|
Protection of Wild Mammals (Scotland) Act 2002
2002 asp 6
The bill for this Act of the Scottish Parliament
was passed by
the Parliament on 13th February 2002 and received
Royal Assent on 15th March 2002
An Act of the Scottish Parliament to protect wild
mammals
from being hunted with dogs; and for connected purposes.
1 Offences
(1)
A person who deliberately hunts a wild mammal with
a dog commits an offence.
(2)
It is an offence for an owner or occupier of land
knowingly to permit another
person to enter or use it to
commit an offence under subsection
(1).
(3)
It is an offence for an owner of, or person having
responsibility for, a dog
knowingly to permit another person
to use it to commit an offence
under subsection (1).
2 Exception: stalking and
flushing from cover
(1)
A person who is, or who has the permission of, the
owner or lawful occupier of
the land on which the stalking,
searching or flushing referred
to in this subsection takes
place does not commit an offence
under section 1 (1) by
using a dog under control
to stalk a wild mammal, or flush
it from cover (including an
enclosed space within rocks, or
other secure cover) above
ground for the purpose of--
(a)
protecting livestock, ground-nesting birds, timber,
fowl
(including wild fowl), game birds or crops from
attack
by wild mammals;
(b)
providing food for consumption by a living creature
including
a person;
(c)
protecting human health;
(d)
preventing the spread of disease;
(e)
controlling the number of a pest species; or
(f )
controlling the number of a particular species to
safeguard
the welfare of that species,
but only if that person acts
to ensure that, once the target
wild mammal is found or emerges
from cover, it is shot, or
killed by a bird of pray, once
it is safe to do so.
(2)
Where a person is using a dog in connection with the
despatch of a wild mammal,
being of a pest species, with
the intention of flushing
the wild mammal from cover or from
below ground in order that
it may be shot or killed by lawful
means, that person does not
commit an offence under
section 1 (1) by virtue of
the dog killing that wild mammal
in the course of that activity.
(3)
A person does not commit an offence under section
1 (1) by using a dog under control
to flush a fox or mink
from below ground or by using
a dog under control to flush
a fox from an enclosed space
within rocks or other secure
cover above ground, but only
if that person--
(a)
does so for one or more of the purposes specified
in
paragraphs (a) to (f) of subsection (1);
(b)
takes reasonable steps to ensure that the fox or mink
is
flushed as soon as reasonably possible after it is
reasonably
possible after it is located and shot as soon as
possible
after it is flushed;
(c)
takes all reasonable steps to prevent injury to the dog
including
steps to prevent the dog becoming trapped
underground
and, if it does become trapped underground,
steps
to insure it is rescued as soon as practicable;
(d)
is in possession of a firearm for which the person
holds
a valid firearms or shotgun certificate; and
(e)
either--
(i)
is the owner or lawful occupier of the land on
which
the activity takes place; or
(ii)
has the permission of the owner or lawful
occupier
of that land to undertake that activity.
3 Exception: use of a dog in
connection with falconry
and shooting
Where an occupier of land (or a person acting with
the occupier's
permission) is using a bird of prey, or a firearm or shotgun,
for
the purpose of sport, that person does not commit an offence under
section 1 (1) by using a dog under control to stalk a wild mammal,
or flush it from cover above ground, for the purpose of providing
quarry for the sport, but only if--
(a)
that person acts to ensure that, once a wild mammal is
found
or emerges from cover, it is shot or killed by a bird
of
prey, as soon as possible;
(b)
where a firearm or shotgun is used, that the person
holds a valid firearms or shotgun certificate or a valid
visitors'
firearm or shotgun permit; and
(c)
where a wild mammal is shot and injured, that person
takes
all reasonable steps to retrieve it and, once retrieved
to
kill it as humanely as possible.
4 Exception: search by
authorised person
(1)
An authorised person does not commit an offence under
section 1 (1) by using a dog
to search for, or catch, a wild
mammal if that person does
so with no intention of harming
the wild mammal.
(2)
In subsection (1) "authorised person " means--
(a)
an officer of a local authority acting in pursuance of
any
function of the local authority;
(b)
any person authorised by such an officer to search
for,
or catch, a wild mammal; and
(c)
a constable.
5 Exception: retrieval
and location
(1)
A person does not commit an offence under section
1 (1) by using a dog under
control in order to--
(a)
retrieve a hare which has been shot;
(b)
locate a wild mammal which has escaped, or been
released, from captivity
(but only if that person acts to
ensure that the mammal
is captured or shot once it is located);
or
(c)
retrieve or locate a wild mammal which that person
reasonably believes
is seriously injured or orphaned (but
only if that person
acts to ensure that the mammal, once
located, is captured,
treated or killed as humanely as possible
in order to relieve
its suffering).
