More raptor persecution at Moy

Police Scotland has issued an appeal for information following the discovery of disturbed and abandoned buzzard and goshawk nests in the Moy Forest near Tomatin in the Scottish Highlands.

During May this year, one goshawk and four buzzard nests have been abandoned in suspicious circumstances, with some evidence of illegal disturbance. These nests were being monitored by staff from Forestry Enterprise Scotland.

Further details and an appeal for information here

This area is no stranger to illegal raptor persecution. In 2010, a 20-year old gamekeeper employed by Moy Estate was convicted for possession of a dead red kite that was found in the back of his vehicle. It had two broken legs and it’s head had been smashed in.

During the police raid on the grouse moors of Moy Estate, the following was also found:

• The remains of a further two dead red kites.
• A red kite’s severed leg, along with wing tags that had been fitted to a sateliite-tracked red kite, hidden in holes covered with moss.
• Six baited spring traps illegally set in the open.
• A trapped hen harrier (still alive) caught in an illegally set spring trap.
• A poisoned bait.
• Four leg rings previously fitted to golden eagle chicks found in the possession of a gamekeeper.

No charges were brought against anybody for these additional crimes.

Our previous blogs on Moy can be read here.

Moy is also home of the annual Highland Game Fair, regularly attended by certain MSPs, Scottish Land & Estates and the Scottish Gamekeepers’ Association to ‘celebrate’ the activities of the game-shooting industry.

The petition to ban driven grouse shooting can be found here

General Licence Restriction suspended on Raeshaw Estate while judicial review underway

Regular blog readers will recall that in November 2015, SNH served two General Licence Restriction Orders on the Raeshaw Estate and Burnfoot Estate in response to alleged raptor persecution crimes (see here). This was the first time these GL restriction orders had been used since they became available on 1st January 2014.

The alleged offences on Raeshaw Estate, a grouse moor near Heriot, Scottish Borders, related to ‘the illegal placement of traps’. The alleged offences on Burnfoot Estate, a grouse moor in Stirlingshire, related to ‘the poisoning of birds of prey and illegal use of traps’. No criminal prosecutions were brought for any of these offences.

The GL restriction orders were due to run for three years, from 13th November 2015 to 12th November 2018, and would restrict the killing of certain ‘pest’ species (e.g. crows) that are usually permitted under the General Licence.

However, the restriction orders initially only lasted for six days because the estates appealed the decision (see here).

On 3rd February 2016, SNH reinstated the restriction orders after dismissing the estates’ appeals (see here).

On 7th February 2016, both estates denied any wrongdoing and indicated that they would try for a Judicial Review of SNH’s decision (see here).

It now appears that one of these estates (Raeshaw) has successfully applied for a Judicial Review, which is set to be heard on 20th May 2016. A Judicial Review is not about whether the principle of applying a General Licence restriction order is fair or unfair per se, but is more about the process underlying SNH’s decision. Did SNH act lawfully and follow the right procedures when it made the decision to apply GL restriction orders to these two estates? That’s what the court will have to decide. Obviously, the result of the Judicial Review, whichever way it goes, will have implications for the future use of the GL restriction order.

Meanwhile, in another twist, the GL restriction order on Raeshaw Estate has once again been suspended while the Judicial Review is underway. It’s not clear to us who instigated this suspension. The Estate may have applied for a temporary suspension to enable the killing of ‘pest’ species at this crucial time of year. Or, SNH may have decided to temporarily suspend the restriction order for fear that, if the Judicial Review goes against them, they may be subject to a lawsuit by the Estate for loss of earnings.

The Burnfoot Estate does not appear to be directly involved in the Judicial Review, which makes sense because the decision from the Raeshaw judgement will be equally applicable to Burnfoot so two Judicial Reviews on the same subject would be a waste of money. So consequently, the General Licence restriction order on the Burnfoot Estate is still in place – they are not permitted to kill ‘pest’ species as they would have done under the General Licence. We know from a recent FoI that SNH has not received any applications for an individual licence that would permit individual gamekeepers to carry out ‘pest’ control on this estate.

