Jimmie McKellar wrote some time ago asking about road kills and whether it is legal to keep them. First of all my apologies for not being able to deal with your enquiry sooner in this series of articles.

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. It follows that, at common law, any wild creature found dead at the side of the road may be lawfully picked up and kept by anyone.

Unfortunately matters then become more complicated. If the deer was a farmed beast, it is by definition not a wild creature and belongs to the farmer even if it has escaped. Keeping the carcase is theft. The "freeing" of caged animals by activists does not make the animals ownerless. On the other hand, the large cats roaming wild, having been deliberately released by their owners, are once again wild creatures. The owner's act in abandoning them is taken as a renunciation of his ownership rights. Similarly 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.

Sometimes what may normally be thought to be wild creatures can be owned. Fish in an enclosed pond from which no outlet flows are not wild, as those caught illegally fishing on the loch that I use have found to their cost.

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. This is to be contrasted with stolen property where, by stealing it, ownership does not pass to the thief.

As it would be too easy for a poacher simply to claim that he had found it dead in a place he was entitled to be, the authorities are likely to need convincing that you did not come by it by nefarious means. Thus if your deer has died of gun wounds, best leave it where it is. If it has obviously died of injuries from a traffic accident, you can keep it.

The picture becomes even murkier when we throw in the Wildlife and Countryside Act, which, in short, seems to make it illegal to take or possess almost anything wild however you came by it. This catches out people picking up carcases of dead birds, particularly raptors. It is not limited to rare species. All wild creatures and plants are covered by the Act. Fortunately game birds are one of the exceptions and thus if you find a dead pheasant, grouse, partridge etc, you may lawfully pick it up and keep it. Rabbits and hare may also be kept.

Jimmie also asked what to do if he found an injured wild beast. As explained above it belongs to no one and the problem is yours. If it is in pain or unlikely to survive, kill it as quickly and painlessly as you can. Alternatively you could take it to a vet or the SSPCA for first aid or emergency treatment.

Finally, I was taken aback the other day on being instructed to view the CCTV footage of an accident with the following instruction. "If I am not identified in the video, I have an alibi."