Official Report 541KB pdf
Item 5 is continued consideration of the bill. I welcome the first of the two panels, which comprises representatives from different organisations that belong to Scottish Environment LINK. Lloyd Austin is the convener of Scottish Environment LINK WANE group, a LINK trustee and head of conservation policy with the Royal Society for the Protection of Birds Scotland. Dr Deborah Long is the convener of the LINK biodiversity task force, the chair of the LINK board of trustees and conservation manager for Plantlife Scotland. Dr Paul Walton is a member of LINK’s biodiversity task force and head of habitats and species for RSPB Scotland. Mike Daniels is a member of LINK’s deer task force and chief scientific officer of the John Muir Trust.
You are probably aware that we have received evidence in favour of expanding single witness provisions to other aspects of wildlife crime and of ending them altogether. What is your view on single witness evidence?
From the bill it is obvious that the single witness provisions of the old game acts and in relation to birds’ eggs have been carried forward unchanged. However, because the issue has been dealt with purely as a consolidation measure, there are anomalies in that the provisions will apply to some wildlife crime offences but not to others. Removal of such anomalies would be a logical step. The provisions exist in the first place because the crimes take place in remote and rural areas where the likelihood of having two witnesses is lower than it would be in, say, a city street. Our preferred option would be to extend them to a wider range of offences, notwithstanding our complete acceptance that corroboration must also be provided alongside a single witness statement.
While we are discussing witnesses, I note that in its submission RSPB Scotland seeks
That question also falls to me. That comment is about the issue of witnesses or potential witnesses being on certain land and the court having to determine the admissibility of their evidence. In many circumstances, witnesses might be on land because they are exercising access rights under the Land Reform (Scotland) Act 2003, but it could be argued in certain cases that they are not exercising such rights because their purpose for being on the land is outwith those rights. The court will have to balance the public interest benefits of pursuing a prosecution against the private disbenefits of the civil wrong or potential irregularity of trespass, and the prosecutor might well decide not to pursue a case. We are suggesting that if a potential witness has been on land to carry out activities that would otherwise come under the access rights that are set out in the 2003 act, their evidence should be deemed admissible. Does that make sense?
If I understand you correctly, you are saying that if a hillwalker who is striding across the hills finds a poisoned bird, that would be deemed to be evidence because he is exercising his hillwalking rights. However, if an individual from the RSPB is sent to look for and finds such a bird, it would not be deemed to be evidence because he has been on the land to look for a poisoned bird, not to go hillwalking.
That is correct.
Great—well, not great. [Laughter.] I mean that I understand what you are getting at.
In last week’s discussion of the issue it emerged that because of the requirements of the Procurator Fiscal Service, we could end up with more cases being brought but not proceeding to court. That would be the worst of all worlds: we would raise expectations that something is being done while prosecutions and any such actions are regularly thwarted. How would you respond to that assertion? Have you discussed the matter with the fiscals themselves?
It is an issue on which the next panel will certainly want to comment. If you are saying that the law should be constructed on the basis of whether you have the resources to carry out prosecution in the types of cases that are reported to the prosecuting authorities, that sounds like the wrong way round. It should be determined on what you believe the public interest is and what will create a sufficient deterrent to prevent crimes from taking place.
The question was less to do with resources and more to do with the requirements of corroboration. There would be an expectation that a single witness statement was sufficient, albeit that in practice, I think, it is not really accepted as applicable in any circumstances.
There are existing cases in which there is single witness provision, and they do not include just rural and wildlife crime cases. For instance, there is in one of the environmental protection acts existing single witness provision in relation to littering, and there is a similar provision in relation to dog fouling. The police, other reporting agencies and the fiscal service have a lot of experience of circumstances in which single witness provisions arise. I would have thought that the reporting agencies would either have already or would develop knowledge of the type of corroboration that would be sufficient. They would therefore not bring lots of cases in which there was not sufficient corroboration.
That is helpful.
This, too, will probably be a question for Lloyd Austin, but before I start I should declare my interest as a farmer—I should perhaps do it at every one of these meetings.
The quarry list includes many wildfowl and waders as well as the game birds that are being moved into the quarry list in the Wildlife and Countryside Act 1981. Many of those species have a less than robust conservation status, but in the circumstances we do not think that removing them from the quarry list is the best way to address the issue.
The point is particularly relevant with regard to geese—I am thinking about the resident breeding greylag geese in the Western Isles and inner Hebrides in particular. There is serious agricultural damage in a number of instances, and it is likely at some stage that collectively we will have to move towards an adaptive management scenario for the populations. That can be based on science and done in such a way that we can pretty much guarantee that the conservation status of the target species will be maintained and not threatened and agricultural damage will be minimised, but we can do that only if the science is informed properly about the mortality levels.
I cannot believe that you do not think that estates count what they shoot, as that is one of the points on which they compete with one another. Each gamekeeper will know how many brace of grouse and other things are shot per day. The figures will appear in their records. Are you saying that those records are not widely available?
I am. In a number of instances—for example, on South Uist estate—we have had difficulty getting information about how many birds have been shot. When we get it, it is verbal and varies quite a lot. There is no compulsion on estates to reveal those data. I agree with you that estates have a long history of detailed recording of bags, but that information is not necessarily made available to third parties.
From anecdotal evidence, we know that there is a growing problem throughout Scotland of geese overwintering on agricultural land. Is there any provision in the bill to deal with the problem? If not, should there be?
The point that we are making is important, but we should remember that a review of the national Scottish provisions on the goose and agriculture issue is under way. That review will report to the national goose management review group, which is chaired by the chief agricultural officer. We will look at the report this autumn, so that is imminent. The review concerns the seven local goose management schemes throughout Scotland that have been set up to address the issue.
It appears that climate change may be changing the birds’ migratory patterns.
That is a fair comment.
Any further evidence that you have on the issue would be of interest.
All that I can say is that the matter is being examined in considerable detail at the moment. However, arrangements are in place to manage severe goose problems fairly successfully. There are precedents for that—Islay is a good example.
Presumably, you have records for the number of geese that are shot there.
Yes, when it is done under licence. It is more difficult to establish how many are shot on sporting estates. There is also the issue of people coming to this country as visitors and shooting with agents. There is no way of getting accurate figures for how many are shot in that way or of recording the information formally. That is done in other countries and will be needed to inform the science that will properly underpin goose policy.
Are the proposals that emerge from the process in relation to geese and agricultural land likely to be published within a timeframe that will allow amendments to the bill to be lodged, if that is seen to be necessary?
I believe so. I am not in a position to guarantee that, though.
Thanks.
We have not seen the report yet and we do not know how contentious it will be, or what the ministers will think about it.
What are your views on the need for a close season for brown and mountain hares? As you know, the bill proposes to introduce a close season. The Scottish Gamekeepers Association has recognised the benefit of a close season but does not feel that the times proposed reflect the time between the breeding seasons. The Game and Wildlife Conservation Trust argues that the numbers of both types of hare are healthy and that culling of hares on grouse moors is therefore not jeopardising their status. On the other hand, the Hare Preservation Trust argues for full conservation status and says that, because of their capacity for carrying ticks, the culling of hares is in breach of the habitats directive. Could you add anything to that rather divergent set of views?
First of all, in relation to the game law proposals generally, you will see from the LINK evidence that LINK members collectively have made no assessment of that issue, so I refer you to the submissions from the RSPB and the Scottish Wildlife Trust. We think that the introduction of a close season for the breeding period of any mammal species is a good thing. That is a welfare issue relating to nursing mothers and so forth, so it is not within our area of expertise, but we acknowledge the issue.
Okay. We move to snaring, which is probably even more contentious. We had conflicting views about the need to use snares when we visited the Langholm moor demonstration project last week. Simon Lester, the head gamekeeper, told us that in some cases there was no alternative. He had lain out on the moor with guns, trying to take foxes. However, in some circumstances, snares were the only way in which he could control predators. Obviously, that is not the view of groups such as Advocates for Animals. What are the views of LINK members on snaring? Do any of your members use snaring? Do you believe that it is necessary, particularly for successful grouse shooting or game management? What are your views generally on the argument that snaring is an indiscriminate trap? We heard evidence last week from Hugo Straker that fast-release devices have been developed that would allow badgers and so on to escape if they were caught in fox traps.
Rather like the previous question, this is an area that is very much dominated by animal welfare issues, which are not an area of our expertise, which is much more in conservation and population management issues. That is why, collectively, LINK has not done any work on snaring. I will ask the panel members who represent organisations that are land managers to comment.
