Official Report 338KB pdf
I welcome members, witnesses, the press and members of the public. I ask people to switch off their mobile phones. Given what happened at our last meeting, I ask members to mention that quietly to other committee members when they come in.
I am a member of WWF and Friends of the Earth Scotland.
We move to questions. Would any member like to kick off this morning?
In its submission, the League Against Cruel Sports asked for a ban on snares, rather than just a tightening up of the regulations. Could you expand on why you feel that that is necessary?
The principal problem we have with snares is that people are indiscriminate in their use. The snare is not an intelligent device, and an animal caught in a snare can suffer seriously. I gave the clerk a couple of photographs showing the sort of things that can happen when a perfectly legal snare is used. The first one shows a badger that has been caught in a snare and is suffering from pressure necrosis as a result. The second one shows what happens when an animal caught in a legal snare starts to struggle and the snare gets into a knot, so that what started off as a free-running snare becomes a trap from which they cannot escape. Our concern over snares is simply that they cannot be used in a humane manner and that they cause unnecessary suffering. That is why we believe they should be banned.
Could not good management practices mitigate the effect of the snares? For example, what if legal snares were allowed to be used only once, so that they would not deteriorate and cause the problems that you talked about? What if land managers were allowed to lay only as many snares as they could get round in 24 hours? I believe that there are developments such that one can get an electronic signal from a snare, which would alert the land manager that an animal had been caught, so they could go and see to it immediately. Is the problem the snares themselves, or the fact that the animals are left in them for a long period of time?
It is both. The free-running snare—which is the only one that is legal—can lead to the animal being caught for a considerable period of time. If you or I knew that we were caught and could not get away, we might stop struggling and, in effect, accept that we had to wait until somebody came to let us out. That is not true for an animal. It will just carry on thrashing around until it chokes to death, suffers some severe injury or dies in the process. Intelligent snares are possible, but we are talking about snares that cost pence. They are basically just a piece of twisted wire. An electronic snare that will transmit a signal across a 3,000 acre estate is fairly serious high technology. It might also be quite a trek for somebody to get to the relevant snare. So, yes, that would be possible, but we do not think that it would be practical in economic terms or in any normal working situation.
I have no idea how expensive it would be, but if it were possible to get a device that could be detached from a snare and put on to a new snare, so that it would not have to be thrown away with the snare, and if the animal could be dealt with speedily, would that take away a lot of your worries?
It would reduce our concerns, but we would still be worried about how speedily that could be done. With one gamekeeper dealing with 3,000 or 4,000 acres of estate, speed is relative, and some estates have hundreds, if not thousands, of snares laid out. We are not talking about one snare on one estate being used to trap one rogue animal. We are talking about a programme of control that is applied to hundreds of predators across the estate. We think that, in those circumstances, what you suggest just would not work.
A good land manager would not lay so many snares that he could not look after them. Presumably, there would need to be guidance about that in the bill, so that people lay only as many snares as they can deal with and do not lay snares that will be left unattended.
Our experience is that people lay an awful lot of snares. There will be a relatively small number of staff with a large area of land to cover, so they lay out hundreds of snares. They struggle to see them on a routine basis, they are clearly unable to manage huge areas and they are not selective enough in the way that you describe. It is not as if they target one place one day and then take up all the snares and target another place the next day. That is not the way they work. Some of those estates have thousands of snares laid out round them, and people genuinely struggle to inspect them. The difficulty when it comes to enforceability is how on earth we can know whether somebody has inspected a snare or not. There is no record; there is no punch card to say, "I've been checked 12 hours ago."
The police have said in evidence that if snares were banned there would probably be more poisoning. What do you think?
Poisoning is already illegal. It is not correct to suggest that we should not ban something cruel because something that is already illegal might take place more often. If we look at what has happened in the countryside, we see that there are concerns about the poisoning of raptors. Rabbits are the main elements in the diet of raptors, and particularly of buzzards, and people are now snaring rabbits because there are not enough buzzards to deal with them, and so it goes on. There is not much logic in saying that we should allow snaring to continue, although there are problems with it, simply because other people might do worse things that would lead to more problems. That is an unusual defence.
I have more questions about snares. Some of the written evidence that we have received suggests that, instead of describing prescribed snares as self-locking, we should describe them as not free-running, which would include legal snares that had been rendered illegal by becoming rusty. Would you agree that that is a better definition?
It helps. The point that we were trying to make is that what starts off as a free-running snare can very easily stop being one. That can happen because the wire gets kinked or because the animal's fur gets tangled up in it so that it will no longer run free, and the little check grommet that sits on the wire and stops it running to total closure can come loose and run down the wire.
The Scottish Society for the Prevention of Cruelty to Animals also suggested that snares should have some sort of identity tag to relate them to the person who had set them. Would that be a good provision?
If we are to have snares, yes, at least—
I am asking the question on the basis that we are not talking about a total ban.
On that assumption, something that can at least show whose snare it is would be useful. At least one could go back and say, "What's your snare doing in that space?"
I would like to raise another issue. We have been told that there is a type of snare that is being used in the United States that is like a spring trap but which is padded with neoprene or rubber. It is not like the old gin traps, which were really quite revolting. Do you think that something of that description would be better as a form of restraint that would not kill? Would that be a better mechanism for trapping wild animals?
In our experience, when a wild animal is caught in any trap from which it cannot escape, it will thrash around until it can escape, and may do itself considerable damage in the process. I suppose that it is better to be held by a gloved hand than by a straight piece of wire, but that is still a prolonged restraint, which will cause problems.
Are we sticking with snares, or can I ask about other matters?
We will keep to snares until people have exhausted their questions, which are detailed.
I would like further clarification about snaring. Do you oppose the indiscriminate nature of snaring or snaring per se?
We oppose both. We are against snaring because we do not believe that it can be done humanely. We are also concerned about the fact that it is indiscriminate. It is on the record that not only the target animals but all sorts of animals, from domestic pets to protected animals, are caught in snares, because snares have no intelligence to discriminate between the animals that are caught in them.
Do you not accept that it is possible for a responsible crofter, for example, who wants to protect a valuable crop that is in its early stages and is fenced, to dispatch rabbits humanely using snaring? That is not indiscriminate and requires the crofter's attention.
I take the point, but the guidance that the Department for Environment, Food and Rural Affairs issued about the most effective methods of rabbit control in areas with a rabbit control problem says that gassing should be used in warrens at the right time of year. If that is undertaken at the right time of year, it is massively effective and is discriminate. The only possible collateral damage could be to something else that had taken refuge in a warren. DEFRA recommended that as a more effective method of controlling a localised rabbit problem; it certainly did not recommend snaring.
Do you also accept that some who snare eat the product that is ensnared?
That is true, but people also go out to shoot rabbits that they eat. Saying that people need to snare so that they can eat moves the discussion from being about pest control to being about one for the pot. The issue is a matter of scale.
The subject raises questions about land management in general. You said that it would be impossible for people to look after snares that are spread over tens of thousands of acres, because thousands of snares might be involved and not enough manpower would be available. You have now answered a question about what might happen on a croft, which is a small piece of land, by suggesting another argument against snares. Without snares, how will people manage land on the large scale that exists in Scotland to maintain biodiversity?
If you are asking the question in the context of land management on what we might call sporting estates, which are concerned with grouse shooting, pheasant shooting and possibly partridge shooting, I would point out that they are relatively extensive areas of land with relatively small numbers of staff. In such areas, nature manages biodiversity quite satisfactorily. The problem is that, when people start picking on particular animals, they start to unpick the chain of nature. That is what has caused the problems. I talked about the shooting and poisoning of raptors, which takes out the top end of a natural chain and forces people to start snaring to deal with the problems that are caused by that. In terms of the wider aspects of land management, there are good arguments for leaving the job to nature and not over-interfering. As soon as you interfere at one level, you cause a problem at another because you have interrupted the natural process that was there before you came along.
The common agricultural policy's tendency as regards farms is, perhaps, towards land management activities and away from farming. However, there is still a need in a farm to control vermin. The need to interfere in the process comes from the fact that the farmer is creating an artificial environment. The artificial environment of a farm, whatever stock or crops are concerned, necessitates vermin being dealt with. We cannot leave the management of vermin to nature unless we give up farming. I take it that that is what you are suggesting.
