Part 1: Hunting a wild mammal using a dog
Section 1: Offence of hunting a wild mammal using a dog
5.Subsection (1) provides that a person commits an offence if the person hunts a wild mammal using a dog.
6.Subsection (3) provides further detail on what is included in the definition of hunting. It expressly includes searching for a wild mammal (so that hunting does not require that the wild mammal has been identified) and coursing (the practice of using a dog to hunt a wild mammal by sight). However this is an inclusive definition and other types of conduct which constitute hunting a wild mammal (such as chasing, pursuing, stalking or flushing it from cover) will also be caught by the offence. These are not specified in the definition because there may be circumstances in which they do not constitute hunting. For example, the situation where a dog runs off by itself in pursuit of a wild mammal whilst being walked would not be caught by the offence because in that instance the owner is not hunting a wild mammal using the dog. The word “hunting” carries with it a requirement of intentional conduct.
7.Subsection (3) also defines “
8.“Living in a wild state” requires that the animal has adapted to living in the wild. Therefore, a non-native mammal which escapes from captivity, for example a lion which has escaped from a zoo, will not be living in a wild state and so will not be a wild mammal and will not fall within the ambit of the Act. Such animals will be protected animals under section 17(1)(c) of the Animal Health and Welfare (Scotland) Act 2006, which provides that an animal is a protected animal if it is not living in a wild state, and will therefore benefit from the provisions of that Act which set out offences relating to protected animals (for example, causing a protected animal unnecessary suffering is an offence under section 19 of that Act).
9.Mammals which are of a species commonly recognised as living in a wild state in the British Islands would include native animals such as foxes, deer, hares, rabbits, red squirrels, wildcats and pine marten, as well as non-native animals such as grey squirrels and mink. These animals will fall within the ambit of the Act whether or not they are actually living in a wild state. However, some such species are commonly kept under human control, such as pet rabbits or farmed deer, and these would not normally be regarded as wild mammals. Paragraph (b)(iii) therefore excludes animals which are living under human control. Section 17(1)(b) of the Animal Health and Welfare (Scotland) Act 2006, which provides that an animal is a protected animal if it is living under the control of man on a permanent or temporary basis, will mean that these are protected animals under that Act and will therefore benefit from the provisions of that Act which set out offences relating to protected animals (for example, causing a protected animal unnecessary suffering is an offence under section 19 of that Act).
10.Mammals which have been deliberately released from human control are also to be treated as wild mammals, whatever their species. This is to prevent mammals being released in order to be hunted.
11.In some instances, an animal may be both a wild mammal under the Act and a protected animal under section 17 of the Animal Health and Welfare (Scotland) Act 2006. For example, a guinea pig which was deliberately released from human control would be both a wild mammal under subsection (3)(a)(iii) and a protected animal under section 17(1)(a) (which provides that an animal is a protected animal if it is of a kind commonly domesticated in the British Islands).
12.Subsection (3)(b) excludes rats and mice from the definition of wild mammal. This means that it is lawful to hunt rats and mice using a dog.
13.The 2002 Act excluded rabbits and all rodents from the definition of wild mammal. Rabbits and rodents other than rats and mice will now fall within the definition of wild mammal, meaning it is an offence to hunt them using a dog unless one of the exceptions in the Act applies.
14.Subsection (4) provides further detail as to when a person is to be treated as “
15.Sections 3, 5, 6, 7, 8 and 9 provide for some limited circumstances in which conduct which would otherwise be caught by the offence is permitted: by virtue of section 1(1)(b), an offence will not be committed if any of those exceptions apply. If none of the exceptions apply, then searching for, stalking or flushing a wild mammal from cover or below ground using a dog will be an offence. Other conduct such as using a dog to chase and kill a wild mammal does not fall within any of the exceptions and can never be lawful.
16.Subsection (2) sets out the penalties for an offence under subsection (1).
Section 2: Offences of knowingly causing or permitting another person to hunt using a dog
17.This section creates ancillary offences to the offence of hunting a wild mammal using a dog.
18.Subsection (1) provides that an owner or occupier of land who knowingly causes or permits another person to hunt a wild mammal using a dog on that land commits an offence.
