Review of snaring for Scottish Government, prepared by Scottish Natural Heritage

3. Assessing the Efficacy of the Legislation

3.1 Summary

The Review of Snaring Group received data from Crown Office Procurator Fiscal Service ( COPFS) in relation to the number of Standard Prosecution Reports ( SPRs) received in the calendar years 2006 to 2016 and the numbers of cases prosecuted and those leading to conviction ^{[2] [3]} .

Calendar Year	SPRs received by COPFS	Cases prosecuted	Cases resulting in conviction [4]	PF Direct measures issued	Incidents [5] reported in SPRs
					by year SPR reported	by year of occurrence
2006	3	2			3 [6]	3
2007	3				3	1
2008	9	7	5		11	11
2009	6	5	2		6	7
2010	15	7	5	6	17	18
2011	2			1	3	1
2012	9	5	3		9	11
2013	3	1	1	1	9	8
2014	5	3	3	1	6	9
2015	5	5	4		8	4
2016	1	1	1		1	1

It is important to note that the sample size is too small to perform statistically significant analysis of the incident, SPR, prosecution and conviction data, therefore while any analysis may be broadly indicative of trends, it should not be read in isolation.

However, the Review Group noted that the number of SPRs submitted to COPFs were above average in the years 2008, 2010 and 2012 (as were the number of incidents to which they related). These were years in which the control of snaring was considered and/ or amended: the Scottish Parliament considered snaring in 2008 following a period of public consultation; the Snares (Scotland) order 2010 came into force in that year; and the amendments made by the WANE Act began to take effect in 2012. The figures may, therefore, reflect increased public awareness.

It is understood that some of the cases reflected individual operators being slow to adopt to the new requirements while others may have reflected increased awareness of members of the public and the new Section 11D of the WCA (presumption form identification number - see paragraph 3.6 below) is likely to have had an impact.

The Review Group was reassured by the Scottish SPCA's assessment ^[7] that "following the introduction of the requirement for snares to be tagged and compulsory training courses etc., reports (in relation to the misuse or illegal use of snares ) have definitely declined." Against the background that "..In practice, probably all of the investigations into snaring complaints in Scotland involve the Scottish SPCA…." ^[8]

The following parts of this report provide some information about convictions and sentences. It should be noted that in some cases the particular charge may have been one of several, in which case the sentence indicated will not reflect the disposal of the case in its entirety.

It is not possible to assess the impact of each sub-section. The Review Group considers that the requirement for training and accreditation under Section 11A has likely improved the overall competency of snare operators and raised awareness of the legislative requirements.

In addition, the ability for snare operators to be identified via the tag and identification numbers required under Section 11A is likely to encourage adherence to the legislation and help with identification of a suspect in the event of an offence (only in cases where a snare identification number has been used).

The Review of Snaring Group noted that the legislation does not provide for disqualification from entitlement to use snares on conviction.

This position can be contrasted with the trapping of wild birds. In certain circumstances trapping of birds permitted under the general licences issued under Section 16 of the WCA, if it is done in compliance with the terms of the licence. However, persons convicted of certain wildlife crimes may not rely on the licences and so is prohibited from such trapping.

While a conviction under the snaring provisions of the WCA would prevent reliance on the General Licences, it cannot be assumed that all snare operators will operate under the General Licences. It would seem appropriate as both a deterrent and punishment therefore that a conviction under the snaring provisions should also result in a disqualification from snaring.

The Review Group was informed that proof of snaring offences can be expensive and resource intensive, for example, where post mortems and forensic examinations are required, even for sometimes minor aspects.

3.2 Section 11: Those provisions regarding snaring, including the setting of snares

Section 13 of the WANE Act amends section 11(1) of the WCA through the addition of sub section (1A).

Sub-section (1)(aa) was amended by the Nature Conservation (Scotland ) Act 2004 regarding the offence of setting a snare with the intention to cause unnecessary suffering, while the subsequent sub-sections 11(1A)(a) through to (d) incorporate the conditions previously contained within the Snares (Scotland) Order 2010.

