I have just finished reading the excellent paper on possible increases in penalties for wildlife crime. There are ten recommendations and I wrote my comments on the first two recommendations before reading the body of the report. I am pleased that many of my points are in accord with the contents of the paper:
Levels of fines and custodial sentences
- That maximum penalties available on summary conviction at least for the more serious offences, are raised to at least a £40,000 fine and up to 12 months imprisonment. That conviction on indictment is more commonly made available across the range of wildlife offences with a maximum term of imprisonment of up to 5 years. This would not necessarily require a stand-alone Act but could be achieved as part of the next Criminal Justice or Criminal Proceedings Act.
* In most cases the current penalties for wildlife crime are sufficient. However I agree with this recommendation that the availability of higher penalties suggested is required; indeed as in keeping with some of the wildlife legislation the monetary penalty could also be in addition to any period of imprisonment imposed. I note in the conclusions part of the document that tougher penalties would be appropriate where the offence is committed for commercial gain. The inference is slanted towards commercial operations involving bats and badgers but it is nowhere more relevant than the killing of protected wildlife to increase bags of game birds, particularly driven grouse.
Despite the excellence of this report, it is important to understand that penalties are only part of the deterrent; the main factor in preventing crime is the risk of being caught. This was clearly seen under Operation Easter, the operation targeting wild bird egg thieves run by the former Tayside Police (then latterly NWCU) and involving RSPB Investigations and every police force in the UK. Many egg thieves were caught and this crime began to diminish even before the option of imprisonment became available to the courts (in England and Wales in 2000 and in Scotland in 2003).
But there are some wildlife crimes where the risk of being caught is minimal. A prime example is the killing of protected species on grouse moors. Despite available penalties involving imprisonment, vicarious liability and in some cases withdrawal of single farm payment and the forfeiture of the right to use general licences (though these last two are not court options) this crime has not gone away. A catalogue of recoveries of poisoned, shot and trapped birds of prey over the years is testament to the fact that some involved in the driven grouse industry simply cock a snook at the law. This is where (and I have written about this before) there needs to be another option outside of the prosecution route. The deterrent – or punishment – must lie in a withdrawal of the privilege of taking game. The options would be licensing of shoots and the withdrawal of such a licence, or a complete ban on driven grouse shooting, for which a convincing argument is set out in Mark Avery’s book Inglorious.
Better use of the Proceeds of Crime legislation (Recommendation 7) would also be an important factor in punishment, though it is not easy putting a value on the additional profit made by the commission of certain crimes. More regular forfeiture of items used in the commission of a crime could be effective both as a punishment and a deterrent, such as dogs, guns and vehicles. There are undoubtedly problems associated with the keeping of dogs and vehicles until court proceedings are concluded but nothing that is insurmountable given the will and availability of funding.
Use of impact statements
- That the use of conservation/ecological impact statements and animal welfare impact statements is put on a more systematic basis than at present. This might initially be done on an administrative basis with the prosecution seeking these as a matter of course and where appropriate, from either SNH in the former case, or a vet in the latter case.
* Impact statements are hugely important to allow the prosecution and bench, none of whom are likely to be conservationists or wildlife experts, to fully understand the effect the crime has had on the relevant wildlife, or the commercial value of the offence. SHN staff and vets are mentioned but there are many more experts in various fields (I once had an expert in sand martins cited to appear as a court witness. His expertise was such that the accused changed his plea to guilty before the start of the trial. A bryologist from the Royal Botanic Garden in Edinburgh was used in a case involving the commercial taking of moss, an entomologist from Stirling University was used to age maggots in an illegal badger snaring case and many more experts have been used or are available. I would suggest that a library of impact statements and relevant experts be built up and held by NWCU, who had already started this process when I worked there.
The remainder of the recommendations, on which I have not commented, are:
- That this requirement is put on a legislative footing along the lines of the requirement for courts to consider victim statements before sentencing in other areas of criminal law where such statements are made available to the court and also providing the court with a power to order the preparation of such a statement from a relevant regulatory agency before it passes sentence.
- That forfeiture provisions are extended and these and other alternative penalties are made consistent across the range of wildlife legislation as appropriate.
- That where a firearm or shotgun is involved in the commission of a wildlife crime, the court should have the power to cancel the relevant certificate as is already the case in the Deer (Scotland) Act 1996.
- That consideration should be given to amending firearms legislation which is reserved to the UK Parliament to allow the Chief Constable to withdraw a shotgun certificate where such a weapon has been involved in the commission of a wildlife crime not just on grounds of public safety but also on the grounds of a threat to the safety of wildlife.
- That the Crown Office and Procurator Fiscal Service should continue to consider the use of Proceeds of Crime legislation to the maximum extent possible in appropriate wildlife cases.
- That wildlife crime offenders should be required to attend retraining courses, including courses on empathy where appropriate, either through Community Payback Orders or suspended sentences. This would require establishing that such courses are available and raising awareness of such courses amongst the judiciary.
- That wildlife legislation should be consolidated.
- That with the establishment of the Scottish Sentencing Council in October 2015, sentencing guidelines are developed for wildlife offences in order to enhance the consistency and transparency of sentencing.