Publication - Progress report

Wildlife Crime Penalties Review Group: report

Published: 19 Nov 2015
Directorate:
Environment and Forestry Directorate
Part of:
Environment and climate change
ISBN:
9781785448317

Report from the review group commissioned by Scottish Government to examine whether the penalties for wildlife crimes were adequate and a deterrent.

75 page PDF

1.2 MB

75 page PDF

1.2 MB

Contents
Wildlife Crime Penalties Review Group: report
9. Discussion

75 page PDF

1.2 MB

9. Discussion

110. In this chapter we present our views on the issues raised during the review. For convenience, we have structured the discussion around the same headings as we used in the previous chapter in which we presented the views of the stakeholders who participated in the review. In addition there are some further issues which we considered as part of our deliberations that were not discussed with stakeholders and are mentioned at the end of this section, notably on valuing wildlife crime and sentencing guidelines.

Fines and custodial sentences available

111. The policy reasons for the varied maximum fine levels in wildlife crime are not always easy to discern but the historic significance of poaching offences as a crime against the property of significant landed interests may help to explain the wide range of offences in those cases. Organised criminal activity also understandably attracts higher penalties, hence the higher penalties for organised poaching. Successful lobbying by particular animal welfare groups may also account for the higher penalties available in, for example, cases of cruelty to badgers [178] in contrast to general animal welfare legislation. Damage to protected habitats generally attracts higher maximum fines on summary conviction than killing or injuring members of a species which generally appears appropriate, but the maximum fine levels again vary between legislative regimes with no clear policy justification [179] . However, the maximum fine level for most WCA 1981 offences remains Level 5 on the Standard Scale which is £5000. One uprating of penalties which did occur was the introduction of a potential 6 months imprisonment to WCA 1981 offences by the Nature Conservation (Scotland) Act 2004. Higher maximum penalties for some new Control of Trade in Endangered Species offences have also been introduced in recent years as noted above [180] no doubt because of the increasing seriousness with which they are viewed [181] . Where legislation has been recently amended as in the case of the introduction of non-native species there has been a tendency to impose higher maximum penalties [182] . These recently set maximum fines are generally in line with those available for land and freshwater pollution offences under environmental legislation, as noted below [183] .

112. However, the fragmentation of wildlife legislation and the offences contained within it stand in contrast to the increasing coherence and integration of other areas of environmental law. There has been a concerted effort to integrate environmental legislation substantively and to achieve greater administrative integration. Alongside this has been an increasing harmonisation of penalties available and a fairly frequent uprating of those penalties.

113. Thus, industrial pollution control legislation has been largely substantively integrated over a number of years in Scotland commencing with the Environmental Protection Act 1990, Pt 1 and culminating in the Pollution Prevention and Control (Scotland) Regulations 2012. The process has been taken further in England and Wales with the Environmental Permitting (England and Wales) Regulations 2010 which set up a single permitting regime for a wide range of activities [184] . Furthermore there has been a regular uprating of penalties accompanying the increased harmonisation. Thus, maximum penalties for various pollution offences were generally raised in 1991 from £2000 to £20,000 on summary conviction (and/or up to 3 months imprisonment in some cases) and on conviction on indictment a potentially unlimited fine and/or imprisonment of up to 2 years (5 years in the case of offences involving hazardous waste) was made available [185] . The Antisocial Behaviour etc. (Scotland) Act 2004 then raised the maximum on summary conviction in most cases to £40,000 with the Clean Neighbourhoods and Environment Act 2003 making similar provision for unlawful waste deposit in England and Wales but to a maximum of £50,000 [186] . Meanwhile up to 6 months imprisonment on summary conviction for the principal pollution offences was introduced [187] . Subsequently prison sentences of up to 12 months on summary conviction have replaced 6 month sentences for the principal pollution offences in the latest key pollution legislation in Scotland, the Pollution Prevention and Control (Scotland) Regulations 2012 and the Water Environment (Controlled Activities)(Scotland) Regulations 2011 [188] . Meanwhile, on conviction on indictment maximum prison sentences of up to 5 years have replaced 3 years as the norm [189] .

