A wildlife case where the law fell short

Snare set in woodland for roe deer

Snare set in woodland for roe deer

Wildlife law in Scotland is probably the best in Europe and has been subject to many updates and improvements, especially since 2002. I was reflecting on this today and a case came to mind where the law fell short. The case related to an investigation into fox snares set in a wood near Coupar Angus in Perthshire. Some were set at a height clearly aimed at catching roe deer, while others were at a height for foxes or possibly even badgers. With the use of a paste that shows up under ultra-violet light we caught the three men involved, who pled not guilty and went to trial at Perth Sheriff Court. The whole investigation, which took place around 2003, is told in my first book, Wildlife Detective.  The part relative to the failure of the law is as follows:

‘There are many stories about the good news and the bad news. The good news is always delivered first.

I had a telephone call from the procurator fiscal after the trial. The good news was that the men had been found guilty. Having heard that, I wondered how this could get worse rather than better. The charge was, ‘being two or more persons acting together, did without legal right or written permission from a person having such right, attempt to take deer by means of a snare, being a means otherwise than by shooting with the proper calibre of rifle and ammunition, Contrary to the Deer (Scotland) Act 1959, Section 24(a).’ The bad news? The sheriff clerk could find no penalty to pass to the sheriff in order that he could sentence the accused appropriately and legally. Did I know what the penalty was or where it could be found? The sheriff had deferred sentence for three days to enable the sheriff clerk to establish what the penalty was and where it could be found.

I hurriedly opened the Deer (Scotland) Act 1996. The Act had fairly recently been updated from the Deer (Scotland) Act 1959, which I knew well and from which I could quote sections. The new Act was less well known to me but shouldn’t be difficult to follow. I searched virtually line by line but no penalty was to be found in the new Act for a contravention of Section 24(a). The legislators had forgotten to include it. What an absolute disaster. It was difficult enough to get a conviction for any form of wildlife crime. Enforcing this type of crime was the biggest challenge of my career and the legal boffins had buggered it up. At least one of those involved deserved to go to jail and they were about to get off scot-free. At that point I thought that being a wildlife crime officer was the most frustrating job in policing, if not on planet Earth.

The three appeared for sentence after the three-day deferral. They didn’t get off scot-free after all – they had their snares forfeited!

Two improvements in law came from that case. I wrote to the (then) Scottish Executive and advised them of the faux-pas in relation to Section 24(a) of the Deer (Scotland) Act. They were sympathetic but told me that though on the face of it the remedy seemed simple, the amendment to correct the Act would need to be introduced via other legislation and this could take some time. The other aspect of the case that annoyed and frustrated me was the fact that circumstances existed in which someone could go on to land and set fox snares without authority and yet still with impunity from the legal process unless it could be shown that the snares were set for badgers.

I was at that time in a position to do something about this myself as I was on a working group of the Partnership for Action against Wildlife Crime (PAW) looking at improvements to wildlife law. The recommendation I put forward was that it should be an offence under the Wildlife and Countryside Act 1981 for an unauthorised person to set snares on any land.

In 2004, under the provisions of the Nature Conservation (Scotland) Act, both loopholes were closed. I was pleased that I played at least a small part in the forming of more effective legislation in Scotland’.

See Wildlife Detective and other books on this blog. If you would like a signed copy contact me on alanstewart164@btinternet.com

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