Legality of following up a shot deer onto another's land

[Tamus]

I cant see that happening in Scotland
First and foremost they dont have a wallet what they usually have is a very small purse that they place sided coins in you know the type like 20p and 50p the type you need a spanner for to extract, also the purse is usually attached to their pocket with a lanyard so it would be very difficult to part with.

Borderline racist, but I only ever hear folk from South of the Borderline moaning about the odd 20p 0r 50p, so back at ya buddy

 

[Mannlicher_Stu]

Borderline racist, but I only ever hear folk from South of the Borderline moaning about the odd 20p 0r 50p, so back at ya buddy

Naaa me racist far from it, there isnt a racist thought in my head, I just tell it how it is. You never hear Scotsmen fart they are to tight to part with it ,thats proof enough for you, nowt to do with being racist mate.

 

[Mannlicher_Stu]

Geez Stu, keep up (maybe try reading all the back posts)
The offence we are discussing is not theft. In Scotland it's the "removal" of the carcase, without appropriate permission/authority that's the offence.
If you want to try claiming mitigating circumstances and good intent, that's your choice.

OK so say for instance you would be charged for the offence as you describe what would the so called charge be.
Taking away a deer without the owners consent maybe, so given the facts that it was reported to the police if it went before the magistrates or whoever it would get thrown out, just a waste of tax payers money and I am not sure the police would proceed anyhow given they were in possesion of the full facts, a prosecution for it to reach court would need to be a private one in my view which again would be costly , And say if it went against the individual and had to pay compensation the costs again are hardly likely to be more than the market price of the deer ,also the magistrates may award coststo the opposed party for you bringing it, especially given the facts that you had know intention of depriving the owner of his rightfull carcass.

 

[Tamus]

OK so say for instance you would be charged for the offence as you describe what would the so called charge be.
Taking away a deer without the owners consent maybe, so given the facts that it was reported to the police if it went before the magistrates or whoever it would get thrown out, just a waste of tax payers money and I am not sure the police would proceed anyhow given they were in possesion of the full facts, a prosecution for it to reach court would need to be a private one in my view which again would be costly , And say if it went against the individual and had to pay compensation the costs again are hardly likely to be more than the market price of the deer ,also the magistrates may award coststo the opposed party for you bringing it, especially given the facts that you had know intention of depriving the owner of his rightfull carcass.

Since you ask Stu, Offences, Deer (Scotland) Act 1996

17(1)Poachinga fine of level 4 on the standard scale for each deer in respect of which the offence is committed or 3 months imprisonment or both
17(2)Removal of deer carcase without right or permission a fine of level 4 on the standard scale for each deer carcase in respect of which the offence is committed or 3 months imprisonment or both

As I've said previously, if you wish to plead mitigating circumstances (such as animal welfare considerations) and good intent, that's your choice. It might work. Oh, and don't rely on it having to be a private prosecution, the Police are pretty hot on this sort of stuff in some areas, where there are repeated problems. Personally, I think phoning the Police to confirm that you have committed an offence, but your intentions are good, would be insane. Maybe some-one on this site has actually done this... How did that go?

 

[6pointer]

As an answer to FC ground i think that one man saying dont follow a deer on to my ground might be a bit differnt if you wrote a letter to the head of deer issues for the FC. You will find that the FC will be the first to say you can go on and dispatch a wounded deer and will give you a contact number for any ground that borders yours.

 

[Tamus]

Link added for informational purposes:

http://www.oqps.gov.uk/legislation/uk/acts/acts1996/ukpga_19960058_en_7

 

[Labrat]

Since you ask Stu, Offences, Deer (Scotland) Act 1996

17(1)Poachinga fine of level 4 on the standard scale for each deer in respect of which the offence is committed or 3 months imprisonment or both
17(2)Removal of deer carcase without right or permission a fine of level 4 on the standard scale for each deer carcase in respect of which the offence is committed or 3 months imprisonment or both

Subject to the clause in s25

25Action intended to prevent sufferingA person shall not be guilty of an offence against this Act or any order made under this Act in respect of any act done for the purpose of preventing suffering by—
(a)an injured or diseased deer; or
(b)by any deer calf, fawn or kid deprived, or about to be deprived, of its mother.