No. I am saying that people should be a lot more discriminate in what they do and how they do it. The area of fox predation has been particularly well researched. Papers that have been published concerning three-year studies of losses to foxes on Scottish sheep farms show a loss of between 0.6 per cent and 1.2 per cent. However, there is a question about whether those lambs were taken after death or before death. In other words, is the fox the cause of the death or is it a bit like a rural dustbin man who goes around collecting animals that have died? The research also showed that attempts to reduce fox numbers have almost no impact on the losses to foxes from sheep farms, except in those odd cases in which someone with a rifle goes lamping and targets the right fox at the scene of the crime. The same is true in a lot of other situations. The suggestion that, somehow, snaring a rabbit in the middle of the breeding season will make a difference to the overall rabbit population does not make sense. The population is controlled by natural predators in that season, to an extent. DEFRA recommended that, to have a significant effect on the numbers, you should gas the rabbits when they are in their burrows during the winter. The snares that you see throughout the year all over the estates that we are talking about make no significant difference to the overall numbers; they just cause suffering.
I am not talking about a particular kind of estate; I am talking about land management, which involves farms and crofts as well. They are a natural part of our landscape. I question whether gassing is something that everybody can afford and I suspect that it would be extremely difficult to organise. I would like to hear about some other alternatives to snaring. It is important to have that information on the record so that we can have a practical view of how land can be managed.
For rabbits, DEFRA said that gassing was far more cost-effective than snaring, was selective and could control a rabbit infestation problem, with which one can be required to deal by law. Therefore, there was a practical solution to the problem.
You say in your evidence that the difference between legal and illegal snares is not always clear. Much of the discussion has focused on the situation if snaring were not made illegal. What is the difficulty with knowing what is and is not legal?
The principal difficulty with snares is that one can start off with a brand new, free-running snare that has a proper check on it and which is perfectly legal under current law, but if the snare becomes rusty, the check stops moving up and down the wire or the wire becomes kinked so that it is no longer free-running, the snare becomes illegal. That causes problems because nobody can be sure whether the snare is legal or illegal.
My question is for Eleanor Dickson.
Is it on the same issue?
No.
I want to gather the same issues together so that we deal with them properly.
As someone who has used snares, I am not familiar with the expression "kinked" in relation to a snare. If it is kinked, it is no longer effective. Anyone who uses snares ensures that they are free-running and effective. If it is kinked, it is no longer a snare; it is just a piece of wire hanging from a fence or attached to a peg.
You are right if the kinking occurred before the snare was set. Our problem is with the fact that an animal caught in a free-running snare can kink the wire. The snare might have been legal up to the point at which the animal was caught in it, but could become illegal in the process of the animal thrashing around—as the photographs show—because the snare is no longer free-running. Instead of operating in the way that it legally could under the Bern convention, by restraining but not injuring, it becomes illegal because of what happens to it. One of the principal problems is that a snare is such a crude device and is so indiscriminate in its application that it can and does lead to deaths and cruelty.
We have spent a lot of time on that matter, but it was important because members were interested in it and because of the different representations that we have received on that part of the bill. It was worth teasing out.
At the end of the submission, the League Against Cruel Sports states that reared birds such as pheasants fall between two stools under legal protection, in that they are neither farmed nor wild. What protection would they be afforded if they were regarded as farmed rather than as reared for shooting and so not fully wild?
If one treated pheasants as farmed animals—even if they are looked after and fed in the woodland after they have been released from the pens—the same animal welfare rules would apply to them as apply to any animal that is farmed. The alternative is to say that they are wild animals, in which case they should be subject to the same protection measures as are other wild animals in the bill. Pheasants seem to be classified as not farmed, but—exceptionally—not wild. We do not think that that makes sense. They should be either one or the other. Our argument is that they should be treated as farmed animals because they are introduced. The bill could go either way, but to have the pheasants nowhere seems wrong.
I would like to have a clearer understanding of what is meant by
There should be control over such things because they get awfully close to other types of activity—people collecting birds or eggs and doing things with them—that we want to catch within the law. That creates all sorts of dangers and we suggest that there must be very clear boundaries for the catching up of birds. If it is going to be allowed at all, there should be a process for establishing the necessity of it and showing why it would be good for biodiversity. To leave the practice uncontrolled would leave a gap that we might later regret.
Thank you.
Do you accept that the controls that you are suggesting would have a significant impact on the deliberate and direct management of game species in the Scottish countryside?
They might do. There are issues of ownership, but in Scotland there is also a feeling that the countryside is everyone's, which is what lies behind our suggestions. We have a structure for making decisions about wildlife that varies from prescription through to consultation through to licensing. It is appropriate that those issues should be considered within that process.
Do you consider species such as the pheasant and the red-legged partridge to be indigenous wild species or introduced aliens?
The pheasant is primarily an introduced species because there are approximately 30 million pheasants introduced into the UK countryside every year.
Are you suggesting that we should treat them as a wild species, or should we continue to treat them as a species that is reared or supported in the environment for shooting purposes?
I suggest that they be treated as a farmed species, because they are introduced, reared and released, or farmed, for commercial gain. That is what happens. It is a big business, so why not treat it as such and expect the same animal welfare standards to apply as apply to other similar businesses?
How far would you take that? For example, we do not rear poultry and release them into the countryside for shooting. That would not be acceptable. Are you suggesting that we should treat pheasants in the same way as we treat poultry?
That is for you to judge, not me. I see where you are going with your questions. The question is about whether it is humane to release free-range poultry into the countryside for shooting. If you apply that question to the other species that we are talking about, you would have to ask yourself whether you are satisfied that the methods involved in the rearing and killing of those species are humane. If you are satisfied that the methods are humane, I presume that you would not have a problem with the practice. If you are not satisfied with the methods, surely you would be concerned.
We move on to our second witness. I want to explore the code of conduct that Eleanor Dickson talks about. The submission mentions quite a lot about the potential benefit of a code that might have legislative backing. Will you say a bit more about the confusing variety of codes that is mentioned in your submission? Will you give a sense of how different those codes are?
Yes. In the Moray firth, a scheme called the dolphin space programme was set up in 1995. The code of conduct states that, if dolphins or cetaceans are seen, the operator should not go off their course but should maintain their course. That type of code of conduct would involve not approaching cetaceans. Another type of code of conduct might say that cetaceans should not be approached head on. That is an important component of many codes of conduct. Boat operators should approach at a no-wake speed if cetaceans are to be approached. If there are calves in the group, extra care should be taken. Some codes of conduct address the issue of how close boat operators should get to dolphins or other cetaceans.
Should there be a standard code, or could there be problems because of local differences? How would you build in flexibility?
We ask for a generic code of conduct with the option of adding local clauses for particular species or particularly sensitive areas.
I would like to ask about your submission in relation to part 1, on biodiversity. You say that you
We would ask that the bill state that provisions should apply out to 12 nautical miles.
And why?
Marine wildlife is very important to Scotland and we should protect it out to 12 nautical miles. At a later stage, we will be campaigning for comprehensive marine legislation through Scottish Environmental LINK.
Enforcement of the provisions in the bill to protect species will involve more training and resources. If the provisions extended to a limit of 12 nautical miles, how many extra officers would have to be employed to deal with the marine end of activity as well as the land end? Wildlife officers have been mentioned.
We think that the Maritime and Coastguard Agency could be involved, as it obviously has marine expertise. At the moment, many of the people who deal with this sort of issue are from a non-marine and non-conservation background. We need people who are familiar with the marine environment to deal with the issues.
Is that not the kind of job that the fisheries protection services do?
Yes, to a certain extent, but other issues arise. I have talked about the problem of boat interactions with dolphins and we mention it in our written evidence. That is a really big problem, which fisheries patrols do not deal with. I have given images to the clerk of a dolphin calf in New Zealand that was hit by a propeller and died. In the Moray firth, we have only 130 dolphins and they are seriously threatened. We must deal with the problem urgently.
In your evidence, you say that you broadly support an argument that others have made—that we should be wary of tacking too many things to do with marine environment protection on to this bill. You suggest that there should be comprehensive legislation in future, but should a generic code of conduct be produced in advance of comprehensive legislation on marine protection?
Whale watching in Scotland is worth more than £1 million a year in direct spend. In the Moray firth, we have gone up from one operator 10 years ago to nine operators now. We must deal with the issue as a priority. Many other countries with whale watching have gone down the legislative route and have been very successful. At the moment, we have a voluntary code of conduct through the dolphin space programme. The code of conduct has been going for eight years but we still find, through anonymous monitoring, that people are not sticking to it. The issue must be addressed.
So you think that we should address the matter now, as a matter of urgency, before taking the more comprehensive steps.
Yes—doing so would fit well with current measures on wildlife crime.
