A Licence to (trap and) Kill? Important court decision on the control of wild birds in Scotland

Tackling wildlife crime is a significant problem in parts of Scotland and the Wildlife and Countryside Act 1981 (the 1981 Act) makes it an offence for persons to kill, injure or trap wild birds, unless permitted by a ‘General Licence’ or a ‘Specific Licence’.

General Licences permit the occupier of land to kill or trap limited number of species as a means of pest control, in a limited number of circumstances. Where a General Licence does not cover the pest control action required by the occupier, a Specific Licence can be applied for. Both types of licence are operated by Scottish Natural Heritage (SNH).

The Framework for Implementation of General Licence Restrictions (the Framework) was introduced in October 2014 to allow SNH the right to exclude the use of the General Licences where it has reason to believe that wild birds are taken or killed other than in accordance with the General Licences.

Wildlife crime is a current and pressing issue and the difficulties in identifying perpetrators are well known; thus, the Framework is an important tool within the SNH arsenal, in fulfilling part of its function for the protection of wild birds.

New Framework challenged in ‘test case’

Following implementation of the Framework, SNH was provided with certain information regarding possible wildlife crimes against birds having been committed on land belonging to Raeshaw Farms and A.I. Walgate & Son (the Petitioners).

Having followed the procedures set out in the Framework, SNH took the decision to restrict the General Licences otherwise available to the Petitioners in respect of activities on its land. The decision was dated 4 November 2015 (the Original Restriction) and was (unsuccessfully) appealed by the Petitioners, resulting in a second decision on 1 February 2016 (the Appeal Decision).

In around April 2016, the Petitioners judicially reviewed the Original Restriction and the Appeal Decision (“the decisions”). The decisions were the first made by SNH under the new Framework, thus the judicial review proceedings were very much “test cases”; the outcome of which would determine the future of the Framework.

It was open to the Petitioners to apply for specific licences which, during the course of the Judicial Review process, representatives of the Petitioners successfully applied for.

Arguments and outcome – no expectation of a General Licence

The Petitioners raised questions of SNH’s compliance with the Framework, compliance with the 1981 Act, procedural unfairness and whether they have acted ultra vires; all of which SNH was successful in defeating.

Among other arguments advanced, SNH argued that it was necessary to ensure that no party considered that they had some form of legitimate expectation in all circumstances to a General Licence. Whilst the Framework introduced a “light touch” approach, SNH considered its decisions necessary to ensure that a balance was struck between light touch regulation and the protection against wildlife crime.

A.I. Walgate & Son had partial success in overturning part of SNH’s decision in respect of their land. They established there was no adequate justification for the restriction on their General Licence applicable to the low ground portion of their land. The restriction on their General Licence was held, therefore, only justified in applying the higher areas which is next to and keepered by Raeshaw Farms.

What are the implications of this case?

The cases were both factually and legally complex, relating to a long history of reported evidence of raptor persecution dating back to 2009.

The outcome of the cases would have had wider ranging consequences on SNH, had the Petitioners been successful. The Court’s decision supports SNH’s approach and application of the Framework, ensuring that it can operate the licensing system as it sees fit in accordance with the circumstances. This decision is entirely consistent with the underlying legislative scheme and purpose to protect wildlife.

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• Laura McCorquodale   |   0131 247 2535