Act and s.25 of the 1996 Act.
2 The rights of occupiers to kill deer under the Agriculture (Scotland) Act 1948 specifically excluded shooting deer at night in s.43(2) of that Act.
3 Callander, R. and MacKenzie, N. (1991), The Management of Wild Red Deer in Scotland. Rural Forum, p.20.
4 Attributed by the RDC to the growth of forestry and the particularly harsh winter that year increasing the colonisation of woodlands by open range red deer (RDC Annual Report, 1993/94).
5 DCS Annual Report, 1996/97.
6 DCS Annual Report, 1996/97.
7 DCS Annual Report, 1997/98. The average number of deer culled per licence in 1995/96 was 10, while in 2015/16 it was 53.
8 The number of FES authorisations in the three years 2013/14 to 2015/16 were 16, 12 and 10 respectively (correspondence between DWG and SNH 28 June 2018).
9 Deer Panel – Review of Authorisations (2016). Report to Scottish Natural Heritage, September 2016, p.15.
10 Deer Panel (2016) Op cit, p.13.
11 The Deer Panel also considered that the evidence available suggested that night shooting was a more effective method of control than daytime stalking (p.13). This might be considered to include that night shooting is likely to give more opportunities to shoot more than one deer in a single stalk.
12 Deer Panel (2016) Op cit, Recommendation 9.
13 SNH provided DWG with a copy of its current draft revised guidance, 29 August 2018.
14 FLS correspondence with DWG, 31 May 2019.
15 Deer Panel (2016) Op cit, p.16.
16 For example, in case of reports of suspicious activity arising from the use of lamps, SNH informs Police Scotland of night shooting authorisations.
18 SNH Information Response 35.
19 SNH Information Response 35.
20 SNH Information Response 35.
21 See Section 15.
22 SNH Information Response 11.
23 Deer Panel (2016) Op cit, p.15 and Callander and MacKenzie (1991) Op cit, p.53.