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Item 3 is the Protection of Wild Mammals (Scotland) Bill—that is, foxes. I remind members that the committee's role is to consider the law enforcement aspects of the bill. While it will be impossible not to stray occasionally into some of the wider principles of the bill, I will not allow general debate on those principles, as that is not our job. We do not have the luxury of time to talk about fox hunting in general today. It is for the Rural Affairs Committee to consider the overall merits of the bill, and we do not want to encroach on that committee's job. Some members of the Rural Affairs Committee may show up today.
Thank you, convener. It was indicated that, with your permission, it might be appropriate to make a brief opening statement.
As long as the statement is brief.
We thank you for the opportunity to address the Justice and Home Affairs Committee. I am aware that the committee has a schedule that it must work to and I will be brief.
I turn the meeting over to committee members to indicate their interest in asking questions.
I do not know where to start. In my view, the difficulty with the bill is that people do not know what is going on. The analogy that came into my head was poaching. To find out who is hunting illegally, one would probably have to rely on informers, especially if the legislation is not a popular measure. Would it be difficult to find out whether the law was being broken? What network of informers do you envisage being required?
At present, most of the information concerning animal welfare legislation that comes to the SSPCA comes from members of the public. Our role is to find out the facts and to report them to the procurator fiscal, who then decides whether action should be taken. Instances of badger baiting are still reported to the SSPCA, although such activities have been banned since 1972.
Mr Flynn, would you sit a little closer to the microphone and speak into it? This is a big chamber.
No problem.
If the bill is enacted, I foresee that it will be broken by individuals, whereas badger baiting is carried out by gangs of people. I live in Ross-shire and the Black Isle and have seen a farmer go out with a couple of dogs and a gun early in the morning to trail a fox. Who will tell you that such activities are going on?
I may be able to answer that question.
That is, they would be exempt if the fox were above ground.
That is indeed the case. The bill seeks to stop work with terriers, but, if it would help the committee, I will ask Mike Flynn to speak on that point. He will tell you that a necessary amount of preparation must take place for terrier work, where dogs are put underground: putting collar tags on the dogs, going in with spades to dig out animals and so on. There would be no doubt about people's intentions in those circumstances. Someone who was out walking dogs would not be covered by the bill, whereas someone who was making the necessary preparations for terrier work, where there was no doubt as to their intentions, would, if they proceeded with those acts, be covered by the bill. Those acts would be illegal.
I have already discussed with some of the witnesses my concerns over the legal structure and the enforcement and penalties aspects of the bill that are the concern of the committee.
Those whom I represent are aware of the concerns that have just been expressed. In a number of statutory provisions, I think that it is right to say that some sort of onus is placed on an accused person to exculpate himself. There are different ways in which that can be achieved. As Mr Jackson suggests, in the Misuse of Drugs Act 1971 there is an onus on an accused person to exculpate himself on a balance of probabilities. The same is true, I think, for the provisions of the Criminal Law (Consolidation) (Scotland) Act 1995. In other circumstances, an accused person can exculpate himself simply by raising a defence: if that defence creates a reasonable doubt, the accused person can be acquitted.
Are you suggesting that section 5(6) of the bill could simply be removed?
The concerns could be addressed in that way—simply by providing statutory exceptions that have to be raised without specifying any burden on an accused person.
I am happy with that. I have another question, but someone else may want to come in on that subject.
No—please proceed, Gordon.
This is perhaps trickier. Arrest is covered in section 4, which says that:
I will answer the last part of that question first—the question on the idea behind the proposed power to arrest when there is reasonable cause to suspect that a person is about to commit an offence. The policy consideration behind the proposal is set out in paragraph 6 of the campaign's submission. Once a dog has been released to hunt, the fate of the quarry is, in practice, sealed. It was therefore felt appropriate to find some mechanism whereby that could be pre-empted. As Mr Jackson has observed, the police have powers consistent with their duties, particularly in terms of section 17 of the Police (Scotland) Act 1967, to guard, patrol and watch so as to prevent the commission of offences. Having said all that, the campaign accepts that it is a novelty to empower, in legislation, a constable to arrest when he suspects that an offence is about to be committed, as opposed to when he suspects that an attempt is being made to commit an offence. Because it is recognised that concerns have been raised about that novelty, it is intended to review that matter too at stage 2.