I wanted to ask you about enforcement, which you mention in your written evidence. You talk about
Illegal salmon netting in the Moray firth is a serious problem for dolphins. In the past few years, we have lost at least two dolphins to illegal salmon nets. A campaign called operation fish net was launched about a year and a half ago. I have submitted a leaflet about it to the clerk. Last season, the district fishery boards found 54 illegal nets in the Moray firth. One of the fishery boards has reported dolphin sightings in 30 per cent of cases when nets are being pulled in. The dolphin-watching industry in the Moray firth is worth a huge amount to local businesses. One operator alone has 20,000 people on his boat every year. An act by a small minority is seriously threatening the dolphin population. On top of that, it is threatening legal salmon fishing, which the fishery boards estimate is worth £25 million. The issue is serious and, if possible, should be addressed straight away.
Is there a body that could be tasked with doing that, if it were given appropriate powers to do so? What powers would such a body need?
We, and others, have found it difficult to report such wildlife crimes to the police because the police do not have the resources to deal with wildlife crime issues. On one occasion, it took six hours to get in touch with someone who could deal with the issue. When dolphins and nets are in the same area, it is a serious problem for us. We would suggest that more training is needed, so that there are more officers who know about wildlife crimes and how to deal with them. The wildlife liaison officer in our local area has many other police duties, so it is often impossible to get hold of him on wildlife crime issues. We need more resources and more training.
Do you think that better police resources and better trained police officers are the answer?
Absolutely.
When you talk about penalties, you suggest that the courts do not realise the seriousness of the offence and that, although they might fix a penalty that is commensurate with the financial gain that was accrued by, say, an illegal salmon fisher, they do not address the conservation impact of the offence. Presumably your contention would be that swingeing fines or imprisonment would make an impact.
The problem is that the penalties are so small and it is so difficult to get a conviction that there is little to deter people. Higher penalties would, I hope, act as a deterrent, and the police could put more resources in because they would feel that that would result in convictions. The dolphins in the Moray firth are important at a European level. They are the only population in Scotland. The loss of one or two dolphins is serious. The most recent study, in the mid-1990s, estimated that each dolphin is worth £60,000 to the local economy. The conservation point of view is important, but if we also consider the matter economically, what is happening is very serious.
Do you have any examples of the sentences that are handed out for such crimes?
According to the local fishery boards, fines are in the region of a few hundred pounds.
I want to clarify something that came up earlier. This is going to sound strange, but I am going to ask about it anyway because it is a side issue that is worth pursuing. How intelligent is a dolphin?
Very intelligent. I do not know whether you are referring to the nets, but the nets that are being used are so fine that dolphins cannot pick them up on their echo location.
What I am concerned about relates to that, but it also relates to dolphin and whale watching. Where salmon are being affected by fishing nets, is there any extent to which dolphins are complicit? Do they approach nets to steal fish from them?
No. The dolphin does not know that the net exists.
So it blunders in.
Yes. When you think about it, people are going to put nets where the fish are, which is also where the dolphins congregate. The link is the places that are rich in fish life—they attract dolphins and possibly also those who set illegal nets.
We talked earlier about the punishment fitting the crime. The reason why I asked the question was to establish whether the dolphin could be responsible for the crime. I think that we have cleared up that issue to my satisfaction.
Absolutely. There is no doubt that dolphins approach boats. The key thing is to ensure that it is their choice to do so. I am not sure whether you saw the image of the calf that was hit by a propeller. That could have been the result of erratic behaviour. We need to implement a code of conduct that states that a boat should keep going in one direction and not move in different directions. If it does that it can confuse the dolphins.
Okay. Members have asked all of their questions. I thank the witnesses for their submissions and for answering our questions this morning. I suspend the meeting for a couple of minutes to allow for the changeover of panels.
Meeting suspended.
On resuming—
I welcome our second panel of witnesses: Dr Colin Shedden, the director in Scotland of the British Association for Shooting and Conservation; Bert Burnett from the Scottish Gamekeepers Association; and Ian McCall, director of the Game Conservancy Trust. We will not hear opening statements from the witnesses; we have already received written submissions, so let us move straight to questions. I ask members and witnesses to keep their questions and answers as focused as possible. It would be a good idea to focus on the key issues in the same way that we did with the previous panel.
Let us turn straight to snaring, which we covered extensively with the previous panel, as you will have heard. The bill will make it illegal to set a snare in a way that is "likely" to cause suffering. That has the effect of transferring the onus or responsibility on to the setter of the snare. Is that an acceptable way to proceed in your view?
I think so. I invite Colin Shedden to give a full answer to that.
We have made a number of comments about this. We are concerned about the use of the phrase
I am concerned to bring out the fact that it is possible—I believe—for a snare to be an indiscriminate and dangerous way to trap animals. However, in the hands of someone who is experienced and an expert in setting them, I believe that snares can be a precise pest-control tool. It is important that, in the future, they will be in the hands of people who know what they are doing. I am keen to get the witnesses' view on whether it is possible to make a snare a discriminating and useful tool that does not cause suffering, if it is set by someone who knows what they are doing.
Gamekeepers use such snares every day at the moment. You will have to ask other witnesses that question but, as far as we know, there have been very few instances of gamekeepers mal-using snares, for want of a better word.
Is it appropriate that more responsibility for the snare should rest on the setter of the snare than has previously been the case?
That is the current situation. If we were to set a snare and something happened that was against the law or the codes, we would be penalised.
If the law were tightened up, would you simply have to observe a tighter regulatory process when you used snares?
Yes.
I have heard comments in the past, especially relating to situations in England, in which the impression was given that hundreds or even thousands of snares are used, and that there is a widespread problem. A question was answered in Westminster on 6 March this year relating to the number of wildlife offences and the number that had been brought to court. Between 1997 and 2001 in England and Wales, 11 cases were brought to court under section 11 of the Wildlife and Countryside Act 1981, of which six resulted in conviction. That suggests that there is roughly one conviction a year in England and Wales for snaring offences. As I said in our written evidence, we want to ensure that any legislative response is proportionate to the problem.
Are you saying that those figures suggest that there have been no prosecutions in Scotland and that, therefore, the problem is not an issue in Scotland?
Unfortunately, the information for Scotland was not available, and I have not been able to track it down. The most recent information that I have uncovered came from England and Wales.
It is difficult to assume that, because something is the case in England and Wales, it will automatically be the case in Scotland.
I agree, but I have no evidence that the incidence of snaring malpractice is much higher in Scotland than it is elsewhere in the UK.
There is an issue about whether there is a problem in this regard. You are talking about convictions, but other witnesses this morning have talked about problems with snares. It is difficult to compare and contrast those aspects of the issue.
Was any information gleaned on the number of cases that had been reported rather than simply prosecutions? Criminal law is full of situations in which reported cases are not taken on to criminal proceedings, for example because of a lack of necessary evidence. The fact that there are evidential difficulties does not mean that something has not happened, of course. Whether we are talking about animal crime or rape, that can be a problem.
I suggest that the next panel of witnesses might be in a better position to give you a clear answer to that question.
As a professional who sets snares, I am led to believe that incidents of illegal snaring have been connected to people who are not professional gamekeepers. However, the statistics will just lump everyone together.
With respect, your evidence contains a couple of contradictions. You say that people from outwith the profession are responsible for some incidents and suggest that some people harbour grudges against gamekeepers. However, you also say that the majority of cases of deliberate wildlife crime are connected to frustration.
With all due respect, I thought that we were talking about snaring at the moment. The comment about frustration relates to another matter. A lot of guys set snares for deer. Strangely enough, they set the snares and then do not go back to get the deer until later, so I do not know what the hell they do with the beasts when they get them. Snares that are set for deer invariably catch other things. As I say, that has nothing to do with gamekeepers.
I presume that the law is not just about gamekeepers but about anybody who sets snares.
Right, but I am just asking you to make a distinction. If you are going to change the laws on snaring because poachers are catching badgers or whatever in their illegal snares, I do not see why we should be punished. We have a legal, well-managed way of catching foxes.
One of my colleagues asked our first panel of witnesses whether snares could be identified so that people would know who had laid them. Do you think that that would be helpful?
If it solved the problem, yes.
It would not solve the problem of poachers.
No, but it would solve the problem of us being held responsible for other people's actions. A lot of things happen out there and are reported in the press along with the gamekeeper's name. Consequently, everybody marries the gamekeeper and the incident when, in fact, the gamekeeper may not have been involved.
I want to ask some general questions on the practicalities of snaring, and the witnesses can answer them as they choose. Some of the written evidence that we have received has pointed out that it may not be practical to check a snare within 24 hours. For example, if you check a snare at 7 o'clock one morning, you would have to go back before 7 o'clock the next morning, even earlier the next morning and so on. Would it be more practical to specify 25 hours, to avoid the constant shifting to earlier times?