114. The processes of substantive and administrative integration and regular uprating of penalties that have occurred in other areas of environmental law, have not occurred to nearly the same extent in the area of wildlife crime. There is greater administrative coherence for wildlife conservation, with SNH taking over the functions of the Deer Commission for Scotland for example [190] . However, the principal conservation legislation, the Wildlife and Countryside Act 1981 (WCA 1981) remains unconsolidated after numerous amendments brought about, for example, by the Nature Conservation (Scotland) Act 2004 and WANE 2011 and, as has been noted, the maximum fine level for most WCA 1981 offences remains Level 5 on the Standard Scale which is £5000.

115. What is perhaps particularly noteworthy here in comparing the developments in penalties in other areas of environmental law with nature conservation law is that the pre-1991 maximum fine levels on summary conviction for these pollution offences were less than half the maximum fine then available on summary conviction for WCA 1981 offences. Yet while the maximum fines on summary conviction for the principal pollution offences have been increased 20 fold between 1991 and now, the maximum fine on summary conviction for most wildlife crimes under WCA 1981 has remained the same. The impact of inflation alone would mean that a £5,000 fine in 1981 would now be valued at nearly £17,119 [191] .

116. It may be objected that nearly all pollution offences are commercial offences and hence ought to attract a higher penalty whereas wildlife offences are mainly non-commercial so the environmental law comparison may not be appropriate. However, it is clear that some wildlife crime is commercial in nature.

117. Bat crime is almost entirely commercial in that it normally involves property development and some badger crime is commercial in that it involves otherwise lawful agricultural and forestry activities. Some raptor crime is also commercial in that it takes place to further the sporting interests of shooting estates. Damage to habitats may well be to further commercial activity through, for example, the construction of hill tracks. Damage to freshwater pearl mussels is also usually for commercial reasons - engineering operations, convenient waste disposal, or pearl-fishing. In addition organised criminal activity such as trading in parts of endangered species, poached animals or fish clearly has a commercial purpose. Accordingly we consider that the comparison with environmental law crime is valid and that it also justifies a higher maximum to reflect the fact that at least some wildlife crime is commercial in nature. We consider our position on this is strengthened by the fact that the EU Directive on the protection of the environment through criminal law requires a variety of conduct involving wildlife including (1) the killing, destruction, possession or taking of specimens of protected wild fauna and flora species; (2) trading in specimens of protected fauna and flora species; and (3) any conduct which causes significant deterioration of a habitat within a protected site, to be criminalised alongside conduct involving pollution and disposal of waste [192] .

118. The piecemeal nature of the offences, the piecemeal uprating which has occurred, their lack of coherence internally within wildlife law and their lack of coherence vis-à-vis other areas of environmental law should be readily apparent. We consider that these issues need to be addressed to ensure that the law is clearer and more readily understood and that potential penalties have a greater deterrent effect.

119. There have also been recent developments in England and Wales in relation to sentencing which are worth noting. The Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.85 which was brought into force on 12 March 2015 amends a raft of legislation removing £5,000 limits on fines on summary conviction and empowering magistrates to impose potentially unlimited fines as is the case on conviction on indictment. This includes the penalties under the Wildlife and Countryside Act 1981 [193] . The rationale for the removal of the limit was explained by the UK Justice Minister Mike Penning who said:

"Dangerous criminals will always belong in prison but it is important that magistrates, who sentence the majority of offenders who come through our courts, have the power to hand down the appropriate punishment with the severity they see fit. Criminals should be in no doubt that if they break the law they will face consequences and where a fine is the most appropriate sentence this could run into several thousands." [194]

