It has long been a criminal offence to unlawfully kill, trap or injure wild birds in Scotland. This was established under the Wildlife and Countryside Act 1981 and restated in the Wildlife and Natural Environment (Scotland) Act 2011.
Perhaps more significantly, the 2011 act introduced the concept of vicarious criminal liability, meaning that, in certain circumstances, landowners can be held responsible for the actions of employees, agents, contractors or tenants who commit a relevant offence. Relevant offences include killing, injuring or taking any wild bird; damaging or destroying nests; taking or destroying a wild bird’s egg; and setting traps or poison to kill wild birds.
A number of convictions have taken place. However, a defence is open to landowners who can show that they did not know that the offence was being committed and that they took all reasonable steps and exercised all due diligence to prevent the offence.
The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act 2020 came into force on 21 July 2020. It increased the sentences for the most serious wildlife crimes, such as those involving the injuring or the unlicensed killing or taking of wild birds, to five years’ imprisonment and/or an unlimited fine. For certain lesser offences, such as keeping unregistered and unmarked wild birds, or keeping birds in cages of insufficient size, the maximum penalty increased to a £40,000 fine and/or imprisonment for one year.
These penalties apply to the person committing the offence and to the person found to be vicariously liable.
Landowners must take a proactive and preventative approach, ensuring they undertake all reasonable steps and exercise all due diligence to avoid potential vicarious liability and the more stringent penalties.