19.Subsection (5) 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 hunting. For example, this could include a land manager (whether or not they are authorised to give permission for hunting) or a tenant whose lease allows them to give permission for others to hunt on the land. Hunting includes activities such as searching for, stalking or flushing from cover a wild mammal, even although in some circumstances those activities may be permitted under sections 3, 5, 6, 7, 8 and 9.
20.As for the offence under section 1, an offence will not be committed if any of the exceptions apply such that conduct which would otherwise constitute unlawful hunting is permitted.
21.Subsection (2) provides that a person who owns or is responsible for a dog who knowingly causes or permits another person to hunt a wild mammal using that dog commits an offence.
22.Subsection (6) defines what is meant by being responsible for a dog.
23.As for the offences under section 1 and subsection (1), an offence will not be committed under subsection (2) if any of the exceptions apply.
24.Subsection (3) sets out the penalties for offences under subsections (1) and (2).
25.Subsection (4) provides for a defence where the person charged with an offence under subsection (1) or (2) can show that the person reasonably believed that any of the exceptions applied. For example, a land manager might give permission for a fox to be flushed from cover and shot under the exception in section 3, on the basis of assurances from a reputable business that the conditions in section 3 would be met. If in fact the person hunting 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 (1), on the basis of their reasonable belief that the conditions in section 3 would be met. The person hunting would commit an offence under section 1 and this defence would not be available to them.
Section 3: Exception: management of wild mammals above ground
26.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
27.Section 3(1) sets out when section 3 applies. The person must be using a dog above ground to search for, stalk or flush from cover a wild mammal with the intention of killing it for one or more of the purposes set out in subsection (2), or to search for and retrieve a wild mammal which has been killed as a result of those activities. The conditions in subsection (3) must be met.
28.Section 27 includes a definition of cover. This is a place above ground in which a wild mammal may be concealed from sight. For example, this could include gorse or other thick vegetation or an enclosed space within rocks. However, cover does not include an enclosed place from which a wild mammal could not be flushed, such as a building with restricted entrance and exit routes.
29.Subsection (2) sets out the purposes for which the wild mammal may be killed, which include preventing serious damage to livestock, woodland or crops. Section 27 includes definitions of livestock and woodland.
30.Subsection (3) sets out the conditions which much be met.
31.Under paragraph (a), the activity mentioned in subsection (1)(a) must not involve the use of more than two dogs unless a licence has been granted for the use of more than two dogs under section 4.
32.Under paragraph (b), any dog used 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).
33.Under paragraph (c), reasonable steps must be taken to ensure that any dog used 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 a 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.
34.The definition of “using a dog” in section 1(4) also means that the person undertaking an activity under subsection (1)(a) will be treated as using any other dogs which are involved in the hunting of a wild mammal by that person, even if they are not under that person’s control. Searching for, stalking or flushing from cover a wild mammal still constitute hunting a wild mammal so that section 1(4) applies, even although the activity will be permitted under the exception if the conditions are met. Therefore, if a person is undertaking an activity under subsection (1)(a) and allows other dogs to become involved in that activity, the person will be using more than two dogs and the exception will not apply.
35.However, paragraph (c) does not apply where a licence has been granted for the use of more than two dogs under section 4.
36.Under paragraph (d), permission for the activity must have been given by the owner of the land on which the activity 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 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
37.Paragraph (e) requires that the wild mammal is shot dead, or killed by a bird of prey, as soon as reasonably possible. When it is reasonably possible to do this may depend on the circumstances of the activity. For example, if the wild mammal being flushed is a fox, it will usually be reasonably possible to shoot the fox as soon as it becomes visible, provided that it is safe to shoot. However, if the wild mammal is a deer, best practice guidance published from time to time by those concerned with deer management in Scotland provides guidance on how deer should be shot which means that the person might need to delay taking their shot until they can be sure of hitting the deer in a way which accords with that guidance.
38.This condition will not be met (and an offence will be committed) if a dog is allowed to chase and kill the wild mammal.
39.If the wild mammal is shot or attacked by the bird of prey, but not immediately killed, paragraph (f) requires that reasonable steps must be undertaken to kill it in a way (other than by using a dog) that causes it the minimum possible suffering. For example, the injured animal could be retrieved and shot.
