Rural Affairs, Islands and Natural Environment Committee

Meeting date: Wednesday, June 22, 2022

Official Report 678KB pdf

---

Hunting with Dogs (Scotland) Bill: Stage 1

Our second item of business is an evidence session on the Hunting with Dogs (Scotland) Bill. I welcome our panel, who will focus on prosecution and policing perspectives. Michael Clancy OBE is director of law reform at the Law Society of Scotland; William Telford is a detective sergeant from Police Scotland; Sara Shaw is principal procurator fiscal depute at the Crown Office and Procurator Fiscal Service; and Robbie Kernahan is director of green economy from NatureScot.

We will take questions until about 11 o’clock, and I will kick off. We have heard from witnesses the difficulties that they have experienced or perceived when investigating and prosecuting alleged offences under the Protection of Wild Mammals (Scotland) Act 2002. Will the amended offences in sections 1 and 2 of the bill provide greater clarity and ease? Will you give us your overview of whether those offences will be clearer and easier to enforce?

The bill improves on the Protection of Wild Mammals (Scotland) Act 2002. However, a big thing for us is the terminology. There is still an opportunity to amend the bill to make offences easier to enforce.

The term “deliberate” is removed in the bill. That is welcome, because it confused matters. However, a fairly standard excuse for hare coursing, for example, is that the offenders will claim that they just let their dog off for exercise or to do the toilet and it chased a hare of its own free will, outwith their control. We can find it difficult to disprove that. Police Scotland thinks that, in order to negate such excuses, there might be a benefit to the bill saying that someone wilfully, intentionally or recklessly allowed their dog to do that.

Good morning. As William Telford mentioned, the bill seeks to clarify the concerns previously expressed about the language in the current legislation, as embodied in Lord Bonomy’s report and expressed by other organisations. There seems to be greater clarity of language and, importantly, consistency in the expressions that are used in the bill. So, overall, it appears to be an improved position.

As has already been mentioned, the word “deliberately” has been removed, which adds some clarity to the offence under section 1 of the bill. There are additional improvements, such as the definition of “cover”. I note that some of the definitions remain the same and some terms are not defined, such as “to search for”, “stalk” and “to flush from cover”. I assume that that is because it was considered unnecessary to define those terms.

Michael Clancy, we have heard that one reason for introducing the bill is to close loopholes. Does it go far enough?

That is an interesting question, and the proof of the pudding will, of course, be in the eating. On whether the bill closes loopholes, it depends on what you mean by a loophole, which might be one person’s perspective of a perfectly respectable defence.

On changes of definition, we were concerned about the use of the phrase “using a dog”. Section 1(4) tells us:

“a person is ‘using a dog’ when the hunting of a wild mammal by that person involves the use of a dog, even if the dog is not under that person’s control or direction”.

I am not even entirely sure that one is “using a dog” when hunting. I reflect on the term in the 2002 act, which was “hunting with a dog”. There are issues with what the term “using a dog” means when the dog

“is not under that person’s control or direction”.

One might say that it was an easy defence to say, “I was not in control of the dog when it took off and chased a hare.” That might be a perfectly feasible defence, but others might think of it as a loophole.

I have a supplementary question on the point that Mr Telford made about the removal of the word “deliberate”. Last week, Lord Bonomy said that the bill is clear and simple and that we should “avoid unduly complicating” it. How would changing the words in the bill or extending its scope affect ordinary dog walkers?

A differentiation between people who are hare coursing and average dog walkers who are taking reasonable steps to keep the dogs under control can be factored in. If the word “reckless” was included, we would have to define it.

Hare coursers will typically set themselves up so as to find the hare. For example, they will line up along a field with the dogs and will then walk them until they find the hare, which, in essence, has nowhere to go and is flushed out. That could be factored in. It is not something that an average dog walker will do, so I would say that that act in itself is reckless. We might not be able to prove that people are deliberately hare coursing, but that act is reckless and not something that your average dog walker will do.

I am quite concerned about this, convener. I have seen hare coursers. They scarpered before anybody got there, which means that nobody had seen them. It was pitch black and they had torches. The problem with hare coursing is that the police cannot catch the offenders because they are fleet of foot. Although people might not necessarily walk their dogs at night in the middle of nowhere, the bill would still need to be clear about protecting ordinary dog walkers.

Mr Telford, how often do you and your colleagues turn up to an incident of hare coursing and have to stop and ask what the chances are of it leading to a prosecution because there are too many opportunities for the criminals to come up with an excuse? Under the bill, would the number of times that that happens reduce because the law is clear? Would it be more likely that, when you take a case to the procurator fiscal, it would be progressed?

Under the bill, there will be greater opportunity to get arrests and, potentially, convictions. The inclusion of rabbits in the definition of “mammal” will aid that, because, to an extent, it will negate the false excuse of hare coursers that they were hunting rabbits.

More often than not, a hare coursing incident will be reported to us and nobody will be arrested. That is not only down to problems with the current legislation. First and foremost, it is about chasing the people who are involved. Quite often, by the time that we find the place, they have gone. For example, over the past month, seven suspected hare coursing incidents have been reported to police, and crimes have been recorded for three of those. In the other four, we did not have sufficient evidence to say that a crime had occurred.

It is one thing to say that there is a certain number of recorded crimes of hare coursing, but there are potentially many more incidents that we cannot definitively say were hare coursing and record as such. However, it is certainly a prevalent crime type.

Good morning, folks. Unfortunately, I will—pardon the pun—take us down a rabbit hole. Am I right in thinking, on the basis of my own experience, that hare coursers have a particular type of dog?

Yes.

So, somebody who is out walking a poodle is highly unlikely to be hare coursing, but it is far more likely that somebody with a lurcher or greyhound will be doing so. Does the bill need to specify a particular type, or types, of dog that are ordinarily used in hare coursing?

09:45  

As you said, a select number of dog types are used for hare coursing, so specifying those types would certainly make enforcement more straightforward for the police.

However, from a legislative point of view, where do we draw the line? A collie crossed with a greyhound could make a good hunting dog.

Yes, exactly; there would be challenges.

As I said, I am taking us down a rabbit hole.

Detective Sergeant Telford, we have already covered some of these issues, but one criticism that the police have made of the 2002 act is about the number and complexity of the exceptions to the offence of deliberately hunting. Can you say more about that? Does the bill rectify that problem of the number of exceptions?

