Wildlife Crime Penalties Review Group: report

7. Penalties imposed in wildlife crime cases

People with a charge proved in Scottish Courts for wildlife offences ¹, by disposal

1. Where the wildlife offence was the main charge.
Source: Scottish Government Criminal Proceedings Database

People receiving fines in Scottish Courts for wildlife offences ¹, by average fine

1. Where main charge.
Source: Scottish Government Criminal Proceedings Database

People receiving custodial sentence in Scottish Courts for wildlife offences ¹, by length of sentence

1. Where the wildlife offence was the main charge.
Source: Scottish Government Criminal Proceedings Database

50. Looking at the 5 years from 2009-10 to 2013-14, total convictions have risen from 24 to 60. However, there is no evidence of a trend in average fines: although average fines decreased from £637 (based on 18 fines imposed) to £402 (based on 43 fines imposed), the figures in 2009-10 were skewed by 2 average fines of £2150 for offences involving badgers, omitting which reduces the average to £448. There were no custodial sentences imposed in 2006-07, 2007-08, 2009-10 or 2010-11 but in the two final years of figures two higher sentences were imposed of 182 days.

51. However, taking a much longer perspective on the data available, it is nonetheless fair to say that average fines are rising against a backdrop of what appears to be lower levels of convictions ^[47] , although it is recognised that the cases captured reflect only those in which the wildlife offence was classified as the main charge. Thus, average fines have increased from £141 in 1989-90 to £402 in 2013-14 while the total numbers convicted for wildlife crimes has dropped from 487 (424 of which resulted in fines) in 1989-90 to 60 (43 of which resulted in fines) in 2013-14. The average custodial sentence for the thirteen cases in 1989/90 was 73 days, the one wildlife case involving a custodial sentence in 2013/4 was for 182 days.

52. The reduction in the total number of convictions over this longer period seems to be the result of far fewer poaching and salmon and freshwater fisheries offences. However, it may be that the figures have been impacted by the reclassification of offences. For example, the category "Offences involving birds" formerly excluded what were game offences e.g. poaching pheasants but are now birds offences under section 1 of the 1981 Act by virtue of WANE 2011 amendments. The classification of offences is to some extent subjective as, for example, hunting deer with dogs could be regarded as a deer offence or a hunting with dogs offence. Additionally, in terms of the increased average fine between 1989-90 and 2013-14 inflation could be argued to account for the whole increase.

Community Payback Orders

The system of Community Payback Orders ( CPOs) is provided for by the Criminal Justice & Licensing (Scotland) Act 2010 which inserts new provisions into the Criminal Justice (Scotland) Act 1995. CPOs replace community service orders, probation orders and supervised attendance orders for offences committed on or after 1 February 2011. CPOs may impose any of the following:

• Unpaid work or other activity requirement
• Offender supervision requirement
• Compensation requirement
• Programme requirement
• Mental health treatment requirement
• Drug treatment requirement
• Alcohol treatment requirement
• Residence requirement
• Conduct requirement

Where a person is convicted by an offence punishable by imprisonment the court may, instead of imposing imprisonment, impose a CPO on the offender (Criminal Justice (Scotland) Act 1995, s.227A(1)).

A CPO may be imposed instead of or as well as imposing a fine (Criminal Justice (Scotland) Act, s.227A(4). In such a case the CPO may only impose one of the following:

• Offender supervision requirement
• Level 1 (that is, for no more than 100 hours) unpaid work or other activity requirement
• Conduct requirement.

Factors involved in sentencing

53. It is important to bear in mind the principles that, first, the court may sentence only in respect of the charge or charges to which the accused person has pled guilty or of which he or she has been found guilty. Second, the maximum sentence available is what could be imposed for the very worst offence, committed by a persistent offender, and, third, a court must take into account both aggravating and mitigating factors when imposing a sentence. Aggravating factors could include the seriousness of the offence, the deliberate or reckless nature of the offence possibly involving cruelty and the impact on the conservation status of a rare species. Mitigating factors could include the explanation given for the offence, the offence being the offender's first, the individual being otherwise of good character and their income being so low that they could not pay a substantial fine. It is therefore uncommon for a court to impose a maximum sentence in practice. Where imprisonment is available, restrictions are imposed on courts on passing such a sentence ^[48] and legislation provides that the court may impose a Community Payback Order ^[49] . We noted that shortly before the publication of this report, the Scottish Government published a consultation on proposals to extend the current presumption against sentences of imprisonment of three months or less. ^[50]

Impact statements

54. Impact statements are now routinely used in the criminal justice system, involving the victim providing a statement on the impact of the crime on them to the court for the judge to take into account before sentencing ^[51] . An earlier evaluation of a pilot victim statement scheme in Ayr, Edinburgh and Kilmarnock produced fairly positive results: "a number of sheriffs and procurators fiscal commented that the information they received in victim statements was useful" ^[52] .

55. Further research in England and Wales conducted for the Commissioner of Victims and Witnesses suggests that judges and other legal professionals are now more positive about the use of such statements than they were when the provisions were introduced ^[53] . In a study (Leverick et al 2007a) "interviews with a range of legal professionals in Scotland… concluded … "there were very few objections to the victim impact statement scheme among criminal justice professionals" (p. 90). Judges, in particular, reported finding victim impact statements to be a useful way of learning about the seriousness of the crime." Nonetheless there is no evidence that sentencing patterns have changed as a result of the introduction of impact statements.

56. It appears therefore fair to say that victim statements are generally regarded as useful by the judiciary in terms enhancing their contextual knowledge prior to sentencing.

57. Impact statements in the context of wildlife crime are obviously different as the creatures or ecosystems cannot speak for themselves. Nonetheless impact statements have become relatively common in pollution prosecutions. We address later the questions as to who should prepare these statements in the context of wildlife crimes, their contents and whether (as with victim statements) they require legislative underpinning.