Section 12 Wild Deer and Other Deer
1 The primary legislation governing the management of wild deer in Scotland is the Deer (Scotland) Act 1996. While the provisions in the Act refer to ‘deer’ rather than particular species, the species of deer that occur in the wild in Scotland are identified in s.45 ‘Interpretation’, where s.45(1) defines ‘deer’ as red deer (Cervus elaphus), roe deer (Capreolus capreolus), sika deer (Cervus nippon), fallow deer (Dama dama) and any hybrid of those species.
2 While the species of deer that occur in the wild in Scotland are clearly recognised, there is less clarity in some situations over the deer of these species that should be regarded as ‘wild deer’ or considered subject to one of the other main three regulatory frameworks that apply to deer in Scotland. These other categories of deer involve deer managed as farm livestock, zoo animals and other deer kept as private property.
3 This Section considers each of these other categories of deer and then examines the boundaries between wild deer and these categories, because of the potential implications for standards of deer welfare, food safety and the risk of animal diseases.
12.1 Farmed Deer
4 The pioneering research into domesticating wild red deer and their management as farm livestock, conducted at the Rowett Institute and associate Glensaugh Farm in the 1960s and 1970s, resulted in the first commercial deer farm starting in Scotland in 1973. The sector then grew fairly rapidly during the 1970s and 1980s, using the live capture of wild red deer hinds to build up stock on the farms.
5 By 1990, there were around 70 deer farms in Scotland with a total stock of 18,500 farmed red deer. However, by then, the growth of the sector had stalled due to outbreaks of Tuberculosis (TB) in farmed deer, the lack of an established venison market and the lack of agricultural livestock subsidies for farmed deer. During the 1990s, the sector declined substantially and, with it, the need for wild stock due to breeding from the farmed stock and the development of pedigree lines. By the beginning of this century, the number of deer on farms was down to around 6,000.
6 The number of farmed deer in Scotland continued to be fairly stable at around 6,000 until the start of an increase in 2014, so that there were just over 8,000 deer on farms recorded in the 2017 agricultural census (Figure 27). The deer were on 97 holdings spread across the eight agricultural census regions (Figure 28). Current farmed venison production is around 70 tonnes a year.
7 The increase in farmed deer in Scotland over recent years is expected to grow significantly over the next decade. This is due to the positive market for farmed venison, the current eligibility of farmed deer for farm support payments, and farmers’ concerns about the prospects for some other livestock sectors. The aim of the Scottish Government and the deer farming sector is to increase the production of farmed venison from less than 100 tonnes currently to 850 tonnes by 2030, based on increasing the annual harvest from 1,700 to 15,000 animals.
8 The general view appears to be that the expected growth in deer farming will not lead to a significant increase in the live capture of wild red deer, due to the preference for and availability of bred stock. While deer farming in Scotland declined from its early peak and survived at a lower level, deer farming with red deer based on the pioneering Scottish research developed into an international industry. This includes a trade in stock between European countries, including Scotland.
9 Despite the improved performance of deer from bred stock, the Group considers there could still be an increase in the live capture of open hill red deer hinds in the Highlands to start deer farming. The Group is aware of this taking place on some properties where there was the scope to capture deer in enclosures. The Group suspects that the future extent of live capture will depend on increasing competition and prices for bred stock if the sector develops fairly rapidly, and if other livestock sectors are doing poorly. The live capture of wild deer was discussed earlier in Section 7 of this Report.
Source: Scottish Government (2018)
|Agricultural region||Farmed deer|
|Argyll & Bute, Clyde Valley||9||523|
|Dumfries & Galloway||10||869|
|Fife, Lothian and Scottish Borders||9||1,467|
|Highlands & Islands||29||1,646|
Source: Scottish Government RESAS Statistics (Agriculture)
12.1.2 Regulatory Framework
10 At the time of the Deer (Scotland) Act 1959, there were no farmed deer. The Act was therefore amended by the Deer (Amendment) (Scotland) Act 1982 to include a new s.5A with a definition of ‘farmed deer’ to distinguish them from the ‘deer’ in the 1959 Act. A similar definition was then included in the 1996 Deer Act in s.43 ‘Application of Act to farmed deer’.
11 In the 1996 Act, s.43(1)-(3) cover the limited number of provisions in the Act that also apply to farmed deer. The final sub-section then defines ‘farmed deer’:
s.43(4) “In this section, ‘farmed deer’ means deer of any species which are on agricultural land enclosed by a deer-proof barrier and kept on that land by any person as livestock .”