There are not many exceptions in the bill; there are only three and they are pretty clear and straightforward. I do not think that there is any ambiguity in those exceptions, so that is an improvement.

Does the Law Society have a view on that?

I think that the exceptions are quite clear. Some of them replicate provisions that are in the 2002 act.

I was just thinking about the point that Rachael Hamilton raised about innocent dog walkers, so I will say in passing that people are not criminals until they are convicted of an offence. They might be suspected or alleged criminals, but they are not actually criminals until they are convicted.

However, one could imagine creating a statutory defence—for example, for a dog walker whose dog runs off to chase an animal—because there are already statutory defences in the bill that revolve around the exceptions. You could have a statutory defence for a person who is walking one of those dogs that the member identified as not being the kind of dog that chases after hares, or for a person who is simply walking their domestic dog for the purposes of exercising the animal.

Generally speaking, however, the exceptions fit the bill. I have a point to raise on the environmental exception, if I am allowed to proceed on that basis. However, you might have questions to put on that later, so I do not want to hold up the committee at this point, if it is not appropriate.

Yes, we are probably going to come on to that later.

Alasdair, do you have further questions on the offences?

Yes, I have questions on the wider question of offences. Moving on to the issue of rabbits, a number of people have raised the issue of a dog—of its own volition—chasing a rabbit. I will perhaps not pursue that area too much further, other than to ask whether people have a view on the inclusion of rabbits under the definition of “wild mammal” and, if so, whether people are content that the bill still allows for adequate pest control. That question goes first to William Telford. Are you content that the bill allows you to make that distinction?

Yes, Police Scotland welcomes the inclusion of rabbits, because it would, to an extent, negate the excuse that the dogs were hunting rabbits rather than hares.

Does Sara Shaw want to come in on that?

It is a useful inclusion in the bill. Section 1 would permit prosecution. Currently, if the COPFS receives a report of alleged hare coursing and it turns out to have been a rabbit that was involved, we can raise proceedings under section 11G of the Wildlife and Countryside Act 1981. That is not to say that that would be appropriate or possible in every scenario where rabbits are mentioned, but that is an option in appropriate cases. The benefit of raising a prosecution under section 1 of the bill in respect of a rabbit or rabbits would be the penalties that the bill would make available, which are additional to those in the 2002 act.

I want to look at that from another perspective and ask Robbie Kernahan from NatureScot about the misuse of the law on hare coursing and the distinction that is to be made between that and the legitimate pest control of rabbits. Is that distinction sufficiently clear and workable in the bill? Basically, would the bill allow for adequate pest control?

Good morning. It is nice to see you. My starting point is to welcome the policy intention behind the bill. NatureScot sees the bill as providing clarity, purpose and a process of tightening or removing loopholes to better protect welfare, which we have touched on. That can only be a good thing from our perspective, and we hope that it leads to better enforcement of the law.

In answer to your question, Alasdair, I do not think that there is anything in the bill that prevents effective control for a variety of purposes. We can talk about the exceptions in due course, but there is nothing in the bill that would prevent legitimate effective wildlife management control.

Ariane Burgess has a supplementary question on offences. Ariane, please could you also ask your question on exemptions?

Good morning. I am sorry that I cannot be there in person today. I appreciate your coming to the committee to add your perspectives on the bill.

I want to pick up on a statement in the written evidence from the National Working Terrier Federation, which I raised with Barrie Wade from that organisation a couple of weeks ago. Its evidence states that

“It is commonplace on a shoot day to use more than 2 dogs while flushing game from cover ... We do not believe that the intention of the Bill is to restrict, control or interfere with normal shooting practices”.

However, the bill does restrict the number of dogs to two for game shooting and to one for flushing game. When I questioned Barrie on that, he admitted that

“you might be using three spaniels to flush ground game. If part of that ground game is rabbits, and if rabbits are part of the act, you are committing an offence.”—[Official Report, 8 June 2022; c 4.]

I want to ask Michael Clancy and Sara Shaw whether they believe that the bill as worded will restrict normal shooting practices so that flushing to guns by using more than two dogs—whether you are flushing rabbits, foxes or other wild mammals—will be a prosecutable offence.

The answer to your question is yes. The bill is quite clear that it permits flushing with one dog and hunting with two. I do not see how that is unclear in any way.

The bill is clear about when an offence would be committed and when hunting with dogs falls within an exception. It is difficult to say exactly how that will play out in practice. Obviously, each case turns on its own facts and circumstances, and I cannot comment on how the law can be applied in each case. However, with regard to the offences and the exceptions, the bill appears to be relatively clear compared with the current legislation.

Thank you for that response. I will move on to questions about the exceptions in sections 3 and 5 to 7 of the bill. Last week, Chief Superintendent Mike Flynn from the Scottish Society for the Prevention of Cruelty to Animals stated:

“The purpose of the majority of the bill is to close the loopholes in the act”.

He related that, under the 2002 act,

“every badger baiter has said that they were after foxes, and every hare courser has said that they were after rabbits”.

He also stated that many terms

“have to be defined better”

and that

“the licensing provisions have to be specified and fleshed out if NatureScot is to have a reasonable chance of doing a good licensing job.”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 11.]

Do the witnesses agree with those statements? Will the bill close loopholes and remove ambiguities despite its many exceptions and its licensing scheme?

The exceptions in the bill have, in many respects, had manifestations in previous legislation, including, of course, the 2002 act, although not in the schematic way in which they are approached in the bill. That lends a significant amount of clarity to the bill and allows for people to understand clearly what the exceptions are. If the Government were to publish easy-read guidance alongside the bill, that might be an additional help. That is our principal point on the matter.

There are issues with some of the exceptions when one gets into them. I will highlight one that I thought was particularly problematic: the exception for environmental benefit. In particular, I will focus on the definition of “invasive non-native species”, which means a species

“which is included on the Scottish list of species of special concern”.

That is defined as:

“the list of species in the Annex to Commission Implementing Regulation (EU) 2016/1141”,

which has been implemented in our law by a piece of Brexit legislation that allows for that annex, which is the European Union list of species, to be adopted as the Scottish list of species.

I do not know whether any members of the committee have looked at that list but, to be honest, it is not entirely clear when one looks at it because it includes not only mammals but fish and plants. We could do better to explain what species we are talking about. Certainly, having to trawl through all the Latin classification names was quite a chore. I did it yesterday—that shows you how much time I have on my hands to do such things. Trying to track down what a Corvus splendens is was a chore. We all know that it is a “splendid crow” but what is it doing there? The same goes for Reeves muntjac. I am not sure that many people would have the time, energy or inclination to examine that fully.

