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Animals and Wildlife (Penalties Protections and Powers) (Scotland) Bill

Overview

The Bill amends various animal welfare and wildlife crime legislation.

It aims to increase penalties for serious animal welfare and health offences. It will also increase penalties for wildlife crime. 

It will: 

  • introduce fixed penalties animal welfare and health offences
  • hold anyone accountable who deliberately causes harm to a service animal
  • increase fines and/or custodial sentences in relation to certain wildlife offences

Inspectors and constables will be able to act on animal welfare issues. An offence does not need to have taken place. They will not need to wait for a court order. This will allow them to ease the suffering of animals.

This means they can:

  • administer treatment to sick or injured animals
  • transfer to animal welfare facilities
  • euthanise animals 
  • rehome animals

You can find out more in the Explanatory Notes document that explains the bill.

Why the Bill was created

In recent years there have been some extreme animal cruelty cases which have caused public upset. The public support the courts having more options to make the punishment fit the crime. 

Fixed penalty notices can deal with minor animal welfare offences. These are quicker and less costly to administer than going to court. This could also be a deterrent against committing these crimes. 

Sometimes animal inspectors/constables need to remove an animal to protect their welfare. They will not need court permission to remove an animal. This avoids delays which could affect the welfare of these animals. 

Anyone who injures a service animal will be accountable for their actions. This follows a campaign called Finn's Law. 

 

You can find out more in the Policy Memorandum document that explains the bill.

The Bill at different stages

'Bills' are proposed laws. Members of the Scottish Parliament (MSPs) discuss them to decide if they should become law.

Here are the different versions of the Bill:

The Bill as introduced

Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill as introduced

The Scottish Government sends the Bill and the related documents to the Scottish Parliament.

Bill is at ScottishParliament.SC.Feature.BillComponents.Models.BillStageModel?.DefaultBillStage?.Stage_Name stage.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Government Bills

These are Bills that have been introduced by the Scottish Government. They are sometimes called 'Executive Bills'.

Most of the laws that the Scottish Parliament looks at are Government Bills.

Hybrid Bills

These Bills are suggested by the Scottish Government.

As well as having an impact on a general law, they could also have an impact on organisations' or the public's private interests.

The first Hybrid Bill was the Forth Crossing Bill.

Members' Bill

These are Bills suggested by MSPs. Every MSP can try to get 2 laws passed in the time between elections. This 5-year period is called a 'parliamentary session'.

To do this, they need other MSPs from different political parties to support their Bills.

Committee Bills

These are Bills suggested by a group of MSPs called a committee.

These are Public Bills because they will change general law.

Private Bills

These are Bills suggested by a person, group or company. They usually:

  • add to an existing law
  • change an existing law

A committee would be created to work on a Private Bill.

Bill stage timeline

The Animal and Wildlife (Penalties, Protections and Powers) (Scotland) Bill is currently at Stage 2.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Animals and Wildlife (Penalties Protections and Powers) (Scotland) Bill as introduced

Related information from the Scottish Government on the Bill

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given. 

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 28th meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent as they may affect the broadcasting system.

Under agenda item 1, we will hear from Scottish Government officials on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. I am delighted to welcome Leia Fitzgerald, wildlife management team leader, wildlife management and biodiversity unit; Grant McLarty, solicitor, animal health and welfare branch, directorate for legal services; Hazel Reilly, solicitor, forestry, natural resources and climate change, directorate for legal services; and Andrew Voas, veterinary head of animal welfare, animal welfare branch. Thank you for coming in. Will one of you set out the context for the reforms that are proposed in the bill and provide an overview of the scale of the challenge relating to animal welfare offences?

Andrew Voas (Scottish Government)

On animal welfare offences, we include information in the financial memorandum about convictions over the past 10 years. During that time, there have been 773 convictions for animal cruelty or animal fighting offences, with 41 custodial sentences and 147 community sentences; the remaining convictions resulted in fines.

We should bear it in mind that convictions are not necessarily a direct measure of offending behaviour, but they give an indication of it. To give the issue perspective, with 41 custodial sentences over 10 years, you could say that, on average, every year there are four very serious animal cruelty or animal fighting offences that have resulted in custodial sentences. Obviously, those offences have raised a lot of public concern because of their very serious nature. There have been sickening examples of sadistic or depraved behaviour. Unfortunately, we have seen cases involving animals such as dogs being tied to a tree, covered in petrol and set on fire. There have been more recent cases involving puppy farming or animal fighting that have been truly appalling. Such offences are relatively rare, but they create a lot of understandable public concern.

On the overall direction of travel, we are concerned about some new developments, such as in the puppy trade. That has gone on for a while, but we are aware that it is a serious problem and that organised crime groups are involved in importing animals.

The Convener

Do you think that such things have escalated because the penalties have been too low?

Andrew Voas

I would not necessarily say that there is a direct cause-and-effect relationship, but that is possibly true. We have heard reports that, because of the penalties involved, organised crime groups might consider things such as illegal puppy dealing or puppy importing to be relatively low risk compared with other criminal activities, such as dealing in drugs or firearms. That view has certainly been expressed.

The Convener

Okay. The bill is about penalties, not new offences. Is that correct?

Andrew Voas

Yes, that is correct. The bill is focused on increasing penalties for existing offences, introducing fixed-penalty notices and looking at powers for enforcement authorities relating to taking animals into possession. It is about penalties and powers; it is not about creating any new offences or any new areas of responsibility.

The Convener

Powers will also be given to people who recover animals. Currently, animals have to be kept for the duration of any court proceedings. There is a change there.

Andrew Voas

Yes. The powers in the Animal Health and Welfare (Scotland) Act 2006 allow enforcement authorities to take animals into possession if they are suffering or are likely to suffer. Currently, a court order is required to allow those animals to be moved out of their possession. The bill proposes a new procedure that will remove the need for that court order, so the procedure should be more straightforward and swifter.

The Convener

So animals could be rehomed or sold on.

Andrew Voas

Yes. They could be more swiftly rehomed or sold on.

Finlay Carson (Galloway and West Dumfries) (Con)

On the fines for puppy trafficking, you mentioned puppy trafficking not being regarded as being in the same group as drug dealing, for example. However, a litter of puppies could be worth £10,000, £15,000 or £20,000. I know that we are looking at potentially unlimited fines, but what are the maximum fines that have been imposed until now? Is it likely that the fines that are imposed as a result of the bill will be substantially greater?

Andrew Voas

The fines that are imposed will, of course, be a matter for the courts. The bill’s purpose is to give the courts the flexibility and additional powers that, in some cases, they have asked for to deal with the most serious offences. Currently, a potential fine for unnecessary suffering is £10,000. That will be changed to an unlimited fine for the worst cases of animal cruelty. [Interruption.] I am sorry: the figure is £20,000. I have been corrected.

The Convener

I am sorry, but would you say that again?

Andrew Voas

The existing maximum available fine for section 19 offences is £20,000.

The Convener

That could become unlimited.

Andrew Voas

It would become unlimited.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

An issue arose there. I presume that the Proceeds of Crime Act 2002 would enable the state to recover the profits that large dealers made.

Andrew Voas

Yes. The Proceeds of Crime Act 2002 certainly applies, and it has been used.

Stewart Stevenson

That is fine. I simply wanted to put that on the record. Thank you.

My interest is in how fixed-penalty notices work. It might be useful to hear from Grant McLarty—I am not sure; it is up to you guys—about whether the acceptance of a fixed-penalty notice creates a criminal record. What would happen to the person? That is a general question about fixed-penalty notices. Are there any differences in that regard with the fixed-penalty notices that are proposed in the bill?

Andrew Voas

Let me deal with that question in general terms; Grant McLarty can give more information if necessary. The bill is intended to create the powers to enable fixed-penalty regimes of different types to be introduced in future regulations. At this stage, we are not getting into detail about exactly which FPN regime will be appropriate in individual circumstances. The bill asks for powers that are sufficiently flexible to allow us to introduce in future regulations FPN regimes of different types for different circumstances.

Stewart Stevenson

We are talking about fixed penalties for minor and technical offences. I can sort of understand “technical”, but what might “minor” mean in this context? You might need to give the committee an example.

Andrew Voas

It will be a requirement that FPN regimes apply only to offences that have a maximum penalty of up to six months’ imprisonment and a fine at level 5 on the standard scale, which is currently £5,000. They will certainly not apply to offences for which there are higher penalties.

In practical terms, we see the need for FPN regimes in relation to, for example, offences that do not necessarily involve harm to individual animals, in the context of our attempts to improve overall compliance with legislation to benefit animal health and welfare more widely. For example, we are planning to introduce legislation to require licensing of animal sanctuaries and rehoming centres and to modernise licensing for dog breeding and pet sales, and there might be paperwork offences, such as not applying for a licence or not holding one, which would not necessarily involve an animal being harmed. It is important that overall compliance with the regulations is achieved.

Stewart Stevenson

I understand that, up to now, fixed-penalty notices have, in essence, been levied on individuals. The example that you gave suggests that it might be possible to levy an FPN on a corporate entity. Some animal sanctuaries are all about an individual, but many of the larger ones are corporate entities and charities. Is it envisaged that fixed-penalty notices will be levied on such bodies?

Andrew Voas

As I said, at this point we are interested in getting the powers to introduce appropriate FPN regimes in future. In future, we will be able to consider the detailed, technical questions of how FPN regimes will operate and on whom penalties could be levied. I think that, in principle, FPNs could be levied on corporate bodies and legal persons as well as on individuals.

Stewart Stevenson

The consultation on animal health is still open, but you have brought forward proposals in that regard. I accept that proposals will be implemented via secondary legislation, but the approach seems slightly unusual. Are you anticipating the results of the consultation? Will you use the results to amend the bill at stage 2?

Andrew Voas

This is partly about the timing of the consultation on animal health. There have been initial discussions with local authorities, primarily about the principle of fixed-penalty notices for animal health offences, and there is a clear desire to introduce FPN regimes for animal health offences, and a need to have the ability to do so. That is why there is provision for animal health FPNs in the bill.

The purpose of the consultation is really to go into a bit more detail about what sort of FPN regimes would be appropriate for animal health. As local authorities will be involved in administering such regimes, a lot of the arguments and considerations in that regard are probably similar to the ones about FPN regimes for animal welfare. That is why we thought that it was justifiable to include in the bill a general provision, which could be refined after the results of the consultation are known. The consultation will close on 23 December and we hope that an analysis of the results will be available early next year.

The Convener

A bill such as this one is about preventing cruelty or harm to animals. That is what we want to achieve. Has there been any analysis of how crimes of the type that you mentioned have reduced as a result of penalties like those that are envisaged in the bill? For example, have you looked at other countries that have done something similar? What reduction do you anticipate?

10:00  



Andrew Voas

We are increasing the penalties to give the courts the powers to deal with the most serious offences in an appropriate way. The bill is about giving the courts extra powers to deal with offences appropriately.

The Convener

But it should be a deterrent as well.

Andrew Voas

We have looked at the situation in other countries. There are quite complicated arguments about deterrence. We have to balance the seriousness of the penalty with the probability of someone being detected or apprehended. Deterrence may work better with crimes that have more consideration and pre-planning. For example, there may be greater deterrence with crimes such as animal fighting, which might require a fair degree of preparation and planning, than with crimes in which somebody acts violently and abusively towards an animal on the spur of the moment.

Primarily, we see the bill as giving the courts the powers to award appropriate sentences that reflect the seriousness of the crimes that are committed.

Mark Ruskell (Mid Scotland and Fife) (Green)

Alongside fixed-penalty notices and custodial sentences, are there other approaches that can work to re-educate people effectively? I am thinking about awareness courses or sanctions such as banning people from keeping animals. Do you have evidence on the effectiveness of those measures and are they covered by the bill in some way?

Andrew Voas

It should be remembered that various options are available to enforcement authorities before they reach the point of referring a case to the procurator fiscal. Enforcement authorities give a lot of general advice and issue warnings, and some issue care notices under the 2006 act. When a case is put to the procurator fiscal, the fiscal also has non-court options such as warning letters or fiscal fines.

I see the attraction of awareness courses and that sort of thing for convicted offenders, but we have to remember that the number of convictions is relatively small and that, to provide that sort of awareness course, we would need somebody to operate it. Currently, community payback orders require local authorities to set up training or awareness courses so that people who have committed offences can be sent on them. If we were to do something like that—

Mark Ruskell

Can you envisage a community payback order being applied to, for example, a gamekeeper who is convicted of a wildlife crime? What would be a suitable community payback order for such a person?

Andrew Voas

We have considered that in general terms, but we have to be aware of the practicalities. That approach would require suitable courses to be set up and operated so that convicted people could be sent on them.

Mark Ruskell

The bill does not extend the powers of the Scottish Society for the Prevention of Cruelty to Animals in relation to wildlife crime. There is a mismatch between the Scottish SPCA’s current powers in relation to domestic animals and its ability to detect and help to bring people to prosecution for wildlife crimes. Why does the bill not extend the Scottish SPCA’s powers? The organisation is a uniformed service that does effective work with domestic animals. What is holding us back from extending its powers to include wildlife crime?

Andrew Voas

As I understand it, the issue was addressed in a letter to the committee in May 2017, which explained that, with wildlife crime, it was considered more appropriate for police constables to use the full range of powers and facilities that the police have available. That led to an increase in the number of wildlife crime officers. It was decided to go down that route back in May 2017. I know that the issue has been raised with the committee recently. As far as we know, the Scottish SPCA made an offer, which was considered, and the reasons why that offer was not taken up fully were explained in the letter in May 2017.

Mark Ruskell

That letter to the committee outlined a range of actions, one of which was the establishment of special constables on a trial basis to deal with wildlife crime in the Monadhliath area. Why can we not see the evidence and outcomes from that trial to allow us to know whether supplementing the work of wildlife crime officers is a more effective route to tackling wildlife crime than the Scottish SPCA? I am left without knowing the outcome of the process and whether it was effective.

Leia Fitzgerald (Scottish Government)

Along with the police and the Cairngorms authorities, we are carrying out an assessment of the effectiveness of that pilot. We are actively working on that, but it is at an early stage. We are happy to provide the committee with more details, once the assessment has been advanced.

Mark Ruskell

Will that come under our scrutiny of the bill?

Leia Fitzgerald

I do not have timescales, but we will look into that, and I hope that we can get back to you with an indication of when we will complete the assessment process.

The Convener

We would be grateful if you could write to give us an indication of that.

Claudia Beamish (South Scotland) (Lab)

Having been on the previous committee during the previous session of Parliament when the idea of extending the Scottish SPCA’s powers to wildlife crime was raised, I find it puzzling that it is not thought appropriate for the Scottish SPCA to be able to offer additional support to the prosecution of wildlife crime. I do not understand that decision, given that Police Scotland is up against it in terms of resources. I appreciate that there is a pilot in the Cairngorms—we are interested in that—but it would be helpful for the committee to understand the reasons why it is not thought appropriate to extend the Scottish SPCA’s powers. If not now, perhaps you could give us that information in writing. The process has gone on for a long time.

The Convener

We can ask the cabinet secretary the reasons behind that.

Claudia Beamish

Yes, but it might inform developments if the bill team could let us know that—if that is appropriate.

Leia Fitzgerald

We can certainly provide more information in writing, if that would be helpful. As Andrew Voas said, this matter was looked at at the time, since when Police Scotland has increased the number of wildlife crime officers so that there is now one in every division. There is extensive training so that people in Police Scotland more widely are trained. The situation—

Claudia Beamish

With respect, from evidence that I have heard and from going out with people who are on the ground, I know that in South Scotland, the police—with the best will in the world—sometimes take a considerable amount of time to respond. Incidents happen in remote areas, where evidence can be damaged by the weather and must not be touched, and other such issues come up. I still do not understand why that extra support is not possible, when the police are up against it. I am highlighting the issue now.

Angus MacDonald (Falkirk East) (SNP)

Continuing the fixed-penalty notices theme, when do you envisage the Government bringing forward regulations on FPNs? Are they likely to be affirmative, and who will manage the use of FPNs?

Andrew Voas

We do not have any immediate plans for individual FPN regimes but, as I mentioned, the licensing legislation that is being introduced might be where we seek to introduce the first FPN regimes relating to animal welfare.

The regulations will certainly be affirmative, as is the case for all regulations that are made under the 2006 act, and they will come before Parliament. They will probably come to this committee or possibly, in the case of animal health or farm animal-related regulations, the Rural Economy and Connectivity Committee. There will obviously be a requirement for due consultation before those regulations are put forward.

Primarily, it will be local authorities that will administer the FPN regimes, and they will be responsible for the licensing work that we mentioned. A lot of the animal welfare enforcement is done by local authorities. Depending on the exact situation and the purpose of the FPN regime that is developed, other bodies such as the Animal and Plant Health Agency or Food Standards Scotland may be involved.

Angus MacDonald

Do you envisage any capacity issues for local authorities? We always get that feedback from them.

Andrew Voas

We are interested in introducing regulations that will assist local authorities. We know that local authorities are keen on the idea of FPNs in other areas, and we have been discussing with local authorities what future FPN regimes might look like for animal health and welfare enforcement. Generally, local authorities are welcoming of that. Although, inevitably, it is possible that there will be an additional task, there is the opportunity to recover some of the costs of enforcement through the FPN regime. However, those are all details that will be developed in due course when we bring forward the regulations.

Finlay Carson

To tidy up on fixed-penalty notices and other sanctions, is there a possibility in the bill to use the income that is generated from fixed-penalty notices to assist in promoting good animal welfare more widely? If not, are there significant barriers that prevent that possibility?

Andrew Voas

As I mentioned, the basic purpose of the bill is to provide the overall power to introduce FPN regimes of different types and for slightly different purposes in future welfare or health legislation. The focus of the bill is on providing the suitably flexible power that will allow us to do that. As those future FPN regulations are introduced, we can consider exactly how the income should be channelled, who it should go to and what purposes it could be used for. In principle, there is nothing that would necessarily prevent income from being used for particular purposes. However, that is not really the purpose of the bill.

Finlay Carson

Is there potential for the increased use of powers to ban people from keeping animals—whether domestically or for commercial farming—or to require offenders to undertake training to allow them to keep animals in the future?

Andrew Voas

The 2006 act already contains the power for courts to give disqualification orders when an offender is convicted. Those disqualification orders can prevent people from keeping, working with or—basically—having anything to do with animals. When people are convicted of an offence, the courts already have a range of powers. We do not anticipate that changing as a result of the bill, as those powers already exist.

Finlay Carson

I will move on to the issue of animals that are taken into possession to protect their welfare. Over the past 13 years, court orders have been used only 40 times to allow local authorities to take animals away for their welfare, either to be rehomed or to be destroyed. The Government said:

“it has not been possible to produce a reliable figure for the total number of animals”.

Why is that the case? Should it raise concerns, particularly given that the bill would allow animals to be taken into care without the requirement of a court order?

Andrew Voas

To correct Finlay Carson slightly, the enforcement authorities have the power, through the 2006 act, to take animals into possession. The court order comes in when they need to deal with the animals after they have been taken into possession.

We asked all 32 local authorities in Scotland for as much information as they could provide on the times when they had taken animals into possession and then sought court orders. However, it should be remembered that we were asking them to give information covering the past 12 years and that there was no formal requirement to record information in any particular format, so local authorities had dealt with it in a variety of ways. Some of the information will be in case files that are several years old. We got a lot of useful information from several local authorities, but we could not honestly say that we had a complete picture, which is why we said that we could not provide reliable information overall. We should also bear in mind that cases can involve varying numbers of animals; there could be one or two animals or, in the case of farm animals, several hundred. There is wide variation in the numbers of animals that have been taken into possession and in the outcomes for animals in terms of court orders and being sold on or rehomed.

Finlay Carson

Are there specific provisions in the bill for councils to recover the cost of caring for commercial animals that have been seized, or do the provisions address more general issues?

10:15  



Andrew Voas

Do you mean in relation to the arrangements for taking animals into possession?

Finlay Carson

Yes.

Andrew Voas

The existing arrangements for cost recovery allow local authorities to recover their costs from the proceeds of animal sales and from the animal owner. There are often practical difficulties in doing so, particularly if large numbers of animals are in their possession for a long time. The purpose of the new process is to allow councils to make proper arrangements for animals more quickly, which would minimise the cost—that is really what it is about.

We are doing this to improve animal welfare and avoid suffering by animals that have been taken into possession by allowing proper arrangements to be made reasonably swiftly. We are thinking primarily of commercial situations involving dog breeders or farm livestock, which are probably the most problematic situations, or potentially the animal hoarder scenario, in which somebody has acquired a large number of animals that need to be dealt with properly.

The provisions will allow animals in those situations that have been taken into possession to be dealt with swiftly and efficiently to benefit their welfare. I hope that they will also allow a smoother process, so that local enforcement authorities can use the powers in the 2006 act—which were a major improvement at the time, allowing animals to be taken into possession to prevent future suffering—effectively, as was originally anticipated.

Finlay Carson

Where is such a decision taken? For example, if a member of the public reports what they see as a potential animal welfare issue, at what level is the decision taken to seize puppies or dairy cows, for example, and process them quickly? In the case of puppies, it may be that they should be rehomed within six weeks. Where does the burden of that decision fall? Once there are been a court case, is compensation considered if no prosecution is delivered?

Andrew Voas

Currently, enforcement regarding puppies and companion animals is largely done by the Scottish SPCA, which takes the animals into possession to protect their welfare. It has that power under the existing 2006 act provisions if it considers that the animals are suffering or are likely to suffer in future and it can get a vet to certify that.

Local authorities tend to take on cases involving farm animals. They reach a point when they decide that the appropriate way to deal with a case is to take possession of the animals; they usually take them away from the farm to be cared for somewhere else. The decision to take animals away is up to the enforcement authority, which will be the local authority or the Scottish SPCA.

You asked about compensation. Under the current arrangements, animals—it is usually farm animals—can be sold on and the proceeds will belong to their owner. The enforcement authority can deduct reasonable expenses from the value. Because we are seeking a swifter resolution under the new arrangements, the owner can be compensated, with the important proviso that the compensation can be deferred if there is a related on-going criminal case. Ultimately, a court will be able to order that compensation is not paid to the owner, if it thinks that that is appropriate after due process and a conviction—that is an important safeguard.

The Convener

We move on to questions about attacks on service animals.

Angus MacDonald

I want to look at the Scottish Finn’s law provisions of the bill. The Scottish Government has told the committee that attacks on service animals are more likely to be prosecuted as malicious mischief or vandalism than they are to be prosecuted under the Animal Health and Welfare (Scotland) Act 2006, which the bill will amend in order to strengthen the provisions in respect of such attacks. Why is that? Why are the amendments to the 2006 act considered to be needed?

Andrew Voas

How offences are dealt with are primarily matters for the police and the Crown Office and Procurator Fiscal Service. We have discussed the issue with the police. My understanding is that, in the past, some attacks have been dealt with as part of wider public order offences, such as breach of the peace, and assaults on police officers. In those situations, the police and COPFS have considered the overall pattern of behaviour when deciding what the appropriate offence has been.

The change that we are trying to introduce—it is known as Finn’s law, as you said—is to make it easier for offences that involve causing unnecessary suffering to police animals to be prosecuted under the 2006 act. That would require courts to disregard whether an action was committed for the purpose of defending the offender, another person or another animal. Currently, courts are required to have regard to that in deciding whether suffering was unnecessary. When we make the changes, courts will be required to disregard the fact that an action was committed to defend a person or a property in relation to attacks on service animals—that is police dogs or police horses. That should make it easier for such attacks to be successfully prosecuted under the 2006 act.

The proposal recognises the fact that service animals should be regarded as sentient and capable of suffering in their own right, rather than as police property or something that can be vandalised. That is the principle behind the provision.

Mark Ruskell

We are talking about service animals. Will there be a wider applicability to Finn’s law? What if, for example, someone beat a racing greyhound at a track and, in their defence, said, “I was trying to ensure that this greyhound wasn’t going to attack another animal or damage the property of another person”? I am trying to get it clear in my mind why the provision applies to service animals but not to other working animals.

Andrew Voas

It is for practical purposes. We have to remember that police service animals are put in positions in which they are trying to apprehend individuals or maybe control the movement of crowds. They are particularly vulnerable to incidents in which someone attacks them and, potentially, argues that they did so to defend other individuals. Those are the circumstances in which the possibility of talking about the use of self-defence in relation to police dogs and horses might arise.

Mark Ruskell

Do you not see racing greyhounds as being in a similar position? They can be in a very vulnerable position and can be attacked by handlers.

Andrew Voas

It would be harder for a handler to say that they were beating a greyhound in order to defend themselves, because a greyhound is obviously not being used to control the handler or in a way that poses the handler any danger. The provision is really about the practicalities of how the arguments about whether the action was committed in self-defence would arise.

The Convener

We move on to the Poustie review recommendations.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

The Poustie review recommendations were broadly accepted by the Government at the time of its publication. I am interested in the impact statements.

The Government, after conversations with COPFS and Police Scotland, accepted that the current system works, and that, where the conservation, ecological and animal welfare impact statements are requested, they work well.

It is therefore considered unnecessary to legislate further. Was it the reassurance from Police Scotland and the Crown Office and Procurator Fiscal Service that led the Government not to accept the Poustie review recommendations in that regard?

Leia Fitzgerald

We spoke to stakeholders, who confirmed that they use statements where they feel that that is necessary and helpful. They already have the power to do that, so there is no need to put the matter on a statutory basis. That would be legislating just for the sake of it, because those statements are already being used. There are circumstances in which an impact statement might not be required or helpful, so we do not want to create an unnecessary burden to produce a statement if it is decided that one is not required in a specific case.

Rachael Hamilton

Are you saying that the statements are not requested as a matter of course?

Leia Fitzgerald

A decision is made in individual cases as to whether an impact statement is required. That is how the process works at the moment. Stakeholders feel that it is working well and that they have sufficient ability to use the statements when needed.

Rachael Hamilton

Poustie also recommended that forfeiture penalties should be extended and made consistent across wildlife legislation. What forfeiture and other alternative penalties were considered as part of the background to the bill and why were those alternatives dismissed?

Leia Fitzgerald

Forfeiture penalties are already available under existing legislation, including the proceeds of crime legislation. We are considering the possibility of introducing fixed-penalty notices as an alternative form of penalty. We have already had discussions with stakeholders on that and we intend to consult on it. That is one of the alternative provisions that we are considering.

Rachael Hamilton

Sorry, but can you repeat that last bit?

Leia Fitzgerald

In terms of alternative provisions, we are looking at fixed-penalty notices, as have been looked at for animal welfare and health offences.

Rachael Hamilton

Just to be clear, why were the alternatives that were recommended dismissed?

Leia Fitzgerald

Fixed-penalty notices are one of the alternatives that we are looking at.

Rachael Hamilton

My next question is about firearms legislation, which is reserved to the United Kingdom Government. What discussions is the Scottish Government having with the UK Government with regard to the recommendation that there should be a power to withdraw shotgun certificates in wildlife crime cases? What plans do you know of to amend the existing UK legislation?

Leia Fitzgerald

I am not aware of any such plans at the moment. We have spoken to our justice colleagues, who lead on firearms legislation. The Scottish Government would like amendments in a number of areas relating to firearms, and not just wildlife crime. Justice colleagues have regular discussions with the Home Office about that. As far as we are aware, the Home Office has no plans to introduce new legislation, but we will certainly continue to have those discussions with justice colleagues and, if an opportunity presents itself, we will consider that.

Rachael Hamilton

Mark Ruskell touched on a preventative strategy for wildlife crime. The Poustie review recommended that empathy training be given. Do you have any comment on awareness courses, which might be a bit like rehabilitation courses for people who have committed speeding or other driving offences? Those could be brought in as part of a preventative strategy for wildlife crimes.

Leia Fitzgerald

There are powers already, but no specific courses of that kind are being run or developed in Scotland. If the court was to make that provision, there would need to be a suitable course. However, as Andrew Voas said, thankfully, the number of cases is quite low. There are practicalities about having suitably qualified people to deliver the courses and having sufficient numbers of people on them. We have not ruled that out, but there is no obvious course available at the moment that we could use. If such a course were to be developed by stakeholders or others, we would certainly look at it to see whether it was appropriate.

10:30  



The Convener

Mark Ruskell has some questions on vicarious liability.

Mark Ruskell

I understand that only two vicarious liability restrictions have been put in place in the past seven years. There are questions about whether the current extent of the use of vicarious liability is effective in tackling wildlife crime. What representations have you had on the topic in relation to the bill? What consideration have you given to extending vicarious liability in the bill?

Leia Fitzgerald

We have not had any specific recommendations about extending vicarious liability. We know from speaking to the police and the prosecution service that it is something that they will always consider and, if they deem it appropriate and there is sufficient evidence, they will seek to bring charges.

In his review of the Protection of Wild Mammals (Scotland) Act 2002, Lord Bonomy recommended introducing vicarious liability for offences relating to hunting with dogs. We are looking at that and, when we introduce proposed legislation on fox hunting, we will consider whether it would be appropriate to implement that recommendation.

Mark Ruskell

Okay, but you have no plans to extend vicarious liability in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill.

Leia Fitzgerald

The bill is about increasing the penalties for existing wildlife offences; it does not seek to create any new wildlife offences.

Claudia Beamish

I seek clarification whether, when it is alleged that a crime has been committed but no one has been directly prosecuted for it, it would still be possible for there to be a vicarious liability prosecution. Would court action be considered even in the absence of the perpetrator being convicted? It would be helpful to have that clarified, because there is concern about that issue, which, to a degree, relates to the bill.

Leia Fitzgerald

In order for a charge of vicarious liability to be brought, it is not necessary for somebody to have been convicted of the underlying offence. Often, a charge of vicarious liability will be brought when somebody has been convicted of the underlying offence, but it can still be considered if someone has not been convicted. However, the Crown would have to be content that there was sufficient evidence that it could bring such a charge.

The Convener

Claudia, would you like to ask your questions about evidence gathering?

Claudia Beamish

Yes—I want to turn to wildlife crime investigations and video surveillance. Given the nature of wildlife crime—it has already been highlighted that it is committed in remote areas, that the weather can affect the gathering of evidence and that evidence can be removed—the likelihood of perpetrators being apprehended is clearly an important factor in the context of the bill, as is the deterrent effect of sentencing. How will the bill impact the ability of authorities to investigate and gather evidence of serious wildlife crime?

