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.