(2)
Subsection (1)(b) does not apply if the mammal--
(a)
is a fox or hare;
(b)
is a deer, boar or mink, unless it has escaped from a
farm or zoo; or
(c)
has been raised or released for the purpose of being
hunted.
(3)
A person who is an occupier of land (or is acting with
the occupiers permission)
does not commit an offence under
section 1 (1) by using
a dog under control below ground on
that land in order to
locate a fox which that person reasonably
believes is orphaned,
but only if that person takes reasonable
steps to ensure that
the fox, once located, is despatched by a
single dog or otherwise
killed as humanely as possible.
6 Excepted activities
(1)
A person does not commit an offence under section 1(1)
by participating in
an excepted activity.
(2)
For the purposes of subsection (1), an "excepted activity"
is an excepted under
any provision of this Act, and such other
activity as the Scottish
Ministers may, by order made by statutory
instrument, specify.
(3)
No order is to be made under subsection (2) unless it has
been laid in draft before,
and approved by resolution of the
Scottish Parliament.
(4)
Before laying a draft order before the Parliament under
subsection (3), the
Scottish Ministers must--
(a)
lay the proposed draft order before the Parliament and make
it publicly available
for consultation for a period ( the consultation
period) of at least
12 weeks;
(b)
during the consultation period, consult such persons and
bodies as they consider likely
to be affected by, or otherwise to
have an interest in,
the proposed draft order; and
(c)
take into account any comments on the proposed draft order
expressed during the
consultation period and make such changes to
the draft order as they
consider appropriate.
7 Arrest, search and seizure
(1)
A constable who suspects with reasonable cause that a person
has committed or is
committing an offence under this Act may without
warrant--
(a)
arrest that person;
(b)
stop and search that person, if the constable suspects with
reasonable cause that
evidence in connection with the offence is to
be found on that person;
(c)
search or examine a vehicle, animal or article which appears
to belong to, or be
in the possession or control of, that person, if
the constable with reasonable
cause that evidence in connection with
the offence is to be
found in or on it;
(d)
seize and detain for the purpose of proceedings under this
Act a vehicle, animal
or article which may be evidence in connection
with the offence or
which may be made the subject of an order
under Part II of the
Proceeds of Crime (Scotland) Act 1995 (c. 43).
(2)
A vehicle, animal or article seized under subsection (1)(d)
above shall be returned
to the person from whom it was seized as
soon as any proceedings
under this Act are concluded without
the conviction of the
person accused.
(3)
A constable may enter land (but not a dwelling house) in order
to exercise a power
given by subsection (1)
8 Proceedings and penalties
(1)
A person guilty of an offence under this Act is liable on
summary conviction to
imprisonment for up to 6 months or a fine
of up to level 5 on
the standard scale or both.
(2)
If an offence of a body corporate is proved to have been
with the consent or
connivance of, or as a result of neglect by, an
officer of the body,
the officer as well as the body is guilty of
the offence.
(3)
"Officer" means a director, manager, secretary or other
similar officer, and
includes a person purporting to act in that
capacity or in accordance
with whose directions or instructions
the officers of the body
are accustomed to act.
(4)
Where the affairs of a body corporate are managed by its
members, subsection
(2) applies to the conduct of a member in connection
with the member's functions of management as if the
member were an officer.
(5)
If an offence committed by a partnership is proved to have
been committed with
the consent or connivance of, or as a result
of neglect by, a partner,
the partner as well as the partnership is
guilty of the offence.
(6)
In proceedings or an offence under section 1(2) or (3), it
is a defence for the
person charged to prove that at the time of the alleged
offence such person reasonably believed that section 5(1)
applied ( or would apply)
to the hunting in question.
9 Disqualification orders
(1)
The court convicting a person of an offence under section 1
may, in addition to
dealing with the offender in any other way, make
either or both of the
following orders ("disqualification orders")--
(a) an order for the care or disposal of a dog which was in the
offender's custody when
the offence was committed or which has
been in the offender's
custody at any time since then;
(b)
an order disqualifying the offender, for such period as it thinks
fit, from having custody
of any dog.
(2)
Where the court makes an order under subsection (1)(a) above,
it may--
(a)
require any person who has custody of the dog to deliver
it up to a specified
person;
(b)
require the offender to pay specified amounts to specified
persons for the care
of the dog from the time it is delivered up
(or detained under section
7(1)(d)) until permanent arrangements
are made for its care or
disposal.
