29
Aug
18

Whernside Estate retains membership of Moorland Association

Following on from yesterday’s news that gamekeeper Timothy Cowin had been convicted for shooting and then sadistically stamping to death two protected short-eared owls on a grouse moor on the Whernside Estate in the Yorkshire Dales National Park (see here), public anger has been justifiably prominent.

Many have commented on Cowin’s pathetic sentence (a £1,210 fine) but there has also been considerable commentary on social media about why the landowner hasn’t also been prosecuted.

If these crimes had taken place in Scotland, there would have been an opportunity to prosecute the landowner and/or shooting agent for alleged vicarious liability, following the introduction of the WANE Act 2011. Although in Scotland a prosecution may not have followed automatically, especially if the landowner and/or agent was able to show due diligence, or if the landowner couldn’t be identified, or if the prosecutors deemed it wasn’t in the public interest to proceed. Since the legislation was enacted on 1 January 2012, six and a half years ago, there have only been two successful prosecutions for vicarious liability in relation to raptor persecution (here and here); two others have failed (here and here) and others simply haven’t been considered for reasons that haven’t been made clear to us (e.g. see here).

However, as Whernside Estate is in the Yorkshire Dales National Park, not in Scotland, there is no hope that a prosecution for alleged vicarious liability will follow in this case.

[RPUK Map showing location of Whernside Estate, which is located in the county of Cumbria but also lies within the boundary of the Yorkshire Dales National Park]

So with no prospect of a further prosecution, the least that could be expected would be for the grouse moor owners’ lobby group, the Moorland Association, to expel the Whernside Estate from the ranks of its membership, right?

Well, no. The Moorland Association has done the exact opposite and has instead chosen to publish a statement in support of Whernside Estate and confirmed the estate’s continued membership in the Moorland Association:

Amanda Anderson’s justification for not expelling Whernside Estate rests with the Moorland Association’s “satisfaction” that the estate had taken “all appropriate measures” to ensure its staff acted within the law and this included written correspondence between the estate and gamekeeper Cowin. Without seeing this correspondence it’s impossible to know whether this evidence would have been sufficient to meet the standards of due diligence required as a defence against vicarious liability in Scotland. It’s our understanding that in Scotland, this correspondence may not be enough to demonstrate due diligence, and other measures may also be required such as the landowner and/or agent undertaking spot checks on their employees and having a written record of those checks.

It’s fairly apparent from the detail we do know about Cowin’s case that had adequate spot checks been undertaken, questions would have been raised about Cowin being in possession of a plastic peregrine decoy, and importantly, his possession of a calling device that had been loaded with the calls of several raptor species, presumably to be used to entice raptors, perhaps towards a plastic decoy, where they could then be shot at close range.

Unfortunately we’ll never get to hear about the details of the estate’s claimed supervision of Cowin because, as there’s no provision for a potential prosecution for alleged vicarious liability in relation to raptor persecution in England, the estate doesn’t have to present this information to the authorities for scrutiny. We only have the word of the Moorland Association, which, of course, has a long track record of denying the bleedin’ obvious.

But let’s take the word of the Moorland Association, and the Whernside Estate, at face value and assume that Cowin’s crimes were as abhorrent to them as they are to the rest of us. That leads to a very interesting question. Two questions, in fact.

Firstly, no matter what claims the Moorland Association makes in all these so-called ‘partnership’ meetings trying to combat illegal raptor persecution, the Moorland Association, and its members, have absolutely no control or influence over gamekeepers working on grouse moors. Cowin is a perfect example of this. If, as the MA and the Whernside Estate claims, Cowin had undergone training, refresher training, and had signed an employment contract undertaking to work within the law, he STILL went on to commit these crimes. So what, exactly, is the point of the Moorland Association attending these ‘partnership’ meetings if it can’t offer any guarantees that gamekeepers won’t kill raptors on grouse moors?

[Gamekeeper Cowin, leaving Whernside Moor after shooting and stamping on two short-eared owls and hiding their corpses. Photo by Guy Shorrock]

Secondly, if the Whernside Estate was “dismayed” at Cowin’s actions of shooting and then stamping on those two short-eared owls, and being in possession of a calling device with raptor calls loaded on to it, did the Whernside Estate pay for Cowin’s legal representation?

