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News : Consultations : Response to the DCS Close Seasons
 

BRITISH DEER SOCIETY RESPONSE TO DCS CLOSE SEASONS

  1. Background. The British Deer Society [BDS] is a charity committed to the welfare of deer in the UK. BDS believes that if wild deer management is based upon sound scientific principles, it will encourage the co-existence of wild deer populations in balance with farming, forestry, public access and other land uses and also safeguard the health and welfare of the deer themselves. The Society tries to achieve its objectives in this respect by giving advice to legislators, training practitioners in deer culling and management skills and offering education and information about deer to the general public.

  2. Welfare Responsibilities.  The consultation paper fails to make clear that there can be no legal duty of care for a wild animal; if a duty of care does exist, then that animal (by definition) is no longer a wild animal. The law correctly prohibits gratuitous cruelty to wild animals and prescribes various measures specifically designed to improve deer welfare when they are being culled. The law also tries to ensure that any suffering imposed on deer in order to protect over-riding human interests is proportionate and minimised. This principle was confirmed in the recent Animal Welfare consultation paper issued by Parliament. DCS advice to Ministers should be consistent with current legal definition of a wild animal it contained.

    2.1.   Should there be a legal duty of care for those who manage (wild) deer.  Bearing in mind the definition of wild deer discussed above, the answer to this question must be NO. That said, the deer management industry has already recognised a requirement to improve standards in the deer management field and a series of Codes of Conduct and Best Practice Guidance notes are being drafted to this end. These documents set standards for those who kill deer as well as for those whose land management activities might adversely affect deer welfare. However drafting a law to make such codes legally binding and a failure to obey them a criminal offence would be extremely difficult. The difficulty in enforcing any such a law probably makes it undesirable to attempt any such move.

    2.2.   Should all those who kill deer at any time [including sporting clients and first time shooters] be required to demonstrate that they are able to meet minimum standards of competency. If so how?  The deer management industry has already laid down nationally accepted standards of competency expected of those who cull deer either with or without the supervision of an experienced practitioner. The Deer Stalking Certificate (DSC Levels 1 & 2) includes assessment of many other essential skills besides that of marksmanship not least of which is the ability to stalk deer safely. At present DSC is a voluntary qualification but whilst the uptake by stalkers remains high, Government has indicated that it has no plans to change this situation. In addition the Codes referred to above impose a moral requirement on all practitioners to achieve and maintain designated standards of competency when killing or managing deer. The requirement for a first-time shooter or sporting client to attain the full qualification is tempered by what they are actually responsible for achieving without welfare penalties. It could merely be necessary for the shooter to demonstrate to the expert supervisor that they have the ability to shoot a designated animal cleanly. However a full and proper knowledge of the law, safety rules, deer recognition, correct follow-up and carcass handling procedures would all be essential if a novice wished to kill deer unsupervised by an experienced person. Those who own land and hold the right to kill deer on their land have a responsibility to ensure that not only they themselves but also their employees and all those whom they allow to shoot deer on that land are "fit and competent" i.e. sufficiently qualified. There are others who may be involved in killing deer, over whom the landowner has no control. This category might include tenants or occupiers whom the law empowers to shoot deer in certain circumstances and also DCS itself who may also do so under certain circumstances and who may extend deer shooting rights to others without the landowner's consent. All Codes and Guidance notes should make it clear that such people are not absolved from a responsibility for demonstrating or requiring a sufficient knowledge and competence to ensure deer welfare.

  3. Reason and Purpose of Close Seasons. Man's responsibility for the welfare of wild deer occurs where positive action is taken during population management. Thus legislators have a moral responsibility to put in hand measures to avoid dependent young being orphaned and left to starve when deer are being legally shot. There is no moral requirement to allow wild deer into all woodlands and fields or to provide them with supplementary food in winter. However a responsibility for ensuring that negative deer welfare issues do not arise might be appropriate when fencing takes place on such a scale that the deer can no longer be considered as truly wild because their ability to roam to seek food and shelter elsewhere is severely curtailed. Allowing land managers to protect their economic interests when they are severely threatened by deer is currently seen under the law as more important than deer welfare. Recent changes to the law have now also given the protection of natural heritage interests a priority over deer welfare considerations. Of course responses should be proportionate and it is greatly to be preferred that deer are properly managed during the open season. Therefore Close Seasons should generally be as short as possible without prejudicing animal welfare so that resorting to exemptions and risking welfare impacts will occur as seldom as possible.