Could you give some example of things that might give away the intention to commit the offence—leaving aside the rather obvious one of having 20 men in red coats sitting on horses. We accept that, in Scotland, that does not happen in many places. Apart from that obvious example, what would give away the likelihood of an offence being committed? It does not seem to me that people will look or behave very differently—the dogs will be there, the guns will be there and the farmers will be there, no matter what activity is about to commence. What would be the trigger for a policeman to say that one activity is about to be an offence but that another is not? I do not understand how a policeman would know that.
There is confusion over what constitutes hunting with dogs. It has become evident in discussions on the subject that a considerable degree of ritual and social activity surrounds hunting. Most hunting involves an amount of preparatory work that leaves one in no doubt that a particular type of hunting is about to take place. I will give the example of hare coursing. In order to course hare in a formal way, it is necessary to set out a coursing field. The field is laid out with markers. Score cards are printed and distributed. Hare are transported in cages, ready to be released so that they may be killed by the dogs. The dogs themselves are aligned, ready for release to pursue the hare. Nobody could be in any doubt that the circumstances on that hare coursing field were such that people were about to kill hare. If a constable came across that situation, where one could be in no possible doubt as to why that preparation had been undertaken, the dogs should not have to be released and the hare ripped apart before the constable could stop the process. Where there is organised hunting, we wish to introduce a safeguard.
That is clear; but how does it apply to foxes?
Again, fox hunting tends to be highly organised. You made the point yourself, convener, that with mounted hunting, which is not a major activity in Scotland, one could be in no doubt that such hunting was about to take place. The horses would be assembled, the dogs would—
Conceded. Could you move on please?
To move on to fox destruction societies, we do not dispute the fact that some aspects of fox control using dogs are quite legitimate, when the dogs are used to flush the foxes out from cover so that they may be shot. Again, the preparation for that is clear. The farmers, or other participants, are arranged with their guns in such a way as to make clear that they anticipate that the fox will emerge from cover. The dogs are introduced under control to flush the foxes, and one could be in no doubt as to the intention. I speak from personal experience: I have seen those activities and one could be in no doubt that, in the situation that I have described, the intention was to flush foxes to guns.
From what Mike Jones has said, I take it that you accept that the power of arrest is not needed, as a police officer confronted with such a situation is able to deal with it without having a statutory power of arrest such as is in the bill.
We accept that the introduction of that power is novel and has no precedent. That is something that must be considered.
Is that a maybe?
In certain circumstances, an offence may be committed by preparing for the commission of a later offence. The Deer (Scotland) Act 1996 is a good example of that; it contains a power to arrest in the context of the commission of a crime of preparing to commit a later crime. We believe that the matter must be considered. We accept that the formulation in the bill as it stands is inappropriate and that it will be removed.
I do not want to get bogged down in this, but do you accept that if more than one person is involved in preparing and conspiring to commit the offence, they are committing a crime?
We accept that. As was said earlier, a stage of attempt may have been reached. That is why we accept that the formulation in the bill at the moment is quite inappropriate. That formulation will go.
I am rather shocked that a senior Queen's counsel should come here today and admit in virtually every response to a question that there are problems that must be addressed at stage 2. Does he feel that, at this point, given the wide-ranging requirements for changes at stage 2, there should be a step back from the bill altogether and a total rethink?
Can we confine the total rethink to the criminal penalties, Phil?
I am referring to the criminal aspects of the bill and to the comments that Mr Jones has made.
I shall respond on behalf of Mr Jones by saying that he is here today to assist the committee. His instructions are to act on that basis in an open, honest and credible way, because we do not want to do otherwise in assisting the committee with its deliberations. The committee's purpose is to determine whether there are points that need further discussion, modification or development. It is with that purpose in mind that we are trying to assist the committee. It would be improper of Mr Jones to act in any other way.