Leia Fitzgerald

One of the things that the bill is doing is increasing the time limit for prosecutions to be brought. We have spoken to the police, the Crown and stakeholders, and they have all said that there have been cases that they have not been able to pursue because of the time limit, for the reasons that you alluded to. In addition, quite a lot of complex forensic testing sometimes needs to be undertaken. Stakeholders feel that the proposed increase in the time limit will be helpful, because it will give them more time to investigate. As I said, the police, the Crown and stakeholders were all able to give examples of cases that had fallen under the time bar, whereas if the time bar had been longer, they might very well have been able to bring a charge.

Claudia Beamish

That was helpful.

As you will know, the committee has heard previously that video surveillance could be important in gathering evidence and thereby enabling the prosecution of wildlife crime. However, there has been some debate about the admissibility of such evidence in court. Will the bill shift the debate in this area? Do you think that it is more likely that evidence that is gathered through video surveillance will be admissible as a result of wildlife crime being treated as serious crime?

Leia Fitzgerald

The increase in the penalties will mean that there will be opportunities for police-sanctioned surveillance, providing that it is considered that that would be appropriate and all the requirements for carrying out that surveillance are undertaken. That will help in that regard.

On the issue of evidence that has been gathered from third parties, the bill seeks to make no changes to the processes or procedures under which wildlife crime is investigated or prosecuted. At the moment, the rules governing the admissibility of evidence are not specific to wildlife crime, the use of closed-circuit television or video evidence. The Crown is able to consider such evidence and it will do so. However, it has to make decisions on a case-by-case basis about whether a piece of evidence is admissible. There will be various reasons that are considered in that regard, some of which will be legal reasons.

Claudia Beamish

That is helpful. Particularly with regard to third parties, has article 1 protocol 1 of the European convention on human rights, which concerns private property, been considered in relation to future developments? I am thinking about the issue in view of where we started with regard to the remoteness issue and the importance of recognising that wildlife crime is now being said to be a serious crime.

Leia Fitzgerald

It is not being looked at in relation to the bill, as the bill is concerned with the penalties rather than those wider areas. As I said, a decision would have to be made about whether video evidence could be used—that will continue to be the case. There have been cases where it has been deemed to be admissible.

The Convener

Just to clarify, am I correct in thinking that the legal issues around the use of video evidence relate to any crime and are not specific to wildlife crime? That is, there is a threshold that has to be met in order for the police to embark on any kind of video surveillance of a situation. Is that correct?

Leia Fitzgerald

There are rules governing when police surveillance can be used and there are, obviously, operational decisions that Police Scotland has to make. There are rules governing the admissibility of any kind of evidence. In May 2017, Sarah Shaw wrote to the committee with information that covered all the rules around what the Crown takes into consideration when determining whether evidence is admissible.

Finlay Carson

The bill includes the ability to increase sentences and make unlimited fines. Will that increase the possibility of video evidence being used in a case?

Leia Fitzgerald

No. The police have certain criteria under which they can authorise surveillance. Increasing the maximum penalties that are available for some of the crimes might make them fall under some of the categories in those criteria, but there would still be case-by-case decisions for the police to make about whether, based on all the criteria, it would be appropriate to authorise surveillance.

There will be no impact on the use of video evidence from third parties. It will still be for the Crown to determine whether that can be used, under the current rules and regulations.

Finlay Carson

But, potentially, the police will have more scope to consider using video evidence, because the limits involve whether something is a serious crime, a crime that might result in a sentence of three years or more and so on.

Leia Fitzgerald

Yes.

The Convener

I will conclude the questioning by asking about the Werritty review. It was expected to report in the summer, but it did not. Do you have any idea when it might report?

Leia Fitzgerald

The review was delayed for reasons that were outwith the control of the review group. It is an independent review. We do not have a definite date, but we have been advised that the group hopes to present a report to Government shortly.

The Convener

Thank you very much. I thank everyone for their time this morning.

10:40 Meeting suspended.  



11:01 On resuming—  



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Second meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 33rd meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent, as they might otherwise affect the broadcasting system.

Agenda item 1 is to take evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. The first of two panels today will focus on the legislative framework in the bill. I am delighted to welcome: Mike Radford, who is a reader at the University of Aberdeen; Gillian Mawdsley, who is secretary to the criminal law committee of the Law Society of Scotland; and Scott Blair, who is an advocate for the UK Centre for Animal Law. Good morning to you all, and thank you for coming to the meeting.

I want to kick off with questions on the proposed increase in maximum sentences for animal welfare offences. Will you outline the evidence base and the rationale for the proposed increases in penalties in the bill, including current trends for the specified offences and the rationale for specific maximum penalties?

Mike Radford (University of Aberdeen)

The rationale is that the maximum penalty is not appropriate for the most serious offences. It is as simple as that. The number of cases that would be involved is relatively small, but they are the most serious. In particular, there has long been an argument that offences that involve either a large number of animals or unnecessary suffering being caused for money or for pleasure are more serious and the current maximum penalties for such offences are inappropriate.

Finlay Carson (Galloway and West Dumfries) (Con)

Does the scope of the bill go far enough? We are looking at the maximum penalties being increased for some animal cruelty issues, but that is not happening in relation to other offences under the Animal Health and Welfare (Scotland) Act 2006, such as those in section 20, “Mutilation”, section 21, “Cruel operations”, section 22, “Administration of poisons etc”, and section 24, “Ensuring welfare of animals”. Those offences will not be subject to an increase in the maximum fine or sentence, although they could involve serious animal welfare issues. Why are they not included in the new legislation?

Mike Radford

Those are old offences. They existed before the 2006 act. In fact, most of them go back to the Protection of Animals (Scotland) Act 1912. Few of them, with the possible exception of the poison offence, are brought. All such cases could also be covered by the welfare or unnecessary suffering offences.

Finlay Carson

I want to ask about what is excluded from the scope of the bill. It does not cover licensing of animal breeding, pet sales or sanctuaries. Further, there is currently on-going consultation on a bill on sheep worrying. Would it be better to have one piece of legislation that covered all those issues, rather than little bits of legislation that might lead, in the long term, to improvements in animal welfare?

Mike Radford

The 2006 act is an umbrella piece of legislation. It relates to all protected animals—that is, vertebrates other than man that meet one of three conditions, which are that they must be of a kind that is commonly domesticated in the British islands, under the permanent or temporary control of man or not living in a wild state.

On licensing, the Scottish Government has had a consultation on bringing in new legislation on the licensing regime. England did that last year. The licensing regime is an administrative regulatory regime. Nothing will prevent somebody who is in breach of any new licensing regulations from also being prosecuted for a welfare offence or an unnecessary suffering offence under the 2006 act. The new regulations will be complementary rather than in opposition to existing legislation.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I wonder whether you might be able to point us towards any academic research on a particular issue that touches on this discussion. Sentences are about penalising the guilty—and, to some extent, in the case of a fine, they are about compensating the criminal justice system for the cost of the prosecution. However, it is also said that they constitute deterrents. Is there any academic research that shows us the balance in the criminal’s mind between the deterrence that comes from the thought that they might get caught and the deterrence that comes from the punishment that follows being convicted? That is a debate that can be had more generally, but, since we are talking about increasing sentences today, I think that it would be appropriate to seek some clarity from academic research.

Mike Radford

There is no such academic research from the United Kingdom that I can point you to. However, it is important to understand that, when it comes to unnecessary suffering—what used to be called cruelty—the vast majority of prosecutions arise from negligence. In other words, the suffering is unintentional—essentially, it involves people not looking after their animals properly.

Clearly, matters are serious if a lot of animals are involved, but such offences are of a completely different nature from those that arise out of deliberate cruelty and unnecessary suffering where a large number of animals are involved or where people are making significant amounts of money—the committee will be aware of the issue of puppy smuggling and puppy farming—in relation to which the penalty clearly does not fit the crime and the potential benefit that people are getting from it.

It is also important to view how the legislation works as a whole. The 2006 act includes provisions on care notices. The difference between the welfare offence and the unnecessary suffering offence is that the latter occurs only after the animal has suffered. The welfare offence can be a protective provision, in that it allows enforcement authorities to intervene at an early stage, either to get the animal out of the situation or to put the situation right. Those who are appointed under the 2006 act can issue a care notice, which identifies the problem, tells the person how long they have got to put things right and what they have got to do. In Scotland, unlike in England, a failure to comply with a care notice is an offence in itself.

The bill would make the system more flexible at both ends. At one end, it would increase the maximum sentences for the most serious offences; at the other end, the proposal to introduce fixed penalty notices would allow a sanction short of prosecution where there is a failure to comply with the care notice.

Gillian Mawdsley (Law Society of Scotland)

I am not sure that this is necessarily the point that you are asking about but, taking a broader view and speaking from a criminal law perspective, I make the point that deterrence is a major factor and an increase in the sentencing available will offer the judiciary greater powers over what the sentence is.

It is important always to think of deterrence in the context of the sentence that is pronounced in any case that is successfully prosecuted, and to look at the factors that come into that. I highlight in that respect the importance of sentencing being appropriate and commensurate in the overall criminal scheme; any sentence is about setting an appropriate tariff and that tariff being known about. That is as much about education and training as it is about the judiciary. I see that as the role of the Scottish Sentencing Council, which is committed to producing sentencing guidelines. That is very important. There are sentencing guidelines in England and, in my experience, they do a lot to educate the judiciary, who might deal with only one case from time to time, to get a sentence right and make it appropriate and in line with the response to other serious criminal offending.

When we consider deterrence, we need to take a step back and look at other factors in the bigger criminal picture. The sentence should be appropriate, but it should also carry sufficient penalty for deterrence.

Mr Radford talked about money being made from crime. Clearly the legislation has a role in relation to the proceeds of crime. Confiscating the proceeds of crime is an important deterrent because, frequently—this is my experience—criminals are concerned not about the conviction affecting them and their being put in prison but about the impact on the family picture and the wider profitability and affluence that has come from the criminal activity.

That might not be the answer to your question about deterrence, but such factors have to be looked at, as does the opportunity that the bill provides to increase sentences and give a range of options, so that a judge is not restricted to imposing a summary sentence and so on.

Scott Blair (UK Centre for Animal Law)

I will make two brief comments on what has been said. On the previous point about sentencing, one of the points that the UK Centre for Animal Law made in its submission to the committee is that there appears to be a view, if not a basis in evidence, that prosecution, detection and conviction in relation to wildlife offences is particularly difficult.

09:15  



If the penalties are set relatively low, we get into a somewhat circular situation where the crimes are difficult to investigate and prosecute and the penalties are not very high, so from the prosecutor’s perspective there is not much incentive to go forward. Conversely, for those who commit offences against wildlife, that means that there is not much of a deterrent. We therefore welcome the proposal to increase maximum sentences for wildlife offences, because that seems to reflect the concerns about the difficulties that arise.

As a practising lawyer, I can understand the attraction to consolidating all the animal legislation into one statute. Having all your law in one place makes it a lot easier to find. As Mike Radford said, the difficulty with that is that the purposes of our various regimes are different. Some are criminal law regimes and some are protective welfare regimes. Licensing is a particular interest of mine and I have recently been involved in some of the work on a form of dog breeding law, puppy farming law and Lucy’s law, so I hope that I am fairly well versed in that distinct area of administrative law, over which a local authority should more properly have control.

It would be difficult to have the one statute, or even a couple of statutes, to cover all those areas. It is far better if they are seen as different but complementary. One example that comes to mind from licensing law is the Civic Government (Scotland) Act 1982—I am sure members will be familiar with that to some extent—which covers areas such as taxi licensing. A breach of the licensing provisions under that act is also a criminal offence and can be prosecuted under criminal law. That system has worked well for years. Likewise, and in so far as we are also looking at reforming our animal licensing law, a system whereby licensing offences are civil matters for the licensing authority and criminal matters for the fiscal is a well-established and understandable model.

Mark Ruskell (Mid Scotland and Fife) (Green)

I am interested in that point, because the bill does not seek to extend sentences for licensing breaches but covers other areas.

The bill could have updated the definition of animal sentience. Do you have any thoughts on that? Is the bill the appropriate place to put that, or are there other ways of updating the definition?

Mike Radford

That requires separate legislation. I gave evidence to the Westminster Environment, Food and Rural Affairs Committee a couple of years ago when the Department for Environment, Food and Rural Affairs produced its ill-fated sentience provision. The issue needs a separate piece of legislation.

Leaving aside what sentience means, which animals it applies to and so on, the issue is still alive as far as DEFRA is concerned. The provision would have made a significant difference in the sense that, until now, animal welfare legislation has focused on those who are directly responsible for animals. The proposed provision would have imposed a duty on the Government. If we are going forward in that way—as I hope that we will do—it is a materially different sort of provision.

I want to follow up on what Scott Blair was saying about licensing. There is the fallback of prosecuting for failure under licensing provisions. However, in practice, the majority of issues are dealt with administratively by changing licence conditions or revoking licences. That is the point of the licensing system: it can be regulated and enforced administratively rather than under criminal law.

Finlay Carson

Your answers have been useful, but they have led me to want more information about other types of penalty.

You talked about different penalties. In practice, how effective are the community payback orders and disqualification orders that are currently available? Will the bill tighten up their use?

What are your thoughts on automatic bans? At the moment, someone can be banned from keeping animals, but there does not appear to be much consistency on the part of the courts in making banning orders. Should there be an automatic ban on keeping animals for people who are convicted of the most serious animal welfare crimes?

Gillian Mawdsley

Community payback orders have been available for some time. They are perhaps particularly important in the context of the presumption against short sentences that was legislated for recently, which, as you know, means that it is unlikely that a sentence of under 12 months will be imposed.

The advantage of a community payback order is that some of the offences that we are talking about are such that unpaid work in the community might well be a payback. That is not a light sentence, given the commitment that is required from people who might have to fit the activity around work. I am not sure where community payback orders have been imposed, but I think that if they are imposed appropriately they can be effective and are in line with the policies that the Government is promoting.

An automatic ban could be appropriate and effective, as part of a sentencing regime. My only reservation is that it would of course always be subject to the appropriate appeal mechanisms, which are clearly laid out. My two colleagues can probably say more about when the sanction of disqualification is appropriate. A sanction that in effect takes away someone’s livelihood seems to me to be appropriate on occasion.

Scott Blair

I endorse that final point. Anyone who immerses themselves in the wealth of material that shows just how cruel people can be towards vulnerable creatures will feel a real repugnance—that is the feeling in my mind and I am sure it is the feeling in members’ minds. There is certainly scope for a system of automatic bans, to reflect society’s view that some things are simply beyond the pale.

This might not be a very good parallel, but I will draw it anyway. We have a system of protection of children in our country, in which the ultimate sanction is that a person’s children are taken away from them and perhaps freed up for adoption. That might be to do with parenting skills or cruelty—every case is different. When we are dealing with cases of plain cruelty, intentional abuse of animals or just reckless disregard for animals’ interests, it is difficult to escape the view that automatic bans have a role to play and would be broadly supported by most members of society.

Mike Radford

It is unfortunate that disqualification orders are not in the bill. The bill’s title includes the word “penalties”, and a disqualification order is clearly a penalty. It is not a punishment, and it is not to be confused with any other sanction that is imposed on a person. Imprisonment, fines and other sanctions that are available to the court are punishments, whereas disqualification orders are intended to protect animals and are, in my view, a penalty, not a punishment. It is unfortunate that the bill says nothing about them.

Disqualification orders predate the 2006 act, but the 2006 act makes available a much greater range of orders. If a compulsory disqualification order were to be imposed, we would need to know precisely what was being disqualified. The idea behind the inclusion in the 2006 act of a lot of variations on the disqualification order was that there would be more flexibility for an order to fit the offence, whatever it was.

The problem is that a court already has to give reasons for not imposing a disqualification order. For the more serious offences, if it is not compulsory to impose such an order, there should—at the very least—be a very strong presumption in favour of it. The problem with compulsory orders is always that, in difficult cases, they could end up being disproportionate, particularly if somebody’s livelihood is affected. However, there should be a very strong presumption that there will be a disqualification order. In addition, if the court decides not to impose one, it should be under a duty to give a reasoned and thorough opinion on that, which should be appealable.

It is also important that there is a register of those orders. At the moment, there is no collective view of orders, so we do not know who is getting them, and we cannot look at the consistency between courts. It used to be said that people would know about disqualification orders because neighbours would know, and because they would be reported in the local press, which was full of court cases. Populations are much more mobile now, so neighbours probably will not know, and there is not a local press in the way that there used to be. As such, there is simply not an informed view of when disqualification orders are being imposed, what is being imposed and who gets them.

Claudia Beamish (South Scotland) (Lab)

Although I have a substantive question, I will first ask Mr Radford about something that he just said. If I heard correctly, he said that negligence was an “unintentional” issue. From my layperson’s perspective, if a person—-an adult who has responsibilities—treats an animal in a negligent way, I do not understand why the word “unintentional” comes in. I have read about a lot of the cases that came forward in evidence, which were very disturbing. Will Mr Radford briefly say more about that?

Mike Radford

Yes. In the criminal law, there are strict liability offences—such as parking and speeding—whereby the person’s state of mind at the time is irrelevant. More serious offences divide into two types, whereby there is either an objective mental element, which is about the reasonable person test, or a subjective one, which is about the intention of the person. For example, the conduct and result of manslaughter and murder are the same; the difference between the offences is the mental element.

Around the world, a lot of cruelty, or unnecessary suffering, offences are restricted to where it can be shown beyond reasonable doubt that the person intended the animal to suffer, which—clearly—is a high threshold. The vast majority of prosecutions for unnecessary suffering do not arise from cases involving people who intend to cause it—rather, those people do not look after their animal properly and, generally, its condition deteriorates over a period of time. That may happen because of ignorance, and, in many cases, it is not just the animal who is not being looked after properly; the lives of those people are in some chaos and they are, in fact, not looking after themselves properly either. It is probably not appropriate that such people be sent to prison. Those offences are much fewer now, because of the welfare offence.

The problem prior to 2006 was that an offence arose only after the animal had suffered. That did not actually protect the animal; it simply made the person accountable after the event. The beauty of the welfare offence is that, along with the care notices, it allows for intervention before the animal has reached the point of suffering. For example, if somebody is not feeding their dog properly, its condition will deteriorate over a period of time, and, if they do not take advice from enforcement authorities, steps can now be taken to get the animal away from that situation. That is a very different situation from that of a person who is deliberately causing unnecessary suffering.

Claudia Beamish

Thank you. That is helpful. I am keenly conscious of the time.

The Convener

Can you keep your questions short, because we have only 15 minutes?

09:30  



Claudia Beamish

Do the panellists have any comments on the need for any further interventions to support the application of appropriate penalties or to support broader compliance with the law, such as sentencing guidelines, enforcement, public awareness interventions or changes to the powers of agencies such as the Scottish Society for the Prevention of Cruelty to Animals? In light of the time that we have, not all the panellists have to answer that question, but if they wish to comment, that would be most welcome.

Gillian Mawdsley

I will pick up the first part of the question and leave the issue of changes to powers.

I refer to the answer that I gave earlier. All changes to criminal sentencing are part of the awareness of the judiciary—the Crown Office and the defence—of what the likely sentence should be and are about pitching that within the criminal framework. As was discussed earlier, we are very reliant on organisations and people who really understand animals making that known. There is also the obligation of education of all those parties, which is part of legal education.

As I highlighted in our response to the Judicial Institute for Scotland, there is a definite need for sentencing guidelines—I referred to that earlier—because they set out parameters. Obviously, judges do not need to observe them, but having such guidelines would make things very clear. That is an area of our law that needs education, training and awareness, and that involves publicity for cases that have been successfully prosecuted. It is about education generally, the education of children, and respecting animals. A number of organisations that are interested in animal welfare have a role in that and, once the bill is passed, we will all have a role in making people aware and ensuring that information is out there. There is no point in increasing penalties unless people are aware that they will be applied when appropriate.

Scott Blair

I will pick up a point that Gillian Mawdsley made. I know that this theme is close to A-Law’s heart. There is an increasing amount of international research that demonstrates links between cruelty towards humans and cruelty towards animals and that shows that behaviours that are learned very early in life can carry through to later life. All of us can probably remember things going on in our own school days, such as someone pulling the legs off spiders in the schoolyard. We look back on such things with horror and think, “How could that have happened?” That was the culture—I hope that it is not the culture anymore.

We also have the paradoxical view of animals being fluffy, Disney-like creatures. Children are fed a lot of wrong information about animals, and they need to understand that animals are sentient and can suffer, and that they can enjoy pleasure and experience pain like the rest of us. If those messages are implanted in children early on, the criminal law will have a lesser role to play because some of the more concerning acts of cruelty that we see may simply not take place.

In that wider context, another area that is perhaps worth exploring is joined-up thinking about people who have been convicted of animal cruelty offences and the extent to which that might be a risk factor for the authorities to consider in relation to what else is going on in those people’s lives and homes.

I will give a brief example. In some American states, if an animal is brought to a vet for treatment and the injuries are unexplained, the vet has a duty to contact the local social services department to put that on record with a view to perhaps triggering further inquiry into the person’s circumstances.

As Mr Radford said, part of the problem can be that people are in difficulty. If they are in difficulty in their own life, that might impact on others, including children and vulnerable people as well as animals. Perhaps there is an opportunity to have joined-up thinking, with education at an early stage and agencies that have become aware of criminal animal cruelty reporting to other agencies that may have a relevant interest.

Mike Radford

The SSPCA could give the committee more information about that when the committee takes evidence from it, because it has been at the forefront of that issue.

The Convener

We need to move on. I want to pick up on the aspect of the bill about rehoming without a court order. Will you outline why that is necessary and what the impacts are likely to be on welfare, perhaps making a distinction between agricultural livestock and domestic pets?

Mike Radford

The answer to that follows on directly from what Mr Blair said about the nature of animals. The offences that we are talking about are not just another criminal offence; they involve living, feeling creatures. The problem is twofold. In the context of agricultural animals, large numbers of animals can be involved. Who is responsible for them and where can they be kept? It may well be that they are coming up to slaughter weight and need to be disposed of as quickly as possible for economic reasons.

With companion animals and the like, by the nature of such cases, the animals have had an unfortunate experience and have been looked after poorly. At present, if an owner does not voluntarily give up ownership of the animal, it has to be held by an agency, which is most commonly the SSPCA. The agency has to pay for that, and it blocks up kennels so that other animals cannot be brought in. That situation can often worsen already inherent behavioural and other problems that have arisen from the way in which an animal has been treated.

The Convener

There is a real issue with puppies, for example.

Mike Radford

Absolutely.

The Convener

They might have to be kept in that situation until they are adult dogs, so they will not have socialisation. Is that another reason for the measure?

Scott Blair

Absolutely. I am a dog owner and I suspect that some members may have a dog or certainly experience of dogs. If, like me, you have had experience of raising a dog from puppyhood, you will know that the early stage in their life is absolutely crucial in two ways. We often hear people saying, “My dog isn’t good with other dogs,” which is usually indicative of the fact that the dog has not been properly socialised with other dogs. That is a classic issue in puppy farming scenarios, where breeding bitches are kept in cages without contact with other dogs.

It is equally important for a puppy in the early stages of life to be handled appropriately by humans to encourage the inherent bond between canines and humans. If that is not done, you end up with a dog that is aggressive towards people. In the scenario in which a puppy farm is raided and dogs are recovered—including adults used for breeding and puppies—they might have to sit in some kind of limbo for months and months. I readily accept that the SSPCA does what it can in that scenario, but there is nothing better than a proper new home, particularly for a puppy, because some of the damage that might have been done can be mitigated or steps can be taken to bring on the puppy and socialise it appropriately.

We can benefit society if we stem the problems that arise from problem dogs—although I would say that the problem is the owners—that have not been socialised properly early on in life. If we simply hold them in the limbo of the legal system until the owner agrees to the transfer—or perhaps does not and the case ends up in an appeal process—the wider public benefit is simply lost. We may have rescued a puppy, but we have not given it the life that it deserves.

The Convener

There is a question about both sides of the issue. How do we balance the rights of the animal with the rights of the owner in such situations? There is an issue of the process of the law. We could have a situation in which an owner is not prosecuted but loses a herd of cows or animals that they were rearing to sell.

Mike Radford

The bill addresses that issue, in that the animals can be disposed of only if the owner does not seek to have the notice overturned. There is protection, in that animals will not simply be disposed of without the owner being made aware of that. The owner has a limited period of three weeks to do that, which seems to me to be entirely appropriate.

They have to be informed of what is intended, and the provisions of the notice in the bill are pretty detailed.

It seems to me that, in addition to the practical issues that Mr Blair has identified, there is an issue of principle here. The role of the law and the courts is to protect the vulnerable. By definition, if an animal’s condition is so poor that it has been taken into possession, the principle should be that it is put into the best position possible as soon as possible. That should not automatically override the owner’s rights, but it should be given priority. The onus should be on the owner to argue against that—the current position is that the cards are stacked in the owner’s favour.

The Convener

We have to move on. Stewart Stevenson, could you deal with the two themes that you wanted to ask about in the one go?

Stewart Stevenson

I will seek to do that.

On compensation, section 11 of the bill inserts new section 32H into the 2006 act. Proposed new section 32H(3) sets out that the value of the compensation will be the greater of the value at the point at which the animal was taken away from its owner and the value at the end of the process of determining compensation. I wonder why that second provision exists at all, given that interventions such as veterinary treatment would increase the value of the animal. Why should the compensation value not simply be the value of the animal in the condition that it is in when it is taken away from the owner, however poor that might be, bearing in mind that it is being taken away for welfare reasons? I make the observation that that amount should be less any expenses, but that is a separate issue. The expenses could be substantially less than the increase in value; in fact, in some circumstances, the value could be close to nil.

Mike Radford

You make a very good point.

Stewart Stevenson

That is an adequate answer for my purposes. I always read the words in the bill.

The other issue is that the compensation is determined before any criminal justice case might have begun its formal process. Should compensation be paid to someone who is going to go into the criminal justice system? When the animal exists purely because of the criminal actions of the individual, should that individual get any compensation whatever? In other words, should the decision about compensation not follow the completion of any criminal justice process and potentially be determined to be zero, regardless of what the bill, as it is currently drafted, says?

Mike Radford

You make a second very good point.

Stewart Stevenson

In that case, let us move on to fixed-penalty notices, because I know that we are short of time.

I have seen fixed-penalty notices being used very effectively to deal with low-level street crime, such as drunkenness on a Saturday night. In relation to what the bill says about fixed-penalty notices, I am unclear—perhaps because I have not read the relevant part of the bill thoroughly enough—about whether the SSPCA can administer them or whether a constable has to do that. Should both options be possible? Given that the SSPCA has powers to take animals into possession, is the way in which the bill is constructed sensible and a good addition to the law?

Mike Radford

Yes, it is a good addition to the law. A person who has been appointed under the 2006 act can administer fixed-penalty notices, and I understand that most SSPCA inspectors have been granted powers under that act.

As I said earlier, the proposed arrangement makes the regime much more flexible at both ends—the serious end and the less serious end. I see fixed-penalty notices being particularly valuable when somebody is not complying with a care notice but it would be disproportionate to prosecute them. However, a record must be kept of who has been given such notices.

09:45  



Angus MacDonald (Falkirk East) (SNP)

We saw broad support in our consultation for the introduction of a Scottish Finn’s law. It is perhaps worth noting that a small number of respondents suggested that the bill should go further and mandate harsher penalties for attacks on service animals. One respondent suggested that there is a case for introducing a new offence of intentionally or recklessly causing injury to a service animal. Do the proposals in the bill for a Scottish Finn’s law represent an appropriate mechanism for increasing protection for service animals? What are the implications of the change?

Scott Blair

I drafted the A-Law response on this point and what struck me when I embarked on this was the level of violence that is out there towards service animals, including horses, which I find extraordinary. I ride myself, I am around horses, and the idea of anyone hitting or punching a horse strikes me as bizarre, but it goes on and there are many examples of it. The issue relates to more than just dogs and affects any type of service animal, so there has to be a clear recognition of what we are talking about.

There is a large body of material from England about attacks on service animals and, in particular, about public order offences where horses or dogs are deployed. There is a paradox, I think, whereby a person can be committing an offence, such as breach of the peace, disorderly behaviour or assaulting a police officer, but if a service animal becomes engaged with them, they are entitled to say, “The suffering was necessary because I was defending myself”. That is simply incoherent, in my view, so the bill is a valuable way of addressing the current anomaly in Scotland.

You asked about the impact of the change. I think that there has to be appropriate sentencing. If someone commits this offence in the context of public order, for example, there might be an issue as to whether it is an aggravating factor in the overall circumstances of the public order offence. In any event, there is merit in having an independent penalty to make it clear that animals have rights—in a sense; this is a controversial area—or at least that we have duties towards them, and that that includes those who assault animals in the course of their behaviour. It is simply not appropriate.

As for making the offence wider, the difficulty that one always has is the question of why we single out certain members of society for particular treatment. In the last days of the death penalty, the sentence of death was handed out only to those who killed police or prison officers and so on. That was one of the anomalies that people brought forward to say, “This is another reason why we cannot support this; it produces arbitrary distinctions.”

My view—it is very much a personal view—is that there is an argument for a higher penalty for attacks on service animals, simply because of the deterrence element. I am not aware of any widespread body of evidence or opinion out there that reflects that view at this time, but there is certainly a clear body of opinion and evidence that supports something resembling Finn’s law, and the model in the bill very much reflects that body of opinion.

Mike Radford

I support Finn’s law. Like Mr Blair, I think that it should go beyond dogs and include any service animal that has been trained and is being used in the service of the public.

I invite the committee to consider taking the approach further to include assistance animals. There is a particular issue in that regard—we are talking mostly about attacks on dogs—because the nature of a person’s disability might mean that they are unable to see or be aware of the danger and take avoiding action, as a normal dog walker could. Secondly, the nature of such an attack can result in the dog not being fit to carry on their role, and clearly that has implications for the dog and for the person whom the dog is assisting. It is a really serious issue, and though there are relatively few such instances, the number does not lessen their importance.

