10
Mar
12

Vicarious liability – what’s it all about?

There’s been a lot of talk recently about the new offence of vicarious liability and whether it will finally address the issue of illegal raptor persecution in Scotland. Some see it as the ultimate enforcement tool that will stamp out raptor persecution on shooting estates once and for all. Others see it as an unnecessary burden on purportedly law-abiding landowners, land managers and gamekeepers who have managerial responsibilities. The truth is that nobody knows for certain just how effective this new legislation will be, and until there have been some ‘test’ court cases, that uncertainty will remain.

We had hoped that the Scottish Government would provide detailed information and advice about the new legislation, but they haven’t. The following overview is our current understanding of the issue and has been put together after reading various articles and documents and we’ve included a list of useful links for further reading at the end of this blog post.

The new offence of vicarious liability in relation to the persecution of wild birds (where one person may potentially be legally responsible for the actions of another person) came in to force on 1 January 2012, as a provision in the Wildlife and Natural Environment (Scotland) Act 2011. It was introduced as an amendment to the draft WANE Bill in November 2010 by former Scottish Environment Minister, Roseanna Cunningham. It was a direct response to the unrelenting problem of illegal raptor poisoning and the apparent inability/unwillingness of the game shooting lobby to get their own house (grouse moors) in order (see here and here for background).

Interestingly, upon its enactment on 1 January 2012, it was widely touted as being aimed at ‘the few’ or ‘the minority’ who are persistently culpable in this area of wildlife crime (see press statements from Scottish Government, Scottish Land & Estates and National Wildlife Crime Unit here). Strange that the actions of a ‘few’, or the so-called ‘minority’, could cause the creation and introduction of a new offence, don’t you think? Isn’t it more likely that the government recognised that these crimes are carried out by so many, and to such a wide extent, that new legislation had to be brought in as the only measure capable of dealing with crime on this scale? Anyway, we digress….

When will the offence of criminal vicarious liability apply? According to the provisions in the WANE Act, it will apply to certain wildlife offences, but not all. There are three main areas of wildlife crime for which a person can be held vicariously liable:

1. Intentionally or recklessly killing, taking, disturbing wild birds and their nests.

There are exceptions, such as killing certain game birds or other species that are permitted to be killed, taken or disturbed under a general licence (e.g. crows), but in general, it is an offence to interfere with certain wild birds (including raptors), their nests and their nest contents, and it is also an offence to obstruct or prevent these birds from using their nests.

2. Prohibited methods of killing or taking wild birds.

This relates to the setting or placing of articles that could cause bodily injury to a wild bird. This includes the setting of various traps (including spring traps), snares, hooks, lines, birdlime, electrical devices for killing, stunning or frightening, and any poisonous, poisoned or stupefying substance.

3. Possession of pesticides.

Anyone found in possession of a pesticide containing at least one prohibited ingredient will be guilty of an offence (unless they have a specific approval order for its use). Prohibited ingredients currently include Aldicarb, Alphachloralose, Aluminium phosphide, Bendiocarb, Carbofuran, Mevinphos, Sodium cyanide and Strychnine (as named in the Possession of Pesticides (Scotland) Order 2005).

We understand that the maximum penalty for any of the offences is six months imprisonment and/or a £5,000 fine. If the offence was committed in respect of more than one bird, nest or egg etc, they will be treated as separate offences and carry separate penalties. In other words, the maximum penalty applies to a single offence only. So if someone is convicted of being vicariously liable for the killing of two protected birds, they could face up to 12 months imprisonment and/or a £10,000 fine etc.

Who can be prosecuted for the offence of vicarious liability? Well, that will depend very much on the circumstances of each individual case, and specifically the managerial involvement of each individual person. In general terms, however, anyone who either has the legal right to kill or take wild birds, or manages or controls the exercise of that right, and anyone who secures the provision of certain shoot-related ‘services’ from someone else may be vicariously liable for offences committed by another person. This could include, either singly or in combination, landowners, trustees, directors & officers (such as in a limited company), farmers, crofters, shooting tenants, shoot syndicate members, factors, agents, gamekeepers and contractors who procure or provide services relating to habitat management or shoot management.