I will touch on the first two points. We have raised the time problem. If the law says that a snare or trap has to be checked within 24 hours, checking it at one minute past that time could constitute an offence. Our solution—that snares would have to be checked at least once in each 24-hour period after being set—goes some way towards addressing that. However, the solution that you suggest—which was also suggested by the Association of Chief Police Officers in Scotland—of making the period 25 or 28 hours, would certainly help.
I think that ACPOS said 28 hours.
I think that everyone agrees that leaving an animal in a snare for longer than 24 hours—that is, up to 48 hours, as can happen just now—is not appropriate. Our code of practice recommends that, ideally, snares should be checked twice a day. However, a good solution could be the police suggestion of something like 28 hours.
Another practical concern arises over snares. If a keeper finds illegal snares, picks them up and puts them in his pocket, and is then apprehended as he goes home at night, he is technically in possession of illegal snares. Is it possible to put an illegal snare out of use? I imagine that, if you are checking snares, you will have some kind of wire clippers with you anyway. If you picked up an illegal snare and snipped it in a couple of places, would that put it out of use so that you could not be charged with being in possession of an illegal snare?
We do not always carry pliers with us—we are not mechanics; we are gamekeepers. On our travels, we could find snares that had been set by somebody else. In those situations, I think that a gamekeeper would leave the snare—possibly after having pulled it—and then sit and wait to see who would come to look at it. The main idea is to catch the guy and prevent him from setting such snares.
There are ways of dealing with a trap when you pick it up that would render it useless as a snare, and that would protect you from such a charge.
That is true, but you might want to take it home to repair it. If there is a kink, it would be quite hard to repair it with your hands, but you could go home and work on it properly with a pair of pliers until it came back into smooth-running action, or you could take the rust off it with a brush.
I would like to ask a separate but related question about snaring. The Game Conservancy Trust's evidence mentions the training courses that it makes available. What is the capacity of those courses, where are they available and would it be reasonable to expect people to have some sort of accreditation as a matter of course because such training is available?
The courses were started up about five years ago following a court case in the north of England in which a judge expressed concern that apparently no training was required before somebody could set a snare. In reaction to that, although we and other organisations already ran a number of training courses that covered snaring, we set up specific half-day courses throughout the United Kingdom. Those courses are available on demand; the only thing that controls the demand is the fact that there is a cost involved in setting them up, so we need between 10 and 20 people to make them viable.
I want to move on to the issue of recklessness. I do not know whether all the questions on snaring are finished.
Have we picked up all the snaring issues?
I have another question about snares. I want to ask all the panel members about their own experiences of snares. We have seen some photographs of animals that have died in snares that are meant to catch and restrain rather than to kill. In the witnesses' experience, in what state are the animals that they find in the snares? What steps do they take when they find non-target species caught in snares?
Well, if you get a non-target species, you let it go. You release it.
Would you then not set a snare in that area again?
You would move the snare, because there would obviously be a problem.
Is that a code of practice that is generally followed?
Yes. Most of the non-target species that we get in snares are rabbits, which, as you can imagine, are quite abundant. They run through the woods using the same tracks as foxes and other animals.
Of the animals that you catch, what proportion is already dead when they are found?
Very few. Rabbits and hares are usually dead, because the traps take them around the neck. We are taking measures not to catch deer, and I personally set traps in such a way that the deer would have great difficulty getting into the snare, so the problem tends not to arise. If the trap catches a deer by the leg inadvertently, there is obviously damage and you could not possibly let the animal go. You just have to kill it humanely, and that is the end of the deer, unfortunately.
Are the foxes that you catch usually still alive?
Yes.
This question is for the British Association for Shooting and Conservation. Your written evidence comments about something that should be cross-referenced to the outdoor access code. I presume that you have drawn that to the attention of the people who work on the outdoor access code.
I have drawn a number of things to their attention of late. The draft access code went to the board of Scottish Natural Heritage about two weeks ago, so it is probably too late for this point to be included in it. If a specific offence of crossing land in possession of a self-locking snare were to be created, for instance, that should be incorporated into the access code at some point, in the same way that other illegal acts are highlighted in the code.
There is currently a loophole in the law whereby somebody who comes along and sets a snare for deer can say in their defence that they were in fact out to catch foxes. There is apparently no law against someone setting a snare to catch a fox. The bill recommends that that should be changed, which would be brilliant, because that defence allows half of those people to get away with stuff.
So you support the tightening up of those provisions.
Providing that that does not restrict the guys who use snares legally.
Therefore, the challenge is knowing who is using such traps illegally and who is using them legally. There is an issue around how the legislation will help enforcement agencies to distinguish between legal traps and illegal traps and to ascertain how they are being used. Permission will be required for people to use traps in their own areas. It will be a huge issue to implement that in practice.
I cannot speak for anyone else; I am speaking from the point of view of the professional gamekeeper, who is only trying to look after wildlife in the countryside and protect it from predators. We have our codes, and many gamekeepers have been doing the job for years. We do not appear to have a problem with prosecutions. If it could be left that way, we would be happy.
Let us return to the issue of recklessness, which Roseanna Cunningham raised earlier.
It is obvious from the evidence that at least two of the organisations represented here are concerned about the bill's insertion of the term "recklessly". You have raised a number of concerns about what might happen as a result of that. The criminal law is full of the term "reckless" in application to other crimes, so it is well understood in the courts.
Do I have to speed read?
It is actually just two paragraphs, so somebody could perhaps pass that to Bert while Dr Shedden is commenting. It seems that what ACPOS is saying is correct, and that your concerns about the word "recklessly" are unnecessary and unfounded.
The example given by ACPOS was a clear one, and I support the argument that it puts forward in that case. I am concerned, however, about something that is slightly less obvious. The best illustration of that would involve someone working in game management in an uplands area. For example, a gamekeeper might dig a grouse butt without realising that he was digging it on an area of ground where a very rare fern featured in one of the relevant schedules—the alpine woodsia or something like that—is growing. Those ferns are monitored annually. Imagine that someone comes along and finds that a small, important local colony of that plant has now disappeared because of the digging of that grouse butt. Would that keeper's actions be regarded as reckless if he were totally unaware of that colony of very small plants? Under existing legislation, he would be innocent, as it was not his intention to damage the plants. However, under the new legislation, his actions might be regarded as being reckless.
Would not the prosecuting authorities consider the likelihood of someone knowing that a red kite, as opposed to an extremely rare species of fern that hardly anyone has heard of, was a protected species? Do you accept that, when it comes down to it, there will still have to be evidence that the action was reckless? Recklessness is an accepted criminal concept and, therefore, requires evidence. It is not simply guilt by certification.
I agree, but I am still concerned as to whether each person undertaking land management in the countryside would be expected to have a full knowledge of the presence or otherwise of protected species of not only animals and birds but plants, whose presence it is much harder to identify.
On snares, occasionally—and unintentionally—we catch a species that we did not want to catch. Malevolent prosecutions could be brought because that could be regarded as recklessness. People could say that we should not have set the snare on a particular track because a deer was using that track. I might have taken all precautions to stop the deer going into the area, but it could still go in anyway and, in its thrashing about, remove the stuff that I had set up to stop it initially. The prosecutors would not be aware of the precautions that I had taken, and I would be charged with recklessness.
Are you saying that you think that the Procurator Fiscal Service undertakes malevolent prosecutions?
No. Malelo— It is a difficult word to say, so maybe it is the wrong word altogether.
It is in your evidence.
Yes, but in connection to another issue. I am pointing out that, even though a snare was set with the best intentions, it would be possible for us to be charged with recklessness and have no defence. How could we prove that we did not set it recklessly?
It would have to be proved that you did. That is the basis of criminal law in Scotland—the prosecution must prove that you did it recklessly; you do not have to prove that you did not.
I would not have a defence against the charge if the area of the snare was churned up because the animal that was caught was walking around and around. Recklessness is a dangerous word.
As I said earlier, the concept is well known in Scottish criminal law and I would be astonished if it were applied differently to wildlife crime than it is to other crimes.
The Game Conservancy Trust expressed concerns about the powers of wildlife inspectors and said that they should not be given powers that are currently reserved to trained police officers. Could you elaborate on that?
I am led to believe that we might have misunderstood part of the bill, but we are concerned that the powers to search for and seize evidence that are reserved to trained police officers might—if we read the bill correctly, which I hope that we did not—be transferred to non-police officers. We are concerned about that from the point of view of our liberties and of the operation of the law. It is quite understandable that police officers should be allowed to do that sort of thing and that they should be accompanied by experts. I hope that I can be reassured that what I thought was in the bill is not in fact in the bill.
