Animal welfare and wildlife crime continue to be key risks for rural sector businesses.

Suspected breaches can result in regulatory investigations and enforcement action including criminal prosecutions. An additional impact is that incidents often attract media coverage. For instance, on 3 July 2023, media reports noted an ongoing Police Scotland investigation into the death of an otter at Loch Ken near Parton. As explained in the media report, Police Scotland has a specialist wildlife crime team with officers focused on investigating suspected wildlife crime.

Where evidence of suspected criminal conduct is identified, Police Scotland's wildlife crime team report matters to Scotland's sole prosecution body – the Crown Office and Procurator Fiscal Service. The Crown will decide whether (1) there is sufficient evidence of criminal conduct and (2) it is in the public interest to prosecute. If the answer to both questions is 'yes', the Crown will bring criminal proceedings.

A recent example is a June 2023 case in which a construction manager was convicted for damaging a badger sett contrary to the Protection of Badgers Act 1992. During the development of housing at East Calder, badger setts were identified by ecologists. Fencing was erected to ensure all works were kept 30 meters away from the setts. The fences were pushed down with the convicted construction manager admitting: "we did checks, we gave the bushes and the fence a shake and a good kick, nothing came out". He was fined £3,600 for the incident.

In a similar case in September 2022, a director of a housebuilding company was convicted for damaging a badger sett. The company purchased a site in Aberdeen. An information pack was provided as part of the sale containing reports on the site including a Badger Protection Plan. The Plan noted that a 30-metre exclusion zone had been created to protect the badger setts from all construction works. The director was aware of this but nonetheless instructed a digger driver to clear the land covered by the Plan. He was fined £9,350 for the incident.

The Crown's position on wildlife crime is clear – following the June 2023 case summarised above, Debbie Carroll, head of wildlife and environmental crime at the Crown said her team "will continue to work to ensure anyone who breaks the law faces prosecutorial action".

These recent cases highlight that animal welfare and wildlife crime continue to be key risks for rural sector businesses. In order to ensure compliance and to avoid the risk of investigations and enforcement action, businesses should have in place a robust compliance framework including (1) an animal welfare and wildlife crime compliance policy (2) risk assessments for work activities with associated control measures noted to address the identified risks (3) training to staff and (4) a process for instructing, engaging with and implementing the advice of experts such as ecologists.

For support in preparing compliance frameworks, or for advice and representation in relation to investigations and enforcement action, please do not hesitate to contact the Corporate Crime and Investigations Team at Brodies.


Ramsay Hall

Legal Director