Section 8 Occupiers, Authorised and Competent Persons
1 The previous three Sections of the Report have reviewed how and when wild deer can be killed or taken lawfully. This Section considers who can kill wild deer lawfully.
2 The owner of land in Scotland generally holds the deer hunting rights under Scots property law, as discussed in Section 1 of this Report. Therefore, the starting point in considering who can kill wild deer lawfully is that the owner as the holder of that legal right and anyone acting with their permission can shoot deer on that land.
3 Scotland’s deer legislation has, however, also given statutory rights to kill wild deer on an owner’s land in defined circumstances to both those who count as an occupier of an owner’s land and to the public body or ‘deer authority’ responsible for implementing the deer legislation. The first part of this Section reviews the statutory rights of occupiers.
4 The second part of the Section considers the requirement under s.37 of the Deer (Scotland) Act 1996 that anyone authorised by the deer authority to shoot wild deer out of season or at night, or to drive deer with the intention of killing them, needs to be judged as a “fit and competent” person for that purpose by the deer authority. This requirement also applies to any person authorised by the deer authority to carry out deer control under its regulatory powers.
5 The final part of the Section considers the longstanding concern amongst those involved in deer management about the competence of those who shoot wild deer in terms of standards of public safety and deer welfare. This is examined in the context of s.17A of the 1996 Act, which provides scope to require any person shooting a wild deer to be registered as a “person competent to shoot deer”.
8.1 Statutory Rights of Occupiers
6 A central purpose of the Deer (Scotland) Act 1959 was, following the Agriculture (Scotland) Act 1948, to provide the occupiers of agricultural land and enclosed woodland with statutory rights to protect their crops and related interests from damage by red deer, independent of the views of the owner of the land.
7 The inclusive nature of the definition of who constitutes an occupier has remained essentially unchanged since the 1959 Act, and the owner of the land is the occupier of their land if it is not occupied by another person. Owner-occupiers are now much more common than when the 1959 Act was framed. Then, owners were generally seen as estate owners and the occupiers of agricultural land were largely agricultural and crofting tenants, while the main occupier of enclosed woodland was the Forestry Commission operating on land owned by the Secretary of State for Scotland.
8 Owners and occupiers are generally mentioned together in the legislation, as both are covered by Scottish Natural Heritage’s (SNH) powers under the 1996 Act such as those to require information on culls and to control deer numbers. The main section of the Act dealing with occupiers is s.26 ‘Right of occupier in respect of deer causing damage to crops etc. on certain ground’. Two other sections of the Act have provisions specifically related to occupiers that have also been carried forward from the 1959 Act. They are
s.41(1) dealing with an occupier’s right to claim compensation from the land owner for damage by deer, and s.42 requiring an occupier to provide the land owner with information on deer killed by the occupier.
9 The evolution of the rights of occupiers under s.26 to kill deer out of season and at night is described in Sections 5 and 6 of this Report. Occupiers are now in the same position as owners in requiring authorisation from SNH for both of these activities through ss.5(6) and 18(2) respectively. The only remaining difference is that, under s.26(2), occupiers in person and certain persons authorised by the occupier (the owner and the occupier’s or owner’s employees) can shoot deer out of season without being judged ‘fit and competent’ by SNH under s.37. The appropriateness of continuing this final exemption is reviewed later in this Section. The right of the occupiers of agricultural land and enclosed woodland to use shotguns to kill deer was considered earlier in Section 4.
10 However, the key aspects of the statutory rights of occupiers have remained more or less unchanged since 1959, when the rights were set in the very different context of that period and which they still reflect. The rights still only apply on certain types of agricultural land and in enclosed woodland, and to the protection of correspondingly limited interests.
11 The defining limit to occupiers’ rights under s.26(1) is that they can only kill or take deer “where the occupier has reasonable grounds for believing that damage will be caused” by the deer. However, the Group considers that it is no longer in the public interest that occupiers are restricted to protecting the types of agricultural and forestry interests specified in s.26(1)(a) and (b). In terms of public policy and contemporary land use practice, an occupier should be able to protect natural heritage interests and other interests that are in the public interest (for example, for public safety on an adjoining public road). The need for an inclusive approach to these interests was discussed in Section 1 of this Report.
12 The Group also considers that it is no longer in the public interest that the types of occupied land where occupiers have statutory rights are so restricted. An occupier should be able to protect their interests in an unenclosed woodland on land they occupy, not just in a woodland on land that is considered to be enclosed by a stock proof fence. Similarly, the types of land occupied and purposes of occupation where occupiers might reasonably also expect to be able to protect appropriate interests from damage by deer, are now significantly more diverse than before (for example, golf courses, parks and nature reserves).
