Rural Affairs and Islands Committee

Meeting date: Wednesday, November 8, 2023

Official Report 794KB pdf

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Wildlife Management and Muirburn (Scotland) Bill: Stage 1

We now move to the first of this morning’s two round-table sessions on the Scottish Government’s proposed stage 2 amendments to the Wildlife Management and Muirburn (Scotland) Bill. This session will focus on the proposed ban on the use of snares in Scotland.

As we have a tight hour in which to get through the questions, I will go round the table rather than allow the witnesses to introduce themselves. We have with us Jessica Findlay from NatureScot; Glynn Evans from the British Association for Shooting and Conservation; Libby Anderson from the Scottish Animal Welfare Commission; Ross Ewing from Scottish Land & Estates; Penny Middleton from the National Farmers Union Scotland; Conor Kelly from the Scottish Gamekeepers Association; Bob Elliot from OneKind; Ross MacLeod from Game and Wildlife Conservation Trust; and Chief Superintendent Mike Flynn from the Scottish Society for the Prevention of Cruelty to Animals.

As I have said, there are a lot of people in the session and we have only an hour, so I must ask everyone to keep their contributions short and indicate that they want to come in only when they have something further to add in response to the question. We will take one question from each committee member and, at the end, we will, I hope, have time for some supplementary questions from members. If you raise your hand, I will try to bring you in, in turn, to address the question that has been asked.

I will kick off with the first question. What do you believe the animal welfare impacts of snaring in Scotland are, and do you agree with the Scottish Government’s proposal to implement a full ban on the use of snares? Are there any arguments for any exemptions?

It is probably simplest to start with Jessica Findlay, who is to my right.

With regard to the information that NatureScot holds, we do not have a specific remit associated with snaring. However, we are aware that snaring has the potential to cause welfare issues for target and non-target species. We recognise that a breadth of predator control measures is undertaken and that such measures can have positive impacts, but that issue is quite complex in and of itself, as predator impacts are quite difficult to disentangle. As I have said, though, we do not hold precise information on snaring, as we do not have a particular remit in that respect.

I will bring in Libby Anderson. Libby, given that you are representing the Scottish Animal Welfare Commission, which has reported back on the issue, would you like to make some comments?

Yes, thank you, convener.

The Scottish Animal Welfare Commission supports the proposed amendment. In our advice to ministers, we highlighted that any live-capture trap will have an impact on the welfare of the animal that is captured. Although we are aware of modifications that have been made to snare design, the basic principle of the snare continues to cause suffering to the animals that are captured in it. There is a risk of asphyxiation, strangulation and evisceration, all of which have been well documented over the many years in which I have been aware of snare use.

As I have said, I am sure that we will come on to discuss current modifications. Leaving those aside for the moment, though, I would say that the principle of capturing an animal by a wire noose round the neck and leaving it for up to 24 hours exposes it to significant welfare harms. In brief, we do not think that there should be any exemptions to the ban.

Thank you. I will bring in Ross Ewing and then Glynn Evans.

Good morning, everybody. First, I want to highlight some findings of the review of snaring that was carried out in February 2022 for the Scottish Government.

For those who are unaware of that, under the Wildlife and Natural Environment (Scotland) Act 2011, a review of snaring takes place every five years. The latest review, which was in 2022, gave us some insights into the scale of snare misuse in Scotland, and it might be quite instructive here, especially when we are talking about the potential negative implications. I would just highlight that, between 2012 and 2016, the total number of standard prosecution reports received by the Crown Office and Procurator Fiscal Service was 23, while between 2017 and 2021 the figure was 18. Therefore, there has been a reduction.

I will also highlight an important point that was touched on by the minister last week. The review was very clear about where it felt that the issue was with regard to illegal snare use and, by extension, welfare implications, stating:

“the Review Group consider that it would be very difficult to legislate for the actions of individuals where the modus operandi is to undertake an act of snaring with the intention of committing an associated crime.”

It went on to say:

“the cases prosecuted tend to point to deliberate abuse for purposes ranging from poaching to badger persecution.”

To be clear, that is completely distinct from legal snare operators and what they do. I am sure that the practitioners in the room will have more to add about how they go about safeguarding animal welfare when utilising those devices.

Thank you.

Glynn Evans, I am aware that BASC also played a role in the recent legislation in the Welsh Parliament. Will you touch on that?

As I live in Wales, I will be impacted by the decision there to ban snares. The legislation in Wales bans all snares as well as closing the licensing route. I think that it is going to be an absolute disaster. I will give an example. We do not have many grouse moors in Wales, but there is one grouse moor and it uses humane cable restraints. The moor holds 85 per cent of the black grouse population in Wales. When we consider rare species such as curlews and lapwings, I genuinely think that we will rue the day that snares were banned in Wales.

I will also touch on something that Libby Anderson mentioned about asphyxiation. Modern-design snares—humane cable restraints—have stops, and the stop is specifically selected to be at 26cm. It will not close beyond that point, so it will not asphyxiate a fox that is caught in it. That cannot happen—the stop prevents it.

What is your experience of the legislation in Wales?

We presented evidence. There are different committees in Wales; in 2017, one of them suggested a voluntary code of practice, which the Welsh Government drew up. The suggestion from that committee was to take almost a stepwise approach. If things were not shown to have been proven—it is very hard to prove a negative—we would have taken a stepwise approach, similar to what has happened in Scotland, with training and registration. However, the Welsh Government moved forward and decided to introduce a ban.

Thank you. We move on to a question from Jim Fairlie.

SLE has proposed a licensing scheme to enable the continued use of certain snares—the cable restraints that Glynn Evans has just mentioned—under a specific licence for specified purposes, including preventing harm to wildlife, game birds, livestock and crops. Mike Flynn, what is your view on that?

You will be unsurprised to learn that the Scottish SPCA follows the Government’s stated intention of banning all types of devices and snares. You can rebrand them as you like, but, from what I see, the humane cable restraint is, to all intents and purposes, a snare, so we would agree with an entire ban.

Conor Kelly, what is your response to that?

I do not know whether you have much experience of humane cable restraints and their use, but about two years ago we changed our management style to use humane cable restraints. My experience, as a practitioner, is that our non-target catch has gone down significantly.

We rely massively on humane cable restraints, because the estate that I am on is classified as an island, with no predator control being carried out in the surrounding areas. I will give you an idea of the scale. We control about 200 foxes a year on the land; given that 61 per cent of that control is carried out through humane cable restraints, the removal of that tool would be absolutely detrimental to practice on the estate. People say, “Oh, it’s the same”—and I understand that the perception is that a cable or wire is used—but there is now a breakaway device. We have found that some deer and badgers have managed to break free, and we record that. That information goes on to a database that is shared with the GWCT, so it is recorded.

As Glynn Evans has pointed out, there is a 26cm stop, which prevents a fox from being asphyxiated—we find that foxes manage to get out of the devices. Given how important this is, we try to check them no later than one hour after daylight. I know that some people will say, “Well, it’s only every 24 hours,” but we have tended to find that best practice involves our being there as early as possible to prevent a fox from being in a device for any length of time. That is my experience.

The GWCT has been doing research on predator control for the best part of 40 years now. We have been researching fox movement, and we have used humane cable restraints to catch foxes and tag them before releasing them. We have re-caught some foxes and have been able to assess their welfare, and, in our experience, they have looked absolutely fine in those circumstances.

We listened carefully to the words of the Minister for Energy and the Environment at last week’s evidence-taking session. She rightly concentrated on welfare, but we were most concerned by the fact that the environment minister did not mention the impacts on rare, iconic and vulnerable species such as curlew, lapwing, oystercatcher, black grouse and capercaillie—the list goes on.

That is why we think a conservation approach involving licensing would be sensible, particularly now. As Conor Kelly has indicated, we can now monitor exactly what is happening through mobile app recording, and there is every reason to think that we can further improve the technology in that regard to give early warning of when foxes are in snares.

Following on from what Ross MacLeod said, I should say that, ahead of this evidence session, we surveyed land managers in conjunction with Scotland’s regional moorland groups, and, of the 129 responses that we received, 98 per cent said that there would be a negative impact on biodiversity if the proposals went through. They are the experts—the people who work on the land and, ultimately, know best what will happen.

Indeed, we looked at the matter further to try to understand the implications on job losses. When we asked land managers whether they thought that a ban on snares and cable restraints would result in job losses, 72 per cent of those we surveyed said yes. I say that to highlight the extent and scale of what we are talking about.

We were really struck by last week’s evidence, because we did not think that the minister was able to articulate the scale and extent of snare use in Scotland. I am pleased to say that snares are now largely being superseded by HCRs. Broadly, 61 per cent of foxes in Scotland are controlled using lamping or thermal means, while 39 per cent are controlled through snaring. To our knowledge, zero per cent are controlled using live-capture traps.

For all those reasons, we think that the licensing scheme that we, alongside others, have devised constitutes a compromise approach that would enable humane cable restraints to continue to be used under licence. The licensing scheme would be predicated on the land, because it is the characteristics of the land, be it topography, cover or wind blow, that necessitate snare or HCR use. That is a really important point to note.

In our draft proposal for a licensing scheme, we have said that NatureScot would have to be satisfied that no other method of fox control would be reasonably practicable on the land. Broadly, such methods should be used as a last resort, but, in some places, those methods are absolutely instrumental. We cannot get away from that point.

10:30  

Have you any indication of how many old-type snares are currently being used as opposed to the new humane restraint devices?

Alongside the Game and Wildlife Conservation Trust and the Scottish Gamekeepers Association, we have been pushing the use of humane cable restraints. It is not widespread at this point, because the current code-compliant snare in Scotland necessitates something that is completely different from an HCR, so the HCR is only being trialled by a handful of estates, including Conor Kelly’s. It is important to note that, at the moment, Scotland’s code of practice has a snare within it that is not—despite what you might have been told by certain people, convener—an HCR. It is distinct, and we can evidence and show you that quite clearly.

I will bring in Penny Middleton next.

I return to the original question, which was about the animal welfare impacts of snaring and arguments for exemption. I spent the previous 10 years of my life as an SSPCA inspector and I fully understand where the committee is coming from. The types of injuries that I saw through snare use were absolutely horrific and I completely understand why snares have such bad connotations for people. However, the most recent changes, in 2011, concentrated on significantly improving the use of snares to address a lot of the previous problems, and the new humane cable restraint device will take that even further. When we parcel that up with the use of snares being under licence, we have a very different situation from the one that most people think about when they think about snaring.

