Archive for the '2009 persecution incidents' Category



11
Sep
12

Glen Orchy: a hollow victory

Last Friday, Tom McKellar, an employee of Auch Estate, an Argyll sporting estate in Bridge of Orchy, was convicted of possessing the illegal poison Carbofuran and was fined £1,200 (see here). This conviction should be a cause for celebration, and in some respects it is, but there is also an overwhelming sense of disappointment and frustration. We had all thought this was a pretty clear-cut case, with lots of investigative resources thrown at it, a strong evidential trail and a known suspect. We were further encouraged by a statement given by the then Scottish Environment Minister, Roseanna Cunningham, who said:

I am truly appalled that yet another golden eagle has been illegally killed in Scotland – the second this summer. Illegal poisoning is simply inexcusable and while the perpetrators are certainly beneath contempt they are in no way above the law“.

Given the nature of the alleged offences (wildlife & firearms), we were certain that a custodial sentence was inevitable. How stupid were we?

It all started to unravel in December 2010, 18 months after the poisoned eagle was found dead in Glen Orchy. We learned that Tom McKellar had been convicted of possessing two illegal handguns, but instead of receiving the mandatory five-year prison sentence, he was given just 300 hours community service and a commendation from the judge who reportedly told him: “There is no doubt you are an outstanding individual” (see here). There was little mention in the media about the poisoned golden eagle or the stash of illegal poison that had been found at McKellar’s house during the original police search. We were suspicious that the wildlife crimes were being ignored and that COPFS had decided to just take on the firearms offences because, in the eyes of the law, these are greater crimes than the poisoning offences and would normally result in a custodial sentence.

Based on these suspicions, we blogged about the case in January 2011, and suggested that no charges were being brought against anyone for poisoning that eagle. We also encouraged readers to contact the Scottish Government to complain. Many did, and all hell let loose. The Scottish Government responded by saying that the firearms offences were being dealt with separately, at a court with a higher authority than a Sheriff Court, and that the wildlife offences were still ‘being dealt with’. A well-known prosecutor threatened us, indirectly, with legal action. For what? Expressing an opinion? As it turns out, we were right all along, nobody has been prosecuted for poisoning that golden eagle, although we’ve had to wait for over three years to have this confirmed.

It then all went quiet for a while, at least publicly. It’s not known whether COPFS bowed to pressure to take forward the wildlife crime prosecution or whether they had actually been pursuing the charge all along, but that it took over three years for the case to conclude is probably quite telling.  Not that it really matters now anyway; what matters is the outcome.

So, a conviction was eventually secured, although this was just for ‘possession’ of a banned substance; in our opinion this is the least significant charge of any that could have been brought. McKellar admitted during interviews that he had laid out poisoned baits ‘in the past’, and yet he wasn’t charged for that. Were the words ‘in the past’ significant in the decision not to press charges for that offence? What does ‘in the past’ mean, anyway? Two years ago? Two weeks ago? Two days ago? Two hours ago? In addition to the poisoned golden eagle, a Carbofuran-poisoned fox was found and also a dead sheep laced with Carbofuran. Someone was clearly still putting out poisoned baits, but COPFS accepted McKellar’s claim that he wasn’t responsible. It’s unfortunate that these types of offences are only dealt with as summary cases in a Sheriff Court. It would have been interesting to hear what a jury might have thought had the charges been heard in a higher court. Again, we’ll never know and we have to accept that McKellar is guilty of nothing more than possessing the banned poison Carbofuran (oh, and possessing two illegal handguns).

It’s hard not to think that McKellar has come out of all this relatively lightly. It’s also hard to believe that his punishments will act as any sort of deterrent to other would-be criminals. He avoided a mandatory five-year prison term for the firearms offences, and he was fined just a fraction of the amount that he could have been fined for possessing the illegal poison Carbofuran. It appears that he has also kept his job. Auch Estate is currently up for sale (for a mere £8.4 million) and a look at the sales particulars (Auch Estate sales brochure 2012), dated August 2012, indicates that the new owner has to take on the current Estate employees under the TUPE regulations, including Farm Manager Tom McKellar. These sales particulars also show that almost £700,000 was paid in grants and subsidies during 2011; it would be interesting to know whether there will be any forfeiture of these payments following McKellar’s conviction, although based on previous experience, this information is exceptionally difficult to access, even though it’s public money! It would also be interesting to hear whether McKellar’s employer is being investigated, after McKellar reportedly claimed it was his employer who had provided him with the Carbofuran (see here). Wouldn’t it also be interesting to find out whether Auch Estate is a member of Scottish Land & Estates? And whether McKellar, as an employee of a sporting estate, is a member of the Scottish Gamekeepers’ Association? Needless to say, neither of these organisations has made any public statements about McKellar’s conviction last Friday.