Section 4: Licence for use of more than two dogs in connection with section 3
40.Subsection (1) allows a person to apply for a licence permitting the use of more than two dogs for the activity permitted by section 3(1)(a).
41.Subsection (2) sets out the requirements for a licence application and subsection (3) requires the relevant authority to publicise the requirements for licence applications. Under subsection (6), the relevant authority is defined as either the Scottish Ministers or, if they have delegated their functions in relation to licences under section 11, Scottish Natural Heritage. Following a rebranding in 2020, Scottish Natural Heritage is now known as NatureScot. However, Scottish Natural Heritage remains its legal name under the Natural Heritage (Scotland) Act 1991.
42.Subsection (4) sets out the features of licences under this section.
43.Paragraph (a) provides that the licence may be granted to a particular person or category of persons. For example, a licence could be granted to an individual, a body such as a company or an unincorporated association, or a category such as all persons owning land within a certain postcode. Although the licence will be granted to a person or category of persons, the hunting does not necessarily have to be carried out by that person or category of persons (although the licence could require that under paragraph (f)). For example, a farmer could apply for the licence and then arrange for a footpack to carry out the hunting on their behalf. The person hunting a wild mammal will have to act in accordance with the licence in order to meet the condition in section 3(3)(a)(ii) and avoid committing an offence.
44.Paragraph (c) provides that a licence must not be granted unless the relevant authority is satisfied that there is no other solution which would be effective in achieving the purpose set out in section 3(2) in relation to which the licence application is made. This will include both lethal and non-lethal solutions. For example, if the purpose is to prevent serious damage to livestock, other solutions could include installing animal-proof fencing, translocation, shooting, lamping or using one or two dogs to flush the wild mammal to allow it to be shot or killed by a bird of prey.
45.Paragraph (d) provides that a licence may permit the use of the minimum number of dogs which the relevant authority is satisfied would be effective in achieving the purpose set out in section 3(2) in relation to which the licence application is being made. For example, if the relevant authority is satisfied that using 5 dogs would be effective in achieving the purpose, it cannot grant a licence for the use of 10 dogs.
46.Paragraph (e) provides that a licence must require the deployment of the minimum number of guns which the relevant authority is satisfied would be effective for compliance with the conditions set out in section 3(3)(e) and (f) (to shoot dead the wild mammal as soon as reasonably possible and to take reasonable steps to kill it in a way that causes it the minimum possible suffering if it is injured but not killed by an attempt to kill it). For example, several guns might be required to be deployed if the flushing of a wild mammal is taking place over a large area with multiple routes of escape, in order that the wild mammal can be readily shot.
47.The condition in section 3(3)(e) allows a wild mammal to be killed by a bird of prey. There may therefore be circumstances in which the relevant authority is satisfied that no guns are required to be deployed because a bird of prey will be used to kill the wild mammal. However, it would also be open to the relevant authority to require a gun to be deployed in case the wild mammal was injured but not killed by the bird of prey, for compliance with section 3(3)(f).
48.Under paragraph (g) a licence may be granted for a maximum period of 14 days. Those days have to be within a period of 6 consecutive months but do not themselves have to be consecutive. The licence may be granted for less than 14 days or over a shorter period than 6 months, or both. For example, a licence could allow the use of more than two dogs for any three days between 1st February and 30th April, or any 10 days between 1st and 28th February, or any 14 days between 1st February and 31st July.
49.Subsection (5) sets out the matters which must be specified in a licence, including the maximum number of dogs which are permitted to be used and the minimum number of guns (if any) which are required to be deployed. The maximum number of dogs which are permitted to be used will correspond to the minimum number of dogs which the relevant authority is satisfied would be effective under subsection (4)(d). As what is to be specified in the licence is a maximum, it would be open to a person to use fewer dogs: for example, if the licence specified a maximum of five dogs, a person could choose to use three or four.
Section 5: Exception: management of foxes below ground
50.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
51.Section 5(1) sets out when section 5 applies. The person must be using a dog to search for a fox below ground or to flush it from below ground with the intention of killing it for one of the purposes set out in subsection (2), and all of the conditions set out in subsection (3) must be met.