From the farmer’s point of view, pest control is a necessary activity on farms. We speak to farmers who regularly lose lambs to foxes, and they know that, once a fox finds those lambs, they can come night after night. In that situation, snares are sometimes the only option that is available. That can be due to the topography and the type of land, as Ross Ewing said, but it can also be due to time constraints and lack of skills. We have moved on a long way in farming and farmers have lost a lot of the skills that were involved in lamping and the shooting of foxes, so it becomes the only option for them.

Penny Middleton has said that everybody accepts that we need to control foxes. I ask Bob Elliot, Mike Flynn and Libby Anderson to say whether they agree with that.

That might be the case in certain circumstances, but we are talking about snares as indiscriminate—

Yes, but do you accept that, in certain circumstances, there is a need to control the numbers of foxes?

Not using these devices—no.

Okay. Mike?

I totally agree with the point about farmers. It is funny—in our statistics, we have no record of a farmer being involved in illegal snaring. I agree that farmers have to be able to protect their livestock.

Do you accept that, as Penny Middleton says, there is a need to control foxes in certain circumstances? Do you agree with that principle?

If it is done in a humane manner, yes.

Libby?

We have not been asked to opine on the need or otherwise to control foxes—

That is why I am asking you the question.

Lamb mortality is a multifactorial issue, and the statistics indicate that fox predation of lambs is a very low strand of the problems that affect lambs. I know that that has been discussed in the committee before, and the commission wrote to the convener and committee members pointing out the Scottish Government research on lamb predation.

You would say that there is no need.

I would not say that there is no need, but it is necessary to evaluate the need. The committee has heard previously about the international consensus principles for wildlife control. Any wildlife control technique should be evaluated in the light of those principles, including consideration of whether it is necessary and whether it can be affected by changes in human behaviour or practices. You may feel that we are not giving a straight answer, but that is because it is a very complicated question.

I will bring in Glynn Evans next.

There are lots of points to be made on the subject, but I will touch on just one in order to be succinct. At times, there is a need to control foxes, and at times humane cable restraints and modern snares are used. We need to understand that old-fashioned snares—self-locking snares have been illegal for more than 40 years—and modern humane cable restraints are completely different. We have talked about the international agreements, and I note that those modern devices meet international standards for restraining traps.

I note the point that Ross Ewing made. At certain times of the year, the cover will be too high. I control foxes and my preferred option is generally to use a rifle. However, at certain times of the year, the cover will be too high where I live, so I cannot see a fox to shoot it and I need to use a different method. In the past, that would have been humane cable restraints. It is important to understand that the time of year when it is difficult to control foxes with a rifle because the cover is too high is also the time of most conservation need, when we have ground-nesting birds. If we do not have a method of control, those birds are going to suffer.

I will bring in Ross Ewing next, and then Bob Elliot.

The context here is really important. The first point to note is that we are in a biodiversity crisis. The reasons why that is important have been set out clearly by the GWCT, so I will not repeat them. However, another point to note is that we have already lost a third of the toolkit for fox control through the Hunting with Dogs (Scotland) Act 2023. I know that there is a licensing scheme in place for that, but the feedback that we have had from members thus far is not particularly rosy. We absolutely need to be able to manage predation—I could not make that point more strongly—and humane cable restraints offer us an opportunity to do that.

It is also important to note that, in the five-year reviews that have taken place since the Wildlife and Natural Environment (Scotland) Act 2011 came into force, recommendations have been made to improve Scotland’s code-compliant snares not once but twice, but Scottish ministers have not acted on them. Recommendations have existed for some time that would bring us into line with elsewhere in the UK and bring to fruition the use of humane cable restraints, but that has not happened. We now have an opportunity to do that through a well-managed land-based licensing scheme, and I hope that the minister will listen to that and bring it to fruition as an alternative and a compromise.

I am looking at a paper from 2017 on Christine Grahame’s debate in Parliament on stink pits. It includes loads of pictures of dead foxes—foxes that were found dead in snares. They are appalling devices. On the research angle, a lot is being said about capercaillie, curlew and so on becoming extinct. However, no conservation organisation—not the RSPB, Trees for Life or the John Muir Trust, for example—uses snares. They do not have them in their toolkits. Their work is about landscape management and looking at alternatives, and there is some really visionary stuff going on. The Clyde Valley wader group includes farmers, the RSPB and NatureScot and, with the inventive ways of growing crops there, lapwing numbers are going up. It is brilliant. I am sure that there is some predator control, but they are not using snares to do that. It is not a great idea to snare around capercaillie or where there might be wildcats or protected animals such as pine marten. Wildcats and pine marten will not get out of a breakaway snare.

We have talked about foxes, and it is still being accepted that foxes will be snared round the neck by a device. This is a rebranding exercise. Back in the day, they were called DB snares, I think. Glynn, there is a film of you guys setting them. Even in 2015, you were setting one of these things, and things have not changed. People’s cats and dogs, including companion animals, are still getting caught in them. We have had otters caught in them—the list is huge. The snares have been banned elsewhere in Europe, and Wales has done it. We should do the same.

Conor Kelly wants to comment.

I have a question for Bob Elliot about the point in his paper. Did the snares in which you found those foxes have tag numbers? Did prosecutions result from that?

I have all those snares down as having been legally set. It makes no difference whether a snare is legally or illegally set—it is still a snare. That is where we are now. We have had lots of reviews and lots of changes, but it still has not worked.

A second point to make on that is that the device has been designed with a larger stop so that a smaller animal such as a pine marten, a capercaillie or a wildcat could remove itself from it. We are finding that smaller foxes are removing themselves from such devices, because the stop is loose enough to allow them to do that. I highlight that, in our experience, we have had no catch of pine martens or wildcats. We do not have wildcats in our area, but we have pine martens, and we have no experience of catching them in our HCRs.

There are two aspects to this. One is that the designs for the snare hardware—the humane cable restraint—have moved on. I am grateful to Bob Elliot for name checking me and a film that I did. The kind of snare that we are talking about is a modern humane cable restraint—a snare that was compliant with the Welsh Government’s code. That is a different design from the kind that the committee has looked at previously. The hardware is one aspect.

The other aspect is about setting the devices in the right place. Mention has been made of non-target species. Our approach would be that we would not set the devices in areas where there are non-target species. When we talk about injuries and so on, another key consideration is the need to set such devices away from places where there is a risk of entanglement, because entanglement is a big cause of injuries.

The hardware is one aspect, but there is also the best practice advice on where to set a device. Those two things come together to make the device compliant with international humane trapping standards.

I will bring in Penny Middleton next.

I have two points to make. First, I want to go back to Libby Anderson’s point about the fact that lambs die for any number of reasons. I absolutely accept that. A wide range of things will impact lamb losses, some of which we can do something about and some of which we cannot do anything about. Let us face it—what we are talking about here is something else that farmers would not be able to do anything about.

I remind the committee that we are asking for it to be possible for snares to be used under licence. There would be three levels to that licensing process. First, a person would have to prove that they were preventing serious damage and that the action was necessary. Secondly—

I will stop you there, because we will move on to licensing in a moment. That is not an option that is currently in front of us.

We are asking about the use of licences, under which those tests would have to be met.

Secondly, we are talking about significant changes in snares. It is true that people are still using illegal snares, but we cannot make legislation based on the fact that some people are hellbent on breaking the law. The kind of snare that we are talking about will be a clearly different type of snare. It will be possible to tell the difference between a legal snare and an illegal snare. That option must not be taken away simply because some people will break the rules.

Chief Superintendent Flynn is next.

I emphasise that the only reason why we oppose snares 100 per cent is because of the welfare issues. Snares are totally indiscriminate. On the jobs that we go to, about half the animals that we find are non-target species, such as cats and badgers. As Glynn Evans said, reports have been made to the fiscal about legal snares that have been set illegally by people who have been on training courses. Therefore, the excuse about lack of training goes out the window.

I am glad that Penny Middleton mentioned her earlier career. The injuries that we find are horrendous. I am not talking only about a wee animal in distress; I am talking about stuff such as disembowelment. With a 26-inch stop, there is no guarantee that animals will be caught around the neck. If an animal such as a badger is caught around the midriff, that will do incredible damage. This year alone, two cats have been brought in with snare injuries.

We oppose the use of snares because they are totally indiscriminate and they are cruel. We should not forget that foxes are sentient beings, too, and they deserve protection. Some of the foxes that we have seen that have come out of snares have been in an atrocious state, and I guarantee that any gamekeeper who found them like that would be equally appalled.

I will bring in Ross MacLeod, after which we will move on to the next topic.

10:45  

On the question of examples of good practice, Bob Elliot mentioned the Clyde valley waders project. We know the people there very well and it is a very good example. We work with some of them, including the RSPB, and we have every respect for what they do. The difficulty is that those particular cases are islands, as Conor Kelly mentioned. What we really need to do is to tackle the matter at scale across Scotland, because the situation for curlews, for instance, is critical. Curlews are likely to become extinct if we are not careful and we do not manage these situations. To transfer sensible land use practice—as in the examples—quickly and on a significant scale is, to say the least, going to take us a very long time. We need other options in the interim in order to ensure that we can balance the good work that occasionally happens in the landscape with the immediate and pressing issue that is presented by fox predation.

If we do not take the short-term opportunities that we think are represented by a conservation approach to licensing, we will miss a big opportunity to redress the balance and remove the risk that we will be unable to meet the target for the recovery of species by 2030, as the Scottish Government expects. We need to do something rapidly.

Before we move on, I want to explore the licensing scheme a little more. At the moment, we do not have an amendment from the Scottish Government relating to snares because the Scottish Government suggested before the summer that it wanted to do more work to look into the various devices. The Government has still not made its position clear. However, it suggested that Scottish Land & Estates had come up with a potential licensing scheme. The Government has looked at that proposal only in the past few days, which is quite remarkable.

I will go to NatureScot first. What are NatureScot’s views on the potential licensing scheme and is it one that NatureScot could manage?