The John Muir Trust does not generally do predator control, and we certainly do not snare. As a landlord, we have crofting land, and crofters have rights to carry out predator control. As far as we are aware, some snaring goes on there. Our main reasons for not snaring are, first, that we are not into individual species management and, secondly, that we are concerned about the indiscriminate nature of bycatch, with otters, pine martens, wildcats and other species getting caught in snares. As Lloyd Austin has indicated, we do not really take a position on the welfare side, although we are obviously aware of concerns from some of our members about welfare issues in relation to snaring.
Similarly to the RSPB, the board of Plantlife Scotland has approved a vertebrate control policy to which we all adhere on the land that we own and manage. That means that we do not use snaring as a form of vertebrate control. We will control vertebrates only where they are having a damaging impact on the plant interest for that site.
If you do not use snares, what are the main alternative methods of predator control? Lamping?
As I understand it, our main method of vertebrate control on our land is shooting. You will get a lot more evidence on that next week, when you visit Abernethy.
Generally, we do not carry out predator control but, where we do, it is lamping.
I am trying to reconcile today’s evidence with what we heard in Langholm last week. We were told that people had been out in the hills all night but could not shoot the foxes. If you are saying, Mr Austin, that your main control is shooting, I am trying to work out what you do differently or how that is successful for the areas that you control.
I am sure that, because of factors such as the weather on a given day or the state of the vegetation at a certain time, there are circumstances where attempts to shoot are unsuccessful. As I understand the overall success of fox control, however, our monitoring of fox numbers and their impact on prey species shows that the efforts that we have made have been as successful as we wanted them to be.
You might have different levels of need in the respective areas that you manage. I am trying to work out how you manage with shooting but others do not.
I do not wish to put words in your mouth, but could the explanation be that the operation that we saw at Langholm was essentially a commercial one? Commercial operations might relate to grouse, to farmers’ crops or to lambs, for example. Your interest might be more environmental than commercial. Could that be a reason?
That might contribute to a slight difference in emphasis, but I would not argue that we are in any way less commercial. We have shooting tenants on some of our land, and they are just as successful as any other shooting enterprise. We also work with farming tenants and graziers who work in just as commercial a style as any other grazing tenant or farm partnership. There are circumstances in which productive activity of various types takes place alongside and within nature reserve-type situations. The JMT’s situation is much the same.
The JMT does not do predator control, as I said. We are not producing a crop and we are not about single-species management. It is possible to demonstrate different methods of predator control, but we do not really have to do any of it.
As I understand it, some of the witnesses’ arguments are less about animal welfare than they are about bycatch. Does habitat play a part in choices about methods of predator control? The people who work on Langholm moor strongly argued that they were not about single-species management when we saw them last week, but they said that there was little evidence of bycatch in the snares that they had set. I think that they had set 500 snares and, apart from foxes, caught two badgers and one other species.
We certainly have in mind situations in which birds such as capercaillie could be caught as bycatch. We want to try to avoid that. There is also a more general issue to do with predator-prey relationships and the quality of habitat, which Paul Walton will talk about.
If someone is growing a crop of potential prey species at a high density, it is likely that predators will respond. Predator populations are often limited by prey density. It might be that, because the conservation bodies are aiming for species diversity, we end up with lower densities of predators. However, that is not necessarily always the case.
The people in Langholm said that they shoot 80 per cent of the predators, so they might be snaring a relatively small number.
We have shooting tenants where the retention of shooting rights in an area was a condition of sale of the land. You will get more detail on the issue when you visit the RSPB reserve at Abernethy, because the forest reserve there has a small grouse moor on it. The family who sold us the land retain shooting rights on that part of the reserve and, as I understand it, they are completely satisfied with the way in which the land is managed and with the predator situation.
I want to move on to the issue of invasive non-native species. The general provision is that it is a bad thing to allow the release of non-native species that might be invasive but we might not know that at the time. There are two exceptions to that in the bill—the red-legged partridge and the pheasant—and we have also received written evidence from the shellfish growers who are asking for a specific species of oyster to be added to the list of exceptions. We heard evidence last week that there can be adverse environmental impacts from the mass release of red-legged partridges and pheasants. What are the panel’s comments on that? Do you think that those two species should be excepted from the provisions in the bill generally, or might the Government retain some power to have another look at them if they become a problem at some point?
The general approach is that non-native invasive species are a problem for biodiversity conservation, and it is accepted that they are its second biggest threat. That is why we are so keen to see good provision in the bill to protect Scotland. Islands particularly—Scotland is part of a small island chain—have a special biodiversity and we pride ourselves on our environment as part of our international image. That environment is susceptible to non-native invasive species because we are an island. The selection of species here has evolved as part of a unique package, and new introductions to that package have a great capacity to disturb that balance. A good parallel to our situation is New Zealand, which has similarly innovative legislation to protect its special environment against the impact of non-native invasive species. That is why LINK members believe that the bill will enable us to take an important step. The precautionary approach that is embodied in the no-release presumption is an innovative way of looking at the issue.
It is quite surprising how little research has been done into the environmental impact of pheasants and red-legged partridges given that, by biomass, they are the most abundant birds in the country. However, the research that has been done has revealed that they can have a negative impact, particularly at high densities. They can reduce the species diversity of ground vegetation layers, particularly in woodland. They can alter hedge structure, and some work has shown that that impacts on declining farmland bird nesting habitats, such as those of yellowhammers. They can reduce the availability of overwintering invertebrates, which are an important food source for native wildlife. They can cause the overnutrification of soil; they add nutrients to soil and leave it with nutrient levels that go way beyond what would be expected in woodland. There is also quite a bit of evidence that, at high densities, there can be disease transfer to native birds, particularly at feeding areas.
That is very clear. Thank you. I want to pick up another point that Deborah Long touched on, which is a particular interest of mine. You touched on the integrity of islands. On Colonsay, the native Scottish black bee remains, although there are all sorts of arguments about whether it is actually native and wild or whether it is livestock. Would your thinking on the introduction of non-native species apply, for example, to taking imported bees to places such as Colonsay? If you want time to think about it, please write to us subsequently.
I should refer that question to colleagues in Buglife and the Bumblebee Conservation Trust.
That would be helpful. My other point is on the Government’s general policy position. I think that the Scottish Rural Property and Business Association told us last week that the focus of this bit of the bill is misdirected and that, instead of being concerned about whether a species is non-native per se, we should be concerned about whether it is invasive and damaging. What is your view on that?
I have heard the idea that there is a false polarity, if you like, but I strongly disagree with it. A huge proportion of global biodiversity exists because evolution proceeds independently in different regions because of barriers such as oceans, mountain ranges, rain shadows and deserts. That means that areas are biologically separate. Because of that, we end up with the tiger as the forest cat in India and the jaguar as the forest cat in Amazonia. That effect works throughout the living world. When people move animals and plants across those barriers, they break down that isolation with the result always being a decline in biodiversity regardless of the mechanism, which can be predation, disease transfer—which would probably be an issue with the bees—hybridisation or any of a range of different mechanisms. The net result is always a decline in biodiversity. Therefore, the concepts of native and non-native have a very important ecological sense.
That was a very clear answer. However, from my recollection of discussions about the Marine (Scotland) Bill, I believe that the Pacific oyster is breeding in the south of England but not yet in Scotland. Is that right?
That is my understanding, but there is also evidence of breeding further north in the Republic of Ireland. It seems to be moving up. We should not forget that over the past 15 years or so there has been a 1°C increase in sea surface temperature in the North Sea, which is quite big as far as these species are concerned. Water temperature is absolutely critical to spawning. Look, for example, at the chub in the river Endrick. That fish, a non-native freshwater species that was probably introduced by anglers, is recorded once every two or three years, but fish biologists reckon that the water temperature during spawning time needs to increase by only 0.3°C for it to spawn successfully. That is a serious problem waiting to happen.
I see that John Scott, Bill Wilson and Liam McArthur want to get in. Perhaps if they ask their questions our four panellists can decide among themselves who will answer them.
Do you agree that the habitats that we are seeking to preserve and enhance and that are used in particular for rearing pens for pheasants and partridges have often been created by landowners, who are perhaps the most conservation minded group of people in the countryside? These habitats were originally created for hunting—and, indeed, shooting—and are primarily kept now for shooting. Going back to Peter Peacock’s initial question, I wonder whether you can indicate the scale of the problem of the overpopulation of release pens. How much land is affected? Does its biodiversity recover? Finally, do you agree with my understanding that were pheasant and partridge not to be put down annually in their thousands they would probably die out very quickly? Is that not fair comment?
I am not sure whether your last comment is fair. Both species probably have an established breeding population in the wild. The British Ornithologists Union classifies them as sort of naturalised, which I think is true in southern Scotland, anyway.