120. This appears to us to provide a strong justification for a similar move in Scotland. While an increase in the maximum fine on summary conviction to the norm for the principal environmental offences in Scotland, £40,000, would be an option, the Scottish Government should consider a move to unlimited fines as has just occurred in England and Wales, albeit that we recognise that the latter change would require wider legislative amendment, the merits of which would need to be considered. A further option would be to revalorise the levels applicable in the Standard Scale. For example, this could mean that a Level 5 fine of £5,000 could become £10,000 or £20,000. However, given Level 5 encompasses a host of lesser offences, a revalorisation is unlikely to result in the maximum levels of penalties being raised to the same level as those which currently apply in the case of the major pollution offences which currently stands at £40,000. In addition such a move would have implications for a whole range of offences, not simply wildlife offences. It may thus be impractical to make progress on that issue in the short to medium term. Accordingly we do not consider that there is merit in recommending the revalorisation of the Standard Scale at present.

121. We have noted above the fragmentation, lack of uniformity of wildlife crime penalties and the general failure to raise them even in line with inflation. We consider that this undermines their deterrent effect. This view was shared by the majority of respondents to the questionnaire survey and the majority of interviewees. We therefore consider that the maximum penalties on summary conviction should be raised, at least for the more serious offences, and that conviction on indictment should be more widely available across the range of wildlife offences. Since wildlife law is part of wider environmental law, we consider that the starting point for this exercise should be the approach and levels used in other areas of environmental law. We consider that this applies in the case of both fines and terms of imprisonment to give as full a range as possible so that appropriate penalties may be imposed to reflect the nature of the crime and whether the perpetrator was an individual or corporate entity.

Fines and custodial sentences imposed

122. Sentencing for environmental and wildlife crime has been under the spotlight for a number of years. In environmental law, criticisms were made of the prosecution system in that it was argued that Procurators Fiscal lacked knowledge of environmental law and deprioritised it. Criticisms were also made of the Scottish Environment Protection Agency (SEPA) and its predecessors for failings in reporting [195] . This was seen not only to impact on bringing prosecutions but also on sentences imposed as the impact of an incident might not be well represented to the court. However, very considerable progress has been made through, for example, the signing of a Memorandum of Understanding between SEPA and the Crown Office and Procurator Fiscal Service (COPFS), the development of a National Network of Environmental Law Prosecutors in 2004 and, in 2011, the establishment of a national Wildlife and Environmental Crime Unit.

Case Study 1

Location:
Wisconsin, USA

Description:
A father and son were charged after an investigation into the poisoning of wildlife on their land over a number of years, which included bald eagles, a black bear and a bobcat killed with Carbofuran. Both men pled guilty to charges of conduct relating to possession of an American bald eagle.

Penalties:
$30,000 and $10,000 fines
$100,000 each in restitution costs
Seven and five year bans on hunting, fishing and trapping privileges
One year probation each
Four months home confinement (one of the convicted parties only)

Case Study 2

Location:
Cantabria, Spain

Description:
A farmer was found guilty of laying out poisoned baits and poisoning at least 11 red kites, five dogs, six foxes, a cat, a raven, a buzzard and four vultures.

Penalties:
2 years imprisonment
2 years disqualification from farming or any other profession relating to animal husbandry
4 years disqualification from hunting
90,270 Euros compensation to Cantabria for the loss of value of the wildlife
28,500 Euros for the cost of monitoring the wintering population and breeding season of the red kites for the next 3 years in the area.


123. In addition, criticisms have consistently been made of the levels of sentences imposed for environmental and wildlife crime both north and south of the border [196] . However, average fines for environmental offences (excluding wildlife offences) have increased both north and south of the border as the following graphs illustrate (see Figures 1 and 2 below). Nonetheless it will be apparent that the average fine levels are nowhere near the maximum levels available even on summary conviction. This reflects the fact that the highest penalties are considered only for the most serious offences and represent the starting point for judicial consideration of the appropriate level of penalty. In our discussion of factors involved in sentencing below, we consider further the kinds of factors which judges can take into account [197] .

Figure 1 - Comparative average fines for environmental law pollution control offences 1996/7-2001/02

Figure 1

Figure 2 - Comparative average fines for environmental law pollution control offences 2006/7-2011/12

Figure 2

Source: Mark Poustie: Data taken from SEPA enforcement reports and EA Annual Reports to create Figures 1 and 2. Please note the following caveat: fines imposed may not be in the same year as the successful prosecution.