Let’s hope the Judicial Review for Raeshaw on 20th May results in a timely decision and that we don’t have to wait for months on end for a pronouncement. We’re pretty sure that there are other potential General Licence restriction orders for other estates sitting in SNH’s ‘pending folder’ (at least there should be) but, understandably, SNH may be reluctant to begin proceedings while this Judicial Review is still underway.

Increase in raptor persecution crimes in 2015

The Partnership for Action against Wildlife Crime (PAW Scotland) has just published the ‘official’ 2015 raptor persecution data, including their annual persecution hotspot maps.

The PAW Scotland press release can be read here and the hotspot maps can be accessed here.

20 crimes against birds of prey were recorded in 2015, which is an increase on the 18 recorded in 2014. The 2015 crimes included six poisoning incidents, five shootings, five disturbance incidents, three trapping or attempted trapping offences and one case of chick theft. The victims included red kite, peregrine, buzzard, goshawk, osprey and hen harrier. Surprisingly, golden eagle isn’t included in the list. We’ll discuss that below.

Having read the press release and looked at the hotspot maps, four things jumped out at us.

First is the increase in recorded raptor persecution incidents in 2015. It’s only a slight increase, from 18 to 20 recorded crimes, but nevertheless it is still an increase. This is important to note, especially in light of a recent statement made by Tim (Kim) Baynes of the Scottish Moorland Group (funded by the landowners’ lobby group Scottish Land & Estates). In December 2015, in response to the publication of the RSPB’s 20-year raptor persecution review, Kim said this:

“Bird of prey deaths……have fallen dramatically over the last five years in particular“.

At the time, Kim didn’t back up this claim with any evidence and as the 2015 data have now been published, it’s clear why he didn’t. Basically, the evidence wasn’t there. As Head of RSPB Scotland’s Investigation team Ian Thomson says in the latest PAW Scotland press release:

“These latest figures make it readily apparent that claims of a decline in the illegal killing of raptors are wholly without foundation“.

This time, Kim isn’t claiming that there has been a decline but he still tries to diminish the problem by saying “annual variations [in the number of reported persecution crimes] are now very small“. Another way of putting it, Kim, would be to say that no progress has been made!

The second thing to jump out at us is perhaps the most concerning of all, and that’s the withholding of data relating to a quarter of the recorded 2015 crimes. If you read the PAW Scotland press release, you’ll notice the following caveat written in the ‘Notes to Editors’ section:

‘Further details of 5 of the 20 bird of prey crimes recorded in 2015 are currently withheld for police operational reasons. It has therefore not been possible to include the locations of these incidents on the hotspot maps‘.

So here’s one of the maps purporting to show all types of raptor persecution crimes recorded over a three-year period in Scotland (2013-2015). Only it doesn’t show them all, as 25% are missing. Not only are 25% missing, but also missing are details of poisoned baits (no victims present) that were recorded during this period – for some reason they’ve been placed on a separate map. So when you look at this map, ignore the misleading title. It isn’t a map of ‘All Recorded Bird of Prey Crimes Scotland – 2013-2015’, it’s a map of SOME Recorded Bird of Prey Crimes 2013-2015, just the ones we’re allowed to know about.

The purpose of publishing these annual hotspot maps and their associated data is, according to the PAW Scotland website, ‘to allow all the partner organisations to enter into meaningful discussions and work together to eradicate bad or illegal practices in Scotland‘. Presumably, because the maps and data are also placed in the public domain, the purpose is also to increase transparency and thus public confidence. What is the point of publishing a proportion of the data and withholding the rest? It just makes a mockery of the whole process. Why bother publishing at all?

The caveat in the ‘Notes to Editors’ section goes on to say:

‘The [withheld] incidents are, however, included in the figures provided in the summary tables accompanying the maps. The maps and background data will be updated, where possible, in future publications‘.

Sounds promising, but when you actually look at the summary tables you find large sections still marked as ‘withheld’:

These ‘withheld’ incidents, shrouded in secrecy, make it virtually impossible to cross reference known reported persecution crimes with those being touted as the ‘officially recorded’ crimes, which closes off any opportunity to scrutinise these ‘official’ data to ensure that incidents have not been ‘missed’ or ‘forgotten’ (we’re being kind). In other words, we are expected to accept and trust the ‘official’ data from Police Scotland as being accurate. Sorry, but having seen Police Scotland’s shambolic handling of some wildlife crime incidents we have limited confidence in their ability, either intentionally or unintentionally, to get this right.