So, S17 cannot result in a prosecution in the case of a wounded deer, since its overruled by S25, you'd only have to demonstrate that you had killed it to prevent suffering.

The drafters specifically made this subject to S25 when they said

17(2)Subject to section 25 of this Act, any person who, without legal right to take or kill deer on any land or without permission from a person having such right, removes any deer carcase from that land shall be guilty of an offence.

No, in theory you might say that there's no way that removing the deer could be for that purpose, however in drafting the law they made it specifically subject to S25, so it must be a reasonable statutory defence

 

[Paul at Fechan]

Tamus, I promise you what I've said is legally sound. Perhaps you're just looking to find fault but you won't. I tracked a leg shot red deer in the snow for 4 miles crossing two different properties and the police thanked me for my call. This was last year in the snow and there was no issue voiced by them in terms of removal.

 

[Tamus]

Subject to the clause in s25

25Action intended to prevent sufferingA person shall not be guilty of an offence against this Act or any order made under this Act in respect of any act done for the purpose of preventing suffering by—
(a)an injured or diseased deer; or
(b)by any deer calf, fawn or kid deprived, or about to be deprived, of its mother.

So, S17 cannot result in a prosecution in the case of a wounded deer, since its overruled by S25, you'd only have to demonstrate that you had killed it to prevent suffering.

I think my treacle waders have got a hole in them... Labrat see my post #21

 

[Tamus]

Tamus, I promise you what I've said is legally sound. Perhaps you're just looking to find fault but you won't.

Paul, you're a good sport and I believe you.

 

[Labrat]

I think my treacle waders have got a hole in them... Labrat see my post #21

Your post 21, commented: However, the one thing we'd obviously be left commiting an offence doing, and I can't see the defence, is removing the carcase.

See my earlier edit to my post (sorry, hit send before I'd finished) regards the fact that those drafting the law specifically made it subject to s25 - on a cursory glance S25 would not seem to apply to a carcass (any act done for the purpose of preventing suffering by...) but theyv'e specifically included and said that it can and does when they wrote s17

 

[Tamus]

Subject to the clause in s25

25Action intended to prevent sufferingA person shall not be guilty of an offence against this Act or any order made under this Act in respect of any act done for the purpose of preventing suffering by—
(a)an injured or diseased deer; or
(b)by any deer calf, fawn or kid deprived, or about to be deprived, of its mother.

So, S17 cannot result in a prosecution in the case of a wounded deer, since its overruled by S25, you'd only have to demonstrate that you had killed it to prevent suffering.

The drafters specifically made this subject to S25 when they said

17(2)Subject to section 25 of this Act, any person who, without legal right to take or kill deer on any land or without permission from a person having such right, removes any deer carcase from that land shall be guilty of an offence.

No, in theory you might say that there's no way that removing the deer could be for that purpose, however in drafting the law they made it specifically subject to S25, so it must be a reasonable statutory defence

Uh huh, there is dispensation to let you do the humane thing. Now, it would be a stretch to say that carting off it's carcase, without rightful authority, would be in any way beneficial to your neighbour's dead deer's welfare and so you don't get dispensation from that offence.

Maybe you could argue that leaving the carcase in situ might constitute a hazard to other deer though... Nope I'm just taking the **** now, sorry.

Paul seems pretty sure of his answer though, but I note he hasn't confirmed actually following the course he advocates. I'll wait till he does.

ps. Ex Procurator Fiscal David Hingston seems to be quite authoritative on the matter of fallen game so I've emailed him about our little "hypothetical" discussion.