That is a point where the bill’s apparent clarity falls down by adhering to the European Union exit regulation, which is not appropriate. I refer to the Invasive Non-native Species (EU Exit) (Scotland) (Amendment etc) Regulations 2020.

It would be easier to ask NatureScot about the licensing point. It seems that NatureScot does a lot of licensing, and I am sure that it is well skilled in identifying how to license and the questions to ask to make sure that the licence fits with the law. If you do not mind, I would divert my attention on that point to NatureScot for a more authoritative answer.

10:00  

Thank you for flagging up the species list; that sounds like an onerous task. I turn to Robbie Kernahan. I do not know whether I need to recap my question, but it picked up on Chief Superintendent Flynn’s statements that many terms

“have to be defined better”

and that

“the licensing provisions have to be specified and fleshed out if NatureScot is to have a reasonable chance of doing a good licensing job.”—[Official Report, Rural Affairs, Islands and Natural Environment Committee, 15 June 2022; c 11.]

Could you talk about the clarity in those exceptions?

I fully understand the point that Mike Flynn made last week. There are two aspects to the issue. One is the exceptions that are in the bill, and let us be honest, the more exceptions that there are, the less exceptional they become. We appreciate the clarity that they provide but recognise that there is still a lot of work to do to translate the legislation into clear guidance for practitioners, which is key to all this.

The second point about the licensing regime, which also flows from some of the exceptions, is that making sure that the bill is practicable and enabled is key. I have heard a lot of concerns from practitioners and others about the need to get the licensing regime right. By way of introduction, we issue between 4,500 and 5,000 individual species licences on an annual basis, so we have a lot of experience in providing and enabling a targeted risk-based approach to licensing that is in line with the principles of better regulation, and trying to do that in a proportionate and transparent way.

Picking up on ways of working in relation to wildlife management, we have advocated for a long time that we work together and share the responsibility to come up with a licensing regime that is accessible, fair, clear, practicable and, more importantly, to come back to the policy intention behind the bill, consistent and enforceable. We will work through that as needs be, and we might come to discuss more of the detail therein about how prescriptive we want the licences to be, because there is a balance to be struck between providing that clarity and ensuring that we have flexibility and a licensing regime that can allow effective control of mammals when they cause specific problems to public interests.

Does anyone else want to come in on that?

From Police Scotland’s perspective, we did not have any major issues with the exceptions in relation to the definitions. One point is that the term “reasonable steps” is used regularly—for example, section 3(3)(c) states that

“reasonable steps are taken to ensure that any dog used in the activity does not join with others to form a pack of more than two dogs”.

We feel that the term “reasonable steps” is a wee bit subjective, so we would welcome an amendment to that or some clarity via a supplementary document to detail what “reasonable steps” may be.

Police Scotland would welcome being involved in drawing up the licensing scheme, so that we can offer opinions on what would make the scheme practical in relation to enforcement.

It is great when you get specific like that. Thanks very much. I will turn to the environmental benefit exceptions. Michael Clancy has touched on the specifics of the species list, but some witnesses, notably RSPB Scotland and Scottish Badgers, have in written evidence questioned the need for the exception and licences in connection to environmental benefit, and the League Against Cruel Sports highlighted the concern, which is shared by many, that that exception will be exploited and used as a smokescreen for traditional hunting with dogs. If we retain that exception and licensing scheme, do you believe that those sections would benefit from clearer definitions of terms such as

“significant or long-term environmental benefit”

and from guidance on how to determine whether each case meets those criteria?

I do not have a particular view to offer on the definition of terms such as

“significant or long-term environmental benefit”.

That seems fairly clear on the face of it. Any difficulty in applying that in practice will come to light in a practical scenario, when a case is before a court and someone is seeking to rely on that exception.

From the prosecutor’s perspective, I do not think that I have anything to offer in terms of taking issue with there being no particular definition in the bill.

I have highlighted elsewhere terms that are used frequently. I am not suggesting that they need to be defined; I am just observing that they are not currently defined. That includes the terms “search for”, “stalk”, “flush” and “retrieve”. There have been issues in some prosecutions around definitions of terms in the earlier legislation, so I am simply highlighting that there is still terminology that is repeated frequently throughout this bill that is not given a definition. That is perhaps a point to be considered.

We have moved forward a wee bit quicker than I was thinking we would. To take a wee step back, I will quickly ask Michael Clancy for clarification on part 1, section 1 of the bill, which says:

“A person commits an offence if ... the person hunts a wild mammal using a dog”.

From the Law Society’s point of view, is there clarity on the difference between a person who is walking a dog and a person who is using a dog? Do you have a concern about that specification?

I think that we set out in our written submission that we have a concern that clarification might be necessary to improve understanding and, consequently, enforcement, of section 1 in relation to the difference between walking a dog and using a dog. In the bill, there is the use of the phrase “using a dog” when the hunting of a wild animal by that person involves the use of a dog. As I said earlier, the 2002 act referred to “hunting with” a dog, so we move into slightly new territory with the phraseology of “using a dog”. I have no doubt that the courts will be able to zero in on that phraseology if it causes any difficulty in bringing forward cases—

Sorry, can I interrupt you for one wee second? I am really conscious of time; I may bring William Telford into this as well. I want this to be really quick—I am sorry.

Let us imagine that William Telford goes out and finds three guys coming out of the back of a white van with three lurchers and the guys say, “Yeah, we were just walking our dogs.” Does the court have the discretion to say, “No. We find, on the balance of probability, that you were coursing hares”? Can the law do that?

The responsibility for prosecution is with the Crown Office and Procurator Fiscal Service. The Crown has to prove an offence beyond reasonable doubt, so it is not—

Can I suggest, just for time purposes, that this may be a question that Sara Shaw should consider?

By all means.

Michael Clancy is absolutely right that the Crown needs to prove its case beyond reasonable doubt, with corroborated evidence. We need to prove that a crime is being committed and be able to prove who has committed that crime—and the crime is defined, in this instance, by what is in the legislation. The Crown will have to have reference to the wording of the legislation and look at the evidence that is presented in the police report and consider whether the test is met and whether a prosecution can be brought.

