37Right of occupier or grazings committee to prevent damage by deer(1)

The 1996 Act is modified as follows.

(2)

In section 5A (code of practice on deer management), in subsection (2), after paragraph (c) insert—(ca)

make provision about the exercise of rights under sections 26 and 26ZA (and any regulations made under section 26ZB),

(3)

In section 17 (unlawful killing, taking and injuring of deer), after subsection (3) insert—(4)

Subject to sections 25 and 25A, any person who knowingly causes or permits another person to take or kill a deer on any land—

(a)

without permission from a person having the right to take or kill the deer, or

(b)

in circumstances to which section 26(1) or section 26ZA(1) do not apply,

is guilty of an offence.

(5)

It is a defence for a person charged with an offence under subsection (1) to show that the person reasonably believed that—

(a)

the taking or killing was permitted by a person having the right to take or kill deer on the land, or

(b)

section 26(1) or, as the case may be, section 26ZA(1) applied to the taking or killing of the deer on the land.

(4)

For section 26 (right of occupier in respect of deer causing damage to crops etc. on certain ground), substitute—

26Right of occupier to prevent damage by deer(1)

An occupier of any agricultural land or woodland, or a person mentioned in subsection (4) authorised in writing by the occupier, may take or kill, and sell or otherwise dispose of, any deer found on the land or woodland if the occupier has reasonable grounds to believe that the taking or killing of deer is necessary to prevent—

(a)

damage—

(i)

to agricultural production (including any crops or human or animal foodstuffs) on the land,

(ii)

to the woodland, or

(iii)

whether directly or indirectly, to the natural heritage or environment generally, or

(b)

injury to livestock kept on the land, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise.

(2)

Subsection (1) applies notwithstanding anything contained in any agreement between an occupier of the land or woodland and the owner.

(3)

Subsection (1) does not apply during any period fixed by order under section 5(1) (taking, killing or injuring deer in close season) in relation to the sex and species of the deer concerned.

(4)

The persons referred to in subsection (1) are—

(a)

the owner of the land or woodland,

(b)

the owner’s employees,

(c)

the occupier’s employees, or any other person normally resident, on the land,

(d)

any other person approved in writing by SNH as a fit and competent person to take or kill deer for the purpose referred to in subsection (1).

(5)

Any authorisation given by an occupier of land to take or kill deer expires—

(a)

at the end of such period as the occupier may specify in it,

(b)

in relation to a person mentioned in paragraphs (b) or (c) of subsection (4), the person ceases to be in the employment of the owner or, as the case may be, the occupier, or ceases to be normally resident on the land,

(c)

in relation to a person mentioned in paragraph (d) of that subsection, when the person ceases to be so approved, or

(d)

if the occupier revokes it.

26ZARight of grazings committee to prevent damage by deer(1)

A person authorised in writing by a grazings committee of any particular common grazing, and who meets the condition mentioned in subsection (3), may take or kill, and sell or otherwise dispose of, any deer found on the common grazing if the committee has reasonable grounds to believe that the taking or killing of deer is necessary to prevent—

(a)

damage—

(i)

to woodland forming part of the common grazing, or

(ii)

whether directly or indirectly, to the natural heritage or environment generally, or

(b)

injury to livestock kept on the common grazing, whether by serious overgrazing of pastures, competing with any such livestock for supplementary feeding, or otherwise.

(2)

Subsection (1) does not apply during any period fixed by order under section 5(1) (taking, killing or injuring deer in close season) in relation to the sex and species of the deer concerned.

(3)

The condition referred to in subsection (1) is that the person is approved in writing by SNH as a fit and competent person to take or kill deer for the purpose referred to in that subsection.

(4)

Any authorisation given by a grazings committee to a person to take or kill deer expires—

(a)

at the end of such period as the committee may specify in it, or

(b)

if the committee revokes it.

26ZBFurther provision about exercise of rights to prevent damage by deer(1)

The Scottish Ministers may by regulations make further provision in connection with the exercise of rights under section 26 and 26ZA.

(2)

Regulations under this section may, in particular—

(a)

require a person to take specific action (such as to give notice) before the rights may be exercised,

(b)

set out the consequences for failing to comply with any requirements set out in the regulations, which may include—

(i)

disapplying section 26(1) or 26ZA(1),

(ii)

creating offences and penalties in connection with such a failure.

(3)

Before making regulations under this section, the Scottish Ministers must consult such persons as they consider represent persons likely to be interested in or affected by the regulations.

(4)

The maximum penalties which may be imposed in respect of an offence created under the regulations are, on summary conviction, a fine of level 4 on the standard scale for each deer in respect of which the offence is committed or 3 months imprisonment or both.

(5)

Regulations under this section are subject to the affirmative procedure.

(5)

In section 42 (information to be supplied to owner of certain land), for “or 26(2)” substitute “, 26(4) or 26ZA(3)”.

(6)

In section 47 (orders, regulations etc.), in subsection (1), for “section 21(4)” substitute “sections 21(4) and 26ZB(1)”.

(7)

In schedule 3 (penalties), after the entry relating to section 17(3), insert—
17(4)
Knowingly causing or permitting a person to kill or take a deer without permission or in circumstances where it is not necessary to prevent damage
a fine of level 4 on the standard scale for each deer in respect of which the offence is committed or 3 months imprisonment or both
.