That may be the case, and I have no doubt about the open, honest and considered presentation of Mr Jones, but that is the point that gives me such concern. Stage 2 of bills allows for reconsideration, but what Mr Jones is suggesting is a major rewrite. That is totally different from what I have experienced in considering other bills.
Phil, I must stop you there. We have another six minutes for this question-and-answer session. If we get embroiled in the theory and practice of committee evidence taking we will never cover the ground that we must cover before we move on to the next set of witnesses, who are also important to the process. Please confine your questions to the criminal penalties.
In that case, I would like to ask about section 1(3). Are those who are presenting the bill aware of the land reform bill that is likely to come before this Parliament in the near future? What effect would that bill have with respect to owners or occupiers of land and those who operate on it?
It happens every so often that a bill that is proceeding through the Scottish Parliament or the UK Parliament has to be adjusted in the light of other legislation that is proceeding. In this case, the interaction would arise if the meaning of an "interest in . . . land" were to be changed by the other pending legislation.
Am I right in saying that Mr Swann suggested that Mike Watson intended to remove section 2, on licensing, in its entirety?
Mike Watson's proposed amendments have been lodged and include a rewrite of the section dealing with exemptions. One of those amendments removes the requirement for licensing altogether.
Was not the licensing aspect an important element with respect to those who live in the countryside going about the day-to-day activities that are required over a lifetime to protect their agricultural or other interests? If licensing is to be abolished altogether, would not that remove the guarantees that you have given those people?
In my opening statement I pointed out that those who work in the countryside and are involved in rural activities have a right to expect a clear indication of what it is proper or improper for them to do. If society judges an act to be cruel, which those people do not want to be judged as cruel, it is proper that those acts are defined in a bill of this type and brought into legislation.
I would like to make a technical point. No amendments have yet been lodged. Amendments cannot be lodged until stage 1 has been completed. Until then, there is no such thing as an amendment to the bill. All that we have is a proposal that there are likely to be amendments in certain areas. It may be a bit misleading to suggest that amendments have already been lodged.
Thank you for that correction, convener.
I will not say anything about the possible amendments to the provisions on licensing. In light of the convener's reminder, that might be a waste of breath at the moment. Instead I shall go back to what Gordon Jackson said about section 4(1).
Mr Jones indicates that we agree with that.
My second point is about the burden of proof. I am not a criminal practitioner, but I have concerns about section 5(6), which says that the burden of proof applies to the person charged. Why should it be proved on the balance of probabilities rather than beyond reasonable doubt, as is usual? Where did that pop up from?
One must go back to the underlying criminal law. It is common and understood that when an accused person may raise a defence and nothing more is said about his entitlement to do that, provided he raises a reasonable doubt he is entitled to an acquittal. In certain statutes, however, such as the Misuse of Drugs Act 1971, a positive burden is placed on the accused. The courts have held that that burden is to be discharged on the balance of probabilities.
Thank you for explaining that.
We have no real indication of the time spans involved. Members of the hunting fraternity have not said whether they would be willing to give up their dogs for rehoming. Christine Grahame is correct to say that evidence shows that foxhounds will not be easy to rehome in a domestic setting. However, we have made a wide offer to work with anyone involved in hunting and with animal behaviourists to try to establish new homes for the animals.
What is the usual practice if a dog cannot be rehomed and must be put down?
A dangerous or destructive dog will be humanely destroyed by a veterinary surgeon under a court order. In this society, we tend not to put down healthy dogs. It would be a new experience for us if those healthy dogs were to come to us for destruction.
What about a dog that cannot be rehomed? How long would dog homes keep them?
One must consider the best interests of the dogs. If a dog is able to adapt to the circumstances in SSPCA kennels, and can be retrained and rehoused in a domestic environment, that is the best thing for the welfare of the dog. If that process would cause the dog undue distress and it was evident that the dog could not adapt, it would be kinder not to subject it to the process. In those circumstances the animal would be put to sleep on humane grounds.
