Having watched the Winterwatch programmes the past couple of evenings I am always concerned about the almost-terminal difficulties in which the Scottish wildcat finds itself. There is no doubt that over the years it has been persecuted (though less-so now) and of course its purity is constantly being diluted by hybridising with domestic cats. To some degree hybridisation can be reduced by killing off feral cats and sterilisation where possible (and where suitable) of domestic cats. The threat of a wildcat being shot, snared or trapped is much more difficult to deal with.
Wildcats are protected by the Conservation (Natural Habitats etc) Regulations 1994 as amended, and are included on Schedule 2 to these regulations. Though several different offences can be committed the principle offence would be ‘deliberately or recklessly to capture, injure or kill a wild animal of a European protected species.’ I’ll stick to this statutory offence since the elements required to be proved in the others are basically identical.
So what has to be proved?
Firstly that the animal has indeed been captured, injured or killed. This is probably the easiest element to prove, and evidence of it being in (or having been in) a trap or a snare, or having injuries or being found dead would be a good start.
The next element would be that the action taken to achieve this state (capture, injury or death) was carried out deliberately or recklessly. This is slightly more difficult but is standard evidence in most wildlife legislation and bread and butter investigation for police officers.
Next, there needs to be proof of who committed the act. Again this is standard across police investigations, though not always easy to prove and often a stumbling block to a conviction or even a prosecution.
So let’s assume that the diligent wildlife crime officer has been able to find proof beyond reasonable doubt of these three elements. The case is not yet proved as there is a fourth element to the case: that the animal is a Scottish wildcat.
There are so few pure wildcats left now – some estimates are around 35 and certainly less than a hundred – that the chances are the cat will be a hybrid. If the hybrid is a feral cat and barely conforms to what is accepted as looking like a wildcat then it is probably correct to shoot it or certainly ensure that it cannot reproduce. If, however, the cat appears to be a wildcat but when seen by an expert falls slightly short on the scale of points attributed to a pure wildcat, would it be better that the cat had lived to mate with another nearly-pure wildcat? If the investigation shows that the cat is indeed a pure wildcat the officer needs to re-visit element 2 and reconsider that there is really proof that the person carried out the act in in the knowledge that he was committing it against a pure wildcat, extremely difficult to prove in the event that someone has shot the cat in a spotlamp at night.
I certainly don’t have the answers to these complex issues but at least in the meantime the law, through no fault of legislators, is definitely of little use in helping the wildcats’ plight.