12 In the 1996 Act, s.45 ‘Interpretation’ states that ‘livestock’ has the meaning given by the Agriculture (Miscellaneous Provisions) Act 1968. Section 8 of that Act provides:
(1) In this Part of this Act—
“livestock” means any creature kept for the production of food, wool, skin or fur or for use in the farming of land or for such purpose as the Minister may by order specify.
13 While farmed deer are livestock, they are different from other livestock in that they can be killed either on the farm or at an abattoir. However, as livestock, farmed deer are managed under the same animal health and welfare regulations as other livestock and the same food safety regulations apply to meat production. The deer can only be killed by licensed slaughterer and the killing is also subject to other regulations. The carcases must be processed through red meat Approved Game Handling Establishments (AGHEs) that are licensed and inspected by the UK Food Standards Agency (FSA) through Food Standards Scotland (FSS).
14 Farmed deer are thus subject to a very different regulatory regime than wild deer. They should also be separated behind deer-proof barriers from wild deer. However, there is a continuing history of red deer escapes from deer farms. These deer may not always be re-captured or killed following an escape, and become what can be regarded as ‘feral red deer’ with their mixed genetic breeding.
15 There are longstanding concerns that the escapes can increase the risk of spreading diseases such as TB into wild populations, while also introducing further mixed origin genetic material. The possible transmissions of diseases either way between wild
deer and livestock, including farmed deer, was discussed in Section 10 of this Report. There has also been a particular concern over escapes from deer farms in those parts of Scotland designated as refuges for native stock of wild red deer, as discussed later in Section 17.
16 At present, under current regulations, farmed deer only have to be tagged if they are to be tested for TB or if they are to be transported live from their farm of origin, for example, between deer farms or to an abattoir. The Group considers that this is an anomaly. If farmed deer were required to be tagged, this would enable any escaped deer to be identified and either captured or killed to reduce the risk of disease and genetic introgression.
17 These were the reasons that farmed deer originally had to be tagged. The definition of farmed deer in s.5A of the 1959 Act from 1982 ended “provided that the deer are conspicuously marked to demonstrate that they are so kept”. This requirement was not, however, then included at the end of the definition of farmed deer in s.43 of the 1996 Act when that Act was passed at Westminster. The Group’s understanding is that this omission resulted from influence in England.
18 The Group considers that all farmed deer should require to be tagged for the reasons explained above. This is already regarded as good practice from the time of weaning within the deer farming sector as part of appropriate stock management. However, the sector includes both ‘deer farms’ where the business is fully focused on managing farmed deer, and ‘deer on farms’ where some farmed deer are kept as part of a wider livestock mix or farming business.
19 A growth in the number of farmed deer will include increases in both ‘deer farms’ and farms that have some deer as part of their livestock. Growth is also likely to be widely distributed in Scotland, as reflected in the current distribution shown in Figure 28 above. The growth is also likely to include an increase in farmers managing farmed deer for the first time. The Group considers that the current history of farmed deer escapes is likely to continue and could possibly increase if the sector expands as expected.
20 The Group considers that farmed deer should already require to be clearly marked as such because of the risk of escapes. Increases in the numbers of farmed deer and the locations where deer are farmed strengthen the case for this. The Group considers this could be done straightforwardly by amending the end of the definition of farmed deer in s.43(4) in the 1996 Act, to include wording to the effect of ‘and be clearly marked to show they are kept as such’.
21 The Working Group recommends that section 43 of the Deer (Scotland) Act 1996 should be amended at the end of the definition of farmed deer in s.43(4) to include ‘and be clearly marked to show they are kept as such’.
22 When farmed deer escape, they come under the terms of the Animals (Scotland) Act 1987 that deals with stray livestock. Deer are listed in the Act with other types of livestock, including sheep and cattle, which can cause material damage to property by foraging when stray. The occupier of the land affected can then ‘detain’ or impound the animal or animals involved to prevent further damage. The person responsible for the animals is liable for any damage caused by the animals and if that person does not reclaim them, the stray livestock are treated as lost or abandoned property under the Civic Government (Scotland) Act 1982. This allows the affected occupier of land to report the lost or abandoned property (in this case, the deer) to the police and may (in the event that the property has not been reclaimed within two months) be offered to the occupier or sold.
23 These arrangements for stray livestock are, for example, well-established for dealing with stray sheep. However, in comparison with the other types of livestock covered by the 1987 Act, detaining escaped farmed red deer is likely to be a fairly unrealistic proposition in most circumstances. This is especially the case when the escaped deer have joined up with wild red deer.
24 In most situations, the only way to ‘detain’ escaped farmed red deer will be to shoot them. While this would prevent further damage, the Group considers that shooting the escaped deer is also generally in the public interest due to the risks of disease transmission and genetic mixing as outlined above. However, there is currently a lack of legal clarity over the scope to shoot escaped farmed deer.