As we know, the minister is currently considering the licensing scheme, so I cannot comment on that. However, NatureScot, as a licensing authority, has considerable experience of licensing schemes. We issue about 5,000 licences a year and, in doing that, we aim to uphold the highest welfare standards that we can.

If a licensing scheme were to come our way, we would need the resources to manage that, because, as it is set out at the moment, there is a code of practice that would go alongside it. Considerable thinking would need to go into that. As I mentioned earlier, we do not gather information on snaring because we are not required to do so. However, if we were a licensing authority and that became a responsibility of ours, we would look to gather as much evidence as we could and ensure that it was in the context of the agreement on international humane trapping standards.

There is a balancing act involving the need to safeguard welfare—we understand and accept that there are potential significant issues with snaring. Obviously, the minister is currently considering the licensing scheme.

I will bring in Ross Ewing, given that Scottish Land & Estates proposed the licensing scheme.

Thank you, convener. It is worth noting that we proposed the scheme in conjunction with several land management stakeholders. I will give you a flavour of the key points of the licensing scheme that we have pulled together. Penny Middleton has alluded to the fact that there are certain licensable purposes that would need to be satisfied by any prospective applicant. Secondly, the applicant would have to be able to evidence that no other method of fox control was reasonably practical on the land.

That brings me on to the additional safeguards that we have proposed in the licensing scheme. Jess Findlay mentioned our proposal for the humane cable restraints code. We are talking about a statutory code of practice that land managers will have to have regard to when they are using any sort of HCR. We know which areas the minister has concerns about, so we have said, for example, that the humane cable restraints code should allude to how often humane cable restraints are to be checked, how they are to be set to reduce the likelihood of non-target catch, and how to keep records. If that is not enough, we are also proposing robust modification, suspension and revocation provisions. We have proposed giving Scottish ministers the power to modify a licence at any time, to suspend or revoke a humane cable restraint licence if they are satisfied that a relevant person has committed an offence and, indeed, to suspend a licence when they are not satisfied, provided that proceedings against an individual or a licence holder are in order.

What we have proposed constitutes a reasonable compromise. It would allow crucial conservation work and the protection of livestock work to carry on in Scotland under a strict licensing regime, which we have every confidence that NatureScot would be able to administer and handle.

I will bring Penny Middleton back in, having rudely interrupted her earlier.

As Ross Ewing says, on the use of snares under licence, farmers do not have snares out every day and every year. Rather than being put out constantly, they are targeted at certain times of the year and at certain animals. We think that a licensing scheme could work. As part of that scheme, it would be necessary to pass three bars. First, there must be a reason for snaring, such as lamb loss that the farmer knew was down to a fox. It could not be just that there was some infection among the lambs; the farmer would have to demonstrate that they were losing lambs to foxes. Secondly, the farmer would have to demonstrate that no alternative explanation was possible. I believe that, in certain situations, no other solutions are available. Thirdly, it would need to be shown that snaring would not have any impact on the conservation status of the species that was being targeted.

There are definite protections in place there, which would mean that, under licence, the balance could be struck and snares would be used because they needed to be used.

Last week, when the minister was before the committee, I asked whether NatureScot would have an opinion on whether banning snares would have a positive or negative impact on the preservation of ground-nesting birds. The minister suggested that we should ask NatureScot. Do you have an opinion on whether banning snares would be positive or negative for ground-nesting birds?

We know that predator impacts can have a significant impact on the declining productivity of certain threatened ground-nesting birds, and we know that predation impacts are only one type of impact, of which there are a complex number—including habitat impacts, climate and the predation itself. It is difficult to disentangle the different impacts of different predators, as was borne out in a large report called “Understanding Predation”, which was produced about six years ago. There is a lot of complexity there.

As I mentioned earlier, we do not have a requirement to understand snaring as one method among the suite of predator control methods. It is difficult to disentangle all of those different issues. However, we recognise the significant welfare implications of snaring. It is difficult to answer the question, because there are many different factors involved, but we do support coherent predator management, and we recognise that predation is one of the factors that can have an impact on ground-nesting birds and biodiversity.

Taken in isolation, would removing snaring as one of the potential tools in a gamekeeper’s or land manager’s toolbox have a negative impact? That is one of the things that the Government considers when it makes a balanced decision. Would removing snaring have a negative impact on ground-nesting birds?

There is a risk that it could have, but that has not been quantified in any way. There are alternative methods. It is a matter of balancing the welfare implications with the available tools and deciding whether alternative methods could be stepped up and used in place of snaring. I cannot comment in detail, because we do not hold information on it.

I think that it would have a negative effect; the GWCT did some research on it recently. I assume that foxes are snared on a number of grass moors. The GWCT’s research said that, where there was predator control on grass moors, there were four times as many curlews as there were in similar areas of unmanaged land. The research also said that 1.05 curlew chicks per pair fledged on moors that had predator control, which is double what is needed to sustain the population. I assume that snares form a big part of that in the spring of the year.

I am aware that another three people wish to come in on that point, but this is an appropriate time to move on to a question from Rachael Hamilton. We can then hear people’s views later.

You touched on the subject of my question, convener, so bringing in the other witnesses just now would be beneficial. I can then pick up on anything that does not come up.

Okay. I will bring in Conor Kelly, Ross MacLeod and then Bob Elliot.

To go back to Jessica Findlay’s point on the negative effects of fox predation on ground-nesting birds, the GWCT would absolutely have the data to show that foxes have an impact on ground-nesting birds and their productivity.

In our area of the lowlands, we find that, with the predator control that we carry out, we have successful broods of lapwing, curlew and even golden plover on the upper hills, whereas in the areas around us, because we are an island, the birds turn up and try to breed but they get predated. That is my experience of the impact that foxes can have on ground-nesting birds.

The GWCT has undertaken substantive research in that field. The first piece of research, which is often referred to, was the understanding predation experiment at Otterburn that took place between 2000 and 2008. The result of that was a dramatic improvement in the productivity of curlews, in particular, but also in that of black game or black grouse. In the Otterburn example, snaring formed roughly 25 per cent of the catching of foxes.

The work was repeated, and the results appeared in a journal in 2022. That work was undertaken by my colleague Dave Baines, who looked at 18 bird sites where we checked predator control against non-predator control and then swapped them around. In one particular case in those paired examples, 80 per cent of the foxes were caught using humane cable restraints. Again, he pointed out in the research that he led that curlews risked achieving productivity of about 0.95, when we see problems occurring below 0.5.

We proved the case again, therefore, and that is why we believe that the use of predation control, particularly snares, has a role to play in improving the lot of upland birds. We should bear in mind that these birds are described as upland birds, whereas they used to be on farmland. We will need to ensure that these islands—these refugia—are resources to spread the birds back in farmland, where the landscape needs to adjust. It will take time to do that.

I have another quick point on the research. When I was reading up on foxes, I noticed something on the GWCT website about the rearing and release of pheasants and the studies that have been done on that. It said:

“The widespread rearing and releasing of gamebirds has probably improved fox food supply in autumn and winter.”

A lot of the snaring work is going on because people want to protect their game birds for shooting—that is essentially what is happening.

Nobody, apart from the GWCT, is really doing much regarding snares and snares research. I think that I heard Ross MacLeod dismissing some of the large landscape-scale projects that are going on now. Projects such as Cairngorms Connect and Trees for Life are connecting up habitats and thinking about why we have lots of crows and foxes in the environment. Here, we are concentrating on the snare, which is a cruel and indiscriminate object. We have to come back to that. We are now talking—at last—about the welfare issues with these things and not about just changes to design but whether we should be catching animals in wire nooses. That is what we should be talking about.

I will give Ross MacLeod the right to reply to that, and then I will move on to Ross Ewing.

With respect to game birds, we do not see many pheasants and partridges knocking around at 1,000 feet or 1,500 feet on some of the grouse moors that we are operating. The point here is that we are talking about a conservation licence for rare endangered species that are typically in upland areas.

I am not at all dismissive of the projects that are taking place in landscapes. We are involved in some of them ourselves, and we think that they are very important. The issue is that shifting the overall behaviour and culture around changing landscape use to suit the birds that are at risk will take a long time, and we need something that helps the cause of those birds in the interim.

11:00  

The fox range in Scotland is dramatically increasing. The 2018 review of the fox population in Scotland was quite clear on that, and one of the main reasons for it has been the extent and scale of afforestation.

It is unsurprising, I suppose, that in the southern uplands—I know that representatives of the southern uplands moorland group are here in the room today—snaring is a particularly important method of predation control. From a survey that I did just this week, we can see that, in 2021-22, 55 per cent of foxes in the southern uplands region were snared, 38 per cent were shot and 7 per cent were controlled with dogs. We can see the importance of snaring in that respect, so to dismiss it as an issue that is simply about producing vast numbers of game birds is fictitious and misleading.

The motivations of gamekeepers are not singular, for that reason. There are multiple reasons why gamekeepers carry out predation control; it is not just about game birds—I want to make that absolutely clear. Anybody who suggests that that is the case has clearly not engaged with, or spoken to, any of the people who are sitting at the back of the room today.

I come back to the welfare point. I hear the concerns of Mike Flynn and his colleagues about the old conventional snare. I ask the committee to look at GWCT’s evidence on the welfare benefits—well, they are not benefits, but the humane cable restraints certainly do not have the same side effects, or negatives, as the old conventional snare. From experience, we are certainly seeing a reduced risk to the fox as a species from our HCR use.

It should also be pointed out that best practice set outs stipulations that should be used to limit the non-target catch, specifying the height and size of the loop and—as Glynn Evans pointed out earlier—the entanglement area. Those are all things that good practitioners should be looking at to limit the risk of any injury or damage, because nobody in this room wants that to happen. I do not want somebody stumbling across an animal in distress or whatever with my tag number on it. In my experience, we come along and often find the animal sleeping—there is a quick dispatch and then we move on. That is what we want it to be.

I have a supplementary question from Kate Forbes.

I am slightly concerned that we may be losing sight of the fact that the issue before us is snaring rather than the validity or otherwise of certain sectors. If all sectors, whether that is conservation, agriculture or anything else, are agreed on the need for predator control, would a licensing scheme actually enable better enforcement? As Penny Middleton outlined, such a scheme would require people to jump through certain hoops rather than push the illegal activity further underground.