13 While agricultural and forestry occupiers are still by far the most extensive types of occupiers, the Group considers that s.26 should be amended to cover all occupiers of land, not just some. Similarly, the types of interests that occupiers can protect from damage by killing or taking wild deer should be covered by an inclusive statement of the types of public interests that can be protected. As discussed in Section 1 of this Report, the statement should be “public interests of a social, economic or environmental nature” and shared with the other powers in the Act to prevent damage by deer.
14 The rights of occupiers under s.26 would remain as only fallback rights in situations “where the occupier has reasonable grounds for believing that damage will be caused”. The owner of the land remains liable for controlling wild deer on the occupied land, with occupiers able to claim compensation under s.42(1) for damage caused by deer, subject to s.5 ‘Close Seasons’. This last qualification was added by the 1996 Act to the previous provision in the 1959 Act, to recognise that an owner may not be able to control deer during the close seasons due to the requirement to obtain an authorisation.
15 The final section dealing specifically with occupiers, s.42, requires the occupiers of “agricultural land or enclosed or unenclosed woodland” to provide information on the number, sex and species of deer killed or taken on the land to the owner on request. The reference to unenclosed woodland appears ambiguous, as it is not explicit in s.26 that occupiers have the right to kill deer in unenclosed woodland. However, an owner should have the right to this cull information over all the occupied land where an occupier has the right to kill deer.
16 In considering modernising the provisions specifically related to occupiers in the 1996 Act, as discussed above, it would be helpful to consolidate these provisions in one section for clarity. The current separate position of s.41(1) and s.42 at the end of the Act rather than as sub-sections in s.26, appears to be simply a by-product of the legislative history of the 1959 and 1996 Acts.
17 While the legislation is intended to provide a safeguard for occupiers against damage by deer, the nature of the relationships between owners and occupiers over deer control varies with circumstances. In some situations, an owner may rely on an occupier carrying out the control to protect their interests, while in other situations the control by the owner may mean the occupier does not need to carry out any control. However, in all situations there should be clear and constructive relationships between owners and occupiers, and particularly in situations where both owner and occupier may be shooting deer over the same land.
18 There has been a long history of issues between agricultural occupiers and their landlords over agricultural damage by deer, and deer remain a significant issue on agricultural holdings in some parts of Scotland. The continuing need for improvements in these relations over deer and other sporting activity is reflected in the recent publication by the Scottish Land Commission of a Code of Practice for ‘The Management of Relationships between Agricultural Tenants and the Holder of Sporting Rights’.
19 The Working Group recommends that the Deer (Scotland) Act 1996 should be amended so that the statutory rights of occupiers to prevent damage by wild deer should apply to the occupiers of any type of land and cover public interests of a social, economic and environmental nature.
8.2 Authorised Persons
20 The requirement for a person to be judged ‘competent’ by the deer authority to carry out an
activity authorised by it was first introduced in the 1959 Act. In s.6 ‘Power of Commission to deal with marauding deer’, the Red Deer Commission (RDC) could authorise any person “who in their opinion is competent to do so” to kill the red deer involved. The RDC’s authorisations under s.6 were very largely for out of season shooting as s.6 was the only power (other than a s.7 ‘control scheme’) that could be used to kill red deer out of season on unenclosed land.
21 When the 1959 Act was amended by the Deer (Scotland) (Amendment) Act 1982 to provide for the authorisation of night shooting under s.33(4A)(c), this required “that the person concerned is a fit and competent person to receive such authorisation”. While the RDC applied the ‘fit and competent’ requirement in ss.6 and 33, the terms were never defined accurately. As reported in 1991, “fitness is generally concerned with character (e.g. poaching convictions) and competence with possession of an appropriate firearms licence”. However, in its final Annual Report, the RDC stated that it was satisfied that those authorised were “sufficiently experienced to ensure all welfare and safety aspects are considered”.
22 In the 1996 Act, there continued to be the requirement that a person authorised under s.10 (as the successor to 1959 s.6) should be ‘competent’, while the ‘fit and competent’ requirement was consolidated in s.37 ‘Restrictions on granting certain authorisations’. Section 37(1) required the DCS to be satisfied before granting an authorisation under s.5(6) (out of season), s.18(2) (night shooting) or s.19(2) (driving deer), that “the person concerned is a fit and competent person to receive an authorisation under that provision”. However, while other changes in the 1996 Act required all night shooting to be authorised, owners and occupiers continued to be able to kill deer at any time of year on enclosed agricultural land and enclosed woodland to prevent damage.