25 The Group suspects that, at present, people take a pragmatic approach to dealing with escaped farm deer. These deer no longer conform to the definition of a farmed deer as they are not enclosed behind a deer-proof barrier. A hunter encountering a free-living deer of a species that occurs in the wild in Scotland will shoot the deer and only then happen to notice the tag that identifies the deer as a farmed deer.
26 The Group considers that there should be greater legal clarity through the 1987 Act that an owner or occupier of land can shoot a stray farmed deer on that land to prevent damage, where that deer cannot be readily captured. The Group recognises that some farmed deer can be valuable, but it is the owner of farmed deer who is responsible for ensuring they are kept enclosed by deer-proof barriers.
27 The Group considers that Scottish Natural Heritage (SNH) already has the power through s.10 ‘Emergency measures’ to pursue and kill escaped farmed deer on an owner or occupier’s land where warranted, whether SNH carries this out itself or authorises another person to do it.
28 The Working Group recommends that the Animals (Scotland) Act 1987 should be amended to establish clearly that an owner or occupier of land can shoot a stray farmed deer on that land to prevent damage by the deer, where that is the only reasonable practical means in the circumstances to detain the stray deer under the Act.
12.2 Deer in Zoos
29 A zoo in Scotland is defined under the Zoo Licensing Act 1981 as “an establishment where wild animals… are kept for exhibition” and “to which members of the public have access, with or without charge for admission, seven or more days in any period of twelve consecutive months”. ‘Wild animals’ means animals not normally domesticated in Great Britain. Establishments that conform to the definition of zoo are subject to licensing and inspection under the 1981 Act and the Zoo Licensing Act 1981 (Amendment) (Scotland) Regulations 2003.
30 The wide definition of zoos means that they range in Scotland from traditional urban zoos to safari parks and other wildlife parks that are usually in rural areas. Many of these zoos keep deer. These may be species that occur in the wild in Scotland, while some will also have other exotic deer species. Red deer are the most common Scottish wild deer species kept in zoos, followed by fallow. In safari parks and wildlife parks, these deer may be kept in relatively large enclosed areas (for example, the red deer herd at the Highland Wildlife Park and the fallow deer at the Blair Drummond Safari Park).
31 Responsibility for zoos in Scotland is devolved to the Scottish Government. Its animal welfare staff have responsibility for policy on zoo animal welfare, while Local Authorities are responsible for licensing and inspecting zoos. All zoos have to conform to the animal health and welfare standards in the 1981 Act and associated secondary legislation. Deer in zoos therefore have to be tagged, may receive medication, and if they are intentionally killed or die of other causes, no meat can enter the human food chain.
32 While these zoo deer are subject to a different statutory regime from farmed deer, the five principles in the ‘Standards of Modern Zoo Practice’ that provides government guidance across the UK, are based on the ‘Five Freedoms’ drawn up for farm livestock by the Farm Animal Welfare Committee.
33 While deer in zoos are kept physically separate from wild deer behind deer-proof barriers, the concern is that escapes do sometimes occur. The deer then becomes a stray animal under the Animals (Scotland) Act 1987 and the issues discussed above apply. If an escape involves a species that does not occur in the wild in Scotland, it is likely to be clear to the owner or occupier that the deer probably comes from the nearest registered zoo. The zoo can therefore be contacted over re-capturing or killing the deer. The zoo may also, depending on the species, be required to notify SNH under the Wildlife and Countryside Act 1981. If the deer is a species that occurs in the wild in Scotland and is shot, the person should be able to recognise that it is an escaped zoo deer as it will be tagged. The carcase should therefore not enter the human food chain.
34 A particular concern is the escape of muntjac deer as a species that legislation and public policy is trying to prevent becoming established in Scotland. The most recent confirmed case of a free-ranging muntjac being shot in Scotland was one that escaped from a zoo in 2017. At least three zoos in Scotland currently keep muntjac.
35 Since 2011, it has been an offence in Scotland to keep any species of muntjac without a licence from SNH. Initially, this was done through secondary legislation under the Destructive Imported Animals Act 1932. However, those measures were soon replaced as part of secondary legislation under the Wildlife and Countryside Act 1981. The position with muntjac and the steps being taken to prevent them becoming established in Scotland are discussed in more detail later in Section 17 of this Report.
12.3 Other Kept Deer
36 There are deer in Scotland which are owned as private property, like farmed and zoo deer, but which do not conform to either of those categories of deer and which are therefore not covered by those regulatory regimes. These other deer are kept in a wide variety of circumstances and include species that occur in the wild in Scotland and other non-native deer species that have been legally acquired.