The Review Group concluded that the legislative changes have been largely effective in providing for snare administration and operating practices, but noted that they have also introduced a degree of difficulty in the enforcement and prosecution of snaring offences.

Self-locking snares

The Review Group noted that the requirements of sections 11(1)(aa) and 11(1A) do not apply to self-locking snares or any other snare to which section 11(1)(a) applies.

Prior to the WANE Act amendments, the term "self-locking" was used to describe any snare which by reason of its construction, rust, damage, etc. was not free-running. However, the distinction in section 11B between "self-locking" snares and those which are capable of locking because of rust, damage, etc. serves both to limit the application of section 11(1)(a) and to extend the application of section 11(1)(aa) to snares which would formerly have been viewed as self-locking.

There is potential for multiple offences to be identified within a single snaring incident, with some of these being seemingly conflicting (for example see paragraph 3.4 Section 11B 'Duty to Inspect'). This can make a prosecution difficult.

One approach advocated by COPFS is that practice should be codified in legislation, in effect making a breach of a Code of Practice an offence. Codes have historically helped to direct best practice on the ground and provide practical guidance in respect of application of the legislation. For example in the WANE (Scotland) Act 2011, Section 15 Non Native Species etc; Code of Practice states that while failure to comply with a Code of Practice does not of itself constitute an offence it may be taken into account in determining any proceedings.

The Review Group took the view that SG should consider how a strengthened Code of Practice can be better endorsed through legislation.

Likelihood

The term 'likely' replaced 'calculated' in various provisions of Section 11 and it has had the benefit that mens rea or criminal intent does not need to be established in any prosecution. However the fact that an untoward incident has occurred does not of itself demonstrate the likelihood that it would have occurred and this has introduced the need to obtain suitable expert evidence to assess that likelihood.

3.3 Section 11A Training. Identification numbers, tags etc.

Section 13 of the WANE Act amends section 11(1) of the WCA through the addition of Section 11A which makes provisions for snare training, the use of snare tags and identification numbers and the registration process in order to obtain these ^[9] .

Snare Identification Numbers and Tags

The Snares (Identification Numbers and Tags) (Scotland) Order 2012 came into force on 22nd November 2012 and Article 7 of this Order prescribes how tags bearing identification numbers must be displayed upon all snares set.

The Review Group did not have access to numbers of snaring crimes recorded by the legacy Scottish Police Forces nor Police Scotland. Therefore it has not been possible to assess the efficacy of the legislation in identifying a suspect with regard to Section 11A by comparing between pre and post WANE Act recorded crime data.

Six prosecutions have resulted in a conviction for an offence under Section 11A, and a further case was dealt with by Procurator Fiscal ( PF) direct measure.

Three of the convictions related to the accused setting snares in position which did not have identification tags attached.

Two of the convictions related to the accused setting snares without having been issued with an identification number.

One conviction related to the accused setting a snare in position without ensuring that a tag was fitted in such a manner that it was not capable of being easily removed.

The court disposals were as follows:

Year	Offence	Disposal
2013	section 11A(1) and (5)	Community Payback Order 240 hours
2014	section 11A(1)	£200 fine
2014	section 11A(2)	£300 fine
2014	section 11A(1)	Admonished
2014	section 11A(1)	PF Direct Measure
2015	section 11A(1) and (5)	Community Payback Order 200 hours
2015	section 11A(2)(b) and (6)	Admonished
2016	None	-

It is difficult to draw conclusions based upon this information. On the one hand, the identification of an operator will be inherently more difficult if a snare identification number is not used, which will result in lower prosecutions. On the other hand, the data could be interpreted as providing evidence that Section 11A improves detection of offences, and enables prosecution of technical offences, which otherwise may have gone undetected, ultimately improving compliance with the legislation.

3.4 Section 11B Duty to Inspect

Prior to April 2013 and the enactment of the WANE Act, Section 11(3) of the WCA made it a requirement for ' Any person who sets a snare in position or who knowingly causes or permits a snare to be so set must, while it remains in position, inspect it or cause it to be inspected at least once every day at intervals of no more than 24 hours.'