That is something that we will have to clarify. Let us take the example of pesticides, which are searched for at the moment. You do not comment in your evidence on the proposal regarding the possession of pesticides. Is that because you are content with the proposals?
Yes.
What about the likes of Carbofuran, which RSPB Scotland and others mention as a major source of problems?
What is the question?
Carbofuran is licensed as a soil treatment for a limited number of crops—mainly root crops—so why would a gamekeeper or a land manager on a shooting estate have access to it?
They should have access to it only if they have a chemical store, and there is already a whole suite of legislation governing that. I know a bit more about that because I also happen to be a farmer, albeit a part-time one. There is no justification for gamekeepers or land managers to possess such chemicals.
Yet that is one of the main sources of problems at the moment, particularly with regard to the poisoning of raptors.
It is true that it is one of the main chemicals found in cases of illegal poisoning, but it is not legal to possess it unless you have a good agricultural reason to do so. It must be kept in a chemical store and you must have documentation to show how much you have used; if you have used a certain amount, any that is left should be in the chemical store. That is the law as it stands and I am familiar with it because, as I said, I am a farmer.
Perhaps that is more a question for Colin Shedden. The British Association for Shooting and Conservation is uncomfortable with the inclusion of the new section on the possession of pesticides and has concerns about the fact that what were once common garden pesticides will come under the remit of the legislation. Presumably an amnesty would be a way of dealing with the situation. People could hand in pesticides that are not required and for which they have no use and the bill could then come into operation.
You are right that that is probably the way of handling the situation, but there is no indication in the bill that the consequential provisions would actually come into play. We just wanted to highlight the fact that, although introducing open-ended legislation that could ban a number of pesticides may seem good on paper, the practicalities have to be fully explored, as you pointed out. Substances such as Paraquat could fall into that category and a large number of garden sheds probably contain proprietary drugs of some description containing Paraquat, which would then fall under the legislation and have to be destroyed in some way.
The problem is not so much with the legislative provisions in the bill; it is more about making people aware of them. We would not be comfortable with the fact that such chemicals were in people's garden sheds anyway, so the bill could be a good way of getting rid of dangerous chemicals that should not be out there.
There may be benefits such as that. Depending on which chemicals are mentioned in the legislation, there could be practical problems for the people who currently use them. Without knowing or even having an indication of which pesticides could be included, it is difficult to say.
That is clearly something that we can put to the minister when we get to our wrap-up session.
I want to follow through one or two of the things that we have been saying to see whether we can come to a conclusion on one specific issue. We have not said a lot about the possession of pesticides, because I do not think that we have a lot to disagree on. The provisions in the bill are useful and I suspect that scrutinising them will do a lot of good to both sides.
Cymag is off the market now, so only Phostoxin tablets are used.
Phostoxin can be used only by approved persons. I think that Ian McCall may be able to tell us whether only those with training can use it.
Yes, that is the case. A more worrying feature is that, although Cymag—which is, in our experience, far more effective—is still available, it will no longer be manufactured because of licensing difficulties. For moles, Phostoxin is probably the safer pesticide but its effectiveness is debatable. Many people who use it do not think that it works.
If snares were progressively replaced by chemicals for gassing rabbits, that would lead to a significant increase in the number of people, and in the amount of chemicals, required for the task. Is that a logical assumption?
Yes, I think that it is.
I have no expertise in this matter, but you gentlemen may have some knowledge of what is possible. Is it reasonable to assume that chemicals could be misused in a way that would contravene the bill?
No more so than they are today.
Except that there would be more reliance on the chemicals and therefore more use of them. When there is use, there is opportunity for abuse, so I am afraid that your assumption would be correct.
I stress that I am not asking anyone to incriminate themselves or the people whom they represent, but is it reasonable to assume that such chemicals could be misused as poisons in wildlife crime?
For mole control, strychnine is licensed and the controls on it are extremely tight. To my knowledge, Phostoxin is not a chemical that can be easily misused. Cymag is in a slightly different category; it would probably be more dangerous in the wrong hands or when not used correctly.
If you ban snaring, including the snaring of rabbits, you will have to remember that there will be areas on marginal ground where Phostoxin tablets cannot be used. The rabbits there cannot be gassed; if not physically impossible, it would require a hell of a lot of manpower. The same would be true in woods. We have to snare in the open ground where rabbits are moving from woods or rough ground to wherever it is that they are doing damage. We can try to shoot them at night, but that cannot last for ever—rabbits quickly get used to a lamp coming in at the bottom of the field and they just get out at the top. They are not stupid.
Are you saying that the products that are licensed for use are an inadequate replacement for snaring?
There is no question about it. We have tried to make that clear in our evidence. The fact that the police evidence—the police put the point especially well—was very similar is interesting. If you remove legitimate means of controlling pests and predators beyond a certain level, that may be counterproductive, because people are encouraged to take the law into their own hands in desperation. Obviously, we want to minimise any risks of damage or cruelty, but we acknowledge that pest and predator control are necessary, not just for agriculture but for other reasons as well.
On your last point, I was wondering whether the access laws would affect where you could set snares. However, what I really wanted to ask Mr Burnett was how long it would take to shoot 100 rabbits at night and how long it would take to catch 100 rabbits in snares.
How long is a piece of string? As I suggested, we can go to a field of rabbits on the first night, when they are pretty naive, and take out our guns and get a lot of rabbits. We could kill 100 rabbits in a couple of hours, whereas the snares would be sitting there all night.
It would take you a long time to set 100 snares.
It would, but they will sit there and catch rabbits all night. If I go into a field at night for the second time to shoot rabbits—which is my only other option—they will not be as stupid as they were on the first night. Certainly, when the light comes through the gate on the third night, they will know what is going to happen and will head back to their homes. That is when snares come into their own, as a rabbit will have no idea that a snare is there. It will come out to feed and we will catch it. However, we are talking about the difference between six and half a dozen. Shooting is great, but only up to a certain point.
On access, is it an issue that there will be places where it would be inappropriate to set snares, as people make recreational use of the land?
It is inevitable that there is an issue in that respect. People often like to be accompanied by their canine friends, and foxes and dogs could be a problem. Keepers already try to snare where there is less risk to livestock or to human companions. The issue is important, which is why we are concerned about the gradual diminishing of the armoury with which we can deal with problems. There seems to be little progress with or research into alternatives.
We could set up a couple of hundred snares for an evening's catch of rabbits, but there is access legislation and people can run about with their pets. If we put up a sign that says that there are snares, somebody will say, "Oh, are there? Let's go and look for them." There will therefore be interference with the snares. However, if we do not put up a sign and a person's pet gets damaged, will we be sued for not putting up a sign?
So it could be argued that it would be easier to use signage and keep people off land for a short time when shooting is taking place rather than for a long time during which there is snaring.
The strange thing about people is that, if a sign is put up that says that something should not be done, they will usually do it. If there was no sign, they would not know what was happening and would stay away.
I would like to move on to a more general issue, as we are expending a lot of energy on a small part of countryside practice. SNH studies have shown the correlation between the distribution of poisoned eagles and the distribution of managed grouse moors. Moreover, 80 per cent of people who are convicted of persecution of birds of prey have game-rearing interests. Does the panel accept that those issues, as well as the number of unprofessional wildlife managers in the profession, need to be addressed? What are your organisations doing about such matters?
I certainly agree that the evidence indicates that, to a considerable extent, there is a correlation between detected persecution of protected wildlife and game-rearing and game-shooting interests. However, we must also recognise that game-rearing and game-shooting areas act, to a certain extent, as honeypots for predatory birds and even predatory mammals, which is why we have been talking about foxes and game interests for so long this morning. It is inevitable that a higher density of predatory species will be found in areas where there is an abundance of prey, which are usually game-shooting areas.
You talk about a "small number" and "a considerable number of years". Can you give us any figures?
Over the past three years in Scotland, I think that I have had to refer three or four members to our disciplinary committee—unfortunately, one member had to be referred to it as recently as last week. In each case, the member has, in effect, been blacklisted from membership for around three, four or five years. A decision is taken by the disciplinary committee and not by me.
Our organisation has done the same. If someone is done for a serious crime, they are out.
So, for example, Douglas Ross—
He is no longer a member.
Ronald Allison?
Mr Allison's case is currently before our disciplinary committee.
Is he one of your members?
Yes.
What is the Game Conservancy Trust's view of the issue?