124. Aside from the obvious difference in average fines imposed for pollution offences and wildlife offences demonstrated by these graphs [198] , their inclusion is meant to illustrate a key point which is that the increase in maximum fines available in pollution control legislation has resulted in a statistically significant increase in the average fines imposed. This adds weight to our contention that an increase in the maximum fine levels available for wildlife offences should have some effect in pushing up average fines for wildlife offences. We have also noted that while many wildlife crimes are committed by individuals who may be unable to pay substantial fines, nonetheless some are committed by commercial entities as is the case with most pollution offences.

Alternative or additional penalties: Community Payback Orders

125. Although these were generally seen as a soft option by respondents and interviewees, in our view their use has merit and that CPOs may well be an appropriate penalty in appropriate circumstances. We consider that, amongst the requirements which may be imposed [199] the requirement to carry out up to 6 weeks unpaid work (which would be undertaken on top of the offender's employment and other commitments) is a significant penalty. We also see merit in requiring wildlife crime offenders to attend retraining courses, including courses on empathy, in appropriate cases, a point which was raised by some interviewees. See too, our comments on suspended sentences in the section on restorative sentences, below.

Alternative or additional penalties: Forfeiture Orders

126. The Scottish Government already views these additional penalties as having the potential to have a real impact on wildlife crime reduction in some cases such as badger baiting where the forfeiture of dogs used can have a significant economic impact on the perpetrators [200] . However, it will be apparent that while forfeiture provisions are common in wildlife legislation, nonetheless there are variations between them. While differences may be justifiable, we take the view that harmonisation is a good thing in that it makes the law simpler and shows a commitment to a considered, coherent approach to penalties for wildlife crime. Thus, for example, we cannot see why the Deer (Scotland) Act 1996 does not contain express provisions relating to forfeiture of vehicles or other items involved in the commission of deer offences or indeed forfeiture of the weapons themselves rather than simply the cancelling of firearms' certificates. Equally vehicle is widely defined as including aircraft, hovercraft and boat under the Conservation (Natural Habitats &c.) Regulations 1994 but not in other legislation. We therefore consider that a recommendation relating to the harmonisation of forfeiture provisions is justified. This should include forfeiture of any vehicle, weapon, equipment, item and animal used in the commission of the offence; that vehicle should be defined widely as it is in the 1994 Regulations.

Alternative or additional penalties: Proceeds of Crime

127. We recognise that there are difficulties in using proceeds of crime legislation in this context. Thus, while it may be possible to identify the benefit in the case of, for example, a development damaging a bat roost or a badger sett or from trade in endangered species what would be much harder to establish might be the benefit to a shooting estate of the killing of a raptor given it would be difficult to establish how much of the 'bag' following such a kill was lawful and how much due to the killing [201] . We were given one example of the use of POCA in England and Wales in a bat case where the whole value of the redeveloped property was confiscated although the case was apparently under appeal [202] . We were informed that the use of confiscation orders under the Proceeds of Crime Act 2002 was routinely considered by the Crown Office where appropriate in the context of wildlife crime. We consider that the use of POCA legislation is potentially valuable and we recommend that the Crown continue and, if possible, develop further its practice of considering the use of POCA in appropriate cases.

Alternative or additional penalties: Loss of rights or benefits under other legislation

128. The withdrawal of licences under WCA 1981 could have a significant economic impact on farms and estates and individual gamekeepers who would potentially lose their ability to work if their rights under such licences were withdrawn. Cross compliance provisions have also been used effectively in cases where wildlife crimes have been committed.

