Last week we blogged about the Crown Office dropping all proceedings against landowner Andrew Walter Bryce Duncan, who was alleged to be vicariously liable for the criminal actions of his 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 appealed his conviction but this appeal was rejected on 15 July 2016 (see here).
The Crown Office & Procurator Fiscal Service (COPFS) began vicarious liability proceedings against Mr Duncan in August 2015 but the case was repeatedly adjourned (a total of 13 court hearings) with two trial dates assigned but then later dropped (see here). These repeated delays were due in part to gamekeeper Dick’s appeal against his conviction but in part for other reasons which have not been explained.
As the third trial date (24 April 2017) approached, we were somewhat surprised to learn last week that the case had been abandoned. We asked COPFS why this had happened and this is their response:
“All cases are continually kept under review, and after taking consideration of the full circumstances of this case, and all of the available evidence, Crown Counsel concluded that it was not in the public interest to continue the case to trial.
COPFS remain committed to tackling raptor persecution and there is a strong presumption in favour of prosecution of the cases reported to us where there is sufficient evidence and it is in the public interest to do so“.
There is no detail about why proceeding to trial ‘was not in the public interest’ and indeed, the COPFS does not have to disclose this information. We do know that the COPFS Prosecution Code outlines a large number of factors that are to be considered for a public interest test, including:
- The nature and gravity of the offence
- The impact of the offence on the victim and other witnesses
- The age, background and personal circumstances of the accused
- The age and personal circumstances of the victim and other witnesses
- The attitude of the victim
- The motive for the crime
- The age of the offence
- Mitigating circumstances
- The effect of prosecution on the accused
- The risk of further offending
- The availability of a more appropriate civil remedy
- The Powers of the court
- Public concern
Without knowing the specific details of the evidence in this case it is pointless to speculate about why the case was abandoned (and for anyone commenting on this post, please be careful not to libel Mr Duncan). We just have to accept that it was abandoned, as frustrating as that is, but we do hope that the COPFS will share some detail with the reporting agencies so that lessons can be learned for future cases.
Journalist Rob Edwards has written an interesting piece about the case, published today on The Ferret website (here), which includes some news about the Newland Estate’s membership of Scottish Land & Estates and its accredited membership of the SLE-administered Wildlife Estates Scotland initiative.
In a wider context, this abandoned case is highly significant. Contrary to the COPFS’ decision, there is huge and legitimate public concern and interest about wildlife crime enforcement, particularly in respect to raptor persecution crimes. The Scottish Government is keenly aware of this and has come under increasing pressure in recent years to introduce new measures to tackle the problem. Vicarious liability was one of those new measures (introduced on 1 January 2012) but to date, only two cases have resulted in a conviction: one in December 2014 (see here) and one in December 2015 (see here). Both related to raptor persecution on low ground shoots, not on intensively managed driven grouse moors where raptor persecution is known to still be a common occurrence. One further case in October 2015 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).
Given the low success rate of vicarious liability, alongside the continued illegal persecution of raptors on game-shooting estates, it is clear that the Scottish Government needs to do more.
Tomorrow, the Scottish Parliament’s Environment Committee will hear evidence from the Scottish Raptor Study Group (Logan Steele & Andrea Hudspeth) in support of their petition to introduce a state-regulated licensing scheme for all game bird shooting in Scotland. Part of this licensing scheme would include provisions for sanctions against estates where raptor persecution takes place. Evidence will also be heard from various stakeholders including RSPB Scotland (Duncan Orr-Ewing), Scottish Gamekeepers’ Association (Andy Smith), SNH (Robbie Kernahan) and Scottish Land & Estates (David Johnstone). The evidence session begins at 10am and can be watched live on Scottish Parliament TV (here) and we’ll post the transcript when it becomes available later in the week.