37 Muntjac is the only deer species that cannot be kept in Scotland without a license from SNH. There is no official record of the other deer kept as private property and little is known about them more generally. However, by virtue of the degree of responsibility for an animal that comes with the ownership of an animal, the owners of all these kept deer have to manage them in keeping with the requirements set by the Animal Health and Welfare (Scotland) Act 2006 and related animal health and welfare legislation.
38 These kept deer include what are often referred to as ‘private collections’, where a person keeps some deer of one or more species for their personal interest and enjoyment. These collections may include exotic deer species or wild deer that have been ‘rendered into possession’ by live capture. However, the kept deer may also be used as part of a business, for example, by being kept at a visitor attraction as added interest. This might most commonly be red or fallow deer, but reindeer are now often used at events during the festive season before and after Christmas. Reindeer, as a long-domesticated species, are also now the only type of deer that could be used in a circus in Scotland following the Wild Animals in Travelling Circuses (Scotland) Act 2018.
39 The reindeer in the Cairngorms National Park area owned by the Cairngorms Reindeer Company might be considered the most conspicuous example of privately kept deer in Scotland. The herd was first established in the area in the 1950s and now consists of around 150 reindeer managed at three locations in the Cairngorm area: the Company’s visitor centre; an area of high ground in the Cairngorms; and a farm with hill grazing in the Glenlivet area. On the farm, the livestock includes farmed red deer. The reindeer are able to free range over the high ground and hill grazing for parts of the year and share these areas with wild red and roe deer.
40 The Reindeer Company’s reindeer are all tagged and recorded in its stock register and the Group’s understanding is that no reindeer are sold to other owners. Contraceptive chemical agents are used with females as part of managing the herd. The reindeer also receive medications when ill. No meat is produced from the reindeer nor is any other part of them used, with the Company importing the reindeer products such as hides that it has for sale. When a reindeer dies, the carcase is collected for disposal as with other livestock that have died on farms. Over each winter, reindeer are transported around the country by the Company for use at events.
41 There appears to be no information available on the extent to which there are other reindeer in Scotland that are used for events or kept for some other reason. However, particular attention has been focused on reindeer in recent years since the outbreak of Chronic Wasting Disease (CWD) in Norway in 2016, with UK-wide restrictions now in place over importing or exporting reindeer and reindeer products.
42 The need for more information about privately owned deer that are neither farm deer nor zoo deer led the British Deer Society (BDS) to carry out its ‘Enclosed and Captive Deer Survey 2017’. In addition to being able to advise the public where they can view deer and to record endangered species, the other main purpose of the survey was to enable quicker responses to outbreaks of diseases affecting deer by recording where there are deer. However, the BDS only publishes information about sites which are open to the public. Given the variable nature of the circumstances in which deer are kept as privately owned deer, the extent of coverage by their survey is unclear.
43 The Group considers that there should be further work to identify privately owned deer in Scotland which are neither farmed deer nor deer in zoos. These other kept deer should be being kept under the terms of the Animal Health and Welfare (Scotland) Act 2006 and related legislation. However, improved information is needed to ensure more accountability over the standards of the health and welfare under which these other privately owned deer are being kept.
44 Deer are relatively large, sentient animals and the Group considers that, while attention is paid in the public interest to the welfare of farmed deer and deer in zoos, and to the welfare of wild deer in the Deer (Scotland) Act 1996, it is an anomaly that other deer can be kept as private property without more transparency and accountability.
45 Improved identification and monitoring of these other privately owned deer would also assist in the management of diseases that affect deer. There would also be benefits if these kept deer required to be tagged. An important aspect of that requirement is that their venison should not be used in the human food chain, as kept deer may have been given medication such as antibiotics. The requirement for tagging would also assist the control of any of these deer that escape or are released from captivity into the wild.
46 The Working Group recommends that there should be a legal requirement for all deer that are owned as private property and not farmed deer or deer in zoos, to be tagged to identify them as private property.
47 The keeping of muntjac deer in Scotland already requires a licence under the Wildlife and Countryside Act 1981, because of the threat it poses as an invasive non-native species. The Group considers that serious consideration should now be given to introducing regulations that would require any person who wants to own other species of deer in Scotland that are not farmed deer nor kept in a zoo, to have a licence. These regulations should cover all cervid species except muntjac.
48 The proposed regulations could be introduced on welfare grounds by secondary legislation under s.27 of the Animal Health and Welfare (Scotland) Act 2006. The Group considers that, while Government animal welfare officials might have overall responsibility for the proposed licensing scheme, the licensing and inspection might be carried out by local authorities (as with zoos). SNH could, for its responsibilities under the Deer (Scotland) Act 1996, be a statutory consultee on applications for a licence and also be able to inspect the records of licences granted.