I cannot comment on whether the scenario that you have described would lend itself to a prosecution, because I do not have sufficient detail. Possibly it would; possibly it would not. There are circumstantial cases in which there is a sufficiency of evidence and circumstantial cases in which there is not. I do not know whether that quite answers your point.

It seems to highlight that we need something that is a bit more robust. Would that be fair? We are trying to get at the distinction between somebody who is out walking the dog when the dog takes off and starts chasing a rabbit or hare and somebody who deliberately sets out with a dog to hunt animals.

Clearly, as William Telford said, there is a loophole—it is easy for someone to say that they were just walking their dog and it took off to chase a hare. However, I know that guys go out with lurchers and greyhounds in a specific way.

Can we find another way of making that part of the law more robust without including rabbits? That is what I’m trying to get to.

There may well be a way to do that. I agree that there is merit in considering the use of the words “intentional or reckless” when it comes to how the offence can be committed. The inclusion of the word “reckless”, as well as the concept of intent, allows for certain scenarios that might present in practice to be brought within the ambit of the offence, whereas they currently might not if it was left simply as being intentional. I appreciate that the word “intentional” is not used, but it is implied in the wording of the bill.

In his report, Lord Bonomy highlighted that the standard for recklessness is high—it is not mere carelessness—so there is a distinction to be made between “intentional”, “reckless” and other scenarios that do not quite fall into the ambit of criminal conduct.

Okay—that gives us something to think about.

I come to Robbie Kernahan. Is NatureScot content with the exception for environmental benefit, from the perspective of your wildlife management schemes? People can get a licence for up to two years for environmental benefit but, as the bill stands, they will have 14 days in which to control a fox that is killing lambs. What is your perspective on that?

On the scope for environmental benefit, I do not have much to add. For our purposes, although we can continue to provide clarity on the need for the removal of invasive non-native species and how those are defined, the scope of the bill is clear on the need to allow the use of dogs for biodiversity benefits, and we are comfortable with it.

On consistency of licensing timescales, my starting point is that it is far easier for us to be consistent when it comes to defining a licensable purpose and exercising the discretion that we may have as a regulator to decide on the most appropriate licensing period for any circumstance.

However, I come back to the policy intention, which is to restrict such exceptions. Let us be honest: the licences are derogations in that they enable people to do things that would otherwise be an offence. Striking the right balance between prescription—reducing the likelihood of relying on those licences—and flexibility is key for us.

We will come on to licensing in more detail, but are you comfortable with the difference between the exception for environmental benefit and licensing for ordinary wildlife management, as the bill stands at the moment?

Yes.

Thank you.

I have a quick question before I bring in Alasdair Allan. On many weekends, there are mixed shoots. Farmers invite folk from the rural community, who bring their Labradors, which hunt, retrieve and flush pheasants or whatever to the gun. In such a circumstance, half a dozen or more handlers, if you like, may be out enjoying that day quite legally. The vast majority of country pursuits are still legal.

My question is for William Telford. Given that some organisations want to stop all shooting as a sport, is there any risk on a mixed shoot in which more than two dogs—maybe five or six, with handlers—are used to flush pheasants, that if the dogs flushed a fox or a rabbit, that would give rise to doubt as to whether their pursuit was legal?

10:15  

That is a difficult one. That is where intent would come into it, and it might be difficult to differentiate. That opportunity is always going to be there, if dogs are flushing game legally but encounter a mammal and chase it. That risk is there. I do not know whether that is necessarily addressed by the bill.

That is really concerning, because there are organisations out there that want to stop any sort of sport that involves the killing of an animal, whether that is a pheasant or a rabbit.

From your experience, you will know that, for example, if Labradors or terriers are sent into the rough to raise pheasants, for example, there is a good chance of getting rabbits, which will be shot. Currently, that is legal. Is there a chance that, on every Saturday on which there is a mixed shoot on a farm, an organisation such as the League Against Cruel Sports or OneKind will be on the phone to say that five dogs are in the rough and are hunting without a licence? Is that another difficulty that we will face in the future, as the bill stands?

That may well happen. We will not know until the new regime is introduced. If that was the case, Police Scotland—we are impartial—would review all the circumstances, including intent, and would base a decision on that.

The last thing that we want is a law that has first to be tested in the courts, including on appeal. We want laws that are fit for purpose.

Sara Shaw, I ask you the same question. Will the concept of intent cause a difficulty for you? If not daily, every week, as I have said, people will use dogs for the shooting of game such as pheasants. It is inevitable that that will cause rabbits and, potentially, other mammals to come in front of a gun.

Whether an activity falls within one of the exceptions very much depends on the facts and circumstances of each scenario. Otherwise, it will be an offence under the bill. As prosecutors, we take each case on its merits. The scenario that you have outlined is a possibility. Whether that can be better addressed in the legislation, I do not know. However, there is certainly scope there for a grey area.

Jim Fairlie has a brief question.

In the scenario that Finlay Carson has laid out, would a dog not have to chase and kill that rabbit for it to be an offence? Generally, if a Labrador or a spaniel is flushing, as soon as the bird goes up, their nose will be back on the ground. They will not necessarily chase and kill the bird. If they are flushing, will it be an offence if they do not chase the rabbit?

It is difficult to give a specific answer. It would all come down to exactly what had happened. We would need to look at the evidence and the terms of the bill—or the act, assuming that it comes into force—and then consider whether an offence had been committed.

Michael Clancy would like to comment on that point.

The bill makes it clear that the killing of an animal is not a requirement for hunting, which

“includes, in particular, searching for and coursing”.

The bill does not say anything about subsequently killing. On that point, there is no dubiety.

On the point about whether the courts have to interpret legislation, that is what courts are for. It is not as if this Parliament—or, indeed, any Parliament—has enacted legislation that is not subject to interpretation by the courts. That is part of the process of making sure that the law is enforced. We would all love our laws to be crystal clear all the time, but the fact is that people are human, and humans do not have that all-encompassing knowledge to make everything crystal clear from the start. We have to revisit legislation to take account of the different circumstances that Sara Shaw pointed out.

Thank you. That is helpful. Alasdair Allan has a brief supplementary question on exceptions, after which we will move to licensing.

