The consultation documents can be downloaded from the Scottish Executive website.

• Part 1 contains the draft bill and the wildlife crime policy statement.
  www.scotland.gov.uk/consultations/environment/lnsp1.pdf

• Part 2 contains draft Financial Guidelines (relating to management agreements covering SSSIs) and a Regulatory Impact Assessment.
  www.scotland.gov.uk/consultations/environment/lnsp2.pdf

Introduction
The Mountaineering Council of Scotland (MCofS) is the representative body for hillwalkers, climbers and off-piste skiers and receives core grant funding from sportscotland in recognition of this status. We are a membership organisation with about 2,000 individual members plus 130 affiliated clubs that contain approximately 7,000 members. Our Committee structure is entirely voluntary and appointments are the result of a democratic process. The professional staff complement is made up of four posts at our Perth office.

The MCofS welcomes the opportunity to respond to this consultation, which concerns the conservation and enhancement of Scotland's exceptional natural heritage. As a recreation body with a strong environmental ethos we regard people's enjoyment of wildlife as a vital component of the wider experience of enjoying and understanding the outdoors. A walker or climber's opportunity to witness wild birds, mammals and plants is as much a part of the mountaineering experience as the appreciation of wild land and spectacular landscapes.

We are therefore pleased to see this draft legislation being progressed and are generally supportive of the Scottish Executive's commitment to strengthening Scotland's wildlife laws. As a member body of Scottish Environment LINK we are supportive of, and signed up to, their collective response to this consultation and along with other LINK bodies we share their concern for the effectiveness of Scotland's SSSI's and other nature conservation designations.

Offences Involving Recklessness
The main concern for the MCofS in terms of this piece of draft legislation is the prospect of people who are taking lawful recreation in the countryside being accused of wildlife crime as a result of their inadvertent actions. The introduction of the offence of reckless disturbance into Scottish law makes this kind of accidental disturbance and subsequent accusation a real possibility. We therefore intend to offer some thoughts on this issue in the remainder of this response.

The MCofS welcomes the Wildlife Crime Policy Statements contained within Section D. Like many other recreation and conservation bodies we are saddened and angered by the types of mindless crimes that are perpetrated against wildlife in Scotland each year. We therefore wish to see wildlife given much stronger protection for its own sake, as well as for the enjoyment that it provides to those people who regard wildlife as an essential part of their experience of the countryside.

We wish to see Police officers given greater powers to pursue wildlife criminals, and regard the addition of reckless destruction or disturbance to the existing crime of intentionally damaging and destructive actions as a positive proposal in this Bill. We are, however, concerned at the prospect of a number of groups of people who are in the countryside for legitimate reasons, be it work or recreation, to find themselves inadvertently penalised for their lawful actions. Whilst we welcome the policy statement in D39, we wish to be given the opportunity to comment on draft legislation that sets out to cover this point, because although the current statement is to our satisfaction we are not sure how this can be translated into a legislative clause which properly targets the criminally reckless.

We believe that most instances of disturbance to wildlife are insignificant in terms of their impact on the breeding success or survival of birds or other animals, and many forms of unintentional disturbance occur in every day life as we walk around or drive our cars. However, due to the incremental nature of some acts of disturbance, there will always be the occasion when a walker, climber, bird watcher, farmer or forester can be regarded as having crossed a line and strayed beyond carrying out a legitimate activity to recklessly disturbing wildlife. Whilst it is clearly possible for various groups of countryside users to over-step such a mark and exhibit irresponsible behaviour that takes no account of wider interests, there will be many other instances where an individual's behaviour may have been careless, but not in any legal sense reckless.

The question therefore arises as to if, and how, a distinction should be drawn between careless and reckless. It appears to us that the options available to the Executive include:

1. Introduce an “Exceptions clause” into the Bill, as in the Protection of Badgers Act 1992.
2. Rely on the general legal meaning of reckless.
3. Rely on the general legal meaning of reckless with the back up of specialist codes from bodies such as the MCofS.
4. Link the Bill to a “Code of Good Practice” as in the Land Reform (Scotland) Act and the Scottish Outdoor Access Code.
5. Include a definition of “Reckless” in the Definitions section of the Bill.

Option 1 creates a difficult task of defining particular offences, and then writing exceptions that effectively amount to defences. Whilst this may be possible, we see it as being extremely difficult and probably not the kind of exercise in creating strict liability wildlife offences that the Executive wants to get involved in.

In terms of option 2 our understanding of the legal concept of recklessness is that it provides a suitably demanding test, which is well established within the Scottish legal system, and that it incorporates adequate safeguards. Recklessness is not, for example, the same as mere carelessness and it should not be interpreted as covering the accidental consequences of otherwise lawful actions. In essence, our understanding of recklessness is that it equates more or less to gross negligence. Reckless behaviour is behaviour that no normal, reasonable person would countenance or condone. An action is not reckless simply because someone was aware of risks and discounted them. This can be done quite rationally and defensibly - indeed, such informed evaluation and decision-making is one of the defining features of sports such as rock climbing. It only becomes reckless when the disregard of obvious risks or actual damage can be shown to be clearly unreasonable and that the behaviour of the accused represented a degree of gross insensitivity to the potential or actual consequences.