The Convener

I apologise to members who wanted to come in on the back of that answer, but we are running out of time. We will move on to wildlife crime.

Claudia Beamish

The panel has already looked at the increase in penalties. Are there any comments about serious wildlife crime? I am interested in the implications for the investigation of wildlife crime of changes in the bill such as the change in statutory time limits and the potential ability of the police to authorise covert video surveillance.

I am making all my points at once, because we are short of time—I apologise; we are always told to ask one question at a time. To achieve the aim of increasing deterrence, might other work or measures be required, such as the use of vicarious liability, resources for investigations and enforcement or other recommendations of the Poustie review? I have thrown a lot in, but answers on any of those issues will be most valued.

Scott Blair

I have a comment on vicarious liability. With wildlife crime, one is typically dealing with large areas of land that are under the management of an entity such as a company or trust that employs stalkers, keepers and other persons to manage the land. That is an industrial activity, albeit that it is carried out in the rural environment, and there are parallels in other areas of the law—this used to be the case under the Factories Act 1961; it is the case under the Health and Safety at Work etc Act 1974—under which persons who employ other persons to perform a role in the context of a business are often vicariously liable, both civilly and criminally.

My view is that there is no distinction in principle to justify maintaining the view—if there ever was this view—that vicarious responsibility has no role or a limited role in the rural environment. That strikes me as anomalous. The issue has been seen against the background of a time when people who worked the land were independent contractors who came in and provided services to the landowner. That might have had some validity in the days of the Victorian estates, but it does not have validity any more with regard to large estates that are managed either as a means of producing game for the table or as sporting estates, where there is much money to be made. My respectful submission is that, if there is much money to be made, there has to be vicarious responsibility on the part of the people who are in overall management of the site, as is the case with regard to industrial matters.

Of course, that must be subject to the usual defences of reasonable diligence and due diligence being taken, to cover situations in which members of the estate break the law despite the best efforts of the estate management team to ensure that that does not happen.

There are so many parallels in our laws, from liquor licensing through to health and safety legislation, where vicarious liability applies. It is anomalous that the proposition is not accepted in a general sense in the area of law that we are talking about.

Claudia Beamish

Is it your view that there would have to be a direct prosecution of the alleged perpetrator, or would evidence of an alleged crime be sufficient?

Scott Blair

Yes, evidence of an alleged crime would be sufficient. There are precedents with regard to alcohol licensing, which is an area of my practice. Provisions in the Licensing (Scotland) Act 2005 make clear that if, for example, a shop assistant has sold alcohol to a child, one can go against the shop owner, not necessarily the assistant; the real issue would be with the owner, not the assistant. Our law has precedents that already work on that basis.

Claudia Beamish

That is helpful; thank you.

The Convener

Are there any other comments before we wrap up? We have only a couple of minutes.

Gillian Mawdsley

I want to make a point about vicarious liability in the criminal context. A common driving offence is that of causing or permitting the uninsured use of a vehicle, which is a contravention of section 143 of the Road Traffic Act 1988. The issue of vicarious liability is involved when the person who is the owner of the car is the one with the insurance but the person who is driving does not have insurance. That is quite a successful prosecution method, because of the issue of whose fault it is that there is no insurance.

The Convener

Mark Ruskell has a final question.

Mark Ruskell

Earlier, Claudia Beamish asked about the powers of the SSPCA. Do you see a mismatch between the SSPCA’s powers in relation to domestic animals and its lack of powers in relation to gathering evidence on wildlife crime?

Mike Radford

There is an issue there, and I am sure that the SSPCA will be happy to give you evidence on that.

Mark Ruskell

What is your view?

Mike Radford

My view is that the SSPCA should be given more powers and that it should be treated as a public body, so that it would be subject to judicial review in the same way as other public bodies are.

The Convener

I thank our witnesses for their evidence. It has been helpful. I am sorry that we have run out of time.

We will suspend briefly to allow for a change of witnesses.

09:55 Meeting suspended.  



10:01 On resuming—  



The Convener

The round-table evidence session that we are about to embark on focuses on animal welfare issues in the bill. Before we begin, I remind people that there is no need to mention individual cases or names of people. Please speak in general terms, in case we get ourselves into bother. I am sure that everyone knows that; it is just a friendly reminder.

I welcome Libby Anderson, policy adviser at OneKind; Runa Hanaghan, deputy veterinary director at the Dogs Trust; Howard Bridges, chief executive officer of the Edinburgh Dog and Cat Home; Robbie Marsland, director of the Scotland branch of the League Against Cruel Sports; and Penny Middleton, policy manager for animal health and welfare with NFU Scotland.

I will start by asking for general views on the rationale for the increases to penalties in the bill, and I invite witnesses to chime in on why the provisions in the bill are necessary.

Libby Anderson (OneKind)

I am always happy to kick off.

First, I think that the case has been made over several years that the penalties have fallen behind those in other countries and particularly other European countries. There was also a strong view that the punishment element of sentencing—I note that Stewart Stevenson referred earlier to the different elements of sentencing—was very much a public focus. OneKind’s view is that there is a role for that, and that we should have equivalence with other jurisdictions. We are also pleased that the penalties for wildlife offences are coming up to the same level as those for offences relating to the welfare of domestic animals. We think that that is important.

I stress that OneKind’s view is that efficacy of sentencing is important, and that we should not focus only on punishment and revenge, as it were. We want justice, but we also want prevention of offences and protection for animals.

The Convener

I presume that you also want there to be the right mix of approaches to give courts the flexibility to decide on the efficacy of the things that can be deployed—I am mixing up my words, but I mean that courts should have a suite of options.

Libby Anderson

Yes. The fact is that, with judicial policy and the available penalties, community payback orders are much more commonly used in relation to the offences that we are talking about. Those orders have been recognised as a useful tool, but there is an issue about the measures that are attached to them. Unpaid work, which Gillian Mawdsley referred to, is the most common measure that is attached, but there are several. Another one is supervision by a social worker. Of course, a skilled criminal justice social worker with knowledge of animal welfare issues would probably be able to help an offender to consider their behaviour. Another potential measure is to require a convicted person to attend various programmes that are similar to domestic violence programmes such as the Caledonian men’s programme.

As you know from our submission, we believe that retraining and teaching people empathy and understanding for animals could have longer-term and more far-reaching effects in changing people’s behaviour. The committee might like to come back to that later.

The Convener

At the other end of the scale is the organised crime element and serious crimes that require the flexibility of custodial sentences.

Libby Anderson

I could not agree more, which is why we support the higher penalties.

Runa Hanaghan (Dogs Trust)

I echo Libby Anderson’s thoughts on higher penalties. The presumption against 12-month sentences means that the current penalties might not deter people from doing something again.

I also agree with Libby Anderson that we need to be able to reach for support and assistance for people who are struggling. We have heard evidence previously about people who were brought up in neglect and how education and understanding can be accessed and brought through the system.

On organised crime, our organisation is close to that issue and understands the effects of puppy smuggling and puppy farming. The seriousness of what the animals endure during the process that they go through for profit is appalling. We want sentencing to be brought up to a level that reflects the seriousness of the crimes that people are committing.

Finlay Carson

I declare an interest as a member of the National Farmers Union Scotland. I do so because I want to direct my question to Penny Middleton. It is about other types of penalty. We have heard about other methods of punishment. In relation to animal welfare issues, what is your opinion of how effective the use of community payback orders and disqualification orders is in agriculture? Does the bill go far enough with that sort of penalty?

Penny Middleton (NFU Scotland)

For some of the more serious cases, the use of disqualification orders would be appropriate and effective.

On the level of penalties, we need appropriate penalties to deter people, but the first port of call for a farmer who commits an animal welfare offence would be to penalise them under the cross-compliance system. That is a much simpler system, because there is no burden of proof. Some of the fines that people get through the cross-compliance system are significantly higher than some of the penalties that we are talking about under the bill. I see that as a bigger deterrent on the farming side.

Finlay Carson

What are the other witnesses’ thoughts on community payback and disqualification orders?

Runa Hanaghan

Disqualification orders are important, because there are people who might not learn or be empathic towards animals, the processes that can happen and how some animals can suffer.

With disqualification orders, it would be valuable to have a recognised body that holds the information and can share it across various elements of society so that the legislation can be better enforced and upheld.

Libby Anderson

As was mentioned in the discussion with the previous panel, there is room for a register of disqualification orders, because it is hard for enforcement agencies to know whether they already exist.

We expect disqualification orders to be considered as part of the process after conviction, because the 2006 act already requires that. However, there is no open understanding of the reasons why a disqualification order is not given. In our submission, we suggest that an explanation should be given in open court. There might be reasons why disqualification is not necessary, but the presumption should be that that must be considered. Perhaps there should be an automatic ban, but cases will vary. There should certainly be automatic consideration of disqualification and then, if such an order is not given, there should be an explanation of why that is.

Mark Ruskell

The bill is about sentencing, but I want to ask about what we need alongside that to ensure that there are successful prosecutions. Is there a need for sentencing guidelines? Are there issues with resourcing certain bodies? Should the functions of certain bodies, such as the SSPCA, be extended? Are there issues with the process that Crown Estate Scotland goes through in deciding whether to take forward a case?

Robbie Marsland (League Against Cruel Sports)

I would like to pick up on the admissibility of video evidence from non-governmental organisations, because I am afraid that I do not understand it. I have been looking at the issue for the past five years. The League Against Cruel Sports first looked at it in relation to fox hunting, but it is relevant to many of the issues that we are looking at. It was explained to me that NGO video evidence is not admissible in a Scottish court, and I know that RSPB Scotland has had difficulties on that front. Notwithstanding that, the league has successfully submitted video evidence to two courts in Scotland, and I was pleased that that evidence was admissible in those cases. I have had an explanation of why that was the case, but I still do not understand it. I am quite close to the matter, and I think that there are others who do not quite understand the system.

Mark Ruskell

Will the bill change the position on admissibility, given that we would be looking at higher sentences?

Robbie Marsland

It seems to me that it is a decision for the fiscal. As I said, I have never really understood why one decision differs from another. There are ways in which it has been explained to me, but I cannot see how the explanation relates back to the law.

Mark Ruskell

Are there other points on what changes need to be made in the bill to bring about successful prosecutions?

Libby Anderson

On admissibility, as I understand it, the police would be able to use surveillance techniques, because the increased sentences would mean that the standards under the Regulation of Investigatory Powers (Scotland) Act 2000 would be met. However, I did not get the impression that the provisions would be extended to NGOs. Like Robbie Marsland’s organisation, OneKind has experience of observing what appeared to us to be offences, but the video footage was not found to be admissible. It was all bound up with issues relating to access to land and whether we were conducting surveillance. It is still a very murky area.

On the other part of Mark Ruskell’s questions, a number of people have mentioned the extension of the SSPCA’s powers to investigate wildlife offences, which we support whole-heartedly. It has 60 trained inspectors who are very knowledgeable about gathering evidence and about all the legislation, and that resource should be harnessed. I understand that the offer is still open.

Runa Hanaghan

We feel that the SSPCA should have more powers to assist with cases, but people from that organisation will be best placed to answer questions on that.

Claudia Beamish

It has been highlighted to me that there could be a conflict of interest in relation to the SSPCA. I make that point in a completely neutral way. We will be taking evidence from the SSPCA next week, but are there any quick comments on that? What would be the purpose of that?

Howard Bridges (Edinburgh Dog and Cat Home)

What would be the conflict?

Claudia Beamish

I ask the question because, in the previous parliamentary session, some people said that it could be seen as a conflict of interest. I do not understand why, and I have never managed to tease that out. I see that nobody has any comments.

The Convener

We could ask the SSPCA if it has heard those views.

Claudia Beamish

Okay.

The Convener

Stewart Stevenson has a quick question.

10:15  



Stewart Stevenson

We are talking about sentencing and I immediately thought about fixed-penalty notices, particularly in relation to what Libby Anderson and Runa Hanaghan said. Libby made the point that community sentences can often be useful in helping people to reset their attitudes and behaviour towards animals. Does that lead to any worry about FPNs, which are, of course, short of criminal sentences? Are there any issues, given that FPNs are offered and have to be accepted before they can be applied? Might we be allowing some people who need assistance towards better behaviours to drop out of the system because we offer them FPNs? I am not expressing a personal view; I think that they are of use, but I want to test whether that is correct in light of what Libby and Runa said on the sentencing issue.

Libby Anderson

The bill allows for regulations to be made to create the fixed-penalty notice regime and those will need to be scrutinised carefully when they are brought forward. Our unequivocal position is that FPNs must be used only for minor technical offences. They would not be appropriate if there is any suggestion or belief that an animal has suffered unnecessarily. That said, in terms of the wider regime and the burdens on local authorities, who will have a major role in using FPNs—I believe that they are very much in favour of them—if their use increases enforcement overall and makes people more mindful of their obligations, we definitely support that. However, FPNs are certainly not applicable to the more serious offences in which an animal has suffered.

Stewart Stevenson

So your view is that FPNs would be appropriate only where there is a welfare issue that has not yet led to an adverse outcome.

Libby Anderson

I am sorry, but that is not exactly our view.

Stewart Stevenson

That is why I am teasing out the matter to see where you stand. I want us all to be clear. Equally, did I hear you suggest that when the regulations for FPNs are drawn up the penalty offered need not be financial? It might be a penalty of another character.

Libby Anderson

That had not occurred to me, but it is an interesting suggestion. If there is a welfare issue, the care notice is the route to go. Mike Radford described very clearly how those operate. I cannot see FPNs being appropriate for welfare offences, but I will let others comment.

Runa Hanaghan

I absolutely agree. I like Stewart Stevenson’s point that FPNs do not always give people access to interventions that might help to support them and manage a future problem. As has been pointed out, FPNs should be held on a register so that they can be viewed and understood if the situation escalates. Those would be really valuable things to have in the system.

Finlay Carson

I want to go back to the penalties under the Animal Health and Welfare (Scotland) Act 2006 and ask whether the current penalties are appropriate for animal offences other than those that are included in the bill. As I mentioned to the previous panel, we are talking about mutilation, poisoning, abandonment and so on.

On the scope of the animals that are included, what are your thoughts on how the 2006 act deals with fish and other marine animals? Is the scope in the bill wide enough and appropriate?

Runa Hanaghan

From a professional veterinary perspective, it is quite a scope when we think about all the different species that we are talking about. The Dogs Trust has raised the issue of the other elements contained in the 2006 act and making sure that things such as mutilation, cruel operations and poisons are brought under the umbrella of the bill. It is important that the sentencing guidelines for such behaviours come within the area of welfare and unnecessary suffering that we are discussing today and that they are brought up to the same level.

Finlay Carson

What about widening the scope and including other animals? We all immediately think of dogs and cats, but what about fish, for example?

Libby Anderson

First, I will comment on the issue of offences. I originally thought that the abandonment offence should be an offence of unnecessary suffering rather than a welfare offence as set out in the 2006 act. That is still my view, because abandonment can lead to severe unnecessary suffering, although I acknowledge that, as was said earlier, section 19 of the 2006 act would be applicable. However, you make a good point.

The scope of the bill covers fish, because they are vertebrates. OneKind suggests that the scope should be extended to cover decapod crustaceans, which would include lobsters, crabs and prawns, and cephalopods, which would include octopuses and squids. The 2006 act probably came a little bit too early for the evidence of their sentience and ability to suffer to be established in everybody’s mind, but there has been a great deal of research that shows that they have such capacity. They need protection, because they are used in restaurants, the food trade, zoos and aquariums. Therefore, we welcome consideration of extending the scope. There is provision to do that by regulation under section 16 of the 2006 act, but this is a good time to air the issue.

The Convener

I will move on to the part of the bill about rehoming without a court order, which I asked the previous panellists about. At the moment, a court order is required in order to rehome animals, but the bill proposes a power to rehome or sell off animals without a court order.

On the one hand, we have the rights of the owners of the animals; on the other hand, we have the rights of the animals involved. Does anyone have views on striking the right balance between those rights?

Runa Hanaghan

From the stance of an organisation that has kennels and shelters and that rehomes animals, I think that the three-week timeframe is appropriate. It would be lovely if it was not as long as that, but the guidelines that have been set out allow for the human element, so that people can appeal and manage the situation.

It seems that, at this stage of the process, animals are seen as property and are held while people wait for a trial. Actually, they are sentient beings and it is very important that we consider their welfare through the process. Allowing them to move forwards, be rehomed and managed better so that they are not hanging on in a shelter environment for a lengthy time until the court convenes and decides on sentencing is an important factor in this.

The Convener

We have talked about the socialisation of animals, particularly puppies, as a big area of concern while the animals are in limbo. I certainly know of a case that has lasted two years. What are the views of the Edinburgh Dog and Cat Home and the Dogs Trust of the impact on animals of being in limbo?

Howard Bridges

There is obviously a cost involved to the charity, but the welfare of the animals is put at great risk because of the length of time involved. In some cases, they can be kept in kennels for up to one or two years. We would prefer to rehome dogs and cats as quickly as possible—that is the only way forward as far as we are concerned.

We support the three-week timescale and we agree with Runa Hanaghan that shortening that would be all well and good. There is certainly an impact on animals and the staff who have to care for them day to day.

Runa Hanaghan

The point about younger animals, including puppies, is important. If they are brought into a kennel environment early, they could be waiting a year or so before sentencing occurs, and dogs have a huge socialisation period in the first four months of their lives. That is being restricted and the dogs will be institutionalised in a kennel environment instead of understanding the wider world in a better way.

The Convener

Obviously, the provision would have an impact from an agricultural point of view. Would Penny Middleton like to comment?

Penny Middleton

Any decision to seize farm animals is a very big one to take. It is not as easy to care for and kennel agricultural animals, and you could be talking about large numbers of animals. The issue of what you are actually going to do with those animals, should you seize them, can be an extremely difficult barrier. If you have to hold them for long periods of time, the limbo period can make it even more difficult. There may be animals that are coming to the age at which they should be going to slaughter or at which various management practices are required.

You need to have a clear plan in your head as to what you are going to do with farm animals when you seize them. It is important to know your pathway, and to have a quick resolution. The only slight concern that we have is the fact that, when there are serious welfare problems on a farm, a mental health aspect in relation to the farmer is often behind them. As such, it is about making sure that the farmer understands what is happening and is given the opportunity to properly engage with what happens to those animals.

The Convener

You have all mentioned the financial impact of caring for animals on charities, which could be diverting that income in other ways. However, there is also a financial impact on local authorities, if they have to care for agricultural animals in a limbo situation.

Penny Middleton

Yes. Obviously, there is huge cost involved in taking over and caring for farm animals. Although local authorities often try to do it in situ, they still have to pay somebody to come in and feed and care for the animals. If the owner is not cooperative, that might put them in a difficult situation. There tends to be a very difficult, big and brave decision before you are talking about actually seizing farm animals. However, it helps if you have a clear pathway of how you will handle those animals.

The Convener

Before I move to questions from Finlay Carson on this theme, I will bring in the compensation element. Stewart Stevenson brought it up with the previous panel; he may want to revise some of the questions that he asked in order to get a view from this panel.

Stewart Stevenson

Yes—we will also try to get as concise a set of answers. The key question is whether it is appropriate to allow the increase in the value of an animal, post its being seized from its current keeper, to be included in the calculation of the compensation. That was the fundamental question to which I got an unambiguous answer from the previous panel.

Let me also relate that to a more general question from another domain of criminal justice. Heroin is a legal drug; however, almost all heroin is held illegally. We do not compensate heroin dealers, and so why should we compensate people who have animals illegally? Why should we do it at all?

The Convener

Would anyone like to answer, on any of those points?

Runa Hanaghan

I heard Stewart Stevenson’s point about the compensation value, before and after, at the earlier session, and I appreciate it. From a charitable perspective, when we are involved in such cases, a lot of resource is placed into the animals that come into our care. As such, if you consider the value as the outcome, it may well be that the animals have increased in value at the end of a period of care, rather than their having had that value at the beginning of that period. It is a hard question to answer. We understand Stewart Stevenson’s point—which was well made—that the value at the beginning of the process of three weeks, and at the end of the process of three weeks, can be very different.

The Convener

It comes back to the issue of a person being innocent until proven guilty, particularly if you are in a situation where you have livestock and you go through a process and those animals are not kept in a situation; there are welfare issues around that. At the same time, if a person is not convicted at the end of the process, it has to be taken into account that a business has not gone down the tubes meanwhile, does it not?

Libby Anderson

In fairness, compensation for commercial animals ought to cover that adequately. Of course, it is legal to keep animals. The mischief that is being addressed is when things go wrong, rather than the keeping of the animals in the first place, which is to be encouraged.

10:30  



However, for me, the question throws up the tension between commercial animals that are bred and reared to be sold and therefore have a clear commercial value, and domestic animals that are kept as pets. As far as I can see, the bill will cover all pets. We might say that, as a matter of principle, being able to remove them is desirable, and in many circumstances, we want to extend the protection to all animals. However, a difficult dynamic is involved when we are talking about a relationship of love, care and companionship with a pet, which, arguably, cannot be compensated for. Even bad owners very often love their pets—they just make mistakes or are careless.

I understand that the intention is for the bill to be primarily used for commercial situations involving livestock and traded or trafficked puppies—those are the examples that are normally given. In those cases, it will be possible to manage the compensation in order to achieve an appropriate level and ensure that people are not rewarded for their carelessness. However, if the provision is used for domestic pets, it would be very difficult to estimate the compensation.

Stewart Stevenson

Of course, the bill says that the court can determine that no compensation be paid in any event.

Libby Anderson

Indeed.

Penny Middleton

As has been suggested, the question relates more to livestock. Obviously, if someone takes in poor-quality livestock and feeds them up, they will be of higher value at the end of that. Our position is that it probably should be the value of the animal at the time of seizure that is compensated for. There are costs associated with improving the standard of the animals. I suppose that that could fall under the provision about the “reasonable costs” of keeping the animals and could be taken into account in valuing the animal at the end of the process—more could be taken off to account for the expense involved in getting the animal to a higher value. However, the simplest and fairest approach would probably be to use the value at the time of seizure.

Claudia Beamish

I think that Runa Hanaghan said that animals are sentient beings and not property. That is an interesting remark, and I am simply trying to understand it. It connects to Stewart Stevenson’s question about whether compensation is really appropriate for a puppy farmer. That has not been answered, although I understand that there are many reasons why it would not be. A drug dealer is not compensated for their property, because it is illegal property, and surely puppy farming is illegal. I would like to tease out those issues a bit further.

Finlay Carson

Puppy farming is not illegal.

Claudia Beamish

Okay, but it will be when Christine Grahame has done her member’s bill on that.

Stewart Stevenson

It is illegal if it is unlicensed.

Finlay Carson

Not necessarily.

Claudia Beamish

I understood that it was, but I stand corrected.

Runa Hanaghan

To clarify, I am not legally trained so, when I talk about property, I suppose that I am trying to marry up the idea of an object that is seized from a house and that can be kept until a court convenes to provide sentencing, with the idea of an animal that is seized. That is a very different piece of property, if that is what we are talking about. An animal is a sentient being, and holding it for a lengthy period can create welfare problems. In essence, the bill is trying to address the welfare of the animals and how they are managed.

I take Claudia Beamish’s point. Puppy farming is a very challenging area to address. It is not illegal to have a dog but, given the effects of puppy farming on the dogs that are in the care of certain people who are perhaps related to organised crime and other areas in society, and that the profits far outweigh the value of any animals that are seized, we must consider more closely the penalties to address the issue. That goes back to the penalty element, rather than the compensation element.

I feel that within the parameters of what we are discussing, it is very important to take welfare into account. If people are actively negligent—not doing it unknowingly—then that is puppy farming and it is something we need to define within what the bill introduces. That concern comes through in your questions in the last couple of hours. You are looking at where we are making these decisions. I agree with the point about guidelines around sentencing, because I think that helps us to weigh up where each of these areas is positioned.

The Convener

Libby, do you want to come in on that?

Libby Anderson

On compensation, I want to briefly reiterate, because what Stewart Stevenson raised is important, that compensation would be forfeited. The bill says that,

“Subject to any order of a convicting court ... the relevant owner’s right to compensation is forfeited (in whole or in part)”.

The court could provide for that: I think that it is unlikely that compensation would lead to anyone profiting by their negligence or cruelty.

The Convener

Finlay Carson has a quick question before we move on to look at Finn’s law.

Finlay Carson

It is clear that there is a range of implications of the proposals for different types of animals, whether they are commercial animals, companion animals or whatever. We want to ensure that a robust process is in place so that selling or rehoming is done safely and appropriately. However, is the panel content that the agencies that would be in receipt of the new powers in the bill are sufficiently accountable and otherwise equipped to use those powers effectively and fairly?

The Convener

Does anyone want to take that on?

Libby Anderson

Yes.

The Convener

That is just a yes.

Runa Hanaghan

I presume that you mean the SSPCA and the ability of its staff. I agree.

The Convener

Any other views on that?

Robbie Marsland

Yes, I agree.

Mark Ruskell

I want to look again at the scope of the bill, because it extends the potential for maximum sentences for crimes where there is unnecessary suffering and fighting, but excludes some other areas. What are your thoughts on that? It does not include poisoning, for example. How appropriate is that catch-all of “unnecessary suffering” and are there other areas? For example, if I poisoned a greyhound, would that be unnecessary suffering, or would it be poisoning?

Libby Anderson

Are you talking specifically about the animal health and welfare section, or are we moving into the wildlife side as well?

Mark Ruskell

Across both those areas.

Libby Anderson

As Mike Radford said, it would be covered by section 19 of the 2006 act, on unnecessary suffering, but it is a fair point. If the poisoning section were used, it would be a lesser penalty, which would be a matter of concern. The other thing that we noticed in the wildlife section is that the possession of pesticides remains an offence at the lower end of sentencing, although the welfare implications and the public safety and health implications of possessing pesticides are potentially very serious. We think that that sort of penalty needs to be reviewed.

Mark Ruskell

Would that include the conservation impact of using a pesticide or digging out a badger sett, for example? There is an animal welfare implication, but there are wider implications on the environment. I am interested to know whether you think that the provisions in the bill capture those wider impacts and the severity of crimes.

Libby Anderson

The new penalties proposed under the Protection of Badgers Act 1992 and the Wildlife and Countryside Act 1981 are considerably increased, so that the highest sentences will be a five-year maximum sentence and an unlimited fine. It is very varied, as you know, for different categories of offences, but the higher level, which I think would include the digging out of a badger sett, would attract a much higher sentence.

Robbie Marsland

I reiterate what Libby Anderson said about possession of pesticides and the level of sentence that that gets. In our experience, it is not unusual to find caches of pesticides hidden on estates. If those are used in the way that we suspect, it leads to not only a high animal welfare impact but the illegal targeting of protected species. It would be worth considering the level of sentence for possession of pesticides.

Angus MacDonald

The panel will have heard me ask the previous panel a similar question. We saw broad support in the consultation for the introduction of a Scottish Finn’s law. It is worth noting that a small number of respondents suggested that the bill should go further and require harsher penalties for attacks on service animals. One respondent suggested that there is a case for introducing a new offence of intentionally or recklessly causing injury to a service animal. Are the proposals in the bill for a Scottish Finn’s law an appropriate mechanism for increasing protection for service animals? What implications could the change have?

Howard Bridges

I fully support Finn’s law. I suggest that, as well as service dogs and other service animals—we talked about horses earlier—assistance dogs such as guide dogs should be included.

The Convener

The previous panel mentioned that.

Angus MacDonald

I think that Runa Hanaghan’s submission on behalf of the Dogs Trust mentioned extending the law to assistance animals.

Runa Hanaghan

Yes, we fully support that. The point was clearly made by the earlier panel about the huge impact of an incident not only on the person but on the animal, and about the fact that a person cannot always appreciate that there is danger in the area where they are standing with their assistance dog. It is very important to increase the scope of a Scottish Finn’s law to consider guide dogs and other assistance animals.

Libby Anderson

Our position is that any animal that is made to suffer by humans deserves equal access to justice. The bill will remove the anomaly whereby service animals were not receiving the same justice.

We are slightly concerned that the definition is too narrow. It is based on the custodian—the police or prison officer—and therefore applies only to police dogs and police horses. I fully support the view that the legislation should be extended to other assistance dogs, which have to put themselves in a position of protecting their owners.

It has been said in some quarters that there should be a more severe penalty for attacking a service or assistance dog. In principle, we believe that the suffering of the animal is the same, whether or not it is a service animal. However, if that view persisted, it would be possible to create a statutory aggravation, so that the penalty for the cruelty to the animal would be the same but with the addition of an applicable statutory aggravation, as there is for a racially motivated crime. That would be one way of addressing public disapproval about attacks on service animals.

10:45  



Stewart Stevenson

I wonder whether the test is something slightly different, in that the likelihood of suffering is increased in service animals compared to animals of the same type that are not service animals. We, as humans, are training those animals and putting them in positions of increased danger by our choice rather than the choice of the animal. Although the outcomes might be the same, the animals are not volunteers. They are exposed by human action to the likelihood of increased suffering, and it is that exposure that we as humans choose to make that justifies providing additional protection to those animals. If the bill said something of that character, it would relieve us of considering whether it is the owner or the person in control of the animal that defines whether the animal should be treated in a differential way in respect of sentencing. That occurred to me on the hoof as I was listening and it is probably an incomplete analysis, but what do you think about it?

Libby Anderson

I think that your point is that society owes animals that assist us a greater duty of care, so our care for them must be reflected in the available penalties. That is why the offence could be considered to be an aggravated offence.

Runa Hanaghan

I support Stewart Stevenson’s view on that. That is an important point to make.

The Convener

Let us move on to talk about wildlife crime.

Claudia Beamish

From an animal welfare perspective, what are the implications of the proposed increases to penalties for wildlife crime offences?

Robbie Marsland

The key word for me is “deterrent”. It comes down to how wildlife crimes are considered by society in general and by our courts and how wildlife is considered by our society. Words such as “pest” are used. Particular animals are described using language that makes things easier and, seemingly, less thought has to be used about controlling those animals than others.