I echo what Colin Shedden said. You mentioned the SNH study. Its conclusions are no surprise to us because, as Dr Shedden pointed out, prey attracts predators. There is equal evidence that, in certain places, birds of prey thrive under game management conditions. The Game Conservancy Trust took part in the Langholm study, which demonstrated a massive increase in the number of hen harriers when a moor was keepered for several years. Interestingly, since the grouse and the keepers have gone, the hen harrier population has shrunk back to below its previous level. That suggests that game management, when it is conducted according to the law, is exceedingly good for all those species. It is important that we do not throw the baby out with the bath water.
I would just like to get one more comment out of you. On Sunday's "Landward", there was an item from Mull describing the popularity of sea eagles among visitors. A sheep farmer was interviewed and he said that approximately 20 of his lambs had been taken by the sea eagles. Clearly the fact that people come to watch the sea eagles is seen as far more valuable to Mull's economy than shooting or the other activities with which you gentlemen are involved. Do you agree that the economic value of wildlife visits, education and tourism might be better for biodiversity than the activities that you are taking part in?
The two interests are compatible. During the winter, the gamekeeper is taken up with the shooting season; at other times of the year, he may act as a wildlife ranger and will escort people out to show them the wonders of biodiversity in Scotland—that happens on several estates. It is acknowledged that biodiversity thrives in several areas that are well managed for game and wildlife; there is a good deal of compatibility between management for game and shooting interests and wider biodiversity. We have been focusing on how to ensure that that continues.
As for the sea eagles, the guy on the television would have had a different opinion if he had been interviewed a few years ago when he was not getting compensation for his sheep.
Indeed. We are interested in the question of costs. Nevertheless—
It is wonderful to see sea eagles, red kites and so on, but there are other things out there that are not tourist attractions and might be causing someone somewhere a problem. If a problem is big enough for people to feel that they have a grievance and they cannot deal with it legally, they will take the law into their own hands. To a great extent, that is what is happening. There will be a few idiots who hang on to the past, but in general people are trying to solve a problem themselves because they see no other way of solving it.
To what extent is training part of the solution? In a couple of the submissions, you refer to the training that people who work on the land have to undertake. Surely that is one way of making people aware of their duties and responsibilities and of the legal methods that are open to them.
We can bring in a law to ban people who have telephones in their cars from driving with one hand while their mind is somewhere else, which is stupid, but that will not prevent some idiot from doing it. We are in the business of educating our members and folk such as our members who work in the countryside. We hope that our message is getting through, but if it does not there is obviously a problem that we cannot reach. If we cannot reach it, there must be another way of doing so.
Presumably a new act would concentrate the mind.
One would hope so. However, in all other walks of life people break the law. Education does not always solve all the problems.
We may be able to explore those issues with the third panel of witnesses, who represent the people who will enforce the law.
My question relates directly to a phrase in the written evidence from the Scottish Gamekeepers Association, which I would like Bert Burnett to quantify. You say that bad feelings are shared by gamekeepers across Scotland and that
They will co-operate with the police up to a point, but they will not tell the police anything voluntarily. If the police ask them questions, they will answer those questions as they see fit. However, they will not co-operate actively with the police, because in the past gamekeepers have been raided unjustly. If something bad happened to someone in your street, the word would go up and down the street very quickly and many people would want nothing to do with the person responsible.
What percentage of the SGA's members takes that view?
About 20 per cent of them.
So about 20 per cent of the members of the Scottish Gamekeepers Association will not co-operate with the police.
They will not come forward to tell the police about incidents. I have not spoken to every member. However, from speaking to my local members and to committee members, who have spoken to their members, I know that the general feeling is as I have described. Because of particular incidents that have taken place, there is distrust of the police among our members. To their minds, people have been unjustly raided.
I want to ask about wildlife inspectors. I hear what you say about the police. Although in the written evidence all three of the organisations represented here say that they are happy to have the police come on to land to examine items or to search for evidence, they are not happy to have the police accompanied by someone who is not a policeman. I find that rather strange. What are you worried about?
Why should someone who is not a policeman be in my house? I assume that the wildlife inspector is there only as an expert witness. If evidence is found in my house or buildings, that can be taken to him. If the issue is the identification of a bird's egg, a dead bird or a particular kind of trap, the inspector is required only to comment on that. As far as we are concerned, his job is then done. There is no need for him to walk through my house. It is an invasion to have police come through one's house in any case. That invasion is made worse by involving a member of the public.
Are you worried only about inspectors coming into your house, rather than about their coming on to the land?
If an inspector comes on to the land to carry out identification—to help the police and accompanied by the police—there is no problem. However, once his job is done he should have no more to do with the case.
So you are happy to have a vet, for example, come on to the land to identify what has happened to a bird or animal, but you are not happy about their coming into your house.
Yes.
Do Ian McCall and Colin Shedden agree?
We understand the need for expert witnesses and that it may be necessary for them to enter a house. In an ideal world, a warrant would be available, but there might be occasions when it is not possible to obtain one. There is no problem with expert witnesses—we understand that aspect of the bill. We were under the impression that powers were to be extended and that was what concerned us.
Why were you concerned about powers being extended?
Because we believe that the powers held by the police should rest with the police and the police alone. Policemen have the necessary training. We would be worried by the implications of having some sort of second tier of police officers. If they are there as experts, that is quite understandable, but the police are there to do their job. Hopefully, we have enough police. If not, that is something for the Executive to consider.
We are also interested in an academic sense. Does such a measure establish a precedent, in that the powers of the police to search and seize are effectively conferred on civilians for a short period of time? I am not aware of any parallels in other legislation, but they may well exist.
How does that compare with the powers that bailiffs have when they are chasing poachers?
To my knowledge, bailiffs operate on private property, with the permission of the landowner. That is substantially different from going on to somebody else's property.
In all probability, the bailiff would be making a sort of civil arrest at the riverside, or wherever, rather than going into somebody's house and dragging the person out. They would not have the powers to do that.
Is it not the case that the powers conferred under the bill are closer to those already held by fisheries protection officers?
Are you asking the clerks that question? We will be able to obtain an answer to that.
I think that there is a precedent there.
We could perhaps get that information checked.
Okay.
In your written evidence, you mention the provision to trap game birds for breeding. We have not discussed that issue yet, so could you expand on it?
I heard the earlier evidence. Under section 5(5) of the Wildlife and Countryside Act 1981, gamekeepers and others can catch stock at the end of the season for breeding purposes. That practice has carried on for the best part of 100 years. As far as I am aware, it has presented no problems with respect to wildlife crime and there has been no abuse.
I can confirm that last point, which relates to the laws on poaching. It is important that anything that is kept in a pen is deemed as farmed. Therefore, taking it is theft. Once it is outside a pen, it is a wild animal, and we may then talk about poaching. I cannot see any great need to change that situation, which I think is quite clear already. I was a bit mystified about the earlier discussion on that.
There are no other questions. I thank the witnesses very much for coming along this morning. I suspend the meeting briefly so that the third panel of witnesses can assemble.
Meeting suspended.
On resuming—
I welcome the third panel of witnesses, who are Superintendent Mike Flynn from the Scottish Society for the Prevention of Cruelty to Animals; Alan Stewart, who is a wildlife and environment officer from the Association of Chief Police Officers in Scotland; Duncan Burd, who is a member of the Law Society of Scotland's rural affairs committee; and Dave Dick, who is a senior investigations officer with RSPB Scotland. I thank the witnesses for their written evidence, which members have read in advance. We will go straight to questions from members. I ask members and witnesses to make their questions and answers as focused as possible.
I will return to the issue of recklessness, which I raised earlier. The witnesses will have heard the concerns of the Scottish Gamekeepers Association and the British Association of Shooting and Conservation about that issue. The Game Conservancy Trust raises concerns about the matter in its written evidence. The concerns range from a feeling that the recklessness provision may catch people who are in effect in ignorance, through to the Scottish Gamekeepers Association's view that it will result in "malevolent prosecutions". I ask the witnesses, particularly those from the police and the SSPCA, to comment on those concerns. Are any of them justified?
I understand the concerns, but there are ample precedents in law on the concept of recklessness, as you said in questioning the previous witnesses. There is a clear difference between intentional or reckless acts and careless or accidental acts. It would be unreasonable to expect a court to convict a person of an accidental or careless act—we want to take to court only reckless or intentional acts. I understand the worry but, given the existing concept of recklessness and the way in which courts work, that worry is not realistic.
I have a couple of points. First, many of the protected ferns are probably on sites of special scientific interest, which are designated by SNH, so people will know of their existence. With normal species, the gamekeepers work in the countryside—it is their patch—so if they do not know that something is there, nobody else will. Secondly, if one knew what the Crown Office and Procurator Fiscal Service requires these days to prosecute, one would realise that the idea of malevolent prosecutions is absurd.
