It is great news that there is a public consultation under way in Scotland to look at means of improving the protection of wild mammals. In mid-2017 a stakeholder group was established to develop a new Code of Practice for hunting and also to look into the viability of a new hunt monitoring scheme. The consultation will now consider Lord Bonomy’s recommendations for legislative reform with particular regard to interpretation and enforcement of the Protection of Wild Mammals (Scotland) Act 2002.
The conviction in June this year of two members of the Jedforest Hunt in the Scottish Borders has been cited in the media as the first conviction under the Act for foxhunting. While this is not strictly true it is certainly the first conviction that relates to mounted foxhunting. The first conviction under the Act where foxes were the target was in fact the year after the legislation was enacted and took place at Dundee Sheriff Court.
Here is the tale, as told in my first book, Wildlife Detective:
Foxhunting is a country pursuit that engenders vehement opposing views. For my own part I have never been an advocate of killing animals solely for sport. If the reason for the killing is pest control or where the animals or birds killed will ultimately be eaten I have no problems. Killing foxes for sport is how I see fox hunting on horseback. Though there must logically be a degree of pest control if a fox is killed by hounds during a mounted hunt in my view there are far more effective methods of fox control. I can make the clear distinction between mounted hunts and foot packs. Foot packs, where people on foot with a pack of hounds drive foxes forward to waiting guns and the foxes are shot as a means of pest control, are – at least to me – completely different. I am aware of an instance when nine foxes were driven forward from a wood by hounds and were shot by waiting guns. It cannot be argued that that is not good – and humane – fox control.
Though I don’t agree with mounted hunts, everyone is entitled to his or her own view so long as it does not colour their objectivity, judgement and fairness, especially in a role such as that of the police. Lord Watson caused considerable consternation (as opposed to causing a conflagration, which came later in his career) with his Private Member’s Bill on hunting with hounds. Though I have no doubt he started off with the intention of banning fox hunting, in my opinion he made the passing of the Bill much more difficult by trying to include the banning of the use of terriers in a fox den to bolt a vixen or to kill cubs. This no doubt doubled his opposition overnight by involving many gamekeepers, farmers and shepherds in a dispute that hardly, up to that point, affected them.
I had sight of the Bill at several stages in its early days. There were three very clear offences. The offences were to deliberately hunt a wild mammal with a dog (which included the use of more than one dog); for a person to knowingly allow his or her land to be used for the deliberate hunting of a wild mammal with a dog; and lastly for a person being the owner of a dog, to knowingly allow it to be used to deliberately hunt a wild mammal. As in much legislation, the offences are simple: it is the exceptions which complicate something that would otherwise be straightforward. And there were plenty of exceptions; pages and pages of them. Exceptions permitted the stalking, searching for or flushing of wild mammals with dogs above ground and under control for a variety of purposes but only if the person acts to ensure that, once the wild mammal is found or emerges from cover, it is shot or killed by a bird of prey once it is safe to do so. This allowed the hunting of foxes to continue provided the objective was to shoot the fox rather than to have the hounds catch the fox. We frequently have foot packs of hounds out after foxes in Tayside and this activity remains legal and unaffected by the new Act.
Another exception allowed a dog under control to flush a fox or a mink from below ground for various reasons, provided it is shot as soon as possible after it is flushed. This allowed the bolting of vixens from dens with terriers as has been carried out by gamekeepers and shepherds for generations. A further exception allowed the use of a single dog to enter the den after a vixen has been bolted and shot, in order to despatch the cubs. In effect the new Act made little difference to fox control at dens.
Though the exceptions I have cited would be the most widely used, there were many others.
I could see one immediate problem. The definition of mammal excluded a rabbit and a rodent. Where we did have a problem in Tayside was with illegal hare coursing (before the Bill was enacted hare coursing was legal with the permission of the landowner). Landowners, farmers and gamekeepers were contacting me every week regarding groups of men walking over their land with greyhounds and coursing hares. Prior to 2002 when the men had been challenged there were two standard excuses. ‘We were just letting our dogs stretch their legs. They had been cooped up in the car and we thought they needed out.’ Or ‘Our dogs just need the toilet. They just need out for a pee but they ran off. We’re doing no harm mister’ (or constable as the case may be).
I had a variation on this theme in January 2007, when hare coursers alleged that they had to stop and let their two dogs out of the car as they were feeling car-sick. I was intrigued as to how word of this canine malady was transmitted to the human owners? In any event, when we were at the Bill stage I could see a new excuse; ‘We’re just after rabbits. They’re young dogs and they’re not fit for hares anyway.’
