Detailed Provisions Part 1: Hunting a wild mammal using a dog Section 1: Offence of hunting a wild mammal using a dog
5.Subsection (1) provides that a person commits an offence if the person hunts a wild mammal using a dog.
6.Subsection (3) provides further detail on what is included in the definition of hunting. It expressly includes searching for a wild mammal (so that hunting does not require that the wild mammal has been identified) and coursing (the practice of using a dog to hunt a wild mammal by sight). However this is an inclusive definition and other types of conduct which constitute hunting a wild mammal (such as chasing, pursuing, stalking or flushing it from cover) will also be caught by the offence. These are not specified in the definition because there may be circumstances in which they do not constitute hunting. For example, the situation where a dog runs off by itself in pursuit of a wild mammal whilst being walked would not be caught by the offence because in that instance the owner is not hunting a wild mammal using the dog. The word “hunting” carries with it a requirement of intentional conduct.
7.Subsection (3) also defines “wild mammal” for the purposes of the Act. A wild mammal is one which is living in a wild state, is of a species recognised as living in a wild state in the British Islands, or which has been deliberately released from human control. The definition of British Islands in the Interpretation Act 1978 includes Great Britain and Northern Ireland, the Channel Islands and the Isle of Man.
8.“Living in a wild state” requires that the animal has adapted to living in the wild. Therefore, a non-native mammal which escapes from captivity, for example a lion which has escaped from a zoo, will not be living in a wild state and so will not be a wild mammal and will not fall within the ambit of the Act. Such animals will be protected animals under section 17(1)(c) of the Animal Health and Welfare (Scotland) Act 2006, which provides that an animal is a protected animal if it is not living in a wild state, and will therefore benefit from the provisions of that Act which set out offences relating to protected animals (for example, causing a protected animal unnecessary suffering is an offence under section 19 of that Act).
9.Mammals which are of a species commonly recognised as living in a wild state in the British Islands would include native animals such as foxes, deer, hares, rabbits, red squirrels, wildcats and pine marten, as well as non-native animals such as grey squirrels and mink. These animals will fall within the ambit of the Act whether or not they are actually living in a wild state. However, some such species are commonly kept under human control, such as pet rabbits or farmed deer, and these would not normally be regarded as wild mammals. Paragraph (b)(iii) therefore excludes animals which are living under human control. Section 17(1)(b) of the Animal Health and Welfare (Scotland) Act 2006, which provides that an animal is a protected animal if it is living under the control of man on a permanent or temporary basis, will mean that these are protected animals under that Act and will therefore benefit from the provisions of that Act which set out offences relating to protected animals (for example, causing a protected animal unnecessary suffering is an offence under section 19 of that Act).
10.Mammals which have been deliberately released from human control are also to be treated as wild mammals, whatever their species. This is to prevent mammals being released in order to be hunted.
11.In some instances, an animal may be both a wild mammal under the Act and a protected animal under section 17 of the Animal Health and Welfare (Scotland) Act 2006. For example, a guinea pig which was deliberately released from human control would be both a wild mammal under subsection (3)(a)(iii) and a protected animal under section 17(1)(a) (which provides that an animal is a protected animal if it is of a kind commonly domesticated in the British Islands).
12.Subsection (3)(b) excludes rats and mice from the definition of wild mammal. This means that it is lawful to hunt rats and mice using a dog.
13.The 2002 Act excluded rabbits and all rodents from the definition of wild mammal. Rabbits and rodents other than rats and mice will now fall within the definition of wild mammal, meaning it is an offence to hunt them using a dog unless one of the exceptions in the Act applies.
14.Subsection (4) provides further detail as to when a person is to be treated as “using a dog” for the purposes of the Act. For example, if a person participates in illegal fox hunting which involves the use of dogs which are being controlled by someone else who has responsibility for the dogs, that person will still be treated as using a dog and will therefore commit an offence under subsection (1).
15.Sections 3, 5, 6, 7, 8 and 9 provide for some limited circumstances in which conduct which would otherwise be caught by the offence is permitted: by virtue of section 1(1)(b), an offence will not be committed if any of those exceptions apply. If none of the exceptions apply, then searching for, stalking or flushing a wild mammal from cover or below ground using a dog will be an offence. Other conduct such as using a dog to chase and kill a wild mammal does not fall within any of the exceptions and can never be lawful.
16.Subsection (2) sets out the penalties for an offence under subsection (1).