149. Reducing wildlife crime is not simply a question of raising penalty levels. While this is part of the package needed, the key issue has to be that the type and level of penalty has to be appropriate. We have noted that wildlife crimes vary considerably and the types of perpetrators and their motives also vary. Some involve commercial offending and some do not. This means that penalties that may act as a deterrent for some types of crime may not work in others. Take, for example, crimes related to badger baiting. While tough financial penalties or custodial sentences might appear appropriate and desirable, it appears clear from our work that in fact forfeiture of dogs and a ban on keeping dogs are likely to be the most appropriate penalties. However, higher financial penalties might serve as a deterrent for those engaging in otherwise lawful commercial forestry and agricultural operations which cause the destruction of badger setts. Higher financial penalties may be appropriate in some cases where there is significant economic gain from the crime such as destruction (deliberate or otherwise) of bat roosts to enable development or redevelopment. Custodial sentences may serve as a greater deterrent where perpetrators are otherwise law-abiding and the wider consequences of conviction and imprisonment even for a short time may be very significant.
150. We note that in general, penalties for wildlife crimes have not been raised for many years, except in the case of new offences or legislation. This stands in contrast to other areas of environmental law such as pollution control where penalties have been raised regularly and largely harmonised across different legislation as a result of (1) increasing public concern reflected in the actions of the UK and Scottish Parliaments; (2) the impact of inflation; and (3) a clear desire to harmonise the legislation as much as possible. Yet wildlife law remains much less coherent and penalties vary widely and it is not always clear that there are good reasons for this. Since 1991 the maximum fine on summary conviction for the principal environmental pollution offences has been raised twenty-fold from £2,000 to £40,000 while at the same time maximum fine on summary conviction for the principal WCA offences has remained unchanged at £5,000. Even in relation to inflation we noted above that a penalty of £5,000 in 1981 would equate to over £17,100 today. We consider that this situation needs to be addressed.
151. We recognise that maximum penalties will not necessarily often be imposed because of the need to take into account the circumstances of the offender and other mitigating or aggravating factors but the evidence from the significantly rising average fines imposed for environmental pollution offences shows that sheriffs in Scotland and magistrates in England and Wales have responded to increased maxima by imposing heavier penalties on average. It has also given judges in those cases a much wider range of potential penalties to reflect offences of differing seriousness and whether commercial activity is involved. This strongly suggests to us that a similar approach in the area of wildlife crime is desirable.
152. Above all we consider that an appropriate range of penalties should be available to the courts to ensure maximum deterrent impact to deal with the range of offenders from corporate entities to individuals with few or no resources. This means having both a broader scale of penalties but also a wider range of types of penalties available. Part of the exercise we consider is required is to extend provisions such as forfeiture across the full range of wildlife crimes and to ensure that in all crimes involving firearms there are penalty provisions enabling the court to cancel the relevant certificates and order forfeiture of the weapons. However, we do also consider that there is a case for a wider scale of financial and custodial sentences, essentially in line with the increases which have occurred in other areas of environmental law such as pollution control. We consider that it is appropriate that courts have a wider scale of penalties at their disposal in order that where a defendant is capable of paying a higher fine in an appropriately serious case that penalty can be imposed and that where there is an serious case where a fine is not an appropriate penalty, then a custodial sentence of up to a year on summary conviction can be imposed. We also consider that there is an argument for extending the possibility of conviction on indictment to a wider range of wildlife crimes - again in line with other areas of environmental law - in appropriately serious offences. We consider that it is appropriate to match the maximum penalties available in other areas of environmental law as certain wildlife crimes are as significant in conservation or animal welfare terms as the environmental impact of a water, air or waste pollution offence. However, we must stress that in doing this we are not suggesting in any way that maximum penalties should be imposed on a regular basis - we are seeking to ensure that appropriate penalties are imposed taking account of the nature of the offence and the circumstances of the offender. At present we consider that the courts do not have the power to impose appropriate penalties in all cases and we consider that that needs to be rectified.
153. We also consider that the establishment of the Scottish Sentencing Council will provide an opportunity to develop sentencing guidelines to enhance the consistency and transparency of sentencing in this field.
154. In supporting such an approach, we also consider that there should be a more systematic approach to the provision of impact statements in relation to the conservation/ecological impact and/or welfare impact of an offence and that ultimately, this needs to be underpinned by legislation. This is the case for victim statements in other areas of criminal law. We consider that SNH is best placed to provide conservation statements and vets in relation to statements on welfare.