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Historic Environment (Amendment) (Scotland) Act 2011

Section 3 – Offences under sections 2, 28 and 42: modification of defences

8.Section 3 modifies two defences and one offence in the 1979 Act. The defence in section 2(8) is adjusted so that, in addition to the existing “defence of ignorance”, an accused is also required to establish that he took all reasonable steps to discover whether the area affected by the unauthorised works which he is accused of executing or causing or permitting to be executed, contained a scheduled monument.

9.Section 42(7), which contains a defence in respect of unauthorised use of a metal detector in a protected place (as defined in section 42(2)), is amended to provide for a similar dual element defence to that in section 2(8).

10.Section 3 of the Act also modifies the offence in section 28(1) of the 1979 Act of damaging or destroying a protected monument without reasonable excuse. The effect of the change is that for the offence to be committed, it must be established that the accused knew, or ought to have known, that the monument in question was protected (within the meaning of section 28(3)). This is in addition to the element of the offence specified in paragraph (b) of section 28(1) that the damage or destruction was done intentionally or recklessly.

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