We are straying a little from the strict detail.
There is a section on disqualifications.
I know that there can be disqualification orders, but we are getting into the welfare of hunting dogs, which—however brutal this may seem—is not the committee's concern.
I was just asking for clarification of the time limits in section 6(2)(b).
Can we move on, Christine; we are now running late.
My final point is on policing, which I see as being extremely difficult. It would assist me if the witnesses could tell me about how policing operates in other areas of animal welfare, not just in cases of domestic cruelty to animals, but under other legislation.
There are two categories of enforcement. First, there is traditional hunting, which has been discussed and where it is accepted that enforcement is relatively straightforward. The type of activity to which I suspect the member is alluding is covert activity—terrier work in remote places, for example—which would be seen as being more difficult to enforce. A lot of wildlife legislation, such as the Protection of Badgers Act 1992, the Wildlife and Countryside Act 1981 and the Wild Mammals (Protection) Act 1996, poses similar enforcement difficulties as this bill. Although we cannot say that every offence covered by the existing legislation is enforced, there is no indication that the legislation should not have been brought in because of its enforcement difficulties.
Do you want to ask anything else, Christine?
No. I will let someone else in.
Can you give us comparable figures for Scotland and tell us whether there are any difficulties with access to land for policing activity?
There were two wildlife convictions in Scotland last year. I am not saying that we are nicer. We have been frustrated, in particular, in cases involving foxes. There would have been two further convictions directly related to foxes had there been legislation in place to protect foxes. We must remember the basis of the bill, which is whether foxes can be caused unnecessary suffering. We believe that they can. Two very good cases fell because there is no specific legislation for foxes.
Before I call Scott Barrie, will Rachel Newman and Mike Flynn tell me, for each jurisdiction, the number of cases that are reported, the percentage of that number that proceed to court and, of them, the number that result in convictions? What are the rough figures? I do not need exact numbers.
I am afraid that I cannot tell you the number of cases brought in England. The figure for the number of convictions that I gave you does not take account of the number of cases investigated.
So you do not know what percentage that is of the number of cases that are reported and go to court?
Not off the top of my head.
Do we know what the underlying figures are for Scotland?
In Scotland last year, around 130,000 animal welfare-related calls were received, of which around 100 resulted in reports to the procurator fiscal and cases going to court. That is average for the SSPCA. We usually have around 100 reports to the fiscal per year.
Of which last year two resulted in convictions?
Sorry. That figure was only for wildlife. We have strict criteria for what we will report to the fiscal. We will not report cases that are maybe a bit iffy.
Do we know the background figures for wildlife?
Four wildlife cases were reported last year. In the two cases involving foxes to which I referred, the owners of the dogs were found guilty of failing to provide veterinary treatment for the dogs, but the fox side of the cases fell.
I see. There were four reports of wildlife cases, which resulted in two convictions. So, on that tiny sample, Scotland has a 50 per cent success rate.
It is okay, convener. My questions have been answered.
I have a brief question on the European convention on human rights with which Mr Nardell may be able to help. In his submission to the Rural Affairs Committee, he says that Deadline 2000
Convener, before I pass that question to Gordon Nardell, I will, with your permission, make a point of order. The opinion contained in the submission in the name of Deadline 2000 to the Rural Affairs Committee was obtained from David Pannick QC, who is acknowledged as an expert on ECHR affairs. However, it related specifically to the bill drafted for the committee of inquiry conducted by Lord Burns in England and Wales. To assist the Rural Affairs Committee in Scotland, we are to have an opinion written specifically in respect of the bill being considered by this Parliament. I am sure that Mr Nardell is more than happy to talk about general principles as they relate to the ECHR, but when the matter comes before the Rural Affairs Committee we will have available the opinion tailored specifically to the Scottish bill.