23 The Deer Commission for Scotland (DCS), in addition to the standards for authorised shooting and like the RDC before it, also continued to encourage and support the training courses for deer stalkers organised by the British Deer Society (BDS) and several other organisations. In agreement with those other providers, the DCS was “instrumental” in setting up Deer Management Qualification (DMQ) Ltd in 1997 as a not-for-profit company to manage and quality assure a single system of stalking training with Deer Stalking Certificates Levels 1 and 2 (‘DSC1’ and ‘DSC2’). The DCS also sought to clarify the meaning of ‘fit and competent’ by linking assessment of it from its 2002/03 Annual Report, to the Wild Deer Best Practice (WDBP) guides that it had started to develop.
24 In 2004/05, the DCS adopted a different approach to managing the ‘fit and competent’ requirement by starting a register of those they assessed as ‘fit and competent’. This was to enable them to approve an individual as fit and competent for a period rather than always on a site by site basis, so that any person on the register could be approved to carry out an authorisation. Applicants needed to provide evidence of their competence to be on the register and two suitable references were also required, one of whom needed to hold at least DSC1. The DCS reported in 2007/08 that there were then 643 deer controllers on the register and by the DCS’s final full year, 2009/10, the number had risen to 1,018.
8.2.2 Current Position
25 By the time SNH took over, there were two ways in which a person could qualify to be on the fit and competent register. Firstly, a person with a DSC2 would qualify and secondly, a person could apply on the basis of ‘following Best Practice Guidance’. This continues to be the current position. Conditional on reforms to the list of authorised activities, the Group considers that SNH should be moving towards a position where only holders of a revised DSC2 should qualify to be on the register.
26 The number of people on the register has increased over the years since SNH took over. However, there was a change to the DSC1 qualification in 2006 to add a fifth module on game meat hygiene to equate DSC1 with ‘Trained Hunter’ status under EU game meat regulations. This resulted in a recalculation of the number of people on the register to remove those not qualified to the new standard. Figure 19 therefore shows lower totals than in the DCS’s Annual Reports.
27 The numbers on the register have also been affected by changes over the years in the rules used for deciding how long a person stayed on the register, with that now based on the need for a person to renew their inclusion after five years. The number of stalkers on the register has now increased to nearly 2,000, including suitably qualified individuals registered for their own purposes and others who are available to carry out authorised shooting for others to prevent damage.
28 The requirement for those killing deer under authorisation to be assessed as ‘fit and competent’ is to ensure that they have sufficient knowledge and experience for the additional safety and welfare concerns that can arise with the activities involved. While this applies to all night shooting and the driving of deer to shoot them, the requirement does not apply to all out of season shooting.
29 The occupiers of the agricultural land and enclosed woodland in s.26(1) were able to shoot deer of either sex at any time of year on that land until the Wildlife and Natural Environment (Scotland) Act 2011 (‘the WANE(S) Act’). The use of General Authorisations since then means that the occupiers of those lands need authorisation with the fit and competent requirement to shoot females in the restricted period 1st April - 31st August.
30 However, under General Authorisations, occupiers in person and certain categories of people with their permission can still shoot male and female deer during the rest of the close seasons without the need for authorisation. In contrast, the owners and occupiers of other enclosed and unenclosed land continue to require authorisation and a fit and competent shooter during those periods.
31 The Group considers that this distinction in the standards required is a historical legacy of the evolution of Scotland’s deer legislation and that all owners and occupiers should be treated equally in this respect. The Group considers that the remaining exemption of the occupiers of enclosed agricultural land and enclosed woodland in relation to close seasons should be removed. However, as discussed previously in Section 5 of this Report, the Group recommends that this should result from revising the current close seasons for male and female deer in Scotland.
32 The Group has also proposed earlier in Sections 4 and 7 that two other deer management activities should need to be authorised by SNH because of the additional safety and welfare concerns that can be involved - the use of shotguns to kill deer and live capture to take deer. In both these cases, the Group considers that the authorised person carrying them out should have to be judged ‘fit and competent’ by SNH.
33 The Group also notes that, at present, a person authorised by SNH under s.10(4) to carry out s.10 ‘Emergency Measures’ only requires to be judged a ‘competent’ person by SNH, while any person authorised to carry out other measures needs to be judged ‘fit and competent’ under s.37(1). The Group considers that the person authorised under either section needs to meet the same standards of competence. The Group considers that should be achieved by inserting ‘fit and’ before ‘competent’ in s.10(4), with ‘fit’ referring to the suitability of the person’s character to carry out the operation as it has since the term was first introduced in 1982.
34 SNH’s other compulsory power in the 1996 Act to enforce control of deer is s.8 ‘Control schemes’ and, if owners and/or occupiers failed to implement the scheme, SNH is empowered under s.8(8) to carry out the scheme itself. The wording in s.8(8) is nearly identical to that in s.10 ‘Enforcement of control schemes’ in the 1959 Act. However, there is no clarification on whether any culling to be carried out needs to be done by SNH staff or can also be carried out by others authorised by SNH.