52.Subsection (2) sets out the purposes for which the fox may be killed. Subsection (4) defines dependent, being that the mother of the fox is dead and it is too young to survive on its own.
53.Subsection (3) sets out the conditions which must be met.
54.Under paragraph (a), the activity must not involve the use of more than one dog. There is no provision for the use of more than one dog to be licensed.
55.Under paragraph (b), the dog 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).
56.Under paragraph (c), permission for the activity must have been given by the owner of the land on which the activity takes place. Although it appears unlikely that activity under this exception would take place across land which is in different ownerships, if that is the case then permission will be required from each owner in order to satisfy the condition. As a result of the meaning of an “owner” of land given in section 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
57.Paragraph (d) requires that if the fox is found or emerges from below ground, it is shot dead, or killed by a bird of prey, as soon as reasonably possible. If it is shot or attacked by a bird of prey, but not immediately killed, paragraph (e) requires that reasonable steps must be undertaken to kill it in a way (other than by using a dog) that causes it the minimum possible suffering. For example, the injured fox could be retrieved and shot.
58.There is no requirement to take any action if the fox does not emerge from below ground. It is possible that the fox might be killed by the dog underground or might escape below ground. Neither of these scenarios will result in an offence being committed, provided the other conditions are met.
Section 6: Exception: falconry, game shooting and deer stalking
59.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
60.Section 6(1) sets out when section 6 applies. The person must be using a dog above ground to search for, stalk or flush from cover a wild mammal with the intention of providing quarry for falconry, game shooting or deer stalking, or to search for and retrieve a wild mammal which has been killed as a result of those activities. The conditions in subsection (2) must be met.
61.Subsection (2) sets out the conditions which must be met.
62.Under paragraph (a), the activity of searching, stalking or flushing from cover a wild mammal must not involve the use of more than two dogs. There is no provision for the use of more than two dogs to be licensed.
63.Under paragraph (b), any dog used 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).
64.Under paragraph (c), reasonable steps must be taken to ensure that any dog used 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 a 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.
65.The definition of “using a dog” in section 1(4) also means that the person undertaking an activity under subsection (1)(a) will be treated as using any other dogs which are involved in the hunting of a wild mammal by that person, even if they are not under that person’s control. Searching for, stalking or flushing from cover a wild mammal still constitute hunting a wild mammal so that section 1(4) applies, even although the activity will be permitted under the exception if the conditions are met. Therefore, if a person is undertaking an activity under subsection (1)(a) and allows other dogs to become involved in that activity, the person will be using more than two dogs and the exception will not apply.
66.For example, under this exception several people could each use one or two dogs to flush separate wild mammals as quarry for shooting, providing they did not allow the dogs to join together. However, they could not use more than two dogs together to flush the same quarry. In that case each person would be treated as using more than two dogs, the condition in section 6(2)(a) would not be met and an offence would be committed under section 1(1). Similarly, a person could not use more than two dogs to flush wild mammals as quarry for other people to shoot. Again, both the person controlling the dogs and the people shooting wild mammals would be treated as using more than two dogs, the condition in section 6(2)(a) would not be met and an offence would be committed under section 1(1).
67.Under paragraph (d), permission for the activity must have been given by the owner of the land on which the activity 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 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
68.Paragraph (e) requires that the wild mammal is shot dead, or killed by a bird of prey, as soon as reasonably possible. When it is reasonably possible to do this may depend on the circumstances of the activity. For example, there is guidance on how deer should be shot which means that the person might need to delay taking their shot until they can be sure of hitting the deer in a way which accords with that guidance.
69.This condition will not be met (and an offence will be committed) if a dog is allowed to chase and kill the wild mammal.
70.If the wild mammal is shot or attacked by a bird of prey, but not immediately killed, paragraph (f) requires that reasonable steps must be undertaken to kill it in way (other than by using a dog) that causes it the minimum possible suffering. For example, the injured animal could be retrieved and shot.
71.Subsection (3) defines deer stalking, falconry, game shooting and quarry.
72.Although game shooting as a sport may involve shooting birds as well as wild mammals, the use of dogs in that context will not fall within the ambit of the Act. That is because dogs are being used to flush game birds, and not to hunt wild mammals.
