23
Dec
14

First conviction in landmark vicarious liability case

scales-of-justiceThe first ever prosecution under the new vicarious liability legislation concluded today with a conviction at Stranraer Sheriff Court.

Landowner Ninian Robert Hathorn Johnston Stewart pleaded guilty to being vicariously liable for the criminal actions of Glasserton & Physgill Estates’ gamekeeper Peter Bell, who was convicted in 2013 of laying poisoned bait (Carbofuran) which killed a buzzard, and for possession of three banned pesticides (Carbofuran, Strychnine and Alphachloralose). Bell was fined a total of £4,450 (see here). On conviction, Bell was expelled from the Scottish Gamekeepers’ Association and the Glasserton & Physgill Estates were expelled from the landowners’ representative organisation, Scottish Land & Estates.

So, what was the penalty in this landmark vicarious liability conviction? A pathetic £675! We don’t know the full details of Johnston Stewart’s plea, or if there was any mitigation, but nevertheless, a £675 fine is extremely disappointing, especially when you consider that the maximum penalty for this offence is £5,000 and /or a six month prison sentence.

Will a derisory fine of £675 act as a suitable deterrent to others? No, of course not; that’s pocket change to a wealthy landowner. It’s yet another example of why there needs to be a complete overhaul of the penalties for wildlife crime and we look forward to reading Professor Poustie’s review on this issue, which is due to be submitted to the Scottish Government early next year.

What might act as a deterrent is the reputational impact of the conviction, but only if the conviction is widely publicised. We haven’t seen anything in the press, yet. Hopefully some of the journalists who follow this blog will get something out there….

So, although this is a disappointing penalty, the fact that there has been a conviction and thus a demonstration that the legislation works, is to be welcomed. Well done to the Fiscal and all those involved with bringing this case to court.

We now have information on the second vicarious liability prosecution currently going through the system and we’ll be blogging about that one in the new year.

UPDATE 19.15hrs. The following press release has been issued by the Crown Office:

copfs logoFIRST WILDLIFE VICARIOUS LIABILITY CONVICTION IN SCOTLAND

Landowner Ninian Stewart sentenced today after pleading guilty to being vicariously liable for Peter Finley Bells’ crime of poisoning and killing of a wild bird.

Ninian Robert Hathorn Johnston Stewart was convicted at Stranraer Sheriff Court on 23 December 2014 and fined a total of £675 today for four offences under Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981. Section 18A(2) makes the accused guilty of the original offence and liable to be punished accordingly.

This is the first prosecution and conviction in Scotland under section 18A of the Wildlife and Countryside Act 1981. This section came into force on 1 January 2012.

Section 18A(2) created a new vicarious liability offence meaning that a person (B), who has shooting rights on or over land, or who manages or controls the exercise of such rights, can be found guilty of a relevant offence(s) committed by a person (A) while acting as the employee or agent of B.

This provision is designed to encourage landowners and employers with varying levels of responsibility in connection with shooting to be diligent and proactive in countering wildlife crime.

Stewart, the landowner of Glasserton & Physgill Estates, was convicted of being vicariously liable for the criminal actions of Glasserton gamekeeper Peter Bell on land owned by Stewart and on which he held the shooting rights.

Bell was a full time Gamekeeper in the employ of Ninian Stewart when he committed the poisoning offence on 23 December 2012 at Glasserton Home Farm. He had laced the carcass of a pheasant baited with Carbofuran and set the bait in a field. A birdwatcher passing the farm saw something flapping in the field and on closer inspection found that it was a common buzzard, lying on the ground, in the last throws of life. Subsequent forensic work showed that the buzzard had died as a result of ingesting the poisoned bait.

Under section 18A(3) it is a defence for B to show that B did not know that the offence(s) was being committed by A, and that B took all reasonable steps and exercised all due diligence to prevent the offence being committed.

In this case, while there was no indication that Mr Stewart instructed the commission of the offences or that he even knew about them being committed, there no evidence that Mr Stewart took any steps to exercise due diligence in respect of shooting on his Estate.

Sara Shaw, Procurator Fiscal, Wildlife and Environment said:

“There is a proactive responsibility placed on those who employ game keepers to run shooting estates, to ensure that is done within the parameters of the law.

“These offences were committed almost a year after the vicarious liability offence (under section 18A of the Wildlife and Countryside Act 1981) was introduced. Mr Stewart had adequate notice and time in which to take advice and put appropriate measures in place.

“Mr Stewart failed in his responsibilities and as a result stands convicted of the killing of a wild bird.

“The law specifically protects wild birds. Those who seek to poison wild birds, or continue to possess stocks of illegal poison, and those who employ or engage the services of such persons and tolerate the commission of these offences, or who do so without taking all reasonable steps and exercising all due diligence to prevent them being committed, can fully expect to be brought to account before the courts.”

ENDS

Notes to Editor

  1. Ninian Robert Hathorn Johnston Stewart (DOB 18/02/1948) of Newton Stewart pleaded guilty on 23 December 2014 at Stranraer Sheriff Court to four offences under the Wildlife and Countryside Act 1981 as below.