Cowin’s solicitor was Michael Kenyon. Mr Kenyon was unlikely to have been a random duty solicitor called in to the police station to represent Cowin when he was questioned and later charged. Mr Kenyon is a well known figure in the game shooting world and is considered a ‘leading expert’ in firearms law and wildlife crime and once served as the legal advisor to the National Gamekeepers’ Organisation (see here) so it seems likely that he was chosen specifically to defend Cowin based on his expertise.

We had thought that perhaps Cowin’s legal representation costs had been covered by his presumed membership of the National Gamekeepers’ Organisation, especially given Mr Kenyon’s links, but according to a tweet from the NGO this morning, Cowin “was not and never has been a member of the NGO“. So it would seem unlikely the NGO paid.

Did Cowin himself pay for Mr Kenyon’s legal services? Perhaps, but this seems unlikely given what the court heard yesterday about Cowin’s financial means.

Was Cowin a member of another ‘professional’ group whose membership dues include the cost of legal representation if faced with a prosecution in relation to gamekeeping activities? We don’t know.

Did the Whernside Estate pay for Cowin’s legal representation? We don’t know that either, but we do know that somebody accompanied Cowin to several court appearances and although we cannot identify that person, it was suggested to us that it was Cowin’s boss. It may well have been, as he was certainly chatty with Mr Kenyon, heard discussing the number of grouse available to shoot on Mossdale Estate (remember them?), but equally as plausible is an explanation that it may have been a member of Cowin’s family attending court to support him.

Unfortunately we’ll never get to find out who paid for Cowin’s defence.

We were also interested in what the other ‘countryside’ organisations had to say about Cowin’s conviction. Would they all be condemning his actions and saluting the efforts of the RSPB et al in securing a successful outcome? Here’s what we found, at the time of writing this blog:

GWCT – silence

BASC – silence

NGO – silence, apart from responding to a tweet to confirm Cowin was never a member.

Countryside Alliance – silence on Cowin’s conviction but leading with the news that the prosecution of three hunting group members for alleged hunting and wildlife crime offences had been dropped, and focusing on the “wasted public resources” by “animal rights extremists” in bringing this case to trial. Interesting – we could argue the same point about the amount of wasted public resources spent in Cowin’s case as it was dragged around five different courts in NW England before his eventual guilty plea.

During our searches for commentary from the grouse shooting industry we did stumble across an article about grouse shooting on Whernside Estate that had been published in The Field magazine in 2012. Strangely, the article seems to have been removed from The Field’s website archives but fortunately we were able to find a cached version elsewhere. It makes for an interesting read, especially the bit about Headkeeper Tim Cowin working as a joiner!

UPDATE 31 August 2018: Whernside Estate: more reaction to gamekeeper’s conviction for shooting owls (here)


33 Responses to “Whernside Estate retains membership of Moorland Association”


  1. August 29, 2018 at 3:57 pm

    The estate has taken all measures to ensure that it’s staff don’t get caught in the future.

  2. 2 Coop
    August 29, 2018 at 4:13 pm

    And there’s the mindset of these degenerates, summed up in the statement that Red Grouse are “sharp of mind” and “determined not to be killed” as if this is some kind of equal contest. That said, I suppose that they might seem quite bright, compared with the average grouse shooter!

  3. August 29, 2018 at 4:15 pm

    very disappointing to hear NE mentioned so much in that article also the use of the word “vermin” to describe what lived on blea moor.

  4. 4 Gerard
    August 29, 2018 at 4:18 pm

    “Amanda Anderson’s justification for not expelling Whernside Estate rests with the Moorland Association’s ‘satisfaction’ that the estate had taken ‘all appropriate measures’ to ensure its staff acted within the law and this included written correspondence between the estate and gamekeeper Cowin.”

    Indeed, “the proof is in the pudding,” that all reasonable measures were taken and that these “reasonable measures” produced the desired outcome. Clearly something isn’t working.

  5. 5 Al Woodcock
    August 29, 2018 at 4:20 pm

    So, Cowin already worked as a joiner. Resigning his job as head keeper (part time, evenings and weekends presumably) was hardly punishing for him, then.

