Wildlife and Natural Environment (Scotland) Act 2011

Prospective

6 Protection of wild hares etc. S

(1) The 1981 Act is amended as follows.

(2) After section 10, insert—

“10A Protection of wild hares etc.

(1) Subject to the provisions of this Part, any person who intentionally or recklessly kills, injures or takes any wild animal included in Schedule 5A in the close season for the animal is guilty of an offence.

(2) In this section, “close season” means—

(a) in the case of a mountain hare, the period in any year beginning with 1st March and ending with 31st July;

(b) in the case of a brown hare, the period in any year beginning with 1st February and ending with 30th September.

(3) The Scottish Ministers may by order vary the close season for any wild animal included in Schedule 5A which is specified in the order.

(4) If it appears to the Scottish Ministers expedient that any wild animals included in Schedule 5A should be protected during any period outside the close season for those animals, they may by order declare any period not exceeding 14 days as a period of special protection for those animals.

(5) Before making an order under subsection (4), the Scottish Ministers must consult such persons appearing to them to be representative of persons interested in the killing or taking of animals of the kind proposed to be protected by the order as they consider appropriate.

(6) Where an order is made under subsection (4), this section has effect as if any period of special protection declared by the order forms part of the close season for those animals.

(7) An order under subsection (3) or (4) may be made as respects the whole of Scotland or any part of Scotland specified in the order.

(8) In any proceedings for an offence under subsection (1), the animal in question is to be presumed to have been a wild animal unless the contrary is shown.

10B Exceptions to s. 10A

(1) A person is not guilty of an offence under section 10A(1) by reason of the killing of an animal included in Schedule 5A if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering.

(2) A person is not guilty of an offence under section 10A(1) by reason of taking any such animal if he shows that—

(a) he had a legal right to take such an animal or permission, from a person who had a right to give permission, to take such an animal; and

(b) the animal—

(i) had been disabled otherwise than by his unlawful act; and

(ii) was taken solely for the purpose of tending it and releasing it when no longer disabled.

(3) An authorised person is not guilty of an offence under section 10A(1) by reason of the killing or injuring of an animal included in Schedule 5A if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.

(4) An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action if––

(a) it had become apparent, before the action was taken, that it would prove necessary for the purpose mentioned in that subsection; and

(b) either—

(i) a licence under section 16 authorising the action had not been applied for as soon as reasonably practicable after that fact had become apparent; or

(ii) an application for such a licence had been determined.

(5) An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action unless he notified the appropriate authority as soon as reasonably practicable after the action was taken that he had taken it.

(6) In subsection (5), “the appropriate authority” has the same meaning as in section 16(9).

(7) Nothing in section 10A makes unlawful—

(a) anything done in pursuance of a requirement by the Scottish Ministers under section 39 of the Agriculture (Scotland) Act 1948; or

(b) anything done under, or in pursuance of an order made under, the Animal Health Act 1981.”.

(3) In section 26(2) (regulations, orders, notices etc.), after “5” insert “ , 10A(4) ”.

(4) In the title of Schedule 5 (animals which are protected), at the end add “ under section 9 ”.

(5) After that Schedule, insert—

“SCHEDULE 5A S Animals which are protected under section 10A in their close season

(introduced by sections 10A and 22)

Common name	Scientific name
Hare, mountain	Lepus timidus
Hare, brown	Lepus europaeus”.