35 The Group considers that the position under s.8(8) should be clarified so that SNH can carry out any culling required by authorising either staff or contractors, and that any person authorised should be judged by SNH to be ‘fit and competent’ for the purpose. The Group’s recommendation on this is included in Section 24 of this Report about control schemes.
36 The Working Group recommends, firstly, that section 37(1A) should be repealed so that all out of season shooting authorised by Scottish Natural Heritage requires to be carried out by a person judged fit and competent for that purpose by Scottish Natural Heritage, and secondly, that s.10(4) should be amended so that an authorised person requires to be judged both fit and competent.
37 The Group notes that, if a ‘Register of persons competent to shoot deer’ is established under s.17A of the 1996 Act as discussed below, then references to ‘fit and competent’ in the Act should be replaced by appropriate references to the Register.
8.3 Competent Persons
38 Those directly involved in deer management and others have long been concerned about the standards to which wild deer are shot in terms of public safety and deer welfare. In the 1950s, concerns about poor standards of deer shooting were raised by the Committee on Cruelty to Wild Animals during the discussions leading to the 1959 Act.
39 Those concerns continued and the BDS was already developing a leading role in Scotland in setting standards and organising training events as part of encouraging high standards in the 1980s. However, it was concern over wounding rates, for example, that led the RDC to over-specify the firearms requirements in the Deer (Firearms etc.) (Scotland) Order 1985 to reduce the impact of poor shots on deer welfare.
40 By the 1990s, there were already proposals for the introduction of a compulsory training requirement for those shooting deer, recognising that Scotland was unusual in a European context in not having such a requirement. There was concern over these proposals from sporting interests because of its potential impact on the scope to have inexperienced paying clients to shoot deer. However, there was also wider recognition that the first requirements were to establish an agreed standard of training and then, before any compulsory requirement could be a practical proposition, to build up a sufficient number of people qualified to that standard.
41 During the 1990s, a series of steps were taken in those directions. Firstly, the BDS developed its Woodland Stalking Certificate into a National Stalking Certificate of Competence and then added an advanced level to that qualification. However, given concerns about the nature of the qualification, the BDS and a wide range of other deer interests including the DCS, Forestry Commission and SNH from the public sector, established DMQ Ltd in 1997. The purpose of this not-for-profit company was to implement, manage and quality assure a new standard of certification at a UK level based on National Vocational Qualifications.
42 The new standard consisted of basic and advanced qualifications through DSC1 and DSC2. DSC1 tests knowledge and skills in seven areas: deer biology and ecology; legislation; stalking techniques and taking the shot; deer identification; safety; shooting; and from 2006 as mentioned in paragraph 26 above, large game meat hygiene. DSC2 is then a practice-based qualification designed to test the deer stalking techniques, skills and knowledge acquired at the DSC1 level. These new standards were widely promoted from the late 1990s and have since become the recognised standards for stalker competence in the UK.
43 In 2000, a report on issues concerned with deer welfare and public safety for the DCS highlighted that “many people consider shooting competency and wounding as the major welfare issue concerning deer”. The review reported wounding rates of 2% or higher from studies in the UK and further afield, noting that even a 2% rate is a relatively large number of deer from annual culls of around 100,000 deer. The report called for more research to improve the information available on wounding rates. Subsequently, a study of over 900 wild red deer carcases in Scotland by Urquhart and McKendrick was published in 2003, reported that 14.5% of the carcases had more than one wound tract.,
44 The DCS continued to be concerned about shooting competence and proposed to the Government in 2005 that everyone who shoots deer in Scotland should require to be qualified as ‘fit and competent’. Then, against the background of ongoing increases in the numbers of stalkers holding DSC qualifications, one of the DCS’s main recommendations to Government from its review of deer legislation in 2009 was that it should be made “a requirement on all who shoot deer to demonstrate adequate skills and knowledge in order to protect deer welfare, public safety and food hygiene”.
45 The DCS’s recommendation, shortly before it was replaced by SNH in 2010, was then taken forward through the amendment of the 1996 Act by the WANE(S) Act 2011 to include two new sections: s.17A that provided the option for Scottish Ministers to establish a “register of persons competent to shoot deer” by secondary legislation, and s.17B that required SNH to review “levels of competence among persons who shoot deer in Scotland” if such a register was not established by 1 April 2014.
8.3.2 Review of Competence
46 As no secondary legislation had been brought forward to establish the register of competent persons by the s.17B deadline, SNH initiated a review as required by the section. SNH’s ‘Review of Competence’ was submitted to the Scottish Government at the end of 2016 and the Group was able to review a draft copy. The document is not yet in the public domain.