To what extent are you aware of non-co-operation being a problem in attempting to detect and prosecute wildlife crime?
In Tayside, we have not found it to be a great problem. We work closely with the Game Conservancy Trust, BASC and the Scottish Gamekeepers Association. When we carry out inquiries, we get the help that we require. We try to ensure that committee members of those organisations try to police their members to ensure that they stay within the law. Those organisations assure us that they do their best. I will stop at that.
Please feel free to go on. Are there things that those organisations could do better?
I sometimes think that they are a wee bit soft on their members. I would prefer it if they threatened to expel members who do not comply with the law. The situation is sometimes compared to police officers who break the law being thrown out, which is entirely correct. All police officers try to ensure that officers who do not toe the line are brought to book. That is entirely different from being a member of an organisation, but if it is clear to the organisation that certain members are not fulfilling their obligations and are bringing the organisation into disrepute, those people could be put out. That power could be used a wee bit more to bring one or two people into line.
I would go along with that. We have worked well with BASC and the SGA over the years and believe that the vast majority of their members are good and that it is only a small number of people who bring the organisations into disrepute.
I want to deal with issues relating to sites of special scientific interest. The Law Society of Scotland talks about the idea of making site management statements available on the internet or in public libraries, but that is not specifically mentioned in the bill. I would like you to comment further on that.
First, I have to declare that I am a member of BASC and am also a crofter and, therefore, an occupier of land.
Would you like there to be a specific list of local bodies, such as community councils, that should have the information to ensure that the public are as well informed as possible?
Yes.
With regard to section 6, which deals with the review of operations requiring consent, your submission says that everyone having an interest in the land, not only the owners and occupiers, should be involved. Specifically, who do you suggest should also be involved?
We felt that some people who have rights to be on the land might be affected by any review of operations. For example, the landowner may have transferred some of his or her rights to third parties who will have a legal right to be on the land for any particular purpose and it might be that that purpose will be impinged on by developments that others are involved in. We are trying to ensure that everyone who might be affected by a development is at least told about it in the first instance.
Are we talking about a significant number of people? I presume that you would not have mentioned the matter if you did not think that it was likely to be a significant number.
The number will vary across Scotland. In some areas, it will be quite significant but it will be miniscule in others.
Do you have in mind, for example, someone who has a pony trekking business and has permission to cross someone's land?
Yes.
On section 19, which deals with offences in relation to sites of special scientific interest, you seem to be suggesting that there will be a two-tier system in that regard. Am I picking that up rightly or wrongly?
That part of the submission came from the criminal law committee, which is our brother committee. If you want, I can get back to you on that matter after I have consulted its members.
I will clarify what I am trying to find out about and ask you the question in writing.
A wee bit. We analysed these sections fairly critically and it was felt that there could be areas of concern if the sections became enactments. The input on that came pretty much from the Law Society's criminal law committee. However, there is a general perception that there will be difficulties in interpreting that in courts.
So, it is something that we should look at a bit more critically.
Yes.
Under "Offences in Relation to Nature Conservation Orders", you suggest that
It would put the emphasis on the Crown to show that there was some knowledge of the offence. I do not think that ignorance would be construed as a defence.
So, you are drawing a line in the sand and saying that the issue is helping people to know where that line should be.
Yes.
I am sorry that this is legalistic—
I am letting you have the floor, here. Other members will get in.
Right. On section 38, the Law Society says that there is
What we have tried to do in our submission is put down various markers that will be more relevant at a later stage in the proceedings. We have taken the view that there may need to be appeals provisions to ensure that the bill complies with European law.
Where there is provision for appeals to be made in respect of nature conservation orders, you do not think that a fair and impartial tribunal is identified.
I do not think that we are being so dramatic as to say that the procedure is unfair. We are saying that we need to be absolutely certain that the composition of the panel is bullet-proof.
Right. That is all that I had notes about. Thank you.
I would like to turn to the last section of RSPB Scotland's submission, concerning single-witness prosecutions. Other members of the panel may want to comment on this.
It would be better to point out that the same standard of proof is required in crimes to do with poaching and littering in Scotland. Under the Environment Act 1995, only one witness is needed. The suggestion to apply the single-witness provision across the board was a late addition by the RSPB. However, it is an anomaly that although it has been possible since 1830 for certain offences against wildlife, such as poaching, to be dealt with by relying on a single witness, nowadays, when wildlife is seen as being of far greater importance to the entire community in Scotland, judging from what has come out in evidence today, other types of offences against wildlife are dealt with in a lesser way.
I suppose that it could be argued that the poaching legislation emanated from another place and another system of law.
And very different priorities.
Indeed. We have to be careful to be specific when we talk about crimes including those to do with poaching and littering. We have to find better ways of getting people in remote areas involved in spotting wildlife crime.
We have a law that states that only one witness is needed to prosecute crimes of taking or destroying an egg. If a gamekeeper stamped on a nest that contained hen harrier eggs, it would be a single-witness offence. If one accepts that as a good piece of law, it is an anomaly that two witnesses are needed to prosecute the person who poisons the bird that laid the egg.
Is anyone else on the panel interested in commenting on the fact that wildlife crime is being treated separately from other streams?
I do not know whether it is a case of treating it separately. Dave Dick made a good point when he said that wildlife crime, by its nature, happens in remote and rural places where there are few people. There will be more people going about when the countryside opens up. Like the RSPB, we do not seek to make changes to the fundamental principles of the law. However, because wildlife crime is so rural and so few cases get to court, the ones that do are just the tip of the iceberg. Finding an offence, as we do quite often, and finding the offender are like chalk and cheese—they are totally different.
What sort of numbers are we talking about?
We have provided a map at the end of our evidence that shows five years of positively confirmed persecution and poisoning incidents in Scotland. There are dozens of little dots on the map that represent such incidents all over the Scottish countryside, most of them in rural areas and without a witness. We have found the animal or bird later, after it has been killed, or we have found bait or other evidence. The problem is large.
As you heard, the previous panel voiced concerns about wildlife inspectors, who are not policemen, being able to enter people's houses. I see from the evidence from members of the present panel that you have concerns about that, although not of the same kind. For example, the Law Society is anxious about an inconsistency in the bill to do with the right of entry to somebody's house. The police are concerned to make the powers unambiguous so that when cases come to court, the defence will not be able to play games with other people's powers.
There has been a general misunderstanding about wildlife inspectors. They are employed or appointed by DEFRA. The right of entry concerns people who deal in birds of prey and it is to do with the convention on international trade in endangered species of wild flora and fauna. If I were a bird-of-prey keeper keeping peregrine falcons and I ringed my chicks, I would have to get my rings from DEFRA, which would be entitled to check me through its wildlife inspector. If I wanted to sell a bird from an endangered species and I had an article 10 certificate to do so, that wildlife inspector could come to my address at a normal time and ask to see the certificate.
Wildlife inspectors are experts. They are experts on the particular bird or animal that they are going to look at, so we would have absolute confidence in them. I am happy with the proposed new powers.
So the inspectors would be specialised.
That is correct.
There are only six appointed inspectors in Scotland, or perhaps 10.
They are Government employees, who are trained at an annual conference in Bristol. Wildlife inspectors have existed since the Wildlife and Countryside Act 1981 came into force.
It is useful to have that clarified on the record.
The Law Society raised a point about entry into houses.
When that was discussed, we did not know of the existing wildlife inspectors. I would therefore like to come back to the committee on that point.
I would like to ask about snaring.
I would like to ask about that too.
All right—we will move on to that.
In its submission, the SSPCA said that its preferred option would be a total ban on snaring. However, the society welcomed some of the measures in the bill as being better than what we have at present. Will Mr Flynn outline briefly for us the society's involvement with snared animals and will he explain why the society has taken the view that it has taken? The police have taken the opposite view, feeling that a ban would be counterproductive—partly because of enforcement issues. How could the regulations brought in with the new bill be enforced?
Our board's policy for more than 30 years has been to oppose the manufacture and use of any snare that can cause suffering. In the cases that we deal with, we invariably see suffering caused by snares. We do not have inspectors going out to the countryside to search for snares; every time we go to a snaring incident, we do so because a member of the public has reported it to us. After finding the original snare, we will search for others in the area. Because a member of the public has called us, by the time we get to the snare, the animal will invariably be distressed, injured or dead.
