09
Feb
15

SNH slow to enforce general licence restriction for poisoned red kite

rk by David TomlinsonIt’s been four months since SNH set in place its procedures for restricting the use of General Licences on land where evidence of raptor crime is apparent.

Rolled out on 6th October 2014 (see here), this new measure was to be back-dated to incidents that have occurred since 1st January 2014. And there are plenty of those, some of which have reached the public domain and some of which have been deliberately kept quiet.

One of those which has been kept quiet is the illegal poisoning of a red kite which was found dead in central Scotland last July (seven months ago). It had died after ingesting the banned poison Carbofuran.

A couple of weeks ago we blogged about this particular case (see here) and we encouraged blog readers to email Andrew Bachell, SNH’s Director of Operations, to ask whether a General Licence restriction had been enforced. Here’s his response:

Dear XXXXX

Thank you for your e-mail. No restrictions have yet been implemented on a General Licence, including for this case.

We all find crimes such as these abhorrent and we, along with Scottish Ministers are fully committed to tackling wildlife crime. The restrictions on the use of General Licences are one tool we can use to help. In order to do so, we have been meeting regularly with the Police to review and discuss all evidence of bird-crimes that occurred in 2014 in line with our decision-making framework (see http://www.snh.gov.uk/docs/A1417398.pdf).

This document highlights that the decision to restrict the use of a General Licence will be based on evidence provided by Police Scotland and will be made on a case-by-case basis. In making a decision each piece of evidence will be assessed against criteria including:

– The strength of evidence that those activities had been carried out by owners or managers of that land

– The number or frequency of such instances

– The actual or potential conservation impact of those activities;

– The age of the evidence.

– Any history of previous, similar instances.

Whilst no restriction has yet been published, as soon as we were informed by Police Scotland about this case it has been under consideration by SNH against these criteria and we have been in close contact with the Police as the investigations continue. We will publish any restrictions on the website as and when they are implemented. In the meantime, I trust you can understand we cannot discuss individual cases, and particularly ones which are subject to ongoing police investigations such as this one.  

Yours sincerely

Andrew Bachell

Director of Operations

Scottish Natural Heritage

It’s a predictable response in that it doesn’t tell us very much other than the case is under consideration. What it doesn’t explain is the delayed enforcement action. When you consider that the decision whether or not to restrict the General Licence is based on a civil burden of proof rather than a criminal burden of proof (i.e. a conviction), it’s not clear why SNH is waiting to hear about the on-going police investigation. When you look at the other criteria that SNH is using to assess these cases, we believe the criteria for enforcement action have been met: This poisoned red kite is not the first case of raptor persecution in this area (although no known prior convictions but that shouldn’t matter because criminal burden of proof isn’t required); the conservation impact of poisoning a red kite is obvious; and the poisoned carcass (i.e. the evidence) was fresh enough for SASA to determine that the bird had been poisoned by Carbofuran.

So why the delay?

Perhaps we’re being unfair and SNH has already issued a restriction notice and it has been challenged/appealed by the landowner (as is his/her right under the terms of SNH’s restriction framework). Indeed, we’d be extremely surprised if any landowner didn’t challenge/appeal a restriction of this type, given the problems of using a civil burden of proof for enforcement measures.

This case will be an interesting one to watch. Let’s hope that whatever the outcome, SNH will demonstrate some transparency and explain the reasons for either the failed or successful enforcement.

Red kite photo by David Tomlinson

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5 Responses to “SNH slow to enforce general licence restriction for poisoned red kite”


  1. February 9, 2015 at 12:37 pm

    SNH are only willing to tread softly. They do not want to disturb the hornets nest that is the “countryside shooters” in all their guises. If they did I’m sure that the hornets would be unable to use their sting in any meaningful way.

    Unless, of course, they withdraw funding! That could lighten someones take home pay.

    If they withdraw cooperation that would make no difference at all?

    The criminals will continue to make feeble excuses and declare that “it wasn’t me!”

    • 2 crypticmirror
      February 9, 2015 at 1:23 pm

      I suppose they’ve got to be careful right at the start of new powers. One of the downsides of a precedent based legal system is that if you get the wrong sort of precedent at the start (for example, sympathetic magistrates putting strict limits on prosecuting bodies and imposing large stumbling blocks), then it becomes very hard to get anything changed later without more legislation. You have to build up supportive case law at the start through only the most ironclad cases in order to be able to tackle more problematic ones later.

      • February 9, 2015 at 2:13 pm

        True, although the General Licence restriction framework isn’t precedent-based. SNH has stated it will consider each incident on a case-by-case basis and use the stated criteria to reach a decision.

        • 4 crypticmirror
          February 9, 2015 at 2:41 pm

          That is what always gets said, but there isn’t a non-precedent based system in Britain that does not rely heavily on precedent. It would be fairer to say it isn’t supposed to be precedent based, but if you believe that then I have a bridge at Erskine to sell you.

  2. 5 Circus maxima
    February 9, 2015 at 9:43 pm

    The Scottish Government (people) need a competent nature conservation agency that actually works for the conservation of our environment.

    SNH have airbrushed the word conservation from their vocabulary.

    Why should we have to try to shame them into doing their job?


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