Spotlighting Research - Wildlife Crime Penalties Review Group in Scotland

4 Feb 2021

In this series, we spotlight exciting and impactful research currently being undertaken at the UCC School of Law. We also showcase the researchers themselves – academic staff at the School, who produce cutting-edge legal scholarship independently or through our research centres.

In this edition, we shine the spotlight on Professor Mark Poustie, Dean of the School of Law, and his work as Chair of the Wildlife Crime Penalties Review Group in Scotland, set up by the Scottish Government to review the penalties that were at the time available to punish perpetrators of wildlife crime. The resulting recommendations made by the Group proved impactful, significantly influencing legislative change in Scotland.

We interviewed Mark about his work chairing this Group, and its links with his research interests.

How did you become involved with the Wildlife Crime Penalties Review Group, and what was your role as Chair?

I was invited by the then Scottish Government (SG) Minister for the Environment to lead the Review Group set up by the SG as a result of concern that inadequate penalties for wildlife crime was failing to deter such crime and tarnishing Scotland’s image.  I had to lead a group consisting of representatives from landowners, NGOs, the Crown Office Procurator Fiscal Service (the Scottish public prosecution service), Police Scotland, and the Government in scoping our approach, gathering and reviewing a variety of criminal justice data, designing and publishing an online questionnaire around the impact of current wildlife crime penalties and conducting a number of interviews with representative stakeholders to follow up on issues arising out of responses to the questionnaire and ultimately authoring the Review Group’s report. 

The recommendations made in the group’s report were broadly accepted by the Scottish Government. What were the key recommendations, and how were these developed?

We were fortunate that there was considerable support from the Scottish Government for our recommendations. 

Key recommendations included (1) increasing maximum penalties available to reflect different types of criminals and seriousness across legislation reflecting levels applicable in other areas of environmental law notably pollution control (to illustrate this, the maximum fine for killing a golden eagle was set in the Wildlife and Countryside Act 1981 at £5,000 and had not been uprated at all, while at that time the maximum penalty for a water pollution offence had been £2,000 but was increased to £20,000 in 1991 and £40,000 in 2004 reflecting both a response to inflation and an increased perception of the seriousness of such offences); (2) development of consistent forfeiture provisions across legislation regarding animals, firearms, vehicles, boats etc – the provisions were very patchy across a really fragmented and uncoordinated set of legislation; (3) introduction of administrative and ultimately legal framework for impact statements (NatureScot – formerly Scottish Natural Heritage – has taken the lead on this); and (4) development of sentencing guidelines for wildlife and environmental crimes through Scottish Sentencing Council to enhance transparency and consistency of sentencing (this is on the work programme of the Scottish Sentencing Council but only initial work has so far been done).

The penalties recommendation were key and the Group developed these recommendations following a review of the range of legislation and the very different maximum penalties available, a review of the penalties actually being imposed by the courts, comparison with what had happened in the context of pollution control where both the available penalties in legislation and the penalties actually being imposed by the courts had been dramatically increased, consideration of some overseas experience and taking into account the views expressed in the public consultation and interviews that available penalties were too low and that the courts were not imposing appropriate sentences.  That in a sense was the key.  The range of offenders and offences in wildlife crime is broad ranging from commercial interests which might include shooting estates to forestry activities where financial penalties might be appropriate through to those engaged in poaching or brutal activities such as badger-baiting where forfeiture of firearms, vehicles and dogs might well be a much more appropriate penalty.

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) Act has now come into force – how has the resulting legislation been influenced by your group’s report, and what does the Act mean for wildlife crime in Scotland?

It was gratifying to see the legislation come into force towards the end of last year.  The Act does essentially implement the general uprating of penalties so they are on a par with pollution offences as the Report recommended and goes a long way to harmonising the forfeiture provisions.  I’m still hoping for the day when the legislation will be consolidated since it remains very fragmented but that is a significant longer term project.  The Act provides a clear statement of intent that wildlife crime is taken seriously in Scotland and the scale and range of penalties is now much greater than before. 

While it is too early to judge the impact of the legislation, my hope is that by providing for these tougher and more appropriate range of penalties, the legislation will now operate as a more significant deterrent to wildlife crime than hitherto. 

It may take a while for that to become apparent and it also depends on factors such as publicity given to penalties imposed by the courts but I am optimistic that it will lead to a reduction in wildlife crime just as a similar approach led to a reduction in pollution offences a few years earlier.

How does this work tie into other themes in your research?

The key theme in my research is around the effectiveness of environmental and planning regulation so I am interested both in types of mechanisms used for regulation but also in how they are enforced, hence my interest in penalties and approaches to enforcement.  Effective enforcement underpins the credibility of any regulatory system and it does not require that penalties follow every infraction.  It certainly means there has to be a reasonable level of enforcement activity and that the courts impose appropriate, proportionate penalties which are also well-publicised. 

Further information

The full report of the Wildlife Crime Penalties Review Group can be read here: https://strathprints.strath.ac.uk/59764/1/Poustie_2015_Wildlife_Crime_Penalties_Review_Group_Report.pdf

The Animals and Wildlife (Penalties, Protections and Powers) (Scotland) A ct 2020 can be read here: https://www.legislation.gov.uk/asp/2020/14/contents 

Why did you choose to study law?

My background was actually in humanities and my first degree was in Classics.  However, I had a strong interest in debating and actually also politics which led to interests in advocacy and constitutional matters and hence into the study of law.

Who is your greatest academic influence?

This is undoubtedly Prof Denis Feeney, now Professor of Classics and Giger Professor of Latin at Princeton.  When I studied Classics at Edinburgh in the 1980s, Prof Feeney was an inspirational junior lecturer and it was he more than anyone else who really assisted my intellectual awakening and the encouragement of rigorous methodological approaches to study both in Classics and later in Law.

What is your favourite law book?

Neil MacCormick’s, Legal Reasoning and Legal Theory (1978) – as some of my students will attest.  The late lamented Neil MacCormick was an inspirational lecturer (he taught me at Edinburgh) and I have always found his arguments on legal reasoning compelling and more realistic than those expressed by other scholars.   

What is your favourite non-law book?

A really hard question.   Really not easy to choose any one work so I am balancing Virgil’s Georgics, a truly amazing composition only nominally about agriculture, viticulture and apiculture with Pirsig’s, Zen and the Art of Motorcycle Maintenance.  I have broad tastes ranging from Flann O’Brien and Paul Auster through to historians such as middle eastern historian Bernard Lewis.

What is your proudest academic achievement to date?

My proudest achievement is my ‘Environment’ title for the Stair Memorial Encyclopaedia of the Laws of Scotland published in 2007 and just shy of 1000 pages.  I am currently working on a new edition.  However, I am also very proud of the Wildlife Crime Penalties Project, not least because of the impact it will hopefully have!

Professor Mark Poustie is Dean of the UCC School of Law. He is a public law scholar primarily focused on environmental and land-use planning law and human rights issues relating to such laws. Read more here: http://research.ucc.ie/profiles/B001/mark.poustie@ucc.ie