The example of the dog that slips the lead has been raised a few times. You must be tired of hearing about that particular dog, but is it fair to say that the use of the word “use” in the bill deals with some of the question marks? Prosecutors would be interested in the intentions of the human rather than the intentions of the dog. Does “use” encompass that clearly? If it is not a tautology, does the use of the word “use” make it clear in the bill that the examples that we have talked about on numerous occasions, such as that of a dog slipping the lead, are to do with the intentions of the dog, not the intentions of the owner, and that, therefore, the owner would not be prosecuted for that? Is “use” an adequate way of dealing with the problem that we have been talking about?

I think that the definition is clear, but the challenges remain in proving that.

On the face of it, I think that the bill sets out a clear offence. It is entirely possible that we will encounter difficulty in applying the wording in practice, but I cannot comment on whether that will arise.

As has been mentioned, section 1(4) provides a definition of “using a dog”, which is useful. There is a definition of “using a dog” in the 2002 act, but it is not as specific. I think that I am correct in saying that it includes hunting with more than one dog. A different approach is taken in the bill. It is more specific about what “using a dog” means and seeks to encompass the activity of persons who might not be directly controlling or directing the dogs. A broad definition is provided in order to encompass a number of participants in any activity.

But it does not cover the intentions of the dog.

No.

We will move our focus to licensing, which is covered by sections 4, 8 and 9 of the bill.

Before I ask about licensing, I would like to get some clarity—in writing, if necessary—from the Crown Office and Police Scotland regarding the concern about use of the term “reasonable steps” in section 3(3)(c). Lord Bonomy said that the courts would have no trouble with that expression. Why are the courts unable to manage that expression, which is widely found in statute?

I will move on to licensing. Detective Sergeant Telford, Lord Bonomy noted that, with or without licensing,

“The same difficulties of proof and enforcement would remain.”

With regard to enforcement and proof, what is your view of the licensing provisions that are set out in the bill?

All that Police Scotland could say about what is outlined in the bill is that it seems fair enough. It would be difficult to provide any further comment until we actually see the licensing scheme, which will have to be very detailed in order to allow us to enforce breaches of it. That is probably where our involvement would be more relevant, and we would be keen to be involved in drawing that out.

We would certainly want a really clear definition to be provided of the area that the licence is to be applied to. Are we talking about grid references? What are we talking about? For enforcement purposes, we would need that sort of thing to be really clear.

To use Michael Clancy’s phrase, when it comes to that, the proof of the pudding will be in the eating. We have heard that there could be issues with the movement of animals from A to B. Animals do not see boundaries or marches, which is where the difficulty lies with regard to the role that NatureScot will play in licensing.

I will ask you some quick-fire questions. Lord Bonomy suggested amending the 2002 act, coupled with a code of practice for hunts and the introduction of monitors. A code of practice was introduced, but not the monitors. Is there any evidence that that approach has worked or, indeed, that such a combination of approaches could work?

I could not answer that. At this stage, I do not know, but I can certainly find out and send a reply to you, along with the other details that you requested.

Surely you will have some examples of what there has been in terms of enforcement since the first act.

Sorry—could you clarify the question?

The code of conduct was introduced. How has enforcement worked for Police Scotland so far?

In relation to the code of conduct?

Yes.

I do not know. I would need to find out and get back to you on that.

Okay.

In England and Wales, the number of prosecutions has been no greater, proportionately, than it has been in Scotland. What specific changes do you see in the bill that would make prosecutions easier, in terms of the way in which offences and exceptions are defined?

I think that the removal of the word “deliberate” will create less confusion. In addition, as I said earlier, the inclusion of rabbits will negate any hare coursing or false hare coursing excuses. Those are the most significant features.

The bill may lead to greater use of firearms in the countryside, as land managers try to deal with predation in the absence of dogs. Is that a concern for you? Have you considered that?

Police Scotland will always react to any relevant offences. We have a firearms licensing team and a rural crime team, so if issues arise, we will deal with them accordingly.

There have been firearms in the rural community for 100 years, so a majority of people in the agricultural community know how to use them responsibly and legally. Therefore, I do not think that there is any undue concern at this stage or any evidence that would cause concern.

You note in your written evidence that the bill contains no provision for

“police powers to arrest or search”.

Can you explain why the general powers that are available to Police Scotland and those powers that are set out in the schedule to the bill could be a problem?

Yes—we were just looking for a bit of clarity around that, as there is nothing in the bill. At present, the powers that are afforded by the Protection of Wild Mammals (Scotland) Act 2002 and the Wildlife and Countryside Act 1981, and other wildlife crime legislation, are really effective. That legislation affords us a power to search persons, which is key in gaining evidence of offences.

To go back to hare coursing, for example, that power allows us to take people’s phones in order to get potential evidence, such as footage, from them. We hope that the powers that we will be afforded in the bill will be similar to those in the current legislation.

Robbie Kernahan said that NatureScot issues thousands of licences per year. With regard to the 14-day licence, it will be interesting to hear, in the next part of the questioning, how that will play out and what will be required of NatureScot.

In the context of the resource that will be required from Police Scotland and its current resources for enforcement, have you considered that a general licence, with conditions and reporting requirements, would be a better way of conducting such a scheme?

It is not something that we have considered, to be honest.

Okay. Thank you.

10:30  

Good morning. What sort of role do you see Police Scotland having with regard to licensed activities? Would you expect to be notified beforehand? Would that be part of the collaboration that you would want to see?

I do not necessarily think so. Again, we would like to discuss that with NatureScot and so forth when the scheme has been drawn up.

At present, we have a close working relationship with NatureScot, so we have such discussions as things emerge. We do not always need to know exactly what the licensing conditions are in relation to A, B or C. If issues arise, we can—and do—contact NatureScot; likewise, it will discuss matters with us. That avenue of conversation is already there, so we do not necessarily need to be overly intrusive.

That is helpful. There are elements of trust with regard to how people would generally go about their business and conduct those hunts.

Yes.

You answered my next question to some extent in your response to Rachael Hamilton’s question, when you touched on the need for collaboration when it comes to policing and prosecution regarding the licensing. Can you give us any examples of what you would like to see within that?

Off the top of my head, I would say that we need ease of communication and information sharing, which, to be honest, we already have with the partner agencies—it is already there.

A very detailed licensing scheme is key. I appreciate that there are challenges around dogs moving from A to B, so it may not be easy to define areas. However, for enforcement purposes, we need something that is pretty black and white, and detailed.

We will move on to questions about NatureScot’s position, starting with Jim Fairlie.