Other question marks include a strange bit of (non)-reporting by SASA. The poisoned golden eagle found at Glen Orchy was listed in SASA’s 2009 annual report. However, the dead fox found nearby that was reported to have been poisoned by Carbofuran did not appear in the SASA report. Neither did the dead sheep also found nearby that was reportedly laced with Carbofuran and used as poisoned bait. Why weren’t these two animals included in SASA’s list of confirmed poison cases for 2009? Perhaps SASA didn’t do the toxicology tests. If they didn’t, then who did? If SASA did do the tests, but failed to include the animals in their report, what confidence does this give us when SASA release their annual poisoning statistics? Are other cases missing? We only knew about the fox and the sheep because the RSPB had listed them in their annual report.

A further question mark hangs over a related issue. The media has reported that the poisoned golden eagle found dead in Glen Orchy had been killed with the banned pesticide Carbofuran. However, if you look at the 2009 SASA report, the following chemicals are listed as being detected in this bird’s body: Carbofuran, Methiocarb, Sodium Cyanide and Strychnine. Now, we have it on good authority, although this has not been formally verified, that a second individual was searched during the police raid back in June 2009. This individual, XXXXX XXXXX is believed to be a gamekeeper in Perthshire but is not an employee of Auch Estate; he was just there on the day the police arrived to conduct their search. We understand that the police found Mr XXXXX to be in possession of a bottle of Strychnine and a container of decanted Cyanide. Now look again at the chemicals detected in the body of the dead golden eagle. As far as we are aware, no charges have been brought against Mr XXXXX, not even for possession. If this turns out to be an accurate report, then something has gone seriously wrong with this investigation. A lack of resources can’t be blamed on this one, given the array of organisations involved with the investigation, including multiple police forces with specialist wildlife crime officers as well as the National Wildlife Crime Unit. So what happened? Did Mr XXXXX slip through the net and if so, how? Do you think we’ll hear anything about this or do you think it’ll be quietly pushed under the carpet?

In summary then, yes, a conviction was secured (McKellar) and we should be pleased about that. McKellar’s illegal stash of Carbofuran and his illegal cache of handguns have been taken out of circulation and so we should also be pleased about that, too. But this is not what could be called a successful outcome; far from it. It’s deeply unsatisfactory and shares striking similarities with other recent, high-profile cases which also concluded unsatisfactorily, such as Moy Estate and Skibo Estate. In all three cases, and in countless other lower-profile cases, sporting estate employees have only been charged with the lesser offence of possession. Charges have not been brought against anyone for the illegally-killed raptors found in each location, nor for laying the illegal poisoned baits or for putting out the illegal traps. On a superficial level then, the convictions for possession look good and the authorities can claim they are successfully addressing the issue of wildlife crime. Scratch below the publicity gloss though and you find that very little progress has been made; charges, if they’re brought at all, are not reflecting the full extent of the crimes uncovered, and on conviction the sentences are not reflecting the seriousness of these crimes.

07
Sep
12

Glen Orchy case concludes: call this justice?

So, three years and three months later, the infamous Glen Orchy case has concluded. Tom McKellar, previously described as a gamekeeper but curiously now described as a farmer, has been fined £1,200 for possessing the banned pesticide, Carbofuran.

The Crown Office press release (here) doesn’t mention anything of the poisoned golden eagle that was found in Glen Orchy and prompted the search of McKellar’s house, which led to the discovery of the Carbofuran. Although it does mention how he was previously given a 300-hour community service order for the possession of illegal handguns (instead of the mandatory five-year prison sentence), also found during the search of his house.