I made one or two recommendations for changes to the Bill. Some changes were made, possibly on my recommendations, but no change to the rabbit being deprived of its mammal status. Poor wee rabbits, being ousted as mammals by Lord Watson to join the ranks of the non-mammals. Frogs, snakes, newts, lizards, moths, earthworms, blowflies, beetles, centipedes. . . and rabbits. My prediction came true and a standard excuse now by hare coursers when they are caught is that they are just looking for rabbits. It is still an offence – to trespass on land in unlawful search or pursuit of game – but with a considerably reduced penalty and no power of arrest. At least (in 2003) the rabbits could take comfort that they were still afforded a degree of protection by many of the Game Laws of the 1800s, a privilege denied to worms and beetles!
Mike Watson’s Bill was enacted and became the Protection of Wild Mammals (Scotland) Act 2002. Though it could be argued that it did not achieve what it set out to do, and despite my criticisms, it has been a benefit to us in policing hare coursing, mainly because of the power of arrest and the increased penalties including imprisonment for up to six months.
I was pleased that the first conviction in Scotland under the new legislation was in Dundee. What’s more it was for fox hunting! This remarkable case started off with a call on my mobile phone one evening from a man in Broughty Ferry, which is on the outskirts of Dundee. He told me that on several occasions he had seen someone hunting on Broughty Ferry beach. It was a spotlight that first drew his attention, especially when the spotlight sometimes showed a white light and sometimes a red light. The operator of the spotlight was walking along the beach and the beam was sweeping back and forth. My witness also said that he could hear a squeaking noise like a rabbit in distress.
The reason he had phoned me that particular night was that he had witnessed the man who was operating the light come off the beach on to the road. The man had with him two dogs, a greyhound and a golden retriever. Curious as to what had been taking place, my witness approached him and asked what he was doing. ‘I’m after foxes. There’s loads of them. I catch them in the beam of the light and squeak them in. When they come in a bit I change the beam to red so they’re not spooked. I keep squeaking them in and when they’re close enough I let the dogs go. The dogs go after the fox and catch it. They have great fun.’
My witness said that he was disgusted that this was taking place almost on his doorstep and could we do something about it. My instructions to him were to contact the Control Room in Dundee as soon as he saw the man on the beach with the spotlight again. He promised to do so and apologised for disturbing me in the evening. The next morning I prepared a briefing note for the Control Room and for the police officers covering Broughty Ferry. This was new legislation, it was a type of incident that neither the Control Room staff nor the police officers would have encountered and it was unrealistic to expect them to deal with it efficiently without some basic guidance. The briefing note outlined the type of incident, how it would be reported to the police, the legislation, powers the police officers had to deal with it and my suggestions as to how best to deal with it.
It worked perfectly. Several nights later the incident occurred again. My witness took the action I had requested and the police responded quickly, catching the man as he came off the beach. He had a spotlamp, a battery pack and two dogs and was arrested and charged under the new legislation with deliberately hunting a wild mammal, namely a fox, with two dogs. The witness had gone a stage further and had given the police the name of another person who had watched the evening’s events. It was an unusual case. No foxes had been seen either being caught or even hunted, though the witnesses and the police officers were able to say that foxes were regularly seen scavenging on the beach.
At the trial I and PC Harvey Birse, a Divisional wildlife crime officer, gave evidence. Over the years both of us had often used spotlamps and rifles to shoot rabbits, and also spotlamps, rifles and squeakers to shoot foxes. We described how foxes could be picked up in the beam of a lamp at a considerable distance and how they could be lured closer by the use of a squeaker that simulated the noise of a rabbit or hare in distress. We also explained the use of the red filter on the lamp, which could be used as the fox came closer. While a fox might be reluctant to continue towards a beam of white light they seem to disregard a light with a red filter which is possibly invisible to them.
When giving my evidence I asked the court if they would like the two squeakers demonstrated. One was a large squeaker which I was sure would be used while the fox was still distant, while the other was a small, quiet, squeaker which would be ideal to encourage the fox to continue coming forward to investigate the intriguing sound for the last 100 metres or so. The sheriff agreed he would like the squeakers demonstrated and I started with the loud one. I unfortunately forgot about the microphone and the loudspeaker system in the court and nearly deafened everyone. The court dispensed with the need to demonstrate the second squeaker, however everyone was wide awake to hear the accused being found guilty. He was fined £250 and his spotlight and battery pack, worth about the same, were forfeited.
I was pleased at the result of this case. Though we in Tayside and one or two other forces have used the legislation frequently, this remains, at the beginning of 2007, the only Scottish conviction that relates to the hunting of a fox, the remainder all relating to the hunting of hares.
This remained, until 2017, the only conviction in Scotland under this legislation relating to fox hunting. The outdated Game Acts have now been repealed and replaced with an amended Wildlife and Countryside Act 1981. This Act gives a better opportunity of a conviction for hare coursing as only one witness is required. The Protection of Wild Mammals (Scotland) Act 2002 is used less often for hare coursing though it does have the benefit in that a person can be banned by the court from keeping animals.
See Wildlife Detective and other books on this blog. If you would like a signed copy, plus a free copy of another of my books, The Thin Green Line, contact me on firstname.lastname@example.org