I return to Robbie Kernahan. Regarding NatureScot’s position as the proposed licensing authority, what resources will it require in order to fulfil its role? Is there adequate provision in that regard in the financial memorandum?

I would point out that, in previous evidence sessions, people said that they were generally content with NatureScot being the licensing authority. As you said, you have issued thousands of licences. However, there were some concerns among the rural pursuits groups and farming groups about whether NatureScot staff would have a full understanding of the circumstances under which they were trying to manage particular species of wildlife, especially foxes.

As we move on to licensing, it is interesting to think about how NatureScot can balance and manage all the expectations that are placed on us. Again, my starting point is that we have been dealing with species licences to try to prevent serious damage to a range of interests for quite a long time.

There is a question around how we try to put together a licensing scheme that will satisfy Police Scotland’s desire for absolute clarity, certainty and prescription, in order that it can work out whether offences have been committed, versus the flexibility that practitioners need to be able to make on-site decisions in a fairly dynamic way as circumstances arise.

We have a good track record in how we manage serious damage to livestock from ravens and other protected species—for example, where there are issues with badgers or protected birds. I think that we are in a good place to continue those conversations once the parliamentary process has concluded. We will then see the nature of the bill and we will know what we have to work with in order to design a scheme. Again, members should take some reassurance from me that we will commit to a shared approach, working together with all the relevant parties to try to come up with a licensing regime that is proportionate.

I return to some of our frustrations about our current lack of knowledge, which, in turn, brings us back to whether we can resource the work. We do not fully understand the demand; we do not really know what the demand for licensing solutions will be. I would hazard a guess that the majority of effective mammalian control, and certainly fox control, is carried out without reliance on some of the packs that we have heard the committee discuss over the past two or three weeks. I would hazard a guess that 90 per cent of fox control is actually undertaken effectively using shooting, both during the day and at night, as well as by snaring.

I suspect that what we are talking about here is a relatively small proportion of fox control, but we will not really understand that until we start to receive the demand. At that point, we can continue to evolve our approach, looking at what we think is adaptive and proportionate. We need to get that burden right, because a lot of things—defining damage, for example—are in the eye of the beholder.

The Scottish Government has said that it will publish guidance. On the back of Jim Fairlie’s question, I note that that will be critical to how the licensing system works. Have you been involved in putting that guidance together? If not, will you be involved? Do you have any idea when the guidance notes will be published before the bill becomes an act? Do you know whether the guidance will be consulted on?

On the detail, we have been involved in discussions with Scottish Government colleagues up to this point. As we go through the parliamentary process, it may well be that the licensing regime will have to evolve in relation to whatever comes by way of amendments. We will work within the legislative constraints to design a licensing scheme that best meets people’s expectations, and we can only really do that in consultation, as we have heard from practitioner groups and others who have a stake in the area.

I cannot put a definitive timeline on that at this point, but I am happy to come back to the committee if you would like some more clarity on it.

Thank you. It would certainly be helpful to get an idea of the consultation timescale.

Robbie, I made a point to you earlier about the timescale for a licence. Rachael Hamilton mentioned a period of 14 days, as opposed to two years, for environmental licences—someone would have 14 days in which to deal with a fox. From the point of view of a practitioner or land manager, a 14-day timescale for trying to deal with a predatory fox is too prescriptive and too tight. They already know that the fox is coming out of the woods. Are they going to wait until it starts killing lambs? I could go through all the scenarios, but you know them all, so I do not need to translate them for you again.

How do you feel about the licence for fox control, in particular? I do not share Rachael Hamilton’s point of view that we need more guns in the countryside, because walked packs can do the job anyway. What is your view on having an extended seasonal licence or an annual licence for specific walked packs to try to control foxes in particular areas?

As a licensing authority and a regulator, NatureScot has quite a lot of discretion to decide how we want to implement the licensing scheme. We can be very specific and tight about that, within a specific seasonal window, if that is the desired direction of travel. However, I suspect that that would constrain quite a lot of the flexibility from which practitioners currently benefit.

My understanding is that the policy intention behind the bill is to try to reduce reliance on the use of more than two dogs as far as we are able to do so. At the opposite end of that spectrum, we can issue a general licence with specific conditions attached to it, which would allow for a more flexible approach to something that is quite well established and commonplace, while clearly setting out conditions for how we would expect people to operate. As something between those two approaches, we could have a class licence, which witnesses in the previous couple of evidence sessions mentioned. Under that scheme, we would license a trusted operator to act in a certain way and report back to us.

A range of licensing solutions are available and, at this point, I would not necessarily want to pin my colours to the mast regarding the exact solution. As a licensing service, NatureScot is constantly seeking to improve, based on evidence and feedback. Whatever we decide to implement by way of a licensing scheme on day 1, when the bill receives royal assent, it will not necessarily tie us to that approach ad infinitum.

As the committee has heard from other witnesses today, we, as a licensing authority, will need to learn as we go, because the bill is new territory for us. We will need to work closely with practitioner groups to help to design something that is going to work for them, while securing the safeguards that we know the bill is aimed at putting in place.

A lot of the stuff that we have talked about has been based on hunting foxes with dogs, which is where a lot of the controversy has been centred. However, we heard this morning from Sara Shaw and William Telford that the controversy also spreads into other areas. What impact will the scheme have on the wider review of species licensing to which the Scottish Government has committed?

As part of the Bute house agreement, there was a commitment to look afresh at how NatureScot discharges its licensing functions. That is probably because we regularly trip up against questions about how transparent and proportionate we are, and against the complexity of operating under heavily amended legislation.

The Wildlife and Countryside Act 1981, which provides the majority of our licensing functions, is complicated and complex, and the licensing tests do not necessarily reflect what is in the Protection of Badgers Act 1992, which is different from what is in the Conservation (Natural Habitats, &c) Regulations 1994 and the Deer (Scotland) Act 1996. There are subtle differences in the various laws regarding the tests that need to be applied for different purposes and for different species. That is confusing.

Returning to the bill, I note that NatureScot, as a licensing authority, will need to be absolutely satisfied that there is a clear licensable purpose—that there is evidence that there is something that we need to allow—and that there is no satisfactory alternative. The types of questions that we would pose to applicants who were suffering damages would include what alternatives they had implemented before relying on something that would otherwise be an offence.

I want to pursue that point—I promise that I will be quick, convener. I have previous experience of licensing. I have gone through the process, proved the damage and the effect and got the licence. From then on, it became very easy.

