Commentary on Sections Wildlife offences: penalties Section 13 – Fixed penalty notices for certain wildlife offences
96.This section confers a power on the Scottish Ministers to make provision by regulations for, or in connection with, the issuing of fixed penalty notices (FPNs) in relation to certain offences relating to wildlife (subsection (1)). For the purposes of this new section, an FPN is a notice specifying a sum of money that may or must be paid as an alternative to prosecution for an offence.
97.The offences in relation to which FPNs may be issued must be specified in or by virtue of the regulations (subsection (2)). The offences which may be specified are offences under: Part 1 of the Wildlife and Countryside Act 1981, the Protection of Badgers Act 1992, the Deer (Scotland) Act 1996, or under another enactment that the Scottish Ministers consider relates to wildlife, including under any such future enactment (subsection (3)(a)). But the power may be used only to make provision for FPNs in relation to any such offence if the maximum penalty on conviction does not exceed imprisonment for a term of 6 months or a fine of level 5 of the standard scale, or both (subsection (3)(b)).
98.Subsection (4) makes it clear that the regulations may include provision for certain things. In particular, the power may be used to create offences relating to obstruction of a person who is exercising functions in relation to FPNs, or a to failure to provide information requested in relation to FPNs. But for any such offence, the maximum penalty that may be provided for is, on summary conviction, a fine not exceeding level 5 on the standard scale (subsections (4)(u) and (5)).
99.Although the power cannot be used to create new wildlife offences (except insofar as it may create offences relating to obstruction of a person or failure to provide information), it may be used in conjunction with a power to create offences under another enactment which the Scottish Ministers consider relates to wildlife and where the maximum penalties for those offences do not exceed imprisonment for a term of 6 months or a fine of level 5 on the standard scale, or both. Where the power is used to make regulations for the issuing of FPNs in relation to an offence, any FPN to be issued in pursuance of those regulations must identify the offence to which it relates and specify the reasonable particulars of the circumstances alleged to constitute the offence (subsection (6)). Any such FPN must also state: the date on which it is issued, the amount of the fixed penalty, the person to whom payment may be made, the payment period, the method of payment, the effect of paying the fixed penalty within the payment period and the consequences of not doing so, and details of any procedure for challenging or appealing the fixed penalty notice (subsection (7)).
100.By virtue of subsection (9), regulations under section 13 are subject to the affirmative procedure. Accordingly, any such regulations cannot be made unless a draft of the instrument containing them is laid before, and approved by resolution of, the Scottish Parliament.