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Hunting with Dogs (Scotland) Act 2023

Part 3: Further provision relating to offences

Section 17: Search of a person without warrant

161.Section 17 allows a constable who has reasonable grounds for suspecting that a person has committed or is committing an offence to search that person without warrant and to detain the person in order for the search to be carried out. The constable may also search or examine any thing found, if the constable has reasonable grounds for suspecting that evidence of the commission of the offence is to be found in or on it. For example, if a constable had reasonable grounds for suspecting that a person had been hare coursing, the constable could search a bag for equipment such as lights or examine a mobile phone for footage. The constable may also retain any thing found which may be relevant as evidence.

Section 18: Powers of enforcement

162.Section 18 introduces the schedule, which makes provision about the powers of constables. A constable is defined by section 27 as having the meaning given by section 99(1) of the Police and Fire Reform (Scotland) Act 2012.

Section 19: Time limit for summary proceedings

163.Section 136 of the Criminal Procedure (Scotland) Act 1995 sets out the time limit which applies to bringing proceedings for a statutory offence which may only be tried summarily, unless otherwise provided for. Section 19 extends this time limit for offences under section 2(1) and (2) and section 14(1), (3) and (4). The time limit is 6 months from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge, up to a maximum period of 3 years after the commission of the offence (or the last date on which the offence was committed).

Section 20: Individual culpability where organisation commits an offence

164.Section 20 provides that where an organisation commits an offence, and the commission of the offence involves consent or connivance by a responsible individual or is attributable to neglect by a responsible individual, the individual as well as the organisation commits the offence.

165.Subsection (3) and the table in subsection (4) set out who will be a responsible individual with respect to different types of organisation.

Section 21: Deprivation orders

166.Section 21 provides that a deprivation order may be made where a person is convicted of an offence under section 1(1) (hunting a wild mammal using a dog), 2(2) (knowingly causing or permitting another person to hunt a wild mammal using a dog for which the person is responsible), 14(1) (engaging or participating in trail hunting), 14(4) (knowingly causing or permitting another person to use a dog for which the person is responsible for trail hunting) or 22(10) (owning or keeping a dog in breach of a disqualification order). The deprivation order may be made in respect of any dog or horse used in or present at the commission of the offence.

167.Subsection (2) provides that a deprivation order is an order which deprives a person of possession or ownership of a dog or horse and orders the destruction, sale or other disposal of the animal.

168.Under subsection (3) the destruction of a dog or a horse may only be ordered if the court is satisfied on evidence by a veterinary surgeon that it would be in the interests of the animal. For example, this might be the case where the animal was in a very poor state of health. A veterinary surgeon does not necessarily require to attend the court in person but can provide evidence via alternative methods (such as video link, teleconferencing or in writing).

169.The court must also consider the need to ensure the welfare of the dog or horse before making a deprivation order other than one involving destruction. This recognises that a dog or horse used in unlawful hunting may not itself have been poorly treated and that a deprivation order may negatively affect its welfare. However, it is still open to the court to decide that other factors outweigh the welfare of the dog or horse and mean that a deprivation order should be made.

170.Under subsection (4), if the court decides not to make a deprivation order, it must state its reasons unless it makes a disqualification order under section 22.

171.Subsection (5) provides that a deprivation order may be made in addition to or instead of any other penalty for the offence.

172.Subsection (6) allows the court to make provision in respect of any dependent offspring of the dog or horse.

173.Subsections (7) and (8) make further provision as to what can be included in a deprivation order. This includes provision for appointing someone to carry out the deprivation order, requiring delivery of relevant animals, conferring powers of entry on the person appointed to carry out the order and such other provision as the court considers appropriate, including reimbursement of expenses incurred in carrying out the order or for the care of the animal if it was seized by a constable under the powers included in the schedule.

174.Subsection (9) provides that the owner of the dog or horse (who may not be the person convicted of the offence) must be given the opportunity to make representations unless this is not practicable. This will allow the owner to put forward any arguments as to why a deprivation order should not be made.

Section 22: Disqualification orders

175.Section 22 provides that a disqualification order may be made where a person is convicted of an offence under section 1(1) (hunting a wild mammal using a dog), 2(2) (knowingly causing or permitting another person to hunt a wild mammal using a dog for which the person is responsible), 14(1) (engaging or participating in trail hunting), 14(4) (knowingly causing or permitting another person to use a dog for which the person is responsible for trail hunting) or subsection (10) (breaching a disqualification order).

176.Subsections (2) and (3) set out the nature of the disqualifications which may be imposed, and subsection (4) provides that a person may nevertheless take charge of a dog if it is necessary to alleviate the suffering of the dog.

177.Subsection (5) provides that if the court decides to make a disqualification order in relation to a person’s first conviction for a relevant offence, or not to make a disqualification order, it must state its reasons.

178.Subsection (6) provides that a disqualification order may be made in addition to any other penalty.

179.Subsection (7) allows the court to disqualify a person from keeping more than a certain number of dogs, or dogs of a specified kind, rather than disqualifying them from keeping dogs altogether. For example, the court could disqualify a person from owning or keeping foxhounds but allow them to keep a poodle as a family pet.