It is unfortunate that that opinion is not available for this committee, given that it is part of the remit of this committee, rather than that of the Rural Affairs Committee, to consider those specific aspects. In the circumstances, rather than have Mr Nardell opine in general terms about the implications of ECHR, with which most of us are at least as familiar as he is, we will, if Euan Robson does not mind, move on. I am not sure that we will have a terribly helpful discussion in the circumstances. The member has asked why legal opinion differs. In my experience as a lawyer, legal opinions always differ. If there are two lawyers, there will be at least two opinions. I am not sure that we will get much further than that.
In that case, I will ask only the question about economic compensation, which is raised by a lot of people. Do the people proposing the bill have any guidance as to why there is no suggestion of compensation in the text of the bill or in submissions?
Let me put that a little more specifically. Another, quite separate, members' bill—the Leasehold Casualties (Scotland) Bill—is going through Parliament. In that bill, it was deemed appropriate to build in a compensation element, however minimal, to ensure ECHR compliance. Euan Robson makes a fair point. However small compensation might be, does not it apply equally in this case under ECHR rules?
We are quite satisfied that article 1 of the first protocol to the ECHR, which protects possessions and property, does not require there to be any provision in this legislation for the payment of compensation to those who are affected by the operation of the bill. The promoters of the bill therefore have no proposal to insert a provision for compensation. There may be people who wish to seek to insert at stage 2 a provision for compensation, but that is a matter for the Parliament's judgment.
It would be helpful to know why that is your position, although perhaps not now, as we have limited time. You state the case, which is perfectly fair, but why do you think that? It would be helpful if you would take the opportunity to submit a small paper on that to elucidate your reasoning.
That would be helpful, as we are dealing with other pieces of legislation in which it is considered that compensation is a requirement to ensure that we are belt-and-braces secure under the ECHR.
Would it be helpful to the committee if the opinion produced by David Pannick and presented to the committees of the Parliament addressed that specific issue?
I think we would want it to be addressed specifically. The same issue arose in respect of another item of legislation. It is therefore reasonable for us to examine that issue in respect of this bill.
We will undertake to do that, convener.
I call Pauline McNeill, who will be the last questioner.
I have no particular difficulty with that final point, because I am clear that we are trying not to take away people's property rights, but to create a new offence. However, I have one or two difficulties with the section on prohibition and offences, which I will go through.
It is common to create an offence of permitting something to be done. Sometimes it is causing. The leading Scottish case is that of Smith of Maddiston Limited v MacNab, which was reported in 1975. A court of nine judges held that to establish an offence of permitting, a necessary ingredient must be that the person permitting had knowledge not only that something was being done, but that it was being done in contravention of a statutory provision. Therefore, without having to go further in the bill, courts will not find the offence proved unless it is also proved that the accused person not only knew what was happening, but knew that what was happening was an offence.
On the same theme, section 1(5) states:
Yes. Again, it is common in statutory offences to see a requirement for proof of intent. Intent is usually established by considering the facts and circumstances to see whether a particular intention can be inferred. For the protection of the individual, if the intention cannot be inferred, the individual will be acquitted of the offence.
Is there a definition in the bill of wild mammal?
The definition is contained in section 7 and includes
Is not that definition a bit broad? It strikes me that it might be.
The definition of "wild mammal" in section 7 of the bill is meant to ensure that the legislation dovetails with the protection that is already given by the Protection of Animals (Scotland) Act 1912, which extends to captive and domestic mammals. That is designed to ensure that wild mammals are protected where the protection for domestic and captive animals leaves off. That would ensure that the statute book reads as a coherent whole.
Section 2(2) of the bill reads:
The licensing provision would have enabled the Scottish ministers to give groups of individuals permission to carry out certain acts, in a particular way, for a specific purpose. That permission would have meant that such acts would not be an offence against the bill. No amendment to the bill has been lodged yet, but Mike Watson has signalled his intention to seek to alter the provisions of the bill when the opportunity arises at stage 2. Mr Watson proposes to replace the licensing exception with an exception of broadly similar scope, enabling individuals to carry out activity in a certain way and for a certain purpose, but without the intervention of the Scottish ministers.