Following the enactment of the WANE Act this requirement was substituted by Section 11B(1) of the WCA.

Eight prosecutions have resulted in a conviction for an offence of 'failing to inspect' between 2008 and 2016, a further case was dealt with by PF Direct Measure.

The relevant charge in five prosecutions (brought in 2008 - 2012) was under Section 11(3) and in three prosecutions (brought in 2013 - 2016) was under Section 11B(1).

Disposals included fines ranging from £240 to £500 and a Community Payback Order of 240 hours.

Year	Offence	Disposal
2008	section 11(3)	£500 fine
2008	section 11(3)	£400 fine
2008	section 11(3)	£200 fine
2009	None	-
2010	section 11(3)	£240 fine
2010	section 11(3) and 11(3A)(b)	PF Direct Measure
2011	None	-
2012	section 11(3)	£500 fine
2013	section 11B (2)(a)	Community Payback Order 240 hours
2014	section 11B(1)	£300 fine
2015	section 11B(1)	£500 fine
2016	None	-

The number of people operating snares prior to enactment of Section 13 of the WANE Act is not known, but it is reasonable to assume that a proportion of operators may have discontinued using snares rather than undergo training and registration.

The total number of snare operators registered with Police Scotland as of November 2016 is 1502.

While the lack of available data means it is not possible to compare the relative number of offences prosecuted in the pre and post WANE Act periods, the overall numbers of prosecutions remains very low.

The Review of Snaring Group concludes that Section 11B ('Duty to Inspect') of the Wildlife and Countryside Act 1981 (as amended) is serving its legislative requirements. However, the Review Group noted that while the objectives of the Section 11B are clear, its structure introduces a difficulty for enforcement.

Section 11B(3)(a) makes it an offence for a person who sets a snare in position, without reasonable excuse, to fail to inspect it or cause it to be inspected, at least once every day at intervals of no more than 24 hours. On the other hand, Section 11B(3)(b) makes it an offence for a person who, while carrying out such an inspection, fails to release any animal caught in it, or fails to ensure that it is free running.

It is not enough to prove simply that a snare has not been free running or that an animal has been trapped in it for more than 24 hours. While the inference might be that the operator has failed to check the snare as required, in the absence of specific evidence of what did or did not take place, it's equally possible that the operator checked it but failed to take the appropriate action.

3.5 Section 11C Authorisation from Landowners

Prior to April 2013 and the enactment of the WANE Act, Section 11(3D) of the WCA made it an offence for ' any person who, without reasonable excuse-

(a) while on any land, has in his possession any snare without the authorisation of the owner or occupier of the land; or

(b) sets any snare in position on any land without the authorisation of the owner or occupier of the land'

Following the enactment of the WANE Act these prohibitions became Section 11C(a) and (b) respectively of the WCA 1981.

Six prosecutions have resulted in a conviction for activity ' without authorisation of the owner or occupier of the land' between 2008 and 2016.

The relevant charge in three prosecutions (brought in 2008 - 2013) was under Section 11(3D) and in three cases prosecutions (brought in 2013 - 2016) was under Section 11C.

Disposals included sentences ranging from admonition, fines up to £100 and a Community Payback Order of 200 hours.

Year	Offence	Disposal
2008	11(3D)(a):	£75 fine
2009	11(3D)(a):	£100
2010	None	-
2011	None	-
2012	11(3D)(b):	CPO 100 hours
2013	None	-
2014	11(3D)(b):	Admonished
2015	11C(b):	Community Payback Order 200 hours
2015	11C(b)	Community Payback Order 180 hours + Restriction of Liberty Order curfew. The accused was also convicted of an offence under the Animal Health and Welfare (Scotland) Act 2006 and the court made a disqualification order.
2016	None	-

The overall number of cases is low, so it is difficult to draw any conclusions in terms of the efficacy of the legislation, however the Review Group consider that it would be very difficult to legislate for the actions of individuals where the modus operandi is to undertake an act of snaring with the intention of committing an associated crime.

