Part 2: Trail hunting
Section 14: Offences relating to trail hunting
135.Subsection (1) makes it an offence to engage or participate in trail hunting. Trail hunting is defined in subsection (2) as the activity in which a dog is directed to find and follow an animal-based scent which has been laid for that purpose.
136.Animal-based scent is also defined in subsection (2) and includes a scent which is either derived from a wild mammal (for example, animal urine or a scent created by dragging the carcase of a wild mammal along the ground) or which mimics, replicates or resembles the scent of a wild mammal (or is designed to do so) whether or not it is derived wholly or in part from artificial ingredients. For example, an artificial scent designed to mimic the smell of fox urine would be included in this definition. However, a trail of beef sausages would not fall within the definition because this would not mimic, replicate or resemble the scent of a wild mammal.
137.Section 16 provides for limited circumstances in which conduct which would otherwise be caught by the offence is permitted: by virtue of section 14(1)(b), an offence will not be committed if that exception applies.
138.Subsection (3) provides that an owner or occupier of land who knowingly causes or permits another person to engage or participate in trail hunting on that land commits an offence.
139.Subsection (7) provides that an owner of land includes a person who manages or controls that land or is authorised to give permission for the land to be used for trail hunting. For example, this could include a land manager (whether or not they are authorised to give permission for trail hunting) or a tenant whose lease allows them to give permission for others to trail hunt on the land.
140.As for the offence under subsection (1), an offence will not be committed under subsection (3) if the exception under section 16 applies such that conduct which would otherwise constitute unlawful trail hunting is permitted.
141.Subsection (4) provides that a person who owns or is responsible for a dog who knowingly causes or permits another person to use the dog for trail hunting commits an offence. The definition in section 2(6) as to what is meant by being responsible for a dog applies.
142.As for the offences under subsection (1) and (3), an offence will not be committed under subsection (4) if the exception in section 16 applies.
143.Subsection (5) sets out the penalties for offences under subsections (1), (3) and (4).
144.Subsection (6) provides for a defence where the person charged with an offence under subsection (3) or (4) can show that the person reasonably believed that one of the exceptions applied. For example, a land manager might give permission for dog training to take place on the land under section 16, on the basis of assurances from a reputable person that the conditions in section 16 would be met. If in fact the person failed to meet the conditions, for example by not having dogs under control, then the exception would not apply. However, the land manager would have a defence to the offence under subsection (3), on the basis of their reasonable belief that the conditions in section 16 would be met. The person trail hunting would commit an offence under subsection (1) and this defence would not be available to them.
Section 15: Power to modify meaning of trail hunting
145.Section 15(1) confers a power on the Scottish Ministers to modify section 14 by regulations so as to include in the definition of trail hunting (which is set out at section 14(2)) a scent other than an animal-based scent (as defined in section 14(2)). This could include, for example, scents such as aniseed or the scent of a human runner.
146.Under subsection (2), regulations may only be made if the Scottish Ministers consider that modifying the definition of trail hunting would contribute towards the protection of wild mammals from unlawful hunting using dogs. Therefore, there will need to be some evidence that scents other than animal-based scents (as defined in section 14(2)) are being used in activities which deliberately or otherwise lead to the unlawful hunting of wild mammals using dogs.
147.Regulations under subsection (1) are subject to affirmative procedure by virtue of subsection (3).
148.Subsection (4) requires the Scottish Ministers to consult such persons as they consider appropriate before laying a draft of a Scottish statutory instrument containing regulations. This could include for example consulting with Police Scotland.
149.Subsection (5)(a) provides that regulations may make different provision for different purposes: for example, the regulations could make different provisions depending on the context in which an activity is being carried out, in order to exclude activities such as training of police dogs from the scope of the new provisions.
150.Subsection (5)(b) provides that the regulations may modify this Part of the Act, and may also modify the sections elsewhere in the Act which list relevant offences, in case those references require to be updated to reflect changes made by the regulations.
151.Subsection (5)(c) provides that the regulations may make the ancillary provision listed in that paragraph, including provision for exceptions to the offences in section 14. This will allow the regulations to create new exceptions if required, for example to allow the lawful continuation of activities which involve the use of scents specified in the regulations but which do not cause any harm to wild mammals.
Section 16: Exception: training dogs to follow an animal-based scent
152.Section 14(1)(b), (3)(b) and (4)(b) mean that a person will not commit an offence if section 16 applies.
153.Section 16(1) sets out when section 16 applies. The person must be directing a dog to find and follow an animal-based scent, or laying an animal-based scent for a dog to find and follow, in order to train a dog for a lawful purpose, and all of the conditions set out in subsection (2) must be met.
154.There are a wide variety of contexts in which dogs require to be trained to follow an animal-based scent. For example, dogs which are used to find invasive non-native species of wild mammal in order that they can be eradicated (such as the eradication of stoats from Orkney) need to be trained to do this.
155.Subsection (2) sets out the conditions which must be met.
156.Under paragraph (a), the activity mentioned in subsection (1)(a) must not involve more than two dogs. There is no provision for the use of more than two dogs to be licensed.
157.Under paragraph (b), any dog involved in the activity must be under control. Section 27 includes a definition of when a dog is under control. A person who is responsible for the dog (as defined in section 2(6)) must be able to direct the dog’s activity by physical contact or verbal or audible command (although they need not be continuously doing so).
158.Under paragraph (c), reasonable steps must be taken to ensure that any dog involved in the activity does not join with others to form a pack of more than two dogs. For example, the person could plan the activity to take place well away from another person carrying out similar activity, or at a different time. A dog could be recalled and put on a lead if other dogs (for example, dogs being walked by a member of the public) were in the vicinity.
159.Under paragraph (d), permission for the activity must have been given by the owner of the land on which the trail hunting takes place. If the activity takes place across land which is in different ownerships, then permission will be required from each owner in order to satisfy the condition. As a result of section 14(7), permission may be given by a person who manages, controls or is authorised to give permission to use that land for trail hunting, such as a land manager.
160.Paragraph (e) requires that reasonable steps are taken to ensure that no wild mammal is pursued, injured or killed. For example, this might include laying the trail in an area where it is unlikely that a wild mammal will be hiding.
