Inadvertent and Reckless Action
Current wildlife law in Scotland is primarily drafted to target those people who deliberately carry out unlawful activities against wildlife but also considers those who recklessly endanger threatened wildlife.
People who are carrying out lawful activities who inadvertently commit a wildlife crime can be defended by a three stage test.
- The unlawful act was an incidental result of an otherwise lawful activity or operation.
- The person who committed the unlawful act must have taken reasonable precautions in order to avoid committing the act or, alternatively, the person must show that he or she did not foresee and could not reasonably have been expected to foresee that the action would result in an offence being committed.
- It must be shown that steps were taken to minimise any damage or disturbance (including, for example, disturbance to a nest site) once it became apparent that a contravention of the provisions of the 1981 Act had occurred.
Reckless behaviour is reflected in item 2 - you may be reckless if a court feels that you reasonably could have foreseen that a protected species, or its nest, might be killed, damaged or disturbed by your activity.
Usually it is not a crime if your actions are the incidental result
of a lawful operation, such as driving along the road, as long as your
incidental actions were not reckless, i.e. that the accident could not
have been reasonably avoided.
(Note that damage to the breeding or resting place of a European
Protected Species is always an offence and there is no exclusion for
accidental actions.)
Examples of lawful activities that might endanger or disturb
wildlife.
Driving along a country road. Walking in the countryside. Farming or
forestry operations.
Activities that could avoid a claim of reckless behaviour.
Leaving an area where protected birds are clearly distressed by your
presence. Ensuring a suitably qualified person surveys woodland where
you plan to carry out felling operations and acting on his advice.
Ways in which you could take steps to minimise damage or
disturbance.
Stop work, remove machinery from immediate area, carry out remedial
work that is immediately obvious, seek specialist advice from SNH.