  6. 8 Silver Birch
    August 29, 2018 at 4:27 pm

    I wondered why Blea Moor went from being a pleasant forested stroll between Dent and Whernside to being a total wasteland. It’s a disgusting scarred area now. Shameful – “a sanctuary for vermin” for goodness’ sake!

  7. August 29, 2018 at 5:12 pm

    Good to see the estate admit that public money was funding the moor, most seem to deny it. Presumably this is now under threat of claim back?

  8. 10 Colin Key
    August 29, 2018 at 5:17 pm

    That article from The Field makes me want to vomit, literally.

  9. 11 Gareth Jones
    August 29, 2018 at 6:04 pm

    If the Whernside Estate was managing their staff properly they would know what was going on. A number of things come to mind. Is this a case of written contract says one thing and verbal instructions say something quite different. If they were so innocent why were 3 RSBP investigators on the estate. No coincidence

  10. 12 Andy Field
    August 29, 2018 at 6:04 pm

    And why would a keeper take the risk of illegally luring and shooting birds of prey if he’d been expressly told not to by his employer? The false dismay from the Moorland Association and estate is nauseating. There can be no doubt that what the RSPB investigators witnessed here is an every day event on driven grouse moors.

  11. 13 bettylee13
    August 29, 2018 at 6:11 pm

    My dream, all driven grouse moors left to be rewilded and their game keepers removed to find other jobs (Cowin could). No more felling of our native trees, burning of the heather, drainage of catchment areas which should be holding back flood waters, buidling of tracks, lead and chemical pollution. Biodiversity would blossom – and hey, what a saving for taxpayers not having to help to pay for the salaries of game keepers to cover the cost of all that slaughter – wildlife and grouse! Wake up Britain, we should not be tolerating a system like driven grouse shooting with all its attended evils!

  12. 14 George M
    August 29, 2018 at 6:26 pm

    I’ve always said a gamekeepers primary skill is deception … [Ed: rest of comment deleted as libellous]

  13. 15 Jimmy
    August 29, 2018 at 9:08 pm

    Very hard to believe that these keepers go out of their way to kill protected species without the approval of their employers. Once again the statements from the usual suspects are designed to insult our intelligence

  14. August 29, 2018 at 9:45 pm

    You would have thought there should have been no opportunity to resign – if he had acted outwith what he had been contracted to do (within the law) he could have been sacked with no recourse to having legal representation unless ………

  15. 18 Mike Haden
    August 29, 2018 at 9:53 pm

    This thing that troubles me with all this (apart from the obvious), is that a company is accountable for the illegal actions of its employees during their course ow employment. I work for a glass manufacturer (yes not interesting at all but bear with me). about 10 years ago the all the glass manufacturers in Europe were done for rigging the market. In the judgement of the European commission they rigged the market and operated what was interpreted by some as a cartel. All the companies involved received a substantial fine (in the hundreds of millions). OK this was due to the illegal action of employees and the EU commission perceived a blind eye was turned by the directors. As a consequence employee has to go through rigorous anti-trust/competition compliance training every year. This is to absolve the company from any wrong doing in the future, and to ensure that if any employee feels something is wrong they have a confidential means to report this. It all boils down to arse covering by the company. But it does give the message company does not want to operate like some people did in the past.

    OK take the Whernside Estate. Their controls are obviously inadequate that a head gamekeeper can carryout illegal activities as this. but their professional association still will not expel them. Even if the estate were genuinely innocent then and they have implemented new procedures to comply with as the MA state
    ‘best practice’ the estate should have been disciplined by their industry body ( a suspension of a fews year for example until they can prove they have the correct procedures in place).

    RPUK make the excellent point that this case need to be held up as an example that the MA and landowners cannot control their employees and therefore cannot be allows in any conservation partnership.

    The personal punishment to Timothy David Cowin may be (to some people) insignificant, but in the wider concept, it is very valuable because it is a massive thorn in the side of the claim of vital conservation work preformed by the guardians of the countryside, that has been promulgated by the CA, MA, NGO, SGO,SLE, GWCT (I’ll leave the BASC out of this for now because up until now they have sort of broken ranks from rest)

  16. 19 Paul V Irving
    August 30, 2018 at 9:07 am

    Given the MA’s lack of vision in this are Bleasdale, East Arkengarthdale and Snilesworth members of their discredited organisation? Perhaps given this example should they finally be ejected from RPPDG, one would hope so, as they fail to deliver anything and cannot control and thus cannot speak for their membership.