The League Against Cruel Sports is moving into looking at the reform of grouse moors in Scotland, and that has taken us into the issue of the use of general licences. It seems to us that, with the use of fairly low levels of corroboration in evidence, vast swathes of animals are killed because they are deemed to be pests. The word “pest” is used because the animal endangers another animal. Very often, that other animal is a red grouse. The reason why red grouse are protected is to ensure that there are more red grouse to shoot for entertainment. As members can imagine, an organisation that is called the League Against Cruel Sports is not best pleased by that situation. The success of a grouse shooting estate is measured by the number of grouse that are shot on it. That means that it needs to have more grouse, which means that grouse need to be protected from so-called pests.

The League Against Cruel Sports recognises that general licences are permissible under the law, but there are grey areas. A professional whose job is to ensure that there are as many red grouse as possible might look at using methods that go beyond the general licence and become illegal. We welcome any extension of the penalties because of the deterrent effect.

Vicarious liability is also very important. We heard earlier about a shop assistant selling alcohol to a minor, in which case it is the owner of the off-licence who can be found guilty of an offence. There is a world in which the owner of the off-licence is demanding of the shop assistant that they sell alcohol to minors because that can bring in more money. I do not think that that happens. I have seen many examples of successful prosecutions of countryside professionals whose job is to make sure that there are more grouse, but the levels of sanction are not a deterrent. In a recent case, which I will not name, I was particularly struck by the proceedings and by the reaction of the individual and the reaction of the media. It became quite a media circus. An individual had been prosecuted for a number of wildlife crime offences, and there was a big media turnout on the day of the sentencing. The question was, “Will he go to jail?” because the range of offences was hideous; they were broad and nasty and covered the gamut of wildlife crimes that are possible in that situation.

Two things happened on that day. First, the sheriff made it clear that he felt that he should have been able to give a custodial sentence but could not. He felt that the community order did not reflect the scale of the crime that was committed. Secondly, there was a media hoo-ha outside the court because the media wanted to get a photograph of the individual concerned. The media mistakenly all went around to the back of the court and, when the individual who had just been sentenced came out the front, he danced a jig of relief and satisfaction. I watched him do it. He ran down the road and was followed by the media, and the picture that was published was of the individual putting two fingers up to the photographers.

As somebody working in the world of animal and wildlife welfare, I stood there thinking about what that says about the level of acceptance of deliberate acts of cruelty to animals that are carried out to ensure that there are more of another animal that can be shot for entertainment. I went away that day thinking that that is not right. There should be a deterrent. There should be a feeling that, if I do something wrong in this way, I will go to jail, and if I make my staff do something like that, I should also be at risk of going to jail.

That is why I can only commend the bill for its deterrence impact. I like the flexibility in the bill. It recognises that animal welfare can be affected by negligence. That is a different world, in which we are talking about re-education and learning about socialisation with animals and the way in which we relate to animals. However, if it is your job to kill as many animals as possible, I do not think that we can do much in the way of rehabilitation.

As I say, we welcome the bill more or less as it stands, but lots of steps need to be taken in the public domain to give people a greater understanding of the sentience of all animals and why some animals are declared to be a pest that is simply to be eradicated.

The Convener

Does anyone else want to answer Claudia Beamish’s question?

Runa Hanaghan

I do not have a position on the wildlife crime side of things.

Claudia Beamish

We have touched on the SSPCA in relation to powers. As was said earlier, and as we all know, many of these crimes and alleged crimes are committed in remote rural areas. Are there any views on the possible alteration to and increase in the powers of the SSPCA in relation to wildlife crime?

Robbie Marsland

I will speak about the crimes that happen away from the public eye, which I have had a lot of experience of over the years. It is difficult for the police to be there. As a citizen, I know that personal security and property theft are where police priorities lie. They need to do more, but I am not surprised that they do not have the resources to be out in the middle of the countryside looking at issues that they might not even understand.

Fox hunting is not in the remit of the bill, but it is a classic example. It is very difficult to understand what is going on in a fox hunt; it is difficult to understand evidence that would make one suspect wildlife crime. I was shown what looked to me like a pole in the middle of a field, until it was pointed out that there was a hole drilled in the top and a bent 6-inch nail in the bottom right-hand side. Those demonstrated that it was being used either as a decoy position or as a pole trap, which is illegal. I would not have known that, and neither would many police officers, but there are people who would. It is important to make sure that organisations such as the SSPCA, the RSPB and the League Against Cruel Sports have the opportunity to be out there and to report on that to the police. They should not be impeded from doing that.

Mark Ruskell

To what extent would the increase in maximum sentencing change the policing model? A written parliamentary answer recently reported that the trial in the use of special constables in the Cairngorms did not result in any convictions over its two years. What more could the police do on their own? If the sentencing increase comes in, what would happen operationally—would it force a change in thinking or a prioritisation of resources? What is the solution to this issue? Five years could be a deterrent, but only if people are caught, evidence is protected and a prosecution is successful.

Robbie Marsland

The creation of wildlife crime officers is a very good thing. However, the role is voluntary and heaped on top of other responsibilities. The question is asked, “Who wants to be the wildlife crime officer?” and a person answers, “Oh, go on—I will.” Their levels of knowledge are variable, as is how much time and effort there is to do the work, as we can imagine. I would much prefer to see a designated wildlife crime officer who is paid to do the role and who can build up a body of knowledge and experience and so understand that a pole with a hole and a nail is a suspicious item. A voluntary wildlife crime officer would also build that up over a number of years.

Finlay Carson

The bill will increase penalties, fines and potential sentences, which could be argued would put more emphasis on the burden of proof in a case. It is exactly right that, for wildlife crime or identifying rural commercial animals that are suffering, the level of expertise would have to go up a notch and additional resources provided. Increasing penalties and sentences will be irrelevant if we do not have people on the ground. Are there enough resources to make any difference when the bill is introduced?

Robbie Marsland

The level of resource that is of value is what happens in court. The demands on organisations such as mine and on the police in trying to meet the burden of proof are already high. That is because the resources that are available to those who are alleged to be involved allow them often to be represented by people who would never usually be seen in a sheriff court. Again, I will fall back on my experience in relation to fox hunting. The offence that is being dealt with is a summary one, but it is dealt with by a QC. The police and the procurator fiscal know that, so we are not talking about the same levels of evidence as we would be in relation to a summary offence. My personal opinion is that that means that the case has to be stronger than another summary-level case, because of the amount of attention that will be paid to the evidence.

11:00  



Finlay Carson

However, I suppose that bringing in new legislation will be irrelevant if we do not have police or members of other agencies there to catch people. It is a bit like reducing the speed limit to 20mph on rural roads. That is probably pointless because, if there is no one there to enforce that law, it will have no effect. Are there any concerns that the bill, which appears to be one that should be welcomed generally, will be pointless if we do not have the resources to police the legislation effectively?

Robbie Marsland

I go back to the idea of deterrence. It will be an effective deterrent.

On the issue of speeding, of course, I always keep to the speed limit. However, if I have seen police operating a speed camera in the area, I might make sure that I am much slower than the speed limit during the following weeks. That is why we welcome the deterrent effect. We believe that vicarious liability would extend that, because it would mean that others were concerned as well.

The Convener

We have run out of time, but Stewart Stevenson has a short question to round off the session.

Stewart Stevenson

I was a bit surprised to hear the suggestion that summary cases have different criminal evidence requirements from solemn cases. I think that the difference is that, in summary cases, the sheriff determines guilt or innocence, and there are more limited sentencing powers, whereas, in solemn cases, it is the jury that determines guilt or innocence, and higher sentences are available. If Mr Marsland knows different, perhaps he can correct me, but I think that the evidence requirements are identical.

Robbie Marsland

I go by personal experience. I have served on three Crown Court juries—two at the Old Bailey—and I have sat for days and days in the sheriff court, watching what goes on. My observation, which is a purely personal one, is that the level of the application of the law is quite different in those two settings.

Stewart Stevenson

I, too, have been on a jury, and I have been in the sheriff court on a large number of occasions. Further, I was a member of the Justice Committee of this Parliament and attended 278 of its meetings. I strongly rebut the idea that the Scottish summary system is in any way inferior to the solemn system. In fact, you are more likely to get an outcome that is less open to challenge if the case is dealt with by a professional adjudicant of guilt or innocence, in the form of the sheriff.

The Convener

We are straying into the remit of another committee. Before we close this evidence session, Claudia Beamish has a final question.

Claudia Beamish

I see that Libby Anderson wants to say something, and it might be more important for her to speak than for me to do so. However, I will just say that, as a layperson—I proved that earlier in the meeting—my understanding is that the opportunities for police surveillance are different in cases involving a serious crime. If that is the case, that is particularly important with regard to wildlife crime. Of course, I am happy to be corrected.

The Convener

Libby Anderson can have the final word.

Libby Anderson

I understand the point that Robbie Marsland made. I note that Stewart Stevenson is correct to say that the standard of proof is the same in summary and solemn procedures, but it might be important to recognise that people’s knowledge of the procedures and the sentences that would be available at the time of investigation and enforcement might help to concentrate minds more. When the police and the Crown Office and Procurator Fiscal Service allocate resources, they would be more inclined to look seriously at an offence that attracts a much higher sentence. That would apply to both animal welfare and wildlife sentences.

On Finlay Carson’s point about enforcement, it is true to say that local authorities find the enforcement of the 2006 act to be quite burdensome, as there are no resources attached to it. The fixed-penalty notices and the provisions around the disposal of animals will remove some of that burden. We all accept that the overall effect of the bill will be to raise the level of enforcement.

The Convener

That is a good note to end on.

That concludes the committee’s business in public. At our next meeting, on 10 December, we expect to hear further evidence on the bill.

We now move into private session.

11:05 Meeting continued in private until 12:21.  



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Third meeting transcript

The Convener (Gillian Martin)

Welcome to the 34th meeting in 2019 of the Environment, Climate Change and Land Reform Committee. Before we move to our first agenda item, I remind everyone to switch off their mobile phones or put them on silent, as they may affect the broadcasting system.

I highlight to our panellists that you do not have to press any buttons on the console. Broadcasting does all that for you. All that you need do is speak.

Agenda item 1 is to hear evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. The first panel will focus on wildlife crime issues that are connected with the bill. I am delighted to welcome Ian Thomson, head of investigations, RSPB Scotland; Karen Ramoo, policy adviser, Scottish Land & Estates; Ross Ewing, political and press officer, British Association for Shooting and Conservation Scotland; Dr Ruth Tingay, raptor ecologist, Raptor Persecution UK; Eddie Palmer, chairman, Scottish Badgers; Les George, gamekeeper and Scottish Gamekeepers Association committee member; and Liz Ferrell, Scottish Environment LINK wildlife crime sub-group convener and Scottish officer, Bat Conservation Trust. Good morning to you all.

We will move to questions. As we have a panel, we will not necessarily direct questions to each of you. If, as we discuss the various themes, you want to answer or give your point of view on anything, just raise your hand in the air. We will note that and get to you eventually.

I will start off by asking about the evidence base for increasing penalties for wildlife crime. What are the wildlife crime trends? How are the available penalties being used? Are there instances where those penalties have been considered insufficient? If anyone wants to come in and give us a view on what has been happening to date, I would be very grateful.

Liz Ferrell (Scottish Environment LINK)

I will give the example of the freshwater pearl mussel. There was an incident on the River Lyon relating to a hydro scheme that was designed to service 600 homes. It is reckoned that the scheme did about 100 years’ worth of damage, with hundreds of freshwater pearl mussels being killed. They are critically endangered globally, and there is an important population in Scotland. The basic repair to that catchment is reckoned to be almost £1 million, yet the company involved was fined £4,000 in total. As such, the deterrent is just not there.

In relation to the Bat Conservation Trust, the most common offence is to do with small or medium-sized developers. Bats are not factored into projects, which leads to corners being cut. Licensed bat workers have made us aware of examples in which they have carried out surveys for developers only for the developers to take the results of where they found bats and—basically—get rid of that evidence, then get in a different ecologist to do another survey that showed that no bats are present.

The Convener

Are the penalties for doing that almost factored in?

Liz Ferrell

Yes. It is cheaper to not get a survey done. The cost of a bat survey and mitigation could easily go up to £10,000, for a larger-scale project, and a fine for roost destruction—this is an example from Scotland—might be £900. Similarly, in 2014, a senior employee of a lettings company who blocked off a soprano pipistrelle roost with 500 bats in it was fined just £240, which is not even a day rate for an ecologist to do a survey.

Ian Thomson (RSPB Scotland)

One of the biggest issues with establishing trends in wildlife crime is that most of the crime is unseen and undetected. Just looking at an annual body count, for example, gives us no idea what is actually going on, because we are dealing with a sample of an unknown amount.

When it comes to measuring the impact of criminality, it is much better to use methods such as population surveys and so on. For example, the hen harrier population in Scotland declined by something like 27 per cent between 2004 and 2016. Similarly, the satellite tagging review that was commissioned by the Scottish Government four years ago showed that a third of young tagged golden eagles were disappearing in a suspicious fashion in areas that were being managed for grouse shooting. However, that review involved only tagged birds. If you extrapolate that into the actual number that are likely to be being illegally killed, you come to quite a staggering figure.

We have to accept that wildlife crime happens in places where it is not witnessed, and it is easy for the individuals who undertake it to cover up the evidence. They are obviously not going to leave a poisoned or shot bird lying around for hillwalkers, the police or whoever to stumble across. We have to look at the issue very much in that context.

Karen Ramoo (Scottish Land & Estates)

It is important that we have current statistics when we are assessing wildlife crime. The fact that we have not had an annual wildlife crime report from the Government in the past three years is unhelpful—I think that the previous one came out in 2015. In addition, raptor maps are usually released annually, but we have not seen those recently either. However, when we consider the work that the partnership for action against wildlife crime in Scotland—PAWS—group has done, we can see that there has been a reduction in most types of wildlife crime.

The main issue in relation to wildlife crime involves poaching and hare coursing, which are still at high levels. Those crimes are linked to other crimes, including serious organised crimes, which have serious impacts on rural communities.

Again, I stress that it is crucial to have up-to-date data so that action can be targeted.

The Convener

Ian Thomson said that the exact level of crime cannot be known, because much of it is unseen and unprosecuted, but do you accept that an increase in penalties might result in additional decreases in wildlife crime?

Karen Ramoo

Yes, I accept that they could act as a deterrent.

Ross Ewing (British Association for Shooting and Conservation)

For the reasons that Ian Thomson highlighted, the recorded numbers of wildlife crimes in Scotland are a sample of the amount of crime that is going on. However, the figures show that there were 255 recorded incidents in 2013-14 and 231 in 2016-17, which shows that there has been a slight decrease in the overall number of recorded wildlife crimes. However, wildlife crime is still at a substantial level. That means that there is a need to impose additional penalties in order to bring down those figures even more. My organisation supports that, but I echo what Karen Ramoo said about hare coursing and other poaching-type offences, including people hunting with dogs illegally. In my office, we have received a number of phone calls about those offences happening in places such as Angus and the north-east. That is reflected in the statistics. There has been a sharp rise in hunting-with-dogs offences, which have gone from 29 in 2013-14 to 42 in 2015-6. That is a real issue for us, and it is important to highlight the fact that that kind of crime is going on. Those are not necessarily the crimes that we hear about, but they are just as important as incidents of raptor persecution and other crimes.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

I want to check and test what Ian Thomson said. What I heard—I might have misunderstood him—was that surveys would be used to establish levels of criminality. I am getting a nod. I am very alarmed by that. It is perfectly proper to use surveys to provide intelligence, but that is different from measuring criminality.

I share the concern about raptors, so I am not coming from another position, but the depletion of species is not occurring simply because of crime. I will give an example. When I was a lad, there were lots of kestrels around; now there are very few. I do not think that the problem is wildlife crime; I think that other factors are the problem.

I want to be clear that Ian Thomson has in his mind the distinction in relation to using surveys as intelligence that says that the numbers have gone down, so we need to look for crimes and other causes. I want to ensure that we agree on that.

Ian Thomson

Absolutely. Population surveys are the first level of evidence on what is happening to raptors—

Stewart Stevenson

I am sorry, but I will come straight back on that, because I do not accept that they are evidence in the context of wildlife crime. Is it not intelligence that leads you to the need to gather evidence rather than intelligence intrinsically being evidence in its own right?

Ian Thomson

I was going to say that surveys are the first layer of evidence in trying to understand what is happening to a population. For example, a survey of hen harriers was carried out in 2010 throughout the United Kingdom. The national surveys are co-funded by the statutory nature conservation agencies in the four countries. Another survey was carried out in 2016. That survey showed a substantial decline in the hen harrier population. If we consider that in the context of an overwhelming weight of peer-reviewed science that looked for the reasons why hen harriers were declining and established that targeted and deliberate persecution on grouse moors was one of the key drivers of the decline, we start to build a much clearer picture. That is a much clearer picture than we will get from one dead harrier with shotgun pellets in it being found on a grouse moor.

Stewart Stevenson

This is my final question on this issue, convener.

The Convener

Good.

Stewart Stevenson

Forgive me, but does the survey not tells us that we need to look for the evidence?

Ian Thomson

Yes—absolutely.

Stewart Stevenson

A survey is not intrinsically evidence.

Ian Thomson

No, but we have to consider everything together.

Stewart Stevenson

That is fine. As long as we share that viewpoint, I am quite content.

Ian Thomson

Yes—absolutely.

The Convener

I want to return to getting answers to my initial question.

Eddie Palmer (Scottish Badgers)

It is rather complacent to think that wildlife crime is going down. We are talking about what is discovered and prosecuted, which is a different issue. The Government’s wildlife crime reports give a not very easy-to-read account. We know of incidents in which things have happened to badger setts. In order for them to be accepted and investigated as crimes and to get them to court, an extremely long and laborious process is involved, and that rarely happens.

It could be that more incidents are reported to us as a charity by the public, but the numbers of incidents that come to us are going up each year. The figure for 2019 is markedly greater than that for 2018. There are various issues. It is very difficult to get a case involving a damaged badger sett to court because getting evidence to give credence to what the police would say is difficult. There might be evidence that a badger sett has been dug out completely, but it is extremely difficult to find a perpetrator and evidence against them. However, it cannot be said that badger setts are not being dug out. That is the issue.

The trouble is that few cases have gone to court over the past few years. I think that, in the Crown Office and Procurator Fiscal Service, eight badger cases have been prosecuted in five years, as opposed to maybe 60 incidents a year that might be crimes. I accept that they would not all be classified as crimes, but that figure is quite worrying.

With regard to the sort of figures that Liz Ferrell quoted, the only example that I can think of is from some time ago, when a developer built a house too near a badger sett up in the north of Scotland, having been told not to do it. That broke the licence conditions, and the developer duly went to court and was fined £800. That might seem quite a lot, but the extra house that had been built was sold for £300,000. The anecdotal evidence that we pick up is that the large developers keep to the rules. We deal more with issues that are to do with badger setts than we do with issues that are to do with badgers. You will hear more about badger crime from the Scottish SPCA, as we rarely deal with it.

I am sorry, but I have lost my drift.

10:00  



The Convener

Okay. I will come to Liz Ferrell, and then Colin Smyth has questions.

Liz Ferrell

It is a brief point. Scottish Environment LINK does not believe that wildlife crime is decreasing. Eddie Palmer gave figures relating specifically to badgers. We consistently provide information for the Scottish Government’s annual wildlife crime report. For bats, we average about 139 cases of wildlife crime a year and that is showing no sign of decreasing. To pick up on what Ian Thomson said, it is likely that there is lots of underrecording in remote parts of Scotland.

Colin Smyth (South Scotland) (Lab)

I turn to the issue of how wildlife crimes have been categorised in the bill. Are the proposed penalties and procedures proportionate?

Ross Ewing

It is important to be mindful that, in essence, two tiers of wildlife crime penalties will be introduced. Tier 1 will have a maximum penalty of five years in prison and/or a fine with no limit and, for tier 2, which is for lesser crimes, the maximum is one year and/or a fine with a limit of £40,000. The tier 2 penalties are for issues to do with damage to habitats, nests and things like that. The important thing is that a bit of due diligence needs to be exercised by the procurator fiscal in that regard. That is because there are different kinds of damage to nests or habitats, and some types of damage are more severe than others. A little bit of common sense needs to be applied in deciding whether a crime is a tier 1 or tier 2 offence. If someone burns a vast swathe of moorland and kills absolutely everything on it, that is damage to habitat and would therefore be a tier 2 offence but, actually, the ramifications are so serious that it would probably merit being a tier 1 offence.

That issue is not entirely clear. Each kind of wildlife crime has different levels of severity. I am not entirely sure that it is workable to assign the penalties on the basis that tier 1 is when someone kills an animal and tier 2 is when someone destroys its nest, for example. As I said, a bit of due diligence will have to be done in deciding what happened.

Les George (Scottish Gamekeepers Association)

From a gamekeeper’s point of view, the proposed five-year jail term is a game changer. Most gamekeepers will not be able to pay £40,000, and a jail term is not just a jail term for a gamekeeper—you lose your job, your house and your living, really. You will never be a gamekeeper again if you are convicted. You will not be able to have firearms again, so you will be out of the job altogether. That is a huge thing. It is a huge deterrent.

Karen Ramoo

I support what Les George and Ross Ewing have said. The proposed penalties are huge deterrents. To go back to Ross Ewing’s point, I do not know whether we will touch more on this later, but impact statements should come into play to assess the level of impact that the crimes have and what that means for various species. There needs to be consideration of the whole ecological impact that a certain wildlife crime could have on certain populations in a certain area.

To pick up on what Les George said, the penalties as a whole will act as a real deterrent. It is not just a case of a fine or jail sentence; it is potentially the end of somebody’s career. SLE is very supportive of the proposed penalties.

Finlay Carson (Galloway and West Dumfries) (Con)

On deterrence, is not it the case that under current legislation a gamekeeper who was convicted would potentially lose his job and the likelihood of being employed as a gamekeeper in the future? Therefore, all we are talking about is whether a gamekeeper can afford £40,000 or a lesser fine. Are not the penalties severe enough now? Is what is proposed really a deterrent?

Les George

A five-year jail term will mean that more people will go to jail than has been previously been the case. To extrapolate, that means more people being out of a job and out of a house, with no way of supporting their family.

Ian Thomson

One issue is that the courts hardly ever impose the maximum penalty. For many years, the courts have been able to impose a £5,000 fine and/or a six-month custodial sentence for many wildlife offences. Only one custodial penalty has been given in Scotland to an individual for raptor persecution offences since the Wildlife and Countryside Act 1981 came into force. When that individual was convicted, back at the beginning of 2015, we all thought that the sentence would be a game changer and that raptor persecution would suddenly cease to be an issue. That has not happened.

In a recent case in the Borders, an individual was convicted of multiple offences. The courts can impose a custodial penalty for each offence, so those of us who were closely involved in that case were convinced that there was a high chance of a custodial penalty. However, a community order was given.

Is that down to direction? Obviously, the courts are independent, but we do not see the big penalties being given: usually, what the courts impose is a mere fraction of what is available to them. That is a reason why some wildlife crimes have continued unabated for so long.

The Convener

Les George, what is your view of a situation in which a gamekeeper feels under pressure from their employer to do something that breaches the law? Does that happen?

Les George

No—I would say that that is not the case.

The Convener

So, is it right to say that the gamekeeper is responsible?

Les George

Yes. Everyone is responsible for their own actions. That is how it is. If you do the crime, you do the time.

The Convener

Should the landowner be completely exonerated?

Les George

There can be vicarious liability; there have been a couple of cases of that. That is a matter for the police.

The Convener

We will come on to vicarious liability in a wee while.

Dr Ruth Tingay (Raptor Persecution UK)

I would like to follow up on Ian Thomson’s point about how the maximum sentence is rarely given. Of course, that is a matter for the courts, but a bigger issue is that it does not really matter what the penalty is, because the penalty alone will not act as a deterrent; the risk of being caught is far more important. If the criminal considers that the risk of being caught is pretty slim they will commit the crime, because the risk is such that it is worth doing so. Therefore, a much bigger effort is needed on the enforcement side. I am not saying that that is easy. We all know how difficult it is to investigate wildlife crimes, especially in remote areas. However, the two must go side by side; it is no good having one without the other.

Liz Ferrell

Scottish Environment LINK thinks that the bill does not go far enough to protect habitats, and we think that the bill should provide for more wildlife offences, such as those that involve raptors and badgers, to be triable either way. We welcome the increased penalties for offences that involve bats, with the option to use the upper courts and the potential to impose unlimited fines.

However, there is no consistency. A bat should not appear to be more important in law than a hen harrier, and I am sure that other witnesses can provide evidence for why badgers’ resting places and breeding sites should receive more protection.

Ross Ewing

Some important points have been made around the room. I noticed that there is, on the committee’s question paper, a point about banned pesticides. I point out that there is no legitimate reason to have those pesticides in Scotland. At the moment, I do not know on which tier an offence in that regard would be; I am minded to say that it should be a tier 1 offence. South of the border, the situation is different, but up here there is no need to have them.

The Convener

The presence of the pesticides would be evidence enough.

Ross Ewing

Indeed; my argument is that there is no need to have illegal pesticides, so those who do should bear the full brunt of the law.

Karen Ramoo

I fully agree that penalties alone will not act as a deterrent. There must be education about wildlife crime and the impact that it can have, and there must be awareness of the maximum penalties that can be applied to a person who commits a wildlife crime. More training and support on detection for the police are also important. However, a consistent approach being taken to tackling wildlife crime will act as a deterrent, in itself. This goes back to the point that Ian Thomson made: when a case is brought to court when someone has committed a crime, it should be shown that they will feel the full force of the law.

Mark Ruskell (Mid Scotland and Fife) (Green)

The bill obviously deals with custodial sentences and fines, but how effective have other sanctions been, for example, suspension of general licences on estates or community payback orders, which have already been mentioned as not being effective? Are there any thoughts from around the table on how the suite of other available sanctions have worked—or not—in deterring wildlife crime?

Dr Tingay

The general licence restriction is very interesting. There have been only four or five cases since the sanction came into force. We have seen that once the general licence has been removed, the estate can simply apply for an individual licence to carry out the same act of killing so-called pest birds, but under slightly more scrutiny from Scottish Natural Heritage. That just means that they have a bit more paperwork to do: it is not a sanction at all.

Mark Ruskell

Has that happened in the examples in which a general licence has been withdrawn?

Dr Tingay

I know that two estates have applied for individual licences. After one of those estates got an individual licence, further alleged offences were uncovered and the individual licence was removed from the estate, pending an investigation by the police. I do not know how far that investigation has gone: clearly, however, the general licence restriction was not a deterrent.

Ian Thomson

On that, it strikes me that imposition of a general licence restriction is a tortuous process, and that delays between offences being confirmed by police investigations on landholdings and a general licence restriction being imposed mean that it is currently taking years to implement the restrictions. I agree that a general licence restriction hardly seems like a penalty.

It can also be argued that such a restriction does not benefit biodiversity, because it is widely acknowledged that some control of generalist predators, such as corvids, can be of conservation benefit, and that, if that ability were to be removed, the wildlife in the area would be penalised as much as the managers of the estate on which the offences were committed. A much more effective sanction would be to remove the motivation for committing such crimes, which is invariably to benefit grouse shooting. The right to shoot grouse being removed for a year or a couple of years would be much more robust and effective.

Ross Ewing

I disagree with Ruth Tingay and Ian Thomson on the effectiveness of the restriction of general licences. It is important not to underestimate the pivotal role that general licences play on shooting estates in Scotland, where they are an integral part of what the estates do. Restricting a general licence will make it very difficult for estates to carry out an integral function.

10:15  



Ruth Tingay mentioned applications for individual licences—there is a litany of species for which individual licences would need to be applied for. Moreover, an estate’s having a restriction against it reflects very badly on it, and information about that is publicly available online. I know a number of people who would probably not visit an estate that had a restriction purely on the basis that they would know that wildlife crime was probably being committed there.

The other thing to note about the restriction of general licences is that it takes place under the civil burden of proof—there is no need to surpass the criminal burden of proof, as there would be otherwise. That is a really useful tool. Currently, the police and SNH meet every three months. Perhaps if they met more regularly to review the situation, that might result in a few more restrictions being put in place. As a result, restrictions might act as more of a deterrent.

The Convener

Does Stewart Stevenson have questions?

Stewart Stevenson

Are you bringing me in to ask about fixed-penalty notices?

The Convener

Mark Ruskell is indicating that he wants to come back in, so I will bring you in, in a minute.

Mark Ruskell

Have business that have general license restrictions been affected by them? Have they gone bust?

Ross Ewing

BASC has done research into that. We carried out a big survey, to which we had about 900 respondents, to find out what the financial implications might be of removing general licences. The survey showed that there would be financial implications if people were not able to use general licences effectively. That suggests that restricting general licences will have implications for people. You cannot get away from that.

Ian Thomson

The problem is the time that it takes to impose restrictions. Also, as Ruth Tingay said, further allegations of wildlife crimes have been made at one of the five estates on which the sanction has already been imposed, which suggests to me that it is not a particularly effective penalty.

I understand and agree with some of what Ross Ewing said. The fact that a civil burden of proof is required is very important, given the challenges that I think we all acknowledge exist in investigating wildlife crime, particularly in getting sufficient admissible evidence to undertake a criminal prosecution. However, I do not believe that, thus far, even the threat of a general license restriction is stopping wildlife crime, and the statistics, such as they are, support that view.

Stewart Stevenson

Fixed-penalty notices or, more to the point, the power to introduce regulations to create fixed-penalty notices, is right at the top of the bill in section 2, so it is obviously quite an important part of it. That will deal with the opposite end of the scale—it will introduce a way of penalising offenders for minor issues. Are we satisfied that the penalties would be used appropriately? The regulations, which we do not currently have, will give us the details about fixed-notice penalties. However, as a matter of principle, are they a good way of discouraging people at the bottom end of the offending scale from establishing a career of offending?

Liz Ferrell

Scottish Environment LINK does not object to fixed-penalty notices. They have their place, but we would want clear guidance on their use, to set clear limits and to give assurance that they would not be used when the severity of the crime is such that prosecution would be the more appropriate action.

Karen Ramoo

SLE does not have any objection to fixed-penalty notices. We do not have much experience of them, so we do not fully understand how they would work, but in principle we consider that they would be a good approach to dealing with minor crimes.

