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).