That is absolutely spot on—I agree with that completely. The revocation, suspension and modification provisions that we have included in the draft licensing scheme are robust.

The other point to add is that, in the light of the fact that no impact assessment was actually done on the implications of that particular proposal, the onus is on the Scottish Government to put in some sort of interim measures that will enable the use of HCRs to continue.

When we looked at the consultation that came out, we found it regrettable to see a statement that the use of live-capture traps, for example, is more humane and more efficient. That is just not the case.

It is important that we recognise that HCRs are vital as a conservation tool. As Kate Forbes just outlined, that will allow land managers to make sensible applications for specified purposes where no other method of fox control is available. We are talking about those limited circumstances, in areas such as the place where Conor Kelly works, where such methods are absolutely fundamental.

Rachael, do you have anything to sweep up on that?

I am glad that there has been an explanation to differentiate between humane cable restraints and traditional snares, as they were starting to be conflated. We need to be looking at an exemption for, and possibly—as Ross Ewing has just said—an impact assessment of, the use of humane cable restraints.

However, my question is to the GWCT and Conor Kelly and is about what the minister said in her opening statement last week. She said that shooting and trapping are available to land managers. I wonder how effective shooting and trapping are and whether you—particularly the GWCT—have any information on the effectiveness of the live capture of predators?

We have been collecting data on the mix of options through an app that has been rolled out to 26 upland estates. Off the top of my head, I think that it found that about 39 to 40 per cent of foxes are managed by snaring—HCRs—and 60 to 61 per cent are managed by shooting. That mix included 1,000 man days of operating cage traps as an alternative; no foxes were taken in that way. Therefore, we will concentrate on whether shooting makes up the shortfall if HCRs are removed. Forty per cent is a lot to make up, particularly when shooting is not always possible. It has been outlined that, where there is deep cover, it is not possible to shoot, because you cannot see. It is also unsafe in those circumstances, particularly if other people are moving around the landscape. Therefore, there are issues with shooting. We also cannot always use thermals, particularly when it is damp or wet. It is therefore impossible to imagine that shooting can make up the shortfall.

I will touch on Ross MacLeod’s point and say that we find shooting very effective, but there is a shortfall. We probably shoot 30 per cent of foxes, so the numbers are reversed for us, in that 61 per cent of our foxes are snared or caught in humane cable restraints. We have quite steep topography, we are heavily forested on all sides and we are surrounded by commercial forestry. It is therefore not physically possible to shoot that number of foxes or control their number. We put in our best efforts—we do try—but the use of humane cable restraints is vital, especially when hunting with dogs has been removed as an option.

I know of one case that has gone to NatureScot so far, in Perthshire, and that has been rejected. That has not exactly filled me full of reassurance, if I am honest.

The toolkit is becoming less and less, and I understand that technology is getting better and that thermal equipment is getting better, but I still cannot see the tops of hills using thermal technology, for example, and we have to take other things into consideration, such as fog. We cannot carry out our vermin control to the extent that we need to, so we are in dire straits if HCRs are not left as an option under licence.

I have a question on the way in which the operation of snaring offences under the bill might work. I wonder whether anyone has a view on how vicarious liability, which the committee has touched on before, might apply, and what the consequences of it might be.

It was broadly covered last week. We are not aware of any vicarious liability offences in relation to existing snaring offences; I do not see the need for that.

The other thing that I will highlight is that the 2022 review was quite clear that the majority of illegal snare operation tends to involve those who are committed to undertaking an illegal operation; it is not done by people who are sanctioned to do so in a certain way. We will never be able to stop those who act on the wrong side of the law; that will continue irrespective of whether snares and cable restraints are banned. Therefore, if we consider what the aim of this legislation is, ultimately, a ban on snares is not going to stop illicit operators, such as poachers and people who persecute badgers, so I do not see the case for vicarious liability.

My only experience of that was when I was working for the RSPB when vicarious liability came in—I think that I might have been at your predecessor committee at one point. It can be a powerful tool to drive change.

I will come back to the main point about the welfare aspects of snares. Whether they are set illegally or legally, there is still the same impact on the fox that is being snared. That is why we are here today, because we have moved on. The debate has moved on from the basics of predator control. The snare is a device that should not be used for any reason at all.

I have a question on vicarious liability. If a person’s entire livelihood is put at risk as a result of doing something illegal—setting an illegal snare—surely vicarious liability is an important tool to ensure that only legally set snares are used by estates and farmers who are trying to do the right thing.

What we would argue for would be a sensible compromise, and our licensing scheme speaks to that. Because it is a land-based licensing scheme, if a relevant individual—that is, someone acting on behalf of a landowner—was to deliberately set a humane cable restraint in an illegal fashion, NatureScot, as the regulator, would have the power to suspend, revoke or modify that licence, and it would cover the entire landholding. The implication would be felt not just by the individual but by the estate at large.

I think that that gives the regulator sufficient discretion to say, “Actually, we do not have trust and confidence that proper practices are being followed in this particular place and, therefore, the entire landholding should be subject to a suspension or revocation.” I think that that constitutes a fair compromise. I do not think that vicarious liability will be required. Our licensing scheme would achieve the aim.

We have been involved in many snaring cases and vicarious liability has never come up. There has never been any evidence that snaring was carried out on behalf of, at the instruction of, or with the knowledge of, the landowner or the factor or agent.

Just on that point, I posed a question on convictions and whatever to the minister a number of times. At the moment, as we have heard from Conor Kelly, there are quite strict guidelines about the way in which snares are set. How many convictions or cases have you investigated where snares have been set legally and resulted in a bad outcome?

You have to remember that a lot of what could be classed as violent crime never gets to the fiscal and never reaches court. We have found lots of instances of an animal having suffered, as I explained earlier, because of bad practice such as putting snares on fence lines, which is against the law.

You have to remember that we have been discussing this for at least 15 years and the situation has always been getting better. We have put a stop at 23cm, we have stopped drag snares and we have stopped putting snares on fence lines. However, that is still going on.

Is it going on with licensed operators or with people who are illegally setting snares?

Like I said earlier, there are two cases currently with the procurator fiscal that involve people who have been on training courses, so it is not as if they did not know the exact law. That does happen.

I suppose that my point is that this legislation will make it doubly illegal, because currently the cases that you see involve snares that are being set illegally, so banning them probably will not make any difference. It is currently illegal. When animals are caught indiscriminately or snares are not being set properly, that is illegal.

There are two different things. First, there is the actual legality but, secondly, to come back to what Bob Elliot said, the method is inhumane and cruel. Snaring is not designed to kill the animal, but inevitably, in many cases, it does. It is not a very quick, pleasant death.

But that is currently illegal.

Yes, and it would be illegal in the future if the bill was brought in.

The policy intention is to stop undue suffering to animals that are caught in snares or cable restraints. The central point is that, as the review group of 2022 said,

“it would be very difficult to legislate for the actions of individuals where the modus operandi is to undertake an act of snaring with the intention of committing an associated”

offence. In other words, those people who are absolutely committed to committing offences will continue to do so.

Convener, you asked for facts and figures on that, and I am happy to provide them. Again, in the 2022 review of snaring for the Scottish Government, there were 18 cases of standard prosecution reports received by the procurator fiscal. Four of those resulted in the cases being prosecuted. That is the ratio, and the review also sets out the figures for 2012 to 2016. The Scottish Government has that information available because it commissioned it, and that is all set out in the latest review of snaring.

11:15  

Finally, I will bring in Rachael Hamilton.

Mike Flynn, are you saying that you believe that illegal snaring will continue among those who are bad practitioners or poachers even if the legislation is in place?

You will always get illegality. I am not saying that there is a need for the use of snares. It comes back to the suffering that is caused by snares. It is unnecessary. I will put this on the record: I do not believe for one second that any bona fide gamekeeper has ever put a snare out with the intention of causing an animal to suffer. I am not saying that that is their intention, but, in reality, that is what happens.

Can you put some figures behind that?

We have figures of the cases that we have investigated and reported to the procurator fiscal, and I can get them to the committee this afternoon. That would not be a problem.

That would be useful.

I want to make one point. We have talked about the use of app technology to understand what is happening as far as fox catch is concerned, and that has improved dramatically our understanding of what is going on.

Looking back at the two iterations of the five-year review since the introduction of the Wildlife and Natural Environment (Scotland) Act 2011, we can see that there has been a collective failure to bring the information together. If we are in a position where a licensing system is introduced, it is incumbent on us to produce evidence about what is happening, not just in relation to fox predation and the catch rate but in terms of conservation benefit. Equally, it is incumbent on authorities such as the SSPCA to provide clear information about where incidents are happening, whether they are illegal or legal and whether they involve tags. That might give us a clear idea about whether incidents are happening in the rural environment or in suburbia. That would help immensely.

I want to put it on the record that the commission would not support any exception under licensing.

On HCRs, although the technology of the snare is different, the peripheral effects—the fundamental effects of being restrained in a wire noose over a period of hours—are not affected by that. If there was to be a licensing scheme, we would not support the proposal that is being tabled at present. It is far more permissive than the current legislation or other licensing schemes.

I will give a quick example of that. Basing a licensing scheme on a code rather than regulations, which would be the normal approach, is more permissive. There is an assumption in the proposal that ministers must grant licences subject to certain exceptions, and that is the opposite of the normal procedure. I will not go into more detail at present, but we would not be able to support that.

I would like clarity on whether I heard Mike Flynn correctly when he was talking about cases in which inspectors have seen suffering in snares. In those cases, the snares were illegally set. They were set in a manner that does not follow the best practice on how they should be used. If we are coming down to the pure welfare argument, if the new style of humane cable restraints are used in the manner for which they are designed to be used, they will significantly reduce suffering.

To clarify, those snares were set illegally.

If you have a code of practice that enshrines that you have to use the right device in the right way, that should alleviate the concerns that Mike Flynn has just raised.

Libby Anderson has mischaracterised our licensing scheme, because it is a rebuttable presumption in favour of granting licences. There is a distinction, and the reason for that is that NatureScot would have to be satisfied that no other method of fox control was reasonably practical prior to granting a licence. That is the safeguard that is in there.

The second point that I would make is about the strength of the code of practice. NatureScot would be able to suspend, revoke or modify someone’s licence on the basis of their not having regard to the code of practice. That is a strong and robust licensing scheme.