Like Scottish Environment LINK, we consider that clear guidance on use of fixed-penalty notices would be really useful. Also—this is probably a minor point—fixed-penalty notices are used elsewhere in society, so it would be good to have better understanding of their use, including their effects in respect of repeat offending. A bit more work on that would be helpful.

Mark Ruskell

Impact statements have been mentioned. I was struck by the examples of badgers and freshwater pearl mussels. Are impact statements being used effectively? Do they need to be put on a legislative footing?

Eddie Palmer

Scottish Badgers has no experience of impact statements, but we consider that they would be useful. Badgers have semipermanent homes. If its home is wrecked or damaged, a clan will tend to break up and disappear, and its sett will stop being a breeding sett. Such damage has an extremely important wider effect, but that has not yet been played out in court because of the lack of prosecutions.

Ian Thomson

In RSPB Scotland’s experience, when there have been prosecutions in which impact statements have been used, they have assisted the process. The Crown Office is probably better placed to answer the question directly, but the RSPB is certainly keen to see the conservation impact of such crimes being recognised in sentencing guidance for courts.

Karen Ramoo

Scottish Land & Estates fully supports the use of impact assessments. We would like to see them being used more systematically—for example, there could be more monitoring of how frequently they are used. We have no objections to their being considered in the bill, because the approach that they embody would be welcome.

Les George

If we are already using such statements, why go down the route of legislating for them? That seems to be a pointless exercise.

Liz Ferrell

Impact assessments are not used consistently. For example, a developer who pleaded guilty to six charges of destruction of bat roosts was given a total fine of just over £300. As I said earlier, the costs of doing a bat survey are way above that. However, in another case of bat crime—the case is not absolutely like for like—in which an impact statement was used, the perpetrator was fined £7,500, which is a significant difference.

In the Poustie review, sheriffs and procurators fiscal said that having impact statements available to them before sentencing was helpful for giving them background information on what Ian Thomson has just described as the “conservation impact” of such crimes—for example, what the killing of a pair of hen harriers will mean in the wider context.

Colin Smyth

Earlier, Les George touched on vicarious liability. I am keen to hear the panel’s views on how effectively the existing provisions on that are being used and whether they should be extended to cover other wildlife crimes.

Liz Ferrell

Scottish Environment LINK supports any measures that will help to tackle wildlife crime. We would like to see the concept of vicarious liability being extended to crimes against other species. However, there is variation on that among our members. We do not have an argument in favour of imposing vicarious liability for crimes against bats. Proving the link between a company and an activity is a lot easier in cases in which developers are being prosecuted for offences involving bats than it is in cases of raptor persecution. However, I know that the RSPB has had issues with such cases, so perhaps it might like to come in on that point.

The Convener

I will bring in Ruth Tingay first, and then we will hear from Ian Thomson of the RSPB.

Dr Tingay

There is a huge amount of frustration about how ineffective the principle of vicarious liability has been in raptor persecution cases. Since the legislation came into force, there have been only two successful prosecutions. There have been a number of other cases in which vicarious liability could have been applied but was not, and there has been an awful lot of secrecy about why that was so. For example, when I have asked the Crown Office or SNH for an explanation of a decision in a particular case, I have been told that it is not in the public interest to give one, which makes no sense to me at all.

Ian Thomson

The provisions on vicarious liability that were introduced at the beginning of 2012, as part of the Wildlife and Natural Environment (Scotland) Act 2011, and the discussion that took place in the lead-up to that had an immediate positive effect. Although, as I mentioned earlier, I am nervous about talking about trends in wildlife crime, there was a clear turn away from the use of illegal poisons, which everybody welcomed. It is difficult to disaggregate the impact of vicarious liability from the impact of increasing use of satellite transmitters on birds of prey, because satellite transmitters make poisoning much more detectable, but the fact that vicarious liability was introduced around about the same time led to a pretty significant deterrent effect.

However, that effect is now wearing off. As Dr Tingay said, there have been only a couple of vicarious liability prosecutions. The first challenge is that identifying who is potentially vicariously liable is very difficult, given the complexities of land ownership and the fact that identifying who owns land is difficult. Another big challenge is that prosecutions of gamekeepers, for example, are very rare, but the Crown Office seems to need a successful prosecution of a gamekeeper in order to then prosecute a landowner. The legislation does not say that that is a necessity, but that seems to be the case. The Crown Office can probably clarify that point later.

Ross Ewing

I agree with some of what Ian Thomson has said, particularly about the initial impact of vicarious liability. We argue that estates continue to feel the burden of vicarious liability and, as a result, they have very much sharpened up their act by ensuring that all the correct administrative procedures are in place. Vicarious liability has been a really strong deterrent against wildlife crime, which has led to a reduction in the number of poisoning offences, for example, as Ian Thomson pointed out. We feel that it has been very effective and that landowners are complying with the legislation. As we have heard, whether a gamekeeper or anyone else is committing wildlife crimes, it is the responsibility of the individual to take things forward. Through the vicarious liability legislation, we are ensuring that on estates, from top to bottom, there is a zero tolerance policy for wildlife crime. Our organisation has seen that on the ground.

Karen Ramoo

I very much echo what Ross Ewing has said. SLE feels that vicarious liability has played an important part in improving systems on estates. The Poustie report made the point that vicarious liability has made landowners more aware of their responsibilities, so it is very much playing a part in the bigger picture.

Stewart Stevenson

I want to come back to Ruth Tingay’s point about secrecy. Vicarious liability is about the owner or manager taking responsibility for what goes on by having and enforcing a system of oversight in order to prevent wildlife crime. In Ruth Tingay’s opinion, would many of the specific measures that a manager might put in place be compromised if they were disclosed? For example, there might be a scheme whereby cameras are installed at particular points of risk by the landowner in an attempt to detect activities, and it would not be in the interest of the owner—the enforcer of the scheme—or, indeed, of wildlife, if the details were to be disclosed. I am not inviting Dr Tingay to say that the whole scheme should be disclosed, but there is a proper place for secrecy in how owners and managers discharge their responsibilities in relation to vicarious liability.

Dr Tingay

It would be brilliant if landowners were installing cameras. That would save us a lot of trouble. I do not think that that is happening widely, but that is beside the point.

Stewart Stevenson

Forgive me but, as a layperson, I was seeking only to identify an example. I did not mean to give an exhaustive list of actions that might be taken.

10:30  



Dr Tingay

I get your point. I think that you are right in that some landowners will not want to reveal the measures they have taken, and why should they? They do not need to. However, I am talking about secrecy around the decision making.

There is a perfectly apt defence to a vicarious liability challenge. If the landowner can show that he or she has shown all due diligence, which is what the legislation requires, then all the Crown Office has to say, in a public statement, is: “We have investigated and we have found that the landowner has undertaken full due diligence.” We would accept that, but we do not even get that; we do not even know whether a case has been investigated at all. The shutters come down completely and we are not told anything at all.

Eddie Palmer

Some more guidance about vicarious liability would be useful. A couple of years ago, there was an situation where there was a clear line between an agent, a farmer and a forestry contractor. The forestry contractor totally wrecked a badger sett, a licence was never on site, and everyone was blaming everyone else for it. I do not know whether the police or the Crown Office decided that it was not worth going ahead, but the evidence appeared to be very clear in that case.

Les George

You need to be very careful about rolling vicarious liability out to other sections. We fear that it would have a detrimental effect on fox control. If farmers who have someone in killing foxes on their land thought they were in any way responsible for the person killing the foxes, they might stop fox control, which would be very bad for waders and ground-nesting birds. The farmer would probably not take the risk. They would just say, “We are going to stop that,” which would be really bad.

Ian Thomson

If it were limited to protected species—otter, pine marten and badger, for example—that would not be an issue. Foxes are a permissible species to kill anyway, but if vicarious liability provisions were extended to cover protection of those other species, that would not be an issue.

Les George

Presumably, you would want to do it for fox snaring. Snaring is an issue. If you are going to snare things, you will have bycatch. You release it, but it is a risk for the farmer.

Colin Smyth

Karen Ramoo mentioned the Poustie review, which is obviously the basis of much of what is in the bill about penalties for wildlife crime. Are there other review recommendations that could be addressed in the bill?

Ross Ewing

I seem to recall that firearm and shotgun restrictions were mentioned. At the moment, under legislation governed by Westminster, firearm and shotgun certificates can be restricted if there is a threat to public safety. If we were to bring in legislation whereby someone’s shotgun or firearm certificate could be revoked if they were known to have committed incidents of wildlife crime—that would be something on which we would need to work with colleagues down south—it would be a very prudent deterrent indeed. As has been mentioned, it is very difficult for anyone who has committed wildlife crime to get a job, especially if they work in conservation, as gamekeepers do, but adding that additional measure—actually revoking a shotgun or firearm certificate—would probably be very sensible. In my mind, if someone is committing wildlife crime, it is very bad, and I would argue that it could be a threat to public safety at some point.

Les George

To be fair, that is already happening. As soon as a case is brought, the police take the firearms away from whoever is in the loop, so it is already happening.

The Convener

Is the person denied a shotgun licence in the future?

Les George

They are not denied a licence in the future, but they are denied one until they are proven innocent.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

Poustie also recommended intervention programmes and empathy training. I know that there is currently no resource for those, but should they be part of community payback orders?

Karen Ramoo

I was going to pick up on that. I would personally be very supportive of that. We believe that custodial sentences could also involve retraining or empathy courses. When you get a speeding penalty, for example, you go on an awareness course. It is about that whole thing of teaching and educating people about their wrongdoing, and trying to right that.

One of the other recommendations from the Poustie report was about a more systematic approach to the use of impact assessments. In addition, it said that there would be merit in developing sentencing guidelines in order to enhance the consistency and transparency of wildlife crime sentencing. We would push for those things as well.

Finlay Carson

We have heard about increasing penalties, which most people seem to be in support of. However, there is very little point in increasing penalties if we do not increase the number of people who are convicted. It would be a bit like increasing the fine for speeding in a rural area, but with one policeman covering 100 square miles, so nobody would be likely to be caught.

I want to look at the scope for expanding investigations and enforcement. One possibility might be an increase in the statutory time limits on evidence gathering. Although that proposal has been broadly welcomed, we do not know whether there is any evidence of cases that have failed because of the time limits on gathering evidence. Therefore, I would like to hear the panel’s opinion on changing the statutory time limits on investigations into wildlife crime.

Ian Thomson

If a suspect is going to be identified in a raptor persecution investigation, it is normally within the first two to three weeks. By and large, raptor persecution happens in places where potential suspects are likely to be known; that is, there is a narrow group of people who are likely to be responsible. Unless a sufficiency of evidence is found very early on in the investigation, a case will not proceed, regardless of whatever public appeals for information there are. It is very much down to the police and the Crown Office how much administrative time they require in order to proceed a case, but I do not think that changing statutory time limits would have any impact on the practical, on-the-ground investigation.

Eddie Palmer

Investigations into incidents that might be deemed crimes can run on for a long time—it is not unusual for it to be nine or 12 months before hearing about anything. I know the trouble that police officers can have in getting people in for interview, in terms of making the arrangements, dealing with their own leave and things like that. Ian Thomson might well be right, although I cannot prove that, but the suggestion is something to be wary about. I think that, at times, there are resource problems.

Ross Ewing

I will touch on issues such as hare coursing, which I spoke about already. It is inherently difficult to catch the individuals that undertake such activity. Generally, we find that they tend to be repeat offenders, so allowing a little bit more time in order to get a multitude of offences could be advantageous in those scenarios. With reference to hare coursing, it could be a positive step.

Karen Ramoo

We are unaware of instances where a time limit impacted on prosecution. It is about separating out whether the time limit is causing problems in relation to taking a case forward, evidence collecting and getting that to prosecution level, or whether it is more of a police resource issue. It is important to separate those two things out. If it is a resourcing issue, that should be dealt with elsewhere.

Finlay Carson

Thanks. I want to look at the potential impact of a five-year custodial penalty allowing some wildlife crimes to be treated as serious crimes, which would open the door to allow police officers to install covert cameras. Generally, that would still be done on a case-by-case basis. What is the panel’s general feeling about the installation of covert cameras? Might that have a positive impact on the way that the police can identify criminals?

Karen Ramoo

We fully support enabling the police to use and manage surveillance cameras, although of course that should be strictly under the procedures in the Regulation of Investigatory Powers (Scotland) Act 2000. Where there is an indication that wildlife crime might be happening, there is a strong case for using cameras. They could act as a real deterrent and, we hope, lead to more prosecutions if wildlife crime is taking place.

The Convener

Liz.

Les George

I—

The Convener

I said “Liz”, but I will go for Les and then I will take Liz. On you go.

Les George

Sorry.

I do not have a problem with the police using covert cameras, but that needs to be handled sensitively. I have some personal issues with cameras, because I have had them pointed at my house. That was reported to the police, who had nothing to do with it; it was other individuals. My wife and child were filmed. Will it encourage vigilante camera users if people think that it is okay to do that? It is perfectly fine if the police are using cameras, but it will encourage others to do illegal camera work.

Liz Ferrell

Scottish Environment LINK does not have an informed opinion on the issue. However, anything that helps to increase the number of prosecutions is welcome.

Finlay Carson

On Les George’s point, at the moment, the police have to meet an information threshold before they consider the installation of video surveillance equipment. If that threshold is reduced and the police are more inclined to install cameras, might that reduce the need for vigilante groups, as Les George put it, to install cameras?

Les George

I do not think that it will help in that way. It will encourage people to go out on their own to film other people, when they should not be doing that.

Ross Ewing

Like everyone who has spoken on the issue so far, BASC is supportive of the measure. However, I echo the sentiments that have been expressed about privacy issues. The use of cameras is contentious. I am not entirely convinced that some of the camera work that has been done to date by non-statutory bodies has been particularly sensitive. There is a fundamental requirement for the process to be sensitive and carried out with much due diligence in order to make it workable. However, we see a small number of wildlife offences referred to the procurator fiscal, and it would be good to see more. The proposals will absolutely help with that.

Ian Thomson

RSPB Scotland has on occasion deployed cameras in the countryside focused on things such as traps or nest sites. Some of the video footage that we have captured has been deemed inadmissible in prosecutions, and on other occasions it has been deemed admissible. In a case back in 2013, I think, the Crown Office decided that it could not rely on the evidence that we had captured, which was of an individual allegedly shooting a hen harrier off a nest, as part of a prosecution. The explanation of that is very much for the Crown Office, but one has to ask whether a camera pointing at a hen harrier’s nest site—it is a schedule 1 species, so nobody should be going anywhere near the nest without a licence—is surveillance or monitoring a nest.

We have to be careful about the issue. Is it being suggested that the police will put cameras at nest sites just to monitor a pair of birds on the off chance that somebody might come along and do something bad? Given that there are 460 pairs of hen harriers in Scotland, I doubt that the police have the resources to do that. Therefore, there is absolutely a place for cameras to be deployed by other agencies as long as they are not imposing on people’s right to privacy under article 8 of the European convention on human rights. The situation that Les George outlined is completely unacceptable. It is absolutely crossing a line if people’s dwellings and family are being filmed. However, putting a camera at a nest is an entirely different proposition.

Rachael Hamilton

Are there any further issues that need to be addressed in combination with the maximum penalties—for example, resourcing enforcement or raising awareness of those increased penalties—in order for the bill to achieve its purpose of deterring wildlife crimes?

10:45  



Liz Ferrell

Scottish Environment LINK members would be happy to sit around the table and be part of that awareness raising. I think that we all have a duty to do that. Certainly, the Bat Conservation Trust, the RSPB, Scottish Badgers and others would be happy to get the word out.

In previous submissions, we have said that there needs to be more resourcing for the police. If we are going to do this properly, the implementation is important. We can change the law and increase boundaries, but enforcement has to be factored in, too.

Mark Ruskell

I would like to ask the witnesses for their views on the powers of the SSPCA. It has powers in relation to domestic animals, but it does not have powers in relation to wildlife.

Do the witnesses have any reflections on the special constables pilot scheme that has been running in the Cairngorms to try to tackle wildlife crime? Has that been an effective way forward, or would the SSPCA having powers in relation to domestic animals be a useful addition to the powers that the police already have?

The Convener

That is the last question from a member, so this is the last chance that people have to speak before we wind up.

Dr Tingay

The special constables project in the Cairngorms has been a complete disaster. We are still waiting for a formal report, but we know from a parliamentary question—which was asked by Mark Ruskell—that no wildlife crimes were reported by those special constables during the period in which the project was running, even though we know that wildlife crimes took place in the park during that time. I am not quite sure how the effectiveness of the project will be measured by the Scottish Government. However, in terms of reporting crimes, there is nothing to report.

Eddie Palmer

On the powers of the SSPCA, it is the organisation that is managing to get some badger baiters into court, because of its concentration on dog fighting. Scottish Badgers sits between the police, who do what they do, and the SSPCA, which does a lot of work on the ground. I know that the police co-operate with the SSPCA with regard to the SSPCA having to enter houses, for example. However, the data and the statistics on that are mixed and confused, and we get caught in the middle at times. The situation at the moment is unsatisfactory.

Les George

There is no need to give the SSPCA more powers. In relation to the case that is being brought in Angus at the moment, the present arrangements worked perfectly fine. If you are going to do these things, you need to resource the police. The police are impartial, but the other groups are not—they have their own agendas. The police should handle these things, not the other organisations.

Ian Thomson

At the moment, the SSPCA, as a specialist reporting agency, has the ability to report crimes under the Wildlife and Countryside (Scotland) Act 1981, but it may enter land only under the terms of the Animal Health and Welfare (Scotland) Act 1987—in other words, it may do so only if an animal is actively suffering. Our interpretation of that is that, if, for example, the SSPCA receives a report of a bird having been caught in an illegal pole trap, it can go and seize that trap and that bird, but it is not allowed to check for other identical illegal pole traps or dead animals caught in those traps in the same area.

A few years ago, a common gull was caught in an illegal trap that had been set on a grouse moor in Aberdeenshire. There was a line of 10 similar traps across the hillside, but the suspect was able to remove them before the police could come to visit. If the SSPCA had the powers to search, it could have recovered further evidence. We feel that it is important that the idea is at least explored.

The Convener

We have run out of time but, because I am a nice person, I am going to let my deputy convener come in with one very short question.

Finlay Carson

It involves what we are talking about. It seems that the SSPCA already has powers in respect of animal welfare, and there is a question about why it should not have equivalent powers in respect of wildlife. We have heard concerns about the accountability of organisations other than the police. Does anyone have concerns about the governance or the accountability of organisations such as the SSPCA when it comes to additional powers to enforce the law and gather evidence under the new legislation?

Dr Tingay

I have no concerns about that at all. The SSPCA is an official reporting agency and it does a brilliant job in relation to domestic animals. Why would it not do the same in relation to wildlife?

The Convener

On that note, we will suspend briefly to allow for a change of witnesses.

10:50 Meeting suspended.  



10:57 On resuming—  



The Convener

Our second round table on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill at stage 1 will focus on enforcement and prosecution. I am delighted to welcome: Mike Flynn, chief superintendent, Scottish Society for the Prevention of Cruelty to Animals; Detective Chief Superintendent Gary Cunningham, specialist crime division, Police Scotland; Constable Charlie Everitt, Scottish investigative support officer, UK National Wildlife Crime Unit; Robbie Kernahan, head of wildlife management, Scottish Natural Heritage; Joanne Fairman, head of regulatory affairs, Animal and Plant Health Agency; and Sara Shaw, head of wildlife and environmental crime unit, Crown Office and Procurator Fiscal Service.

Good morning to you all. A number of you were in the public gallery when the first panel was giving evidence and will have heard me ask the witnesses about the evidence base for the proposed increases to penalties and trends in animal welfare offences. Of course, we must talk about historical offences rather than on-going cases, for reasons that you all understand. Who wants to kick off by talking about trends in offences and the need for increased penalties?

Mike Flynn (Scottish Society for the Prevention of Cruelty to Animals)

I can give a couple of recent examples. Sentencing guidelines recommend that sentences of less than 12 months not be given. Two sheriffs jailed people for nine months and 10 months respectively and commented that their powers are not enough and the offences were serious enough to justify such measures.

The Convener

Do you think that there is a desire for flexibility on the part of sheriffs?

Mike Flynn

I think that sheriffs would welcome it. You must remember that, even if the maximum sentence is five years, it is entirely up to the sheriff whether to impose a sentence of six weeks, two and a half years or whatever. A lot of the people who we deal with do not see a six-month prison sentence as a deterrent. In the dog-fighting and puppy-farming arenas, we come across a lot of people who have been jailed many, many times for other offences; jail is an occupational hazard for them. For someone who does six months in jail for puppy farming and then comes out and still has the £20,000 that they made in one month, a six-month sentence is not a big deterrent.

11:00  



Stewart Stevenson

Is there not also an issue for the Crown Office, in that longer sentences can be imposed only if a case is raised as a solemn case rather than a summary case? It is not just that sheriffs do not have enough powers; there is also the need for the prosecutor to bring forward solemn cases, so that the case can ultimately result in a long sentence.

Sara Shaw (Crown Office and Procurator Fiscal Service)

Each case is considered on its own facts and circumstances and an assessment is made of the appropriate forum for prosecution. You are right to say that there needs to be a solemn prosecution if we want to open up the maximum penalty to the court. However, although the bill introduces that potential, we will still consider each case and raise proceedings in the appropriate forum, according to the particular circumstances of the case.

The Convener

We have talked about organised crime. Some offences are part of a much bigger enterprise, and the individual who goes to jail might have a larger organisation behind them.

Mike Flynn

That is certainly the case. There are lots of documented cases of that, especially in the dog fighting and puppy trade industries.

Robbie Kernahan (Scottish Natural Heritage)

It can only be a good thing to take the opportunity to improve consistency in relation to wildlife and welfare offences. The clear rationale for the bill is the need to increase penalties for the most serious crimes, so the introduction of flexibility and the option for each case to have a tailored solution makes perfect sense.

Joanne Fairman (Animal and Plant Health Agency)

I second that. We are the regulator for a lot of the welfare issues, because the enforcement is done by our enforcement partners. The committee must remember that we get to a prosecution and sentencing after all other interventions have been put in place. We build up to a prosecution; it is not the end game. If we reach the point at which we think that prosecution is required, we need the court to have the ability to impose a bigger sentence, because we are talking about people who genuinely need a stiff sentence to make them get out of the business or change their behaviour.

We have shown that the system that we have has not changed behaviours over the past five or 10 years, so we need to do something different to deter people who will not otherwise abide by the law.

The Convener

The other part of my question was about trends in animal welfare crime. Has there been an increase in such crimes over the piece?

Detective Chief Superintendent Gary Cunningham (Police Scotland)

That is a difficult question to answer. The statistics show that, last year, there was a 30.9 per cent decrease in wildlife crime, with a 6 or 7 per cent decrease in detection rates. However, we are not sighted enough on the volume of crime out there; the statistics show only what we come across or detect. Sometimes when a raptor disappears we cannot prove that there has been a crime—we might suspect criminality, but we are not in a position to prove, to Scottish crime recording standards, that a crime has taken place.

Therefore, when you are looking at the volume of crime, you should not make decisions on the basis of comparing percentages and trends over the years. We need to fully understand the problem that we have with wildlife crime across the board. That understanding will come through better intelligence, better partnership working and better assessment of our response to incidents. Only then will we get a flavour of where the issues lie. If we look across the board, we see that raptor crime is the main issue that we face just now.

The Convener

Volume is not the most important thing. One instance is enough.

Detective Chief Superintendent Cunningham

Exactly.

Rachael Hamilton

The Law Society of Scotland made the point that there needs to be a

“rationale justifying the differentiation in the varying penalties.”

Will the panel comment on how the penalties for the different levels of crime could be made clearer?

Mike Flynn

Sheriffs take into account the severity of the crime and the impact that it has on the animals or the people involved. The fiscal certainly takes that into account when marking up the case. It is then down to the evidence that is presented to the court and it is up to the sheriff.

Where it has fallen down, which is more on the financial side, is in the puppy trade. An accused who was found guilty was fined £2,600 for his involvement in the puppy trade and £500 for selling the puppies in a public place. He openly said in court that he had made more than £1.2 million in a year and a half, so where is the deterrent in those fines? His motive was profit; he had no interest whatsoever in animal welfare. That kind of thing also needs to be taken into account. Given the right evidence, the fiscal service does a fantastic job in presenting it to the courts. The profit issue is why it deserves a higher penalty.

Overall, the number of cases that we report to the fiscal is dropping year on year, because we do more intervention and we do it sooner. The majority of cases are about ignorance and neglect, but far more intentional cruelty is coming to light. Recently, there have been more badger incidents because, as soon as we start getting involved with those people, we become aware of their cohort and colleagues, and we also get evidence on them. We see some really serious cases. The Mark Cuthbert case—he got 10 months in jail—was one of the most barbaric that I have ever come across. He fraudulently got cats that were offered by people as free to a good home and fed them to his dogs. That is the kind of depravity that we are dealing with these days.

Constable Charlie Everitt (National Wildlife Crime Unit)

The Crown Office will be able to exercise discretion with regard to, say, the killing of a wild bird, whether it be, at different ends of the scale, a blue tit or a golden eagle. In addition, impact statements highlight the conservation concerns about the respective victim species, and that will help to differentiate the severity that must apply.

Joanne Fairman

In our evidence, there are cases of people who are out to make money regardless of the welfare of the animals—whether that is fighting dogs or imported puppies—and they are intentionally in it for the profit.

The other side that we see is on-farm welfare. Those cases are different, because, more often than not, the people who get themselves into problems with on-farm welfare have seen a decline in their health or finances, found themselves in that position without setting out to be in it and, all of a sudden, cannot see a way out of it. They get entrenched. Those cases are more difficult because, although they can be serious and the animals can be harmed, there has been no intent. It is about whether the people make the right interventions to get themselves out of that position when they are suggested to them. The distinction is in the intent.

The Convener

Those might be situations in which a person is not coping.

Joanne Fairman

Yes.

Stewart Stevenson

I want to go back briefly to DCS Cunningham with an operational question.

Are you getting enough intelligence to populate your general intelligence resources from all the many agencies and charities that are involved in this particular area? If not, is there anything that could reasonably be done, apart from saying that your doors are open to getting more intelligence?

Detective Chief Superintendent Cunningham

That is a good question and a great point. I do not believe that we have an intelligence-sharing protocol in place between all the different agencies and partners that are involved in wildlife crime. Police Scotland has a large database, as do some other agencies, but we are not at the right level with sharing information. The intelligence picture could be greatly enhanced to allow us to focus on where the issues are in Scotland, and to build cases and focus interventions, initiatives or operations on those areas.

Do not get me wrong—the partnerships are strong and we are continuing to build them. Everyone has a clear focus on the ultimate goal, which is to prevent wildlife crime and catch those who are responsible, but I think that there are opportunities for better sharing of information and intelligence. That will allow us to better assess the risk and target the problem.

Stewart Stevenson

Economic criminals such as puppy farmers are likely to be involved in more general criminal behaviour, so wildlife or welfare intelligence that comes to you might have pay-offs in other parts of the criminal justice system.

Detective Chief Superintendent Cunningham

Yes—in relation to serious and organised crime.

The Convener

How can we get better information sharing? Do we need an information technology solution or is it a question of providing more resources?

Detective Chief Superintendent Cunningham

It is a case of continuing partnership working and having conversations about where we can get information that might assist with joint operations. Such work is on-going, but I do not have a specific solution. We need to have conversations about how we can address the issue. We could maybe set up a short-life working group to assess the best way forward. If we had intelligence on a particular individual or a particular crime, we could have meetings with the partners to discuss that intelligence. I think that information-sharing protocols are in place with Scottish Natural Heritage. We need to consider how we can build on those and extend that to the other partners.

Finlay Carson

I want to follow up on that and on what Mike Flynn said about puppy farming. Does the bill need to be amended to further address the drivers of animal welfare offences so that it covers, for example, the proceeds of crime, the ability to impose sentences that include education for offenders and the prevention of offending in the first place? Could more be done through the bill to address the drivers of animal cruelty?

Mike Flynn

I am not sure whether I am giving the right answer but, to go back to Mr Stevenson’s point, when it comes to puppy farming, the police have been fantastic in using the serious and organised crime squad to pursue the proceeds of crime with some of the individuals we have dealt with. The interventions units have been extremely helpful, too. On the domestic side, there is great link-up at a local level.

Detective Chief Superintendent Cunningham

We also have a disruptions unit that is set up to work closely with the partners.

Finlay Carson

So there is nothing that we ought to include in the bill that would increase our ability to address the drivers of animal welfare offences. You are quite content with the bill in that respect.

Detective Chief Superintendent Cunningham

Yes.

Finlay Carson

I want to ask about the effectiveness of other types of penalty that are used at the moment. It has been suggested that we need more flexibility. We have heard in evidence that the use of disqualification orders is a bit random and that they could be used more systematically, and we know that there are disqualification orders and dog control orders that have not worked particularly well. Is there a need for a register of disqualification orders and other information about people who have been convicted of wildlife offences to support enforcement?

The Convener

Joanne Fairman is nodding.

Joanne Fairman

I would say that there is a need for that.

To go back to the question about intelligence, we have all begun to dip our toes in work in that area. We have intelligence—we have Food Standards Scotland and we are working at Gartcosh—but the intelligence that we have is only as good as the information that is provided. There is no magic bullet, but the issue comes down to resources. We are all given funding to do the job that we are asked to do, and it is sometimes difficult for the staff to take their blinkers off and look at the wider picture. The potential exists to look more strategically at threats that go across departments. That might make it easier to share the information.

On disqualification, an issue that has come up recently in our area is the ability to know who has received a disqualification order. We get such information from some of the local authorities and from the SSPCA, but it would be useful to have it in one place. Having such a source of intelligence would be a good starting point.

The difficulty that we had previously with disqualification orders is that although we might have disqualified one individual, they would simply pass on the animals to a family member—in other words, we did not solve the problem. There needs to be greater consistency and the disqualification process should be strengthened to stop the activity continuing under a different name.

Mike Flynn

Disqualification orders are regularly breached. On the domestic animals side, every year we will get a warning from the Royal Society for the Prevention of Cruelty to Animals to tell us that somebody who is banned in, say, Manchester has moved up our way, and vice versa.