This leads us nicely on to the third thing to jump out at us. As mentioned above, we were surprised not to see golden eagle listed as one of the 2015 victims. According to our sources, a traditional golden eagle eyrie was burnt out in 2015 – we blogged about it here. Why wasn’t this incident included in the 2015 PAW data? Or was it included and it was categorised in the ‘withheld’ category? Who knows. Do you see what we mean about the difficulty of cross-referencing known incidents?

The fourth thing to jump out was an entry in Table 5c (see above). The second line down tells us that a red kite was poisoned in Tayside in January 2015. That’s news to us. Does anybody remember seeing anything in the media about this crime? Any appeal for information? Any warning to the public that deadly poison was being used in the area? No, thought not.

The reticence of the police to publicise some of these crimes is deeply concerning, and especially when that suppression extends to details of crimes in ‘official’ reports that are supposed to demonstrate openness and transparency. Ask yourselves, in whose interest is it to keep these crimes under wraps?

New report reveals hundreds of raptors illegally killed on game-shooting estates in Scotland

Yesterday the RSPB published its latest figures on illegal raptor persecution in Scotland.

Rather than their usual annual review, this time they’ve produced a 20-year review covering the period 1994-2014. This is a really useful exercise as it puts the scale of (known) persecution in to perspective. It’s a sobering read.

A total of 779 birds of prey were confirmed to have been illegally killed during this period, either by poisoning, shooting or trapping. The known victims included 104 red kites, 37 golden eagles, 30 hen harriers, 16 goshawks, 10 white-tailed eagles and 458 buzzards.

In addition to these confirmed victims, a further 171 incidents are documented where poisoned baits and/or non-birds of prey victims were found, including 14 pet cats and 14 pet dogs, and then a further 134 incidents where no victim had been found but clear attempts to target raptors had been uncovered (e.g. illegally-set traps).

The report includes a map showing the landholdings of all known persecution incidents during this period. As ever, it’s pretty revealing, with a handful on the west coast but the vast majority in the uplands of central, eastern and southern Scotland – areas dominated by driven grouse shooting.

Drilling down in to the detail, there’s a useful analysis of land-use type of confirmed poisoning incidents between 2005-2014 (219 incidents). A shocking (or not) 81% of confirmed poisoning incidents during this nine-year period were on land used for game-shooting: 57% on grouse moors and 24% on land managed for lowland pheasant shoots. This tells us a great deal about who is responsible for the vast majority of illegal raptor poisoning. Despite their continued denials and protestations, and their increasingly-desperate attempts to minimise the scale of these crimes (“it’s just a few rogues”, “it’s just a small minority”), this graphic exposes the criminality at the heart of the game-shooting industry:

Further damning evidence, which isn’t needed by most of us but for the benefit of those who are still in denial of the bleedin’ obvious, is this graph showing the occupations of those convicted of raptor persecution between 1994-2014. Surprise, surprise, 86% of them were gamekeepers:

RSPB Scotland is to be commended for publishing this exceptionally detailed and meticulously-researched report. There are a number of things in it that are of particular interest to us and we’ll come back to those in due course. For now though, particular recognition should go to the Investigations team – they may be small in number but their contribution to exposing the disgraceful continuation of illegal raptor persecution in Scotland is enormous. They, and their colleagues south of the border, are worthy of high acclaim. If anybody reading this is in a position to recognise excellence in the field of raptor conservation, e.g. a nomination for an award, this team should be at the top of your list.

So, how has the Environment Minister, Dr Aileen McLeod, responded to such an embarrassing report? She said: “There is no doubt that the figures in this report make for uncomfortable reading, but we have made progress in recent years with the new vicarious liability provisions, the publication of the report from the Wildlife Crime Penalties Review Group, new measures implementing restrictions on the use of General Licences and earlier this year the Scottish Government funded pesticide disposal scheme that removed over 700kg of illegally held poisons in Scotland“.