49 An application for a licence would allow assessment of the circumstances in which the deer would be kept. Granting a licence would identify the owner’s responsibility for their health and welfare under the existing legislation and establish the scope to inspect those standards during the period of a licence. The licences would provide the locations of these privately owned deer in the event of an outbreak of a disease affecting deer. Such a system would also help to ensure that venison from these kept deer does not enter the human food chain and that carcases are disposed of appropriately.
50 In addition, the proposed system could be used to monitor compliance by these private owners with the regulations requiring records to be kept of any live transport or movement of deer. In Scotland, in comparison to England, these records only need to be kept and do not require to be submitted. If the Government needed to find out about deer movement due to a disease outbreak or other cause, it is already clear who is responsible for deer on farms and deer in zoos. A licence system for other kept deer would provide that information for these deer and licence renewals after possibly five years, would provide an opportunity to monitor the movements taking place.
51 The Working Group recommends that the Scottish Government should give serious consideration to the introduction through the Animal Health and Welfare (Scotland) Act 2006, of a scheme to require an owner of deer to have a licence for the keeping of deer as private property that are not farmed deer, deer in zoos nor muntjac deer.
12.4 Wild Deer
52 Deer in Scotland are either wild deer managed under the Deer (Scotland) Act 1996 and associated legislation, or captive deer managed under the statutory regimes governing farm deer, deer in zoos and other privately kept deer as described above. While the distinctions between these four types of deer might be considered clear in law, there also needs to be clarity in practice.
53 The Group has recommended in the previous parts of this Section that all captive deer should be tagged and that is part of distinguishing wild and captive deer in practice. However, the Group considers that there are a number of other issues that need to be clarified in practice to ensure that wild deer are managed appropriately as wild deer and that their meat can be legitimately used as wild venison.
54 The conversion of wild deer into captive deer by live capture was described earlier, with the Group recommending that the live capture of wild deer should require authorisation by SNH because of the concerns over the significant implications of the operations involved for deer welfare. While SNH’s responsibility for the deer ends at the point of capture, the authorisation process would also allow the planned use of the captive deer to be established.
55 The conversion of captive deer into wild deer by intentionally releasing captive deer into the wild can involve any of the four species that occur in the wild in Scotland. There is, however, a prohibition on releasing any species of deer in the Outer Hebrides and the islands of Arran, Islay, Jura and Rum, with releasing or allowing any deer to escape in these areas an offence through secondary legislation under s.14 of the Wildlife and Countryside Act. This is to protect the red deer refugia in these areas, as mentioned in this Section in the context of escapes from deer farms and also discussed further later in Section 17 of this Report.
56 The Wildlife and Natural Environment (Scotland) Act 2011 changed s.14(1)-(4) of the Wildlife and Countryside Act 1981 as it applies to Scotland. This changed the terms from referring to releases and escapes into the wild, to releases and escapes from captivity. In Scotland under s.14(1)(a)(i), it is an offence to release or allow to escape any animal “to a place outwith its native range”.
57 That provision means that the release of a captive sika/sika hybrid deer or captive fallow deer would, as non-native species, require a licence from SNH. The Group considers this requirement is not enforced rigorously enough by SNH with fallow deer. This is discussed further later in the Section 17 of this Report, which deals with non-native deer species more generally.
58 The ‘outwith its native range’ restriction quoted above would also apply to some extent to the release of captive red or roe deer into the wild in Scotland, most clearly in the Orkney and Shetland Islands and some other islands without any wild deer. Elsewhere in Scotland, roe are considered to have re-colonised their former native range by their own means, so that mainland Scotland can essentially be regarded as within their native range. 
59 The position with red deer is different from that with roe, even without considering the extent of hybridisation between red and sika deer. For red deer, north of the Central Belt is native range for the purposes of the 1981 Act as wild red deer are considered to have re-colonised the area by their own means. However, no wild red deer are considered to have survived historically in southern Scotland and the population that subsequently developed there has resulted from the escape or release of captive red deer. Therefore, the area is not considered native range under the 1981 Act and any release of captive red deer south of the Central Belt could be considered to require a licence from SNH.
60 At present, there are several circumstances where captive red deer are being released into the wild in Scotland (as discussed below) and the Group considers that all releases of native deer species to become wild deer should be in a transparent and accountable way, as provided for with the requirement for releases of non-native species to be licensed by SNH.
61 The same requirement for the release from captivity of native deer species would allow the purpose of the release to be assessed, with the implications for the welfare of the deer to be released in a new environment and of any existing wild deer in the area, including disease and genetic risks. The prospect of released deer entering the food chain as wild venison should also be considered, given, for example, the possibility that a captive deer might have been given medication.