47 The Review reported on two further studies of wounding rates. One by Cockram et al (2011) that studied different culling methods used to shoot red deer found that between 7-19% of the deer had been shot in the leg or abdomen, and that overall 13% of the deer culled were shot more than once with a median time between shots of seven minutes. The other study by Aebischer et al (2014) studied data from 102 anonymous stalkers and the circumstances of over 2,000 shots at deer. This showed that, while 5% of the shots were misses, 93% of the first shots that hit the target animal resulted in an outright kill, while 82% of the wounded animals were killed with a subsequent shot.
48 SNH’s Review noted the limited number of studies into wounding rates in the UK and abroad, with only one study solely in Scotland. However, SNH concluded that wounding rates in Scotland might be between 6%-17%. While this was seen as comparable to the one European country for which data was available (Denmark), the wounding rate represents a minimum of around 6,000-17,000 deer in Scotland each year with the recorded annual culls of over 100,000 deer.
49 SNH also highlighted from Aebischer et al that those with no qualification or DSC1 had higher wounding rates than those with DSC2, while practising shooting at least once a year also reduced the wounding rates. The earlier Urquhart and McKendrick study had also reported that carcases with more than one wound tract were “more frequent in males and during the rut”, which is a traditional period when more inexperienced shooters are likely to be involved.
50 The Group was surprised by the relative lack of studies on wounding rates in Scotland, as it has been such a longstanding issue of concern. However, there are many variables affecting such studies including, for example, whether they involve red deer on the open hill or smaller deer species in denser cover, or whether they involve more or less experienced stalkers. While there appears to be no estimate of the number of people who might shoot deer in Scotland in any year, the Group considers that there has probably been a significant increase in the number over recent decades due to a number of factors, including the expansion of deer ranges and numbers in more lowland areas.
51 In its Competence Review, SNH described the continued promotion of the DSC qualifications and the wide provision of training in Scotland. The DSC qualifications are managed on a UK basis by DMQ Ltd and the increase in the numbers of DSC1 holders between 2009 and 2015 are shown in Figure 20.
|Year||Annual awards||Total cumulative awards in the UK||Estimated annual DSC1 awards for those domiciled in Scotland||Estimated cumulative DSC1 awards for those domiciled in Scotland||% annual increase|
* It was estimated by DMQ Ltd that approximately 20% of award recipients are domiciled in Scotland at the time of registration.
Source: SNH Draft Review of Competence
Source: Deer Management Qualifications Ltd.
52 In 2018, DMQ Ltd produced maps showing the numbers and distribution of DSC1 and DSC2 holders respectively in the UK per 100 km2. The portion of each map covering Scotland are shown in Figure 21. The maps recorded 5,429 DCS1 holders and 1,832 DSC2 holders as domiciled in Scotland in the squares wholly in Scotland. There are 346 DSC1 holders and 104 DSC2 holders in the squares straddling the boundary with England.
53 The numbers of DSC holders are cumulative, so it is not known how many of the current total of DSC1 and DSC2 holders have died or retired from shooting deer. SNH concluded in its Review, recognising that people from the rest of the UK shoot deer in Scotland and the limited other information available, that it is “difficult to confidently assess what percentage of deer shot in Scotland are shot by stalkers holding DSC1”.
54 SNH also reported that increases in the number of people progressing from DSC1 to obtain DSC2 has been slow. While SNH does not explain why that might be, the Group recognises that many factors might be involved. SNH concludes in the Review that one of the principle areas for development should be to “increase progression rates from DSC1 to DSC2”. The Group has commented earlier in this Section that SNH should be moving faster towards the requirement for all those who carry out activities authorised by it under the 1996 Act, to have the DSC2 qualification.
55 SNH does not cover public safety in its Review of Competence and was not required to under the legislation. The Group considers, however, that the scope of the review required in s.17B(1) should not have been limited to only the effects of levels of competence on deer welfare in paragraph (b). The Group considers that such a review should also have covered the effects of competence on public safety.
56 The use of high-powered rifles to shoot deer has clear implications for public safety. While the Group is not aware of any firearms accidents involving deer hunting and the deer sector appears to have an impressive record in that respect, the indications are that more people are becoming involved in shooting deer. The shooting of deer is also increasing in more complex environments than traditionally, particularly with deer becoming established in peri-urban and urban areas.
57 Public health is also a factor, given the significance of the carcase handling by a hunter for food safety. An important aspect of DSC1 is that it covers meat hygiene, including carcase health in terms of abnormalities or other signs of disease. Holding a DSC1 provides a person with Trained Hunter status under the game meat regulations, with this status required to supply carcases to Approved Game Handling Establishments (AGHEs) and recommended when hunters are supplying venison to other licensed venison dealers and other outlets under the ‘trained hunter’ exemption in the regulations.