“We have made progress…” Hmm. Let’s have a look:

Vicarious liability – introduced almost 4 years ago and only two successful convictions to date. A slow (but good) start, but we need to see many more convictions.

Wildlife Crime Penalties Review – Commissioned over two years ago, published last month. An excellent report calling for tougher sanctions but we’re waiting to hear whether the Environment Minister will act on the recommendations. Can only be defined as ‘progress’ if she agrees to act.

General Licence restrictions – available to be used against landholdings where raptor crimes committed/suspected from 1st January 2014. So far, only two restrictions have been implemented and those only lasted for six days each before they were suspended as legal arguments continue. A slow start, and the legal challenges were to be expected, but can’t be defined as ‘progress’ unless the restrictions are fully implemented. There should also be a lot more of them.

Pesticide disposal scheme –  implemented this year and resulted in the removal of some illegally-held poisons. That is progress, although it is tinged with frustration that the game-shooting industry was given yet another chance to avoid justice as this scheme (the second of its kind) comes 14 years after the pesticides were originally banned. It’s also interesting to note in the RSPB’s report (page 18) that evidence suggests a number of individuals have retained their illegal stocks. This is supported by more poisoning incidents that have taken place this year, after the disposal scheme ended.

So some progress has been made (and almost entirely due to the efforts of Dr McLeod’s predecessor, Paul Wheelhouse) but it is glacially slow and, so far, has not stemmed the occurrence of illegal persecution, as the damning figures in this report show all too clearly. Much, much more can and needs to be done before we’ll be convinced that Dr McLeod is having any sort of impact. She has, though, announced that tenders have just been invited for a review of game licensing practices in other countries (to inform a possible decision of introducing licensing to game-shooting estates in Scotland), and that’s a good thing, but again, the research needs to be done and then a decision made, which probably won’t happen for a number of years if past performance is anything to go by. She’d find herself with a lot more support if she got on with announcing increased investigatory powers for the SSPCA – the public consultation closed 1 year and 3 months ago – and still we await her decision as the criminals continue their rampage. It’s not impressive at all.

And what of the response of the game-shooting industry itself? Some didn’t bother to publish a statement (Scottish Gamekeepers’ Association), which ironically tells us quite a lot, although they are quoted in an article by STV (see media coverage below) where they revert to type and simply deny the evidence and slag off the RSPB instead. And remember, the SGA is a fully-paid up member of the Partnership for Action Against Wildlife Crime (cough).

Scottish Land and Estates (SLE), another PAW partner, did manage to issue a statement, via their Scottish Moorland Group (see media coverage below). Again, it’s the usual lamentable denial, characterised beautifully by this statement from Director Tim (Kim) Baynes:

“Bird of prey deaths……have fallen dramatically over the last five years in particular“.

Er, here are some persecution figures that Kim might want to re-punch in to his calculator:

2012 – 18 confirmed deaths

2013 – 28 confirmed deaths

2014 – 37 confirmed deaths

There’s also this statement:

“Our condemnation of wildlife crime is unquivocal...” All very touching but how is that “condemnation” manifested in the real world? It’s been brought to our attention that the current head gamekeeper on a Scottish grouse shooting estate has a (spent) conviction for shooting dead a raptor when he worked on another Scottish grouse moor. How does a criminal with a conviction like that (spent or not) remain employed in the game-shooting industry, let alone get a senior position on another Scottish grouse moor? Was he one of the posse of moorland gamekeepers recently invited to Holyrood to mingle with, and be applauded by, a number of MSPs, as part of the Gift of Grouse propaganda campaign? Surely not…

Download the RSPB report here

Media coverage

RSPB press release here

Statement from Environment Minister Dr Aileen McLeod here

Scottish Moorland Group statement here

BBC news here

STV article here

BBC Radio Scotland (Newsdrive) interview with Ian Thomson, Head of Investigations RSPB Scotland here (starts at 21.50, available for 29 days)

Guardian article here (a mis-leading headline but nevertheless good to see coverage in this paper)

General Licence restrictions on Raeshaw & Burnfoot Estates last only six days

On 4th November, we blogged about SNH’s intention to restrict the use of General Licences in two areas, in response to alleged raptor persecution incidents. The two areas included parts of the Raeshaw and Corsehope Estates in the Borders (Restriction #1), and parts of the Burnfoot and Wester Cringate Estates in Stirlingshire (Restriction #2) (see here for our earlier blog about these restrictions, and see here for SNH’s explanation for the restrictions).