Section 7: Exception: relieving the suffering of injured wild mammals
73.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
74.Section 7(1) sets out when section 7 applies. The person must be using a dog above ground to search for, stalk or flush from cover a wild mammal which the person has reasonable grounds for believing is injured, with the intention of treating, capturing or killing it for the purpose of relieving its suffering. The wild mammal must not have been deliberately injured for the purpose of allowing the activity to take place: for example, if a person deliberately injured a fox and waited for it to escape before using dogs to search for it, the exception would not apply and an offence would be committed under section 1(1). The conditions in subsection (2) must also be met.
75.There are a wide variety of contexts in which dogs may be used to search for injured wild mammals. For example, Forestry and Land Scotland may use dogs to search for deer which have been involved in road traffic accidents; farmers may use dogs to search for foxes injured by other methods of wildlife control; gamekeepers may use dogs to search for injured deer; conservation organisations may use dogs to search for injured wild mammals in order to treat them.
76.Subsection (2) sets out the conditions which must be met.
77.Under paragraph (a), the activity mentioned in subsection (1)(a) must not involve the use of more than two dogs. There is no provision for the use of more than two dogs to be licensed.
78.Under paragraph (b), any dog used 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).
79.Under paragraph (c), reasonable steps must be taken to ensure that any dog used 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 a 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.
80.The definition of “using a dog” in section 1(4) also means that the person undertaking an activity under subsection (1)(a) will be treated as using any other dogs which are involved in the hunting of a wild mammal by that person, even if they are not under that person’s control. Searching for, stalking or flushing from cover a wild mammal still constitute hunting a wild mammal so that section 1(4) applies, even although the activity will be permitted under the exception if the conditions are met. Therefore, if a person is undertaking an activity under subsection (1)(a) and allows other dogs to become involved in that activity, the person will be using more than two dogs and the exception will not apply.
81.Under paragraph (d), either permission for the activity must have been given by the owner of the land on which the activity takes place, or the person must be a constable exercising a power of entry, or a person exercising a power of entry under section 14M or 14N of the Wildlife and Countryside Act 1981 or section 15 of the Deer (Scotland) Act 1996. If the activity takes place across land which is in different ownerships, then the requirement for permission or a power of entry will apply to each piece of land.
82.As a result of section 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
83.Section 14M of the Wildlife and Countryside Act 1981 allows a person authorised in writing by the Scottish Ministers, Scottish Natural Heritage or the Scottish Environmental Protection Agency to enter land to carry out an operation or other work which is required to be carried out under a species control order made under section 14D of that Act. This might be used where an invasive species is causing significant adverse impact and the owner has not taken any action to deal with it. Section 14N provides for a warrant to be granted for entry to premises where there is a right of entry under section 14M but entry has not been possible for the reasons set out in section 14N, for example because admission has been refused or the premises are unoccupied.
84.Section 15 of the Deer (Scotland) Act 1996 allows a person authorised in writing by Scottish Natural Heritage to enter land in exercise of its functions in relation to the control of deer under sections 7, 8 and 10 of that Act. This might be used where numbers of deer need to be controlled in order to be sustainable.
85.Paragraph (e) requires that the wild mammal is, as soon as reasonably possible, either given treatment to reduce or alleviate its pain or discomfort before being allowed to escape (that is, to leave the area) without being pursued or killed, captured for the purpose of being given treatment either at that place or another place, shot dead or observed and allowed to escape (that is, to leave the area) without being pursued, injured or killed. When it is reasonably possible to do things may depend on the circumstances of the activity and the species of animal involved. However this condition will not be met (and an offence will be committed) if a dog is allowed to chase and kill the wild mammal.
86.If the wild mammal is shot, but not immediately killed, paragraph (f) requires that reasonable steps must be undertaken to kill it in way (other than by using a dog) that causes it the minimum possible suffering. For example, the injured animal could be retrieved and shot.
Section 8: Exception: searching for dead wild mammals
87.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Searching for a wild mammal constitutes hunting and therefore if none of the exceptions applies then an offence will be committed. The definition of wild mammal is not limited to living wild mammals.
