Last month we blogged about whether anyone from the Kildrummy Estate in Aberdeenshire would face a vicarious liability prosecution for the criminal actions of Kildrummy gamekeeper George Mutch.
Mutch, as you may recall, was convicted in December 2014 for various wildlife crimes he committed on the Kildrummy Estate in August and September 2012, including the trapping of a goshawk which he then beat to death with a stick (see here). In January 2015, Mutch was sentenced to four months in prison; a landmark custodial sentence for a raptor-killing gamekeeper (see here).
In September 2015 we noticed that time was running out for a subsequent potential vicarious liability prosecution because after three years from the date the crime was committed, the case becomes ‘time-barred’ and a prosecution is no longer possible. We decided to ask the Crown Office for information about any pending vicarious liability prosecution (see here) but to be honest, we weren’t expecting much of a response.
However, the Crown Office has surprised us by issuing the following unusually open response:
“Wildlife and environmental crime is a priority for the Crown Office and Procurator Fiscal Service. Such cases are investigated and prosecuted by our specialist Wildlife and Environmental Crime Unit, WECU. A report was submitted by the police against George Mutch alleging the unlawful taking and killing of birds of prey by him at Kildrummy Estate, Aberdeenshire in dates in August and September 2012 and considered by WECU. Following further investigation, a criminal prosecution was raised. Mr Mutch pled not guilty but was convicted of the offences after trial and in January 2015 he was sentenced to four months imprisonment.
Despite further investigations including investigations which focused on establishing vicarious liability, no-one else has been reported to COPFS in relation to the events which took place in Kildrummy Estate in 2012 and accordingly, no further prosecution, including any prosecution for a vicarious liability offence, has taken place“.
So, just to be clear, a vicarious liability prosecution is not underway, and as this case has now become time-barred (because the offences were committed in Aug/Sept 2012), as we understand it there won’t be a vicarious liability prosecution for this case in the future. Massive fail.
This will be a huge disappointment to all those who have been following this particular case, and especially for those who worked so hard to secure the initial conviction of Mutch. But perhaps more importantly, this is yet further evidence that the new and much-lauded Government measures to tackle raptor persecution are simply not working as well as they should be.
So what went wrong, and what are the potential ramifications for future vicarious liability prosecutions?
Let’s go back to that statement from the Crown Office, and particularly the first part of the sentence in the last paragraph:
“Despite further investigations including investigations which focused on establishing vicarious liability, no-one else has been reported to COPFS…..”
It’s clear from this that attempts were made to identify somebody for a vicarious liability prosecution. There are at least three possible explanations for what happened next:
- An individual was identified but they were able to show that they had exercised ‘due diligence‘ in that they had written records demonstrating that they did not know the offences were being committed AND they had taken all reasonable steps AND exercised all due diligence to prevent the offences being committed. This is possible, of course, but in this particular case is fairly implausible given that during the trial, Mutch was asked, quite pointedly by the Fiscal Tom Dysart, whether he had received training [from his employer/supervisor] for the use of his traps, to which Mutch had replied ‘No’. Given Mutch’s claim, if his employer/supervisor had subsequently claimed due diligence as a defence to a vicarious liability prosecution, the case should have been heard in court where the Fiscal could challenge the veracity of the employer’s/supervisor’s claims.
- Police Scotland ran out of time for their investigation. This is plausible, seeing as Mutch was only convicted in December 2014 leaving just nine months before the case became time-barred. Having said that, if this is what happened it would reflect badly on Police Scotland because they should have been thinking about, and planning for, a potential vicarious liability prosecution way back in 2012 when they were first made aware of these crimes. The legislation enabling vicarious liability prosecutions was enacted on 1st January 2012, to much public fanfare, so the police can hardly claim they didn’t know about it at the time they were initially investigating these crimes in September 2012.
- It was impossible for Police Scotland to identify a suspect for a potential vicarious liability prosecution due to the complexity of ownership at Kildrummy Estate. On the one hand, this seems a pretty implausible explanation. Mutch, surely, knew who employed him and who paid his wages. But on the other hand, this explanation could be highly plausible given the convoluted information about ownership of the Kildrummy Estate as revealed by Andy Wightman’s excellent investigation earlier this year – see here. If this is indeed what happened in this case, it has far-reaching implications for future vicarious liability prosecutions. All an estate owner has to do to avoid a potential prosecution is register his/her land in an offshore tax haven because then the landowner becomes untraceable. Genius. For a fascinating and detailed explanation of how these tax havens work, and how the Scottish Government has so far refused to legislate against them despite recommendations, have a read of Andy’s latest blog – here.
Given the faith that the Environment Minister has placed in the use of vicarious liability prosecutions as an effective tool to tackle illegal raptor persecution (and thus sees no need to introduce further measures), and given the failure to prosecute in this particular case, as well as the huge public interest, an explanation is required about what did (or didn’t) happen here. The Crown Office has said it didn’t prosecute because Police Scotland didn’t report anybody for a potential vicarious liability prosecution. So, the next port of call for an explanation has to be Police Scotland. They can’t use their usual get out clause of saying ‘Sorry, can’t comment, it’s a live investigation’ because this case is no longer live. It’s very much dead in the water. So will they show some transparency and accountability here? Let’s hope so.
To ask Assistant Chief Constable Malcolm Graham why nobody was reported for a vicarious liability prosecution in relation to raptor persecution crimes at Kildrummy Estate in 2012, please email: ACC.CrimeMCPP@scotland.pnn.police.uk