Section 7 How and when wild deer can be taken lawfully
7.1 Legislative Background
1 Deer hunting rights have always included the right to kill or capture wild deer. This is now represented in the Deer (Scotland) Act 1996 by references to “to kill or take” (and different tenses of the phrase). However, there was initially a lack of clarity in Scotland’s deer legislation over the use of ‘take’ and ‘taken’.
2 In the Agriculture (Scotland) Act 1948, s.43(1) gave the occupiers of agricultural holdings and enclosed woodland the right “to kill and take” deer, with the “and take” referring to taking the carcase of the deer killed. In the Deer (Scotland) Act 1959, the occupiers’ right in s.33(3) became “to take or kill” deer, with the “to take” referring to the live capture of deer.
3 The phrase “to take or kill” was also included in some other sections of the 1959 Act, including s.23 ‘Unlawful taking or killing of deer’ which included in s.23(5) that nothing in that section prohibited a person with the right to take deer on any land “from taking a deer alive on that land in any manner which does not cause it unnecessary suffering”.
4 However, there was also ambiguity related to the use of ‘take’ in the 1959 Act. In particular s.22 ‘Prohibition of poaching’ which, while it referred to “takes or wilfully kills” also included the phrase “taking any deer lawfully killed”. Subsequently, in a case involving poaching that went to Scotland’s highest criminal court in 1978, the High Court of Justiciary ruled that ‘take’ in relation to deer means ‘take alive’. As a result of this judgment, the Deer (Amendment) (Scotland) Act 1982 amended the existing wording in s.22 and added a new s.22(2) to make clear the distinction between the two offences of taking or killing a deer without authority and removing a deer carcase without authority.
5 Other ambiguities over the use of ‘take’ and ‘taking’ remained in the 1959 Act and came to light during the consolidation process to create the Deer (Scotland) Act 1996. This resulted in changes to the Deer (Amendment) (Scotland) Bill 1996 to “standardise the language across the Act” to refer to rights to “take or kill” and to add ‘take’ to the ‘Interpretation’ section. As a result, s.45(1) of the 1996 Act states ‘“take”, in relation to deer, means take alive’.
6 The 1996 Act also included a provision to succeed s.23(5) of the 1959 Act. In s.41 ‘Savings for certain rights’, subsection (2) exempts from the restrictions of ss.18(1), 19(1) and 20(1)(a) the taking of deer “in any manner which does not cause it unnecessary suffering”. This means, respectively, that deer can be taken at night, that they can be driven using vehicles for the purpose of taking them, and that a firearm or “missile” can be discharged at deer from a moving vehicle subject to no “unnecessary suffering”. Live capture is, however, subject to the close seasons for deer.
7 An additional provision relating to the taking of deer was also included in the 1996 Act, as a result of public safety being included in the interests that could be protected under the Act. In s.10 ‘Emergency Measures’, s.10(5) enables deer to be taken and removed where “the killing of the deer would itself constitute a danger to public safety”.
8 None of the above provisions relating directly to the ‘taking’ of deer have been amended since the 1996 Act was passed.
7.2 Use of Live Capture
9 There was a large increase in the use of live capture in Scotland from the 1970s to obtain red deer breeding stock for deer farms. This appears to have peaked in the 1980s and then declined during the 1990s due to both the contraction in deer farming and the improved availability of farm-bred stock. It is not known how many of the 18,500 farmed red deer in Scotland by the start of the 1990s might have derived directly from the wild, but it is thought that over 1,000 a year were being caught during the main period of live catching.
10 The lack of statistics available on the extent of live capture before and after the 1996 Act reflects the unregulated nature of live capture under the deer legislation. The returns that can be required from owners and occupiers under s.40 of the 1996 Act cover wild deer that have been both ‘taken or killed’. However, neither the current cull return form nor apparently any previous versions have included a distinction between those killed or taken in the numbers of deer reported on the forms.
11 There has long been recognition that both the capturing of wild deer and their management after capture can result in serious welfare concerns and there were a number of issues during the 1980s and 1990s. As a result, the British Deer Society held a conference in 1989 on the ‘Live capture of Wild Hinds in Scotland’ and the Nature Conservancy Council published ‘The capture and handling of deer’ by Rudge in 1995. Issues over the shooting of deer in ‘corrals’ or enclosed areas post-capture also resulted in the Deer Commission for Scotland (DCS) producing ‘Guidelines for Shooting Deer in Enclosures’ in 1999.
12 The most common form of live capture appears to have been enticing wild deer into enclosed areas, whether to provide deer for farm stock or as a method of controlling deer numbers. However, other methods have been used, including nets, for example, for research purposes involving both red and roe deer. The use of dart guns to tranquilise deer is another method of live capture or else used post-capture, though there are limits to the effectiveness of dart guns and there can be significant welfare issues relating to their use. Animals treated with Immobilon or similar drugs are not allowed to enter the human food chain.
13 The use of dart guns in England requires a Home Office licence to establish competency. In Scotland, however, there has been no requirement for this since devolution and the only requirement is to have an appropriate firearms certificate. A Home Office licence is still required in Scotland, however, for animal research involving wild deer, such as tagging and fitting collars to red deer on Rum. Scottish Natural Heritage (SNH) estimates that there are less than 10 other cases a year of the use of dart guns on wild deer in Scotland, for example, to capture young stags to send to deer parks.
