The Act – Commentary on Sections Part 2 – Wildlife under the 1981 Act Exceptions to s.11G - inserted section 11H of the 1981 Act
60.Subsection (1) of section 11H provides that it is not an offence to take or kill an animal where a person has a legal right to do so, or permission from the person with such a right. . The Act does however not confer or alter any legal right to kill or take an animal, or to give permission to do so. In broad terms, however, a legal right to kill or take an animal on land arises from ownership or lawful occupation of the land or of an interest in the land.
61.Subsection (2) of section 11H provides a defence to the offence of killing an animal listed in Schedule 6A where the accused can show that the animal in question was too seriously disabled to recover. That defence will only apply if the disability to the animal was not caused by an unlawful act of the accused.
62.Subsection (3) of section 11H provides that nothing in section 11G shall make unlawful anything done in pursuance of a requirement by the Scottish Ministers under section 39 of the Agriculture (Scotland) Act 1948 (damage to crops etc.), or under or in pursuance of an order under the Animal Health Act 1981 (control of animal disease).