What is the scale?
It is very difficult to get sound data on that. As far as we can tell from the Department for Environment, Food and Rural Affairs poultry register, there were 5 million pheasants and red-legged partridges—4 million and 1 million respectively—in Scotland in 2009. We cannot say how many are released.
I suppose the physical aspect of a pheasant release pen is around half an acre, or perhaps not even that: around 40m or 50m by 40m or 50m. We are talking about perhaps one or two pens for each estate, which might cover 3,000 or 5,000 acres. The scale of the impact around the pens is very localised, is it not?
Any pheasant release pen on that scale would—as long as the density of birds was not greater than a thousand per hectare—be within the GWCT’s guidelines. From what we can tell from the limited published evidence, there is a strong density effect.
I did not know that.
Some of the pens can be big, and the densities can be very high. I worked with pheasants in their native range in southern Asia, and they occur naturally at a very low density, as opposed to the super-high densities that some commercial pheasant releasers are working with. There are all sorts of problems such as diseases—pheasants have to be injected, for example.
Are there any 5 hectare pheasant release pens in Scotland? That is 12 acres; I know what 5 hectares looks like.
I am not sure whether there are any in Scotland, but there are certainly some in northern Britain. As I said, there are not much recorded data on that.
Bill Wilson and Liam McArthur can both ask their questions before any of the panel members answer.
One thing occurs to me from what you have said. It sounds as if it would be economically inefficient to produce a lot more red-legged partridge than people are going to shoot, or am I missing something? Can you give us an idea of how you propose to regulate the area? Would it be a complex system, or is it straightforward?
I accept the point about species xenophobia, and I do not for a moment accuse the witnesses of that, but where do we draw the line with regard to non-native species? Plenty of species are now widely considered to be native simply by dint of having 3,000, 4,000 or 5,000 generations in the graveyard. To what extent should we be able to apply the provision retrospectively in weeding out non-native species? Which point in history do we define as the point at which our biodiversity was set and anything that came thereafter can be deemed a non-native species?
I will start by answering Bill Wilson’s second question, which was a technical point about how the system might operate.
I will talk about drawing the line between what is native and what is non-native. I trained as a palaeoecologist, so I spent many years looking at the vegetation history of Britain and Scotland, and the issue was central to that research. We are lucky in Scotland, because we had a glaciation about 10,000 years ago that wiped the slate clean, in effect. After that, species came into the environment in their own way. As they evolved as part of an ecosystem, that ecosystem was ecologically balanced—until about 5,000 years ago, although when the change happened is much debated. That is the approach from which we come.
Yes.
Can we move on? Liam McArthur has other questions on non-native species.
Dr Long talked about species in the wild. The bill creates the offences of releasing an animal outside its native range and of planting or causing to grow in the wild a plant outside its native range. Concern has been expressed that those concepts could be vague. Do the panel members agree?
Those definitions have been the subject of much debate in the Scottish working group, on which LINK members sit. We have been fully engaged in those discussions. We are convinced that we can define those terms clearly and have useful definitions that will support the bill. Those discussions have been long and they continue. We think that the code of practice that is being developed will be strong enough to help to define those terms in a way that is useful to the bill.
As the bill creates criminal offences, the degree of legal certainty needs to be pretty high. From the discussions that you are having, are you convinced that that legal certainty exists?
We will get there through the Scottish working group. A range of organisations are members of that group, so we can draw on a huge range of expertise to contribute to the discussion.
The RSPB, possibly within LINK, has expressed concerns about the lines of responsibility on invasive non-native species. Will you expand on those concerns and on which agencies you would like to have that responsibility under the bill?
I will answer that. If you are going to take action to combat the threat of invasive non-native species, it is critical that you act at the earliest invasion stage possible. It is preferable to prevent establishment in the first place. Once establishment has happened, it is preferable to nip it in the bud as early as possible. That is not just desirable in ecological terms; it makes financial sense on an enormous scale. Some invasive non-native species are costing us millions of pounds that could have been saved if the invasion had been nipped in the bud. In principle, therefore, it is important to act.
There is an irony in a country that is exalted for its approach to non-native invasive species sending invasive weeds over here.
It is difficult to be absolutely prescriptive. Broadly speaking, there is the principle of prevention, then control and eradication or long-term regulation—that is the three-stage approach that is recommended by the Convention on Biological Diversity, which is the framework that has been broadly adopted by the Great Britain-wide non-native species process in which Scotland is involved. The principle is, as I said earlier, to act at the earliest possible stage of invasion. That is a cost-effective way in which to do it.
It wisnae me.
They were almost certainly released by some well-meaning individual—as were the hedgehogs on the Uists—but it is a serious issue. The experts at controlling Mustelids, the gamekeepers, tell us that they are pretty successful in controlling some species but that stoats can be difficult. It is a potentially very serious invasion that is happening right now and which needs to be nipped in the bud. I am glad to say that as we speak SNH is engaged in that and is bringing experienced mink trappers from the Western Isles to address the issue.
We must move on. I ask members and panel members to keep their questions and answers brief.
Is there some disagreement between Plantlife and RSPB Scotland on the INNS issue? Plantlife is calling for
What I said was that a duty may be one way in which to do it but that, if that was deemed too difficult, there are other ways in which to do it. With this sort of thing, people often say that a duty would be incredibly difficult and would extend SNH’s remit into areas that belong to other agencies, so we cannot have a duty. All that I am saying is that it is difficult to identify lines of responsibility. It is a complex issue and we do not want to fall at the first hurdle.
So, you would like a duty but you would settle for—
We would certainly settle for a duty.
The confusion perhaps stems from the fact that, ideally, we would like a duty to control or at least do something. There is also the duty to have a co-ordinating body responsible for ensuring that action is taken. We have used the same word in two slightly different ways.
Who will have the duty?
Paul Walton talked about it in relation to having a co-ordinating role. That is how we would—
So, it would not be a duty for local authorities. You are talking about a single body, whether SNH, SEPA or—
As Paul Walton said, that is one potential solution. That is one mechanism that we recommend that you consider.
Could you estimate a cost for that duty, or is that a how long is a piece of string question? The cost of eradicating one species in England was estimated to be £3 million.
That was specifically for crassula helmsii, and England has many more sites of crassula helmsii than we have in Scotland. Because we have so few sites, the cost would be lower. Apart from that, though, I am afraid that it is a how long is a piece of string question—it depends on the species.
I presume that that emphasises the importance of getting in early.
Yes.
Absolutely. Some estimates have been made of the relative costs of early and late action, and it can be between 100 and 1,000 times more cost-effective to act at the early stage of an invasion. If it can be stopped before there is a serious problem, that is far cheaper. It is common sense.
You referred to prohibition, then control and eradication—
Prevention.
Sorry—prevention, then control and eradication. Normally, one might think of prevention, eradication and then control. Could you clarify that?
We prevent release. We want to stop these non-native species getting into the wild. We now have a no-release presumption. That does not finish the issue, of course. We have to deal with species such as crassula helmsii that are not well established but small populations crop up here and there. We need provisions to deal with that. We also need to deal with more chronic species such as Rhododendron ponticum. A strategic approach is needed to these species; we have to choose priority habitats where we want to prevent the spread of these species. We will never eradicate species such as Rhododendron ponticum in this country, but we can prevent them from degrading high-quality habitats.
My questions are on section 18, on species licensing. I will save time by putting my two questions together. First, the provisions of section 18 enable species licences to be issued
We completely agree with the principle that circumstances should exist under which licences are granted to kill or take protected species. That principle is contained in the derogation licences in both the birds and the habitats directives. As Paul Walton said earlier when talking about geese, we completely accept that circumstances can make that necessary. The important point is that the circumstances need to be well defined. The case that has to be made for the social and economic—and even the conservation—purpose of taking or killing a species should be significant and serious. For example, the directives use the phrase: “serious damage” to livestock and fisheries. In the LINK/RSPB evidence, as is the case in other evidence such as that from the Scottish Wildlife Trust, we say that we find the phrase
I think that they are required to do that.
Yes, they are required to consult SNH and get its views, so why not just use SNH as the body? We do not know what the arrangements would be if SNH gave advice and a local authority chose to do something different. Would ministers intervene in that circumstance? There is a lack of clarity on that. Before the Protection of Birds Act 1954, which is going back a long way, local authorities had such powers. The 1954 act and the 1981 act consolidated all the powers and gave them to central Government and its agencies to ensure consistency throughout the country.