We have run out of time. Thank you all for the evidence that you have provided this morning, which has been hugely useful.

11:20 Meeting suspended.  

11:30 On resuming—  

Welcome back, everyone. Our second round table this morning will focus on the proposed extension of the Scottish SPCA’s powers. We have approximately one hour for questions and discussion.

As with the previous round table, I will start by going round the table. We have Iain Batho from the Crown Office and Procurator Fiscal Service; Chief Inspector Kevin Kelly from the National Wildlife Crime Unit; Ian Thomson from RSPB Scotland; Ross Ewing from Scottish Land & Estates; Detective Sergeant David Lynn from Police Scotland; Susan Davies, who is the review lead on the independent task force on SSPCA powers; and, once again, Chief Superintendent Mike Flynn from the Scottish SPCA.

We will start with questions from Ariane Burgess.

There are a number of members of the task force on the panel, so I would be interested in hearing how the task force came to recommend increased partnership working and why the group was not able to agree on a recommendation to expand the SSPCA’s powers. What were the key concerns and how are they addressed under the proposed compromise position?

I ask Susan Davies to start.

The remit that I was given was to try to reach an agreement with Police Scotland and the Crown Office on the way forward. It was not possible, through that route, to get agreement to scenarios 1 and 2, which are set out in the task force’s report.

There was a lot of support for improved working together and a lot of good examples of where people across the partnership work effectively together. However, some valid concerns were raised about the scope of the powers. That was why, in the final report and my cover letter to the Scottish Government and the minister, we set out scenario 2, which potentially gave a way forward, but it was not possible in the timescale of the review to get agreement from Police Scotland or the Crown Office to that option. That is because the detail of some of the safeguards that would be required still needs to be worked through.

Does anybody else want to come in with thoughts on that?

Mike Flynn, do you have any comments on the protocol?

We have said all along that we will go along with whatever protocol is put in place. I thank Susan Davies for all the work that she did during the task force review.

Last week, I asked the minister whether the legislation that would set out how the SSPCA would work and how its powers would be extended would be enacted prior to a protocol being agreed. She said that that could be provided for as an amendment. I ask Susan Davies what her thoughts are on the enactment of part of the bill if there is no agreement between the SSPCA and Police Scotland.

Provision of that safeguard would be a pragmatic step to take, but it needs a timeline. The issue has been around since 2010, if not since before then. Option 2 would take us to a resolution on the issue. It is important to have a strong commitment to working on the detail of protocols and to putting them in place fairly quickly after the legislation is enacted. The approach will take some time to bed in and there will be issues, but, if there is a real commitment to partnership working, the organisations will work through that in a sensible manner.

I put the same question to Mike Flynn.

As I said, we are ready to go with the protocol as soon as it is put forward by Police Scotland and agreed by the Crown Office.

What involvement would you have in agreeing that protocol?

We have not seen what has been suggested yet, but I see absolutely no reason why we could not agree with what is potentially coming down the line.

Iain Batho, can I get your perspective on how the protocol would be set up and whether that should be the trigger for enforcing the additional powers?

Our position is that we could neither endorse nor oppose the proposals at that stage, in the absence of detailed legislative proposals and drafts of any proposed safeguards, such as a memorandum of understanding between Police Scotland and the SSPCA. Our position is that we are ultimately governed by the law and the rules of evidence, so the devil will be in the detail, from our point of view. We would be in favour of the safeguards being drafted in advance of the legislation being put in place.

Does Police Scotland have any comments?

I do not speak on behalf of Police Scotland, as I am not a Police Scotland officer, but I will speak on behalf of the implementation of policing of United Kingdom wildlife crime. Risk sits with any new legislation or practices. An agreed protocol is the first step in mitigating risks that could be seen. Is the protocol to be used reactively? Is it to be used proactively? Where does it align with disclosure requirements on policing?

I think that the bill is a positive step forward, as demand on policing rises and services are deviated elsewhere. From an England and Wales perspective, I have advised on a similar project where we have had legislative change and are looking more to partners. However, it is about management of the changes and mitigation of risk, and how people are trained.

Police Scotland is of the view that there needs to be a very clear protocol with well-defined roles and responsibilities, in order for things to work successfully if the new powers are enacted. Of course, we could sit down with the SSPCA and the Crown Office and get our heads together to create a protocol that suits everyone’s needs and ensures that there are no unintended consequences of additional powers being afforded to the SSPCA.

The Scottish Government’s consultation resulted in the Scottish Government describing the scope of the new powers as “a compromise”. In what areas does Chief Superintendent Flynn think the Scottish Government thinks the powers are a compromise, and where would you like to see them go further?

I am not sure what the Government means by “a compromise” from its side. The original intention, which was first suggested by Mr Peter Peacock MSP back in 2010, was to grant us powers under section 19 of the Wildlife and Countryside Act 1981, which covers a multitude of things, but that has been narrowed down to extending the powers that we currently have under the Animal Health and Welfare (Scotland) Act 2006. That will extend what we can do if an animal is alive when we go to an incident, as our inspectors do when the public call us.

Obviously, Police Scotland still has primacy in all things in such cases, and it is ultimately, regardless of the protocol, the procurator fiscal’s decision whether a case goes to court. The fiscal is the expert in ensuring that all evidence is gathered lawfully and that there is substantial evidence to take a case forward. Otherwise, the fiscal will just not do that.

In practice, if you were called—under your existing powers from the 2006 act—to an animal that was caught alive in a live trap that died after you arrived, would the new powers allow you to carry out an investigation into a suspected wildlife crime?

Yes—for that individual animal. It is funny that you ask that, because, not long ago, an animal that was alive in a snare died while our inspector was standing over it, because it struggled to get away. That was the ultimate cause of death.

If we see other traps at a scene, we have to leave the scene and call in Police Scotland, but the police are not always available immediately. I have to put my hand on my heart: we could not do our job from day to day—I am talking about the whole remit; everything that we do—without Police Scotland. The service that we get is very good but, like all services, it is getting tighter. It has far more demands on its time than we will ever have.

I appreciate that you have touched on this, Mike, and that others have touched on it as well. I also appreciate that there is no law or legal framework for you to operate within yet. However, so that people who are looking in can understand what option 2 is and what compromise is, can somebody from the police, the SSPCA or anyone else say whether they have a shared understanding of who does what under that option?

Our inspectors are currently authorised under the 2006 act, which applies where an animal is alive and “under the control of man”. That does not prevent us from investigating offences under the Wildlife and Countryside Act 1981. As I said previously, ultimately, with anything that we do—99 times out of 100, we work in conjunction with Police Scotland anyway—the report goes to the procurator fiscal, who makes the ultimate decision. That process will not change. Regardless of protocol and whether the report eventually goes to the procurator fiscal from Police Scotland or from the SSPCA, the procurator fiscal has the ultimate decision.

There have been instances of badger baiting—I have mentioned this before—when the police have suggested, because of the time and expertise that the SSPCA has, that we finalise the reports to the procurator fiscal. I have never heard any concern or complaints about that.

I will add only that we are talking about giving the SSPCA the powers that it currently does not have to collect and preserve evidence if an animal is dead when the SSPCA inspectors arrive on site. That seems to be a sensible extension of the current powers. That will be backed up with training on how to gather and preserve evidence. That is the extra step that the SSPCA will get.

We cannot lose sight of the huge importance and significance of the early stages of an investigation; we need to bear that in mind. An incident that appears to be relatively simple and in which items are seized could develop into a big police investigation and inquiry that involves numerous people and areas. Ultimately, the bottom line is that a case could fall or be taken no further because of a misstep at the very early stages of an investigation—for example, when evidence is seized and a locus is identified. I totally appreciate Mike Flynn’s point: Police Scotland might not always be able to respond immediately then and there, but we need to bear in mind the importance of the early stages of an investigation. We cannot talk about that as if it is not hugely important.

I concur with what David Lynn says but, to be fair, I note that the evidence that is required to meet a criminal standard is the same under domestic animal law and wildlife law: we have to have a locus and evidence of an accused. In the previous evidence session, I said that there are a lot of incidents of genuine wildlife crime in which animals have suffered illegally, but no accused can be found or it cannot be proved that there is an accused person, so the case never gets to the fiscal, because there is no evidence that an individual is responsible. The risk in gathering evidence at any stage is the same, regardless of what type of animal is involved.

David, do you want to come back in?

It comes down to the frequency with which we use the powers. Police officers are, I suggest, experts in identifying evidential opportunities. There might be other considerations, such as forensic considerations, that might not be immediately obvious to someone who does not have that investigative mind to the same extent. If the powers are afforded to the SSPCA, training and ensuring that a reasonable standard is met will be absolutely key.

I would like clarity on what will happen if the protocols cannot be agreed between Police Scotland and the SSPCA. In that circumstance, will the powers be extended to the SSPCA? I ask Iain Batho to answer, if he is the right person.

I think that he has more or less touched on that.

I know, but I want to be clear on it.

First and foremost, the protocols will primarily be between the police and the SSPCA and will determine how they work. Ultimately, our standards of evidence remain the same, regardless of who reports the evidence to us. Therefore, in general, as long as the standards of evidence are met, we do not really mind who gathers that evidence. However, our point of view is that there is an increased risk when offences are investigated by specialist reporting agencies rather than the police. It needs to be acknowledged that there is a difference between the police and specialist reporting agencies in respect of the level of training in, and experience of, criminal investigation, and that there can be risk in terms of how evidence is gathered, the admissibility of evidence and, ultimately, whether there is sufficient evidence for us to prosecute.

11:45  

There needs to be an acknowledgment of those risks, but our position is that, if certain safeguards are in place—our main safeguards—we would support a protocol between the SSPCA and the police. The main safeguard that we would primarily be in favour of is enhanced training for SSPCA inspectors—in particular, with a view to the standards that will be required in order for people to get approval from Scottish ministers to become inspectors. More generally, another safeguard would be some kind of increased accountability for the SSPCA in the form of additional formal procedures to enable independent scrutiny of the SSPCA. That would serve the purpose of enhancing public confidence and faith in the investigation of wildlife offences.

Jim Fairlie has a brief supplementary on that.