The General Licence restrictions were due to begin on 13th November 2015 and run for three years. They actually only ran for six days.

On 19th November 2015, the General Licence restrictions were suspended in both areas until further notice, because the Estates have lodged legal appeals, as they said they would last week (see here). While the appeals are underway, the Estates can continue to use the General Licences (i.e. continue to set crow traps and Larsen traps to catch and kill corvids, continue to shoot corvids, and continue to kill lots of other stuff that falls under the remit of activities permitted under the General Licences – see here for a list).

We don’t know what the basis of the appeals are, and nor do we know the procedural process of the appeals system, but presumably SNH now has a fixed period of time to respond. If SNH decides to uphold the appeals then the General Licence restrictions will be removed. If SNH decides to stick to its original decision and impose the three-year restrictions, then the restrictions would be re-instated. However, then these Estates would be entitled to apply for a judicial review to test whether SNH has acted fairly.

Settle yourselves in for a long legal battle.

Police Scotland explain failure of vicarious liability in Kildrummy case

Last month we blogged about the failure of the Crown Office to initiate a vicarious liability prosecution in the Kildrummy case (see here).

A quick re-cap: in December 2014, Kildrummy Estate gamekeeper George Mutch was convicted of a series of wildlife crime offences that took place on Kildrummy Estate in 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 – the first gamekeeper in the UK to receive a custodial sentence for raptor persecution crimes (see here).

In September 2015, the possibility for a vicarious liability prosecution against Mutch’s employer became impossible as the case had become legally time-barred (i.e. three years had elapsed since the commission of his crimes). We wanted to find out why a vicarious liability prosecution had not been brought in this case so we asked the Crown Office for an explanation. They responded by saying that as nobody had been reported to them for consideration, they couldn’t take forward a prosecution. We speculated (here) about the reasons why nobody had been reported, and thought that it probably had something to do with the fact that Kildrummy Estate is registered as an off-shore company (in Jersey) and thus identification of the actual owner was well hidden; this situation had been expertly uncovered by Andy Wightman’s research earlier this year – see here. However, to find out if this really was the reason why nobody had been reported to the Crown Office, we really needed to hear from Police Scotland, so last month we asked them why they hadn’t reported anyone from Kildrummy Estate to the Crown Office for consideration of a vicarious liability prosecution.

Police Scotland has now responded with a cryptic masterpiece, but if you look closely at their carefully-worded reply it is actually quite revealing:

“Police Scotland is committed to tackling wildlife crime whilst recognising that these investigations can often be challenging and prolonged. In 2013, a report about George Mutch was submitted to the Wildlife and Environmental Crime Unit (WECU) at the Crown Office and Procurator Fiscal Service (COPFS) alleging the unlawful taking and killing of birds of prey at Kildrummy Estate, Aberdeenshire in 2012. Following a criminal prosecution Mr Mutch was convicted and sentenced to 4 months imprisonment in January 2015.

In parallel with the investigation surrounding the activities of George Mutch, enquiries were made to establish whether any further charges could be brought in terms of Vicarious Liability legislation (Section 18A of the Wildlife & Countryside Act 1981). However, this legislation does require an offence to have been committed and therefore charges can only be formally libelled once a conviction has been confirmed. Significant international investigations were undertaken by Police Scotland but after consultation with COPFS it was established that due to insufficient evidence the additional charge of Vicarious Liability could not be libelled.

The experience of this case has, however, identified opportunities for refining future Vicarious Liability investigations, a matter currently being explored with COPFS. Please be assured that Police Scotland will continue to ensure that robust and modern investigative tactics are utilised to bring those committing wildlife crime to justice. Police Scotland’s wildlife crime commitment is additionally reflected in our membership of PAW (Partnership for Action Against Wildlife Crime) Scotland.