14 The live capture of wild deer for deer farming appears to have been very limited since the beginning of the 2000s and that continues to be the case. Other instances of live capture each year also appear relatively limited. SNH does not monitor the extent of live capture, but does not consider “the practice to be widespread”. However, live capture does occur in deer parks and other areas of enclosed land where the deer are still considered to be wild deer, as discussed in Section 12 of this Report. The Group considers that, while the number of deer involved in each case may be relatively few, live capture occurs more than is generally recognised.
15 There have also continued to be concerns over the animal welfare issues involved in any form of live capture, as well as the welfare and disease implications of any translocation of deer after capture. In 2013, the DEFRA Farm Animal Welfare Committee reported that SNH was preparing Best Practice guidance for the capture and relocation of wild deer. The Committee recommended that all live capture in Scotland should be licensed by SNH and that there should be a moratorium on live capture until the licensing arrangements and guidelines were in place.
16 SNH has not, however, produced Best Practice guidance on the capture and relocation of wild deer. SNH also does not have a position paper on the topic. SNH referred the Group instead to guidance produced by the British Deer Farming Association. However, the Association, which was established in the late 1970s, is now the British Deer Farms and Parks Association (BDFPA) and does not have guidelines on live capture.
7.3 Current Arrangements
17 The live capture of wild deer is widely recognised as a high risk event for the welfare of the deer involved, yet there is a lack of official guidance from SNH on the topic. Carrying out live capture is also unregulated other than if a person wants to undertake it during a close season.
18 The only safeguard in s.41(2) of the 1996 Act in permitting any form of live capture, is that it should not cause the deer “unnecessary suffering”. What ‘unnecessary’ means, however, is unclear. Does it mean that any suffering that a person considers necessary as part of carrying out a live capture is acceptable?
19 The lack of attention to the welfare of deer during live capture seems at odds with the concern for deer welfare in other provisions in the 1996 Act, for example, those dealing with the firearms and ammunition to be used in killing deer or the sweeping exemptions in s.25 to enable a deer to be killed to end suffering.
20 The Group agrees with the recommendation of the Farm Animal Welfare Committee cited above that, while live capture can be a legitimate activity for a number of purposes, all live capture of wild deer in Scotland by any means should require to be authorised by SNH.
21 Live capture involves the transition of the deer from being wild deer under the 1996 Act to being captive deer under the Animal Health and Welfare (Scotland) Act 2006. However, the act of capturing or taking the deer is clearly carried out under the 1996 Act. Requiring this to be authorised by SNH would allow the method of the live capture, the nature of the deer it is intended to catch and the plans for carrying it out to be assessed on welfare and safety grounds. Authorisation would also recognise that past experience shows that live capture can be a sensitive public issue.
22 In assessing any live capture application for authorisation, SNH would also need to know the plan for the deer once captured as part of weighing the purpose against the potential welfare costs of taking the deer. For example, are some or all of the deer to be shot once captured, are they going to be retained in the enclosed area used to capture them or are they going to be move to another location? These considerations should also involve SNH consulting the Scottish Government Animal Welfare Branch with its responsibilities for the Animal Health and Welfare (Scotland) Act 2006.
23 The Group’s view is the requirement for authorisation would bring a necessary transparency and accountability to the live capture of wild deer in Scotland. Authorisation would ensure appropriate welfare standards in how the deer are taken, with the point of capture defining the boundary between the welfare considerations under the 1996 Act and those under the 2006 Act. Live capture without authorisation would become an offence.
24 It is unclear how many applications there might be a year for live capture authorisation, but it is anticipated that there could be relatively few. However, the potential frequency of use should not determine whether authorisation should be required or not. The fact that there have not been any applications for many years for authorisation under s.19(2) (driving deer with vehicles with the intention of killing them), does not mean the activity should no longer require authorisation.
25 The Group considers that s.41(2) of the 1996 Act should be amended to require authorisation for the taking or live capture of wild deer. The Group considers that the legislation should also require SNH to produce a code of practice for the live capture of wild deer, as it is already required to do in s.37(5) for night shooting under s.18 and for driving deer with vehicles under s.19.
26 The Working Group recommends, firstly, that section 41(2) of the Deer (Scotland) Act 1996 should be amended or replaced so that the taking of wild deer requires to be authorised by Scottish Natural Heritage and secondly, that section 37(5) should be amended at the same time to require Scottish Natural Heritage to produce a code of practice for the taking or live capture of wild deer.
1 Miln v Maher, 1979 Justiciary Cases, p.58 (in ‘Deer (Amendment) (Scotland) Bill - Notes on Clauses’, House of Commons, 1996).
2 Hansard, House of Lords, 21 March 1996, Scottish Office Minister, the Earl of Lindsay.
3 See Section 12.
4 J. Fletcher, pers. comm. with DWG.
5 Staines, B (2000). Wild Deer: issues concerned with deer welfare and public safety. Deer Commission for Scotland.
6 See Staines (2000) Op cit and Green, P. (n.d), Can contraception control deer populations in the UK? The Deer Initiative website.
7 Staines (2000) Op cit and SNH email to DWG, 28 August 2018.
8 SNH (2018) Op cit.
9 SNH email to DWG, 27 August 2018. Dart guns are, however, routinely used on deer farms to de-antler stags.
10 SNH Information Response 34.
11 Farm Animal Welfare Committee (2013). Opinion on the Welfare of Farmed and Park Deer.
12 SNH Information Response 34.
13 Based on examination of the website of the BDFPA and direct contact between BDFPA and DWG.
14 The boundary between enclosing deer within an area and capturing deer within an enclosed area is discussed in Section 12.
15 It is anticipated that an expansion in deer farming is unlikely to lead to increased live capture. See Section 11.