You mentioned resources. In paragraph 18 of your submission, under the heading "Causing and permitting", you refer to the requirement for gamekeepers
Some land managers have unrealistic expectations of their keepers. We feel that if it can be proven that a head gamekeeper has acted under the instruction of a factor, or that an underkeeper has acted under the instruction of a head gamekeeper and so on, everyone should share responsibility for an offence. It is common knowledge that the Protection of Animals (Scotland) Act 1912 makes procuring or causing any person to carry out a particular act as much of an offence as carrying out the offence itself. As a result, if we can prove that people have put keepers under so much pressure that they have had to carry out illegal acts or that people have commissioned them to do so, they should also be held responsible.
That clarification was useful.
I want to raise a specific point about snaring. Earlier, concerns were expressed about snares that have become self-locking and, indeed, self-locking snares themselves. I think that people such as you generally welcome the fact that the bill seeks to make it an offence to possess such snares. However, concerns were also expressed about the fact that people who remove snares once they have been identified will be in temporary possession of them.
First of all, wildlife inspectors do not come into the scenario because they deal with birds or animals that are licensed.
That still does not deal with temporary possession, for example to remove the snares. A responsible gamekeeper might discover illegal snares on land for which he is responsible and pick them up to remove them. The concern is that by taking temporary possession of the snares to remove them, the gamekeeper will be open to the accusation that they are in his possession. I do not know whether you think there is any way one can develop a sense of intent in such circumstances. Someone will have to remove the snares, will they not?
We have a similar situation just now. If a gamekeeper finds a bird of prey that they think might have been poisoned, we encourage them to contact the police about it. We would then go and collect the bird, which would be examined. The same applies with snares. If somebody finds snares on their land that are not theirs and they think that they are there illegally, they should contact the police.
They should not touch them; they should contact the police.
Yes, and we will deal with them.
That is what I was trying to get at. If in your view the police will be responsible for the removal of snares, that answers the concern. However, that assumes that the police can be called out fairly quickly. Will that always be the case or will the snare continue to lie there?
The alternative is to draw the snare so that it cannot catch anything. That would make it inoperable.
Then the police could be called.
One of your colleagues made the sensible point that if someone comes across a snare, which they are going to remove, they should snip it in two so that it is incapable of being used as a self-locking snare. I do not see that it would be a major problem for people in the countryside to carry a pair of pliers.
I am often asked to give people advice about what to do if they discover a wildlife offence being committed in the countryside. I tell gamekeepers and farmers who think they might come across something reasonably regularly always to carry a camera with them, because it corroborates what they find and people cannot say that something has been planted. They should gather evidence in the way that other people would. We are talking about an awareness campaign for wildlife crime. People such as Mike Flynn and me have a duty of care to the wildlife about which reports might be made. The courts should accept that if there was no possibility of a policeman arriving before something could get caught, the person who found the snare had to draw it.
We will need to consider later a number of issues around implementation, the guidance that people will need and training for people who are involved in management, so that everyone is clear about what is in the eventual act. There is a real issue about what is expected of people in different parts of management. We will want to wrap up a few issues.
For about the past 10 years I have been helping with a training course for gamekeepers at the Scottish Agricultural College at St Boswells in the Borders. I have been pleased to do so and I have seen hundreds of young men and women finish the course. However, very few of them end up in full-time employment as professional gamekeepers. There does not seem to be any need to have a professional qualification in that field. This is a big issue and perhaps it goes beyond our discussion of the bill, but people ought to consider more regulation of the education of people who handle dangerous equipment, whether snares or guns, as well as of the wildlife under their control.
My question is on the practical difficulties that checking snares every 24 hours imposes. ACPOS thought that a 28-hour period would be all right. Would a 25-hour period be enough?
The period should be more than 24 hours. People might religiously check the snares every day, but they might have to go out a wee bit earlier every day. If they go in different directions or something else crops up, they cannot fulfil their obligation to check the snares within the 24 hours. It is realistic to extend the period a wee bit beyond 24 hours to 26 hours or whatever period is agreed to be reasonable. Everyone accepts that if snares can be checked twice a day, so much the better, but if we must set a definitive time, it has to be a bit longer than 24 hours.
I imagine that most animals that are caught in snares are caught at dawn or at dusk, or during the hours of darkness. The bill stipulates that snares must be checked within a 24-hour period, but the daylight hours are self-eliminating, so to speak.
The snares are usually checked first thing in the morning, so that the animal is there for the minimum period possible.
It is widely accepted that the shorter the time an animal is in a snare, the better all round. The representative from BASC made that point earlier. I know that Professor Ranald Munro would think that for an animal potentially to be in a snare for more than 24 hours is totally unacceptable in welfare terms. We believe firmly that snares should be checked at least once every 24 hours. If someone has set so many snares that they cannot check them within that period, they should cut down the number of snares.
Do you take on board the point that if someone routinely goes out at 7 o'clock in the morning to check their snares and one day checks them at 5 past 7, technically they will be in breach of the law? Allowing 25 hours to check snares would give them some leeway and ensure that they were not technically committing an offence. It is desirable that people are within the letter as well as within the spirit of the law.
That brings us back to the issue of technical offences, which we want to avoid.
We want to eliminate technical offences, because they are not desirable.
I agree totally, but snares are not desirable either. If we have to have an undesirable thing, why not have something else that is undesirable that ensures that it is a bit more humane?
I have been told that in the States people use a type of spring trap with rubber or neoprene padding. It operates in the same way as the spring traps that are illegal in this country. Do you regard such a trap as more humane than a snare?
You are referring to the leg-cuff trap. It was tested as part of the badger cull recommended by the Krebs report and the Ministry of Agriculture, Fisheries and Food rejected it out of hand. I do not know the results of the trial and why MAFF rejected the trap. Some groups said that it was better for animals than being caught in a wire snare.
If it is possible for us to get that information, we will do so.
I have never set snares, but I know people who have. In my experience, they are checked at first light every morning. Between August and November, in particular, first light does not happen every 24 hours in Scottish conditions—the intervening period is longer than that. We do not dispute the proposal that snares be checked every 24 hours. However, we need to find a definition that can be implemented in Scottish circumstances. That is why we are suggesting that a 25 or 28-hour period might be appropriate.
It has been recommended that snares should be checked once in every 24-hour period, between dawn and dusk. Under that recommendation, if someone checked their snares an hour later than the previous morning, they would be complying with the law, as they would be checking their snares during the hours of daylight within a 24-hour period. If snares are set on lines, they cannot be checked at night anyway.
I have a question for the police representative. Do you envisage difficulties in enforcing this measure? Do you believe that all the provisions of the bill will place an extra strain on police resources? Are there sufficient numbers of police officers trained in wildlife matters, or is there a resourcing issue that needs to be considered?
There are many questions there. Police strength is pretty strained as it is, but I am sure that we will cope adequately. The bill's provisions could potentially lessen some offences. Half the problem will be solved by the deterrent in the power for courts to imprison offenders. However, that is only half of the solution.
Will the panel comment on the importance of being able to challenge people about the possession of certain pesticides?
I have seen searches taking place since around 1989, when the Food and Environment Protection Act 1985 was first used by agriculture officers in Scotland. People have often been found to be in possession of the very pesticide that was taken from the victim and analysed and which led to the search taking place. In many cases, the pesticide is even in its original container. The classic case in that respect is a rodenticide called alphachlorolose, which can be used only for mice or in licensed operations against birds. However, a person who possessed that pesticide and had a motive for killing a bird would not have committed an offence. They would not even be charged for possession of the substance.
I agree with that. Our concern is more about domestic animals that are poisoned. In two areas in Fife, two years ago, 26 cats were killed in the space of a fortnight by carbofuran. Even if we could have found who had the carbofuran, we probably could not have proved who had put it down because it appeared that half of the people in Fife had it at the time. The person who was suspected had no reason whatever to have the stuff. We definitely support the inclusion of the prohibition of the possession of pesticides in the bill.
Do you agree that now that a more heavily regulated system for the control and use of agrochemicals has been instituted, there is no grey area? Unless someone is licensed to use such chemicals, they will be guilty of a crime if they possess them, so we should not be concerned about grey areas.
Doing searches over the past years, I have been appalled by the lax way in which legally held chemicals are often treated in farm stores and estate stores. In England in the past few years, there have been several prosecutions under health and safety at work legislation through the control of substances hazardous to health assessments. Under COSHH, employers must show that employees are trained in the use of chemicals.
As with other issues that we have been picking up today, the changes that will come about as a result of the bill will require a lot of information to tell people what is in the legislation and what they are allowed to do. Perhaps some best-practice guidance will be required so that we do not get the poor practice that you are talking about. That might be another issue to sweep up with the minister.
Meeting suspended.
On resuming—
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