129. We are persuaded of the merits of the use of such provisions. Just as we see merit in extending and making consistent the forfeiture provisions across the range of wildlife legislation as appropriate. We also see merit in having clearer links between the commission of wildlife crimes and the loss of certain rights or benefits. This is already clear-cut in relation to the withdrawal of General Licences issued by SNH under WCA 1981 but we consider that it should be clearer across the board in relation to the withdrawal of firearms and shotgun certificates. At present it is possible for the Chief Constable to withdraw the certificate for a firearm if the person is not deemed fit to be entrusted with a firearm. The commission of a wildlife crime with a rifle could thus already justify the withdrawal of such a certificate. However, in the case of shotguns, the certificate can only be withdrawn if there is a danger to the public safety or to the peace. This does not clearly encompass the scenario of a wildlife crime and we consider that it should also be possible for the Chief Constable to remove shotgun certificates in cases where they have been used in wildlife crimes and there is a threat to wildlife in addition to the existing grounds. Nonetheless we recognise that the legislation involved is reserved and that any amendment could not be made without the consent of the UK Parliament. This may therefore take time to achieve. We therefore consider that, where firearms including shotguns are used in the commission of any offence, the court should have the power to cancel the relevant certificates as is the case in the Deer (Scotland) Act 1996. This would be easier to achieve in the short term as it is within devolved competence.

Alternative or additional penalties: restorative sentences

130. Where there has been corporate wildlife offending, while restoration orders might not always be available under legislation (although this could be legislated for) one approach might to encourage the practice of deferring (suspending) sentence until forms of restoration had been undertaken by the offender. It should be noted that this practice has been relatively common in environmental law cases involving pollution for some time [203] . In such cases the penalty ultimately imposed will reflect the degree of remediation carried out by the convicted polluter. Indeed this could also be one route in relation to requiring individual offenders to undertake re-education courses. The penalty might then be adjusted to reflect the restoration work or re-education undertaken. We recognise that some of these recommendations cannot be implemented by Government as they fall within the remit of the judiciary but we would encourage the Judicial Institute for Scotland to develop training for sheriffs in this regard.

Factors involved in Sentencing

131. A potentially significant Appeal Court case in relation to corporate offending in the Scottish context is HMA v Doonin Plant Ltd [2010] HCJAC 80. Doonin involved the unlawful and extensive deposit of waste on a former colliery site over a period of time. The prosecution was on indictment and the maximum penalty was an unlimited fine. The fine of £9000 imposed by the sentencing sheriff was increased tenfold on appeal. In increasing the sentence to £90,000 the Appeal Court indicated that the following, amongst other factors, were significant in sentencing:

  • There was a legitimate public concern about the impact of such cases on the environment;
  • There was also public concern that companies might fail to comply with their environmental responsibilities if it cost them less to pay the penalty than it would to install proper safeguards or to desist from the conduct in question
  • A fine in such a case required to be large enough to send a message to those who manage and are shareholders in such companies that the statutory provisions designed to protect the environment, must be taken seriously by them; and
  • The fine imposed by the sheriff in this case, having regard to the financial position of the respondents was unlikely to meet these objectives.

132. The Appeal Court also held that the observations in HMA v Munro & Sons (Highland) Limited 2009 SCCR 265, a conviction of a company under health and safety legislation, applied equally to cases involving convictions for environmental offences. Namely, that where a company had been convicted of an offence in respect of which its financial position would be relevant in determining the level of fine, it was for the company to place before the court sufficiently detailed information about its financial position to enable the court to see the complete picture. In addition to lodging all relevant documents, it might in some cases, also be necessary to lead the evidence of an accountant.

133. The Regulatory Reform (Scotland) Act 2014 also includes a provision requiring courts in determining fine levels for relevant offences to have regard to any financial benefit which has accrued or is likely to accrue to the person convicted[204]. A relevant offence is one specified as such in an Order made by the Scottish Ministers and while it appears these will focus on environmental law offences in areas other than wildlife crime, the rationale behind the provisions reflects the observations in Doonin Plant which are arguably of wider significance and could potentially encompass those committing wildlife crime.

134. The Group considers that it is important first, that the public are aware of the factors, examples of which are given above, that are taken into account by sheriffs in sentencing so that their expectations are not unrealistic. Second, where the factors which applied in the Doonin Plant and Munro cases are relevant in any case, the prosecutor should bring the decisions to the notice of a sentencing sheriff.