180.Subsection (8)(b) allows the court to specify the length of time which must pass before the person who is the subject of a disqualification order may apply to have it terminated or varied.

181.Subsection (9) allows the court to suspend the operation of the disqualification order to enable practical arrangements to be made for the dogs affected or for the period while an appeal may take place.

182.Subsection (10) makes it an offence to breach a disqualification order, and subsection (11) sets out the penalties for such breach.

183.Subsection (12) provides that where a disqualification order restricting the number of dogs that a person may own or keep is breached, all of the dogs that the person owns or keeps are to be treated for certain purposes as being owned/kept in breach of the order. This provision is necessary for the proper operation of any subsequent seizure orders under section 23. Without such a provision, disputes could arise as to which particular dogs are kept in breach of the order.

Section 23: Seizure orders where disqualification breached

184.Section 23(1) allows the court to order that a dog kept in breach of a disqualification order is seized on the application of a constable or prosecutor, even if proceedings have not been brought for an offence under section 22(10).

185.Subsection (3) provides that a seizure order is an order which deprives a person of possession or ownership of a dog and orders the destruction, sale or other disposal of the dog.

186.Under subsection (4) the destruction of a dog may only be ordered if the court is satisfied on evidence by a veterinary surgeon that it would be in the interests of the dog. For example, this might be the case where the dog was in a very poor state of health. A veterinary surgeon does not necessarily require to attend the court in person but can provide evidence via alternative methods (such as video link, teleconferencing or in writing).

187.The court must also consider the need to ensure the welfare of the dog before making a seizure order other than one involving destruction. This recognises that a dog which has been owned or kept in breach of a disqualification order may not itself have been poorly treated and that a seizure order may negatively affect its welfare. However, it is still open to the court to decide that other factors outweigh the welfare of the dog and mean that a seizure order should be made.

188.Subsections (5) and (6) make further provision as to what can be included in a seizure order. This includes provision for appointing someone to carry out the seizure order, requiring delivery of relevant dogs, conferring powers of entry on the person appointed to carry out the order and such other provision as the court considers appropriate, including reimbursement of expenses incurred in carrying out the order or for the care of the dog if it was seized by a constable under the powers included in the schedule.

189.Subsection (7) gives the owner of the dog the opportunity to make representations, unless this is not practicable. The owner of the dog may not be the person who has breached the disqualification order and this provision will allow the owner to put forward any arguments as to why a seizure order should not be made.

190.Subsection (8) requires the court to consider the desirability of protecting the value of any dog to which the order applies, and avoiding increasing expenses which a person may be required to reimburse.

191.Subsection (9) provides for the making of an interim order pending the final determination of a seizure order. The court may make an interim order in relation to the keeping of a dog before the application for a seizure order is determined and which has effect until such time as the application and any appeal is determined. Subsection (10) provides that subsections (5), (6)(a) and (8), which relate to seizure orders, also apply to interim orders.

Section 24: Termination or variation of disqualification

192.Subsection (1) allows a person who is subject to a disqualification order to ask the court to terminate or vary the order. However, under subsection (2) such an application may not be made within the period of one year from the date the order was made or the date a previous application under this section was determined, or within a period specified by the court when making the order or (under subsection (5)) when determining an application under this section.

193.Subsection (3) allows the court to refuse the application, terminate the disqualification order or vary the disqualification order by relaxing the disqualification. The court cannot impose a more extensive disqualification in response to an application under this section.

194.Subsection (4) sets out factors to which the court must have particular regard.

Section 25: Appeals against orders

195.This section makes provision for appeals against orders made under sections 21, 22 and 23.

196.Subsection (1) provides that when a deprivation or disqualification order is imposed it is to be treated for the purposes of any appeal as part of the convicted person’s sentence. Any appeal will follow the appeal procedure set out in the Criminal Procedure (Scotland) Act 1995 for appeals against sentence.

197.Subsection (2) allows any other person with an interest in a dog or horse to which a deprivation order applies to appeal to the Sheriff Appeal Court on the same basis.

198.In relation to a seizure order, the disqualified person or any person who entered the process prior to the making of the order may appeal to the Sheriff Appeal Court by virtue of subsection (3).

199.Subsection (4) suspends the operation of any deprivation or seizure order until the periods for appeal against the order and conviction have expired and any appeal has been withdrawn or determined.

200.Subsection (5) allows the court to make an interim order where a deprivation or seizure order is suspended under subsection (4), or where it cannot be carried out because decree has not been extracted, and subsection (6) gives examples of what may be included in an interim order.

201.Subsection (7) requires the court to consider the desirability of protecting the value of any dog or horse to which the interim order applies, and avoiding increasing expenses which a person may be required to reimburse.

202.Subsection (8) provides if the operation of a deprivation order is suspended, a person commits an offence if they sell or otherwise part with a dog or horse to which the deprivation order applies.

203.Subsection (9) sets out the penalties for an offence under subsection (8).

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