I understand that point. What I do not understand is the difference between the circumstances that you mentioned earlier—the preparatory activity before an offence—in which a group of individuals commit an offence and the circumstances that allow the activity of another group of individuals to fall under section 2(2). What is the material difference between the two circumstances? Is it a question of cruelty?
One would consider what the individuals concerned were preparing to do. If they were evidently preparing to do something that is not covered by the terms of their licence, a constable might have reasonable suspicion that an offence was about to take place.
I thought that the provision for a licence was going to be removed.
Quite so. However, the question was put in the context of licensing under section 2(2) of the bill as it stands. The same answer would apply.
My question is more straightforward than you seem to think. Perhaps I am just being dumb. What is the material difference between a group of individuals without a licence who are hunting with a dog—which they may shoot—but who are not committing an offence and the group of people that you described earlier for whose activities you want to create an offence?
The deliberate use of a dog to hunt a wild mammal would, on the face of it, be an offence. The difference would depend on whether the persons concerned were acting within one of the exceptions to the bill.
I thought that you said that using dogs to flush out foxes in order to shoot the foxes is not an offence. You now seem to be suggesting that we are back to the issue of burden of proof—the minute that you see someone with a couple of dogs and a gun the inference is that they are about to commit an offence.
I do not think that Gordon Nardell intended to create that impression. We would restate the point that where the intent is to carry out legitimate control there would be no confusion—we have talked about flushing, with which we have no problems and that is specifically exempt in the bill. In such cases there would be no reasonable doubt as to intent. The way in which people would set up such activity would not imply that they were doing anything that contravened the principles of the bill. However, where people were intending to undertake an activity that would be an offence under the bill, there would be an obvious amount of preparatory activity that would make the distinction. The reason a licence would be an unnecessary burden is that the procedures that the bill will allow, such as farmers taking out dogs to flush quarry, are so self-evidently different from hunting with dogs.
I know what you are trying to achieve and I probably support that. However, it would be useful to know exactly what you mean by the way in which the activity was set up. That does not mean anything to me. I am looking for something that would demonstrate a material difference between the two sets of circumstances.
Mr Swann, I do not want a reiteration of the very obvious things such as hare traps and race cards. We understand those things because they are in the category of the 20 guys in red coats. We are querying the circumstances in which it would be infinitely less obvious. You must accept that, out on the Scottish hills, it will not always be particularly obvious that one group of people is about to do something that is a crime under the bill and another group is not.
I will ask Mike Flynn to speak about this. Terriers are the dogs that are most likely to be used in those circumstances. When you see them out on the Scottish hills, there can be no doubt as to the intent.
The biggest difference, if licensing were to be introduced, would be that the terrier people would have landowner permission to control the foxes. The cases in which we have been involved have concerned travelling groups of terrier men, who do not have permission to be on the land. The landowner does not know that those people are partaking in what they see as a pastime on his land—they are not really acting for a legitimate purpose such as pest control on behalf of the landowner or farmer.
The intent of such travelling groups could not be in doubt. We have talked about the fact that they carry nets in order to net the foxholes, radio collars for the terriers and shovels to dig them out. It is not just two people out with a couple of terriers in the countryside. Nobody who owns a terrier and uses it to control foxes would push the terrier down a hole without any consideration for how to retrieve the terrier should it get stuck—they would have all the necessary bits and pieces. If one saw two men walking in the countryside with a terrier without any apparatus, one's mind would not jump to the conclusion that they were about to commit an offence. However, if one saw two men walking in the countryside with a couple of terriers, two shovels, nets and various other equipment, one would have reasonable grounds to suppose that they were up to no good.
We must finish there as we are well over time and we have further witnesses who are waiting.
On behalf of us all, I thank the committee for hearing our evidence.
I welcome Assistant Chief Constable Ian Gordon to the committee. I know that you want to make a brief statement. Perhaps you could also introduce your colleague.
I am assistant chief constable for operations at Tayside police. I have held the post for about 20 months. I am also a member of the general policing sub-committee of the Association of Chief Police Officers in Scotland. Amongst other areas, I have national responsibility for wildlife issues. I am also a member of the partnership against wildlife crime groups—PAW.