    3.1.   Under current deer legislation there is a requirement for a close season to be set for females. A close season for males is discretionary. Are there moral reasons for deer of all species and both sexes having a close season?  There has always been a strong justification for a Close Season to be imposed by law to protect females during the period when juveniles are nutritionally dependent on their dams - this should continue.  Any practitioner's claim that a Close Season is unnecessary because the juvenile is always shot first or only young animals are taken is invalid. Many mistakes are made and the correct calf: dam relationship is easily mis-judged in a group of deer or when a dependant juvenile may not be present or may be hidden in cover. There is a natural humane aversion to harassing male deer all the year round and the result is usually counter-productive in deer management terms.

    3.2.   Are there legitimate concerns arising from deer management /control during the Close Season that can be met through practitioners following Best Practice and voluntary Codes of Practice? Under what circumstance do you think that these decisions should be moderated by Government?  The law already allows many legal exemptions to Close Seasons. Consolidated cull statistics show that the number of deer killed under such exemptions is large and growing.  Currently exemptions are insufficiently policed to ensure that all out of season shooting really is proportionate and justified by damage. Night shooting of red and sika deer used to be legal on a landowner/ occupier's own initiative but the law was changed in 1996. All night shooting [except for humane destruction] now has to be justified and authorised by DCS. It is the BDS's view that similar procedures should be required for shooting during the Close Season.

    3.3.   Should seasons vary by species? Except for muntjac which breed all the year round, the season should be the same for females of all deer species. In the case of muntjac, any Close Season for females is illogical because a dependent fawn could be orphaned at any time of year. However there are no reliable reports of a wild female muntjac ever being shot in Scotland. So, although ecologically illogical, having the same season for female muntjac as for other female deer simplifies matters and there is no humane or other penalty incurred thereby.

    3.4.   The relationships between climate, habitat and human management objectives are complex. Should seasons vary to take account of either geographical or habitat considerations and if so how could this be achieved and enforced?  This is not necessary - the Close Seasons should not be so finely drawn that minor variations in deer ecology caused by the local effects of environment, geography and habitat need be reflected in the law.

    3.5.   Should seasons take account of the state of pregnancy? The best scientific advice is that no humane penalty is incurred by a foetus if its mother is killed at any stage in pregnancy especially if the foetus is left in utero. Unless in very poor condition, female deer can also cope with some stress until very late in pregnancy without the risk of aborting. If the Close Season is set sufficiently early to take account of any early-born fawns, it will also give adequate protection to heavily pregnant female deer.

    3.6.   When are juveniles no longer dependent on their mothers to the extent that there are no welfare implications? As the discussion paper suggests there are as many expert opinions as there are factors and pragmatically "no welfare implications" should be read "no significant welfare implications". There should be a legal Close Season for all female deer during the period when any inadvertently orphaned fawn is likely to be nutritionally dependent on its dam.

    3.7.   Do juveniles require a Close Season? True juveniles i.e. deer under one year old may currently be shot legally during the female season either before or after their dam regardless of sex - this exemption should continue. Few stalkers have sufficient skill to judge the age of a yearling female with sufficient confidence to allow them to be shot during the period when older females usually have dependent young at foot. The high risk of mis-identification has consequent welfare penalties.

    3.8.   Do males require a close season? For males there is little humane penalty incurred by having no statutory Close Season. The main exception to this general rule is in the case of upland red deer stags which are often in very poor condition after the rut. They do need a period of peace without continual harassment during late autumn and winter in order to regain their bodily condition and enable them to survive a harsh winter. However describing what constitutes an upland stag in accurate legal terms and distinguishing them from woodland stags [which do not lose condition so badly] is probably impossible. Therefore probably the most humane answer is to retain a short winter Close Season for all male red deer (and their hybrids). Roe bucks rut in July/August and have regained condition by the onset of winter so do not need protection. Sika deer usually occupy woodland and do not lose condition as badly as red stags. Fallow bucks are also primarily woodland dwellers and may currently be shot all winter without any suggestion that humane penalties are incurred thereby. Therefore BDS accepts that there is no scientific justification for Close Season protection for male deer other than red deer for the reasons given above.

    3.9.   Should seasons be based purely on welfare or should they also take account of other factors such as venison quality, sporting objectives, damage control, cull effectiveness access or other issues.  Deer Close Seasons should be based primarily on animal welfare issues. However allowing certain legal exemptions must be appropriate in situations where vital human interests are considered to take predominance over deer welfare. It may be that control of shooting is required to prevent the over-exploitation of a shared natural resource e.g. where over-culling of mature stags on their wintering ground could cause an economic collapse of the local deer management industry. Deer welfare should certainly not be legally compromised because humans find it inconvenient to kill deer at a certain other times of year or merely because the market for or venison quality is better at that time.