(001) on 23rd December 2012 on or in relation to land at Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 1(1)(a) of the aftermentioned Act, in that he did intentionally or recklessly kill a wild bird, namely a common buzzard in that he set the carcass of a pheasant baited with poison, namely carbofuran after which said buzzard did ingest said Carbofuran and did poison said buzzard whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 1(1)(a) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 1: £150 (reduced from £200)

(002) between 23rd December 2012 and 5th March 2013 both dates inclusive on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely Carbofuran containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely Carbofuran whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence; CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 2: £225 (reduced from £300)

(003) on 05 March 2013 on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely Strychnine containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely Strychnine whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being

a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 3: £75 (reduced from £100)

(004) on 05 March 2013 on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely alphachloralose containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely alphachloralose whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 4: £225 (reduced from £300)

  1. Peter Finley Bell (DOB 11/02/1951) from Whithorn, Newton Stewart was fined £4,450 on 18 June 2013 after pleading guilty to four charges contrary to the Wildlife and Countryside Act 1981: one contravention of section 1(1)(a) (killing a wild bird) and three contraventions of section 15A (possession of an illegal pesticide). He was fined £2,450 for killing the buzzard (reduced from £3,500 to reflect his plea of guilty); £1,400 for possession of Carbuforan (reduced from £2,000) and £300 on each charge for possession of Strychnine and Alphachloralose (reduced from £500 on each charge).

END

MEDIA COVERAGE

BBC news here

Galloway Gazette names Sheriff Kenneth Robb here

Scottish Land & Estates: an extraordinary statement here. Glasserton & Physgill Estates were expelled from SLE in 2013, following the conviction of gamekeeper Bell (see here). Reading SLE’s defensive response to the conviction of landowner Johnston Stewart, you have to wonder…..

Journal of the Law Society of Scotland here

Scottish Daily Mail here

UPDATE 6th January 2015: Landowner hit with a five-figure subsidy penalty (here)

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21 Responses to “First conviction in landmark vicarious liability case”


  1. 1 sallygutteridge
    December 23, 2014 at 6:57 pm

    It’s heartening that there is a group of people all working on this kind of prosecution. Even if the apathy and general abuse towards other animals continues to be a far bigger factor, still it’s better than no one looking out for the raptors. It’s saddest of all that more persecuted species’ are unprotected, though I suppose some protected by law are better than none.

  2. December 23, 2014 at 7:30 pm

    This has been a very, very long time coming. Think how many of the “great and good” would have convictions if this law was retrospective…. I am fascinated by the guilty plea here..where were all the landowners lawyers looking for “loopholes” to ensure that he was “innocent”?…must have been very well written law and well written charges…Many congrats to all involved.

  3. 3 Stewart Love
    December 23, 2014 at 7:51 pm

    Yes it is a pathetic fine for a landowner but it’s now proved that Vicarious Liability does work and can be used against landowners. We all know that landowners will laugh at the amount of the fine, but hopefully now, they will have to think that the sentence could be heavier depending on the crime. It’s a start if not a great one and may make some landowners start to mend their ways. The very very faint chance of 6 month in prison with all it’s friendly inmates would certainly make me think twice.

  4. 4 Marco McGinty
    December 23, 2014 at 8:18 pm

    The sum of £675 is an utterly pointless amount to fine a landowner, especially as it has been reported he admitted to four separate charges, and is perhaps a result of establishment figures looking after their own, but as Dave has pointed out, it is a conviction. It’s a start, and the owner(s) of this blog, its supporters, and all of those involved in campaigning to protect our valued wildlife, should take a wee bit of credit for bringing about such changes.

    And whether people choose to agree or not, I’m going to give the Scottish Government some credit for introducing the law in the first place.

    Well done to everyone involved.

    There is now a piece on the BBC website https://archive.today/XnpuH

  5. 5 Circus maxima
    December 23, 2014 at 8:35 pm

    Xmas has come early!

  6. 6 chris roberts
    December 23, 2014 at 9:49 pm

    I agree the Scottish government certainly deserves credit for introducing this. Great that this first prosecution has been successful.

  7. December 23, 2014 at 11:31 pm

    Pathetic fine but at least it was guilty conviction.

  8. 8 Circus maxima
    December 23, 2014 at 11:40 pm

    Criminal landowners employing criminal gamekeepers….. a crime syndicate worthy of the serious crime squad!

  9. 9 nirofo
    December 24, 2014 at 1:34 am

    Although a fine of £675 is pathetic it doesn’t really matter in this first ever vicarious liability conviction it’s the principal that counts! The point is its a landmark conviction that sets a precedent, it’s a conviction of a criminal estate owner who xxxxx xxxxx xxxxx allowed the gamekeeper in his employment to commit criminal acts resulting in the deaths of protected wildlife. It will hopefully send a message to all the other criminal shooting estate owners who employ people to illegally persecute protected wildlife, the message is we’ve had enough of your wildlife murdering ways and we will be watching and reporting you at every opportunity.