Would Mr Stewart like to make a brief statement before we go on to questions?
No. Mr Gordon has covered all the points.
My question was going to be on resources, costs and priority. I think that we have had a full statement from the assistant chief constable on that.
Could you try not to ask such leading questions, Phil?
It is an honest question. Does he feel a sense of frustration that he has come to answer questions on the criminal implications of this bill when they seem to be at square one again, as those are all going to be thought out once more?
I acknowledge the question. I will twist it slightly.
In relation to the land mass of Scotland, especially in the Highlands and the remoter areas of the Borders, and given police numbers compared to the central belt, would the enforcement of this bill be unworkable apart from dealing with the red coats on horses and perhaps organised hare coursing?
It would require a large amount of resources to enforce it fully. I would not expect chief constables to see it is a major priority at this time.
Is it true to say that police forces in Scotland already have great difficulty investigating wildlife crime in general because of the resource implications?
Yes, that is a fair statement.
Phil Gallie has covered one or two of the points that I was going to make, for example, the contention that it would be easy to spot what was going on. You can see people who are hare coursing or on horseback or who are putting terriers down holes. You can tell by the nets and spades that something bad is going on. You mentioned terriers being used for ratting—there are other grey areas. You also mentioned that intelligence gathering would be important. How would you do that? Would it be one of the roles for the proposed countryside rangers in land reform legislation?
I will comment, then I will bring Mr Stewart in.
Intelligence gathering in relation to this bill might be far more difficult than on some other country-related activities—or crimes, if you want to call them that. For instance, the bulk of the people in the countryside are against the taking of birds' eggs and badger digging, so those are regularly reported. The countryside appears to be split in relation to this bill, with the majority probably being in favour of some of the activities that this bill seeks to stop. They will therefore be reluctant to pass on information about those activities. Maureen Macmillan mentioned the countryside ranger. He will rely on a lot of people in the countryside to get intelligence about other activities. If those people find that the ranger is reporting them for offences that this bill seeks to make, they might stop giving him intelligence.
If I understood you correctly, you rely upon local information to assist in finding offenders in relation to current wildlife crimes. As a great number of people in certain parts of Scotland are opposed to this legislation, do you fear that there might be a knock-on effect in your present wildlife investigatory work because people would lose trust and find it more difficult to talk to the police as they would feel that the police would be involved in efforts to prevent them hunting?
On the first point, we have found that persistent offenders—or persistent suspects before they are prosecuted—often have a criminal history. I am talking about the egg stealing that takes place throughout the country, but primarily in Scotland. People who bait badgers are also not necessarily your everyday members of society, as an element of violence and other criminal activity is related to that.
It is certainly a different slant. Crimes go on in the countryside that we all know about, such as poisoning of birds of prey. We appreciate why those crimes go on. The people who commit those crimes are looking after their jobs. We have tried to turn this round. Instead of trying to detect those offences, which are very difficult to detect away out in the hills, we have tried to prevent those crimes happening. We do that by working with land managers and game managers who might be involved with it and encouraging them to stay within the law.
Do you fear that there will be a loss of police intelligence because local communities will feel less inclined to disclose information to you?
That is a real risk.
Might instances of poisoning and snaring increase as a result of the prohibition of what some people consider to be legitimate present methods of controlling the fox population?
That is a possibility. Out in the hills in rural areas, foxes are controlled mostly by the use of terriers underground. If people cannot do that and feel that they must control foxes to keep their jobs, they might resort to methods such as poisoning or gassing, which are currently illegal. We have worked hard to reduce poisoning in Tayside.
In the definitions section of the bill, the definition is that
From a personal point of view, I believe that the more information that I can have to brief my officers on the better. The better the definition is, the better that is for me. My difficulty with this definition is how you would glean the evidence for it. A discussion took place earlier in the meeting about preparation. I understand the issue to be more about whether they are attempting to do something as opposed to doing it. At what point do you draw the line? The definition is lax: it could be tighter. The difficulty is that it will always be up to the court to interpret it. You will have to wait for the precedents to come from the courts.
