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The Earl of Lindsay moved Amendments Nos. 31 and 32:

Page 6, line 12, leave out ("the carcases of").
Page 6, line 13, after ("deer") insert ("taken or").

The noble Earl said: My Lords, I spoke to these amendments when moving Amendment No. 22. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 7 [Close seasons]:

Lord Pearson of Rannoch moved Amendment No. 33:

Page 6, line 41, after ("person") insert ("knowingly").

The noble Lord said: My Lords, I am embarrassed to inform the House that my noble friend Lord Glenarthur has just pointed out to me that perhaps this amendment is superfluous. It is designed to exonerate anyone who shoots a deer of the wrong sex for the time of year in question--in other words, out of season--from the penalties which are otherwise imposed. This, unfortunately, can be possible, usually by shooting a young stag without horns when one is trying to shoot hinds. I am told, although it is not within my experience, that people have even been known to shoot a hind when in fact they were supposed to be aiming at a stag. I hope that is an extremely rare event all over Scotland, but I believe it has been known. That is what this amendment was designed to do. But if my noble friend the Minister is going to tell me that it is irrelevant because the word "wilfully" exists in paragraph (b) of this clause, I accept that and apologise for wasting the time of the House.

Lord Glenarthur: My Lords, I do not think that I can add to my noble friend's remarks, except to say that there is a real problem. Unfortunately, this sort of thing can happen. I have certainly known of it happening. However, I see that in subsection (1)(b) one has to,

Therefore, if any accidental contravention took place, presumably that would be a reasonable excuse.

The Earl of Lindsay: My Lords, I am familiar with the circumstances that both noble Lords describe. Indeed, over the years I have witnessed the mistakes that can happen on the hills, especially in poor visibility.

The problem I have with this amendment is more basic than that which both noble Lords mentioned. It is that the amendment goes against the basic principle of the criminal law; namely, that a person should be assumed to know what the law is. We cannot provide someone with a defence that they are ignorant of the law.

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One hopes, in this day and age, that enforcement of the law is proportionate to the circumstances in which the enforcer finds the person who may have transgressed. Therefore, I hope that my noble friend is not too worried at the possible consequences of the circumstances he describes.

Lord Pearson of Rannoch: My Lords, I accept what my noble friend has said, but I disagree with him on one point. I do not think that one can rely on law enforcement and other agencies not, in some cases, to exaggerate the law. If one were the owner of an abattoir one might not feel exactly like that as regards the way in which the meat hygiene regulations have been enforced. However, that is not the purpose of this amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

The Earl of Lindsay moved Amendment No. 34:

After Clause 7, insert the following new clause--

Illegal possession of deer

(". For section 25 of the principal Act (unlawful possession of deer and firearms) there shall be substituted the following sections--
"Illegal possession of deer.
25.--(1) A person who is in possession of a deer or of firearms or ammunition in circumstances which make it reasonable to infer that--
(a) he obtained the deer by committing a relevant offence; or
(b) he had used the firearm or ammunition for the purpose of committing a relevant offence; or
(c) he knew that--
(i) a relevant offence had been committed in relation to the deer; or
(ii) the firearm or ammunition had been used for the purpose of committing a relevant offence,
shall be guilty of an offence under this section and liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a period not exceeding 3 months or both, and to forfeiture of any deer found in his possession.
(2) It shall be a defence in proceedings for an offence under this section for the accused to show that no relevant offence had been committed, or that he had no reason to believe that such an offence had been committed.
(3) For the purposes of this section a "relevant offence" is an offence under any of sections 21, 22, 23, 23A or 24 of this Act.
(4) A person shall not be guilty of an offence under this section in respect of anything done in good faith, including conduct which would otherwise constitute a relevant offence in relation to any deer, where what is done is done for purposes connected with the prevention or detection of crime or the investigation or treatment of disease.
(5) It shall be lawful to convict a person charged under this section on the evidence of one witness.
Power of court in trial in one offence to convict of another.
25AA. If, upon a trial for an offence under any of sections 21, 22, 23, 23A, 24 or 25 of this Act, or any rule of law relating to reset, the court is not satisfied that the accused is guilty of the offence charged but is guilty of another of those offences, it may acquit him of the offence charged but find him guilty of the other offence and he shall then be liable to the same punishment as for that other offence.".").

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The noble Earl said: My Lords, I appreciate many noble Lords are concerned about poaching and the illegal killing of deer. It is with that in mind that I am now proposing to bring forward a new offence to tighten the laws on poaching.

Section 25 of the 1959 Act, as it was originally understood, allowed action to be taken against a person found in the possession of deer, firearms or ammunition where there were reasonable grounds for suspecting that the deer had been taken or killed unlawfully. The section was intended to address the difficulty of catching poachers at work. As an exception to normal Scottish criminal law, only one witness is needed, recognising that a policeman or gamekeeper in remote areas is likely to be unaccompanied.

However, as a result of a ruling in the High Court appeal case in 1993 an accused can only be convicted under Section 25 if it is proved that he himself has committed the original poaching offence. This has consequently made it very difficult to obtain convictions under Section 25.