I hope the above information addresses the issue raised by you in your correspondence.

Yours sincerely,

Sean Scott, Detective Chief Superintendent”.

END

For the purposes of our interest, the first paragraph can be ignored. Where things start to get interesting is in paragraph two. Pay close attention to the wording:

“Significant international investigations were undertaken……..it was established that due to insufficient evidence the additional charge of Vicarious Liability could not be libelled“.

“International investigations” can only relate to an enquiry about either the land owner, or Mutch’s employer, or who owned the shooting rights; in other words, the individual who could be liable for a potential vicarious liability prosecution. “Insufficient evidence” implies that Police Scotland knew who was responsible for managing Mutch, but just couldn’t prove it. Why? Because the details are hidden in an off-shore holding.

It is apparent then, in the Kildrummy case, that justice has been defeated because the details of land ownership (or at least the hierarchical management structure from Mutch upwards) are concealed. This has big implications for any future vicarious liability prosecutions on estates where the land is registered as an off-shore company (a convenient ploy to escape a potential criminal prosecution) and we’re pretty sure Andy Wightman will have something to say about this in terms of his work on the Land Reform Bill currently being considered by the Scottish Parliament. (Update: Andy Wightman has blogged abut this latest development – see here).

The first line of paragraph three, (“The experience of this case has, however, identified opportunities for refining future Vicarious Liability investigations….“) is interesting and we’ll watch to see what this ‘refinement’ might entail.

As an aside, we were interested to read that Police Scotland thinks that vicarious liability charges “can only be formally libelled once a conviction has been confirmed“. That’s not actually what the legislation says. The legislation allows that the person who committed the primary offence need not be prosecuted in order for a prosecution to be brought against the person in management or control (see here). We’re a bit bemused by Police Scotland’s interpretation of this in their above statement, but, as we say, it’s a bit of a side issue in this case because even if Mutch hadn’t been convicted but an attempt was still made to undertake a vicarious liability prosecution, presumably Police Scotland would still have faced the same issue of being unable to identify the person in management or control because these details are squirreled away in an office in Jersey, apparently beyond the reach of Police Scotland.

So, even though vicarious liability has failed in the Kildrummy case, we feel it’s important to acknowledge that in this case, as far as we currently understand what went on, the failure is through no fault of Police Scotland or the Crown Office. This failure is, though, an indication that Vicarious Liability is not the panacea the Scottish Government would like us to believe it is for putting an end to raptor persecution crimes. Since vicarious liability was introduced as an option on 1st January 2012, there has still only been one single successful prosecution. In almost four years, that’s not a good return rate by anyone’s standards.

Raeshaw and Burnfoot Estates to appeal General Licence Restriction orders

Further to last week’s news that SNH has suspended the use of General Licences on four estates for what it said was “clear evidence that wildlife crimes have been committed on these properties”, which includes the discovery of poisoned raptors and illegal traps (see here and here), two of the estates involved are set to appeal.

According to quotes in this week’s Scottish Farmer, defence agent David McKie, representing Raeshaw Estate in the Borders, said: “We are disappointed by this decision and will be vigorously challenging it“.

A spokesman for Burnfoot Estate said: “We absolutely dispute the conclusions reached by SNH and consider the decision to be unfair. We will be appealing the decision“.

Meanwhile, a spokesperson for Scottish Land & Estates is quoted: “Our concerns about the level of evidence and robustness of process, which were raised previously along with other land management organisations, remain. We will be working with key industry stakeholders to learn more about the circumstances surrounding these new restrictions“.

A spokesman for the Scottish Gamekeepers’ Association is quoted: “It is up to the estates involved to take counsel and make a case if they feel there is insufficient evidence for the measure to proceed. When this measure was initially subject to consultation, the SGA opposed it, not in the spirit of what it was trying to do, but rather that it was simply not a good proposal“.

Article in Scottish Farmer here

Wonder if Raeshaw Estate or Burnfoot Estate is a member of the SLE?

SNH reveals reasons for general licence restrictions on Raeshaw & Burnfoot Estates

Last week we blogged about the implementation of General Licence restrictions on parts of four properties: Burnfoot Estate & Wester Cringate Estate in Stirlingshire, and Raeshaw Estate & Corsehope Estate in the Borders (see here).

