The first successful prosecution under the Protection of Wild Mammals (Scotland) Act 2002 took place on 29 June 2017, almost 15 years after the offence was first created.
The 2002 Act made Scotland the first country in the UK to outlaw the deliberate hunting of wild mammals with dogs. Father and son, John Clive Richardson and Johnny Reilly, were convicted of this offence in respect of their deliberate fox hunting with a dog near Jedburgh last year. The two were fined £250 and £400 respectively at Selkirk Sheriff Court.
As well as this offence, which effectively outlawed foxhunting, the Act also made it an offence for someone to knowingly permit someone to use their land for the purposes of hunting with a dog, or to use their dog for hunting wild mammals. The maximum sentences for offences committed under the Act are up to six months imprisonment and/or a fine of up to £5,000.
There are a number of excepted activities under the 2002 Act. If you can demonstrate you are engaging in one of these, you are not committing an offence. These do not apply to traditional foxhunting. As they are only applicable under certain circumstances, if you are using dogs in the course of your land business you should take care to ensure you are protected by the exceptions.
The first excepted activity is stalking and flushing from cover. This largely relates to pest control. You can use a dog, under control, to stalk or flush a wild mammal from cover for the purposes of protecting livestock, fowl and game; providing food for consumption; protecting human health; preventing the spread of disease; controlling the number of pest species; or controlling the number of a particular species to safeguard the welfare of that species. In doing so, you must ensure that once the animal is found, it is shot or killed by a bird of prey once it is safe to do so. If a dog is used to flush out a pest species, then the dog kills a mammal in the course of doing so, you will not have committed an offence.
The legislation specifically notes that it is not an offence to flush a fox or mink from a secure cover provided this is done for one of the reasons mentioned above. You must take all reasonable steps to ensure the animal is flushed out and shot as soon as possible, and that injury to the dog is avoided. The person controlling the dog must also be in possession of a firearm and hold a valid firearm certificate.
The other excepted activities under the Act are the use of a dog in connection with falconry and shooting as sport; searches by an authorised person, such as a Police Officer or local authority officer; and using a dog for retrieval and location of certain animals, such as retrieving a shot hare.
For further information and advice, please contact a member of the Land and Rural Business Team.