I want to clarify something that Lloyd Austin said in his answer to Elaine Murray’s first question. His answer embraced animals, plants and birds, but the provision under which a licence can be issued
Yes, that is my understanding. The 1981 act is framed differently because it is a transposition of the two directives—the birds directive and the habitats directive, which deals with plants and other animals. The provision in the bill applies only to the other animals.
We had evidence last week from Alex Hogg, who is sitting behind you in the public gallery. He argued strongly, as others have, that there ought to be a system for licensing the taking of otherwise protected birds if they were impacting on, for example, pheasant and red-legged partridge—we touched on that earlier. What is your view on that? We have touched on the issue in relation to geese, but what is your view on buzzards and other raptors that might be caught?
I simply repeat what I said earlier, which is that we have no objection to there being provision for licences to take otherwise protected species. Those provisions exist in the birds and the habitats directives. The important thing is that the provisions are robust, that the tests are applied robustly and that the circumstances in which licences are given comply with those tests.
I agree. We are not saying that there are sacred cows and that certain things must never be done. It is worth remembering that the European nature directives work. The way in which annex 1 species have fared since the introduction of the directives has been an extraordinary turnaround for some of Europe’s most threatened species. The directives are delivering the public good of nature conservation. The tests that they prescribe for licensing make sense and we believe that they should be the minimum provision. There is plenty of evidence to indicate that that is a sensible approach.
I am grateful for that.
I apologise to the panel members: I have to move an amendment in another committee meeting, so I might have to shoot off at some point.
I think you are right. It comes back to one of the themes that we have touched on this morning; the data on deer are not great. We do not have great numbers from population counts; we have estimates for some parts of the country. The general trend across the northern hemisphere for ungulates is that their populations are rising. That is to do with climate change and a range of other factors.
Would anyone else like to comment?
What evidence there is—I repeat the caveat—from looking at Deer Commission for Scotland count reports is that there has been a general, steady, increase in the population from about the time the system started, but we are really not concerned about that as a generalisation; it is only in specific areas that you need to think about it. For example, there has been a huge increase in forestry as a result of planting in south-west Scotland, so there are big deer populations in a habitat that can sustain higher numbers than there were previously, but that is not the point; the point is the damage that they are doing to some of our special habitats, either within or outwith designated sites.
Last week we heard from the landowners’ organisation—the SRPBA—that it did not feel or believe that the roe deer population was as big a problem as the red deer population up in the Highlands. Can you differentiate between geographical areas and say that some may need more close scrutiny, or would you say that, on the whole, we need to improve deer management across the country?
There are certainly very different issues with roe deer, as they do not form big herds and they do not roam over open habitat, but there are increasing concerns about, for example, vehicle collisions, and if we are trying to achieve Government targets on carbon sequestration through planting, there will be issues with deer management in lowland areas, which are more likely to be roe deer areas. No matter where the situation occurs, a framework has to be in place to manage deer effectively and collaboratively.
Why is there a difference of opinion between Scottish Environment LINK and the SRPBA, which suggests that it is perhaps not a big problem in the south or in lowland areas?
I cannot speak for the SRPBA. Generally, the original consultation document recognised that the current system of voluntary deer management groups had to be addressed—it is easy to kick something, but it is not fair because they were not set up to do the job that they are now required to do; they were set up as a way of collaborating on sporting objectives and since then a whole lot of access legislation and reforms have come in, so they now have to deal with things that they are not really constituted to do—and that we need more of a statutory framework to manage them in. We understand that there were not many objections to that in the responses to the consultation, so we are slightly surprised that the bill does not take that approach and puzzled as to why it seems to be rolling back on it.
If there were a greater obligation on deer management groups to have such plans and strategies, what would you use to inform decisions about the objectives or about agreeing cull levels? How would those be determined? How would the system work in practice if there were a greater obligation to produce plans?
There are examples. Under section 7 of the Deer (Scotland) Act 1996 there are agreements around designated sites. There is good coverage of at least half a dozen sites across the country, from Glen Feshie to Breadalbane. We have just signed up as a landowner for one in the Breadalbane area. Obviously, that is about a designated site, but the current system takes into account social and economic factors, and when a deer management plan is produced the first bite is given to local landowners and deer managers to try to agree what kind of habitat monitoring is required and what targets need to be put in place. We have a system that works already, but there are areas to work on. That system has to work. We have to sit around the table and discuss the objectives.
I would be interested to find out a wee bit more about other ways that are used to control deer. You spoke about using fences, for example. Are such methods common in the area that you control? Are they effective or is there a need for the cull?
Fencing tends to be controversial for lots of reasons. If you are planting new trees, which are very palatable, in an area where there is no seed source, in most circumstances you will need to protect them somehow. More generally, under current guidance, if you fence an area out and exclude deer, on welfare grounds you should do a compensatory cull of the deer that were dependent on that area for shelter or habitat. So, fencing an area off does not mean that you will not need to kill extra deer; you will still need to kill the deer that were living in that area. If you have too high a density of deer, all that will happen is that you will move the problem elsewhere. Fencing is a tool that land managers use along with lots of others, but it is not a universal solution. Equally, on our own properties, we are not just concerned with one particular habitat; we are concerned with habitat ecosystem health from the summits right down to the bottom. Rather than fencing one area, we would have to fence the entire property, which is not a practical or cost-effective mechanism.
It is proposed that SNH would take the lead in this. The committee is led to believe that SNH currently has a number of powers. Is there a way for it to employ those powers better, whether the powers under the Nature Conservation (Scotland) Act 2004 or others, to improve deer management? Do you think that that needs to be up-front in the bill?
The principle, which is that we need to have a responsibility for sustainable deer management, needs to be up-front in the bill. I defer to Lloyd Austin. I am not sure what the best technical way of doing that is. We have some proposals. At the moment, the proposal seems to be that there is a code or a duty on SNH to do something, but it has no force in law. I am not sure how a code for a public body will deliver something. What we need is a statutory framework or plan. There is a precedent for that kind of national resource. SNH is the obvious partner to lead on that, but I will leave it to others to sort out the details.
I want to add to the point that Mike Daniels made about the statutory duty. You will recall that the Government’s original consultation paper proposed a statutory duty for sustainable deer management to apply to everyone, but that has not come forward in the bill. You heard in evidence from the Government officials that there were legal technicalities from a human rights points of view that prevented that, because, in the form that I have just described, it would be an unclear type of statute; if you were to charge someone with not carrying out sustainable deer management, it would not be clear what he or she was intended to have done or not done. We recognise that that difficulty needs to be got over.
Throughout the questions and answers that we have heard, there has been a lot of talk of giving SNH powers to do this and that. It seems that the duty that you would require it to take on is quite onerous. How practical would it be for SNH to do that when there is less money in the coffers?
On a point of principle, we talked earlier about the cost benefit of nipping things in the bud in relation to non-native species, and a similar thing applies in relation to deer. Downstream costs arise from having too many deer in certain areas, such as carbon release from trampled peatlands, not getting carbon sequestration from woodland growing, flood catchment issues, and a loss of biodiversity. We tend to think in the short term, and I know that the parliamentary session is short, but there are long-term gains to be had here, so I make an appeal that we need to do the right thing.
So it is about getting a much quicker response to what is going on and acting quickly to prevent the problem, and you believe that the resources are there if you rejig things a wee bit.
Yes. Obviously I cannot comment from SNH’s point of view, but that is the perception from the outside.
Can we turn to different types of muirburn practice? How do you think the power for ministers to make orders that vary the muirburn season in particular areas, particularly on grouse moors in August and September, would be used? What evidence exists that that would allow muirburn to be prohibited on sensitive habitats? One of the submissions mentions that. There are a whole lot of questions there. Discuss.
In general, we welcome the introduction of greater flexibility. The changes of dates that the bill proposes in relation to muirburn on grouse moors have been discussed at considerable length with all stakeholders, through Scotland’s moorland forum, and there is considerable consensus that the proposed dates are acceptable to all parties.
The main issue is the moss and liverwort communities. Those communities grow all year round and have no quiet time, which is why timing is an important issue, particularly for bryophytes and lichens.
That was fascinating, thank you. Do the other witnesses want to talk about oceanic heath communities?
I ask the other witnesses not to do so unless they really want to. Time is pressing.
We would have no objection as long as the burning did not take place in the ground-nesting bird breeding season. That is why we support the flexibility that we have spoken about.
In its submission, the RSPB talked about the Loch Garten area of special protection. In layman’s terms, what is the difference between the current position and what is proposed?