62 The Working Group recommends that either the Deer (Scotland) Act 1996 or the Wildlife and Countryside Act 1981 should be amended so that any release of captive red deer and captive roe deer into the wild requires to be authorised by Scottish Natural Heritage.
63 One of the situations is where captive red deer are released from captivity to provide red deer stags for sporting clients to shoot, that are larger than a typical open hill stag in the Highlands. In these situations, a stag that has grown a larger body and antler size in an enclosed lowland environment is live-captured and transported to a site in the Highlands where it is released into a large enclosed area. The stag can then be shot by a client for a higher fee than a typical Highland stag.
64 This practice is colloquially known as ‘canned hunting’ and generally associated with trophy hunting. While it appears to be widely recognised in the deer sector that canned hunting takes place, it is not considered widespread. In 2018, one case involving trophy hunting red deer and other species received unfavourable comment in the media and resulted in shooting organisations intending with Scottish Government encouragement, to produce guidance on trophy hunting in Scotland.
65 A red deer used for ‘canned hunting’ might have been considered a wild deer in an enclosed lowland park and a wild deer on an enclosed Highland hillside. However, a deer that has been put into an animal transporter to be moved to another location is clearly a captive deer. As such, its health and welfare have become the responsibility of the owner of the deer under the Animal Health and Welfare (Scotland) Act 2006.
66 The Group considers that there are significant deer welfare issues (including ‘stress’) involved in the live capture of a wild deer, its transportation in a vehicle and release into a new environment to fend for itself. As the deer are being transported from their place of origin they also require to be tagged and their movement recorded as a result of The Movement of Animals (Records) (Amendment) Order 1989.
67 The degree of responsibility for the deer assumed by its owner can be considered to mean that the person would continue to be responsible for the deer’s health and welfare under the 2006 Act. As that Act states in s.18(3) “...a person who owns an animal is always to be regarded as a person who is responsible for it” and in s.18(5) “...a person does not relinquish responsibility for an animal by reason only of abandoning it.”
68 There are other approaches to increasing the size of red deer stags to be shot for sport on open hill ground in the Highlands that do not require the deer to be transported between locations. There is a tradition from Victorian times of estates raising stags in enclosures on sheltered low ground where they can be fed, before being released on to the hill to be shot for sport. The Group’s understanding is that this still occurs to a very limited extent. The practice of providing supplementary feed to red deer stags living on open range in the Highlands is considered in Section 18.
69 These types of practices are also linked to wider issues about when deer that are enclosed within deer-proof barriers are considered to be captive or wild deer. Whether deer are to be considered wild deer is not necessarily defined by whether or not they are living enclosed within deer-proof barriers. For example, if one or more land owners with sufficient land and money deer fenced an area of thousands of hectares, the wild deer already living within the extensive area would still be considered to be wild deer.
70 There are, however, other situations where deer enclosed in relatively restricted areas are still managed as wild deer. The Group considers that there is a need for greater clarity over the distinction between deer in a deer fenced area that should be regarded as wild deer and those that should be regarded captive. The distinction has implications both for the welfare of the deer and the venison that should legitimately count as wild venison.
71 This distinction between wild and captive deer is not clear-cut and whether deer are to be considered wild deer depends on a judgment in the situation being considered. Two key parameters are the extent to which the deer have a similar degree of freedom to wild deer and the extent to which the actions of the owner of the enclosed land amount to taking responsibility for the welfare of the deer.
72 With the first parameter, sufficient freedom is required to conform to the EU Regulation that allows for the venison from enclosed deer to be treated as wild venison. Regulation (EC) No. 853/2004 Annex 1 defines wild game as:
“Wild ungulates and lagomorphs, as well as other land mammals that are hunted for human consumption and are considered to be wild under the applicable law in the Member State concerned, including mammals living in enclosed territory under conditions of freedom similar to those of wild game...” 
73 These conditions of freedom not only refer to the scope of deer to move around, but also to factors such as whether the land that they are living on provides sufficient food for the deer to survive in a good condition of welfare by themselves. As the FSS ‘Wild Game Guide’ states in this context: “Game animals with sufficient grazing to enable them to live throughout the year without supplementary feeding are (also) considered to be wild”.
74 The reference to supplementary feeding links to the second parameter - the degree to which the owner has assumed responsibility for the deer’s welfare. While assessing this involves considering the extent and nature of any supplementary feeding if this takes place, the assessment should also include other potential interventions affecting how the
deer live. As important aspect is the degree to which there is human contact with deer, the proximity of that contact and the behaviour of the deer towards humans and more generally, as considered against attributes considered to reflect the behaviour of wild deer.