Had the cases (and associated offences) suggested recklessness by trained operators then the inference would be that the legislation is failing. However the cases prosecuted tend to point to deliberate abuse for purposes ranging from poaching to badger persecution.

3.6 Section 11D Presumption arising from the Identification Number

In criminal cases, the burden of proof to identify the person who sets a snare lies on the prosecutor. This can be difficult, particularly on land where multiple snare operators work.

Prior to April 2013 and the enactment of the WANE Act there was no requirement for fitting of tags bearing identification of the operator or any other form of identification to snares.

Section 11D of the WANE Act has created the presumption that ' the identification number which appears on a tag fitted on a snare is presumed in any proceedings to be the identification number of the person who set the snare in position.'

Due to both the complexity of recording and Data Protection issues, it is not possible for the Review Group to access Police Scotland and the legacy Scottish Police Forces Crime Report data in order to analyse the effect of Section 11D on the ability of the police to successfully identify a suspect through snare identification number.

Section 11A deals with offences in relation to identification numbers, and this is covered in more detail in the section by the same name above.

Concurrent work undertaken by the TAG identified the need for clarification over the use of identification numbers on snares and the presumption arising from them when one snare operator takes over temporary responsibility for checking snares from the operator identified by the tag (for instance during holidays or if the identified operator is sick).

Scottish Government confirmed to the TAG that anyone can undertake the requirement to check the snare in every 24 hour period, whether or not they possess a snaring ID number although they must be competent to deal with any snared animal they find. The detail of this should be agreed through the Code of Practice.

However, the person who sets the snare must have a valid ID number, and is responsible for it when set, even if checked by another individual. Therefore the presumption of identification remains irrespective of who is given responsibility for checking. The TAG concluded that this needs to be clarified.

An additional recommendation from the TAG relates to the requirement for operators to update snaring ID details when circumstances change, such as the operator moves or is no longer using snares. The TAG did not consider how this may affect the presumption arising in the event of any snares found in position after details have been changed or updated.

While generally supportive of this recommendation, the Review Group suggests that further consideration is given to the implications of Section 11D should this recommendation be implemented through a revision of legislation.

3.7 Section 11E Record Keeping

The WANE Act introduces the requirement for snare operators to maintain detailed records of their snaring activity through the provisions under Section 11E. Prior to the enactment of the WANE Act there was no requirement for snare operators to maintain any form of records of snaring activity.

Critical to these provisions sub-section 11E(4) introduces the requirement to produce these records to a constable within 21 days of being requested. Failure to do so will constitute an offence.

Following enactment of the WANE Act only one case has been prosecuted under Section 11E in 2015, with a fine of £500 for failing to produce snaring records to the police. It is difficult to reach conclusions regarding the efficacy of Section 11E based upon one successful prosecution and conviction.

The Review Group and the TAG have questioned the reasoning behind the 21 day allowance for operators to produce records to the police. Both Groups feel that if operators are showing due diligence by completing records timeously then 21 days is excessive. Equally, for those operators who do not maintain up-to-date records, the 21 day period does not act as an incentive to comply.

As such both the Review Group and TAG suggest that Scottish Government should consider amending legislation to require operators to update records at least once every 48 hours unless they have a reasonable excuse not to do so, and to submit records to the Police on demand if the Police arrive at the location where the records are kept, or within 7 days to a police station. These considerations are similar to the requirements within the Deer (Scotland) Act 1996 regarding venison dealer records.

Aside from any legislative requirements there is a clear benefit to the snare operator in maintaining accurate and up-to-date records in adhering to best practice and in the event of any criminal enquiry demonstrating due diligence.

The TAG recommends that snare operators maintain records of all animals caught in snares. This is a simple measure that can be adopted by snare operators to help demonstrate due diligence and as such is supported for inclusion in the Code of Practice by the Review Group.

In addition the TAG recommend the development of a pro-forma record book to append the Code of Practice, which operators may choose to use if they wish. This recommendation is also supported by the Review Group.