(3)
A disqualification order shall not deprive a dog's owner of
custody of that dog
where that dog was used by another person
in the commission of
an offence under section 1, unless the owner
knowingly permitted
the use of that dog contrary to that section.
(4)
A person who--
(a)
has custody of a dog in contravention of a disqualification
order; or
(b)
fails to comply with a requirement imposed on that person
under subsection (2),
commits an offence.
(5)
A dog shall not be disposed of pursuant to an order under
subsection (1)(a) above--
(a)
until the end of the period within which notice of appeal to
the court against the order
can be given; and
(b)
if notice of appeal is given in that period, until the appeal
is determined or withdrawn,
unless the owner of
the dog gives notice to the court which made
the order of the owner's
intention not to appeal against it.
(6)
A person against whom an order under subsection (1)(b)
above has been made
may, no earlier than one year after the
date of the order, apply
to the court which made the order for a direction
ending the disqualification from such date as the court
thinks appropriate;
and if the application is refused, no further
application in relation
to that order may be made earlier than
one year after the date
of the refusal.
(7)
In considering an application under subsection (6) the court
must take account of
all the circumstances including the applicant's
conduct since the order
was made.
(8)
If a disqualification order imposes a requirement in relation
to
a dog not owned by the
offender, the owner may appeal to the
High Court against that
requirement.
(9)
An appeal under subsection (8) is competent only if lodged
within 7 days of the
date of the order (or such longer period as the
High Court thinks just, taking
particular account of the date on
which the order came to the
owner's attention).
10 Meaning of expressions
(1)
In this Act--
"to
hunt" include to search for or course;
"occupier"
include any person who has control of land;
an
"orphaned" fox means a fox, the mother of which is
dead,
which is too young to survive on its own;
"owner"
(of land) does not include a creditor in a heritable
security
who is not in possession of the security subjects;
"pest
species" means foxes, hares, mink, stoats and weasels;
"wild
mammal"--
(a)
includes a wild mammal which has escaped, or been
released,
from captivity, and any mammal which is living wild;
(b)
does not include a rabbit;
(c)
does not include a rodent;
and
references to hunting with, or the use of, "a dog" are
to be
interpreted
as also applied to hunting with, or (as the case may be)
the use of, two or more dogs.
(2)
The Scottish Ministers may, by order made by statutory
instrument,
modify the definition of "pest species" in subsection
(1)
so
as to add to, or remove from, the species which that definition
comprehends
such species as they think fit.
(3)
The statutory instrument containing an order under subsection
(2) above
is subject to annulment in pursuance of a resolution of the
Scottish
Parliament.
(4)
For the purposes of this Act, a dog is "under control"
if--
(a) the person responsible or the dog is able to direct the dog's
activity
by physical contact or verbal or audible command; or
(b)
the dog is carrying out a series of actions appropriate to
the
activity undertaken, having been trained to do so.
11 Consequential amendments
and repeals
The consequential
amendments and repeals set out in the schedule
have effect.
12 Short title and commencement
(1)
This Act may be cited as the Protection of Wild Mammals
(Scotland) Act 2002.
(2)
The preceding sections of this Act come into force on such
day as the Scottish
Ministers may by order made by statutory
instrument appoint.
(3)
Different days may be so appointed for different purposes.
SCHEDULE
Consequential amendments and repeals
Game (Scotland)
Act 1832 (c. 68)
1 Section 4 of the Game (Scotland)
Act 1832 (Provisions about
trespassers not to apply to
persons hunting) is repealed.
Game Licences
Act 1860 (c.90)
2 In section 5 of the Game
Licences Act 1860 (exceptions and
exemptions) exceptions 3 and 4
(so far as extending to Scotland)
are repealed.
Protection
of Animals (Scotland) Act 1912 (c. 14)
3 Section 1 (3)(b) of the
Protection of Animals (Scotland) Act 1912
(exception for hunting of
captive animal) is repealed.
Dogs (Protection
of Livestock) Act 1953 (c.28)
4 In section 1 (2A)(b) of the
Dogs (Protection of Livestock) Act 1953
(dogs which may be at large
in vicinity of sheep), so far as extending
to Scotland, for "pack
of hounds" substitute "dog lawfully used to
hunt".
Protection
of Badgers Act 1992 (c. 51)
5 In section 8 of the protection
of Badgers Act 1922 (interfering with
badger setts: exceptions),
subsections (4) to (9) (so far as extending to Scotland)are
repealed.
Wild Mammals
(Protection) Act 1996 (c. 3)
6 In section 2 (b) of the
Wild Mammals (Protection) Act 1996
(exceptions for killing in
certain circumstances), so far as extending to
Scotland, between "or"
and "pest" insert lawful.
|
