204.Section 37 modifies the 1996 Act to add an offence (and associated defence) to section 17, expand the statutory rights of occupiers of agricultural land or woodland and grazings committees to prevent damage by deer on the land or grazings. It does this by substituting existing section 26 of the 1996 Act with three new sections (sections 26, 26ZA and 26ZB). It also adjusts section 5A of the 1996 Act to include guidance about the exercise of these rights as a topic that may be included in the Code of Practice on Deer Management.
205.Section 37(3) adds a new offence to section 17 of the 1996 Act. It relates to the situation where a person knowingly causes or permits another person to take or kill a deer on any land without either the permission of the person having the right take or kill the deer or in circumstances to which sections 26(1) or 26ZA(1) do not apply (i.e. where it is necessary to take or kill deer to prevent damage or injury). This offence addresses the situation where a person (e.g. a tenant or third party) induces or persuades another to kill a deer without the appropriate permission to do so from the person who has the rights to the deer, typically the land owner or a person who has sporting rights and there is no basis under section 26 or section 26ZA for the taking or killing (i.e. the occupier of the land or the grazings committee do not have reasonable grounds to believe that the taking or killing of the deer is necessary to prevent damage or injury (as set out in section 26(1) and section 26ZA(1)). The penalty for the offence is contained in schedule 3 (as added by subsection (7)).
206.A new defence is also added for a person who has killed a deer without permission or the circumstances in section 26(1) or 26ZA(1) but reasonably believed that they did have such permission or that such circumstances did apply. This protects people such as third-party contractors or employees who are asked to kill deer from being found guilty of an offence, provided they reasonably believed that the necessary permission was in place or the relevant circumstances applied.
207.The previous section 26 of the 1996 Act (right of occupier in respect of deer causing damage to crops etc. on certain ground) provided that it was lawful for the occupier of the land, or certain persons duly authorised by the occupier, to take or kill and to sell or otherwise dispose of any deer found on arable land, improved permanent pasture (excluding moorland), land regenerated for agriculture and enclosed woodland where the occupier reasonably believed deer are damaging crops, pasture or foodstuffs on the agricultural land or to the woodland. It also made provision to enable grazings committees to take equivalent action in relation to enclosed land (other than moorland) which is part of a common grazing.
208.New section 26 of the 1996 Act (as inserted by section 37 of the Act) broadly replicates the effect of its predecessor but with three key changes.
209.The first key change is to broaden the kind of land that the occupier or a person mentioned in subsection (4) authorised in writing by the occupier, will be permitted to take or kill, and sell or otherwise dispose of, any deer found on any part of their land or woodland. The previous section 26 applied only to the specified areas of land (arable land, improved permanent pasture (other than moorland) and land which has been regenerated so as to be able to make a significant contribution to the productivity of a holding which forms part of that agricultural land, or enclosed woodland). New section 26 removes this distinction between land types, allowing the occupier to shoot deer on any type of land (including moorland or unenclosed woodland) as long as the reasonable grounds for believing that taking or killing the deer is necessary.
210.The second key change relates to those reasonable grounds. Those grounds are expanded so as to not only cover damage to agricultural production (including any crops and foodstuffs) or to the woodland, but also damage (whether directly or indirectly) to the natural heritage or environment generally and injury to livestock kept on the land (including overgrazing of pastures and competing for feeding).
211.The third key change is that new section 26 no longer concerns the right of grazings committees. This is instead dealt with separately under new section 26ZA. New section 26ZA broadly replicates new section 26 as respects a person authorised in writing by a grazings committee and approved in writing by SNH. The authorised person will therefore be permitted to take or kill, and sell or otherwise dispose of, any deer found on the common grazing (including moorland etc.) if the committee has reasonable grounds to believe that the killing or taking is necessary to prevent damage to woodland forming part of the common grazings, but also damage to the natural heritage or environment generally and injury to livestock kept on the grazings.
212.Section 26ZB confers power on the Scottish Ministers to make further provision in connection with the exercise of rights under sections 26 and 26ZA. This is primarily concerned with ensuring that any such rights are exercised safely. This will enable, among other things, regulations to be made which set out actions that require to be taken before exercising rights under section 26 or 26ZA. Different provision may be made for different circumstances, so, for example, where there is an immediate need to prevent damage to crops or livestock, the regulations might provide that no notice is required. However, if there is a plan to shoot deer in several days’ time, the regulations could require the occupier to notify the landowner in advance.
213.The regulations may include provision about the consequences of failing to comply with any requirement of the regulations. Depending on the requirement it may be that the right to kill or take deer is lost in respect of a particular event or the commission of an offence.
214.Before making any regulations under this section the Scottish Ministers must consult such person as they consider represent persons likely to be interested in or affected by the regulations. In practice, this will likely include organisations that represent farmers, agricultural tenants, landowners, crofters and country sports.
The Act Authorisations for particular activities Section 37 – Right of occupier or grazings committee to prevent damage by deer