There is no enforcement or follow up. Someone is banned for five or 10 years and nobody checks on it. There is no central register—the information will be somewhere in the depths of the police national computer system. Although a police constable going to someone’s door for whatever reason will know that they have got a warrant out for them and are potentially violent, they will not know that that person is banned from keeping dogs. You could walk into the house and there would be five dogs there, but nobody would know about it.

We have spoken for a long time about getting a register that authorised agencies can access without any risk to individuals.

11:15  



The Convener

It would also be helpful for the public. If you are going somewhere to purchase a pet, for example, and you know that there is a register, you can check the register.

Mike Flynn

The previous time that this was talked about the discussion was about whether the register should be open or just for enforcement agencies. If it was open, you could get vigilantes trying to find out who is banned and causing trouble.

The Convener

One of our witnesses at last week’s meeting talked about articles in newspapers. They were asking for a publicly available register, but you are saying that that might have unintended consequences.

Mike Flynn

For that aspect, yes, but I am going back seven or eight years, when a local authority gave a pet shop licence to a person who had not declared that they had been banned. If you are banned from keeping animals, you will not get a pet shop licence. This person did not declare it and there was no record of it, so the local authority, through no fault of its own, issued a pet shop licence.

Stewart Stevenson

We will come to fixed penalty notices later, but I just wanted to ask at this point whether it would be appropriate to ensure that fixed penalty notices were part of the register system, so that the existence of a pattern of low-level behaviour was clear at the appropriate point. That may be a question that answers itself.

Mike Flynn

That is a very good point. Fixed penalty notices should never apply when an animal has suffered; they should apply to technical offences, of which there are thousands. The question is, if a local authority APHA wanted to go to prosecution, would the procurator fiscal take it? Let us take, for example, a livestock haulier not cleaning his wagon out between loads. If you put that to the procurator fiscal, and no animal has suffered, the chances are that it would be an ideal case for a fixed penalty notice. We have consistently said that people should not get a fixed penalty notice for the same thing every week.

Stewart Stevenson

We will come back to FPNs. I am just on the narrow issue of whether they should be put on a register.

Mike Flynn

Yes.

Mark Ruskell

The panel has already started to explore the links between violent crime and animal welfare offences. Could other approaches to prevention and enforcement be pursued here? The committee heard last week that in some countries, incidents of suspected animal abuse can be reported to social workers. How is this area evolving?

Mike Flynn

The Links Group was set up to involve all partners. Going back to the police point of view, it is about information sharing under proper protocols. It is even linked in to dentists spotting domestic violence and so on. Who should they report that to? Should it be reported to the police? It is more about information sharing where appropriate.

Mark Ruskell

Are there concerns about information sharing between different agencies?

Detective Chief Superintendent Cunningham

No, not if it comes down to child welfare or adult protection. I think that we are confident about that information being shared automatically. We have to have that mindset when we are dealing with wildlife crime. What is the individual’s mental state if they are capable of carrying out these acts? Should we consider a wider piece of work with health professionals? Should we get proper assessments done and look at the wider family dynamic? All that is very important.

Robbie Kernahan

In relation to wildlife crime, Scottish Natural Heritage and Police Scotland have a very good relationship when it comes to sharing all our relevant information and intelligence. Whether it is on impacts, populations or specific individuals, our information sharing is fairly well developed. In the partnership against wildlife crime, there are groups set up to look at specific topics. However, because of the on-going polarised debate about land use, and specifically raptor persecution, and because of the lack of trust, some of the intelligence sharing and media protocols do not work as well as they should.

Mark Ruskell

How might the bill impact on the Crown Office and Procurator Fiscal Service’s decision making?

Sara Shaw

Do you mean the extended time period for investigating and reporting offences?

Mark Ruskell

How do you see all the provisions in the bill impacting on your decision making?

Sara Shaw

The Crown Office and Procurator Fiscal Service will continue to consider all reports of cases that have been received. It will consider whether a crime has been committed, whether there is sufficient admissible evidence of that crime, whether there is evidence of the perpetrator, and whether proceedings are in the public interest. We will continue to take decisions on the same basis that we currently do. Obviously, factors can affect how wildlife crime is dealt with, such as the detection of where the crime took place. There can sometimes be delays, and there can be complexities in pursuing forensic evidence and examining items when the crime has come to light. If there is a delay in detecting a crime or the evidence is complex, the extended time period within which a prosecution can be brought will be useful.

Mark Ruskell

Does the increase in sentencing options affect the public interest test on whether to pursue a case?

Sara Shaw

The penalties do not directly affect the public interest test. The option of opening up the potential to prosecute at either the summary level or the solemn level allows the Crown to take full account of all the facts and circumstances of a case, to take account of the seriousness of the offending and the circumstances of the alleged offender, and to be able to ensure that the forum in which a prosecution is brought reflects the seriousness of the offending. Obviously, in considering the forum, we will have an eye to the potential outcome. If prosecution at the solemn level was appropriate, those maximum penalties would be opened up as an option for the court for more serious offending.

Mark Ruskell

Does the increase in maximum penalties require new sentencing guidelines?

Sara Shaw

It would not be appropriate for me to comment on sentencing. I am aware that the Scottish Sentencing Council has considered guidelines for wildlife and environmental offences, and I understand that those are still in progress.

Mark Ruskell

Are there any other views on that? Earlier, we had a discussion about impact statements, the severity of crimes and the wider impacts. Is the reconsideration of sentencing guidelines required?

Mike Flynn

Recommendations are included in veterinary reports that would be displayed to the courts anyway in light of the severity of the impact on the animal. With puppy farming, I am sure that the police evaluate whether to go for the proceeds of crime that have been made from the activity.

Rachael Hamilton

How common is it to be able to use intelligence to link organised crime and puppy farming, or domestic abuse and animal cruelty, for example?

Detective Chief Superintendent Cunningham

It is simply a case of ensuring that sufficient intelligence is brought into our systems to make an assessment. Making the link between puppy farming and organised crime is really quite simple. It depends on the individuals who are considered and researched, the financial gain, the set-ups, and on linking into other police forces that will share their intelligence. That is quite easily done. We can then draw pictures of individuals, their motives, and how they behave towards other people. That could bring in domestic violence.

I do not know whether that answers your question.

Rachael Hamilton

It does. That links into the severity of the penalty, which we talked about earlier. I just wonder how often that comes into play. Obviously, it will depend on the intelligence that you have available.

Mike Flynn

It is very common for there to be a link, not in relation to wildlife offences but in relation to domestic animals or badger baiting. We always rely on help from Police Scotland if we are dealing with a known dangerous person. We approach Police Scotland for assistance on the day and, as soon as the police know who the target person is, we find out whether they have been a client of the police in the past. It all goes from there.

Robbie Kernahan

I want to make a principled point relating to Mark Ruskell’s question about sentencing guidelines. Increased maximum penalties will, I hope, inevitably help in relation to compliance, deterrence, risks and consequences. Fundamentally, quite a lot of people struggle with the lack of transparency in sentencing. Last week and this morning, we have heard about the lack of transparency, so it can only be a good thing to have sentencing guidance that people can better understand.

Mark Ruskell

Is there any inconsistency?

Robbie Kernahan

From reading the committee’s papers and from the evidence that we have heard today, we know about the lack of consistency for offences that might be relatively comparable in terms of the impacts that they have. I think that guidance would help.

Joanne Fairman

We had a similar problem in England. Every year, we publish a report that shows what action local authorities have taken in relation to offences under animal health and welfare legislation. The reports include information on the individuals and the sentences that they received. For a period of time, we decided that we would slim down the reports and include only the number of offences. However, we had a call to put the other information back in, because the reports were one of the source documents that the judiciary used to compare the offences and the sentences that were given. The offences that we are talking about are not that frequent compared with other cases that are seen within the judicial system day to day, so it was very difficult for the judiciary to think about where to get the information. People would say, “I’ve got this before me, but I’ve never done one of these before. What shall I do?” In England, the reports have proved to be a good source document to go to for reference.

Finlay Carson

I want to be sure that the bill will do all the things that we want it to do. We have heard of people who carry out illegal razor clam fishing being prosecuted. They do not get prosecuted for carrying out the illegal activity, because that is too difficult to prove; they get prosecuted for tax evasion or for breaching health and safety. That might also be the case for puppy farming. We do not always address the issue directly. It is like Al Capone going to prison for tax evasion rather than for gun crime or whatever. Are the witnesses confident that the bill includes everything that is needed to address the real issues that we face?

Detective Chief Superintendent Cunningham

Yes, absolutely. It comes down to the investigative standard and approach. The crimes that we are talking about will always be difficult to solve, and it will be difficult to prove that a particular individual is responsible. That comes back to how we shape our investigations to ensure that a professional approach is applied across the whole nation. Police Scotland, with the different partners that have been mentioned, does that. The bill is fit for purpose in that respect. It is just a case of there being difficult investigations at times. We should not just take things from day 1 of an investigation; as you said, we need to look at all the different options in order to disrupt the individuals who are responsible. If we get them for a minor offence but cannot prove that they were involved in the wider or larger offence, we will go after them for the minor offence. As far as I am aware, the bill is fit for purpose.

The Convener

I have questions about rehoming without a court order. I have spoken to Mike Flynn about the issue in relation to a particular incident in my constituency. The bill proposes that a court order will not be needed in order to rehome or sell on animals. What impact will that have on the welfare of animals and on organisations such as local authorities, Police Scotland and the SSPCA?

Mike Flynn

The SSPCA believes that the bill would be a groundbreaking piece of legislation. You have mentioned two aspects. The welfare of animals is totally compromised if they are kept waiting in kennels for up to 23 months. Currently, if a person does not voluntarily relinquish an animal, it must be kept until the determination of the court case.

We do not hold on to animals if a report is not going to the fiscal; we hold on to them only when a case is pending. The worst case that we have had in recent years was the one lasting 23 months, which I mentioned. In that case, 57 dogs were held for 21 months. If that had been a police case and they had asked us to look after the animals, on commercial terms, that would have cost the police £440,000. It is £15 per dog per kennel per day.

11:30  



It is about the welfare of the animals. We have the best kennels and staff imaginable, but the kennels are no place for a dog to be brought up. In the case in your constituency, convener, some of the dogs that we seized were pregnant bitches and they actually gave birth in our kennels. Those dogs were more than a year old before they saw the light of day, so to speak. We built new sensory gardens and other such things to try to stimulate them and give them some of the experiences that they should have had. However, if a one-year-old dog has only ever known kennels, that is not good for its welfare.

The Convener

You have touched on the costs to the SSPCA of keeping animals for such periods. The proposals in the bill will release a lot of money for you to do the other work that you are supposed to be doing.

Mike Flynn

I have two important points on that. We estimate that, in just under two years, it has cost us £1.5 million to care for animals that have been involved in court cases. I mentioned two big cases. In August 2018, if you had gone to our Glasgow dog and cat home, which has 160 kennels, you would have found that we had two dogs for rehoming and that every other kennel had a dog in it waiting for a case to go to court. That was just because of the backlog and the court system.

Constable Everitt

To back up Mike Flynn’s point, one of the difficulties in seizing dogs from hare coursers is the cost of keeping those dogs. As Mike Flynn said, we support anything that alleviates those costs.

The Convener

My next question is perhaps more for Joanne Fairman. It is about the balance between safeguarding animal welfare and the rights and interests of the owners of animals. Do you want to talk about that, Joanne? There might be an issue where someone has got into a situation and has found that their animal has been seized.

Joanne Fairman

As Mike Flynn said, homing dogs and keeping them in kennels is difficult, but we are regularly faced with herds of 80 head of cattle that we can see deteriorating. Our vets go out time and again, perhaps to put down animals that are dying. Our vets are sort of powerless. They try to work with the owner to sell some of the animals so that he can recoup some money before they become worthless. It is about the welfare of the animals, but it is also about the welfare of the vets because, clearly, that situation places an emotional strain on them. They know that local authorities are not necessarily resourced to take in and look after animals. The animals will need handling every day—they will need feeding and watering. It is difficult to find somewhere to put the animals, especially because we have to comply with disease control measures before we move them anywhere.

There is a balance, but we sometimes get to the point at which, despite all the best persuasion and cajoling, we have to seize the animals. We give care notices that explicitly tell people what they need to do. We engage with neighbours and farming networks to try to help people before we get to that point. However, the point comes when we can see that nothing else will happen and we have to seize the animals. At that point, the decision is made that the animals’ rights have to come before the rights of somebody who thinks that they can farm and do what they like regardless of the need to look after their animals.

The Convener

Is the three-week appeal period appropriate?

Joanne Fairman

It is too long, because of the need for care and the cost to the local authority. That deters the local authorities. For example, we had a case involving 80 animals in which the appeal was protracted—it did not even happen in three weeks. The cost to the local authority as a result was phenomenal. In that sort of situation, the local authority does not get that money back because, by that point, there is usually no money.

The Convener

You are saying that the period now is too long, so the three-week period is appropriate.

Joanne Fairman

Sorry—yes, it is.

Once a local authority experiences such difficulties, it will be reluctant to take on any more cases.

It becomes a catch-22 situation: we will sometimes take someone to court and be asked, “If it was that bad, why did you not seize the animals?” We are forced to say, “It was bad but we could not seize the animals” because it came down to the monetary factor, which is a real pity.

The Convener

Or that it came down to capacity.

Joanne Fairman

Yes.

The Convener

Does anyone else have thoughts on that? Are you confident that all the processes that you will need for any sales, rehoming or, sadly, euthanising of animals as a result of this new power to seize animals without a court order are in place?

Mike Flynn

From our point of view, certainly.

Finlay Carson

We have discussed with other panels the difference between domestic animals and commercial working animals and companion animals. Are there potential difficulties when it comes, for example, to how the SSPCA deals with complaints from the public regarding a working dog or a domestic dog? There are different levels: if a member of the general public were to look at a sheepdog that has been out working on the hill, they might think that it looks like it needs a trim and it is a bit muddy and dirty, so how do you deal with that? It is probably okay, because it is a working dog, and it would be different for a domestic dog that is not used to being out in the wet and the cold. Are there potential problems when it comes to decisions that the police or the SSPCA have to make regarding the welfare of animals, working or otherwise?

Mike Flynn

Not really. From our side, on the example you gave, a perfectly healthy working border collie is a perfectly healthy working border collie. Our guys know what to look for. Any time we are looking at a more serious offence of causing unnecessary suffering, it is always certified by a veterinary surgeon that the animal has suffered. With a soggy, knackered-looking border collie that has been working all day, you will not get a certificate—“as fit as a butcher’s dog” will be the determination. Every case is an individual case.

Rachael Hamilton

I want to ask about the time that it takes for appeal. There is evidence to suggest that that, and the time for further appeal to the Court of Session, is too long. How could that be expedited, which would help the whole process? It is down to the time that cases take in the courts. Perhaps there could be prioritisation of some cases.

The Convener

Do you mean in relation to the three-week period?

Rachael Hamilton

Yes. If the time that it is taking to deal with an appeal and possible further appeal to the Court of Session is rolling over the three-week period, perhaps it should be recognised that there should be prioritisation of specific cases. Joanne Fairman gave the example of 80 cows and the suffering that was caused.

The Convener

I am not sure that I understand. At the moment, it is not necessary to have a court order to rehome animals or sell them on.

Rachael Hamilton

We have gathered evidence about the time that it takes to appeal through the courts.

The Convener

Would anyone like to comment on that?

Mike Flynn

The court process is very underfunded. So many sheriff courts have been cut over the past couple of years that it is difficult to actually get into court. The Crown Office and Procurator Fiscal Service marks a case as being for proceedings, but then it is then over to the Scottish Courts and Tribunals Service to facilitate availability of a court. The accused person might then say that he cannot get legal representation or has just fired his lawyer. There is delay after delay, during which time animals are being kept at incredible cost to the local authority, the APHA or the SSPCA, with all the welfare issues that are involved.

The Convener

That three-week appeals process does not happen. The welfare issues will be dealt with because you are able to move the animals on.

Mike Flynn

That is why we welcome the proposal 100 per cent.

The Convener

We will move on to compensation. Stewart Stevenson has some questions about that.

Stewart Stevenson

First, if you will forgive me for doing so, I will ask a question on the back of what has just been said. On appeals, the bill lists

“The grounds on which an appeal to the court may be made”,

and there are only three grounds, which are

“that the decision ... (a) is based on an error of fact, (b) is wrong in law, (c) is unreasonable”.

The appeal has to be lodged within three weeks. Is the test of whether the decision “is unreasonable” reasonable?

Mike Flynn

We would be in a position to defend a decision because, as I said, we seize animals with the support of veterinary surgeons. If such a case were to go to appeal we would be able to provide the sheriff with our reasons for having seized the animals—for example, that a vet said that the animals had suffered or could not stay in the situation that they were in.

Stewart Stevenson

Let us look at the reasonableness aspect. There is only a three-week period for a person to appeal a decision, and there are only three grounds on which one can appeal. Does that mean that it is not very likely that many appeals will be successful?

Mike Flynn

That is my estimation. At the moment, more than half the people from whom we remove animals relinquish them voluntarily. Others are informed that our action could end up with a civil case against them being taken to court, but they do not care because that will not cost them anything. Many of the people whom we deal with want to stick two fingers up at the police in court anyway, so they are unlikely to comply with requirements. However, having to think, “Wait a minute—I’m going to have to take action here and pay for legal representation”, would put a lot of them off. There should be no appeal, and we would then kick into the three-week period after which the animals could be disposed of.

Stewart Stevenson

Right. I will now move on to the point that the convener wished me to pursue.

Compensation is covered at considerable length in the bill. Is what is there fit for purpose? My colleague Finlay Carson raised the difference between companion animals and animals that are owned for commercial purposes. Does the bill strike the right balance in determining the proper compensation that should be granted to the previous owner of an animal?

Mike Flynn

The SSPCA supports the proposals on that. We have been criticised for saying that we reckon that the compensation provisions are there just to comply with expectations on human rights. Anyone who removes an animal—whether it is us or anyone else—is seen as depriving a person of their property. It is not recognised that animals are sentient beings: it is just that someone is being deprived of something—their dog is just like their telly or whatever. In accordance with that way of thinking, if the person is found to be not guilty, they should be compensated for the value of their property.

However, it is important that the level of compensation reflects the value of the animal at the time when it was seized. For example, we or the APHA might seize a herd of cattle, each of which is worth £50, but might have to wait a year for the court case to begin. After that, if the cattle were still said to be worth only £50 each, we might ask what the farmer had done wrong, because they had not improved. The level of compensation should be based on the value at the time of seizure.

Stewart Stevenson

If there were welfare issues, I presume that animals’ value would rise once they were moved into a regime in which they were being cared for and their welfare was being addressed.

Mike Flynn

Exactly.

Stewart Stevenson

Are you—or is anyone else in the room, for that matter—satisfied that calculating compensation will be done properly?

Mike Flynn

We have been involved in such cases in the past. In our experience, calculating the value of commercial livestock is not really a problem.

Stewart Stevenson

Sure.

Mike Flynn

We would go to a professional auctioneer or valuer, who would say, for example, that a flock of sheep is worth £20,000. That would be the value at which we would sell them.

Stewart Stevenson

What about companion animals?

Mike Flynn

That is where things become more difficult. We have been involved in puppy farming cases in which people have been prosecuted for selling bulldog pups at £2,500 each when, in reality, they were not worth even £200 each because of all their genetic defects. In such cases, the nearest figure that we have been able to propose, and so the maximum compensation that we would pay, would be the Kennel Club’s average price for a French bulldog, or whatever breed, in good condition.

Stewart Stevenson

Forgive me, but in a sense, we are talking about commercial animals that will become companion animals. However, should a private individual who has a companion animal in situ and is then deprived of it be compensated in any meaningful way?

Mike Flynn

There is an argument that such an animal would never be seized in the first place if it was a perfectly healthy pet that had been well loved. However, in such cases there might be veterinary evidence that a crime had been committed, which casts a different light on matters. I know that OneKind has raised concerns about cases in which we might be seen as having taken away Mrs McGinty’s cat, if I can put it in that way. However, there has to be some provision for such cases. Later, we will issue a briefing about a case in which it turned out that a spaniel called Flo had been poisoned by a qualified veterinary nurse. It took more than four years to get that case to court—during which time the dog had to sit in kennels, which would have been horrible for her.

Stewart Stevenson

I am sure that it was, but the bill provides that a dog in that situation can be moved on in three weeks.

Mike Flynn

That will be the case under the bill: that case was based on what happens as things stand.

11:45  



Stewart Stevenson

That situation is different. I am talking about the very narrow circumstances in which, before the legal process is complete, the animal is removed from its current owner and passed to a new owner, possibly for commercial value. Are we satisfied that the commercial value can be identified? The court could decide that compensation not be given, under proposed new section 32K of the Animal Health and Welfare (Scotland) Act 2006, but that would come much later. It has to be decided within 21 days, or nearby, what the animal is worth. How do we do that for a companion animal? We need to be able to justify the cost to the general public, who might be concerned.

Mike Flynn

Again, we would have to base compensation on the average price of such an animal, taking into consideration what the vet said about its condition. We might say that a particular dog, for example, would generally be worth £100, but the vet has said that it needs whatever amount spent on treatment. Compensating an individual who owns a companion animal would be quite difficult, not in terms of the financial aspect but in terms of the emotional aspect—although why would a person who was emotionally attached to an animal neglect it?

Stewart Stevenson

Indeed.

Angus MacDonald (Falkirk East) (SNP)

The consultation has shown broad support for the introduction of a Scottish Finn’s law. Last week’s panel was also firmly in support of that, as expected. Are the proposals in the bill for a Scottish Finn’s law an appropriate mechanism to increase protection of service animals? Has the current law acted as a barrier to prosecuting and penalising people who have been responsible for attacks on service animals?

Mike Flynn

We fully support the introduction of a Finn’s law. I have been involved with police and military dogs for more than 30 years, and the thought of one of those dogs being attacked when it is carrying out its duty to protect the public is abhorrent to me. I have always been surprised that, when a police dog has been injured, charges are not brought under section 19 of the Animal Health and Welfare (Scotland) Act 2006. Kicking a dog is kicking a dog, whether it is a police dog or not, but the courts have not dealt with such cases correctly.

Such attacks happen mainly in England. In Scotland, they are rare: there are not a lot of attacks on service animals, as far as I am aware, although my colleagues might know about that. I have heard of instances, but they were not like the horrendous examples that I have heard about happening down south.

Detective Chief Superintendent Cunningham

I agree that we have had a minimal number of examples, so it is difficult to form an opinion. I think that the last one was when an individual punched a police horse. Nothing else has come to my attention; I do not know whether Charlie Everitt has heard anything different.

Constable Everitt

Nothing has come to my attention, but my personal view is that Finn’s law looks good and is applicable to Scotland.

The Convener

That attacks have not happened does not mean that there should not be a law in place.

Angus MacDonald

It is good to hear that there have been few incidents, but it would certainly be good to have the law in black and white.

Last week’s panel argued to broaden the definition of service animals to encompass assistance animals, such as guide dogs. Do panellists agree with that argument?

Detective Chief Superintendent Cunningham

I agree that it would be good to widen the definition in that way. Anybody who harms assistance animals should have the full force of the law against them.

The Convener

We will move on. Does Mark Ruskell want to ask about Finn’s law, or are you happy that it has been covered by Angus MacDonald’s questions?

Mark Ruskell

That depends on time, convener. I will be guided by you on that.

The Convener

We do not have much time, but we might come back to the issue. Stewart Stevenson has questions about fixed-penalty notices. Please keep your eye in the clock.

Stewart Stevenson

I will start with a technical question, to which there might be no answer, or the question might more properly be for the minister. The part of the bill that covers FPNs is the second biggest part of the bill. Section 2(8) says that

“Regulations under subsection (1) may modify any enactment (including this Act).”

Subsection 1 makes provision for fixed penalty notices. Does anyone think that that is a very broad provision?

Joanne Fairman

The provision needs to be broad because we cannot and would not use fixed penalty notices for everything that could be imagined. The provision gives us the ability to work through the system and figure out for which offences it would be appropriate to use FPNs. We do not know what the future brings; there could be things that we have not yet thought about that could be dealt with through fixed penalty notices. It has been left open to us to investigate further and choose the appropriate penalty.

Stewart Stevenson

Okay. I am not sure that the provision, as drafted, is restricted to animal welfare. That is for another day.

Robbie Kernahan

The bill will introduce fixed penalty notices to the Animal Health and Welfare (Scotland) Act 2006, but the Scottish Government has also begun focused consultation on extending some of the powers to offences in the Wildlife and Countryside Act 1981, the Deer (Scotland) Act 1996 and the Protection of Badgers Act 1992. The introduction of flexibility at both ends of the regulatory spectrum makes sense for us. There are also administrative and technical offences associated with wildlife for which fixed penalty notices would be beneficial.

Stewart Stevenson

That is the question: do the witnesses think that it is appropriate to have fixed penalty notices as part of criminal law?

Constable Everitt

FPNs are very appropriate for minor technical offences, as your earlier witnesses suggested. Fixed penalty notices are not uncommon in police work—we use them principally in dealing with road traffic offences. There is precedent and there are other areas related to wildlife crime where FPNs are used; for example, Marine Scotland can issue fixed penalty notices in its line of work. They are appropriate for the minor end of wildlife crime, in particular for technical offences, when one would not necessarily consider reporting to the Crown Office. They would provide an alternative disposal to officers.

Colin Smyth

Earlier, several panel members questioned the categorisation of some crimes in the bill. For example, there was a feeling that a crime that impacted on the resting place of an animal, such as destruction of a badger sett, should be categorised as a serious crime. What does the panel think about the rationale for categorisation of crimes?

Robbie Kernahan

That is an interesting question. The proposals aim to tidy things up, but some inconsistencies remain. Some proposals are linked to underlying legislation. It can be a serious crime to destroy the resting places of European protected species, but we do not have the same provisions for badgers or wild birds. There are questions that are not entirely addressed in the bill about the consistency of approach for categorising different types of offence.

Colin Smyth

I suspect that I might get the same answer to this question as Mark Ruskell got to his question. He was asking about animal welfare, whereas I am asking about wildlife crime, but the question is whether the bill’s provisions, such as those on increased sentences and the extension of the time limit for prosecution, will increase the likelihood of bringing a prosecution. I suppose that the difference with wildlife crime, and therefore what my question is really about, is vicarious liability. Will the bill make the prosecution of vicarious liability more or less likely?

Sara Shaw

I do not think that the provisions in the bill will make prosecutions under the vicarious liability provisions of the Wildlife and Countryside Act 1981 any more or less likely. As I have said, each case is considered on its own merits. When we receive a case, we will consider whether we can raise a prosecution.

The ability to prosecute at either summary or solemn level opens up a choice of forum that we do not have at the moment. Currently, if the offending were to be of a particular level or character so as to justify proceedings at sheriff and jury level, that option is not open to the Crown. Otherwise, the considerations that inform our decisions about prosecution—whether a crime has been committed; whether there is sufficient admissible evidence; whether a prosecution is in the public interest—remain unchanged by the bill.

Colin Smyth

How effectively are penalties other than custodial sentences and fines—such as community payback orders—being used in relation to wildlife crime?

The Convener

Does anyone want to come in on that?

Rachael Hamilton

Can I help out here?

The Convener

Are you going to answer Colin Smyth’s question? [Laughter.]

Rachael Hamilton

No. I will go back to the categorisation point. In the previous panel, Ross Ewing of BASC mentioned that the illegal use of pesticides could become a tier 1 offence. It is already an offence. Is there any comment regarding the levels of categorisation? If that was categorised more effectively, would it make prosecution easier? Does the panel have any more detail on that?

The Convener

Do our representatives from Police Scotland want to come in on that?

Detective Chief Superintendent Cunningham

Charlie Everitt has more expertise on pesticide use.

Constable Everitt

When we talk about making prosecutions easier, it comes down to the level of evidence. Whether it is pesticide or proving another crime, that is what dictates a prosecution

Colin Smyth

There is a general feeling from some people who are feeding into the evidence base that, if the crime is seen as serious, it is more likely to attract a higher sentence and more effort will go into effectively investigating that crime and prosecuting it. Is that not just human nature? Given the huge pressure on time and resources for prosecutors and police, if something is seen as a more serious crime—rather than one for which the punishment is a small fine or a rap on the knuckles—more effort will go into bringing that to court and getting a prosecution.

Constable Everitt

That would raise its priority. I have argued that the killing of a golden eagle is not a serious crime at the moment, because it is triable only at summary level. We cannot take it to the top two levels in the country. The Crown Office might have liked to take the Black Isle case, in which double figures of red kites and buzzards were poisoned, up to a higher level. Without a doubt, a higher penalty puts it into the serious crime bracket. We can consider the resources appropriately.

Mike Flynn

I have one comment on Colin Smyth’s point. An increase in the time bar for wildlife crime would be great and welcome. In a lot of the domestic animal crime, we bang on a door and the evidence is there, but it can take months before any evidence comes to light regarding wildlife crime. If it has been going on for three or four months, by the time we start the investigation, we have run out of time. A longer time bar would help in tackling wildlife crime.

Constable Everitt

I support that. The Poustie report looked for harmonisation across wildlife legislation, yet, if we look at the Animal Health and Welfare (Scotland) Act 2006 and the Protection of Wild Mammals (Scotland) Act 2002—hare coursing and foxhunting come under that—we have to provide a six-month period for the Crown Office to issue proceedings. If there is video evidence to be looked through, often by the person who filmed it, that can take a month before it is reported to the police. Our video experts must complete a forensic analysis of the available evidence. That is cramming a lot into the time. By today’s standards, it is not appropriate to try and fit all that inside six months. Police Scotland have had cases that have been really squeezed and have not had the full benefit of the evidence that was presented to the Crown Office, because the staff have not had the time to prepare it.

Other legislation—the Protection of Badgers Act 1992, the Wildlife and Countryside Act 1981 and the Conservation (Natural Habitats, &c) Regulations 1994—has a three-year time bar, which is sufficient for bringing prosecutions. Standardisation of the time bar for all wildlife crime would be welcome.

The Convener

That leads nicely to questions from Mark Ruskell about the enforcement of investigations.

Mark Ruskell

I am interested in the point about filming and video evidence. Will the increase in maximum sentences lead to more authorisation of video surveillance and does the admissibility of that evidence now change?