Loch Garten, which, under its designation in the 1954 act, is known colloquially as a bird sanctuary, was turned into an area of special protection in the Wildlife and Countryside Act 1981. There are seven such areas but, in the bill, ministers propose to abolish the designation because more modern legislation can provide the same levels of protection against, for example, disturbance. In theory, we agree with that, because the Land Reform (Scotland) Act 2003 and the Nature Conservation (Scotland) Act 2004 both contain mechanisms—either byelaws or ministerial orders—that can provide the same levels of protection as an ASP. However, if you abolish the ASP provision in the 1981 act without replicating its effectiveness in byelaws or ministerial orders, you are effectively doing away with the status quo, if that makes sense.
So if you had a guarantee or commitment that one of the triggers that you suggested would be enacted, you would be quite happy.
Yes. If we get a copper-bottomed guarantee that something else will be implemented, we will support the abolition of ASPs.
During the passage of the Marine (Scotland) Bill, you convinced the committee of the virtues of having a requirement to establish an ecologically coherent network of marine protected areas. In your written submission, you suggest that the bill could do the same with Natura 2000 sites, but that the opportunity has not been taken. Can you convince us of the virtues of such a move as you did with regard to marine protection sites in the Marine (Scotland) Bill?
I will kick off and see whether anyone else wishes to add anything.
I am quite taken by your idea about land use planning, but would the spatial planning and land use strategy exercises that the Government is carrying out at the moment not be the place to feed in such suggestions? I am not saying that the bill is not the place for it, you understand.
The answer to your question is yes. Indeed, that is what we are doing. However, the bill provides another opportunity to say to the Government that although there are good initiatives in the Scottish biodiversity strategy, the land use strategy, the national planning framework and so on, some of those initiatives and vision statements are not being delivered on the ground. The bill could refer to those different duties and initiatives and create a mechanism that puts more responsibility on local government, agencies and so on to hardwire delivery into their budgeting and prioritisation processes.
Unless members have any pressing questions, I will end this particular evidence session. I thank the witnesses for their evidence. Any supplementary evidence that they wish to provide should be given to the clerks as soon as possible. We would, for example, be particularly interested in the number of pheasant pens in Scotland rather than in north Britain.
I welcome the second panel: Bob Elliot, head of investigations at RSPB (Scotland); Alex Hogg, chairman of the Scottish Gamekeepers Association; Sheriff T A K Drummond QC; Mark Rafferty, from the special investigation unit of the Scottish Society for the Prevention of Cruelty to Animals; and Constable David McKinnon, a wildlife crime officer with Grampian Police.
I want to start with the general tightening up of wildlife offences in the bill, principally in relation to game law, snaring, badgers and non-native invasive species. Sheriff Drummond might want to comment on his separate paper about poisoning, although we might come to that later if his paper also relates to the issues I am raising.
I am slightly concerned about the direction that the law is beginning to take. Professor Colin Reid has already expressed a similar view. The law is becoming fragmented, so it is getting difficult to find and to see the direction in which it is going. If it is difficult for people such as myself and academics such as Professor Colin Reid to find the law, I only ask the committee to have sympathy for the operators who are trying to apply it on the ground.
What would you propose to do about that? The bill seeks to tidy up various issues that require tidying up because they have been lying around in different places for a while. Do you have any suggestions other than to make some kind of consolidation act, which would be quite complex?
Mr Peacock, I have been involved in the broad area for 30 years as a prosecutor, defender, trainer and judge. It used to be a pleasant and happy little legal backwater, but in recent years we have had a legislative tidal wave. If you think back, over the past few years, we have had the Protection of Wild Mammals (Scotland) Act 2002, which included the hunting legislation but never mentioned a horse, the Nature Conservation (Scotland) Act 2004, which amended the Wildlife and Countryside Act 1981, some of which is being amended again, the natural habitats regulations, and the Animal Health and Welfare (Scotland) Act 2006, which introduced some substantial issues. The snaring issue has arisen and the bill proposes to replace the snaring provisions in the 1981 act.
That is a helpful insight. Does anybody else have any comment to make on that or on the wider point that I raised?
Sheriff Drummond’s comments are well made. The law is complex and I remember that, when I started my job, I wondered where to start with some of the Wildlife and Countryside Act 1981. It is, though, strong legislation. In this backwater, as it has been described, we have made some serious changes, and it is the Scottish Parliament that has done that in Scotland. We have a tradition of being speedier on our feet in legislating than is the case south of the border. I attend many conferences with police officers and so on south of the border, and we can say, with some pride, that we have some very good legislation in place. Interpreting that legislation can be an extreme challenge—I defer completely to Sheriff Drummond on that. However, there are still some fairly straightforward offences that we are having a lot of trouble in getting enforced. Perhaps we will return to that in a minute.
If there are no further answers to my original question, I am happy to leave it there.
Before I ask my main question, I have a quick question on wildlife crime. I understand that, at the moment, wildlife crime is not a recordable offence. If that is the case, does that give us any difficulty in understanding the incidence of wildlife crime and where the crimes are happening? Would it be useful to have it as a recordable offence?
If it was officially recorded, that would give us some statistics to work from. All eight Scottish police forces submit monthly returns to the national wildlife crime unit, which collates returns for the United Kingdom. Quite detailed incident reports can be produced, but whether incidents are properly recorded as crimes and recognised in crime statistics is another matter.
There is quite a good recording system in the Scottish intelligence database. Quite a lot of work has gone into trying to get wildlife crime into that, but it still does not feature highly. In numerous cases, I have been incredibly frustrated by speaking to senior police officers, who may not necessarily have expertise in wildlife crime, who do not see the data on their system. I have tried to explain about some criminality that has been going on for X number of years, but they have looked at me and said, “That’s really interesting, but the system is telling me that there’s been no such crime in my area.” We have a long way to go to get wildlife crime offences properly recorded. As Dave McKinnon says, the national wildlife crime unit has made a lot of effort to do that, but it is a small unit. Thankfully, it is based in Scotland, but it has a United Kingdom remit and faces huge challenges just now. With budget cuts on the horizon, that can only get worse.
I suspect that part of the problem is that there has never been a definition of what constitutes wildlife crime. It may be obvious when people see it, but as far as the number crunchers are concerned, there has never been a definition that allows them to tick an appropriate box. We now have a definition, although I have no idea whether it is a working definition that enables those involved in the collation of statistics to operate.
As a former police officer of 22 years and a wildlife crime officer in the Scottish Borders, I would add that because wildlife crime is not a recordable crime, senior management in the police tend not to put suitable resources into it. They are not judged on their performance in relation to wildlife crime, so it is perceived that they do not need to put the associated resources into it. If wildlife crime was elevated to a group 5 crime, they would be judged upon their ability to detect and investigate it. That might have the effect of encouraging senior managers in the police to put more resources into wildlife crime investigation.
Several members of the panel have mentioned resources, which brings me to my next question. There are clearly concerns about substantial budget cuts. Such cuts might impact on, for example, the amount of police time that can be spent on wildlife crime, or on procurators fiscal and wildlife and environment crime officers. Constable McKinnon, are you about to become an endangered species?
Hopefully not. In my force, we have a resource of 1.7 full-time equivalents committed to wildlife crime, with a network of about 10 active part-time officers. Proportionally, for our force in Grampian, that is not a huge commitment. For the 10 part-time officers, wildlife crime investigation is a specialist skill that they have acquired, like any other specialist skill in the police force.
I am sure that even now there are challenges for the Grampian model with the amount of resource that the police force has. Although we in the RSPB would always ask for more, we would not say that huge amounts of police resource should be applied to wildlife crime. We are asking for a proportionate model to be put in place, which is really what happens in the Grampian model. At the grass-roots level, if something is discovered in the countryside, I know that I can get hold of a wildlife crime officer by contacting David McKinnon—he is on speed dial on my mobile phone. That is the simple reality of having someone available to co-ordinate. I suppose that Constable McKinnon has to take leave at some point, but even then someone else is able to attend to the situation. There is a system in Grampian Police that recognises that.
Grampian Police is an exception to the rule, certainly for policing in Scotland. I am part of the special investigation unit of the Scottish SPCA, and as such we cover the whole of Scotland. We have statutory powers under the Animal Health and Welfare (Scotland) Act 2006 and on most occasions we work jointly with the police. Sadly, the reality is that most police forces see wildlife crime as low priority or no priority, and it is resourced accordingly. Certain police forces—I will not name and shame—do not have any commitment to wildlife crime. That poses problems when people report a crime, the SSPCA goes to assist the police and no police officers are available, let alone wildlife crime officers.
To follow up on that, it has been suggested that SSPCA inspectors could be given the same powers in relation to wildlife crime as they have in relation to animal welfare. Will the panel comment on that suggestion? What kind of training would be required? Would it be expensive to do that? Are there other organisations to which such powers could be extended?