88.Section 8(1) sets out when section 8 applies. The person must be using a dog above ground to search for and retrieve a dead wild mammal, and the conditions in subsection (2) must be met.
89.There are a wide variety of contexts in which dogs may be used to search for dead wild mammals. For example, Police Scotland may use dogs to search for dead wild mammals as evidence of wildlife crime.
90.Subsection (2) sets out the conditions which must be met.
91.Under paragraph (a), the activity mentioned in subsection (1)(a) must not involve the use of more than two dogs. There is no provision for the use of more than two dogs to be licensed.
92.Under paragraph (b), any dog used 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).
93.Under paragraph (c), reasonable steps must be taken to ensure that any dog used 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 a 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.
94.The definition of “using a dog” in section 1(4) also means that the person undertaking an activity under subsection (1)(a) will be treated as using any other dogs which are involved in the hunting of a wild mammal by that person, even if they are not under that person’s control. Searching for a wild mammal still constitutes hunting a wild mammal so that section 1(4) applies, even although the activity will be permitted under the exception if the conditions are met. Therefore, if a person is undertaking an activity under subsection (1)(a) and allows other dogs to become involved in that activity, the person will be using more than two dogs and the exception will not apply.
95.Under paragraph (d), either permission for the activity must have been given by the owner of the land on which the activity takes place, or the person must be a constable exercising a power of entry, or a person exercising a power of entry under section 14M or 14N of the Wildlife and Countryside Act 1981 or section 15 of the Deer (Scotland) Act 1996. If the activity takes place across land which is in different ownerships, then the requirement for permission or a power of entry will apply to each piece of land.
96.As a result of section 2(5), permission may be given by a person who manages, controls or is authorised to give permission for that land to be used for the activity, such as a land manager.
97.Section 14M of the Wildlife and Countryside Act 1981 allows a person authorised in writing by the Scottish Ministers, Scottish Natural Heritage or the Scottish Environmental Protection Agency to enter land to carry out an operation or other work which is required to be carried out under a species control order made under section 14D of that Act. This might be used where an invasive species is causing significant adverse impact and the owner has not taken any action to deal with it. Section 14N provides for a warrant to be granted for entry to premises where there is a right of entry under section 14M but entry has not been possible for the reasons set out in section 14N, for example because admission has been refused or the premises are unoccupied.
98.Section 15 of the Deer (Scotland) Act 1996 allows a person authorised in writing by Scottish Natural Heritage to enter land in exercise of its functions in relation to the control of deer under sections 7, 8 and 10 of that Act. This might be used where numbers of deer need to be controlled in order to be sustainable.
99.Paragraph (e) requires that reasonable steps are taken to ensure that no wild mammal is pursued, injured or killed.
Section 9: Exception: environmental benefit
100.Sections 1(1)(b), 2(1)(b) and 2(2)(b) mean that a person will not commit an offence if any of sections 3, 5, 6, 7, 8 and 9 applies. Activities such as searching for, stalking or flushing from cover a wild mammal constitute hunting and therefore if none of the exceptions applies then an offence will be committed.
101.Section 9(1) sets out when section 9 applies. The person must be using a dog above ground to search for, stalk or flush from cover a wild mammal, with the intention of killing, capturing or observing it as part of a scheme or plan for one or more of the purposes set out in subsection (2). All of the conditions set out in subsection (3) must be met.
102.Whilst this exception can be used by any person, the requirement for a scheme or plan means that the activity has to be planned and designed for one of the subsection (2) purposes.
103.Subsection (2) sets out the purposes, which include preserving, protecting or restoring particular species for environmental benefit; preserving, protecting or restoring the diversity of animal or plant life, and eradicating invasive non-native species of wild mammal. Subsection (4) includes a definition of invasive non-native species. This is a species which is either included on the Scottish list of species of special concern (such as grey squirrels) or which is not native to the area in which the activity takes place and which is having or likely to have a significant adverse impact. For example, killing or capturing stoats in Orkney or hedgehogs in Uist could fall within the purpose at paragraph (c).
104.Subsection (3) sets out the conditions which must be met.
105.Under paragraph (a), the activity must not involve the use of more than two dogs unless a licence has been granted for the use of more than two dogs under section 10.
