23
Nov
16

Vicarious liability prosecution: Andrew Duncan (Newlands Estate), part 11

scales-of-justiceThey’re having a laugh.

Criminal proceedings continued yesterday (22 November 2016) against landowner Andrew Walter Bryce Duncan, who is alleged to be vicariously liable for the crimes committed by gamekeeper William (Billy) Dick in April 2014.

Gamekeeper Dick was convicted in August 2015 of killing a buzzard on the Newlands Estate, Dumfriesshire by striking it with rocks and repeatedly stamping on it (see here). Mr Dick was sentenced in September 2015 and was given a £2000 fine (see here). Mr Dick attempted to appeal his conviction but this was refused on 15 July 2016 (see here).

Here’s a quick review of the proceedings against Andrew Duncan so far:

Hearing #1 (18th August 2015): Trial date set for 23rd Nov 2015, with an intermediate diet scheduled for 20th Oct 2015.

Hearing #2 (20th October 2015): Case adjourned. November trial date dumped. Notional diet hearing (where a trial date may be set) scheduled for 18th January 2016.

Hearing #3 (18th January 2016): Case adjourned. Another notional diet & debate scheduled for 11th March 2016.

Hearing #4 (11th March 2016): Case adjourned, pending the result of gamekeeper Billy Dick’s appeal. Another notional diet scheduled for 4th April 2016.

Hearing #5 (4th April 2016): Case adjourned, pending the result of gamekeeper Billy Dick’s appeal. Another notional diet scheduled for 3rd June 2016.

Hearing #6 (3rd June 2016): Case adjourned, pending the result of gamekeeper Billy Dick’s appeal. Another notional diet scheduled for 17th June 2016.

Hearing #7 (17th June 2016): Case adjourned, pending the result of gamekeeper Billy Dick’s appeal. Another notional diet scheduled for 15th July 2016.

Hearing #8 (15 July 2016): Case adjourned. Another notional diet scheduled for 2 August 2016.

Hearing #9 (2 August 2016): Proceedings moved to trial. Intermediate diet scheduled for 15 November 2016 and provisional trial date set for 7/8 December 2016.

Hearing #10 (15 November 2016): The case was adjourned for another intermediate diet scheduled for 22 November 2016. A new trial date may be set depending on what happens during this hearing.

Hearing #11 yesterday (22 November 2016): The case was adjourned for yet another intermediate diet scheduled for 6 December 2016. Trial dates expected to be assigned during this Dec hearing, so presumably the provisional trial dates of 7/8 Dec have been dumped.

Vicarious liability in relation to the persecution of raptors in Scotland (where one person may potentially be legally responsible for the criminal actions of another person working under their supervision) came in to force nearly five years ago on 1st January 2012. To date there have been two successful prosecutions/convictions: one in December 2014 (see here) and one in December 2015 (see here).  One further case did not reach the prosecution stage due, we believe, to the difficulties associated with identifying the management structure on the estate where the crimes were committed (see here).

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17 Responses to “Vicarious liability prosecution: Andrew Duncan (Newlands Estate), part 11”


  1. 1 Ian rogerson
    November 23, 2016 at 1:03 pm

    [Ed: comment deleted as it implies the accused is guilty. Please remember that at this stage of proceedings the offence is only alleged]

  2. 2 SOG
    November 23, 2016 at 1:08 pm

    Justice should be seen to be done

  3. 3 eco-worrier
    November 23, 2016 at 1:11 pm

    [Ed: comment deleted as defamatory. We don’t know who is responsible for the lengthy judicial delays but both the prosecution and defence may be culpable. It’s a mistake to just assume it’s the fault of the defence]

  4. 4 against feudalism
    November 23, 2016 at 1:30 pm

    Difficult to know what is going on. I did find this which explains a bit,

    http://www.gov.scot/Publications/2004/03/19042/34197

    Is there any information online, regarding the ‘ intermediate diets ‘, ie. the reason (s) they fail to proceed to trial ? or is that considered sub judice ?

    Too easy to think ‘conspiracy’

    • November 23, 2016 at 1:37 pm

      Very unlikely to be ‘conspiracy’. It’s just the way summary cases are handled (these delays are common across the broad spectrum of summary cases, not just wildlife crime). These diets are just procedural – a way for the court to ensure that both the prosecution and defence are fully prepared for trial. They’re actually designed to save court time (e.g. if a trial commenced and one side didn’t have all the evidence to hand, the trial would have to be delayed, inconveniencing all the participants, including witnesses). Having said that, 11 hearings is pretty excessive by anyone’s standards, although this case suffered additional delays as they had to wait to hear the outcome of the gamekeeper’s appeal before this case could proceed.

  5. 6 dave angel
    November 23, 2016 at 2:02 pm

    I’d hazard a guess that the defence solicitors are challenging everything and conceding nothing, which is fair enough, it’s their job.

    So long as their approach doesn’t adversely affect how COPFOS deal with any similar cases in the future.

  6. 7 sallygutteridge
    November 23, 2016 at 2:09 pm

    We have been called as witnesses for this next date, we are away though so won’t be there, if it does go ahead.

  7. 9 Tony Warburton MBE
    November 23, 2016 at 4:46 pm

    How long do we have before ‘time’ runs out? What a shambles.

    • November 23, 2016 at 4:52 pm

      Time won’t ‘run out’ now proceedings are underway. The time bar (3 years from commission of crime) only applies for STARTING criminal proceedings. Once proceedings have been started, as they have in this case, they run until the case is concluded.

      • 11 Adam
        November 25, 2016 at 6:30 pm

        A bit of a moot point as the case is already running, but my recollection was that the time bar for summary proceedings was 6 months (Criminal Procedure (Scotland) Act 1995, s 136), unless otherwise provided by a particular Act.

        (Not relevant to the above case, but unless the trial has actually started a solemn case can, and often does, ‘timebar’ during a sitting into which it was indicted, in which case the sheriff or the judge can extend the time bar ‘on cause shown’ as per s 65.)

        • November 25, 2016 at 6:39 pm

          Hi Adam,

          Our understanding is that (in Scotland) any offence under the Wildlife & Countryside Act 1981 must be commenced no later than six months from the date sufficient evidence is received by the Fiscal, and no later than 3 years after the commission of the offence.

          In England, the time bar is two years from the date of the offence.

          • 13 Adam
            December 1, 2016 at 9:10 pm

            My mistake, I guess I should have checked the 1981 Act : section 20 provides a specific time limit for summary proceedings, so obviously s 136 of the 1995 Act does not apply.

  8. 14 Tony Warburton MBE
    November 23, 2016 at 4:50 pm

    Forgot to mention – I still haven’t received even an acknowledgement of my request for answers to the three questions you put to the unholy trio you suggested we contact in the last blog about this case. Has anyone else?

  9. 15 Keith Morton
    November 23, 2016 at 10:12 pm

    From 15 years close-up experience of the Scottish summary justice system, I would say that this sort of endless delay is pretty generic and unlikely to be much to do with the nature of the case itself. The court and PF services are badly under-resourced, something that is always strenuousy denied and most of the lawyers involved – from all parties – are so used to it they regard it as normal. More specific comment is not appropriate at this stage but I would say that, although rushed justice risks being unjust and is to be avoided, justice done at glacial speeds is also unfair (to all interested parties).


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