To restore the law to the position as it was understood before 1993, I am proposing to introduce a revised Section 25 into the 1959 Act. In addition, a new section, also based on the salmon legislation, would allow conviction where the court was not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence led that he is guilty of another offence relating to the illegal taking or killing of deer.

Amendments Nos. 51 and 71 are consequential amendments and therefore I beg to move Amendment No. 34.

On Question, amendment agreed to.

Clause 8 [Authorisation by Commission of certain acts]:

Lady Saltoun of Abernethy moved an Amendment No. 35:

Page 7, line 11, after ("authorise") insert ("any").

The noble Lady said: My Lords, I read carefully the noble Earl's answer to the various amendments that I moved at Committee stage. I note that his Amendments Nos. 42 and 44 make my Amendments Nos. 43 and 45 unnecessary. I prefer his amendments as they go further than mine. I was trying to compromise with the least I felt that might be acceptable to the Government, whereas the noble Earl is under no such constraints. Therefore I shall not move my amendments when the time comes.

Amendments Nos. 35, 36, 37, 46 and 47 would not affect the workload of the hardworking commission, which I fear I maligned disgracefully at Committee stage, when I accused them of working a five-day week from 9 to 5, which is not at all the case. I understand they work a seven-day week and often all the hours there are. The amendments would give the commission the option of authorising the owner, rather than the occupier, should it appear to them sensible to do so, or possibly at the occupier's suggestion. I think this might often be the best course where red deer are concerned and an experienced stalker is at hand. I appreciate that where roe deer are concerned the situation would often be very different. I still consider that it is quite inequitable that an owner, or

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his representative, having a prior interest in the deer, and a major interest in the land, should not be eligible for such an authorisation.

The noble Earl said at Committee stage that he was going to give the matter of owner versus occupier, with regard to out of season shooting, further consideration. I wonder if he has been able to do so and has reached any conclusions on the question. I beg to move.

The Earl of Lindsay: My Lords, in Committee a number of amendments were moved as regards this important area, and I am grateful to the noble Lady, Lady Saltoun of Abernethy, for coming back to the subject. I hope that in my explanation of the provisions of Section 6 of the 1959 Act, I demonstrated that, as far as this particular power is concerned, that point has already been addressed. The commission must first attempt to contact any person with the right to kill deer on the land from which the deer are coming and request that he take the necessary action. Only if such a request fails can the commission issue such an authorisation under the section. The commission must notify its intention to issue an authorisation to the owner of any land mentioned in it.

I undertook to consider how best to address the notification of the owner in the other cases of commission authorisation: night shooting, use of vehicles, and out of season shooting. As I explained previously, I am reluctant to create additional administrative burdens on the hard worked commission, however I accept the desirability of keeping the owner of the land informed.

To that end, I intend that the commission should revise its procedures on the granting of authorisations. Under the new procedures, the occupier will be required to notify the owner before applying for an authorisation. The occupier will certify on his application form that this has been done. This should achieve the desired end without creating additional work for the commission. It is not envisaged that this procedure will detract materially from the occupier's rights.

I undertook to consider all the other aspects of this subject, and noble Lords will appreciate that the Bill as drafted allows authorisations for these activities to be issued to any fit and competent person nominated in writing by the occupier. Where the owner or his agent or employee has the consent of the occupier, there seems to be no reason why he should not be able to carry out the work.

The priority of the occupier's interest is a standard theme running through the legislation at present, for example, Section 33(3)--out of season shooting on agricultural land and enclosed woodland--and Section 33(4) and (4A)--the existing night shooting provision. This is a feature of the legislation which I am reluctant to move away from without good reason, but I believe the very sensible adjustments made to procedures prior to authorisations will achieve much of what has concerned the noble Lady and others.

On night shooting there is also the serious concern that we have about public safety if more than one person has direct access to the commission in order to apply for such authorisation.

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Turning to Amendments Nos. 42, 43, 44 and 45, it seems to me that the driving of deer for deer management purposes, is more likely to be undertaken by an owner, or group of owners, than by an occupier. The owner is normally the person with the right to take or kill deer and consequently is responsible for the overall management of the deer. For this reason, I am moving an amendment to revise this provision accordingly with the owner or his nominee being the person to whom authorisation would or could be given. As is the principle with other authorisations, the deer commission will expect an applicant to have notified the occupier, who would need to be aware for safety reasons that such work was to go ahead on his land.

I am grateful to the noble Lady for focusing us on this issue. We have, I hope, both on the face of the Bill and away from the face of the Bill made some useful improvements.

I now turn to Amendments Nos. 46 and 47. Noble Lords will note that authorised out of season shooting to protect unenclosed woodland or the natural heritage, all in the interests of public safety, has also been drafted so as to be a last resort power. In most cases I would expect the person actively managing the land in question to have the prime interest in the state of the flora and fauna and the woodland. Nevertheless, I recognise that there may be occasions when the owner may have the beneficial interests in the feature in question rather than the occupier. Consequently, I am prepared to introduce an amendment at Third Reading to allow either the occupier or the owner or their respective nominees to be authorised.

In seeking an authorisation, the applicant will be expected to notify the respective owner or occupier before submitting the formal application. That is primarily driven by safety. On the basis of amendments that the Government are moving and hope to move, I hope that the noble Lady will feel able to withdraw her amendment.

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