Wild Salmon Strategy: Fisheries Management Scotland enforcement committee paper
Paper undertaking a review of enforcement powers, the offences and penalty regime for salmon poaching and other offences, aiming to increase penalties if necessary.
Introduction
The wild salmon strategy recognises the parlous state of Scotland’s salmon populations. Enforcement of the legislation to protect wild Atlantic salmon and their habitat is rightly regarded as a priority and we are pleased to see it highlighted as such within the Wild Salmon Strategy, with a specific Priority Theme for Action identified as Managing exploitation through effective regulation, deterrents, and enforcement. This paper is a response to the workstream identified within that Priority Theme - Undertaking a review of enforcement powers, the offences and penalty regime for salmon poaching and other offences, aiming to increase penalties if necessary.
The 2023 provisional catches for wild Atlantic salmon are the lowest reported since records began in 1952, and signal that Scotland’s salmon and sea trout populations are in a critical state. Atlantic salmon have been reclassified by the IUCN from ‘Least Concern’ to ‘Endangered’ in Great Britain (as a result of a 30-50% decline in British populations since 2006). It is therefore clear that illegal exploitation, of any sort, is unsustainable.
The Wildlife Crime Penalties Review Group published its report in November 2015[1]. The group made ten recommendations including increases to maximum available penalties, use of impact statements, alternative penalties, legislative coherence and sentencing guidelines. A subsequent consultation on wildlife crime penalties was conducted in 2019, but the consultation and subsequent legislative changes taken forward through the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 (the 2020 Act) excluded penalties pertaining to wildlife crimes against wild fish populations. Fisheries Management Scotland engaged with Scottish Government officials with a view to amending this legislation at Stage 2 and Stage 3, but due to tight timescales and technical difficulties, the then Minister for Rural Affairs and the Natural Environment (Mairi Gougeon MSP) agreed to explore these issues at a future legislative opportunity.
The 2020 Act increased the maximum penalty for the most serious animal welfare and wildlife crimes to five years imprisonment and unlimited fines. For example, the Act increased the penalties relating to the protection of a wide range of wild animals listed in schedule 5[2] from level 5 on the standard scale to a fine not exceeding £40,000. A similar change was introduced for the protection of badgers (level 5 on the standard scale to £40,000). Given the critical state of Scotland’s salmon populations, we believe that there is sound justification for enhancing the penalty regime to bring the species in line with the penalties for the wildlife covered within the 2020 Act.
In addition, for species protected under the Wildlife and Countryside Act 1981, the maximum fine which may be imposed shall be determined as if the person convicted had been convicted of a separate offence in respect of each bird, nest, egg, animal, plant or thing. The same is true for badgers under the Badgers Act 1992 and deer under the Deer (Scotland) Act 1996. However, this principle does not apply to the poaching of wild salmon despite the difference in impact between taking and killing one fish or hundreds of fish by net, poison or explosive.
Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 (the 2003 Act), includes a wide range of offences designed to protect wild salmon and sea trout across their life cycle, but the situation facing wild salmon and sea trout is now fundamentally different. Robust enforcement of regulations, coupled with penalties that act as a proper deterrent, have a vital role to play in the protection and restoration of Scotland’s wild salmon. A mature female salmon will carry an average of 4-6000 eggs, and this highlights the impact that the removal of even a single fish through such criminal activity will have. The table in Annex 1 provides a commentary on the existing offences included in the 2003 Act and the proposed changes that we would suggest. It is important to emphasise that similar offences are included in The Scotland Act 1998 (River Tweed) Order 2006, but these will need to be addressed separately. Column 1 identifies the relevant articles of the 2006 Order. The table also includes some other identified issues that we would like to address.