Impact statements

135. The potential value of impact statements seems clear at least in relation to the impact of an offence on the conservation status of a species, the possible wider ecological impact, and the impact on a creature in welfare terms in a welfare/cruelty offence. Impact statements are clearly being provided in wildlife cases to some extent. There was widespread support amongst respondents for a more systematic approach to the provision of such impact statements in wildlife crime cases. There was a clear preference for SNH to provide conservation/ecological impact statements because of its impartiality although there were mixed views on whether it had the resources to provide such statements to a greater extent than it currently does. Impact statements from NGOs were seen as being potentially partial except in cases where the NGO was an information- providing NGO rather than a campaigning one. In addition, welfare impact statements could be provided by a vet. However, we are not persuaded that impact statements in relation to the impact on a local economy or more widely on the reputation of Scotland are feasible because of the lack of reliable information which could be presented in relation to this. Views on such value and feasibility of such impact statements were also much more mixed amongst respondents and interviewees. It became clear through stakeholder engagement that the Crown Office's Wildlife and Environmental Crime Unit has been largely responsible for driving forward the use of impact statements to date. The Crown Office is convinced that where impact statements have been provided they have generally contributed to higher sentences being imposed [205] . We consider that it is worth sounding a slightly cautionary note in that there exists a possible evidential difficulty in relation to the provision of this information. It may not be relevant to the proof of the charge(s), so strictly speaking may not be admissible in a trial. In the absence of specific legislation the entitlement of the prosecutor to provide wider contextual information to the court following conviction is not entirely clear. We therefore consider legislation for the use of impact statements to be advisable.

136. We acknowledge the views of a number of interviewees that the value of impact statements generally may be affected by the practice of plea adjustment. However, we consider that this is not an accurate perception. It appears to us that it is too narrow. It appears to us that the point is the variance between an observed wildlife or environmental harm and the extent to which culpability is attributable to an individual. The starting point of a number of respondents and interviewees was that an impact statement should be based on what has gone wrong and that plea adjustment breaks the link. However, the correct starting point is that the criminal justice system can deal only with a criminal offence where sufficient and admissible evidence exists to prove that an offence known to the law of Scotland was committed and that an identified individual or organisation was responsible for committing it [206] . That test applies at every stage in criminal proceedings. So, the charges brought against an accused person may be fewer than or different to what was reported to COPFS and any conviction may be less than or different to what was charged in the complaint. The latter could reflect:

  • that the final evidential position (established after further inquiry or in evidence) was not as strong as was suggested in the initial report and witness statements provided to COPFS;
  • or that the evidence was not strong enough to establish guilt beyond reasonable doubt (for example, because of issues about the credibility or reliability of witnesses);
  • or that a defence was established.

The prosecutor may take these factors into account in deciding to accept an adjusted plea of guilty and the court will take them into account in determining guilt or innocence [207] .

137. We also recognise that our suggestion that impact statements should be put on a more formal footing assumes that relevant information will be available. However, this is not always the case and the Crown Office indicated to us that it had had real difficulty in some cases obtaining information from the appropriate regulatory body [208] . Sometimes the information is simply not available and no official view is held. In some cases proving that certain offences have been committed may already require the production of an impact statement. For example, regulation 41(2) of the Conservation (Natural Habitats &c.) Regulations 1994 makes it an offence to take or kill certain animals by a means which is inter alia capable of causing the local disappearance of, or serious disturbance to, a population of such animals. If information about local populations of relevant animals is not available, the fact that such conduct is criminal cannot be established.

138. While background information is invariably useful, we recognise that it is unlikely that a formal impact statement will assist in minor cases, such as poaching. We also acknowledge that there may be difficulty in providing an impact statement where there is sensitivity about releasing information about a protected site or species into the public domain.