The SSPCA has been a reporting agency to the Crown for more than 100 years. In 2009-10, it reported nearly 200 cases for prosecution to the Crown Office and Procurator Fiscal Service. The special investigation unit reported nearly 50 cases in its own right. Those cases involved animal welfare, but there is no restriction on what the SSPCA can report. For example, offences under the Wildlife and Countryside Act 1981 are routinely reported.
Are there any downsides to that?
Big ones. You have moved straight on to what is probably the single biggest area of fragmentation. Section 19ZC of the Wildlife and Countryside Act 1981, which was added by the Nature Conservation (Scotland) Act 2004, introduced the powers of wildlife inspectors—ministers may appoint wildlife inspectors. We now have a situation in which there are local authority inspectors, private inspectors—the organisational inspectors—and police officers. Nobody has yet given any cohesive thought to the various powers that the organisations and individuals should be able to exercise.
In that regard, you are talking about a tsunami of legislation in recent years, which others have to endure. You have been long on the analysis of the problem, but can you offer some solutions to give us a sense of direction?
My own thinking on the matter is to try to focus the crime element of environmental law—wildlife law—in the 1981 act, so that we do not have to chase through a variety of statutes. This is off the top of my head and not thought through, but if that were able to take place, it might be possible to extract from the Wildlife and Countryside Act 1981 the criminal element of the environmental activities and codify that single element. I have no idea whether that would be possible—that is just one suggestion.
In that regard, is the bill, as it stands, adequate or inadequate? From your elevated position, can you see any way in which we can easily improve it? Can you make any suggestions—if not now, on reflection?
I hesitate to answer the question, as it is not my position as a member of the judiciary to tell the legislature what direction it should take.
So, we have a conundrum.
We have a conundrum. I have been encouraged by what I have seen through the mechanism of the legislation, regulation and guidance committee of PAWS. I regard my function within that committee as being to focus the conflicting interests, to formulate what the conflicts are and to attempt to reconcile them. That seems to be a very good mechanism for approaching the subject, although it is in its early stages and we are all just feeling our way. Also, an administrative attempt is being made to restrict the committee’s size in order that it remains manageable. That kind of thing might be a useful mechanism, or a standing committee on the issue, but I have no idea. Those are just random thoughts off the top of my head.
We will come back to vicarious liability. Let us go back a bit. Constable McKinnon, do you have anything to say about the idea of increasing the powers of other bodies?
That is more a matter for policy at the level of the Association of Chief Police Officers in Scotland. In Grampian, I work closely with the SSPCA on the investigations side and with the uniformed inspectors. Joint working is not a problem. We often undertake joint inquiries, and the SSPCA will take on an inquiry after it has passed through us or we will take it on after it has passed through the SSPCA. That is not a problem. Mark Rafferty’s proposal of an increase of 62 inspectors in Scotland would provide a potential added resource. However, as we have a good working relationship with the SSPCA in Grampian with a 1.7 full-time equivalent resource, could the situation not be managed by the Scottish police service addressing that issue?
Sheriff Drummond, I understand that one of your concerns is that the SSPCA would have these powers but would not require a warrant, which is different from the position for the police. Would it not be possible to ensure that the SSPCA had to get a warrant before they went on to land to pick up the carcase? Clearly the problem is that because the areas involved are very large, it is often difficult for the police to get to the scene and it is very difficult to acquire the evidence in time. We clearly need to find some way around that. Would what I have suggested be a solution, or would you still not be happy with that?
I have no difficulty with whichever solution the committee chooses; you should simply be clear about what that solution is. At the moment, the proposals seem to be all over the place: limited powers are being given to wildlife inspectors; there are different categories of wildlife inspectors; and specific powers are being given exclusively in relation to constables. Other organisations would express concern about private bodies having the power simply to walk on to their land and carry out police investigative powers without being subject to the controls that exist in relation to police officers. There is no public control over the activities of the RSPB or the SSPCA. They are private bodies and charities and are able to operate within their own policy statements. They are not within the control of the Parliament, the judiciary or anybody else; they are free individuals. On the other hand, the police are a mechanism of the state and are under very clear control.
We are talking about something that is in place at the moment: SSPCA inspectors, as authorised by Scottish Government ministers. We are not acting as individual persons. As the law stands, throughout the whole of Scotland, both the special investigations unit and our uniformed colleagues in the inspectorate obtain warrants to enter houses in relation to animal welfare offences. That primarily involves domestic animals, such as cats and dogs, but it also involves agricultural animals, such as sheep, horses, cattle and the like. It also extends to wild animals that have been made captive, which would cover an eagle in a trap or a fox or badger in a snare. We have those powers at the moment under the Animal Health and Welfare (Scotland) Act 2006, which gives powers to both a constable and an authorised inspector—the position of SSPCA inspectors is defined.
From an RSPB perspective, the 1981 act is quite clear—I defer greatly to Sheriff Drummond on that, of course. Under section 19, a police officer can go on to land “without warrant”. Someone before I arrived took that big step to ensure that a police officer could go and seize the eagle or poisoned bait or respond to whatever had happened and collect the evidence. That is the bit that we are trying to get at.
We will take the issue forward.
During the thematic crime review the SGA’s response was that all wildlife crime should be recorded, but that never happened. We also said that we support the police 100 per cent and we would rather that the police were trained to identify birds, feathers, eggs and so on. We would rather have a fully trained police force, because the police are neutral, which is important when we consider the different sides that are involved. People want to be treated fairly.
Constable McKinnon, do you have information on special constables?
My understanding is that Tayside Police ran a scheme, but I cannot comment on the uptake, as that is not my force. We have a special constable network in Grampian. The special constable who was assisting me with a wildlife inquiry last night is an air traffic controller, not a gamekeeper, but I would welcome greater participation by people who work in the rural community—stalkers, ghillies, keepers, bailiffs or whoever. We want to explore that through the Cairngorms National Park Authority. In my opinion, the pool of people who become special constables is far too narrow, and it should be widened to include anyone who has something to contribute and has an interest in their rural community.
Sheriff Drummond, in terms of the right of an individual to private enjoyment of his own property and, therefore, not to have individuals who are not police officers on his land, would the European convention on human rights have an impact on the issues that we are discussing?
Yes. Indeed, when I was reading over some of the existing powers that are in the relevant legislation last night, I wrote, “query ECHR” in the margins. I do not know to what extent compliance has been checked in relation to some of the powers. I would like to think that the Government’s legal people had scrutinised the legislation properly, but I believe that it raises ECHR issues. Today’s discussion has demonstrated the sensitivities that exist in this area and the fragmentary nature of the problem that we face. The issue is right on the front line of the investigation of wildlife crime, and it has to be resolved sooner rather than later.
There has been a huge increase in wildlife crime. To what do you attribute that rise?
To the fact that wildlife procurators fiscal have been appointed. Because I am known as having an interest in wildlife matters, fiscals will give me anything that involves an animal. I have found myself dealing with somebody who has gone away on holiday without leaving food for his cats, because someone thought that that was a wildlife crime.
The question is a good one. We dealt earlier with the problem of recording, but another issue concerns the number of incidents that are found every year. You will see headline news that says that more things have been found or fewer things have been found year on year, but that is because items such as poisoned baits and so on are rarely found. We know that more is going on out there, but we just cannot get to it—hence our previous conversation.
So the figures might suggest better reporting rather than an increase in the incidence of wildlife crime, but at the same time we are only scratching the surface.
Absolutely. PAWS is quite a good network in Scotland. I do not think that the UK-wide PAW network works as effectively as ours does—but I would say that. A lot of education work is being done by countryside managers and other interested parties, and a lot more awareness raising is going on. We are able to speak directly to people such as you. The Science and Advice for Scottish Agriculture reports confirmed incidents every year. They are mapped, and we work hard with the SRPBA on that. The maps were published earlier in the year. We are starting to get there with our work to identify the extent of the problem. From an RSPB perspective, when I am trying to assist with something such as an eagle that has been poisoned, it just backs up for me what the science is telling us. It is one of those rare occasions when you see cause and effect and think, “I now know that that is true,” whatever the concept is.
There is a general feeling in society that our natural heritage and wildlife are extremely important to Scotland, and with that comes the attitude that the public do not want wildlife crime, that they want it stamped out, and that they want the authorities to do something about it. Between 2009 and 2010, the SSPCA dealt with 150,000 calls in which animal welfare issues were reported, some involving wildlife crime, and the figure goes up every year. As society realises the importance of its natural heritage, the authorities will come under increasing pressure to protect the resources and environments that we have in Scotland.
