Regulation of certain wildlife traps
Existing law relating to killing and taking of wild birds and wild animals
26.Section 1(1)(a) of the 1981 Act provides that it is an offence to intentionally or recklessly kill, injure or take any wild bird(3). Section 2 of that Act provides exceptions to the offences in section 1 including killing or taking any wild bird outside the close season for that bird if you had a legal right or permission to do so. Section 5(1) prohibits certain methods of killing and taking wild birds: this includes traps.
27.In relation to wild animals(4), section 9(1) of the 1981 Act provides that it is an offence to intentionally or recklessly kill, injure or take any wild animal included in Schedule 5. Section 10 of the 1981 Act provides exceptions to the offences in section 9. Section 11(1) prohibits certain methods of killing and taking of any animal. Section 11(2) further prohibits certain methods of killing and taking certain wild animals included in schedule 6 or 6ZA. Among other things, section 11(2) makes it an offence to:
use a trap or snare for the purpose of killing or restraining any wild animals included in Schedule 6 or 6ZA, or
set in position any trap or snare of such a nature and so placed as to be likely to cause bodily injury to any such wild animal.
28.The 1981 Act provides exceptions to these offences when the killing or taking is done under the authority of a licence under section 16.
In relation to wild birds, section 16(1) exempts from section 1 and 5 anything done in accordance with a licence granted under that section. The reasons for which a licence can be granted are listed in section 16(1)(a) to (k). Licences under section 16(1) can be issued for the live trapping of wild birds if they comply with sections 16(5A) and (6). Section 16(5A) provides that a licence under section 16(1) which authorises any action in respect of a wild bird must specify the species of bird and the circumstances and the conditions to which the action may be taken. It must also specify the methods, means or arrangements authorised or required. Section 16(6) provides that a licence under (2) or (3) which authorises a person to kill wild birds or animals must specify the areas within which and the methods by which the wild birds or wild animals may be killed.
In relation to wild animals, section 16(3) of the 1981 Act exempts from sections 9, 10A, 11C, and 11G of that Act (provisions relating to the intentional killing, taking or injuring of a wild animal) when this is done in accordance with a licence granted under that section. The reasons for which a licence can be granted are listed in section 16(3)(a) to (i). This is subject to the other provisions of that section; for example subsections (3ZA) to (3ZI) make further provision in relation to animals listed in Schedule 6ZA in order to comply with Agreement on International Humane Trapping Standards (AIHTS).
29.In addition to the 1981 Act, sections 50 and 50A of the Agriculture (Scotland) Act 1948 contain further controls on the use of traps to kill or take animals. Section 50, among other things, prohibits the use of a spring trap other than an approved trap (which are provided for in the Spring Traps Approval Order 2011). Section 50A makes it an offence for the purpose of killing or taking hares or rabbits to use a spring trap elsewhere than in a rabbit hole.
Section 7—Wildlife traps
30.This section inserts sections 12A to 12G into the 1981 Act and creates a licensing regime intended to cover the use of certain traps used for the killing or taking of wild birds or wild animals. This is in addition to the licensing requirements under section 16 of that Act.
31.Section 16 of the 1981 Act enables the Scottish Ministers (or their delegate) to grant licences for certain purposes. It exempts the licence holder from certain provisions of the 1981 Act. For example, a licence granted under section 16(1) for the purpose of scientific, research or educational purposes, will protect the licence holder from liability to an offence under sections 1 (protection of wild birds, their nests and eggs), 5 (prohibition of certain methods of killing or taking wild birds), 6(3) (sale etc. of live or dead wild birds, eggs etc.), 7 (registration etc. of certain captive birds) and 8 (protection of captive birds) so long as the licence holder acts in accordance with the terms of the licence.
32.The net result of the inserted sections 12A to 12G is that if a section 16 licence holder wishes to use a trap to which new section 12A applies, they will also need a wildlife trap licence granted under new section 12C. Depending on the circumstances, a section 16 licence may not be required but a wildlife trap licence will be, for example a person can use a spring trap on a species that does not require a section 16 licence but they will require a wildlife trap licence.