 

[Tamus]

Tamus, I promise you what I've said is legally sound. Perhaps you're just looking to find fault but you won't. I tracked a leg shot red deer in the snow for 4 miles crossing two different properties and the police thanked me for my call. This was last year in the snow and there was no issue voiced by them in terms of removal.

Sly dog, I missed that first time round but caught it in your edited version. Well done, Paul. Glad it worked out too.

Still, I think it will be interesting to hear from Former Procurator Fiscal David Hingston. Evidently he's down at the High Court in Edinburgh today but he'll reply when he gets back, in a couple of days.

When all's said and done, He's exactly the sort of person who's job it is to make decisions on such matters. Hopefully, we can all have the benefit of his wisdom rather than the trauma of standing before him, or his ilk. Of course, if he advocates what you suggest, I'll be delighted to concede to excessive caution in my own views~Tom

 

[Mannlicher_Stu]

Sly dog, I missed that first time round but caught it in your edited version. Well done, Paul. Glad it worked out too.

Still, I think it will be interesting to hear from Former Procurator Fiscal David Hingston. Evidently he's down at the High Court in Edinburgh today but he'll reply when he gets back, in a couple of days.

When all's said and done, He's exactly the sort of person who's job it is to make decisions on such matters. Hopefully, we can all have the benefit of his wisdom rather than the trauma of standing before him, or his ilk. Of course, if he advocates what you suggest, I'll be delighted to concede to excessive caution in my own views~Tom

I will be watching this post for future posting on the issue thats for sure

 

[ferretmanabu]

What if you shot a deer and it died with his legs on neighbours land but body lying on your side?

 

[Mannlicher_Stu]

What if you shot a deer and it died with his legs on neighbours land but body lying on your side?

If it had both eyes shot out as well No IDEA mate

 

[Paul at Fechan]

that one's easy stu, it's your's. Let the other guy have the feet.

Tamus, what haven't I answered. I would have no problem removing a carcass and waiting for the land owner or holder of the stalking rights to clear it for the reasons given.

Common sense and good will goes a long way so long as it's genuine.

 

[Tamus]

that one's easy stu, it's your's. Let the other guy have the feet.

No idea... shot in both eyes... NO EYE DEER, c'mon Paul

Tamus, what haven't I answered. I would have no problem removing a carcass and waiting for the land owner or holder of the stalking rights to clear it for the reasons given.

Where does your opinion get it's validity? You keep talking about theft and property in relation to wild deer. Read below please, I quote an authority btw.

Common sense and good will goes a long way so long as it's genuine.

I agree with that 100%.

Now consider this please, and you might see the sort of place where I get my opinions.

“Scots Law is based on Roman Law, which said that a wild creature does not belong to anyone until it is captured or killed. Accordingly it belongs to whoever takes possession of it.”
“Pheasants are bred in captivity and then released. While in captivity, they belong to someone but as soon as they are released into the wild they become wild creatures open to be taken by anyone.”
“Because the deer, pheasant, salmon etc do not belong to the landowner and are valuable to him, poaching laws had to be introduced. However even when poached, the wild creature does not belong to the landowner and the convicted poacher has the deer taken off him by being forfeited by the court.”

The above quotes come from the same man I am waiting to hear from, specifically about this thread~Tom

 

[Tamus]

So, the nub of the issue is. Can you go onto another man's land, using the Deer (Scotland) Act 1996, or any other legislation, kill a deer and take lawful possession of it?

I see section 17(c) of the above act as stating that the removal of a deer, even if lawfully killed under the dispensations of section 25 of the same act, would be an offence.

i.e. an offence in and of itself. The right to put a deer out of it's suffering is there OK but I do not see the right to take possession. Neither is there any mention that the deer has somehow become the landowners property. Whilst treating it as such may well be a useful course of action it may be irrelevant to the legality. Do you have lawful possession or have you commited the offence?


I await a learned reply.

 

[Paul at Fechan]

Your man will give you good examples of case law on the topic i'm sure, would like to hear them.

No eye deer what a plank