Report By Fiona Grahame

The Scottish Government has announced that it will introduce new legislation to further protect foxes and other wild mammals. The Scottish Government intend to limit the number of dogs  involved to flush out or find a fox to 2. However – they are exploring the idea that this could be increased to more than 2 under license for ‘pest control’.

Mairi Gougeon, Minister for Rural Affairs in the Scottish Government said:

“The welfare of animals in Scotland, whether domestic, farmed, or wild, is one of this government’s highest priorities and so, when it became apparent that legislation introduced in 2002 to protect foxes from unnecessary hunting wasn’t having the desired effect, we wanted to take firm action.”

Is this firm action?

It was way back in 2002 that the Scottish Parliament passed the Protection of Wild Mammals (Scotland) Act:

“An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs”

At the time some people thought that this would be the end of  hunting with dogs and in particular fox hunting. But that is not what has happened. It soon became clear that there were  ‘loopholes’ in the legislation and the hunting fraternity soon found their way round them.

It became an offence for a person to deliberately hunt a wild mammal with a dog, or to allow their land or their dog to be used for that purpose.

And that seemed very straightforward – however, the Act also included exceptions. Exceptions are where there is always space for manoeuvre for anyone who wishes to find a way round legislation.

Exceptions

Stalking and Flushing From Cover

This is allowed, with dogs, if the wild mammal is shot or killed once it has been found. You can do this for the following reasons:

• protecting livestock, ground-nesting birds, timber, fowl (including wild fowl), game birds or crops from attack by wild mammals
• providing food for consumption by a living creature, including a person
• protecting human health
• preventing the spread of disease
• controlling the number of a pest species
• controlling the number of a particular species to safeguard the welfare of that species

That’s quite a comprehensive list of reasons allowing a person to legally ‘flush’ out a wild mammal with dogs to be killed. It is very important that the dog does not kill the, by now, extremely frightened wild mammal in this process. That must be done by  either a person shooting the wild creature  or a bird of prey can also be used for this purpose. Also important in all of this is that the dog is not injured either.

Another exception:  use of a dog in connection with falconry and shooting

This is basically the same as the rules for the above and “where a wild mammal is shot and injured, that person takes all reasonable steps to retrieve it and, once retrieved, to kill it as humanely as possible.” 

And another exception:  search by authorised person

This one refers to using a dog with the intention of catching a wild mammal but without harming it

And another:  retrieval and location

This one means you can use a dog to retrieve a hare which has been shot. And within this category it has ‘sub’ exceptions. So you can used a dog to retrieve and locate foxes, hares, deer, boar, mink and a mammal which has been ” raised or released for the purpose of being hunted.”

And within this section you can also use a dog to go underground for a fox which a person ‘reasonably believes‘ to be orphaned – and then it can be killed by a dog so long as only one dog does the killing.

It is the nature of these activities that they take place in areas which are not particularly public so it is not unreasonable to suppose that it is difficult to ‘police’ them. If a person does get caught using a dog to hunt a wild mammal – not covered by the extensive range of exceptions – then the penalty is potentially a  6 months imprisonment or a fine. A convicted person might also lose the right to own a dog.

There are other offences which are classed as wildlife crime but this article will concentrate on those involving hunting with dogs. But for information here are the stats for wildlife crime recorded by  Police Scotland just to give you a fuller picture.

Hunting with Dogs

Looking across Scotland in 2016/17 the only places this crime was recorded by Police Scotland was as follows:

• North East 3
• Dumfries and Galloway 4
• Fife 1
• Renfrewshire and Inverclyde 1
• Tayside 3
• Lothians and Scottish Borders 10
• Total 22

The are no recorded crimes for hunting with dogs in Argyll & West Dumbartonshire, Ayrshire, Edinburgh, Forth Valley, Greater Glasgow, Highlands and Islands and Lanarkshire.

Not all of the offences recorded by Police Scotland went on to the Crown Office and Procurator Fiscal’s Service (COPFS)  who actually have a Wildlife and Environmental Crime Unit (WECU).

Over a Five year Period

From 2012 – 2017 – out of the 147 cases recorded by the Police , 50 cases  went onto COPFS. And of that only 24  were prosecuted and 17 of those were convicted.

Over the last 5 years the conviction rate for the offence of ‘Hunting with Dogs” is only 69%. Mainly fines were imposed averaging £393. Over that same period less than 5 cases recorded by Police Scotland relating to fox hunting were reported to COPFS but all were prosecuted.