139. Nonetheless we recommend that the use of conservation/ecological impact statements and animal welfare impact statements are put on a more systematic basis than at present. This might initially be done on an administrative basis with the prosecution seeking these wherever possible in appropriate cases from SNH or a vet. However, for the medium term, putting this on a legislative footing along the lines of the requirement for courts to consider victim statements where these are provided before sentencing in other areas of criminal law, seems to us to make good sense and could also resolve doubts about the legitimacy of the prosecution providing wider contextual information to the sentencing court. However, we wish to express one caveat in relation to this recommendation. We do not propose making the requirement to obtain an impact statement a mandatory one for the reason that we consider it may hamper prosecutions in some cases if there was a requirement to obtain an impact statement prior to the case coming to court. So an obligation should be put on the sentencing court to take account of the impact statement where one is provided before passing sentence. We also recommend that it be open to the sentencing court at its own discretion, to require production of an impact statement by the appropriate regulatory agency which it would take into account before passing sentence.

Transparent court decisions

140. We consider that, while transparency would be desirable and many respondents and interviewees supported such a move, it would not be practical within the context of wildlife crime alone and raises significant judicial workload issues which are beyond the scope of the review. We accordingly make no recommendation on this issue. However, we note that transparency of sentencing could be enhanced by the development of sentencing guidelines [209] .

Wider context

141. Many of the issues raised by respondents did not relate directly to penalties but are potentially significant in the wider context of trying to reduce wildlife crime. We invite the Minister to note these issues but we do recommend that the issue of the coherence of wildlife legislation is addressed in the medium term not simply through harmonisation across legislative regimes but more directly by a consolidation exercise.

Judicial approaches to wildlife crime/environmental court

142. It was suggested by a small number of respondents [210] that the establishment of an environmental court might be a way of enhancing penalties imposed for wildlife and indeed other environmental offences. The idea is that given the technical and specialist nature of environmental cases, a specialist court could better develop and deploy expertise to deal with such cases and, if the court had a criminal jurisdiction, that might then lead to the imposition of more consistent and proportionate penalties on offenders [211] . The establishment of an environmental court has been under consideration in Scotland intermittently since 2006 when the then Executive published a consultation paper on the issue [212] . More recently the SNP included a manifesto commitment to consider establishment of an environmental court in Scotland [213] . South of the border a comprehensive report was produced in 2000 for the then Department of Environment, Transport and the Regions on the establishment of an environmental court [214] . This reviewed the then existing environmental court models worldwide. Considerable scholarship has been devoted to the subject since then not least in the light of the growing number of environmental courts and tribunals worldwide [215] . The longest established specialist environmental court is the Land and Environment Court in New South Wales. However, there are now specialist courts in a wide range of countries including Sweden, New Zealand, USA, India and China [216] . An Environmental Tribunal was also established in England and Wales in 2010 but its jurisdiction was originally limited to hearing appeals against the imposition of civil penalties by the Environment Agency and Natural England, [217] although it has been extended to cover certain other statutory appeals in relation to Nitrate Vulnerable Zones and the Greenhouse Gas Emissions Trading Scheme following a review into its role [218] . Further transfers of functions have been proposed although they are not yet implemented [219] . Importantly for our purposes, it has no criminal jurisdiction. The Tribunal was set up more because of regulatory reform following the Hampton Review [220] rather than because of a specific desire to establish an environmental court or tribunal [221] .

143. Within the Scottish context, such a court is perhaps unlikely to be established in the short-term. Many issues remain to be resolved including the jurisdiction of the court. Would it have a criminal or civil jurisdiction or both? Would it encompass pollution cases, wildlife cases and land use planning cases or just some of these? Given that Scotland is a small country, unless the court had a relatively wide jurisdiction it is unlikely that it would have sufficient business. That indeed was the key reason for the then Executive deciding not to progress the court proposed in 2006 which was principally intended to have a criminal jurisdiction. As a result although we recognise that such a court might have the potential to assist in the imposition of more consistent and proportionate sentences in wildlife crime cases, we make no recommendation on the issue. We consider that there are too many uncertainties associated with such a court to enable us to make a practical recommendation at this time although the issue may be worth revisiting if such a court were to be established and encompassed a criminal jurisdiction.