Is it your view that the definition of "to hunt" might be far too broad and that it might have helped if it had included the words "organised for the purposes of sport?"
I understood that the bill sought to remove hunting for sport without impacting on pest control. In briefing our officers, our difficulty would be in saying where the distinction lies between sport and legitimate pest control, because the two cross over. For example, rats go underground and the best way of catching them is by terrier control. If the terrier goes underground for the rat, that could be said to be contravening the law.
There is a difficulty with the section on licensing being taken out of the bill. In general, would you prefer to retain that section? Would that assist the policing? Setting aside the issues of costs and administration, would the inclusion of a section on licensing make it easier for the police to operate under the legislation?
The difficulty with licensing is that the police will always have to determine the character of the person who is applying for a licence. One concern is how we would prove that a person was a good marksman. I have no idea how that could be done.
That is helpful.
I said that that was at the far end of the spectrum. I do not think that the bill would impinge on pest control. The difficulty is that directed surveillance would be involved if I ordered a team to investigate.
How could a constable gain access to large expanses of private land to arrest someone? What would be his legal entitlement to do that? How would he defend that action, if the case came to trial?
He could gain access with the permission of the owner, if the owner was aware that there were problems on his land.
What if the permission of the owner was not granted?
If the landowner was a suspect, authority from within the police force would be required to mount directed surveillance. The difficulty would lie in judging whether there would be an intrusion on the land—a trespass—and that is not clear, even in the most recent commissioners report.
Yes, but before I come to that, section 4(2) of the bill says:
So that may cover my point. However, section 4(1) requires
That would be the issue for surveillance. If the police thought that something was going on on the land, they could go onto the land under that provision. However, if they were trying to glean information by undertaking, say, a technical surveillance on a fox's lair, that would be a problem.
My final point concerns the welfare of the dogs. As I understand it, under the Dangerous Dogs Act 1991, dogs that are used as evidence in trials are kept at the Edinburgh Dog and Cat Home, if the case is in Edinburgh. Is that correct? I also understand that the police have responsibility for those animals during the period to trial and disposal.
Yes. That act applies throughout the United Kingdom, and the costs are met by the police.
What consideration has been given to the impounding of the dogs that are used if an offence is committed under the bill, in the period from arrest, to trial and disposal and thereafter?
That is quite a difficult area. There may be no need to impound the dogs—a photograph could be taken to show the type of terrier, the radio collar and so on. The question is whether the dog should be returned to the person who has committed the offence—bearing in mind that the dog might be a child's pet, if it comes from a family—or whether it should be stored, incurring storage costs that build up. We have the facilities to impound vehicles, but we do not have the same facilities, nationally, to impound dogs.
What facilities, if any, are planned for carrying out such impounding? What are the cost implications and who will meet those costs?
I have not considered that from the force's point of view.
I have a couple of brief factual questions, to which you may or may not know the answers.
There are 70 officers who undertake the activity.
There are 70?
Yes. However, there are fewer full-time wildlife liaison officers.
But there are 70 police officers in Scotland with the specific responsibility of, among other things, dealing with wildlife crime. Are there any plans to increase that number?
I would love that number to be increased, as those officers can make a significant contribution. I am working hard to achieve that, through the general policing standing committee of ACPOS.
I presume that you would have to examine the impact of the bill—if it came into force—and determine whether you needed more full-time wildlife liaison officers. However, at the moment there are no plans to increase their number.
That is correct. On a UK basis, the police are considering setting up a wildlife enforcement unit, which would be based primarily with the National Criminal Intelligence Service in London. There would be an opportunity for Scotland to link into that. At the moment, wildlife enforcement on a national basis is provided by Tayside police, through Alan Stewart and me.
Thank you. That concludes discussion of that item. We will now have a brief break for tea and coffee.
Meeting adjourned.
On resuming—
I bring members to order so that we can proceed. We are already running behind time, but I suppose that was predictable.