There have been a number of reports in the media recently in relation to livestock worrying so, with sheep particularly at risk during the spring lambing period, what can you do if sheep worrying affects you?

The Land Reform (Scotland) Act 2003 grants the public a right of access over land, however, the public must exercise that right responsibly. The public's responsibilities are set out in the Scottish Outdoor Access Code ("the Code") which contains a section dedicated to dog walkers. All farmers and land managers should familiarise themselves with the Code.

In circumstances where a dog walker has failed to comply with the Code, the walker should be reminded of the Code, with it being made clear that this is for the protection of livestock and for their own safety too. Where possible, signs should be erected to notify the public of the presence of livestock, requesting the public to keep their dogs under control. Where a dog owner still fails to keep their dog in check, other more formal remedies might be available.

In terms of the Control of Dogs (Scotland) Act 2010, the local authority can serve a Dog Control Notice on the owner of a dog if the dog has been out of control on at least one occasion and its behaviour has led to reasonable alarm or apprehensiveness. Therefore, if a dog walker is continuously in breach of the Code, they could either be reported to the police or the local authority.

Anyone who allows their dog to worry livestock on agricultural land is guilty of a criminal offence in terms of the Dogs (Protection of Livestock) Act 1953 ("the 1953 Act"). Worrying includes the dog attacking or chasing livestock and, in some circumstances, can include the dog being loose in the field. A conviction under the 1953 Act can carry a fine of up to £1,000 and, in certain situations, the police can seize the dog.

However, none of the options mentioned above give the livestock owner much comfort if immediate action is required. The police should be notified in the first instance but what if waiting for the police will be too late and urgent action is needed?

If the dog is attacking livestock and is unaccompanied or the owner has no control over the dog, then the dog can be detained in terms of the Animals (Scotland) Act 1987 ("the 1987 Act") to prevent it from causing injury or damage. Reasonable care must be taken of the dog and it should be returned to its owner or the police without delay.

As an absolute last resort, a livestock owner can kill or injure a dog but only in certain limited circumstances. A number of considerations should be taken into account before taking this course of action. The 1987 Act provides a defence to a livestock owner who kills or causes injury to a dog. To rely on the defence, the livestock owner must prove that they were acting in self-defence in protecting their livestock. The livestock owner must prove that:

a) the dog was attacking their livestock and they had reasonable grounds to believe that there was no other practicable means of ending the attack; or

b) the livestock owner had reasonable grounds to believe that the dog was about to attack their livestock and there was no other practicable means of preventing the attack; or

c) the dog had been attacking livestock, was not under the control of anyone and had not left the vicinity where the attack took place, and there was no other practicable means of preventing a further attack while the dog was still in the vicinity.

Where a livestock owner has had to shoot a dog, they must inform the police of the incident within 48 hours. A failure to report the incident could lead to the livestock owner being prosecuted. Although not always possible, on a practical level, photographic evidence should be taken of the incident as a precaution against being accused of unjustified action. If the livestock owner is unable to prove that they acted in accordance with one of the above-mentioned conditions, they could potentially leave themselves open to prosecution. The legislation provides that shooting a dog is the remedy of last resort and, accordingly, a livestock owner should consider their position carefully under the legislation before taking this course of action.

For further information or advice on any of the issues discussed, please get in touch with your usual Brodies LLP contact.