Gas guns and hen harriers – some thoughts

Typical hen harrier habitat

Typical hen harrier habitat

Hen harrier nest and eggs

Hen harrier nest and eggs

I heard recently about the use of gas guns on grouse moor, allegedly used to prevent hen harriers from settling and nesting. I’ve never heard of the use of gas guns other than on agricultural land and if they are used on grouse moors I can’t think of a legitimate purpose for them. So if indeed they are being used to get rid of harriers what does the law in Scotland say about this?

The first option, if an offence is being committed, may come under Section 1(1)(bb) of the Wildlife and Countryside Act 1981 as amended.

1.- (1)  Subject to the provisions of this Part, if any person intentionally or recklessly–

(bb) obstructs or prevents any wild bird from using its nest

he shall be guilty of an offence.

To prove this there would firstly need to be evidence that a hen harrier nest was present or being built.  It is highly likely that this would need to be ascertained by observations before the use of the gas gun begins, since the birds would be scared off by the continual banging. The presence or building of a nest would also need corroboration as would the fact that the bird was prevented from using or returning to the nest by the user of the banger. None of this would be unduly difficult to prove but the crunch comes in identifying the person responsible for the use of the gas gun and proving that he (or she?) used it to intentionally or recklessly prevent the harrier from returning.

Since the hen harrier is a bird included in Schedule 1 to the Wildlife and Countryside Act, almost the same elements of proof are required under Section 1(5)(a) of the Act, which reads –

(5)          Subject to the provisions of this Part, if any person intentionally or recklessly–

(a)          disturbs any wild bird included in Schedule 1 while it is building a nest or is in, on or near a nest containing eggs or young; or

 he shall be guilty of an offence.

Lastly, the police may consider Section 1(5B) of the Act, which reads –

(5B)        Subject to the provisions of this Part, any person who intentionally or recklessly harasses any wild bird included in Schedule 1A shall be guilty of an offence.

Since the hen harrier is included in Schedule 1A to the Act, this section may be of use if there is no evidence that the hen harrier has begun nesting but there is evidence that a male has been displaying in the immediate area.

Much of the evidence will of necessity be from persons who have considerable knowledge of hen harrier ecology, most likely from RSPB, SNH or raptor study groups. These folks should be able to convince a court that the bird at issue is indeed a hen harrier and can give evidence relating to the displaying, mating, nesting and breeding of this species.

So how can it be proved that the person using the gas gun is doing so with intent to dissuade harriers from nesting successfully?  If the person involved is a gamekeeper, as is most likely on a grouse moor, there is no doubt that he (or she) will have a good knowledge of the places that harriers like to nest, such as in long heather on sloping land running up from a hill burn. He will have experience from previous years and will most likely have watched a displaying male. Telling this to a court will certainly not be enough to secure a conviction; it must be proved beyond reasonable doubt.

The only way I think this is possible is for experts such as those mentioned who become aware of a displaying male harrier, a nest being built or a completed nest on land where a gas gun has been used in the past to contact their local police wildlife crime officer and discuss the situation. The officer may consider approaching the gamekeeper for – and indeed the owner, factor or headkeeper of – the estate (bearing in mind the offences of knowingly causing or permitting and vicarious liability) and advising him of the harrier or nest presence, and that the use of a gas gun nearby is likely to lead to a report to the procurator fiscal. At the least this will be a crime prevention measure.

Cynics may think that this will alert the gamekeeper to the presence of the harriers. The gamekeeper is on the land every day of the year and it will be extremely unusual if he is not already aware of the birds. If after a police warning or advice a gas gun is deployed and the harriers are adversely affected then at the very least a charge entailing a reckless act may be relevant. If the gas gun is already in use the damage will probably have been done and the warning to the estate may well only be effective for the following year or possibly a re-lay.

Codes of conduct from statutory authorities may assist, but it is not easy to prove that a suspect has read and understood this guidance or advice.

A difficult situation but one for early liaison between bird experts and police wildlife crime officers.

 

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