The Act Licensing of land for killing and taking of certain birds Section 9—Killing and taking of certain birds permitted only on land with section 16AA licence
53.This section creates a licensing scheme for land on which the killing and taking of certain birds is to take place. This is achieved through the amendment of the 1981 Act.
54.Under section 1 of the 1981 Act, it is an offence to (among other things) kill, injure or take any wild bird(6). Section 2 of the 1981 Act contains exceptions to this offence. At present, this allows the killing or taking of a bird (or the injuring of the bird in an attempt to kill it) if that bird is included in Part I of schedule 2 and if the killing, taking or injuring is done outside of the close season of that bird. Section 2(4) gives the periods of the year that constitutes the close season for certain types of birds. The killing or taking a wild bird includes the act of restraining it in order to kill or take it.
55.Section 9(2) amends section 2 of the 1981 Act to make it clear that no offence is committed under that section if the bird that was killed, injured or taken was also included in Part 1B of Schedule 2 and a licence under section 16AA was held in respect of the land on which the bird was killed, injured or taken. The net effect of the amendment is that the bird must be included in both Part I and 1B of schedule 2. It is a defence if the person who killed, injured or took such a bird had a reasonable belief that an unsuspended section 16AA licence was held in respect of the land. The existing penalty for an offence under section 1 applies:
	on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding £40,000 (or both),
	on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).
56.With respect to the requirement to have a licence under section 16AA, no offence is committed if a bird included in Part 1B of Schedule 2 is killed or taken (or injured in an attempt to do so) outside of its close season if a bird of prey was used to kill or take the bird. However, this requires that the person who killed or took the bird had the legal right, or permission, to do so. If a person injured the Part 1B bird in an attempt to kill it using a bird of prey and had to then subsequently kill the bird (in a manner that caused minimal possible suffering), the person would not have committed an offence. The net effect of this amendment would mean that falconers would not need to have a section 16AA licence or to check that one is in place, before they kill or take a bird using falconry. It would also mean that, if they had to shoot a Part 1B bird that was injured as a result of falconry in order to end its suffering, they would not need a section 16AA licence to do so.
57.Section 9(5) inserts Part 1B into Schedule 2. This covers the birds which may be taken or killed on land with a section 16AA licence. At present, new Part 1B only includes red grouse, however section 9(3) amends section 26 of the 1981 Act to enable the Scottish Ministers to make regulations to add or remove birds from Part 1B of Schedule 2. Birds included in Part 1B must also be included in Part I.