  17. 20 Tom Gun
    August 30, 2018 at 6:24 pm

    I want to make it clear that I think the work in this case by Guy and RSPB also the police at the scene was commendable and all deserve recognition for their quick thinking and remaining calm under difficult circumstances.

    I would be interested to know if any further searches were conducted of the gamekeepers house out buildings and any estate out buildings that he had access to.

    English law under PACE would have facilitated this without warrant or a warrant could have been obtained.

    I am thinking that other evidence relating to the illegal killing of raptors may have been found within theses premises.
    Vermin lists
    Illegal traps
    Poisons
    Freezers containing raptors
    Forensic opportunity
    Phones
    Computers
    Etc
    Have all been recovered in previous searches with similar circumstance.

    I am sure Guy would not have missed this oppertunity.

  18. 21 Iain Gibson
    August 31, 2018 at 3:44 am

    The very word ‘vermin’ winds me up. Its definition is unclear and outdated, as is the term ‘sanctuary for vermin’ which sane people regard as rich wildlife habitat. One man’s vermin can be another’s biodiversity. Any animal that does not satisfy man’s selfish demands, including shooting for sadistic pleasure, is condemned by the v-word. As a society it’s time we grew up, or at least wakened up to the despicable behaviour of those who choose to seek their thrills by killing innocent wild animals. I was recently ‘barred’ by a farm-owner for entering his land and surveying hen harriers on what had been designated as a Special Protection Area. I informed him of my rights under Scottish law, and in the ensuing ‘discussion’ he revealed that he is a Church of Scotland Minister. He then declared that he ‘hated’ hen harriers for depreciating his land valuation! I asked him to explain why did his God create hen harriers if they are such a nuisance to his ultimate creation, the human being? To my surprise he could not. Apparently “all creatures great and small” excludes hen harriers!

  19. 22 dave angel
    August 31, 2018 at 9:30 am

    ‘If these crimes had taken place in Scotland, there would have been an opportunity to prosecute the landowner and/or shooting agent for alleged vicarious liability, following the introduction of the WANE Act 2011. Although in Scotland a prosecution may not have followed automatically, especially if the landowner and/or agent was able to show due diligence’

    ~~~~~~~

    It’s pretty clear from the statement issued by the Moorland Association that the state would have been able to argue that they had done all that was required of them to escape prosecution under any vicarious liability regime.

    ‘When allegations of wildlife crime first emerge, we instigate our disciplinary procedure to establish whether our member has taken all appropriate measures to ensure that its staff uphold the law and embrace best practice. In this case we are satisfied that the estate has acted properly and had made it perfectly clear to the member of staff in his contract of employment, and in further written correspondence, that he should abide by the law at all times. He was also requested to attend refresher training in line with good practice.’

    And that’s the weakness of vicarious liability. It’s easy to get round if your paperwork is in order. The big estates will ensure that everything is done by the book, on paper.The only difficulty it creates for estates is that it might cost them a bit to ensure that any employee who is prosecuted for wildlife crime keeps their mouth shut.

    • August 31, 2018 at 12:26 pm

      Hi Dave,

      Sorry, but it’s not at all ‘pretty clear’ that the ‘estate would have been able to argue that they had done all that was required of them to escape prosecution under any vicarious liability regime’.

      For it to be ‘pretty clear’ and for the estate to be exonerated, a court would have assessed whether the estate’s actions constituted due diligence or not. At the moment, all we have to go on are unseen documents and the word of the estate and the Moorland Association. That’s hardly an independent assessment.

      And as mentioned in the blog, it’s our understanding that the evidence required to support a defence of due diligence is a lot higher than simply being able to show a contract of employment with a clause banning unlawful activity and a ‘request’ for the employee to attend a refresher course (a refresher course on what?). There also needs to be written, dated evidence of ongoing supervision and checks of the employee’s activities, as a bare minimum.