75 The need for greater clarity between wild deer living in an enclosed area and deer within an enclosed area that are considered captive and therefore owned deer, is often associated with deer that are referred to as ‘park deer’ and currently regarded as wild deer. The fact that there are ‘grey areas’ between wild and park deer was, for example, noted in particular in a presentation linked to the BDS’s 2017 survey of Enclosed and Captive Deer. It has also been reported that the FSA in England considers that there are situations where park deer should be re-classified as farmed deer.
76 Deer kept as what are regarded as ‘park deer’ are much more common in England than Scotland. There have been deer kept in enclosed parks in Scotland since medieval times with, for example, deer in the parks at Scotland’s royal palaces from the 12th century. However, there are very few ‘parks’ with deer in Scotland that have had deer since before the 19th century.
77 There are, however, situations in Scotland where enclosed deer are described as being managed as ‘park deer’ rather than farmed deer, with ‘park deer’ being viewed as wild deer and therefore requiring less onerous management. The levels of management applied to ‘park deer’ can vary and may, for example, involve transporting stags between parks to avoid inbreeding.
78 The terms ‘park deer’ or ‘deer park’ have no legal meaning in relation to the management of deer in Scotland. Therefore, while the label ‘park deer’ suggests they are kept in a particular type of landscape environment, they are simply deer kept on enclosed land that are not managed as farmed deer.
79 The Group considers that the judgment to manage enclosed deer as wild deer rather than farmed deer, for example, to avoid the more the onerous health and welfare regime with the latter, is not one that should just be left to the land owner’s discretion as at present. The Group considers that there are enclosed deer in Scotland which are managed as wild deer under the 1996 Deer Act in terms of when and how they are killed and the eligibility of their meat to enter the human food chain as wild venison, and yet which would fail an assessment to be considered ‘wild deer’ under the parameters identified above.
80 In these situations where the deer do not conform to the criteria for wild deer and are therefore captive deer, the owner has two options if they want to continue to have deer on the enclosed land. They could opt to register the enclosed land as agricultural land (if it is not already) and manage the deer as farmed deer under the requirements identified in Section 12.1 above. Alternatively, they could opt to manage the deer as privately owned deer under the standards required by the Animal Health and Welfare (Scotland) Act 2006. In that case, meat from any of the deer would not be eligible to enter the food chain other than through personal consumption by the owner.
81 The Group considers that fairly straightforward and practical criteria could be devised to assess the appropriate status for cases of enclosed deer that are currently managed as wild deer. The Group considers that the application of such criteria would end situations where conspicuously captive deer are being managed as if they were wild deer. The Group considers that SNH, FSS and the Scottish Government’s Animal Welfare Branch should be co-operating to develop and implement this approach.
82 The Group considers that ensuring clarity over the distinction between enclosed deer that are appropriately judged to be wild deer and those that should be considered rendered into possession and therefore owned, is a significant issue for animal welfare and managing the risk of disease, as well as for food safety and maintaining the integrity of the ‘wild venison’ market.
83 The Working Group recommends that the Scottish Government and its agencies should agree and apply practical criteria to identify and correct situations where deer are enclosed by deer-proof barriers are being managed as if they are wild deer, when it is clear from the assessment that they should be managed as captive deer.
84 In this Section, the Group has identified a range of measures to clarify the distinction between wild deer and captive deer, and to manage the boundary between wild and captive deer. The reasons for these measures include appropriate standards of animal welfare, the management of disease and genetic risks, and ensuring food standards. The Group also considers that, at a wider level, the measures would help safeguard the integrity of the wild deer sector and wild venison market.
1 Callander, R. and MacKenzie, N. (1991). The Management of Wild Red Deer in Scotland. Rural Forum, Scotland.
2 Callander and MacKenzie (1991) Op cit.
3 Scottish Government (2018). Briefing for the Government’s Venison Summit, 6 March.
4 Scotland Food and Drink (2018b). Beyond the Glen: A strategy for the Scottish Venison Sector to 2030.
5 Farmed deer in Scotland are very largely all red deer, though there are a number of farms with fallow deer. The Group is also aware of a case where sika are farmed.
6 In which New Zealand is the largest player with, in 2010, c.1m farmed deer or c.40% of farmed deer and exporting c.15,000+ tonnes of farmed venison (Ashwood Management Consultants, 2010, Scottish Venison: An Industry Review).
7 Section 17(3)-(4) (Unlawful killing, taking or injuring of deer); s.21 (Firearms and Ammunition): ss.33-36 (Licensing of dealing in venison); s.45 (Interpretation); and s.24 and ss.27-32 (offenses and enforcement).