106.Under paragraph (b), any dog used 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).
107.Under paragraph (c), reasonable steps must be taken to ensure that any dog used 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 a 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.
108.The definition of “using a dog” in section 1(4) also means that the person undertaking an activity under subsection (1)(a) will be treated as using any other dogs which are involved in the hunting of a wild mammal by that person, even if they are not under that person’s control. Searching for, stalking or flushing from cover a wild mammal still constitute hunting a wild mammal so that section 1(4) applies, even although the activity will be permitted under the exception if the conditions are met. Therefore, if a person is undertaking an activity under subsection (1)(a) and allows other dogs to become involved in that activity, the person will be using more than two dogs and the exception will not apply.
109.However, paragraph (c) does not apply where a licence has been granted for the use of more than two dogs under section 10.
110.Under paragraph (d), either permission for the activity must have been given by the owner of the land on which the activity takes place, or the person must be exercising a power of entry under section 14M or 14N of the Wildlife and Countryside Act 1981 or section 15 of the Deer (Scotland) Act 1996. If the activity takes place across land which is in different ownerships, then the requirement for permission of a power of entry will apply to each piece of land.
111.As a result of section 2(5), permission may be given by a person who manages, controls or is authorised to give permission for the land to be used for the activity, such as a land manager.
112.Section 14M of the Wildlife and Countryside Act 1981 allows a person authorised in writing by the Scottish Ministers, Scottish Natural Heritage or the Scottish Environmental Protection Agency to enter land to carry out an operation or other work which is required to be carried out under a species control order made under section 14D of that Act. This might be used where an invasive species is causing significant adverse impact and the owner has not taken any action to deal with it. Section 14N provides for a warrant to be granted for entry to premises where there is a right of entry under section 14M but entry has not been possible for the reasons set out in section 14N, for example because admission has been refused or the premises are unoccupied.
113.Section 15 of the Deer (Scotland) Act 1996 allows a person authorised in writing by Scottish Natural Heritage to enter land in exercise of its functions in relation to the control of deer under sections 7, 8 and 10 of that Act. This might be used where numbers of deer need to be controlled in order to be sustainable.
114.Paragraph (e) requires that the wild mammal is either captured as soon as reasonably possible, shot dead (or killed by a bird of prey) as soon as reasonably possible or observed and allowed to escape (that is, to leave the area) without being pursued, injured or killed. When it is reasonably possible to do things may depend on the circumstances of the activity and the species of animal involved. However this condition will not be met (and an offence will be committed) if a dog is allowed to chase and kill the wild mammal.
115.If an attempt is made to kill the wild mammal but it is not immediately killed, paragraph (f) requires that reasonable steps must be undertaken to kill it in way (other than by using a dog) that causes it the minimum possible suffering.
116.Paragraph (e) does not necessarily require the killing of the wild mammal because in some instances the purposes in subsection (2) may be fulfilled by relocating the animal (for example, hedgehogs captured in Uist are currently rehomed in mainland Scotland) or by observing animals (for example, to count them or to check their appearance or behaviour).
Section 10: Licence for use of more than two dogs in connection with section 9
117.Subsection (1) allows a person to apply for a licence permitting the use of more than two dogs for the activity permitted by section 9(1)(a).
118.Subsection (2) sets out the requirements for a licence application and subsection (3) requires the relevant authority to publicise the requirements for licence applications. Under subsection (6), the relevant authority is defined as either the Scottish Ministers or, if they have delegated their functions in relation to licences under section 11, Scottish Natural Heritage. Following a rebranding in 2020, Scottish Natural Heritage is now known as NatureScot. However, Scottish Natural Heritage remains its legal name under the Natural Heritage (Scotland) Act 1991.
119.Subsection (4) sets out the features of licences under this section.
120.Paragraph (a) provides that the licence may be granted to a particular person or category of persons. For example, a licence could be granted to an individual, a body such as a company or an unincorporated association, or a category such as all persons owning land within a certain postcode. Although the licence will be granted to a person or category of persons, the hunting does not necessarily have to be carried out by that person or category of persons (although the licence could require that under paragraph (f)). For example, a farmer could apply for the licence and then arrange for a footpack to carry out the hunting on their behalf. The person hunting a wild mammal will have to act in accordance with the licence in order to meet the condition in section 9(3)(a)(ii) and avoid committing an offence.