      • August 31, 2018 at 2:40 pm

        Could it be legally challenged though ? – That the estate could be held responsible for the actions of the employee – there would probably be no case to answer unless it could be proved, with great difficulty, that they (the estate or owner) were/was contractually responsible for his (the employee’s) legal defence. The inference being that “we’re not suggesting that you do anything illegal, but if you do, we’ll meet your legal costs”

      • 25 dave angel
        August 31, 2018 at 4:09 pm

        If vicarious liability was introduced in England the grouse moor owners would ensure that all appropriate documentation and systems required for a due diligence would be in place.

        They will have learned from the Scottish experience not to be complacent.

        Vicarious liability hasn’t stopped persecution in Scotland. It hasn’t affected attitudes (other than to make them more wary, defensive and careful).

        Vicarious liability isn’t a solution, or even of any particular help, in combating wildlife crime and the English shouldn’t be given false hope that it might be.

        • August 31, 2018 at 6:10 pm

          Not sure that anybody is suggesting that vicarious liability is a solution (if they are they’d be pretty foolish) but nevertheless it should still be introduced in England & Wales as this criminal industry needs everything possible thrown at it.

          • 27 Gerard
            August 31, 2018 at 8:20 pm

            In my opinion, gamekeepers shouldn’t have time to go out on the moor for “conservation” purposes, because they have so much paperwork to do, mountains of the stuff.

        • September 2, 2018 at 7:40 pm

          dave – I’m only just looking at this again – I think what I was attempting to suggest that, without vicarious liability, in England, it sends out a message that instructing employees on the consequences of committing wildlife crime doesn’t have to be an important issue if you, as an employer, are unlikely ever to be held legally accountable.

          That wasn’t dissimilar to attitudes in the construction industry many years ago on supervision and responsibility on “Health and Safety” issues – until legislation was introduced and policed.

          I was hinting in my previous post that, even without vicarious liability, hypothetically, a landowner or employer still seems just as prepared to stump up unusually high legal fees and isn’t prepared to sack an offender, on conviction. In such a situation there has to be a suggestion of complicity – indeed a likelihood that there had been a “gentleman’s” agreement based on a mutual understanding that legal fees would be covered where an employee had seen fit to engage in some form of illegal activity – a degree or two worse than vicarious responsibility, where such an offence could conceivably be committed without the knowledge of the employer. If proof of an “agreement” or contract existed for coverage of legal fees that might leave the employer partly responsible whether or not a vicarious liability charge was possible.

  20. 29 Bill Kusiar
    September 1, 2018 at 9:08 am

    I may have missed a report of this but did the loathsome individual have a shotgun licence and was it revoked as a result of his conviction?

  21. 30 Peter Crispin Hack
    September 1, 2018 at 9:56 am

    Hi….article on Golden Eagles @Telegraph without a single comment as yet; please feature on your site and get people to comment ?

  22. September 10, 2018 at 6:59 pm

    I think that the most significant aspect of this case is that Cowin’s solicitor was Michael Kenyon, a specialist in wildlife crime with a background of working for ‘game interests’. Presumably, his services do not come cheap and it seems highly probable that he was paid by those in the game shooting lobby who regularly shed crocodile tears when birds of prey are killed and pretend to be outraged. It’s a pity that such a link cannot be demonstrated as it would expose their hypocrisy. Perhaps our friends at ‘Private Eye’ could do a little digging …..

  23. 32 Iain Gibson
    September 11, 2018 at 4:43 am

    To go back to basics, how can anyone excuse or tolerate the shooting of two beautiful Short-eared Owls and stamping on them to finish them off? I don’t see the actual date this cruel and illegal act took place, but presumably the owls were a pair, possibly with a nest containing young which consequently died a lingering death. It is an utter disgrace that the punishment of such an act of cruelty was so feeble, and that the keeper was let off so lightly by his employer. It was his decision to ‘resign,’ of course, but presumably he is still a member of his ‘professional’ body. How can we possibly make significant progress in ending the persecution of raptors, when the law and its implementation are treated with such lack of seriousness? The grouse shooters must be laughing all the way to the butts and back. The signals being sent to them by the establishment must give them such reassurance, especially when Government agencies give an impression of being on their side by licencing the slaughter of Ravens, ignoring the science.


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