Before somebody can be prosecuted for the offence of vicarious liability, the prosecutor must demonstrate that the primary offence took place and that the offence was committed by a third party who has a specific relationship to the person being charged with vicarious liability. The person who committed the primary offence need not be prosecuted in order for a prosecution to be brought against the person in management or control. This seems a bit odd though, because if it can be shown that the primary offender committed the offence, then why wouldn’t he be prosecuted? Although perhaps it covers situations such as the primary offender emigrating, or dying, or having a plea-bargaining agreement with the prosecutor whereby he doesn’t get prosecuted in return for providing information about another crime or another person.

There is, of course, a defence to the charge of vicarious liability. The accused has to demonstrate to the court that:

(a)    he did not know the offence was being committed; AND

(b)   he took all reasonable steps AND exercised all due diligence to prevent the offence being committed.

It is not yet known what a court will accept as reasonable steps and due diligence, but the word ‘all’ may be significant (as in ‘all’ reasonable steps and ‘all’ due diligence). Much will depend on the specific circumstances of each case, but what does seem clear is that doing nothing will not be an adequate defence. As a minimum, the defendant should be able to show, with written documentary evidence, that work procedures have been evaluated, risks have been assessed, training has been offered if deemed necessary, a system of checks are in place and that regular reviews have been undertaken. These procedures are not dissimilar to the way a health and safety system operates so it should not be beyond the capabilities of someone with managerial responsibilities to undertake this type of procedural audit.

There is a significant amount of interest in how effective the new legislation will be, and we will watch with interest as the (inevitable) cases are brought before the courts.

It should be noted that the offence of vicarious liability (in relation to the persecution of raptors) is only currently applicable in Scotland. Other parts of the UK have not yet adopted this approach, although it has been reported that legislators in England are watching to see how well it works in Scotland. As illegal raptor persecution is just as much of a problem in England, conservationists have launched a petition to have the issue of vicarious liability debated in the English Parliament. The petition needs 100,000 signatures to trigger the parliamentary debate – please visit the petition site (here) and sign it!

FURTHER READING

Wildlife and Natural Environment (Scotland) Act 2011 (the full text of the Act here).

Scottish Land & Estates, the representative body of Scottish landowners, has written a guide about the issue of vicarious liability called ‘Due Diligence Good Practice Guide’. It has a foreword by Scottish Environment Minister Stewart Stevenson and it is said to have been endorsed by the PAW Scotland Executive. You might think that such endorsements would mean the guide is freely available, but you’d be wrong. It’s only free to SLE members; if you’re an interested member of the public you have to pay the princely sum of £30 (thank you to the three contributors who each sent us a free copy!). It is an interesting read though, and is by far the most useful guide we’ve seen so far.  Especially helpful is the presentation of various case studies involving different sectors of the shooting sector (e.g. large grouse moor, medium-sized owner occupied mixed estate, farm syndicate shoot etc) and the discussions about who might be liable to prosecution in each scenario. It’s been prepared by several ‘legal eagles’ who specialise in wildlife law but perhaps most surprisingly, thanks are given to James Hodge of Baikie Hodge Ltd. Would this be the same Baikie Hodge Ltd. with connections to Millden Estate (see here) and also Leadhills Estate (see here to download the PDF)? Interesting! If you want to pay £30 for a hard copy of the guide, contact SLE via their website here.

Solicitor Robert Scott-Demspter’s article on vicarious liability in the Scottish Field here [Scott-Dempster is also acknowledged as a contributor in the SLE’s guide].

Law firm Lindsay’s rural bulletin on vicarious liability here.

Law firm Turcan Connell’s briefing note on vicarious liability here.

Law firm Brodies’ article on vicarious liability here

An article on VL in The Journal of The Law Society of Scotland (Aug 2012) here

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