Please be careful, though. You heard one of the most fundamental errors of logic. Absence of evidence is not the same as evidence of absence, but those things tend to get conflated in the course of discussions such as ours. We assume that, because we are not finding stuff, it must be there. There might be many reasons—for example, the birds might have left—but the assumption is made, and that is where the resentments come in. When an investigation is carried out, nothing is found and it goes down as an investigation with no result. That is the kind of area in which damage is done on a public relations level between the investigator and the investigated. I would dearly love to see those being able to be merged.
I want to ask about the dangers of our becoming overzealous and getting people to report wildlife crime or animal welfare crimes too much because they do not understand. How do we get the right balance to ensure that people are making appropriate reports?
From experience, I have found that most people tend to say to police officers as well as to the SSPCA, “I’ve never reported this kind of thing before because I didn’t think you would do anything about it.” However, people are slowly beginning to realise that they should report these things. As a result, I think that there was very much an underreporting rather than an overreporting of these crimes.
On the question of research versus evidence on the ground, I have to say that there is hardly any evidence on the ground because no one is going to find it. That is the obstacle that we face.
Are you not making a big leap in concluding that, because the birds have disappeared, they have been poisoned? You are talking about two climatologically different areas 500 miles apart that support environments for the species and yet you are saying in evidence to the committee that those birds have definitely been poisoned. Is that not a big leap?
No. What I am saying is that the birds that went to the SASA were definitely poisoned. Either a bird has been poisoned or it has not—either it will prove positive for a substance such as carbofuran or it will not.
And all the birds that have disappeared have been traced and sent to the SASA.
No. What happens is that natural mortality will be considered in the research. You work out whether the food supply and productivity are the same and, in that regard, the fact is that the red kite population on the Black Isle produces just as many chicks as the population in the Chilterns. The issue is not food supply. The young raptors are slow to breed because they wander widely. Members will have seen the story in the press about Alma, the golden eagle. This bird, which had been satellite-tagged and was into the third if not fourth year of a particular study, had been roaming on the lookout for nest sites, but ended up dead, poisoned on the grouse moor.
I think that you have to be careful. As you guys saw for yourselves last week in Langholm, two pairs of harriers laid and then failed. If they had not been under such close scrutiny, the RSPB would have said right away, “Oh, they must have been poisoned.” There are many different reasons why things happen.
Hen harriers do not get poisoned. They get shot.
This is rather intriguing stuff and I want to dig into it a bit deeper. It has been put to me that the number of poisoned birds that we discover is the tip of the iceberg and there are many more that we cannot discover, because people do not come across the evidence, given the scale of the territories that we are talking about. I do not know whether that is the case. I said last week that it had been put to me that up to 50 golden eagles a year could be poisoned. The evidence is not that they did not hatch, but that at a certain age of maturity, they vanished from the scene. The witnesses are involved with this issue day by day. Are we seeing only the tip of the iceberg? If so, how big is the iceberg?
As a wildlife crime officer, I dealt with an incident in the Scottish Borders when I went on to an estate and recovered 25 poisoned birds in one day, which resulted in a conviction. The person involved had been a gamekeeper for somewhere in the region of 13 years. I have consistently found that persons who are involved in the most serious levels of wildlife crime will also use all the lesser methods of criminality. That means that if they are poisoning animals, they are likely to be using illegal traps and if they are using illegal traps, they will be using unlawful snares. When you find one offence, you inevitably find a series of offences. It is a particularly difficult area to quantify. Given the resourcing difficulties, you are just not going to get a conclusive figure, but a significant amount of wildlife crime is happening in Scotland.
You asked how big the iceberg is. You must try to quantify these things properly and scientifically and not just pick things out of the air. I know that a paper on that subject is being prepared at the moment. Using the excellent golden eagle framework document, you could look at the 420 nest sites, see how many birds fledge and how many die and work out the figure.
The figure on which the eagle experts seem to be agreed—on the broad scientific basis that you set out—is really quite staggering. People get upset in Scotland when we hear of two or three eagle poisonings in the course of a year, but you are postulating that the number could be up to 50, as I understand it.
That is correct.
I am probing this issue because I want to know what the motivation behind the practice is, and we can seek to address that through the law. It seems to me that people do not go out and poison eagles for the sake of it; there must be an underlying motivation. For instance, eagles might not be the target and might end up eating poisoned bait or becoming ensnared in traps that are intended for another purpose. What motive do you attribute to the practice?
There are lots of reasons why people put down a poison bait. Some of them might think that it is simply easier than doing lawful things, such as snaring.
Mr Elliot, can you answer the question, which was to do with why people are poisoning eagles, not how they are doing it?
In some areas, it is to maximise game management. If you want lots of grouse, you do not want lots of predators.
As you wander about the countryside, do you detect a change in the broad practices of some estates that might give rise to an increase in poisoning while others continue in their usual steady state? Is something happening with regard to the commercial management of some estates that is giving rise to what, on the face of it, might appear to be at least a short-term increase in poisoning?
We should say, as well, that not everybody is poisoning wildlife. We sit around tables and discuss this issue a lot, when we are not talking to you. In some areas, we still have a big problem with poisoning. We are good at working together, but we are not actually seeing the results on the ground—that is, we are still seeing poisoned eagles and buzzards.
I wonder what can be done when you find evidence of the poisoning of raptors on particular estates. The SRPBA states in its evidence that it is frustrated by the amount of poisoning that has gone on, and it has made public statements condemning estates that poison raptors. We have tried to explore what can be done when poisoning is found on an estate. Would it be helpful if the SRPBA was able to throw the estate out and not have it as part of its membership? Would it be helpful to name and shame estates so that people know what is going on? What sanctions should be taken when evidence comes to light that estates are behaving in that way? From the point of view of the estates, they will all be tarred with the same brush when such things happen unless something can be done to isolate the bad guys from the guys who are observing the law.
May I address that, lest this become a private RSPB discussion between Mr Peacock and Mr Elliot?
I thought that you did quite well earlier.
I have checked sentencing manuals, sentencing material and a document called “Costing the Earth” that was produced for magistrates in England and Wales and I have not found a single case in which there has been a successful prosecution for killing a bird of prey; not one. All the prosecutions have been for possession of pesticides, laying of poison baits or whatever. I am not saying that there has not been such a case, but they are rare. I hesitate in this context to say that they are like hens’ teeth: there are not many of them, yet we talk as if sentencing in such cases is the central issue. The first and most important thing is detection.
If Mr Rafferty goes on to an estate and finds 25 poisoned birds, as he has done, or if SASA has recorded instances of poisoned birds in particular areas, that is not an absence of evidence. That is evidence. What sanction should be applied when such evidence is presented?
It is not a question of what sanction should be applied. The question is what structure will enable those things to be effectively prosecuted, because if that happens, the sanctions that already exist in the legislation are robust. What we find in those circumstances is that a plea is adjusted to the possession of carbofuran outwith its statutory container. That is the framework within which we are operating and it is that which needs to be strengthened.
Sheriff Drummond’s point about the rarity of somebody being prosecuted for killing a bird is entirely correct. We can contrast that with egg collectors. We do not have too much of a problem with egg collectors any more, but it was all the rage a good number of years ago. In the early days, egg collectors probably thought that a fine was their membership fee, but as soon as sanctions came in, which meant that they could be jailed, many of them simply gave up. The threat worked and they stopped collecting eggs. People were being jailed. That happens more often down south because people come up here, nick all our rare stuff and go back down south again. I am generalising slightly again, but that is what happens. Golden eagle and osprey sites are targeted and such egg collections are coveted. Around 20 to 25 people are still involved in such egg collecting. They are always repeat offenders, so they tend to be treated severely. People regularly get six-month prison sentences for committing that offence.
Sheriff Drummond argued that pesticide provisions should not have been part of the Wildlife and Countryside Act 1981. He argued that that act is not the right place for them. Is there potential to address the matter within the scope of the Wildlife and Natural Environment (Scotland) Bill, or would such provisions still not be in the right place?
Suggestions have been made that need to be considered, one of which is to go back to vicarious liability. I would describe such an approach more as community responsibility. A selection of people who are concerned in the use of something would be involved. Pesticide results may be obtained via SASA from people’s knives, game bags, vehicles or whatever on an estate. However, things must be absolutely fair and proportionate. We do not want a disproportionate law, but it must be recognised that line managers and contractors, whoever they are, have a social responsibility to ensure that such practices are not going on.
We will come on to vicarious liability shortly. Sheriff Drummond was nodding his head vigorously, and Alex Hogg wants to say something. Could there be so many raptors and birds of prey that land management would be severely affected? Could land managers ask SNH, for example, for permission to control the number of raptors?