Of course, McKellar wasn’t charged with laying poisoned baits (even though he reportedly admitted to doing so during an interview), and nor was he charged with poisoning that golden eagle, because even though he had this rare, banned poison in his house, and lived just down the road from where the dead eagle had been found, and he’d previously admitted to laying out poisoned baits, there apparently wasn’t enough evidence to link him to the poisoned eagle.

But this story doesn’t end there. There are other things that went on (or more to the point, didn’t go on) in this investigation and we’ll be discussing those in due course, including the failure to charge a second person….

Meanwhile, we’ll add this poisoned golden eagle to the growing list of illegally-killed eagles for which nobody has ever been (nor will be) prosecuted. Justice?

RSPB press statement here

Previous blogs on this case here, here, here, here, here,here here, here

30
Jul
12

Glen Orchy farce continues

The Glen Orchy case against Tom McKellar continued at Oban Sheriff Court last Friday (27 July) with yet more legal argument.

You won’t be surprised to learn that sentencing has once again been deferred. Next court date is in early September.

27
Jul
12

Glen Orchy gamekeeper tries to change his plea

Here’s some insight into what is causing the delay in the sentencing of Tom McKellar in the Glen Orchy poison case. From yesterday’s Press & Journal:

An Argyll farmer is attempting to take back his plea of guilty to having a deadly poison which has been banned after being linked to the killing of birds of prey.

Tom McKellar, 50, of Fir Park Cottage, Auch Estate, Bridge of Orchy, originally pleaded guilty at Oban Sheriff Court to possessing the pesticide Carbofuran, a pesticide outlawed for more than 10 years, at his home in June 2009.

At a hearing in May his defence solicitor David McKie, in his plea in mitigation, said that his client did not realise the poison was Carbofuran.

Sheriff Douglas Small then queried if McKellar should be pleading guilty, and he continued the case for legal debate until yesterday [Wednesday 25 July 2012].

But when the case called yesterday McKellar had new legal representation in the form of solicitor Cameron Tait who sought permission from Sheriff Small to withdraw the guilty plea and replace it with a not guilty one.

This motion was “strenuously opposed” by fiscal Kate Fleming and a day-long legal debate took place.

Mr Tait said: “He advised police that he thought the poison was Wetex. He said he didn’t know what Carbofuran was. He had been supplied with it by the estate”.

Miss Fleming argued that this was not a defence. She said there was an absence of language such as “knowingly” possessing Carbofuran in the charge.

Sheriff Small adjourned the case until tomorrow [today, Friday 27 July 2012] to hear more legal arguments from the Crown and the defence.

It emerged at previous court hearings that police were investigating the death of a golden eagle in Glen Orchy in June 2009 when they obtained a search warrant for McKellar’s house. They found granules of Carbofuran in a game bag in his porch. Police also found the carcases of a sheep and a fox laced with Carbofuran.

Miss Fleming previously told the court that since 1988, there have been 240 fatal poisonings of wildlife by Carbofuran, mostly birds of prey.

The case resumes today. If the Sheriff accepts McKellar’s not guilty plea then presumably this case could go to trial at a later date.

For background information on this case, click on the ‘Glen Orchy’ tag at the top of this post.

Thank you to the contributor who sent us the Press & Journal clipping.

25
Jul
12

Glen Orchy sentencing update #2

Another delay….adjourned, again. Next hearing will be Friday (27 July).

Tick tock.

23
Jul
12

Glen Orchy sentencing update

It looks like McKellar’s sentencing has been delayed again. Now apparently scheduled for Wednesday (25th July).

23
Jul
12

Glen Orchy poison case: sentence due today

It’s been a long time coming. A very long time. Over three years. But today is the day Tom McKellar is sentenced for possession of Carbofuran, found at his house in June 2009 during a police investigation into the poisoning of a golden eagle (see here, here, here and here).

McKellar wasn’t charged in relation to the dead eagle, just for possession of a banned pesticide, to which he pleaded guilty. There’s a lot more to this case than has previously been reported, and once sentencing has finished we’ll have a few things to say.

So what do you think his punishment will be? Six hours on the naughty step?




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