33.Inserted section 12A makes it an offence for a person to use a trap to which the section applies without having a wildlife trap licence. These traps are listed in subsection (2), which is modifiable by regulations, as a trap for the live capture of birds and a trap approved under section 50 of the Agriculture (Scotland) Act 1984 for the purpose of that section. Traps approved under that section are currently listed in the Spring Traps Approval (Scotland) Order 2011 (STAO) (as amended) for use in Scotland in specific circumstances. Traps for stoats must also comply with AIHTS. Per section 50(7) of the 1984 Act, spring traps of any description specified by order as being adapted solely for the destruction of rats, mice or other similar small ground animals do not apply to that section. Under the Small Ground Vermin Traps Order 1958 there is an exemption to the requirement to use traps under the STAO for traps which are used for rats, mice and moles. Therefore, a person using such a trap is not required to have a wildlife trap licence under section 12A.
34.Inserted section 12A(4) also requires a person to display the person’s wildlife trap licence number either directly on the trap or on a tag fitted to the trap. The person is also required to use and monitor the trap in accordance with an approved training course for such a trap. These requirements will depend on the type of trap in question, for example, in order to use one of the current General Licences for the live capture of certain wild birds, Scottish Natural Heritage requires that "all traps must be checked at least once every day at intervals of no more than 24 hours".
35.Inserted section 12A(6) makes it an offence to tamper with, disarm or destroy a trap to which that section applies, without a reasonable excuse. An example of a reasonable excuse would be if a person came across an injured animal trapped in a lawfully-set trap and they disarmed or destroyed the trap to free the injured animal, then the person does not commit an offence. Inserted section 12A(7) makes it an offence for a person to knowingly cause or permit another person to commit an offence under section 12A(6). In the example above, if another person was present and allowed the trap to be destroyed by the other person in order to free the injured animal, then neither person would commit an offence as the person who did the destroying had a reasonable excuse for doing so.
36.A person who uses a trap without a wildlife trap licence commits an offence under inserted section 12A(3). A person who fails to comply with inserted section 12A(4) also commits an offence (for example, they have a wildlife trap licence but do not use the trap in the correct manner). And a person who tampers, disarms or destroys a trap without a reasonable excuse, and a person who knowingly causes or permits another person to do so, also commit an offence. Section 7(6) provides that the penalty for these offences is, on summary conviction, imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both). A judge may choose to impose a lesser sentence depending on the circumstances of the case. The standard scale for fines is set out in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the Act’s introduction, level 5 on the standard scale was £5,000.
37.There may be instances where a person has complied with the requirements of inserted section 12A, but catch an unintended animal (for example, they lawfully set a trap to catch a weasel but unintentionally catch a badger). Inserted section 12A(8) provides a defence for this. The person must have set the trap to catch an animal that may have been lawfully killed or taken by those means, complied with the rest of the section and taken all reasonable steps to prevent another animal (other than an invertebrate) from being killed, taken or injured by the trap.
38.Inserted section 12B makes provision for the application process for a wildlife trap licence. Section 16A of the 1981 Act, as amended by this Act, allows the Scottish Ministers to delegate these functions to Scottish Natural Heritage. Among other things, when applying for a licence the person must provide any such information as the relevant authority may require, they must also provide evidence that they have completed an approved training course and pay a fee if required (and the relevant authority is required to publicise such information and fees that they require in the application process).
39.Inserted section 12C makes provision for the granting of a wildlife trap licence and the content of such a licence. Section 16A of the 1981 Act, as amended by this Act, allows these functions to be delegated to Scottish Natural Heritage. The relevant authority may grant the wildlife trap licence if the applicant has completed an approved training course in relation to the type of trap they wish to use, and if the relevant authority is satisfied that it is appropriate to grant the licence. Conditions may be attached to a wildlife trap licence, and breach of those conditions may lead to the modification, suspension or revocation of the licence. Such conditions could be specific to the type of trap being used, for example, any trap not in use must be immobilised and rendered incapable of use, or only one decoy bird may be used in the Larsen trap and it must be kept in a separate compartment. The conditions could also be more general for example, licence holders must submit an annual return of information relating to their trap use.
40.Inserted section 12D provides for the grounds for the modification, suspension and revocation of a wildlife trap licence and section 16A (as amended) allows these functions to be delegated to Scottish Natural Heritage. The relevant authority may modify a licence at any time. A person’s wildlife trap licence may be suspended or revoked if the person fails to comply with the licence conditions or if the relevant authority is satisfied that the licence holder has committed a relevant offence. Relevant offences are listed in subsection (5) and broadly cover offences relating to the use of traps to take or kill wild animals. Other wildlife offences that are not related to the use of wildlife traps, such as those in the Protection of Wild Mammals (Scotland) Act 2002, or in the Deer (Scotland) Act 1996 are not included in the list of relevant offences. The Scottish Ministers may by regulations modify the list of relevant offences (see inserted section 12G).
