215.Section 38 of the Act inserts provisions into the 1996 Act which deal with liability for taking or killing stray farmed deer. In particular, it introduces an offence of failing to report the taking or killing of a stray farmed deer and a defence to civil liability for taking or killing stray farmed deer.
216.The concept of a farmed deer is defined in the 1996 Act as deer of any species which are on agricultural land enclosed by a deer-proof barrier and are kept on that land by any person as livestock. However, once a farmed deer has strayed beyond the enclosure, it ceases to be a farmed deer. Section 38(6) inserts a definition of stray farmed deer into the 1996 Act as “a deer which was a farmed deer but which has escaped the agricultural land enclosed by a deer-proof barrier on which it was kept”. Once a deer is a stray farmed deer, it can be taken or killed in the same manner as a wild deer. A stray farmed deer may also be recaptured and returned to the enclosed agricultural land such that it once again becomes a farmed deer. Its status depends on whether it is on the enclosed agricultural land.
217.Section 38(2) inserts a new section 20A into the 1996 Act, creating an offence of failing to report the taking or killing of a stray farmed deer. The operation of section 20A can be illustrated by reference to someone who is exercising a legal right to take or kill deer. There are many circumstances in which a person may have the right to take or kill deer on land. Owners of land have a right to take and kill game (including deer) on their land and to lease their game rights to a sporting tenant. Although agricultural tenants are not generally permitted to take game on the land on which they are a tenant (unless their lease permits them to do so), they may do so under the circumstances described under section 26 of the 1996 Act. Section 26 gives an occupier the right to take or kill deer causing serious damage to crops, pasture, or human or animal foodstuffs on agricultural land or enclosed woodland. Others may also have statutory rights to take or kill deer on land, for example someone acting under section 25 (action intended to prevent suffering).
218.Section 20A will apply after someone has exercised these rights, or otherwise takes or wilfully kills a deer (subsection (1)(a)), which is in fact a stray farmed deer (subsection (1)(b)). However, section 20A does not apply if the deer has been taken or killed under section 25A (permitting taking or killing deer to prevent or stop danger to human safety) of the 1996 Act (subsection (1)(c)). This is because section 25A has its own, different reporting requirement so an additional report under section 20A is not necessary. Where the section applies, the person must report the taking or killing of the deer (and the location of any carcase) to the Police Service of Scotland within 5 working days of the deer being taken or killed (section 20A(2)). If the person does not comply with subsection (2), they are liable for a fine of level 2 on the standard scale for each stray farmed deer they fail to report (section 38(4)). However, it is a defence under subsection (3) for the person to show that they did not know, and could not reasonably have known, that the deer was a stray farmed deer. For example, there was no tag or marking on the deer. Or if the deer escapes and is found dead later, the person may be able to say that they were unable to find the carcase to examine it, but had no reason to believe it was a farmed deer.
219.Section 38(3) inserts a new section 26A, which introduces a defence to civil proceedings for killing or injuring a stray farmed deer. To take advantage of the defence, a person must show that (a) they were exercising a legal right to take or kill deer, and (b) they complied with their duty under section 20A to report the killing or taking of the stray farmed deer and (if appropriate) the location of the carcase to the Police Service of Scotland or their duty under section 25A in the case of killing done in emergencies.
220.Subsections (5) and (6) of section 38 adjust definitions related to farmed deer and stray farmed deer. The definition of “farmed deer” is moved from section 43 to section 45 for ease of reference since it now applies in a wider number of sections. The reference to section 43(4) in section 43(1) is also removed, as it is being repealed. Finally, a new definition of “stray farmed deer” is inserted into section 45.
The Act Stray farmed deer Section 38 – Liability for taking or killing stray farmed deer