    3.10. Based on the above please provide suggestions for statutory Close Seasons. The detailed rationale for the suggested dates has been outlined in the answers above. The winter close season for all red deer stags will protect them from harassment when their body reserves may be low and environmental pressures high unless there is an over-riding justification for doing so. The summer close season for females is long enough to ensure that very heavily pregnant animals are not harassed. Juveniles born within the normal seasons may still be suckling occasionally when the female season opens but will not starve for lack of milk if not culled with their dam. However these reduced close seasons should allow adequate time for those who have to take a large cull to do so without having to apply for OOS authorisation.

    Species and Sex Suggested Close Season
    Males
    Red Stags (and hybrids) 21 October  - 31 March
    Females
    Red Hinds       } 1 April - 30 September
    Sika Hinds       }
    Fallow Does    }
    Roe Does        }
    Muntjac Does  (1)}
    Chinese Water Deer (Males and Females)(2)

    Notes

    1)      Muntjac females breed all the year round so these dates are illogical in ecological terms. However there are very few muntjac in Scotland and the primary law currently requires some close season be set - this seems to be the simplest solution unless a change to the primary law is contemplated.

    2)      CWD does breed as juveniles and it is nearly impossible to identify a young buck from a doe so both have to be protected during the lactation period in order to avoid any humane penalties.

  4. Protection of Property. The author of the consultation paper seems to have become muddled in the last paragraph on page 18. It is a well-understood principle in UK law that wild deer are NOT property until killed or taken. A deer which is confined on land by deer-proof fences is property in which case, it is no longer a wild deer. In the Society's view, if a wild deer is merely present on land and is still free to come and go as it pleases, it is very unlikely that it could be considered as property for the purposes of ECHR - the wider consequences of such a ruling would be enormous. However a landowner's right to take deer is one of the most ancient of property rights and already protected by law although, in society's general interest, the law also modifies the landowner's exclusive right to take deer on his land.

    4.1.   When should the protection of property allow the taking and killing of deer once a close season has been set and how should this be tested?  There are two options which could reduce the inadequacy of the current situation. The first is to allow the current system to continue i.e. shooting in the Close Season to be allowed under the owner/occupier's judgement with a much greater willingness to investigate and prosecute if complaints are made that the shooting was apparently not justified. An agreed Guidance Note would be required in order for the court to judge the validity of the perpetrator's decision. Alternatively the owner/occupier's automatic right to exercise the exemption clauses under their own authority could be removed. DCS could then be given the responsibility to investigate an application to shoot out of season and to issue an out of season licence if considered justified by the damage taking place. This would be consistent with the current control of night shooting.  BDS recommends this second option.

    4.2.   Do you agree that Section 25 of the Deer (Scotland) Act 1996 should be expanded in terms of deer welfare to include disease and starvation? Do you have any points you would wish to add?  Diseased deer are already covered by Section 25 and any deer dying of starvation would probably also be included. The Oxford Dictionary defines "disease" as "a morbid condition of body" - therefore no changes to the current law are required.

    4.3.   In the interests of public safety, when might deer be taken or killed in the Close Season?   When it appears to DCS that the risk to public safety posed by the deer concerned is so great that remedial action cannot be delayed until the end of the Close Season. In such cases an OOS authorisation is justified. However the law could easily allow evidence of the severe and immediate nature of the risk to be offered by the perpetrator to avoid any subsequent prosecution if it was necessary to kill a deer out of season in an emergency situation before formal DCS authority could be obtained even by telephone.

    4.4.   To protect the natural heritage, should the taking or killing of deer be allowed once a close season has been set.  Only as long as the requirement for out of season killing is reviewed, inspected and agreed as justified by the DCS in exactly the same way as for protection of agricultural crops, woodlands etc. Wild deer are themselves an integral component of Scotland's natural heritage and justification for killing them out of season for this reason needs to be more carefully monitored. It is greatly preferable that they should be routinely managed in season to achieve specified natural heritage objectives especially whenever those objectives are drawn up to achieve an enhancement rather than maintenance of the status quo.

    4.5.   What means are there to prevent exceptions to Close Seasons being over-used?   Better supervision by DCS, transparency of decision-making, test cases being brought before the courts and carefully drawn Codes and Guidance notes laying down sensible justifications.

    4.6.   Should all who take or kill deer during the close Season be subject to the same authorisation process.   Yes [but see 3.2 above]

    4.7.   How should owner/occupiers deal with an emergency situation arising within a closed season?    By applying to DCS for an emergency authorisation on the telephone giving a clear description of the problem. There is now a good network of DCS Deer Officers around the country and none is more than a 3-4 hour drive from any potential emergency site. However where action has to be taken before authorisation can be formally delivered [as in cases discussed in 4.3 above] the facts should be reported [if not in advance] at least within 48 hours to DCS with full justification so retrospective authority can be issued. There are many similar clauses in the Firearms Act where the onus rests on the perpetrator to justify an apparent breach of the law and so avoid prosecution.
 
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