We already know that foxes predate lambs during lambing time. I have asked this question in previous sessions. Is a farmer going to have to go to NatureScot with pictures of dead lambs with their tails and ears off in order to prove that a fox has killed them? Alternatively, will you be comfortable in saying that we know that foxes kill lambs and that, prior to lambing, there could be a good reason for a licence?

Again, I put my cards on the table. There is no doubt at all that the predation of livestock by foxes takes place. We are quite clear about that. That is a licensable purpose, which is why the phrase

“preventing serious damage to livestock”

is in the bill.

The burden of proof that will be required to evidence that is part of a discussion that we need to have in putting together a licensing scheme. We can take a very light touch with it and be quite enabling. Let us be honest—we want to prevent damage rather than reacting to damage that is occurring, because such damage incurs quite a lot of financial loss and trauma for those people who suffer it.

Those are the types of conversations in which we will need to be clear with applicants about where the burden of proof lies with them, in order that they can demonstrate clear and evidential need.

Okay. Thank you.

I will bring in Ariane Burgess next. I remind members that we have about 15 minutes left to ask a further 10 questions, so I ask everyone to keep their questions nice and succinct.

I have some more questions for Robbie Kernahan.

Robbie, you started to go through the types of things that you will ask people to demonstrate when they apply for a licence. In the discussions that I have had with people on the bill, I have heard that we have a situation where people are killing foxes to protect land year after year without any long-term improvement and with no reduction in the local fox population and no increase in lamb retention rates. Last week, we heard from OneKind and the League Against Cruel Sports that they oppose licensing schemes because they fear that such schemes will create new loopholes that will allow the continuation of hunting with dogs for sport.

If a licensing scheme is to be retained, I would be interested to hear what you think about it being aligned with the international principles for ethical wildlife control. Groups and organisations such as those that I have just mentioned have called for that. In order to obtain a licence, applicants would have to demonstrate that they were complying with those principles. What are your thoughts about that?

10:45  

I agree entirely with the principle that we want our licensing—[Inaudible.] There needs to be some means by which we can monitor the licensing regime, receive feedback on it and continue to refine it to ensure that it delivers what it says on the tin.

The question is whether NatureScot issuing licences at certain times of the year, in a certain way or using certain methods would address the problem, whether that is damage to livestock, damage to arable crops or difficulties with protecting ground-nesting birds. We need to be clear that the licensing regime is effective, which requires a certain amount of adaptive management to learn by experience. We have that for the licensing regimes for other species, for which we continually try to receive information and improve the process from a practitioner point of view, a conservation point of view and, certainly, a welfare perspective, which is an integral part of the matter.

We are fairly well aligned with the ethical principles through the shared approach that we worked up and published in conjunction with partners. The first point in that is to ask whether we need to modify human behaviour. That is the type of question that we ask in a licensing regime. We ask what other satisfactory alternatives an applicant has explored before relying on something that would otherwise be illegal. We ask whether they have used any non-lethal methods or any other methods that might involve killing mammals that do not rely on something that would otherwise be an offence. I referred to snaring and shooting as perfectly legitimate means of effective fox control. We would ask applicants to demonstrate why they are not effective in their circumstances.

We move on to questions about the prohibition of trail hunting.

Good morning. My questions are probably for William Telford. I understand that the trail hunting prohibition has been introduced to take pre-emptive action to prevent trail hunting from becoming established in Scotland. What are your views on whether it will assist with the policing and prosecution of hunting with dogs?

I will roll in my second question. I would be interested to hear your views on the exception to allow the training of dogs to follow an animal-based scent. What are the implications of that for the training of police dogs, for example?

I suppose that making trail hunting illegal will limit the opportunities for people who want to undertake illegal fox hunting and disguise it as a legal act. However, that alone is not necessarily a reason to make trail hunting illegal. The evidence does not indicate that what little trail hunting there is in Scotland is used as a guise for criminality, although I believe that it is at times in England.

Police Scotland has a bit of concern about the implications for the training of dogs. There is an exemption that allows dogs to be trained using animal-based scents provided that no more than two dogs are trained at once. Cadaver dogs in Police Scotland and, I presume, other emergency services are trained using animal-based scents, and often up to six dogs are trained at once. The provisions could therefore create logistical issues for us. We are keen that some sort of exemption is built in for emergency dogs.

We will move on to questions on enforcement, which is covered in part 3 of the bill.

I thank the witnesses for coming along. I have a quick question that might require a longer answer. I am interested in the witnesses’ views on the enforcement powers in the bill. Does the bill provide adequate, effective and proportionate powers for policing and prosecution?

The powers that are afforded under part 3 in relation to premises outwith a domestic dwelling-house are similar to the powers that are afforded under the Protection of Wild Mammals (Scotland) Act 2002. There does not seem to be any reference in the bill to powers to arrest or search persons, so, in my response to the call for views, I sought clarification on that point. There is criticism of the 2002 act, but the powers that are afforded in that legislation are really effective, so we would like the full range of powers to also be available in this bill.

I have been thinking about consistency with other acts. Legislation on the protection of livestock was upgraded at the end of the previous parliamentary session and the beginning of this session. Are the provisions in the bill consistent with those in previous acts?

Very much so. The powers that are afforded across wildlife legislation—including the Protection of Badgers Act 1992, the Wildlife and Countryside Act 1981 and the Protection of Wild Mammals (Scotland) Act 2002—are very consistent, which makes enforcement more straightforward, because we do not have to think about which powers we have under different pieces of legislation. That consistency is a valuable tool for wildlife crime officers on the ground who enforce the legislation.

Michael Clancy, in the Law Society’s written evidence, you made some comments about a lack of definition of “consent or connivance”, and you questioned the three-year prosecution window. Is there anything that you would like to add to that?

I do not think so. In fact, when I looked at the three-year period in preparation for the meeting, I saw that earlier legislation includes similar time limits, so I stand by what the Law Society’s criminal law committee said, but I will ask my colleagues who deal with the criminal law committee whether a supplementary letter to this committee might be in order.

Robbie Kernahan indicated that he would like to comment on the previous question.