This question is probably more important to David Lynn and Kevin Kelly, but it is actually directed at Mike Flynn. If that sounds complicated, I hope that it will make sense. You were talking about the level of training and the inquisitive and inquiring mind that one needs to do such investigations. You clearly know what that looks and feels like, Mike, but—with all due respect—Iain was talking about a different level of inspection and gathering of evidence at the very early stages. What level of training would you get? Would it be provided through Police Scotland and, which is as important, how would you pay for it? I understand that all the funding that you get comes through charitable donations. Is that correct? If that is the case, how would you pay for that level of training?

Yes, the SSPCA is entirely a charity; we get no central Government or local government money. To my understanding, there has been no indication about a cost other than time. If there is a cost to pay to go on a training course, and we are to be trained not just by Police Scotland, that is something that we will have to look at. Until now, any training that we have required in gathering evidence would have come from Police Scotland or from the Crown Office, if that was appropriate.

I go back to my point—I will mention badger baiting again—that there is the same complexity. From my point of view, the big thing is that we give the police early notification of anything that we are doing. In that way, if it impinges on something else that the police are doing, they can inform us and it will come back.

That comes into play at the moment when we have enough evidence to report a mark to the fiscal and we have to raise a Scottish criminal records number to go with the case to the fiscal. As soon as we apply for that number, the police are alerted that we have an interest in the person. At that point, if it is a firearms issue or the police have a serious concern about anything, we will be contacted by the serious and organised crime squad—it happens not regularly, but occasionally—asking what our interest is in the person. We then pass on our information.

I am assuming—and I hope, because I was the individual who suggested it—that the proposed protocol will lead to the police being aware earlier of what we are doing and that, if there is concern that there could be a crossover into any other form of criminality, the police can address that aspect.

I hope that that makes sense to everybody. It makes sense to me.

Another thing that came to light during the review process was around the standards for evidence. What came from the Crown Office representative through that process was that, when issues have been raised about the standard of evidence gathering, whether by Police Scotland or the SSPCA, that has been taken on board and they have worked together to improve that. Again, in that partnership way, continuous improvement can be made. I do not imagine that that would be any different under scenario 2. If there was an issue about the standard of evidence, it would be addressed by the SSPCA in the same way as it has been addressed in the past or in the same way as issues are raised about Police Scotland evidence.

I want make a point with regard to Mike Flynn’s comment. He is absolutely right: through a protocol, we would ideally be looking for notification before, during, or immediately after the execution of the new powers, so that we could make an assessment, in relation to any work that we have on-going, about whether we want to drop everything and get involved or have a follow-up discussion at a meeting in the aftermath to decide what direction we will take with the case. Are we going to take on the case or is it something that the SSPCA could report to the fiscal? Communication would be key. Whether notification is given before, during or immediately after, we would be looking for it to be given in writing in quite a tight timescale.

I add our thanks to Professor Davies for conducting the review in a really rigorous way.

Regarding our expectations for training, if the policy comes to fruition, we hope—as is set out in paragraph 26 of Professor Davies’s review—that anybody who is involved in investigating wildlife crime will complete the wildlife crime officer two-day induction course, along with the investigator training course, which is a one-week training course that is repeated twice a year. There is also more advanced training for those who exercise additional powers, although I do not know whether that is relevant.

The salient point is that there are those two training courses, which ultimately underpin investigation of wildlife crime in Scotland. Our expectation is that, prior to being granted the additional powers, SSPCA inspectors would have to complete those requisite courses.

DS Lynn has summarised the deconfliction issue, with two organisations using similar powers. On the point about the notifications before, during or after, I would say that the “during or after” part represents a really good governance process. If someone has powers and takes every reasonable step to notify Police Scotland, that shows good governance.

On the “before” aspect, however, I would invite stakeholders to note that we previously had issues in England and Wales with pre-notifications and technically becoming agents of the police. Now is the right time to discuss that. If someone gets powers that are to be used reactively—with a pre-notification—we have to have an open discussion around where that sits, because it has to be deconflicted.

I will respond to that—Professor Davies can back me up on this—because it was I who suggested that we should call 101 before we even enter somewhere. Half the problem has been that, when we do call for police assistance, there has been nobody available immediately. As I said, it was my suggestion that we should phone 101 to say what we are doing and to report that we are going in somewhere. That message will go to the relevant bit of the mainframe police, and if police officers want to turn up at exactly the same time as us, that is brilliant. If they do not, at least the police know about the matter and have a contact number and can deal with the matter afterwards.

That approach works if there is anticipation of coming across certain evidence that falls under a wildlife offence. An issue arises when the SSPCA attends not anticipating finding such evidence. What happens when, in exercising their powers under the 2006 act in relation to an animal health and welfare issue, someone stumbles across wildlife crime evidence? Our concern is that, in that moment, everything is in place for evidence to be gathered lawfully and properly. We would be interested in how things would work in instances in which evidence is stumbled across.

From a practical working point of view, someone who is out doing their job could come across something for which they need the additional powers. With good governance, that would mean making the 101 call, and they would either get Police Scotland or they would not. If they did not get any interest, they could fall back on their new additional powers. That would provide the governance process.

At least that would give them assurance—

Absolutely.

It would give some clarity—to refer to a point that was made earlier—around the idea that we are just going out and trying to find stuff. We will have already informed the police about the land that we are going on to, and the reason why. About 99 times out of 100, that is because of a complaint that we have received from a member of the public. That is the information that we tend to work on.

I am going to jump between questions, so members should not panic if I appear to be missing out some questions. I just think that it is probably appropriate to go now to the question that Rhoda Grant was going to ask on resources and training, as it ties in with the conversation that we have just been having.

We have talked about training, but I wonder, Mike, whether you will need more trained officers to carry out the role. Do you see the role expanding with the new powers? What are the resourcing impacts of the proposed provisions? I know that you are closing offices in Caithness, in my region, but I do not suppose that we are the only ones having SSPCA offices closed. Do you have the resources to take on the work?

This is all based on the fact that we are already dealing with incidents. First, though, I should say that it is not our offices that are closing but our kennels in Balmore and Ayr. It is part of our community engagement model; we are talking about a totally separate arm of the Scottish SPCA, with a 10-year vision for us to improve our service to pet owners and the public.

On the inspectorate side, we are already dealing with the concerns of members of the public. This whole discussion came about because, although we can deal with the animal concerned, we are not allowed to do anything surrounding the immediate area where the animal has been found.

There is no plan to increase our resource; we are not going to put in an extra 20 inspectors, for example, and not all inspectors will end up doing the proper training. There is no additional resource, but there should also be no additional cost to us. In fact, the suggested approach might, in a way, save us money, because we will already be at the scene. At the moment, we have to involve the police, wait until they are available and then go back to the scene. Often we could have taken most of the steps on our first visit, but it is all part of the protocol. In short, the Scottish SPCA will not be putting in any additional resource, and we will not be employing more inspectors to deal with this slight extension to the 2006 act.

David Lynn has indicated that he wants to come in, then I will bring in Iain Batho.

Police Scotland runs two wildlife crime training courses: a two-day introductory course and a more advanced five-day investigators course. The decision whether SSPCA officers could sit in on those courses would need to be made at executive level; it is not something that I can commit to today. However, it would not be suitable for SSPCA staff to be present for, say, the inputs on covert policing methods and so on that are currently part of the our five-day course. It is therefore not a given that we could incorporate the SSPCA into our current training model, so we might need to devise a new system. Again, that would need executive support, so it might not be quite as straightforward as it might seem at the moment.

On resourcing, it is important to note that the role of a reporting agency extends well beyond the initial seizure of evidence. The agency that ultimately reports the case to us is responsible for that case moving forward through providing the evidence and the report to us. Our preference would be for any offences involving a wildlife charge to be reported by Police Scotland. If the bill were to allow the SSPCA to report wildlife offences to us, we would want assurances that it was effectively resourced to do the follow-up work after that point.

Our requirements would be for an agency to report cases to us timeously, submit all evidence to us effectively and properly and potentially make further inquiries throughout the life of the case as we require them. We would need assurances from the SSPCA that it was effectively resourced to do such on-going work if it were to report those additional offences to us.

Can I respond to Mr Batho’s point?

Yes.

Just look at the badger cases that we have put in: they have involved post mortems, veterinary statements and third-party statements. We are already doing all those things. If we were not, your department would be the first to tell us.

Professor Davies’s review refers to the number of wildlife crime incidents that are generally reported each day, citing Police Scotland data. Police Scotland reviews around 5,000 incidents daily, of which, on average, five are suspected to be wildlife crime incidents. That is just to give the committee a flavour of the demand that could be expected. We, too, would like reassurances that the SSPCA’s resources could handle that.

Thank you, Ross, for elevating me to professor. “Ms” will do, for the record. [Laughter.]

Ross Ewing has highlighted an important piece of work on public education. It is a function of the partnership for action against wildlife crime to explain what a wildlife crime actually is, so that the right cases can be reported, through the 101 phone line or other reporting measures, and then followed up. That helps to limit the scope of enquiries and, in turn, the amount of resource that is drawn into matters that are not wildlife crimes.

We move to a question from Karen Adam.

My question has been extensively answered through many of the supplementaries, but I want to drill into detail that we have not heard and ask what is meant by an “official investigation”. That has been a bit of a bone of contention and has raised concerns among stakeholders. At what point would an official investigation be launched? Concerns have arisen from the fact that a licence could be suspended at that point. What do we mean by “official investigation”?

Part of the protocol should state that only Police Scotland can notify NatureScot of information that could lead to its suspending a licence, whether that be a general licence or a licence under the grouse moor management legislation that is going through Parliament just now. It is key that only Police Scotland can trigger that process with NatureScot. Police Scotland does not think that such a responsibility should fall to the SSPCA. That would be very important, from our perspective.

12:00  

I would expect that what would be involved in that process would be that the information would be passed to the police to be assessed, and the police would advise NatureScot if it were relevant.

As for when an official investigation starts, it depends entirely on what you consider such an investigation to be. As I said in a previous session, as soon as someone makes contact with the police, an incident is raised. Some might consider that to be the commencement of an investigation, because there will have to be some sort of follow-up, while others might consider that an investigation starts when a statement from a complainer or a witness is taken. It is really quite subjective. There is no definitive answer as to when an official investigation starts.

