Law & Poaching

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Poaching -

In law, poaching is not theft. Poaching is the unlawful taking or killing of game, whereas theft is the dishonest taking of property belonging to another. Wild animals at liberty are ownerless; they can be poached but not stolen.

EXAMPLE: Taking wild fish from a river is poaching, but removing dead fish from a fisherman's car boot is theft.
Many people still perceive a poacher as a one-for-the-pot man taking a rabbit to feed his starving family. It is an image which markedly affects the enthusiasm of the police, the 'public interest' influence in CPS decision making and punishments awarded in the courts
The reality is very different. The lone poacher is a rarity. Poachers often work in sizeable groups, counting on the intimidation of numbers to prevent their arrest, and taking game to a considerable value.
Police officers need to be aware of the involvement of poachers in other forms of crime; notably burglary and theft from houses, farms and gardens in the countryside. People are prepared to travel long distances to commit these offences which adds to the difficulty of subsequent detection.

One night's activity by poachers seriously affects the next day's shooting. Constant poaching leads to dissatisfied shooters, loss of business and eventually a substantial impact on a small rural community.
The same adverse effects will result from poaching fish from preserved waters or taking deer.
The financial and commercial aspects need to be considered when preparing case files for prosecution and liaising with the prosecuting authority (CPS or Procurator-Fiscal). Cautioning poachers, particularly where there is more than one offender, does not encourage gamekeepers to put themselves at risk in preventing these offences or in assisting the police.
Always remember to seek proper compensation in a successful poaching prosecution. The gamekeeper, as a witness, should be ready to explain and quantify the real expense involved, and emphasise the detrimental effect of the offence.
Any threats or intimidation should also be brought out in the evidence.
The right to take and kill game is one of the incidents of land ownership. No-one has the right to enter land to take game without the owner's permission. The right to take and kill game can be sold and leased separately.
Scotland's traditional observance of the 'Sabbath' also shines through in the prohibition, by statute or etiquette, of many field sports on Sundays.
The police are used to enforce legislation and there is little provision for gamekeepers to act on their own, as they might elsewhere than Scotland. Water bailiffs are employed by District Salmon Fishery Boards to patrol rivers and coastlines in the practical enforcement of salmon law, but the police are commonly involved in assisting with arrests and preparing reports to Procurators Fiscal.

The Law:

Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003)

METHODS OF FISHING AND OFFENCES RELATED TO FISHING.
	Methods of fishing: salmon
	Methods of fishing: freshwater fish
	Use of gaff, tailer or landing net
	Meaning of "rod and line"
Offences related to fishing for salmon and freshwater fish.
	Prohibition against using explosive and other noxious substances for the destruction or taking of fish
	Fishing for salmon without right or permission
	Illegal fishing by two or more persons acting together
	Taking of dead salmon or trout
	Illegal possession of salmon or trout
	Offences in relation to passage of salmon
	Fishing in waters where fishing rights owned by one person
	Contravention of protection order

Close times for salmon.

Weekly close time for salmon
Fishing for salmon during annual close time
Removal of boats and nets during annual close time
Buying and selling salmon in close time

Close time for trout.

Annual close time for trout

GENERAL

Application of this Act to the Crown
Orders and regulations
Interpretation
Consequential amendments, repeals and revocations
Short title, commencement and extent

Schedule 1

Designation orders, estuary limits orders, annual close time orders and regulations under sections 33 and 38
Election and co-option of members of district salmon fishery boards
Meeting of qualified proprietors
Membership

Provisions as to making, variation and revocation of protection orders

Consequential amendments, repeals and revocations
Consequential amendments
Repeals and revocations

FRESH-WATER FISHERIES (SCOTLAND) ACT 1902

This Act establishes the annual close season for (brown) trout as being 7 October to 14 March inclusive. This does not apply to stocked waters, such as the popular trout fishing farm ponds.
No specific police powers are provided by this Act.
It is important, however, to note that sea trout are regarded as salmon and enjoy the full protection of salmon legislation for the purposes of the law.
It should also be borne in mind that judicial decisions and case law have established some rod and line methods, such as sniggering, ripping and foul-hooking, to be unlawful. Some Fishery Boards also have Orders prohibiting the use of certain baits, such as shrimps and prawns, and establishing when 'spinning' or 'fly' fishing must be employed. Liaison with local water bailiffs is vital for full details and expert advice.

TROUT (SCOTLAND) ACT 1933
This Act prohibits the purchase or sale of trout less than eight inches in length.