58 SNH considers that enforcement of this requirement would act as a driver for hunters to undertake the DSC1 qualification. The Group has discussed earlier the large numbers of deer carcases that appear not to go through AGHEs or other venison dealers before entering the human food chain and the need for appropriate standards of carcase handling by these direct suppliers.
59 The conclusions in the SNH Review of Competence are limited to summarising its findings and include no recommendations to the Government as a result of the review. Seven areas for development are noted. The four actions that relate directly to the competence of shooters are: increase progression rates from DSC1 to DSC2; increase uptake of training within farming and crofting sectors; promote regular shooting practice; enforce requirement to demonstrate ‘Trained Hunter’ status when supplying venison.
60 The other three areas for development related to wider welfare topics and Continuing Professional Development (CPD). There are a range of types of practical deer management training events organised by the BDS, the British Association for Shooting and Conservation, WDBP and others, as well as taught courses such as the ‘Sustainable Deer Management’ postgraduate CPD module at the University of the Highlands and Islands.
61 The provision of practical skills training will continue to be important to standards of deer management and these should be promoted. The Group considers that there is also a particular need to review and develop the training available to deer hunters and land managers on the wider land use context and public interests that can be adversely affected by deer, if there is not adequate management.
8.3.3 Current Position
62 Significant progress has been made over the years in increasing the number of people qualified at DSC1 level. This has been due to the effort of a range of organisations and many individuals. The Group considers that, at this stage, the Scottish Government should be making clear that it is still government policy to work towards all those who shoot deer in Scotland being required to be qualified at DSC1 level.
63 While the case for this continuing direction has traditionally related to deer welfare and wounding rates, the Group considers that the role of DSC1 in giving Trained Hunter status should be seen as a much more significant factor than previously.
64 The Group considers that members of the public who comes across a person out in the countryside to shoot a deer with a high velocity rifle, might reasonably expect that the person will have had at least some basic training to be able to be allowed to do that. At present in Scotland, anyone who can borrow an appropriate rifle and ammunition and get permission to shoot on a piece of ground, can go and start firing at deer there.
65 The Group considers that a clear statement of direction from the Government would, together with enforcement of the Trained Hunter requirement, provide a fresh momentum to the number of people obtaining DSC1 qualification. Also, while public bodies already require stalkers on their land to have DSC qualifications, such a statement would also reinforce the growing trend in the private sector for owners, agents and employers to require those who will shoot deer under leases and other types of shooting contracts and work, to have at least DSC1 as assurance of competence.
66 SNH commented in its Review on the decline in the rate of new DSC1 awards shown in Figure 20 earlier, noting that “to some extent this would be expected as the pool of stalkers possessing DSC1 increases”. They also give the results of a limited survey of some membership organisations involved in deer management, which showed that between 71%-96% of the respondents who shoot deer unsupervised in Scotland possessed DSC1.
67 However, while there has been a positive uptake in the traditional deer management sector, the Group recognises that there is a need to increase the numbers becoming qualified in other sectors. The Group considers that it is in the interests of deer management and of the sector and its reputation, that momentum is maintained to ensure that the uptake of DSC1 continues to spread.
68 The Group considers that the addition of s.17A to the 1996 Act by the WANE(S) Act 2011 reflected the intent to move towards a requirement that all those who shoot deer should have had at least a basic level of training. The Government and deer sector also agreed in 2012 that that level should be DSC1.
69 Now, eight years after s.17A was enacted, no such scheme could be brought into effect for some years yet. The Government would need to consult on proposals, then draw up the secondary legislation and if that was passed, there might potentially be a period of grace of several years before the measure came into effect. This would help avoid any undue constraint on active deer management during the transition to the register being fully operational.
70 At the time of the 1996 Act, progress towards a requirement for basic training was seen in terms of establishing an agreed standard and building up the number of people holding it. Those aims have been progressed successfully and there is now scope to introduce the training requirement. Given the timescale before any ‘Register of persons competent to shoot deer’ could become operational, the Group considers that it would provide a realistic period to ensure appropriately high levels of qualified stalkers by then, given clear direction.
71 While the DSC qualification has the merit of being a UK-wide qualification for people who come to Scotland to shoot deer from the rest of the UK, the introduction of a DSC1 training requirement should also be met by equivalent qualifications from other European countries and further afield.
72 The absence of a requirement in Scotland for some basic training has long been very unusual in a European context, as “the vast majority of European countries” have some formal training requirement to be able to shoot deer. The Group considers that Scotland should be moving decisively towards removing that distinction.