That is where the problem lies. The legislation talks about “an official investigation” and, last week, the minister suggested that that would be launched on production of a crime number. There are still some grey areas in that respect.

Having the establishment of an official investigation as the basis for suspension of a licence is, in our view, completely inadequate—and potentially not legally sound, either. Last week, reference was made to the allocation of a crime reference number as the basis for suspending a licence. I will just quote from the Scottish Government's recording and counting rules, which were published in October 2023 and give a bit of insight into when a crime reference number is allocated. Page 8 of those rules says:

“In the main, incidents reported to the police as crimes will result in a corresponding crime report(s) being created.”

The inference that we have taken from that is that, genuinely, an allegation sometimes results in a crime number being allocated. That is really no different from where we started with regard to the establishment of an official investigation and, in our view, it does not provide sufficient legal safeguards to prospective licence holders that they could not be the subject of a vexatious allegation or something to that effect. Therefore, we would strongly and robustly go against the proposal floated by the minister last week—we do not think that it is adequate in any way, shape or form.

A number of issues are at play here. People have the right to report a crime, and people quite often report things when they are in conflict. As far as an investigation goes, I have always been really clear that it starts at the point when you suspect something. That is a really good point of measurement; when you suspect that a crime has happened, your investigation starts. There are lots of administrative activities that can take place before you reach that point of suspicion—and, indeed, they might well be the foundation for getting to that point. That is probably something for discussion as we look, potentially, at memorandums of understanding around all of this, but it should be really clear that investigations start at the point of suspicion of a crime. If you are just investigating somebody when you do not suspect them, that is not right.

This is something that has caused the committee quite a few concerns. Last week, the minister said:

“We are looking at a few options, but I am currently minded to make that when something has a crime number.”—[Official Report, Rural Affairs and Islands Committee, 1 November 2023; c 26.]

Can I have the views of Kevin Kelly and David Lynn on that?

If you ring the control room and report something, it will naturally get an incident number—that is, you get issued with an incident number. Let me give you a hypothetical scenario: you wake up after a night out without your mobile phone, so you ring up and say, “Somebody’s stolen my mobile phone,” so that you can claim on your insurance. There are no metrics in there such as, “Did you lose it when you were drunk?”, because that would be given a general incident number, or “Has somebody stolen it?”, because that would be given a crime number. Having a number does not always accurately reflect the report that sits behind it; that would be a process issue, and it would be something that, at the moment in policing, would probably not be remedied. However, the fact is that, at the point that you suspect a crime, it goes from being a general incident to a crime report.

It is hard to say what the best benchmark would be for an official investigation. I know that the minister said that it could be when a crime reference number was raised, which is certainly an option; however, there are issues with that. We could raise a crime report, but after some investigation it might be established that there was no crime. A crime report can be labelled “No crime”—that is the terminology that we use in the police—and at that point it is basically written off. There are complications in that respect, too.

It does not seem that there is an ideal time for declaring an official investigation. No matter what time is chosen, there will always be an element of dubiety around it.

I will take responses from Mike Flynn, Ross Ewing and then Susan Davies.

For us, as Kevin Kelly has said, an investigation begins when we have a suspicion. We turn up to a lot of jobs only to decide that there is nothing there and that no crime is involved. We do not issue crime numbers; the nearest we would get to that would be applying for a Scottish criminal record number because we had sufficient evidence to report to the procurator fiscal. That would be the closest that we would get—we do not have that crime classification.

I will ask this once again, just for clarity. When someone phones up and says that they have a suspicion that something has happened, does that trigger a crime number? If so, would that be sufficient for NatureScot to suspend or revoke a licence? That is the context in which we are having this discussion.

I am sorry to say that I have forgotten the order of speakers. Is it Kevin Kelly and then Ross Ewing? I see that it is Ross first.

More information is provided in the document that I have just quoted, which sets out when a crime number would be allocated. If someone is able to provide an approximate date—or date range—for the alleged offence and an approximate locus, or if a modus operandi can be established, that will generally result in a crime number being afforded.

Our point is that, with regard to the licensing schemes for grouse shooting, muirburn and certain wildlife traps, the Wildlife Management and Muirburn (Scotland) Bill provides that a licence can be “suspended or revoked” so long as the regulator is satisfied to the civil burden of proof—in other words, on the balance of probabilities—that a relevant offence has been committed.

Is that not sufficient to achieve the policy aim? We are talking about a reduction in the burden of proof required in order to suspend someone’s licence—we have moved away from the criminal burden of proof and are now talking about the civil burden of proof. NatureScot would have the capacity, as long as its staff were satisfied to the civil burden, to suspend or revoke someone’s licence, because a relevant individual would have committed a relevant crime. I really hope that that would be sufficient to address the policy aim. I do not foresee any circumstance in which a suspension would be warranted if the regulator were not satisfied that a relevant offence had been committed.

I just wanted to make that clear. I should also say that the document that I referred to might be quite instructive in the committee’s deliberations.

We did not look at that issue in detail as part of the review process; instead, we looked at the direction of travel. Different options will have to be explored as the protocols are put in place.

My opinion at the moment is that the committee does not have nearly enough information to decide whether we are supportive of the measure. From what we hear, there seems to be a lot of detail that should be part of the bill.

One question that jumps out for me is this: if an SSPCA officer were questioning a potential suspect, would that person have to be cautioned? If they were cautioned, would that become an official investigation that might lead to NatureScot suspending a licence? That is a concern.

There are different legal definitions of suspicion. There is the level of suspicion that leads to a police officer or someone from the SSPCA attending an address, but there is also a legal definition that relates to suspicion crystallising to the point where someone requires to be cautioned and advised of their rights. Any wording would have to be very detailed and highly prescriptive, because general terms such as “suspicion” have different meanings for different organisations. We should be cautious about that.

That brings us back to a previous point: surely SSPCA staff would need training to know when it would be appropriate to caution someone. We have heard from Mike Flynn that the police cannot always respond to wildlife crimes in a timely manner. How would that work in practice?

It is like the badger baiting case that we spoke about. If concerns are raised, you have a suspicion, you verify that what has been claimed is true and you can identify that to the accused, that is when you have to caution someone. As soon as we think all of that, the person has to be cautioned and given their rights. We already do that.

The legal definition of when suspicion crystallises is a common pitfall for any reporting agency. Plenty of cases are reported to us in which we consider that an accused person should have been cautioned before the point at which they made an admission, but such a risk can be mitigated with sufficient training to ensure that things are done properly.

I would like to bring in Ian Thomson from RSPB Scotland. We often hear about raptors being found on the roadside and so on. What is your involvement in that, and how could increased SSPCA powers lead to more prosecutions?

I have worked on the front line of wildlife in Scotland for 17 years. As an RSPB employee, I do not have any powers; I am just a member of the public—members of the public have been mentioned a few times in this session. I am a member of the public who occasionally receives reports from other members of the public and who occasionally comes across—or my team comes across—potential evidence of wildlife crime. My team and I regularly report such incidents to Police Scotland, under the current arrangements, if an animal is dead. If we received a report that an animal was suffering, our first port of call would be to the SSPCA, because our primary objective would be to have that animal treated or euthanised.

One of the key things that we have found over many years is the importance of partnership working. In our view, the SSPCA brings considerable added value to wildlife crime investigations, often because it has resources that Police Scotland does not necessarily have.

At the moment, in the whole of Scotland, there are probably about a dozen police officers who are experienced in investigating wildlife crime cases and who regularly do wildlife crime investigations and take them to the level of reporting them to the procurator fiscal. The increased powers that are set out in the bill will increase the possibility that wildlife criminals will be detected and potentially prosecuted, and that will have a significant deterrent value above and beyond everything else that has been said today.

I will add an alternative view. We have real concerns about the SSPCA’s ability to operate under a clear presumption of innocence, and that was alluded to in Susan Davies’s report. As part of our research before today’s session, I consulted 129 land managers to find out whether they had trust and confidence in the SSPCA being able to investigate wildlife crime in an impartial and unbiased way, and 97 per cent said no and only 1 per cent said yes. I want to highlight that concern about the presumption of innocence, which needs to be established in the protocols. It is really important that we have that, so I wanted to put that on the record.

Some of the conversations here are taking place as though the SSPCA, as an organisation, is coming to this completely new and has never dealt with evidence or reported cases to the procurator fiscal. I do not have a copy in front of me, but the Scottish Government’s annual wildlife crime report details the number of cases that the SSPCA has been involved in, and there are people around the table who are more qualified than I am to say how many cases are reported to the Crown Office every year. The SSPCA is not new at doing this. It deals with investigations into criminals, including some who commit wildlife offences. That is an important point to make.

Please feel free to correct me if anyone has a different take on this. From the minister’s evidence and from reading over the proposal, it looks as though the SSPCA is meant to supplement and assist Police Scotland. The overall aim is to provide evidence to Police Scotland for us to then take a case further. That is slightly different from what Ian Thomson was talking about. The SSPCA will not be dealing with something from start to finish. It is the intention that it will do the initial work and then pass evidence on to us. We rely on the integrity of that work for our further investigations. As I said earlier, that is where it becomes a bit more complicated, because any potential missteps at that point could have an impact on the wider police investigation.

Some recent investigations have started out as relatively minor incidents but have then picked up speed, grown hugely and turned into massive cases in which there have been numerous accused persons. I suppose that that is where it becomes slightly different.

The SSPCA will not be dealing with something from start to finish, so any misstep would have to be dealt with and could have wider implications for our investigations and inquiries that would follow.

The only other point that I will add is that the decision to prosecute sits not with the SSPCA or Police Scotland but with the Crown Office. It has ultimate control, on the basis of the standard and quality of the evidence that is presented.

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One thing to highlight is that, ultimately, if we are talking about the SSPCA’s impartiality and the presumption of innocence, that comes down to an assessment of its credibility and reliability. That assessment is ordinarily carried out at the end of a trial by the decision maker, whether that is a sheriff or a jury. Our test involves assessing whether there is sufficient evidence, and then we apply the public interest test. It was suggested in Susan Davies’s report that the impartiality test for the SSPCA might happen as part of our public interest assessment.