We are at that moment in time with the buzzard population. An inventory needs to be done of the wildlife on an estate each year. It would be fine if 10 pairs of buzzards were found, but if the annual inventory showed an increase to 30 pairs, it would be obvious that there was a need to reduce the species. As I said, we all need to sit round the table and find common ground. If a licence needs to be applied for, we should see whether we can work out a system and a protocol to allow it to be instigated. In saying that, the number of raptors must be at a level at which SNH can say that removing some of the population will not affect the overall population. Everyone has to agree on that.
What Bob Elliot said earlier prompts me to ask the committee to refer to my submission. I will not quote from it now, but the committee may wish to do that at a later stage.
In Grampian, I have dealt with two cases of poisoned indicator species. In one case, ravens were found poisoned and in the other common gulls were found.
Bill Wilson has a question. I remind him that we have already touched on egg stealing.
I will curry favour with you, convener, by combining my two questions on single witness evidence into one. Can the panel give examples or first-hand experience of where someone was convicted for poaching on the basis of single witness evidence? Most witnesses heard the earlier evidence session and Alex Hogg also heard the evidence last week. What are your views on single witness evidence? Should it be held as it is, expanded or abolished?
In 35 years, I have never had a case that turned on the evidence of a single witness. Let us think of the situation of a prosecutor who receives a report of a case that will be contested. In effect, one person is saying, “Here is the evidence that points to guilt” and somebody else is saying, “That is not what happened.” The prosecution of the case may be weakened by the law saying that it can proceed on single witness evidence. I think that I have never in my entire professional career dealt with a case in which the only evidence was single witness. I see it as a gesture—
Have you had cases in which there has been single witness evidence with other corroborating evidence?
Hang on a second: if it is single witness evidence, there is no corroborative evidence.
I understand that. I was just expanding the question slightly.
On that basis, you could say in a murder case that you could proceed on the basis of single witness evidence. Single witness evidence is the absence of corroboration. In effect, it is statutorily saying, “There is no need for corroboration.” It is saying that the evidence from one single source is sufficient for conviction. The statutory effect is the total absence of corroborative evidence. Anyone saying, “Single witness plus corroboration” just takes us back to the ordinary law.
Previous witnesses have referred to single witness evidence plus corroboration. That is why I was trying to clarify the matter.
An awful lot of muddled thinking goes on about such matters, frequently by people who have never spent a day in court. Single witness evidence plus corroboration means the ordinary law. Those are the two sources of evidence that are required.
Would you abolish single witness evidence?
That is a matter for the legislature. Sometimes, it is a gesture but, sometimes, it may be an evidential necessity for the kinds of reasons that have been pointed to. If you want to expand it into other areas under the Wildlife and Countryside Act 1981, by all means do so. However, I have never in my career seen a case that turned exclusively on single witness evidence.
That is helpful clarification.
Sheriff Drummond, I will ask you about vicarious liability, on which you helpfully circulated a detailed and complex paper. I will clarify two things and separate vicarious liability from the points that you began to rehearse a few minutes ago.
That is a matter for the committee. I produced the paper about 12 months ago for the partnership for action against wildlife crime. I called it a discussion paper and said in the introduction:
That is helpful. You have anticipated my next question, which would have been to ask what reaction the paper got. You have given me the answer.
It is not a question of scepticism; to say that vicarious liability will solve the problem is, frankly, to talk about the wrong thing. Vicarious liability is a well-recognised and well-identified legal concept, which is worthy of a textbook—indeed, there are textbooks exclusively on the subject.
That was helpful, thank you.
Let us say that we find on an estate half a dozen carcases that have been laced with poisoned bait. How would your proposal deal with that situation? Would the estate be responsible because the carcases were on it?
In the next part of my submission I gave a bit more detail and addressed some of that. Remember where your starting point is: it is that you have found a person in possession of a poisonous substance that was not being stored in its appropriate container or under appropriate conditions but in what would be regarded in law as criminative circumstances. If my suggestion is adopted, the law will say to the person, “You’re going to have to offer an explanation for that, son.”
Apologies, but I have a point of clarification. People cannot lawfully have carbofuran.
Pick any pesticide—it does not matter.
People cannot have any pesticide with alpha-chloralose, in its pure form.
I am obliged. Pick any name—it does not matter.
We must finish shortly, but I have questions from Liam McArthur, Aileen Campbell and Elaine Murray.
Sheriff Drummond alluded to the link through health and safety provisions between the employer and the employee. When the issue arose at last week’s meeting, the SRPBA pointed to the art and part provision that was introduced by the Nature Conservation (Scotland) Act 2004. Does that provide an alternative link? Can you cite any examples in which the art and part provision has brought in an employer?
The causing and permitting provisions have been in the Wildlife and Countryside Act 1981 since it came in. Off the top of my head, they are to be found in sections 1, 5, 11 and 13. I am not aware of ever seeing a third-party prosecution, if I can put it that way, based on those causing and permitting provisions. A causing and permitting provision does nothing to up the state of the evidence. It is an evidential problem.
I hear what you say about vicarious liability and all the rest of it, but I still cannot get over the fact that there are persistent cases of estates contravening the laws. No matter how many times we get rid of the gamey, it still happens. So who are those people being directed by, if they are managing the land poorly, putting down snares wrongfully or poisoning?
You are asking the wrong man.
It is all very well to have things written in a contract of employment, but if there are other levers that do not have the same paper trail, such as a tied house, ultimately we will never get the person on whom we want to pin the blame. How do we get round that in legislation?
Other panel members might want to answer that.
There is a danger that we see all the acts that we have discussed—we have touched on a few, but we have not gone into all the legislation on badgers, salmon and deer—including the WCA, as not fit for purpose. The scenarios that the sheriff refers to can clearly be dealt with as a section 15(a) offence under the WCA. I have had three convictions for that offence in Grampian; it is straight possession of a banned substance. The substance involved was carbofuran, which has been banned for 10 years. A whole range of pesticides that are regularly used in wildlife crime in the context of poaching are listed in the order.
I ask for two points of clarification, the first of which we have touched on already. If someone is in possession of an illegal pesticide, the law at the moment is sufficient to enable the prosecution of that person for a criminal offence.
That is correct, as it stands.
My other point relates to the scenario that Sheriff Drummond outlined. If an employer has signed off, if you like, the pesticide and given permission for it to be kept or used in a particular way, but you find 25 poisoned birds on the estate, who comes under suspicion and could be prosecuted? Is it the employer or the person who is in possession of the pesticide? It could be that the employer has sanctioned the illegal use of the pesticide.
May I answer that? We have one case at the moment in which an employee has been detected in possession of poison, laying poison and killing wild birds. He has accepted his part in it and he blamed his employer. He said that he was provided with the chemicals and instructed to do it. That case is currently awaiting trial and, obviously, I cannot comment on it. Apart from that case, there are very few cases in which an employee blames his employer.
Sheriff Drummond suggests in his submission that there is a protection for all employees if their employer has signed off the way in which they use what could be poison.
Because the chemicals are completely illegal—
I am not talking about illegal substances; I am talking about the scenario that Sheriff Drummond painted for us, when the substance is legal but there are restrictions on how it can be kept and used.
Situations involving legal substances are few and far between. A legal substance called carbosulfan has featured in one or two cases in Scotland. I have dealt with one case that involved carbosulfan, but cases involving legal chemicals are almost non-existent. It is completely illegal in the UK to have the chemicals that we are talking about under any circumstance, therefore I cannot see that a register or a registration scheme would be useful. To equate the situation to that of drugs, it is illegal to have heroin or cocaine, but people do.
Can you give us the names of those people?
I am more than willing to do so. Obviously, I will not do that in an open forum, but I can make those names available.
I am sorry, but I am going to be very critical of someone on a personal basis, which is not something that is in my nature.
It was the 1992 act.
Indeed. That is the 1981 act, in its original form, and section 69 contains exactly the same provision. Merely making provision for the prosecution of a body corporate does nothing to establish the liability of the body corporate. It is a question of the evidential link. In cases like the one that was just described to you, the evidential link is that the person who was found to be in possession of the substance says, “I got it from him.” That is your starting point, and you have the rest of the chain. You might also have corroboration for that. There might be another employee who says, “Yes, I heard him,” and the employer will then be charged with causing and permitting. However, that is a rare sequence of events, as has just been recognised.
We must leave it there. I thank all our witnesses for their evidence and ask them to make any supplementary evidence that they might have available to the clerks. We have some questions that we have not covered today, and we will ask you to answer them in writing.
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