12:00  



Constable Everitt

Increasing the maximum penalty would certainly allow officers to consider whether surveillance could be used. The bill increases the penalty for someone who is found guilty to imprisonment for five years and the Regulation of Investigatory Powers (Scotland) Act 2000 says that there must be a reasonable expectation that a three-year sentence will be given. Therefore, increasing the maximum sentence would allow officers to ask whether they could use surveillance for further investigations.

Detective Chief Superintendent Cunningham

We are talking about covert surveillance now and there are two aspects to that: directed surveillance and intrusive surveillance. We have always had an option to use directed surveillance as an investigative approach for any crime that has been reported. The bill would bring the maximum sentence up to five years, which is good because those crimes would then be classified as serious crimes, which would bring in intrusive surveillance.

Directed surveillance, such as having a camera in a set location to try to capture aspects, is slightly less intrusive in people’s private lives so we can justify it more easily. Intrusive surveillance is for a serious crime, which, as Charlie Everitt rightly said, requires an expectation of a three-year sentence. On a case-by-case basis, we can then look at whether the use of intrusive means is the only way to identify the individual who is responsible. It would give us another investigative strand towards, hopefully, the prosecution of the individuals responsible.

Police Scotland is trying to educate the numbers of wildlife crime officers who are coming through to make sure that they are aware that we can apply for intrusive surveillance and that there is an expectation that we will do so.

If intelligence is shared with us—the RSPB has done that in the past—that will give us a basis for going to our authorising officers in Police Scotland and saying, “These are the reasons why we think that it is justified.” It will also pass the direction of the surveillance commissioners who will look at any impacts under the European convention on human rights. The bill is a good piece of legislation that would provide us with a suite of options and allow us to carry out not only directed covert surveillance, but intrusive covert surveillance.

The Convener

Someone on the previous panel commented that if the police are using surveillance more, it might encourage people who are not the police—the word “vigilante” was used—to use videos to gather evidence. They might think that they were doing a good thing, but they would actually be impacting on people’s privacy. What do you make of that?

Detective Chief Superintendent Cunningham

Again, it probably comes down to our media strategy and having an education process. There will be an awareness that surveillance might be used and perhaps members of the public will try to use it—that can all be captured as well. I do not agree that we will get vigilantes going out and using surveillance. It is about how we deal with the issue and making sure that we take the lead.

At this stage, I do not see many covert surveillance applications being made, because I think that we should look to enhance our intelligence picture first. I keep going back to that point, but without the intelligence, we cannot move to a better investigative standard and justify carrying out covert surveillance. It is about information sharing, identifying those who are responsible, looking at the crime hotspots and working out what the best suite of options and the best tactics are. We would then perhaps sit down with partners to see who can bring what to the table and therefore have a joined-up approach.

Mark Ruskell

Would the bill change the admissibility considerations that the Crown Office would take into account?

Sara Shaw

No, it would not change the admissibility considerations—we still have to consider the law on the admissibility of the evidence and apply the law to the facts and circumstances of each case. As has been explained, the bill would remove an obstacle that is currently in place—there would be the ability to consider the serious crime test—but it would not impact in any sense on the law on the admissibility of evidence.

Mark Ruskell

Thanks. I will move on to the powers of the SSPCA. I am interested in the panellists’ views on whether the current powers of the SSPCA are appropriate and whether they should be extended to include wildlife crime, particularly in relation to gathering evidence.

Constable Everitt

In the example that was highlighted by Ian Thomson in the previous session, it would have made complete sense for the SSPCA inspectors to be able to gather evidence and take it to the police for further investigation, and such a power could be welcomed.

It would be welcome if the bill extended the powers under the Animal Health and Welfare (Scotland) Act 2006 so that SSPCA inspectors could enter land for a welfare reason, then go on to exercise powers under the Wildlife and Countryside Act 1981 to gather further evidence, as in the example that was described.

I am not sure exactly what is intended when one talks about the powers under the Wildlife and Countryside Act 1981, but if the SSPCA inspectors were also able to enter land under section 19 of the Wildlife and Countryside Act 1981, that would start causing confusion about who polices wildlife crime, and the public might not know to whom they should report such crimes.

As I said, an extension to the powers of entering land under the Animal Health and Welfare (Scotland) Act 2006 would be welcome.

The Convener

It will be important that everyone works in partnership and is aware of their role.

Mike Flynn

This is my version of groundhog day. Some politicians will be old enough to remember that this started off back in 2010. The proposal was that the SSPCA would assist in any way that we could, but would never take over from Police Scotland. There is an anomaly in section 19(1) of the 1981 act in that we cannot retrieve evidence where we can see that an offence has happened, unless a live animal is present, in which case we can take the evidence under the 2006 act.

As Ian Thomson said earlier, if we look up and see a line of traps, we have to go away and get the police. The police do a fantastic job and we could not do our jobs without them. However, when it comes to wildlife crime, this is a sticking plaster. There are only 100-odd officers on shift patterns covering the whole of Scotland, and there have been occasions when we have been in the situation that I described, phoned the police and there was nobody available.

It is not about us taking over anything. We must remember that the SSPCA does not prosecute. We gather evidence, but it is the Crown Office that prosecutes. The evidence that is required for a wildlife crime is no different from what is required for a domestic animal crime. We put in about 90 cases under the 2006 act last year, but if we were not doing that job, about six domestic animal cases would have been put in by the local authorities and the police.

I am not saying that we will boost the number of prosecutions on wildlife crime. However, after Roseanna Cunningham made her decision in 2017, we wrote and said that the SSPCA would help the Scottish Government in any way whatsoever under any form of animal welfare legislation. Our offer still stands. I think that the current minister did not have all the background on the situation—she has not been long in post.

As I said, the issue has been round the block quite a few times.

The Convener

It comes back to the information-sharing aspect that DCS Cunningham talked about earlier. It is about better information sharing and the ability to work better together.

Detective Chief Superintendent Cunningham

There are definitely options for that. I take on board all Mike Flynn’s points. We must have that sidebar, because it has been going on for so many years. There are options such as putting a police officer into the SSPCA team to work on special investigations, which would bring in police powers. We could see how that works.

There are more discussions around the issue that I would like to be privy to. Over the years, so many papers have been written and opinions given, so we want to see where we can take it to ensure that we get the improvements that are required.

Mark Ruskell

It has been put to us that the SSPCA might have a conflict of interest. Do you recognise that criticism?

Mike Flynn

As I understand it, the conflict, which was raised in 2015, is that we have a policy of opposing snaring. It is based purely on welfare grounds, but people said that if the SSPCA got the powers, how could we be independent on a snaring issue? The police have campaigned about drink driving every year for the past 20-odd years, yet they enforce the law on drink driving every day. If we see a perfectly legally set snare—one that is free running and tagged—we leave it, because it is lawful. We would be breaking the law if we interfered with such a snare. There are obviously already bans on self-locking snares in which animals could become entangled. Our policy might say one thing, but the law is above our policy, so if the law allows it, that is that. As far as I am concerned, there is no conflict of interest. If the law says that something is allowed, it is allowed.

Finlay Carson

I have a question on enforcement and investigation. For the bill to have an increased deterrent effect, what importance does the panel put on increased resources, training and raising public awareness?

Detective Chief Superintendent Cunningham

Those aspects are extremely important. As Mike Flynn said, we have just short of 110 wildlife crime officers around the country and seven full-time and six part-time wildlife crime liaison officers. It is up to Police Scotland to ensure that the officers have the highest level of training in investigations so that, no matter what wildlife crime they are faced with, we have a level of confidence in the officers’ professional standards and approach.

There are new courses available and new forensic approaches—forensics are key, which has been missed in previous years. We must develop forensic strategies to support the officers. We also have forensic services moving into that area, so we can call them out to crimes to get their expertise.

There should be a level of confidence for the committee that Police Scotland has captured that. The first course, which was opened by Roseanna Cunningham, was held in January and it will continue to run twice a year so that we can provide that enhanced training, as well as internet-based training packages for all officers throughout Scotland.

The Convener

I thank the panel for their time. I will suspend the meeting briefly to allow them to leave.

12:10 Meeting suspended.  



12:13 On resuming—  



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Fourth meeting transcript

The Convener (Gillian Martin)

Welcome to the Environment, Climate Change and Land Reform Committee’s 35th meeting in 2019. I remind everyone to switch off their mobile phones or put them on silent, as they might otherwise affect the broadcasting system.

Agenda item 1 is to take evidence at stage 1 on the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. I am delighted to welcome the Minister for Rural Affairs and the Natural Environment, Mairi Gougeon, who is accompanied by her Scottish Government officials Andrew Voas, veterinary head of animal welfare; Leia Fitzgerald, wildlife management team leader; and Hazel Reilly and Grant McLarty, solicitors. I welcome all of you and thank you for coming to the meeting.

I believe that the minister would like to make a short opening statement.

The Minister for Rural Affairs and the Natural Environment (Mairi Gougeon)

Yes, if that is okay.

The Convener

That is fine.

Mairi Gougeon

Thank you very much.

I am delighted to be here to give evidence on the proposals in the Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Bill. If the bill is passed, it will have an immediate impact in modernising and strengthening the implementation of the existing legislation to assist the enforcement authorities and ensure that Scotland’s animals and wildlife benefit from the best protection.

As members know, the bill is tightly focused to deliver the changes that are most sought by front-line enforcement staff, which require amendments to the existing primary legislation, with the aim of those changes being in force by next year. My officials are also working on a number of other initiatives that do not require changes to primary legislation. I hope that the committee appreciates that that package of complementary measures will address a wide range of stakeholder concerns about Scotland’s animals. The priorities that the bill addresses result from a close working relationship between officials and stakeholders with practical experience of implementing Scotland’s groundbreaking legislation.

Bearing in mind the increasingly busy parliamentary schedule, we are presenting a tightly focused bill that tackles the most important issues that require primary legislation; increases the maximum available penalties for animal cruelty and wildlife crime; introduces Finn’s law and the power to introduce suitable fixed-penalty notice regimes in future; and improves the procedure to rehome animals that have been taken into possession by enforcement authorities as soon as possible to protect their welfare.

Thankfully, the most serious animal cruelty and animal fighting offences in Scotland are rare—there have been 41 custodial sentences in the past 10 years. However, those offences, which are sometimes horrific, rightly attract considerable public concern. We have also heard evidence about the links to serious organised crime in some cases. The bill therefore provides courts with the flexibility that is needed to impose sentences that are appropriate for a wide range of offending behaviour.

We have heard evidence that, in some recent cruelty cases, the sheriffs have commented that the current sentencing restriction of 12 months might not be appropriate for the worst types of offending. The new maximum penalties of five years and an unlimited fine will provide an appropriate penalty for the worst cases of animal cruelty—namely, offences that cause any unnecessary suffering to an animal and offences that relate to animal fighting. It is worth noting that any other cruelty, such as mutilating, poisoning or abandoning a protected animal, could also be prosecuted using the new penalties if unnecessary suffering can be proved.

The new penalties and the availability of trial by indictment will also directly benefit enforcement agencies such as Police Scotland, the Scottish Society for the Prevention of Cruelty to Animals, local authorities and the Crown Office and Procurator Fiscal Service by removing the statutory six-month time limit to report cases for prosecution. That will give authorities additional time to gather all the appropriate evidence and to draft reports that are complete and considered in relation to increasingly complicated cases, which often involve serious organised crime elements.

I am proud to be introducing Finn’s law in Scotland. I have met Finn and his handler, Dave, as well as colleagues in Police Scotland and have heard first hand about the importance of the role of police dogs and horses. I have also been touched by their support for the measures, which, along with the other elements of the bill, are essentially the right thing to do and keep pace with other United Kingdom Administrations.

The intention is that the proposed technical refinement along with the increase in the maximum penalties available for all cruelty offences will make it easier to prosecute those who attack service animals in the course of indispensable duties. That will provide police animals with equivalent protection to that for animals that are not routinely used in situations in which an attacker can claim to have been acting to defend themselves.

The bill proposes to insert overarching powers into the Animal Health and Welfare (Scotland) Act 2006 and the Animal Health Act 1981 that will allow the future introduction of fixed-penalty notices through regulations. FPNs will be an additional enforcement tool that will provide additional flexibility to address a variety of future offences. FPNs could be used to deal more effectively with technical and administrative types of breaches. Although such breaches might not impact negatively on individual animals, they can be detrimental to the welfare of the wider animal populations, and it is important to deal with them to improve compliance overall.

The bill proposes a new and innovative approach to swiftly resolve the emergency situation when animals are taken into care to protect their welfare. It allows animal welfare authorities to make the best arrangements for such animals without the need for a court order. The new streamlined process will result in significant savings in staff time and resources for all parties, including the courts, and should speed up the process of resolving the often traumatic animal welfare situation. The swift resolution of the animal welfare issue will enable other agencies, including social work, to deal with any other related issues. We know that the neglect and subsequent suffering of animals is often a symptom of another problem, such as financial difficulties, bereavement, mental health issues or other illness.

The new process has been designed to balance the property rights of the individual with the need to halt and prevent further animal suffering, in recognition that, although animals have a legal status as someone’s property, they are also sentient beings whose welfare needs need to be prioritised. The safeguards that are being put in place to comply with human rights obligations include the provision for compensation to be paid and two appeal processes: one to challenge the decision to rehome and one to challenge the amount of compensation. The bill introduces an important new power for payment of compensation to be deferred pending the outcome of a relevant prosecution, as well as allowing a court order that no compensation is payable if an owner has been convicted of a relevant offence.

The bill will standardise wildlife crime penalties and bring the penalties for 22 of the most serious offences that involve the illegal killing or injuring of wild birds and animals into line with the new maximum penalties for animal welfare offences. That recognises that wild animals should be given equivalent protection from the worst types of deliberate harm to domestic and farm animals. The penalties for 36 other offences, including those dealing with the disturbance of wild animals and their habitats, will be standardised and increased in line with the recommendations of the Poustie report.

As you have heard, there is widespread and strong support for the proposals in the bill. I am honoured to be responsible for introducing the refinements in it, which will make an immediate impact to assist enforcement and further protect Scotland’s animals. During the committee’s evidence sessions, there has been much discussion of other matters that could be improved. The suggestions included arrangements for better enforcement, developing empathy to avoid future offending, and possible new offences. It is useful for those issues to have been raised. I assure the committee that I will follow them up to see how they can best be addressed. However, many of those areas will not require new primary legislation. The bill’s focus is on the most important improvements that can be made to assist the enforcement authorities in dealing with existing offences without creating new offences or responsibilities.

I look forward to working with the committee as the bill proceeds so that the important improvements that are contained in it can be introduced without unnecessary delay. I look forward to taking the committee’s questions on that.

The Convener

Thank you for that comprehensive statement. You have taken us through some of the evidence base that the Scottish Government has looked at to support its decisions on the format of the bill, but I have a quick question on that. Did you look at how other countries have dealt with similar issues? Part of the point of the bill is prevention of cruelty to animals. Did you look at other countries that have been doing that better to inform your approach to the bill?

Mairi Gougeon

A vital consideration in increasing the penalties is so that they act as a real deterrent. There are not too many people involved. As I outlined in my statement, about 41 custodial sentences have been given in the past 10 years so, thankfully, such cases are not all that common. However, we want the penalties to act as a strong deterrent to put people off committing such crimes in the first place.

It was important for us to look at what happens elsewhere and the penalties that exist there. Doing so highlighted how lenient our existing penalties appear to be, so we are now looking to increase them. I think that New Zealand, Canada and some states in America have penalties that are in line with the levels that we are seeking to increase ours to, with five years’ imprisonment and a potential for an unlimited fine to be imposed. England and Wales are looking to increase their penalties to the same level. I think that Northern Ireland is another example closer to home where there are similar penalties. It is important to look at what is happening elsewhere and to try to learn from those examples.

The Convener

An issue that has been raised is disqualification orders. Questions have been asked about where the information on people who have been disqualified from keeping animals is kept and who has access to that information. Quite a few of the people who gave evidence to us asked about monitoring, given that in the past disqualified people have been able to carry on keeping animals and even set up in business under another name. Have you given the issue any consideration?

Mairi Gougeon

That is an important point that has come out of the evidence that you have taken on the bill. It absolutely is something that we will look at. I think that the same issues have come up in relation to wildlife crime; there were discussions about the importance of information and intelligence sharing in that regard.

I will look at the issue to do with disqualification orders. I suppose that it is about how we make that information more available, as opposed to setting up an entirely new database where all the information would be, which would have resource implications. It is about ensuring that we share information better, so that the agencies that need it have access to it; it is not necessarily about making the information publicly available.

The Convener

The Scottish SPCA and the police told us that their officers can find themselves walking into a potentially dangerous situation—as a result of a report from a neighbour, for example—without realising that the person has been disqualified from keeping animals. They say that they do not currently have access to the information that they need.

Mairi Gougeon

I recognise that issue and we need to consider it seriously, to ascertain how the information could better be shared with the agencies that need access to it.

Stewart Stevenson (Banffshire and Buchan Coast) (SNP)

A prison sentence serves as punishment. It also takes away the offender’s opportunity to reoffend while they are in prison. The Scottish Government has chosen a third leg to stand on: deterrence through long sentences. I asked one of our witnesses to provide evidence that longer sentences act as a deterrent. My view is that what matters is the prospect of being caught rather than the prospect of a sentence. What evidence that longer sentences constitute a deterrent are you relying on?

Mairi Gougeon

The focus is not just on deterrence; we are trying to give agencies a full suite of options when they are in different scenarios and to ensure that all sorts of penalties are available. There are penalties that are not currently available that I hope will become available when the bill is passed. It is about covering all the bases. Deterrence is one element of that. We want the deterrent effect to be stronger. Andrew Voas might give an example of a situation in which a longer sentence proved to be a deterrent. The issue came up in evidence, probably more in relation to some of the wildlife crime legislation that we have introduced, which has had a deterrent effect.

Andrew Voas (Scottish Government)

On deterrence, we have looked at the different studies that are available—there is a lot of evidence from the United States of America. There is a balance between the probability of being apprehended and the sentence, and the offender’s state of mind must also be considered.

It is clear that some offences involve more planning and thought, and the possibility of a long sentence will be more of a deterrent in such cases than it would be in a situation in which someone acted on the spur of the moment or became violent and aggressive, when the person might not be thinking about the deterrent effect.

Having longer sentences is also about the importance of recognising public abhorrence at the worst cases of deliberate and sadistic cruelty to domestic and wild animals. That is part of the justification for making long sentences available in the most extreme cases.

There will be a deterrent effect if someone is going through the process of planning to commit a crime. We have heard about the profits that can be made from crimes such as illegal puppy dealing and fighting—profits can come from gambling or selling fighting dogs. In such cases, where there has been more planning and thought, we think that the longer sentence will be a deterrent.

Finlay Carson (Galloway and West Dumfries) (Con)

There have been inconsistencies in sentencing when it comes to bans on keeping animals or disqualification orders. What work have you done to ensure a more systematic approach?

09:45  



Mairi Gougeon

Under section 40 of the 2006 act, there is already a strong presumption in favour of using disqualification orders. Right now, courts have to actively consider that and, if they do not grant a disqualification order, they have to give reasons for not doing so. In some ways we already have that in existing legislation.

Finlay Carson

Should there be a presumption that there will be a banning order as standard in cases of animal welfare convictions?

Mairi Gougeon

Again, I think that that is already the case. I do not know whether you heard anything contrary to that in your evidence.

Finlay Carson

We certainly had evidence of inconsistency in applying banning orders.

Mairi Gougeon

Again, I would say that section 40 of the 2006 act already provides that courts have to give a reason for not granting a disqualification order, so such orders have to be considered in those cases.

Finlay Carson

So there are no plans for the bill to strengthen that.

Mairi Gougeon

No, we are not proposing any changes to that.

Finlay Carson

Is any further work going to be done on what resources are available to raise awareness? It is all about deterrence. We just want to stop people being cruel to animals, so deterrence is very important. What work will you do to resource further awareness raising? We saw in the past that, when the Control of Dogs (Scotland) Act 2010 was introduced, a lack of awareness about it meant that it did not have the effect that we wanted it to have. What resources are you going to put in to make people aware of the bill?

Mairi Gougeon

As with any new piece of legislation, it is all very well our talking here about a deterrent, but it is a deterrent only if people know that it exists and know about the changes that we are making. I see that as an important element of the work that we will do as the bill progresses and, I hope, is passed by the Parliament. We need people to know about the changes that we have made and the consequences that there will be if anybody commits any of these offences.

We have experience in launching successful publicity campaigns. Towards Christmastime last year, we ran a campaign on the illegal puppy trade. We launched that campaign again this year, based on its success last year, to make people aware and to drive down the demand element of the puppy trade. The campaign had a huge success rate last year—I think that it led to a 130 per cent increase in calls to the Scottish SPCA—and it is running again now. We will look at examples of where we have launched successful campaigns to see whether we can do something similar to raise awareness of the changes that we are making.

Finlay Carson

Finally, do you believe that we will need new sentencing guidelines to ensure that people are aware?

Mairi Gougeon

I know that that is a point that came up in your evidence, but it will be up to the Scottish Sentencing Council to determine that and to prioritise it as part of its work. I know that it is working to prioritise sexual offences at the moment and that its current work programme takes it up to 2021, but I imagine that it will have an interest in this new piece of legislation. I would be happy to raise that point with justice colleagues and flag it up as something that they should consider.

The Convener

Before I move on, I want to come back to knowledge sharing about people who have been banned from keeping animals or convicted of animal cruelty or animal welfare crimes, because we often see a link between animal cruelty and violent behaviour. Have you considered sharing knowledge about people who have committed animal welfare crimes, so that social services are aware of that aspect of their behaviour? There might be a link to other crimes, including organised crime.

Mairi Gougeon

Absolutely. It was very important in the evidence. The Scottish SPCA does a lot of good work, especially when it comes to prevention and working with young people at an early stage, identifying those links that can occur later in life. We would absolutely look to do what you propose. We do not need primary legislation to do that; it is all about the sharing of information and intelligence and ensuring that the relevant agencies are aware of it.

Claudia Beamish (South Scotland) (Lab)

We have been told that, in certain American states, if someone receives a sentence for a serious animal welfare crime, the information about that offender is passed to social services. I thought that that was interesting. Obviously, such a provision would not be in the bill, but it is quite important that we consider such initiatives on the record.

Mairi Gougeon

Absolutely. We are happy to consider such examples and see whether there is anything that can be applied to what we are doing.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

As you will have seen from the evidence that we have taken, a number of stakeholders have questioned whether the definition and scope of the term “protected animals” in the bill is broad enough, and believe that now is a good time to air those issues.

Does the Scottish Government consider that the definition is up to date and fit for purpose? Is it something that could be reviewed by the animal welfare commission?

Mairi Gougeon

The commission could review that. At the moment, the idea is that it would consider issues relating to all vertebrate animals. I believe that the definition in the 2006 act is suitable, and we are able to change and adapt it—that power already exists, so we do not need it to be included in the bill. However, I would be happy to consider the issue in the future.

Rachael Hamilton

Will the issue be considered by the animal welfare commission, rather than being addressed by the Scottish Government in the bill?

Mairi Gougeon

We have the ability to change and adapt the definition, but taking evidence on the issue could well be something that the animal welfare commission could do.

The Convener

I want to ask about the issue of rehoming and transferring animals without a court order. The minister will be aware that I have a situation in my constituency in which dogs and puppies were kept for nearly two years before a court process. It is welcome that we might now be able to rehome animals quickly. However, there are some issues that we would like to clarify, particularly with regard to the rights of the owners of those animals.

First, when an appeal is lodged, are there are any opportunities for the court to expedite that appeal if a delay causes welfare issues?

Mairi Gougeon

There are lots of important elements in the bill, but the proposal on rehoming is one of the key things that will deliver a transformational change for the enforcement agency. The SSPCA highlighted in its evidence that the proposal could save it a lot of money—I think that it said that it had spent £1.5 million in less than two years on caring for animals in that position.

On appeals, it is important to highlight that we have reversed where the onus now lies. It is now on the owner rather than the enforcement agency. That is an important change. There will be a three-week window in which it is up to the owner to lodge an appeal. The process is as streamlined now as it possibly can be. Another important change is that it is up to the sheriff to make a decision on that, and I think that the nature of the way in which the appeal will be determined means that it should be a streamlined process and not a long, drawn-out affair. A further important change is the fact that the sheriff’s decision is final, and there is no further right of appeal beyond that. That, too, will make a big difference.

Grant McLarty might want to add something to that.

Grant McLarty (Scottish Government)

The process would involve summary application procedure, which is the most streamlined procedure that is available within civil court procedure. I am not aware of any other ready-made procedure that could be used.

The Convener

When we were taking evidence, we discussed the issue of owners with mental health issues having their companion animals taken away from them because they are accused of harming them—I think that Finlay Carson brought that up. What will be in place to help those people, who might be under extreme stress at the time? Is anything being considered in that regard?

Mairi Gougeon

Again, I do not think that there is anything that we could do in primary legislation to deal with that—it is something that we would have to look at. A decision notice would have to be served, so a person would be made aware of what would happen. Presumably, when the enforcement agencies engage, they will be able to identify whether there are other issues. I would hope that we could support a person in such a position, or at least make them aware of what they could do, the measures that would be open to them should they choose to appeal a decision notice and how they could work through that process. That is very much how I envisage and hope that things will work. However, we can go away and consider the issue and discuss with the enforcement agencies what such a package might look like.

The Convener

Given that Finlay Carson initially raised the issue, is there anything else that he wants to pick up on?

Finlay Carson

I want to make sure that the Government has considered the implications for people’s mental welfare in situations in which there is no direct intention to cause suffering. The measure applies to farmers, too, and an issue may arise because a farmer is having problems keeping their stock. You said that you will think about the issue and that it is important, but what will you do? How will the bill address such situations? Will there be guidelines or whatever on how to deal with individual farmers?

Mairi Gougeon

Again, that is something that we need to look at separately from what we can put in primary legislation. I know that it is an important point—I think that the Animal and Plant Health Agency raised it in oral and written evidence to the committee. We engage with the agencies involved, including the enforcement agencies, so we are well aware that it is an issue.

I am more than happy to get back to the committee with more information on the matter, but we are hoping to engage with the enforcement agencies to make sure that it is all taken into consideration. There is a process. People will be—they need to be—made aware. As you said, it is about looking at the wider issues and making sure that that we fully consider them.

The Convener

Our next theme is on compensation, on which Stewart Stevenson has some questions.

Stewart Stevenson

Because of what I am about to say, the lawyers should pay particularly close attention.

Section 11 makes substantial additions to the Animal Health and Welfare (Scotland) Act 2006. I will start with proposed new section 32H(3) of the 2006 act, which is about how much compensation will be paid. It says:

“the compensation amount is the greater of—

(a) the market value of the animal at the time it was taken into possession ... and

(b) the market value ... at the time immediately before the last relevant step ... in the compensation notice was taken”.

The relevant steps in the compensation notice are described in proposed new section 32G(1) of the 2006 act, paragraph (g) of which says that the notice must specify

“whether the authorised person is electing to defer payment of the compensation amount”,

which moves the end of the process further out to the horizon. There is then a reference forwards—I hate these references backwards and forwards; that is a drafting issue that I have long had—to proposed new section 32J(3) of the 2006 act, which says:

“The authorised person may defer payment where—

“(a) relevant criminal proceedings have been commenced ... or

(b) in the opinion of the authorised person”

they may be commenced.

We are looking at the calculation of the compensation amount being moved into the distance. Given that the amount is the greater of the value at the time that the animal is taken and the value at the time that compensation is paid, by the time that it is paid, one would hope that the welfare status of the animal concerned has, since being seized, improved rather than deteriorated, so the value of the animal is very likely to have increased. I really want to challenge whether that is, in policy terms, the right thing for us to do, albeit that there are further provisions that allow for the costs of looking after the animal in the meantime—veterinary treatment and so on—to be deducted.

As a matter of principle, should it not be the case that the compensation amount should be the lower of the market value at the point of seizure and the market value before the last relevant step is taken, rather than the greater of those two values?

As I say, you have to go backwards and forwards several times to come to that conclusion. I am not a lawyer—I am a layperson—and I am waiting to be told that I have totally misread the bill, but that is the way that I read it. Am I right and, in policy terms, is it the right thing to do?

10:00  



Mairi Gougeon

Yes, you are right. I would agree that the cross-referencing in the bill is particularly difficult, especially with regard to the wildlife sections. Convener, you talked about the property rights of the person who owns the animals. Grant McLarty can elaborate a bit on that—

Stewart Stevenson

I am very happy to hear from the lawyers, but before we do, as a matter of policy—which I think lies at your desk rather than that of the lawyers—should it not be the case that any increase in the value of the animal after seizure should not be attributed to the person who has been deprived of ownership of the animal, given that it arises from the state intervening and not from any action on the owner’s part?

Mairi Gougeon

I completely understand that point, which I know came up in the committee’s evidence sessions. Anybody looking at the issue would entirely agree.

Although I talk about balancing up the property rights of the owner of the animals, this is also about trying to take away what could be perceived as a profit element when the animals are eventually sold on. That is why the bill is phrased in that way.

Stewart Stevenson

Forgive me, minister, but if there is a profit from having seized the animals that would not have existed if they had not been seized, should the profit not accrue to the state rather than to the animal’s previous owner? That is the principal point that I am pursuing here.

Mairi Gougeon

I am not sure whether that profit would go to the state or to the enforcement agency that has been caring for the animal.

Stewart Stevenson

I see that Mr McLarty may have a powerful torch to shine on the legalities.

Grant McLarty

Perhaps the policy justifications could be elaborated on first, and then I can explain the legal justifications.

Andrew Voas

It is important to understand that the current arrangements are that when animals are sold by the enforcement agencies, that income goes back to the owner, minus relevant expenses. There are a couple of examples of that in the financial memorandum. In many cases, the enforcement authority’s expenses will be quite substantial, so the amount of money that goes back to the original owner will not be all that much.