41.The relevant authority must also tell a person that their licence has been modified, suspended or revoked. If a person’s licence is suspended, then they are treated as not having that licence for the duration of the suspension (and therefore they may commit an offence if they continue to act as if they have a licence).
42.Inserted section 12E allows the relevant authority to approve training courses (see inserted sections 12A(4)(b) and 12C(1)(a)). The section allows the relevant authority to make provision such as determining training requirements, accrediting courses and trainers and the minimum criteria for the successful completion of courses. Section 16A of the 1981 Act (as amended) allows these functions to be delegated to Scottish Natural Heritage. However, the Scottish Ministers may, through regulations made under section 12G, make provision relating to approved training courses which Scottish Natural Heritage would need to comply with when exercising any delegated functions.
43.Inserted section 12F makes it an offence, without reasonable excuse, to possess or use a trap to which section 12A applies on land without the permission of the landowner or occupier. Section 7(6) provides that the penalty for those offences is on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both). A judge may choose to impose a lesser sentence depending on the circumstances of the case. The standard scale for fines is set out in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the Bill’s introduction, level 5 on the standard scale was £5,000.
44.Inserted section 12G gives the Scottish Ministers the powers to, by regulations subject to the affirmative procedure(5), make further provision in relation to wildlife traps to which inserted section 12A applies, how a licence number is to be displayed on a trap, the approved training courses, and the definition of “relevant offence”. The Scottish Ministers are required to, before making such regulations, consult Scottish Natural Heritage and such other persons who may be interested in or affected by wildlife trap licensing.
45.Section 7(3) amends section 16 the 1981 Act to disapply the need for the landowner or occupier’s authorisation (per inserted section 12F) so long as the person has a licence granted under section 16 of the 1981 Act for the purposes listed in paragraphs (a) to (k) (for example, for scientific, research or education purposes).
46.Section 7(4) amends section 16A of the 1981 Act to enable the Scottish Ministers to delegate their functions under inserted sections 12B (relating to wildlife trap licence applications), 12C (grant of wildlife trap licences), 12D (modifying, suspending and revoking wildlife trap licences) and 12E (relating to approved training courses) to Scottish Natural Heritage.
47.Section 7(5) amends section 17 of the 1981 Act to make it an offence to provide false statements when obtaining a wildlife trap licence. The penalty for this is, on summary conviction, imprisonment for a term not exceeding 6 months or a fine not exceeding level 5 on the standard scale (or both). A judge may choose to impose a lesser sentence depending on the circumstances of the case. The standard scale for fines is set out in section 225 of the Criminal Procedure (Scotland) Act 1995. At the time of the Act’s introduction, level 5 on the standard scale was £5,000.
48.Section 7(6) amends section 21 of the 1981 Act to prescribe penalties for sections 12A and 12F, as discussed above.
49.Section 7(7) provides for the parliamentary procedure for regulations under inserted sections 12A and 12G. These regulations are subject to the affirmative procedure.
50.Section 7(8) amends section 27 of the 1981 Act to provide for the key terms used in inserted sections 12A to 12G, namely “wildlife trap licence” and “wildlife trap licence number” to be defined for the purposes of the Part. These expressions are defined by reference to inserted section 12A(12).
Section 8—Penalties relating to use of spring traps
51.This section amends section 50 of the Agriculture (Scotland) Act 1948 to uprate the penalties for using a spring trap to—
on summary conviction, imprisonment for a term not exceeding 12 months or a fine not exceeding £40,000 (or both),
on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).
52.The amendment brings those penalties into line with other wildlife crime penalties that were increased by the Animals and Wildlife (Penalties, Powers, and Protections) Scotland Act 2020.
Section 27 of the 1981 Act defines “wild bird” as any bird of a species which is ordinarily resident in or is a visitor to the United Kingdom or any member State or the European territory of any member State in a wild state but does not include poultry.
Section 27 of the 1981 Act defines “wild animal” as any animal (other than a bird) which is or (before it was killed or taken) was living wild.
The affirmative procedure is defined by section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.Back [3]