I just want to come back to the point about trail hunting before we leave it entirely. It would be remiss of me not to make it quite clear that use of dogs is an integral part of wildlife management, and that, from our perspective, we need to ensure that the use of dogs is still permissible for very specific things. At the moment, a condition of any night shooting licence that we issue in relation to wild deer is that the stalker or hunter must have a dog available to them for follow-up. In order to enable such provisions, we need to allow dogs to be trained for that purpose. The use of dogs—for deer management purposes and, indeed, for specialist tracking to deal with invasive non-natives—is key for us in order to realise our vision for a nature-rich future. I want to ensure that that is on the committee’s radar, although I know that it is. It is important that we retain the ability to use dogs for those purposes.

Does Sara Shaw have any comments about the enforcement sections of the bill?

I do not have anything in particular to add to what William Telford said. From discussions with Scottish Government colleagues, I am aware that there is consistency with the Animal Health and Welfare (Scotland) Act 2006, which is to be welcomed.

While we are speaking about the business of enforcement, I want to ask whether the witnesses are content with what the bill says about potential restrictions on individuals keeping a dog or a horse. Could Sara Shaw or William Telford say anything about that?

Do you mean in respect of deprivation orders?

Yes—sorry.

Police Scotland has one suggestion in addition to the deprivation order, which is that certain people should not be permitted to reside in the same house as a dog. That would negate the excuse that the dog belongs to the person’s wife or son, for example, which is an excuse that we encounter.

I simply welcome the option to have a court impose a deprivation order following conviction. Obviously, sentencing is entirely a matter for the court, but that is a useful tool or option.

I have a question for Robbie Kernahan. I appreciate that it is not quite on the same subject, but it has been put to the committee that there might be an increase in the number of guns in the countryside as a result of the legislation. I know that you have touched on that issue, but can you say more about whether that is actually likely, in your view?

Again, it is difficult to be specific without fully understanding the demand from a licensing perspective. However, interestingly enough, an issue that we regularly deal with is the lack of firearms holders in agricultural settings. We have an ageing farming population and certainly an ageing crofting population, who are perhaps not as active in managing wildlife with firearms as they once were. Therefore, with regard to managing wildlife conflicts, we are very aware of that capacity to deal with some of the issues that the bill addresses. For a variety of wildlife management reasons, we still need a strong base of skilled practitioners who know what they are doing.

I have a question for Michael Clancy. The Law Society’s written evidence mentions the ancillary powers under part 4 of the bill. Regulations made under section 21 may

“make different provisions for different purposes”

and

“modify any enactment (including this Act).”

Even I, as someone who is not a lawyer, would suggest that that is a very wide power that could allow ministers to make modifications to the legislation without parliamentary scrutiny. Could you comment further on that?

Yes. We have a general on-going concern about ministerial powers to make regulations. Regulations made under section 21 of the bill will

“make different provisions for different purposes”,

which is a pretty ordinary provision. However, the provision to allow ministers to

“modify any enactment (including this Act)”

is quite broad. Although that is contained to regulations that are made under that section—that is, changes that are

“incidental, supplementary, consequential, transitional, transitory or saving”

provisions—it is, nevertheless, very broad. We suggest that, at the very least, Scottish ministers should be required to consult on such regulations with such persons as they consider appropriate.

I have some quick questions on the back of Alasdair Allan’s questions. What facilities and storage do the police have for the purposes of seizing a horse or storing a quad bike, and who pays for that?

My second question, which is about spurious allegations, is for most of the witnesses. Robbie Marsland spoke about field investigators. In the case of an allegation from a field investigator, for example, would a licence be revoked on sight or on conviction? If a farmer suffers loss of livelihood, should there be compensation? NatureScot will know how general licences work, but there is nothing in the bill that suggests that there could be compensation or that there could be a method for appealing against a conviction. Robbie Kernahan, do you want to take that question with regard to how general licences operate?

Yes, I am happy to respond to that. From a regulator’s point of view, we have quite a lot of discretion with regard to how we discharge our licensing function. In general, we issue licences based on trust and confidence. Therefore, if we, as a regulator, begin to lose trust and confidence in how a licence is being complied with, we can revoke it and remove it. That does not have to be done on the basis of any criminal issues. Indeed, we have experience of doing exactly that on the balance of probability that an offence has been committed.

As colleagues have mentioned, we already have relationships with Police Scotland, and we keep in touch about potential offences and how we will reflect on those as a regulator. We are well versed in how conditions are prescribed in licences and what we might want to do by way of follow-up. If we need to, we can talk about compliance and monitoring as part of the licensing scheme.

Generally, we do not engage with the issue of compensation in relation to any losses as a result of wildlife management or predation. Although we engage with practitioners on mitigation and we have schemes to incentivise people to live with wildlife, we very rarely compensate specifically for loss.

11:00  

That is interesting. Does anyone want to comment on my question about resource facilities?

We have provision for the seizure of quad bikes. We seize vehicles regularly, so there is provision for uplifting vehicles that are in storage. Horses are perhaps a different matter; provisions would need to be put in place. I imagine that, if we were to seize horses, that would not happen regularly. Obviously, the priority would be the welfare of the animal. We need to look at that.

You would need to consider where the horse would go after that.

That is right. We seize dogs, so there are arrangements and funding sources in that regard.

On the decision not to provide for vicarious liability or to reverse the burden of proof, Police Scotland said that it is not in favour of such provisions, but it did not give any reason. Could you give us the reason why you do not think that having provisions on vicarious liability or reversing the burden of proof in the bill would be a good tool to have in your toolbox, so to speak?

In relation to vicarious liability, we feel that the list of potentially relevant persons who would be liable for prosecution is suitably detailed.

I ask Michael Clancy for his views on those points.

Lord Bonomy went into that issue in some depth in his report. Given that we are short of time, perhaps we could write to you about vicarious liability and reverse burden. We are not in favour of reversing the burden; it should be the prosecution’s obligation to prove beyond reasonable doubt. I will leave it there for the moment.

Sara Shaw, do you have any comments about clarity and whether such provisions would make it easier for you, or do you not have a position on that?

Not necessarily. I note that in the policy memorandum it was not considered that there was an evidential basis for introducing an offence of vicarious liability. Based on the provision in section 2(1), it was considered that that offence addressed the area of vicarious liability, although not directly.

We have run over our time slightly. I thank the witnesses for their attendance. The evidence that we have heard today has been most helpful and will help us to form our stage 1 report.

I suspend the meeting briefly to allow the witnesses to leave and to allow for a short comfort break.

11:03 Meeting suspended.  

11:10 On resuming—