2016 – 2017

In 2016/17 the total number of cases for Hunting with Dogs out of the 22 recorded 7 were referred to COPFS and  all were allegations  of hare coursing. There were 3 cases recorded by the Police related to fox hunting but these were not referred to COPFS.

Examples

“An individual was fined £5,000 for hare coursing in contravention of the Protection of Wild Mammals (Scotland) Act 2002. They were also disqualified from having custody of any dog for five years. Two others were involved and fined £1,200 and £600 respectively.”

“An individual killed three rabbits by “lamping” i.e. shining a torch on them and causing dogs to pursue and kill them. The Sheriff imposed a community payback order with a requirement to carry out 40 hours unpaid work.”

You can find more information here: Wildlife Crime in Scotland 2017 Annual Report

Review of the Act

Those figures suggest that something is wrong with the workings of the Protection of Wild Mammals (Scotland) Act. It was because of this and through much public pressure that Rt Hon Lord Bonomy was appointed to review the working of the Act in 2016.

You can read the Bonomy report here: Report of the Review of the Protection of Wild Mammals (Scotland) Act 2002

“Whatever the outcome of this Review, wild mammals will continue to be killed for pest control and other reasons. “

The review concentrated largely on the use of dogs in the hunting of foxes.

Conclusions of the Review

1. there are aspects and features of the legislation which complicate unduly the detection, investigation and prosecution of alleged offences
2. there is a basis for suspecting that there may be occasions when hunting, which does not fall within one of the exceptions, does take place and that the grounds for that suspicion should be addressed

The Review reported that the Act had made hardly any difference to the number of  mounted hunts in Scotland. In 2002 there were 10 , today there are 9. There are also mounted hunts which cross the border from England and sometimes pursue their activities  in Scotland. One hunt, The Liddesdale, no longer uses horses but hunts using motorbikes, quad bikes and foot. And some of the others also hunt by foot.

“the way in which some mounted hunts now operate in Scotland and the practice by mounted hunts of trail hunting in England and Wales have both given rise to suspicion that organised mounted hunts have continued to hunt foxes with a pack of hounds in contravention of the legislation. “

In addition to this there are “ packs of hounds of varying sizes privately owned by individual owners who are engaged by farmers and landowners for pest control purposes.”

There are no firm numbers of how many foxes are killed by these packs for whatever reason given.  The returns submitted by one organisation, the Scottish Hill Packs Fox Control Association, for 2015 are 717 foxes and 685 cubs killed. The member groups receive financial support for killing foxes (mostly by shooting) as pest control for the period 1st February to 30th June to protect lambs.

The Report had difficulty in drawing any conclusions about the effectiveness of the Act in relation to the mounted hunting of foxes because “no one has been convicted in the 14 years of the operation of the Act” for that offence.

The Bonomy Report wants to see effective monitoring of hunting activities possibly by an agency of the Scottish Government and this would be in particular reference to mounted hunts. Mounted hunts should also keep Police Scotland informed of where and when they will be taking place and recording what took place i.e. number of guns used, shots fired, foxes roused and foxes killed by guns. Currently this does not happen with all mounted hunts in Scotland.

The Report also wants to see all the many exceptions currently in the Act tightened up. It is the difficulty in having evidence to actually prove an offence has been committed that presents so many problems to Police Scotland.

Police Scotland stated  that the legislation “has become somewhat unworkable due to the exceptions available, the lack of clarity over key terminology and the lack of individual accountability.”

Police Scotland pointed out that many hunts only have 2 guns present which results in the fox not being shot and despatched quickly as the Act intended but stalked.

Mairi Gougeon said:

“I’m pleased to say that we will be taking forward many of the recommendations in Lord Bonomy’s report to clarify and strengthen the Protection of Wild Mammals Act.

“However, not only do we hope to implement the vast majority of those recommendations, we will be going further. We’re going to strengthen our current legislation and plan to introduce measures that go beyond the rest of the UK in terms of protecting the welfare of our wild mammals.”

It will be interesting to see what the Scottish Government brings forward to strengthen the Act which as it stands is clearly failing to protect not just foxes but all wild mammals.

“Boggis and Bunce and Bean
One fat, one short, one lean.
These horrible crooks
So different in looks
Were nonetheless equally mean.”
– Roald Dahl, Fantastic Mr. Fox