Part I Wildlife
Protection of other animals F1and prevention of poaching
10BF2Exceptions to s. 10A
1
A person is not guilty of an offence under section 10A(1) by reason of the killing of an animal included in Schedule 5A if he shows that the animal had been so seriously disabled otherwise than by his unlawful act that there was no reasonable chance of its recovering.
2
A person is not guilty of an offence under section 10A(1) by reason of taking any such animal if he shows that—
a
he had a legal right to take such an animal or permission, from a person who had a right to give permission, to take such an animal; and
b
the animal—
i
had been disabled otherwise than by his unlawful act; and
ii
was taken solely for the purpose of tending it and releasing it when no longer disabled.
3
An authorised person is not guilty of an offence under section 10A(1) by reason of the killing or injuring of an animal included in Schedule 5A if he shows that his action was necessary for the purpose of preventing serious damage to livestock, foodstuffs for livestock, crops, vegetables, fruit, growing timber or any other form of property or to fisheries.
4
An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action if––
a
it had become apparent, before the action was taken, that it would prove necessary for the purpose mentioned in that subsection; and
b
either—
i
a licence under section 16 authorising the action had not been applied for as soon as reasonably practicable after that fact had become apparent; or
ii
an application for such a licence had been determined.
5
An authorised person is not entitled to rely on the defence provided by subsection (3) as respects any action unless he notified the appropriate authority as soon as reasonably practicable after the action was taken that he had taken it.
6
In subsection (5), “the appropriate authority” has the same meaning as in section 16(9).
7
Nothing in section 10A makes unlawful—
a
anything done in pursuance of a requirement by the Scottish Ministers under section 39 of the Agriculture (Scotland) Act 1948; or
b
anything done under, or in pursuance of an order made under, the Animal Health Act 1981.
Words in Pt. I cross-heading added (S.) (29.6.2011) by Wildlife and Natural Environment (Scotland) Act 2011 (asp 6), ss. 7(2), 43(1) (with s. 41(1)); S.S.I. 2011/279, art. 2(1)(e)