8 Venison Advisory Services (2016), Op cit.
9 For example, The Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 and The Welfare of Animals (Transport) (Scotland) Regulations 2006.
10 For more information, see Venison Advisory Services (2016), Op cit.
11 Callander and MacKenzie (1991) Op cit and recently, for example, SNH confirmation that more than 10 tagged deer were shot as part of controlling marauding red deer in the Howe of Alford in 2017.
12 They are selectively bred and can include, for example: sika genes from deer that were obtained by live-capture; genes from English park deer with their mixed origins; and genes from the continuing use of European stock (e.g. sires from Eastern Europe).
13 Callander and MacKenzie (1991) Op cit.
14 ‘Deer Keepers: tagging deer and reporting their movements’, DEFRA guidance, UK Government, 2015.
15 Genetic introgression in terms of the genetics of bred farm stock into the wild population.
16 This includes the use in some cases of relatively inconspicuous electronic tagging.
17 Animals (Scotland) Act 1987 s.1(3)(b).
18 Animals (Scotland) Act 1987 s.3(1).
19 Animals (Scotland) Act 1987 s.3(2).
20 For example, ‘Foresters call time on stray sheep’, Scottish Farmer, 19 January 2017.
21 For example, they are very mobile, can clear stock fences and cannot generally be herded with sheep dogs.
22 As in the case confirmed by SNH of more than 10 tagged deer shot as part of controlling marauding red deer in the Howe of Alford in 2017.
23 Deer (Scotland) Act 1996 s.43(4).
24 The Group’s view is that the hunter should not dispose of the carcase for human consumption due to the uncertainty over any medication the deer may have previously been given in captivity, although the types of medication used with farmed deer do not generally preclude the use of the deer in the human food chain.
25 Based on the latest content of zoo websites, the zoo with the most species of deer appears to be the Scottish Deer Centre with over a dozen.
26 ‘Secretary of State’s Standards of Modern Zoo Practice’, DEFRA, 2012.
27 See Section 17 for examples.
28 For example, due to the risk that the deer has previously been given medication that could affect its suitability for the human food chain (e.g. antibiotics).
29 SNH Information Response 4
30 British Deer Society, Enclosed and Captive Deer Survey, 2017.
31 The Muntjac Keeping (Scotland) Order 2011 and The Muntjac Keeping (Scotland) Regulations 2011.
32 The Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012.
33 The descriptions ‘private property’ and ‘privately owned’ are used in contrast to the legal status of wild deer. The owners might therefore include private or public sector owners.
34 See Section 17.
35 The Group is grateful to Dr Louise de Raad of the University of the Highlands and Islands, for help with information about the reindeer in the Cairngorms.
36 For a review of the research into the use of contraceptive agents in deer and their very limited relevance for application to wild deer, see P. Green ‘Can contraception control deer populations in the UK - A review article for the Deer Initiative’, Deer Initiative website, June 2018.
37 See Section 10.
38 Information on the BDS website about the Enclosed and Captive Deer Survey 2017.
39 There may be a limited number of circumstances where privately owned deer that are not farmed nor zoo deer are covered by other regulations, for example, deer kept for research purposes, where a Home Office licence would be required.
40 The Movement of Animals (Records) (Amendment) Order 1989, which extended the Movement of Animals (Records) Order 1960 to extend it to deer.
41 See Section 7.
42 The Wildlife and Countryside Act 1981 (Keeping and Release and Notification Requirements) (Scotland) Order 2012.
43 SNH (2014). Guidance Notice: Native Range. Ecosystems and Biodiversity Unity.
44 SNH (2014) Op cit.
45 SNH Deer Management Round Table Meeting, 21 May 2019.
46 SNH Deer Management Round Table Meeting, 21 May 2019.
47 For example, abandonment in the sense of its release from captivity on to a Highland hillside to survive as a wild deer.
48 Callander and MacKenzie (1991) Op cit, p.54.
49 Quoted in FSA and FSS (2015), The Wild Game Guide, Revision November 2015, p.6.
50 FSA/FSS (2015), Op cit, p.6.
51 Green, P. (2016). Practical Indicators to assess the welfare of wild deer in Scotland. SNH Commissioned Report No.944.
52 Presentation by P. Green referred to on the BDS website in the Background to 2017 Survey.
53 Venison Advisory Services (2010) Op cit, p.7.
54 For example, the King’s Park at Stirling.
55 For example, as at Hopetoun House since the 1700s.
56 Venison Advisory Services (2010) Op cit.
57 For example, as is the case with a sheep killed by a farmer on their own farm.