Every case comes down to its own facts and circumstances, but I suggest that it is unlikely that we would not take forward proceedings on a case because it had been investigated by the SSPCA and there were wider concerns about its impartiality. Generally, the case would get through our public interest test, and the matter would then, ultimately, be for the decision maker at a trial. There is a reasonable anticipation that the defence in a case would robustly question SSPCA officers on that point, which could affect the outcome of the case.

This is probably an appropriate point at which to bring in Rachael Hamilton, who has further questions on the protocol that needs to exist between the SSPCA and Police Scotland.

First, I just want to say that we will not see that protocol as part of the bill process—I think that everybody understands that—and I have concerns about the extension of the SSPCA’s powers if the provisions in the bill are passed. Will the SSPCA be able to use those extended powers without a protocol? We want to understand what will be in the protocol and what will be the agreed standards. That has been touched on slightly. Who is the best person to speak to that?

Susan Davies might be the most appropriate person to kick off on that.

In the report, we set out that issues relating to training, the standard of evidence that has to be gathered and the trigger points for notifying the police, as well as all the other things that have been touched on this morning, would need to be picked up in the protocol. The investigation power that would be extended to the SSPCA, if it was granted, would be given to an individual inspector and there would be a review process, so if someone was found not to be complying with the protocol, they could lose that power. It is not an organisational consent as such; it is more for individuals. That needs to be clearly set out as another safeguard in the process.

If the protocol covered training, including some of the training that would need to be done by the SSPCA to take an investigation further, what would be the unintended consequences if the SSPCA was given powers to investigate without the police? Currently, crucial aspects of an investigation are out of the SSPCA’s reach, and Police Scotland is slightly concerned about the change. If a protocol was set, would that be covered by the review of the individual, if they were overreaching or were not carrying out their functions to the standard that was expected? What would be the unintended consequences of that going undetected?

I am not sure that it would go undetected. Ultimately, SSPCA inspectors will have to follow a set of protocols, gather and preserve evidence in a certain way and, through the agreement with the police, have a discussion about how that evidence needs to be presented and handed over. As has been alluded to, there will have to be timescales around that.

There is already exceptionally good partnership working between Police Scotland, the SSPCA and others within the wider partnership for wildlife crime. These arrangements will be an extension of protocols that are already in place in relation to the powers that Mike Flynn and his team already have under the Animal Health and Welfare (Scotland) Act 2006.

I do not think that there should be a huge number of unintended consequences. There is the safeguard of giving an individual the right to follow up on the evidence and the ability to withdraw it if issues are raised by Police Scotland. That is considered under the protocol. Given that those safeguards will be in place, there should not be too many unintended consequences.

Police Scotland highlighted some concerns in previous evidence. Do you have any concerns about how robust the protocol will be and how standards and training will be covered by your partnership agreement?

Ultimately, we will not be able to agree to a protocol unless we feel that it is suitable and that it meets its purpose. As for whether we would be concerned about the protocol, we could not really agree to a protocol unless everyone was happy with its content.

As I have said, the key aspect involves basic communication, so notification will be key for Police Scotland. I know that that might not always be possible, because the SSPCA will already be present on the land under its existing powers, but we will want to know before, during or immediately after the powers are exercised, so that we can make decisions based on where inquiries and the investigation will go, what needs to be done and what has been done. That will be key.

That will probably be the key part of the protocol as far as I am concerned. I know that all the other things are also crucial, but if we are sighted on what the SSPCA is doing, we can then make decisions. In theory, with its increased powers, the SSPCA could be on the land under its existing powers and officers could see wildlife crime—as specified in the list, under the proposals—seize evidence, deal with the matter entirely and report it to the fiscal without any police involvement whatever. That would obviously be minus an official police suspect interview. In theory, however, the SSPCA could do that.

As I said, communication is key, and notification is really important, because there could be unintended consequences. I do not think that the purpose of the proposal is to afford the SSPCA the power to run a full investigation from start to finish, but that power will potentially be given if the agreement between us is not very clear.

I will put this question to Susan Davies, Mike Flynn and David Lynn—and it is a very straightforward one. Susan, you just said that there is a very good working relationship between Police Scotland and the SSPCA at the moment. What is the need for the extra powers?

The need for the extra powers is simply that, if the SSPCA arrives on the land and the animal concerned is dead, it has no powers to act and to gather that evidence. If Police Scotland cannot get there quickly, that evidence could be lost. The bill gives the SSPCA the power to act on the evidence if the animal is dead.

Mike, do you agree that that is the purpose of the power?

Yes. That is the essence of it. At present, we can go to the location and contact Police Scotland but if, for whatever reason, nobody is available, we have to walk away and the evidence can get damaged by the weather or can disappear or whatever. The proposed power represents a failsafe to cover that gap. There is no issue between the Scottish SPCA and the police, with whom we work on a daily basis on a range of things.

The relationship between the police and the SSPCA is generally good. We have issues that any two agencies working together will have. At times, communication might not be great and things can fall by the wayside. Generally speaking, however, the relationship is good.

Would you say that any increase in powers would have to be very limited?

I believe so, yes. Police Scotland is generally opposed to the increase in powers, but, if it is going to happen at all, it should apply just to those initial stages. That would satisfy the concerns that have been highlighted about seizing evidence then and there and not having to wait for the police. As I said earlier, the proposed increase in powers could lead to the unintended consequence of affording the SSPCA far more power than might have been intended.

So, we have nothing in front of us at all; we have only a direction of travel.

Susan, should there be far more detail in the bill on the additional powers, the requirements and the safeguards that we might need to put in place? Should there be independent scrutiny of the SSPCA, given the hugely increased potential impact of even an initiation of an investigation if it results in the loss of a licence or whatever? Should there be a lot more in the bill rather than just guidance or a protocol that is not even in secondary legislation? Should that detail be in the bill itself?

I do not think that that is required to be in the bill. Having the code of practice and the working protocols is sufficient to provide the safeguards that are required. It comes back to the question that you posed to the minister the other day on whether the additional powers should be enacted before the protocols are in place. There is already a good understanding and a good relationship between the partners. I do not see that it should take a huge amount of time and effort to agree the protocols and put them in place.

I will pick up on a point that we were a little bit concerned about when reading through Susan Davies’s review. Paragraph 30 makes reference to the fact that Police Scotland and the National Wildlife Crime Unit

“express concerns that extending powers to the SSPCA could result in wider crime investigations being disrupted”.

We are all committed to tackling wildlife crime and getting it to the absolute lowest levels possible. When we were reading that paragraph and the evidence that the police submitted to the committee, we thought that it was pretty excoriating. Our worry is that we could compromise some wildlife crime investigations if, as we have set out, the protocol is not watertight and ironed out. We would emphasise the importance of getting that protocol right.

Early and effective communication could negate that risk. If we are notified of the exercising of those additional powers at a very early stage, that could negate any damage to any wider police investigation.

The report, which I have looked at, predates my time at the NWCU. I do not necessarily share the views of the NWCU at that time and would like to move forward and look at working in partnership. I go back to my opening comment about governance and managing the risk around it. I see the issue as being policing’s appetite for risk. We need to get this right through what is in the MOU and what the pathway to delivery looks like. Will that be trialable to work? Without that, there is too much risk to policing.

There is one piece of information that I want to get on the record. The response that I got from Mike Flynn was not quite clear, so I will read out my question to make sure that I am being clear. If the SSPCA responded to a call about a live animal caught in a trap, under its powers under the 2006 act, but the animal died before the inspector arrived at the scene, would the current proposals enable an approved inspector then to enter land to gather evidence of a suspected wildlife crime?

Are you asking me whether that might potentially happen?

Would the new powers, as you understand them, allow you to enter the land to gather evidence?

I am not trying to be obtuse, but we would not know. As I explained in the example that I gave in the previous evidence session, the animal died while we were standing there.

Yes, that is the point. Given the direction of travel that the legislation is taking, if you were to get a call about a live animal but, when you arrived, it was dead, would the power allow you to undertake collection of evidence?

I would say yes, in that instance. If somebody phoned us up saying that there was a dead raptor up a hill that had been there for six months—

No, I am talking about when an animal is alive.

—we would tell them to phone Police Scotland.

Okay. Susan Davies, is that your understanding?

My understanding is that, if the SSPCA gets a call about a live animal and it arrives and that animal is dead, it is very limited in what it can do. The power would give it more scope to investigate.

That is helpful.

I have a question for David Lynn. We are in new territory with the new protocol. If somebody had their licence suspended on the basis of an investigation that had been carried out through the agreed protocol, which we have not seen, would that individual have the ability to appeal against the process that had been carried out if they believed that the protocol had not been followed?

It is hard to say without a protocol being in place at the moment and without knowing what the legal obligations are. If it is not going to be in the bill, I imagine that it would be quite difficult to raise any issues with it. If the detail in the protocol is not contained in the bill, I do not know how you could take issue with what would be a standard operating procedure between two agencies. The honest answer is that I do not know.

We will have very brief last comments from Susan Davies, Ross Ewing and Ian Thomson.

In relation to that last point, you are talking about a licence that NatureScot would be issuing. In that situation, it would have to go back to NatureScot for review. I cannot speak for NatureScot, but I have worked for it in the past and there is a process that it would go through to look at any evidence that was presented for revoking a licence, or if something happened that suggested that that had been the wrong course of action. However, that would be a NatureScot issue and it would be for NatureScot to have internal procedures in place to cover that.

I will make a small correction, because the right to appeal in the context of the grouse shoot licence is actually to the sheriff court. It would be the sheriff court that would make the determination on any appeal that was made, and it would be looking at everything on fact and law. That would be the mechanism through which it would happen.

We would reiterate that the right to appeal is comprehensively undermined if the regulator does not need to be satisfied that a relevant offence has been committed. You would have no evidence that you could throw back if you wanted to go down the route of an appeal, if that is the low baseline—that decisions could be made without proof—that is essentially being set for the mechanism for licence suspension.

I will bring in Ian Thomson.

Susan Davies made the point that I was going to make.

Could we write to the minister on that specific point? There is still some dubiety in my mind about how that would work.

There are still some questions around what constitutes an official investigation in the bill at the moment and what involvement NatureScot would have in deciding whether a crime had been committed. We can certainly write for a little bit more clarification.

That was a productive and interesting session, which will help us in our deliberations further down the line. Thank you all for your time today. That concludes our business for today, and I formally close the meeting.

Meeting closed at 12:26.