It therefore follows that simply accidentally disturbing a bird on a nest does not constitute an offence of "reckless disturbance". Anyone who inadvertently does so should however consider the situation in a rational manner and, in most cases, the reasonable course of action is then to withdraw, as circumstances allow, to a "safe" distance. Quite what that "safe" distance is, depends on the particular circumstances, including the degree to which the birds are accustomed to the presence of people. Thus peregrines nesting on a popular crag are likely to have a much smaller "safety zone" than eagles on a rarely visited outcrop.

Whilst this is our understanding of recklessness, we have a genuine concern that there will be those who might seek to make hasty accusations against walkers and climbers and to pursue a recklessness case when it should have been clear that an individual had, at worst, been careless. Realistically, there will be situations where a climber may justifiably continue climbing in the vicinity of nesting birds without being guilty of an offence. Indeed, climbing and other recreational activities (and many work activities) do take place in close proximity to birds and other animals without any significant degree of disturbance. For this reason we would like to see some form of protection of the innocent from unwarranted legal challenges. We therefore feel that option 2 leaves too much reliance on the existing case law, and consistency across the judging profession, to rescue people that have been charged with recklessness, and whilst option 3 might provide some kind of back up in the form of a piece of specialist, but non-governmental, guidance; it is really going to be option 4 or 5 that could provide some form of safety net and clarify the situation within this legislation.

The Scottish Outdoor Access Code is providing guidance to clarify aspects of responsibility associated with the Land Reform Act in the same way that the Highway Code relates to the Road Traffic Act. We do not know whether the Scottish Executive is considering, or would consider, the need for a similar advisory document to go alongside the Nature Conservation (Scotland) Bill, but this would be our suggested option 4. If there are other aspects of this Bill that require similar additional explanations, then this could be a worthwhile consideration for addressing these issues, otherwise logic would point towards our option 5, which is to define recklessness, in the context of this particular issue, within the definitions section of the Bill.

Some form of definition to the meaning of recklessness, that is consistent with the philosophy of Scots Law, could be shown within the definitions section at the end of the Bill. The definition could be along the lines of: “The accused must be shown, from his conduct in the circumstances, to have been culpably indifferent to the consequences, or to have had a blameful disregard of the results, or a total indifference to and disregard for the safety of the public, or an utter disregard of what the consequences will be, or a culpable disregard of consequences”. All of these have been advanced as signifying the meaning of recklessness in particular cases.

Relationship with the Land Reform Act and Scottish Outdoor Access Code
A further issue that could arise from the introduction of the recklessness clause is the temptation on the part of land managers to use notices to threaten visitors with prosecution under the recklessness section of this Act. We believe that signs warning visitors about the presence of birds should have to pass some form of test of responsibility, and we will be making this point in our response to the current SNH consultation into the draft Scottish Outdoor Access Code. For example, a sign pointing out the presence of a peregrine, sited about 20 metres from the nest, could provide useful guidance to avoid a section of crag containing the nest, whereas a sign 200 metres away from the crag, threatening anyone who goes past the sign with prosecution under the Nature Conservation Act, would be regarded as irresponsible and we would expect to see SNH or the local authority demanding the sign to be taken down. Indeed, the Nature Conservation Bill could address the issue of signage so that over zealous signs would be outlawed, and responsible signs therefore encouraged by default.

There is an overlap with this Bill and the Land Reform Act, in that people taking recreational access now have statutory rights to be on land and water in Scotland. From 2004 onwards a climber will have a statutory right to be on a crag, and that will have the effect of making that activity defined as lawful, whereas in the past the legal situation would have been open to various interpretations. Having gained this statutory right, recreational bodies like the MCofS do not want to see it eroded by those who fought against such a right seeking to reduce it via restrictive clauses in subsequent pieces of legislation like the Nature Conservation Bill. The Scottish Outdoor Access Code contains guidance connected to nature conservation and responsible behaviour, and this is the correct place for guiding the way in which people exercise their legitimate access rights. We therefore end this response with the statement that we hope the Nature Conservation Bill will not impinge on the public's right of access, and that there will be a commitment in this and future legislation that people will be trusted to make their own responsible decisions. However, as we said earlier, we welcome the commitment to give greater protection to Scotland's wildlife, because when the criminal elements in our society break the trust that is shown to civilised law-abiding people, they should be punished severely for their disregard for proper responsible behaviour.

6 June 2003

Scottish Enviroment LINK response (pdf)

MCofS Consultation Responses