73 The Group also notes that the prompt of s.17B in the Act if s.17A was not taken forward in three years, might be considered to reflect that ambition. That could also appear to be reflected in the fact that there is no requirement in s.17B for another review after another time period, if s.17A has still not been implemented.
74 The Group considers that the Scottish Government should follow up a clear statement of direction towards requiring that everyone shooting deer in Scotland must have at least the basic training of DSC1, by starting to consider the nature of the Order to be taken forward under s.17A.
8.3.4 Section 17A Order
75 The Group considers that s.17A, as it stands, is inappropriately framed for the type of ‘Register of persons competent to shoot deer’ that should be considered for Scotland.
76 The provisions in s.17A are based on the proposals that the DCS started to develop over 15 years ago and which were predicated on a number of interlocking proposals that the Group considers out of date. As reflected by paragraphs (b) and (c) of sub-section 1, the register envisaged by DCS would be restricted to those who had achieved DSC2 and counted as ‘fit and competent’, with everyone else needing to be supervised by a DSC2 holder or have an equivalent foreign qualification.
77 DCS’s decision to base the register on DSC2 was then linked with the DCS’s wider agenda that included, for example, doing away with authorisations for night shooting and driving deer, reducing out of season authorisations and, as reflected in s.17A(1)(d), attaching the requirement to provide cull returns to the hunters rather than land owners and occupiers.
78 The nature of the DCS’s proposals related to the register is reflected in the relative long length and complexity of s.17A. The Group considers, however, that the purpose of the register should be clear and straightforward.
79 In particular, the Group considers that it would be a very unhelpful and complicating mistake to transfer the responsibility for cull returns to hunters. This responsibility should continue to be a requirement on owners and occupiers for their land, as the people who hold the deer hunting rights over that land and who are, as a result, the basic unit of regulation under the 1996 Act and related legislation.
80 The Group considers that the purpose of the register should be to ensure that everyone who shoots deer in Scotland has passed a basic level of training (DSC1), with the register also recording if a person has an advanced level of training (DSC2). This approach would be straightforward to operate. There could be easy links between achieving the qualifications and registration or re-registration to shoot deer in Scotland.
81 While a DSC1 is not a qualification that currently needs to be renewed, re-registration could be required after a period (for example, 10 years) to remove those from the register who no longer shoot deer in Scotland (e.g. having died, retired, moved away, etc.). As DSC2 certificates require to be renewed every five years, a registration at that advanced level would end with the renewal date of the certificate and require to be renewed if the holder wanted. As a DSC2 holder has to have passed DSC1, they could stay on the register at that basic level.
82 The Group considers that the first step towards introducing the “register of persons competent to shoot deer in Scotland” in s.17A(1)(a), is to amend s.17A so that appropriate secondary legislation can be taken forward under that section. The Group therefore outlines below the amendments that it considers should be made in s.17A:
- Paragraph (b) of sub-section (1) should be amended so that it makes provisions intended to:
‘prohibit any person from shooting deer unless the person is:
(i) registered as a person qualified at a basic level of training; or
(ii) registered as a person qualified at an advanced level of training.’
- Paragraph (c) of sub-section 1 should be amended to insert ‘as a person qualified at an advanced level of training’ after ‘registered person’ (recognising that when a register came into effect, references in the Act to ‘fit and competent’ could be replaced by appropriate references to the register).
- Paragraph (d) of sub-section 1 should be repealed.
- In paragraph (a) of sub-section 2, sub-paragraphs (i)-(viii) are straightforward administrative provisions that are required to operate a register, as are the scope for consequential amendments under (xiv) and the flexibility provided by paragraph (b). However, sub-paragraphs (ix)-(xiii) should repealed as legacies of the DCS’s original proposals that are no longer considered appropriate.
- Sub-sections (3), (4) and (5) are straightforward, dealing respectively with consultations prior to secondary legislation, the creation of an offence for contravention of the regulations to be set out in that legislation and an exemption for the prevention of suffering by a deer under s.25. However, sub-sections (6) and (7) should be repealed as legacies of the DCS’s original proposals that are no longer considered appropriate.
83 Progress over recent decades has achieved agreed standards of shooter competence and a positive level of uptake of those standards. The Group considers that the key requirement now is to take the next steps towards establishing the register so that everyone who is shooting deer lawfully in Scotland has passed some basic training.
84 The Working Group recommends that the Scottish Government should make a clear statement of its commitment to establishing a register of persons competent to shoot deer in Scotland under s.17A of the Deer (Scotland) Act 1996, and develop proposals for a register as set out in this Report.
85 The Working Group also recommends that s.17A of the Deer (Scotland) Act 1996 should be amended at an early stage as set out in this Report, to enable appropriate secondary legislation to bring the recommended register into effect.