Until a person is found guilty of an offence, it is important that we treat them as though they are not to blame in legal terms. No matter what we may think of them or what prejudices we may have about the circumstances, it is only fair that we treat them as innocent until they are convicted of an offence. That is an important principle. The enforcement authorities have to preserve the value of the animals and get a suitable return from those animals. The bill acknowledges the current arrangements and allows for them to continue, but with the important new proviso that compensation can be deferred if there is a relevant criminal case, and not paid all if the person is convicted and the court decides that compensation should not be payable. It is properly for the court to decide what the penalty for the convicted person should be, rather than that being something for the enforcement authority to deal with when the animals are taken into possession.

The new arrangement allows for the value to be determined at the time that the animals are taken into possession, which in turn allows for situations where the enforcement authority may want to dispose of the animals, move them on or rehome them at a lower market value for the sake of the welfare of the animals. However, it preserves the value of the animals at the time that they are seized for the owner who, at that point, has not been convicted of any offence.

Stewart Stevenson

I may be being exceptionally dim, but I have just heard that there is a whole set of essentially administrative or court provisions that mean that the previous owner might not capture the enhanced value. However, the bill provides, through the two alternatives in proposed new section 32H(3) of the 2006 act, for the possibility that they might. I do not understand, as a matter of principle, why those provisions should be there. Any increase in value after the animal is seized would seem to rest on the intervention of the state rather than on any action by the owner. I understand that the owner should be entitled to compensation for the value of the animal at the point of seizure—I am not picking at that at all—but I cannot see why they should be compensated for any increase in value.

It may be that there is something in the European convention of human rights that means that the provision has to be phrased in that way. If that is the case, I would like to hear about it, so that I can shut up and stop boring the committee on the subject, as there is a severe danger that I might otherwise continue to do so for some time to come.

Andrew Voas

That raises an important policy point, which we touched on earlier when we acknowledged that some of the welfare cases result from owners lapsing into ill health or experiencing mental problems. In many circumstances, the owners are vulnerable people, and in such circumstances it is right that we try to support them.

As I said, the financial memorandum gives an example of a case in which animals in poor condition were taken away from an owner. They were kept for several months, during which time they increased in value. The increase in value was given back to the original owner, minus the relevant expenses. In a way, the provision protects the interests of somebody who is vulnerable and who may not have been convicted of an offence. There may have been mitigating circumstances, such as ill health or another reason why the person was particularly vulnerable. In those cases, the enforcement authorities are protecting the interests of the person.

That is the policy background—Grant McLarty may want to expand on the legal aspects.

Grant McLarty

It is correct to say that rights under the ECHR are engaged. The provisions in the bill have been designed to take into account the rights under article 1 of protocol 1 to the ECHR, which provides that:

“Every ... person is entitled to the peaceful enjoyment of ... possessions. No one shall be deprived of”

these

“except in the public interest and subject to the conditions provided for by law”.

For these purposes, an animal is regarded as a possession.

Where article 1 of protocol 1 is engaged, a fair balance has to be struck between the demands of the public interest and the property rights of the individual. The bill seeks to pursue the legitimate aim of protecting the welfare of animals, which is in the public interest. Exercise of the new powers in the proposed new section 32A to transfer ownership of, or destroy, an animal will engage the property rights that are protected by article 1 of protocol 1 to the ECHR. Likewise, treatment of an animal using the powers in proposed new section 32A may also engage those property rights. The new powers conferred by the section are nonetheless considered appropriate when they are considered alongside the right to appeal, in respect of both the decision that is made in relation to the animal and the entitlement to compensation. Those are two crucial elements that we have built into the system to take account of concerns around property interests.

It is important to remember that the existing powers under section 32 of the 2006 act, which are used by inspectors or constables to take possession of an animal, are exercised without any judicial intervention. There has been no civil or criminal determination of guilt or blame, or responsibility. On that basis, we have approached the legislation by building in the ability to provide for reasonable expenses, in caring for the animal after it has been taken into possession and in implementing the decision that is taken in relation to the animal, to be deducted from any sum that is paid—if there is value in the animal—to the owner. There is also the ability to defer payment of compensation, and for compensation to be forfeited in future criminal proceedings. In a legal analysis, that is the rationale for those provisions.

Rachael Hamilton

I go back to the point that Andrew Voas made with regard to whether the reasonable costs are taken into account and fair compensation is paid. You specifically mentioned the legal definition. Obviously, it is up to those involved to make a decision on whether a welfare issue has arisen as a result of an owner’s mental health condition or problems with stress, as we have discussed today.

Does the bill give the ability for that to be taken into account, or would that be the role of the people who make the decisions about reasonable cost or fair compensation at the time? Does that need to be set out in the bill?

Mairi Gougeon

It is up to the authorised person, as defined in the existing legislation. They can make a judgment, and they must lay out why they believe that compensation should be deferred. They have the relevant powers to take all those factors into account.

The Convener

We will now move on to discuss Finn’s law.

Angus MacDonald (Falkirk East) (SNP)

I welcome your remarks on Finn’s law in your opening statement, and I am glad to hear that you have met Finn in person.

The committee has heard that there is broad support for the proposal, which would enhance protection for service animals. It is worth noting that we heard from Police Scotland last week that attacks against service animals have been rare in Scotland in recent years, which I am sure is welcomed by all of us.

Some stakeholders have suggested that the provisions of Finn’s law could be extended to other animals that are put into potentially vulnerable positions through providing assistance to people, such as guide dogs and other assistance animals. Why is it appropriate for the provisions to be limited to service animals, and not to be extended to other animals that provide assistance to people, such as guide dogs? Has the Scottish Government considered broadening the definition?

Mairi Gougeon

Thank you for making those comments. This is another vitally important part of the proposed legislation, which will keep us in line with other changes across the rest of the UK.

I should point out that the bill is not really about changing a definition in the legislation; it is about recognising service animals and giving them the same recognition as other animals in legislation, recognising them as sentient beings rather than property. It is important to highlight that, because we are removing a defence of self-defence as it exists in the legislation—in section 19 of the 2006 act, I think. That has enabled people to claim that they attacked a service animal in order to defend themselves. However, by the nature of the work that the service animals do, that is what they are there for. The bill is not really about changing or adding to a definition; it is about giving service animals the same protections that other animals in Scotland have—and that involves the penalties that we are increasing for section 19 offences.

Angus MacDonald

We heard from stakeholders who raised the possibility of treating attacks on service animals as an aggravating factor in relation to an offence. For example, if a person is charged with a public order offence, an attack on a service animal could be an aggravating factor as part of that offence, resulting in a higher penalty. Has the Scottish Government considered whether an attack on a service animal could be treated as an aggravating factor in relation to an offence such as a public order offence?

Mairi Gougeon

We had not considered that. The bill is essentially about increasing penalties and powers and examining the offences that we already have; it is not really about creating new offences, which an aggravating factor would be. In order for us to do that, we would need to consult on and consider the matter further. We are not creating any new offences in the bill, so I would be reluctant to pursue the suggestion at this stage.

It is important to note that an attack on a service animal can also be prosecuted as part of a public order offence at the moment. To include such an offence under the bill, however, would mean doing a whole host of other work.

The Convener

We will move on to talk about fixed-penalty notices. Could you be nice and succinct, please, Mr Stevenson?

10:15  



Stewart Stevenson

I will do my best, convener.

The bill’s long title makes two references to fixed-penalty notices. In the minister’s introductory remarks, she said that the bill is about the worst cases. However, I presume that fixed-penalty notices are about the least worst cases. I note from the consultation paper that you have just published on fixed-penalty notices that marine enforcement officers—interestingly, they are not constables—can issue FPNs of up to £10,000. It is clear that, in some circumstances, FPNs can be more substantial than we might normally think. The bill does not set any limits on FPNs. It would be useful to get on the record an idea of what the Government thinks the limits will be. Should the bill state what the limits are, as I understand the Aquaculture and Fisheries (Scotland) Act 2007 does in relation to MEOs?

Mairi Gougeon

As I said, the aim of introducing fixed-penalty notices is to add to the suite of available options. That is why we are introducing FPNs for animal welfare issues. We have a consultation out at the moment in relation to animal health as well as the consultation that you mentioned, which I think is open until 19 January, with the potential to introduce fixed-penalty notices for wildlife crime. It is important that we consider making the suite of options available right across the three areas.

The regulations to introduce those measures would be subject to the affirmative procedure, and I fully intend to work with the committee as the regulations are developed. We need to allow some flexibility in that. I envisage fixed-penalty notices being used for technical and administrative offences. I do not want them to be used for any offences relating to animal suffering, for example—FPNs would not be appropriate for that. All that work is coming further down the line. I commit to working with the committee on that, because I want to ensure that any measures that we introduce work, are suitable for what we want them to do and are agreed to by everyone.

Stewart Stevenson

But—

The Convener

I want to bring in Mark Ruskell.

Stewart Stevenson

Can I just deal with one point first?

The Convener

Okay.

Stewart Stevenson

I note that neither the consultation that I mentioned nor the bill makes any reference to an upper limit on what can be levied. The seven questions in the consultation do not include a question on that. Is it envisaged that you will set an upper limit to the FPNs, whatever level it might be? Of course, I may have missed something.

Mairi Gougeon

In relation to animal welfare, I think that the FPNs would be available for offences up to those that attract a six-month imprisonment or a level 5 fine, but I stand to be corrected by officials on that.

Andrew Voas

That is a provision in the bill. Fixed-penalty notices for animal welfare issues would not apply to offences that have a penalty of more than six months’ imprisonment or a level 5 fine, which is currently £5,000.

Grant McLarty

That limitation also exists for the animal health power.

Mark Ruskell (Mid Scotland and Fife) (Green)

I have a technical question about the fine income from fixed-penalty notices. The financial memorandum suggests that any increase in fine income will go to the Scottish Government but will in effect be deducted from the Scottish block grant. However, I am not sure whether that is the case. I have been working on a member’s bill that has a potential implication involving fixed-penalty notices, and the lawyers who worked on that bill suggested that any increase in fine income would be held in Scotland and would not be deducted from the block grant. That differs from the information in the financial memorandum. I just want to put that out there. Have you considered that issue? If not, please do.

Mairi Gougeon

That is what I have come to understand, but I will ask Andrew Voas to answer that.

Andrew Voas

There is a subtle difference between fines for criminal offences and income from fixed-penalty notices. The main point with regard to the bill is that the provisions on fixed-penalty notices will be developed in future and, as you have heard, will be subject to affirmative procedure. Therefore, the time to make decisions about where income from FPN regimes can go will be when we develop the specific FPN regimes. My understanding is in line with Mr Ruskell’s—it is that income from fixed-penalty notices that are served by enforcement authorities would not necessarily be counted in the same way as fines that are paid to court in relation to criminal offences. I ask Grant McLarty whether that is correct.

Grant McLarty

Yes. The detail would need to be developed, but I know of no legal barrier to that happening.

Mark Ruskell

Okay. I might seek clarification on that ahead of stage 2, because I think that the matter is dealt with differently in the financial memorandum. However, I realise that time is moving on.

Mairi Gougeon

In the meantime, I would be happy to look at that, get information, and feed it back to the committee.

Mark Ruskell

Okay. Thanks.

The Convener

I brought up the issue of a database of offenders that agencies could access. If people got repeated FPNs, would such information be available? If people had fixed-penalty notice after fixed-penalty notice or even had one in the past, could that information be shared or accessed by agencies that might go to their door for other reasons? If somebody had been involved in actions that resulted in a fixed-penalty notice, that could inform judgments on other issues. An individual might have a pattern of behaviour.

Mairi Gougeon

That is what I am thinking. Earlier, we talked about disqualification orders. I suppose that it would be helpful if we were able to see a pattern emerging with fixed-penalty notices and whether disqualification orders were in place. To be honest, I do not know what databases we currently have and whether all of that information is logged and stored. There would be resource implications for us if it were suggested that we should set up such a database, but I am open to looking at how that information would be stored. I am sure that we will come to those conversations as the regulations are introduced. I would be happy to discuss the issue again with the committee so that we can see whether there are opportunities for better information sharing.

Finlay Carson

The issue is important. Do you intend to have any proposals at stage 2 about a national database for fixed-penalty notices or disqualifications? It is important that we know that you will consider that at stage 2.

Mairi Gougeon

I am sorry; to clarify, I am not talking about us setting up or looking to establish a database. We would have to fully consider that, because there would be massive resource implications. I am talking about how we can share information better. I do not think that we need that in the primary legislation. It is about looking strategically at what databases already exist, how information is shared among enforcement agencies, and whether there are ways in which that information sharing can work better.

The Convener

A record of all those things will exist. It is simply a case of who has access to that record and whether information is being shared.

Finlay Carson

We have a lesson to learn from the Control of Dogs (Scotland) Act 2010 and banning orders or restrictions on dogs for local authorities. If owners moved between local authority areas, there was no recognition that they had a ban. The current approach is failing. Ensuring that we stop people with disqualifications or whatever owning dogs is important, and it is very clear—other committees have heard evidence on this—that one of the failures of past acts has been that they have not included a national database. There have been general data protection regulation issues and so on. It is really important that you address that in the bill, because the voluntary process is obviously not working.

Mairi Gougeon

I take that point and understand the concerns. That is why we will look at the issue. However, there would be massive resource implications for us if we were looking to set up a national database to encompass that. We do not intend to introduce that in the bill. If there are databases already in operation, we need to ensure that they operate as effectively as they can in relation to the work of enforcement agencies. That is what we will look at.

The Convener

Okay. I want to move on to wildlife crime, which a number of members want to ask about. When do you expect the Werritty report to be published, and when will you release the animal wildlife crime report for this year?

Mairi Gougeon

I think that the First Minister said during a First Minister’s question time last month that the Werritty report would be published by the end of the year. That is still the timescale that we are looking to.

I am sorry, but what was your second question?

The Convener

My second question was about the animal wildlife crime figures.

Mairi Gougeon

That report will be available by the end of the year.

Mark Ruskell

That response is very welcome.

Why do wildlife crimes in relation to breeding and resting places not attract the maximum sentence? The committee has heard horrific examples. For example, a property developer’s destruction of a badger sett led to a fine of £800—the price of a door, in effect—and the developer went on to sell a house for £350,000. Is there scope to increase the maximum penalty for people who wilfully destroy breeding sites?

Mairi Gougeon

It would be best if I tried to explain the rationale behind the proposals as they are. There are more than 300 wildlife offences, so there was an attempt to harmonise the approach. There are penalties for the worst offences, that is, the killing or harming of protected species, but if the committee makes recommendations about other offences and thinks that our approach should be changed, based on the evidence that you have heard, we will be open to having that discussion.

Mark Ruskell

Okay. A recommendation of the Poustie review was that there should be a requirement in legislation to consider impact statements, particularly in the context of a species’ conservation status. For example, if a habitat or an animal is destroyed and there is a big impact on the population, in ecological terms, there should be an impact statement. What is your view on that? If someone kills the last two white-tailed eagles in a particular part of Scotland, the impact on the breeding population is devastating.

Mairi Gougeon

I absolutely agree. We have not put such an approach on a statutory footing or included it in the bill because, from what we hear from our stakeholders—I think from both sides—the system that is currently in place works well and impact statements are used when it is felt that they are needed. No stakeholder has approached us to say that impact statements are not being used when they should be used. We understand from the Crown Office and other stakeholders that they are used when they are needed. We keep the issue under review, but, as far as we are aware, people feel that the information that should be put forward is presented.

Mark Ruskell

Why, then, did Poustie come to a different conclusion and recommend that consideration of an impact statement should be a legislative requirement?

Mairi Gougeon

I do not know whether the system operated differently prior to that recommendation being made. Leia Fitzgerald might have more information about whether that spurred on any changes. As I said, we have heard nothing from our stakeholders that indicates that the system is not working.

Leia Fitzgerald (Scottish Government)

I think that, when Poustie made his recommendations, impact statements were not used as widely as they are now. We revisited the issue with stakeholders recently, and they told us that the approach that is now in place is working well. As the minister said, we will continue to keep the matter under review.

Mark Ruskell

Last week, the committee heard about the use of other sanctions. In particular, we heard about the effectiveness—or otherwise—of general licences. It was concerning to hear stakeholders say that an estate that loses its general licence will simply apply for individual licences, and nothing will change. What are your views on other sanctions being deployed in relation to wildlife crime? Are such sanctions having any impact at all?

Mairi Gougeon

It is important that other deterrents are available. I am aware that, in evidence last week, people said that some options are not as effective as they could be. We are actively considering the need for an additional level of enforcement, which would not require referral to the procurator fiscal or involvement of the Scottish courts but would still provide a penalty that would act as a deterrent. We will be happy to consider the evidence and consider whether measures are as effective as they can be.

Mark Ruskell

What about the withdrawal of a firearms certificate, for example? Is that something that you would be interested in discussing with the Westminster Government?

10:30  



Mairi Gougeon

Absolutely. I know that there were two recommendations around that in the Poustie review, so we will happily engage in discussions with the UK Government. I believe that the matter falls under the justice portfolio, so I would also be happy to raise it with justice colleagues and see how we can get some movement on the recommendations with the UK Government.

Rachael Hamilton

I will go back to the categorisation of wildlife offences and the different tiers of the penalty system. We heard evidence that perhaps possession of illegal pesticides should be categorised as a tier 1 offence, because they are currently illegal anyway. Do you have any comments on that point and do you have any plans to have an amnesty on illegal pesticides prior to the bill being passed? People should not possess illegal pesticides anyway, so using them in connection with animal crimes should attract the highest and severest category of penalty.

Mairi Gougeon

That has been the feeling behind that issue. As you said, possession of such pesticides is already illegal and there are offences in place to deal with that individual issue separately. Using such pesticides as part of another offence would attract the higher penalty. As they are already illegal and there are offences attached to them, using them in relation to any other offences could well attract severe penalties.

In relation to your amnesty point, I would be happy to consider looking at the matter.

Leia Fitzgerald

Just to clarify, there was a previous amnesty, which was quite successful and resulted in a lot of pesticides being handed in. We could speak to stakeholders about whether that is something that could be done again. We would hope that we got all of what we needed after the last amnesty, but we can look at the matter.

Mairi Gougeon

I will happily get back to the committee and let you know how we get on with that.

Rachael Hamilton

I completely agree with the points that you made. Having an awareness-raising campaign alongside the bill, which is obviously attracting a lot of attention, could be very effective in that regard.

Mairi Gougeon

Yes.

Claudia Beamish

I will go back to the general licence situation that Mark Ruskell raised. As you and the lawyers will know, Scottish Natural Heritage withdrew a general licence from Leadhills estate. That is a civil issue, but I am perplexed about it so I am seeking clarification of the legal position. The estate has appealed, so the licence has been reinstated. Why is that? As I understand it, under criminal law, reinstatement would not happen during an appeal. I would like that clarified, as it is relevant to the bill.

Mairi Gougeon

I will pass the question on the legal point on to Hazel Reilly.

Hazel Reilly (Scottish Government)

It is quite a technical area so, to get it right, we would be happy to write to the committee.

Claudia Beamish

That would be helpful. Constituents who have approached me are concerned that the licence has been reinstated while an appeal is on-going. I do not understand why that is, so a response would be most helpful, thank you.

The Convener

We can have the response sent to us.

Claudia Beamish

I was very pleased and relieved that, in the previous parliamentary session, vicarious liability was introduced for wildlife crime. As you will have seen, the committee has heard quite a lot of evidence on the matter and, outside of the committee, I have received correspondence in my role as a South Scotland member of the Scottish Parliament—as have other members, I am sure. Are you satisfied with the uptake to date of vicarious liability with respect to wildlife crime and have you looked at the potential of expanding it to further wildlife offences in the context of the bill?

Mairi Gougeon

We had not considered opening up the bill to other offences, but I look forward to the committee’s report and to seeing what evidence you have taken and whether there are any particular views that the bill should be expanded to include any other offences. I know that there is a lot of concern about the matter and that, in its evidence, RSPB Scotland said that the impression was that the initial deterrent effect of vicarious liability had been lost.

There is a high evidence threshold that has to be met for vicarious liability. We cannot change that as part of this legislation. It is an important tool that we have available, but it will always be quite a hard thing to prove, given the requirements that must be met for someone to be prosecuted using that piece of legislation.

Claudia Beamish

I asked the bill team this question, but I seek final clarification from you. Is it the case that, with regard to vicarious liability proceedings, there need only be evidence of an alleged crime on a landowner’s or company’s land, and that the actual perpetrator of the crime does not have to have been arrested? That is an important consideration, because the crimes often take place in remote and rural areas where it is difficult to know exactly who might have perpetrated any given crime—we will come to the issues around evidence gathering later.

Mairi Gougeon

I am prepared to be corrected by officials but, as I understand it, the perpetrator of the alleged offence does not need to be prosecuted in order for a charge of vicarious liability to be pursued, but they have to be known. I think that that is one of the tests, but I will double check whether that is correct.

Hazel Reilly

That is correct. In order to bring a charge of vicarious liability, it must be established that an offence has been committed, who it was committed by and the relationship between that person and the person who is vicariously liable. However, a prosecution does not need to be taken against the principal offender.

Claudia Beamish

My understanding is different, so I would really appreciate clarification. I may have misunderstood the issue, and I apologise if I have, but I understood that there had to be evidence of a crime on a landowner’s land, not that the person who committed the crime had to be known.

Hazel Reilly

The relationship between the offender and the person who is vicariously liable has to be proved, so there must be sufficient evidence about who has committed the offence. However, a prosecution does not have to be taken against that person.

Claudia Beamish

So, in legal terms, evidence of a crime having taken place on a person’s or company’s land is not sufficient for a vicarious liability prosecution to proceed.

Hazel Reilly

That is correct, but we can clarify that in writing, just to be absolutely clear.

Claudia Beamish

That is helpful.

I have a further question on vicarious liability. Should nature conservation or welfare organisations have a right to request a review of any decision by the Crown Office not to bring a prosecution against a landowner in relation to a wildlife crime, in a similar way to a victim’s right to review? Transparency in these issues is extremely important, and that might be one way in which the public and groups that have concerns about animal welfare could be reassured.

Mairi Gougeon

I completely understand that, and I know that concerns have been raised about people not understanding how or why certain decisions have been taken.

As I understand it—again, I am prepared to be corrected—under current legislation there are some ways in which an organisation would be able to request a review if it was the victim of the crime in question. For example, if an incident occurred on RSPB land, the RSPB would be the victim of the crime, and it could ask for a review.

Hazel Reilly

That is correct. Under the policy, businesses, companies and other organisations that are victims of crime are entitled to ask for a review of decisions.

Claudia Beamish

That is helpful.

The Convener

Mark Russell has questions on enforcement.

Mark Ruskell

One of the strands of the Government’s work in this area has been the trialling of special constables in the Cairngorms. We do not have a full evaluation of that yet, but the early indications are that that pilot did not result in any detection of wildlife crime or enforcement of penalties. Will there be a full evaluation of that, and will it come during the passage of the bill, so that we can reflect on whether that approach has been of use?

Mairi Gougeon

A full evaluation of that pilot will be available early in the new year, so members will be able to consider it while the bill is being considered. Obviously, I will write to the committee and make you aware of that information when it is published.

Mark Ruskell

Do you have a view on the effectiveness or otherwise of the pilot? Will it be rolled out across Scotland, or will you draw a line under it?

Mairi Gougeon

Again, I have not seen the full evaluation. We will have to see what comes out of that and how effective it has been. There have not been any prosecutions as a result of the trial, but we need to be open to looking at it and saying, “Okay, if this has not been as effective as we hoped, what else do we need to do and what other means can we use to improve the situation?” As Claudia Beamish said, such crimes, by the very nature of where they take place, are hard to detect and we need to do what we can to improve detection rates and tackle the problem effectively.

Finlay Carson

We heard evidence that wildlife crime detection needs more resources. It is all very well to increase penalties, but there is little point in doing that if there is no increase in the chance that criminals will be caught. What plans do you have to further resource the detection of wildlife crime?

Mairi Gougeon

There are a few other things that we can look at. Some interesting suggestions came out of last week’s evidence session, when Detective Chief Superintendent Cunningham made some valuable points and suggestions that we need to consider. He talked about better intelligence sharing and potentially setting up a short-life working group to see how organisations can work together better. It is about trying to pursue all the options and attack this from all angles. I would like to think that, from one end, we have a strong deterrent effect as a result of the increased penalties that we are introducing, but it is also about agencies working together better and sharing that valuable intelligence. We are happy to look at any recommendations that the committee has in relation to that, as well as what has come out in evidence.

Finlay Carson

In Dumfries and Galloway we have an issue with poaching, but the response from Police Scotland is that it has priorities elsewhere, and incidents are often not investigated in a timely manner. What reassurance can you give people in rural areas that Police Scotland will be able to address an increase in reporting, or whatever?

Mairi Gougeon

The point about what staff it has, and where, are for Police Scotland and it is not for us to direct it. I will say, however, that wildlife crime is a huge priority for us: that is why we are introducing these proposals, why we are making a full suite of options available to all enforcement agencies, and why we are looking at how we can work better and what more we can do to crack down on these horrendous crimes.

Claudia Beamish

One of the tools that can be used is covert video surveillance. We keep highlighting the remoteness of areas, but that is very important in this context. As you will know, minister, stakeholders generally welcome the increase in maximum penalties, for a range of reasons, but partly because that increase will enable police to apply to use covert video surveillance more ably and effectively. Obviously, we recognise the issue around the infringement of privacy rights that was highlighted earlier. Do you have any comment on the possible use of that tool? Could you also comment on the RSPB’s position that non-statutory bodies should be able to use cameras if they are not infringing privacy rights? As you will know, there is a history to that.

Mairi Gougeon

Yes, I am aware of that. That is one of the really important things about what we are proposing: we now recognise that wildlife crimes are defined as serious, and we are increasing the penalties. That then enables intrusive surveillance to be used. Detective Chief Superintendent Cunningham gave evidence that the police already have the power for direct surveillance, but that the increased power for intrusive surveillance will be important.

We are not able to affect the admissibility of evidence. That is entirely up to the courts to decide and will always remain within their remit, so there is not much that we can do, or would want to do, to that effect. However, what we are proposing would have a positive impact on the type of surveillance that can currently be used.

10:45  



The Convener

We will move on to questions on Scottish SPCA powers in relation to wildlife crime.

Mark Ruskell

Minister, has the SSPCA approached you to request more powers in relation to wildlife crime?

Mairi Gougeon

It has done so in recent weeks.

Mark Ruskell

What is your view on that?

Mairi Gougeon

I am open to considering that and having further discussion with the SSPCA. Nothing about that proposal features in the bill or was even considered as part of the bill, because in all the time that I have been in post and had meetings with the SSPCA, it has not been a live issue. It was not something that we discussed until the last couple of weeks. I do not rule anything out and will happily consider any options.

However, I come back to some of the evidence that the committee heard last week. There are some things that we can be doing in the meantime, such as intelligence sharing and looking at some of the other suggestions for getting enforcement agencies to work better together. We have to exhaust all those options.

Mark Ruskell

Do you mean that you want to exhaust them first or that you will consider extending the SSPCA’s powers alongside that?

You mentioned the comments that DCS Cunningham made last week. I noticed that the police comments in relation to the extension of the SSPCA’s powers had a different tone last week, in comparison to previous evidence sessions, and there now seems to be a willingness to consider such an extension. However, the clock is ticking on the bill and if we were to do anything in relation to SSPCA powers, this bill is the place to do it.

Mairi Gougeon

We are looking at what we can do in the meantime, but I see that consideration as being longer term, rather than something that we could do under the bill. One of the academics that the committee heard from—perhaps Mike Radford—talked about the SSPCA possibly becoming a public body. If that were to happen, the SSPCA would have to have substantial discussion in the organisation to see whether that was the road that it wanted to go down. It would not be fair to try to cram that into the bill in the timescale that we are planning and I would hate to see us delay introducing the provisions that we are already proposing.

I have committed to examining that proposal, but we need the time and space to fully evaluate that option. I would not want that to be constrained by the timelines of the bill.

Mark Ruskell

Is there an issue in relation to the SSPCA’s current powers under the 2006 act?

Mairi Gougeon

Again, I could not bottom out all the issues involved today because we have only just started that conversation. There could be many obstacles and we need the time to tease out all that information and get a chance to fully discuss the issue.

Mark Ruskell

Are there certain extension powers that could be granted under the bill that would be relatively uncontroversial? For example, we heard evidence of situations where an SSPCA inspector goes and visits a trap that contains a live animal that is fighting for its life. Tackling that is within the powers of the SSPCA inspectors under the Animal Health and Welfare (Scotland) Act 2006. However, if there is a trap with a dead animal next to the first trap, it is not within the powers of the SSPCA to protect that evidence or investigate any illegality in relation to that, because the animal is dead, rather than alive. Does that not strike you as odd and absurd? Is there not a way to deal with that in the bill?

Mairi Gougeon

I completely understand the point and where you are coming from. However, it is not as straightforward as adding a power that would allow the SSPCA to do that—we would have to look at the implications of that. That is what I mean when I say that we need the time and space to properly tease out all the information and assess the ramifications of increasing those powers.

It seems as though it would be a straightforward change or addition to the bill, but we really need to consider fully what all the ramifications might be.

The Convener

You are having the conversation now.

Finlay Carson

Are you ruling out any additional powers for the SSPCA at stage 2 of the bill?

Mairi Gougeon

It is not something that we are considering as part of the bill.

Finlay Carson

Okay. Do you agree that the bill should include appropriate safeguarding to ensure that we have stringent and strong policies and procedures when we are considering rehoming, enforcement and the additional penalties introduced by the bill? Are you satisfied that the safeguarding is adequate?

Mairi Gougeon

All the relevant powers and the issues that you raise are covered by what we are proposing. The bill is quite comprehensive in relation to some of the safeguards, including in relation to rehoming, the right of appeal and the right of appeal for compensation. I hope that the committee will agree that we have struck the right balance. Rehoming is particularly important and we have switched the onus so that it now falls on the owner. That will massively benefit the rehoming agencies while ensuring that owners still have the proper rights throughout the process. We have been comprehensive in our approach to that.

The Convener

I thank members for their questions and I thank the minister and her officials for giving us their time.

At our next meeting on 14 January 2020, the committee expects to take evidence on environmental governance issues.

10:51 Meeting continued in private until 12:40.  



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29 October 2019

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3 December 2019

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17 December 2019

Committee Findings

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).