Valuing wildlife

144. This would be an alternative way of providing a basis for particular fine levels. This issue is raised directly in the remit of the group which provides:

"To examine and report on how wildlife crime in Scotland is dealt with by the criminal courts, with particular reference to the range of penalties available and whether these are sufficient for the purposes of deterrence and whether they are commensurate with the damage to ecosystems that may be caused by wildlife crime.

This requires a value to be placed on the damage to species and/or ecosystems and could be reflected in the fine imposed.

145. This is a controversial area since views will inevitably differ on both the methodologies to be employed in calculating the value of a particular member of a particular species and the actual monetary value to be placed on particular species [222] . While restoration costs for particular damaged site may be estimated with greater accuracy (albeit that exact restoration will never be possible), the value of lost environmental services provided by a damaged ecosystem may well evade accurate representation not least because that value is contestable at least in monetary terms. Nonetheless some states have adopted this approach in their sentencing for wildlife crime in relation to the killing of members of particular species. Finland, in setting sentences in wildlife crime has opted to try to place a value on wildlife and set penalties based at least in part on that value [223] . Values range between €17 for common species to over €7000 for rare species. The fine comprises both this value and a penalty element.

146. The Group takes considers that this approach is fraught with difficulties not least in that the setting of such values is highly contestable both in principle and in relation to specific species [224] . Whether such values in themselves could act as a deterrent without an additional penalty for the offence itself is also unclear. It could also result in a shift downwards in penalties, for some species, which would not be the intended outcome. The debate is similar to that involved in setting environmental taxes. It is either possible to set the tax at a level to compensate for the loss of the resource or to make good the environmental damage caused by an activity or at a level which will encourage certain conduct. This is the difference between a 'rectification tax' or a 'nudging tax' [225] . The UK Landfill Tax was originally set as a rectification tax with the level set by reference to the cost of environmental damage from landfills. However, this proved untenable because of the difficulties of estimating accurately what the rectification costs would be and an overt switch was made to basing the level of the tax at a level which would encourage a reduction in landfill. The same approach could be taken in the setting of penalties - the key idea is to ensure the penalty is a deterrent (i.e. nudging) rather than trying to reflect accurately the damage or loss caused (i.e. rectification).

147. It should be noted that restoration orders are already available in wildlife law to deal, for example, with damage to a habitat [226] . These provisions are cognate with preventive/remedial provisions in environmental pollution law [227] . In this context costs can be estimated with reasonably accuracy and we fully support the use of such provisions where appropriate. They can be imposed in addition to penalties by a sentencing court.

Sentencing Guidelines

148. One way in which penalties for wildlife crimes could be made more consistent and transparent is through the use of sentencing guidelines. The Sentencing Council for England and Wales is an independent non-departmental body of the Ministry of Justice and was set up to promote greater consistency and transparency in sentencing through the development of guidelines which the courts are required to follow, unless it is in the interests of justice not to do so [228] . The Sentencing Council has developed definitive guidelines for environmental (but not wildlife) offences in England and Wales [229] . They divide offences into different categories of seriousness and provide that key issues of culpability, namely whether the conduct was deliberate, reckless, negligent or of low or no culpability and whether the offence was committed by an organisation or individual are taken into account. They provide a step by step approach for judges and suggest penalty bandings as well as the use of proceeds of crime legislation. There is evidence that the Guidelines have had an impact in terms of increasing penalties imposed [230] .We note that the Scottish Sentencing Council (SSC) [231] which was established in October 2015 [232] has the objectives of promoting consistency and transparency in sentencing practice, assist in developing sentencing policy, encourage better understanding of sentences across Scotland and will be responsible for producing sentencing guidelines for the judiciary. We recommend that one area of the SSC's work should be to develop sentencing guidelines for wildlife (and other environmental offences) to enhance consistency and transparency in sentencing in the field of wildlife offences.


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