In this article, Jamie Yule discusses the recently approved Hunting with Dogs (Scotland) Bill which will soon replace The Protection of Wild Mammals (Scotland) Act 2002. While further limits on fox-hunting will not come as a shock to many, landowners may be surprised at the fairly strict requirements contained in the Bill to ensure that illegal hunting is not taking place on their land.

Hunting with Dogs

The Protection of Wild Mammals (Scotland) Act 2002 sought to prohibit deliberate hunting of wild mammals, primarily foxes, with dogs. Nearly 20 years after its introduction, the Act will soon be replaced by the Hunting with Dogs (Scotland) Bill, approved by the Scottish Parliament on 24 January 2023 and expected to formally become law in the following months.

The 2002 Act outlawed the hunting of mammals with dogs, other than in very limited circumstances. Offences were introduced in the 2002 Act for hunts outside of those circumstances, not only for those participating in the hunt itself, but also for landowners permitting any illegal hunts to take place on their land.

The Bill, once formally approved, will maintain these offences, but will further limit the circumstances in which fox-hunting is allowed. Hunting with dogs will now only be allowed for preventing serious damage to livestock, woodland or crops, preventing the spread of disease, or protecting human health. Any hunt taking place for one of the permitted purposes may only be undertaken using a maximum of two dogs. Those needing to hunt with more than two dogs must apply for a licence to do so, with licences only to be granted in very specific circumstances.

While further limits on fox-hunting will not come as a shock to many, landowners may be surprised at the fairly strict requirements contained in the Bill to ensure that illegal hunting is not taking place on their land.

Vicarious liability

Landowners should continue to ensure that they understand their obligations towards protection of wildlife. There are two specific pieces of legislation that are worth considering.

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 came into force on 21 July 2020. It increased the sentences for the most serious wildlife crimes, such as those involving the injuring or the unlicensed killing or taking of wild birds, to five years’ imprisonment and/or an unlimited fine. For certain lesser offences, such as keeping unregistered and unmarked wild birds, or keeping birds in cages of insufficient size, the maximum penalty increased to a £40,000 fine and/or imprisonment for 12 months.

The Hunting with Dogs (Scotland) Bill introduces comparable sentences. On conviction, those committing lesser offences may be sentenced with up to 12 months’ imprisonment and/or a fine of up to £40,000. More serious offences may be punished with up to 5 years’ imprisonment and/or a fine (there is no limit on the fine that may be imposed for more serious offences). Sentencing guidance as to what constitutes either a lesser or more serious offence is expected to be developed in the coming months.

These penalties apply not only to the person committing the offence but can also apply to the person found to be vicariously liable for the offence having been committed. That is to say that liability is imposed on landowners for the wrongdoings of persons hunting on their land.

A landowner is a person who manages or controls that land or is authorised to give permission for land to be used for hunting. That individual may be found guilty of a criminal offence if it can be shown that they knowingly caused or permitted a person to hunt a wild mammal using a dog on their land, unless it can be shown that they had a reasonable belief that one of the statutory exceptions applied (for example, the killing of a wild mammal where it is necessary for preventing serious damage to livestock).

What can a landowner do?

Landowners must take a proactive and preventative approach towards ensuring that criminal offences do not take place on their land, such as undertaking all reasonable steps and exercising all due diligence to avoid potential vicarious liability offences (and the significant criminal penalties). While there have only been two successful prosecutions under the vicarious liability rules (these decisions were unreported, but commentary was published by the RSPB in 2019), the seriousness of potential sentences available are cause for concern and landowners should ensure that they are familiar with their obligations under Scottish wildlife law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.