121.Paragraph (c) provides that a licence must not be granted unless the relevant authority is satisfied both that killing, capturing or observing the wild mammal will contribute towards a significant or long-term environmental benefit, and that there is no other solution which would be effective in achieving the purpose set out in section 9(2) in relation to which the licence application is made. This will include lethal and non-lethal solutions. For example, where the purpose is controlling the number of a species for its welfare, other solutions could include translocation, trapping or using one or two dogs to flush the wild mammal to allow it to be shot or killed by a bird of prey.
122.Paragraph (d) provides that a licence may only permit the use of the minimum number of dogs which the relevant authority is satisfied would be effective in achieving the purpose set out in section 9(2) in relation to which the licence application is being made.
123.Paragraph (e) provides that a licence must require the deployment of the minimum number of guns which the relevant authority is satisfied would be effective for compliance with the conditions set out in section 9(3)(e) and (f) (to shoot dead the wild mammal as soon as reasonably possible and to take reasonable steps to kill it in a way that causes it the minimum possible suffering if it is injured but not killed by an attempt to kill it). For example, several guns might be required to be deployed if the flushing of a wild mammal is taking place over a large area with multiple possible routes of escape, in order that the wild mammal can be readily shot.
124.The condition in section 9(3)(e) also allows a wild mammal to be captured, killed by a bird of prey or observed and allowed to escape. There may therefore be circumstances in which the relevant authority is satisfied that no guns are required to be deployed, for example because the licence is being sought for the purpose of observing wild mammals which will be allowed to escape, or because a bird of prey will be used to kill the wild mammal. However, it would also be open to the relevant authority to require a gun to be deployed in case, for example, the wild mammal was injured but not killed by a bird of prey, for compliance with section 9(3)(f).
125.Under paragraph (g) a licence may be granted for a maximum period of two years. This period must fall within two consecutive years but does not have to be a single period. For example, a licence could not be granted for six months at a time over a period of four years, but could be granted for June, July and August in two consecutive years.
126.Subsection (5) sets out the matters which must be specified in a licence, including the maximum number of dogs which are permitted to be used and the minimum number of guns (if any) which are required to be deployed. The maximum number of dogs which are permitted to be used will correspond to the minimum number of dogs which the relevant authority is satisfied would be effective under subsection (4)(d). As what is to be specified in the licence is a maximum, it would be open to a person to use fewer dogs: for example, if the licence specified a maximum of five dogs, a person could choose to use three or four.
Section 11: Delegation of functions in relation to licences
127.This section allows the Scottish Ministers to delegate their functions in relation to licences to Scottish Natural Heritage. Following a rebrand in 2020, Scottish Natural Heritage is now known as NatureScot. However, Scottish Natural Heritage remains its legal name under the Natural Heritage (Scotland) Act 1991.
Section 12: Offence of providing false information to obtain a licence
128.Subsection (1) makes it an offence for a person to knowingly or recklessly make a false or misleading statement for the purposes of obtaining a licence under section 4 or 10 for themselves or another person.
129.Subsection (2) sets out the penalties for the offence under subsection (1).
Section 13: Review of operation of sections 4 and 10
130.This section requires the Scottish Ministers to review the operation of sections 4 (licence for use of more than two dogs in connection with section 3) and 10 (licence for use of more than two dogs in connection with section 9).
131.Under subsections (2) and (3), the first review must be carried out by 31st December 2028 and reviews must be carried out every 5 years thereafter.
132.In carrying out a review, subsection (4) requires the Scottish Ministers to consult those with an interest in the operations of sections 4 and 10 and such other persons as the Scottish Ministers consider appropriate.
133.Under subsection (5), a report on each review must be laid before the Scottish Parliament and published.
134.Subsection (6) requires that a report must set out the action (if any) that the Scottish Ministers intend to take as a result of the review. This could be proposing a change to the law but could also include, for example, issuing guidance. If the Scottish Ministers do not intend to take any action, the report must set out their reasons for this.