1 See Section 1.
2 The paragraphs of s.26(1) of the 1996 Act read: “(a) arable land, improved permanent pasture (other than moorland) and land which has been regenerated so as to be able to make a significant contribution to the productivity of a holding which forms part of that agricultural land; or (b) on enclosed woodland”.
3 Many private estates are now not directly managed by the owner due to the use of companies and other legal arrangements by owners for a number of reasons, including to limit the risk of legal liabilities. Thus, some estates that are generally described as the owner of a particularly area of land may be occupiers acting through a lease or other arrangement with the actual owner.
4 It is unclear whether the expression in s.26(1)(a) “land which has been regenerated so as to be able to make a significant contribution to the productivity of a holding” could be construed to include unenclosed woodland.
5 Scottish Land Commission (2018). Code of Practice – The Management of Relationships Between Agricultural Tenants and the Holder of Sporting Rights. Tenant Farming Commissioner, September 2018.
6 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland, p.53.
7 RDC Annual Report, 1995/96, p.10.
8 DCS Annual Report 1998/99, p.17.
9 DCS Annual Report 2004/05, p.28.
10 While the register is not a public document, SNH will provide information to owners and occupiers on controllers available in their area.
11 The categories are given in s.26(2) of the 1996 Act: the owner in person, the occupier’s or owner’s employees and anyone normally resident on the land.
12 SNH might not have the in-house capacity to meet the requirements in some situations.
13 Report of Committee on Cruelty to Wild Animals (HMSO, 1951), in Callander and MacKenzie (1991) Op cit, p.53.
14 See Section 4.
15 Callander and MacKenzie (1991) Op cit, p.53.
16 DSC1 Training Manual (Donington Deer Management, 2006).
17 Donington Deer Management (2006). ‘An explanation of the Deer Stalking Certificate. DSC Level 1 Training Manual.
18 Staines, B (2000). Wild Deer: issues concerned with deer welfare and public safety. Deer Commission for Scotland, p.6.
19 Urquhart, K.A. and McKendrick, I.J. (2003). Survey of permanent wound tracts in the carcases of culled wild deer in Scotland. Veterinary Record, 152 (16), pp.497-501.
20 A second wound track does not necessarily mean that a deer had previously been wounded, as a second ‘make sure’ shot is sometimes taken immediately after a first shot.
21 DCS Chairman letter to the Deputy Minister for Environment and Rural Development, 1 September 2005.
22 DCS Chairman letter and proposals relating to review of deer management legislation, sent to Minister for Environment, 13 January 2009.
23 The Group received repeated assurances from the Scottish Government’s Head of Wildlife Management during its term, that SNH’s Review of Competence was due to be published. However, the document had still not been published by the time the Group was finalising its Report.
24 Cockram, M.S., Shaw, D.J., Milne, E., Bryce, R., McClean, C. and Daniels, M. (2011). Comparison of effects of different methods of culling red deer (Cervus elaphus) by shooting on behaviour and post mortem measurements of blood chemistry, muscle glycogen and carcase characteristics. Animal Welfare, 20(2), pp.211-224.
25 Aebischer, N.J., Wheatley, C.J. and Rose, H.R. (2014). Factors associated with shooting accuracy and wounding rate of four managed wild deer species in the UK, based on anonymous field records from deer stalkers. PLoS ONE, 9(10).
26 Urquhart and McKendrick (2003) Op cit.
27 SNH (2016). Draft Review of Competence, pp.8-9.
28 To try to get an indication of the ‘deer shooting capacity’ in Scotland, the Group asked Police Scotland if it was possible to know from their records how many people held firearms certificates for rifles of a legal calibre to shoot deer and had identified deer shooting as a reason for their rifle. The police explained through a Freedom of Information Request response that too much work would be involved because part of the work would require going through the record of over 4,500 individuals holding a firearms only certification (Police Scotland IM-FOI-2018-1404, 3 July 2018).
29 SNH (2016) Op cit, p.6.
30 For example, the cost and the difficulty of finding opportunities to conduct three stalks with an accredited witness present.
31 SNH (2016) Op cit, p.13.
32 SNH (2016) Op cit.
33 See Section 11.
34 Subject to the wider firearms regime that applies in Britain, in particular the rules in the Firearms Act 1968, section 11A.
35 SNH (2016) Op cit, p.7.
36 SNH (2016) Op cit, p.5.
37 SNH (2016) Op cit, p.3.
38 Putman, R. (2011). A review of the various legal and administrative systems governing management of large herbivores in Europe. In: Putman, R., Apollonio, M. and Andersen, R. (Eds.), Ungulate Management in Europe: Problems and Practices. Cambridge University Press, Cambridge, pp.54-79.
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