    Let’s hope that many more of these criminal shooting estate / land owners are brought to justice along with their gamekeepers and the severity of the sentencing escalates exponentially.

  10. 10 Peter Cosgrove
    December 24, 2014 at 8:46 am

    What are the implications for the landowner of paying back, and in the future not getting, public subsides? Does cross compliance have a role here and if so will the appropriate authorities be automatically informed of this conviction?

  11. 11 Dougie
    December 24, 2014 at 10:17 am

    The fine is very low. I don’t see the logic of the landowner’s fine being less than that of his employee. I wonder what level of fine would have been imposed if he had not admitted guilt.
    Anyhow, he now has a criminal record.

  12. 12 Logan Steele
    December 24, 2014 at 12:39 pm

    Fantastic news and although the fine was small do not underestimate the fact that the landowner now has a criminal conviction to his name which will create all sorts of issues in both his personal and business life. Dave Dick must take particular credit for this as he was the one that started this movement all those year ago.

    • 13 Marco McGinty
      December 24, 2014 at 10:14 pm

      Ah, didn’t realise that Dave was instrumental in bringing about such positive change. Well done, Dave, it is truly appreciated!

  13. 14 Bimbliing
    December 24, 2014 at 1:36 pm

    Over the years keepers have quite literally been ‘a law unto themselves’ which has clearly often suited their employers. Perhaps this will begin to make some change in employer’s attitudes and have them taking rather more interests in the doings of their staff, rather than avoiding that responsibility which many do at present.

  14. 15 Damion Willcock
    December 24, 2014 at 10:32 pm

    Yes a landmark moment, and well done to al those who have brought this about. Scottish government included.

  15. 16 Tony Warburton MBE
    December 25, 2014 at 4:37 pm

    All of the above comments say it all. Yes, the fine was pathetic, but nevertheless, this was the first ever vicarious liability success and that really is a landmark result which will undoubtedly send shock waves through the shooting fraternity. You will note that there hasn’t been a response from Mr Hogg so far as I know). It also sets a precedent against which future cases can be compared and quoted on. For instance, what would happen if another future employee of landowner Stewart commits a similar offence? I suspect the fine would not then be so derisory, and you can bet that because of this, Stewart will be keeping a much closer eye on the behaviour of his gamekeepers from now on. He will certainly not like having a criminal record. How many of you thought this case would end in a conviction? I for one didn’t, so am thrilled by the verdict. A battle won. Now for the war!

  16. 17 The voice of cheese
    December 27, 2014 at 9:17 am

    I’ve never been convinced that vicarious liability will stand up to all levels of the legal system provided estates cover their backs (as I’m sure they are now doing). Since even an estate that was behaving honourably and was strongly against raptor persecution might find itself in a situation where a gamekeeper thought he knew better despite what he was instructed. I’d love to know the details of the evidence in this case that led to a guilty plea. I rather assume there was some particularly damning information that indicated direct knowledge/involvement of those running the estate, the sort of thing that most estates will be very eager to ensure doesn’t happen again.

    Perhaps knowing that they were caught bang to rights the landowner pled guilty to minimise his legal costs? The fine is indeed derisory given the four guilty counts, however even the maximum of £5k is small change to some landowners or shooting syndicates. It would seem to me that any extended legal fight is where the real costs mount up for the guilty (just like George Mutch; no matter what his sentence/fine turns out to be, his legal costs must have been significant and will hurt the wallet of whoever paid for it)
    However, given this estate has been found guilty does this now mean that there could also be further sanctions (eg. CAP withdrawal if any are associated, general licence withdrawl?).

    • December 27, 2014 at 9:43 am

      The press release from COPFS was clear that the landowner didn’t have direct knowledge/involvement in the crimes.

      But our understanding is that an absence of direct knowledge/involvement is not a sufficient defence for VL. The landowner/sporting agent/head keeper/whoever has managerial responsibilities for overseeing the game management has to show evidence of a pro-active approach to preventing illegal persecution on the land for which they’re responsible (“due dilligence”) – e.g. written evidence of training, checks, reviews etc. Doing nothing is not a suitable defence. Have a look at our previous blog on VL:

      https://raptorpersecutionscotland.wordpress.com/2012/03/10/vicarious-liability-whats-it-all-about/

      It appears, from the COPFS press release, that Ninian Robert Hathorn Johnston Stewart could not produce any evidence of due dilligence and that was the crux of the successful prosecution.

      Re: further sanctions. We don’t think the General Licence restriction will apply because the crimes took place in 2012 and 2013. As we understand it, the GL restriction can only be applied retrospectively to offences that have taken place since 1st January 2014.

      The withdrawal of subsidies should be applicable, though, as banned poisons were involved. Strangely, subsidy withdrawal used to be well publicised in Scotland (e.g. in 2008, a large penalty of £107,000 was applied to Glenogil Estate because it was believed that poisons were being used to kill raptors, even though there wasn’t a criminal prosecution: https://raptorpersecutionscotland.wordpress.com/2010/03/03/record-penalty-for-poisoning-at-glenogil-estate-angus/ but over the last few years this sort of information has proven difficult to find in the public domain.


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