At the time, SNH did not reveal the reasons for the General Licence restrictions, other than to say “There is clear evidence that wildlife crimes have been committed on these properties” [since 1st January 2014, when the new regulations were enacted].

We speculated that the General Licence restrictions at Burnfoot and Wester Cringate in Stirlingshire were related to the poisoning of a red kite (July 2014), a poisoned peregrine (Feb 2015), and the illegal trapping of a red kite (May 2015).

We had no idea why the General Licence restrictions had been implemented at Raeshaw and Corsehope in the Borders, because there hadn’t been any publicity about any recent raptor persecution crimes in this area.

However, last Saturday (7th November 2015), a bit more information was revealed during an interview with SNH Wildlife Operations Manager, Robbie Kernahan, on the BBC Radio Scotland Out of Doors programme.

Amongst other things, the presenter asked Mr Kernahan directly about the reasons for General Licence restrictions on these four properties. Here’s what Mr Kernahan said:

Stirlingshire GL restrictions: “Relates to some issues associated with poisoning birds of prey, birds of prey being found poisoned in that location, and illegal use of traps“.

Borders GL restrictions: “There are issues about the illegal placement of traps“.

No further explicit detail was provided, although there was a general wider discussion about the use of General Licence Restrictions and their deterrent value in tackling raptor persecution.

The interview can be heard here for the next 26 days (starts at 02:15; ends at 09:06).

No vicarious liability prosecution for Kildrummy Estate

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:

1. 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.
2. 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.
3. 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

What grisly fate awaits these two satellite-tagged hen harriers?

As part of the RSPB’s Hen Harrier Life+ Project, the movements of two satellite-tagged hen harriers can now be followed online – see here.

The two birds are called ‘Holly’ and ‘Chance’.

Holly had her satellite tag fitted in June this year by members of the Scottish Raptor Study Group, assisted by the MOD Police and was one of three chicks from a nest located on high security MOD land at Coulport. She was named after a member of the production crew from BBC Scotland’s Landward programme after appearing in a special feature about hen harriers and the threats these birds face from illegal killing (see here). Holly fledged in August and has since left her natal area, moving in to the uplands of central Scotland.

Chance had her sat tag fitted in June last year by members of the Scottish Raptor Study Group and was named by RSPB Scotland staff. She travelled south from her nest in SW Scotland to the RSPB Wallasea Reserve in Essex at the end of October (2014), before crossing the Channel to spend the winter months in western France. Chance came back to the UK in spring this year but has since returned to France via Wales.

The RSPB’s explanation for sat tagging these two hen harriers (and others) is: ‘To better understand the threats they face and identify the places they are most at risk‘.

To be frank, there is already a very good understanding of the threats they face and of the places they are most at risk; it’s been known for at least 20 years that these birds are illegally killed by gamekeepers on driven grouse moors. It’s no mystery and it’s no secret.

However, that’s not to say that continued satellite-tagging is without purpose. There’s a very important reason for continuing to do it, and that is to raise public awareness by getting people ‘involved’ with these individual birds (hence, giving them names) and showing people the birds’ movements (via online maps) so that when they are eventually shot, trapped, poisoned, or they simply ‘disappear’ in grouse moor areas (it’s inevitable), the public outcry will be considerable and the subsequent pressure on the authorities to actually do something about it will be greater. That is, assuming the police decide to publish the information, but it’ll be harder for them to keep quiet if we all know the birds have stopped moving.

There are already plenty of examples of satellite-tagged hen harriers either ‘disappearing’ or being found shot, so nobody should expect anything different for Holly and Chance. Here are some of the well-known individuals from the last few years:

Hen Harrier Annie – found shot dead on a Scottish grouse moor in April 2015 (here).

Hen Harrier Heather – found shot dead at a winter roost site in Ireland in January 2015 (here).

Hen Harrier Sky – ‘disappeared’ on a grouse moor in Lancashire in September 2014 (here).

Hen Harrier Hope – ‘disappeared’ on a grouse moor in Lancashire in September 2014 (here).

Hen Harrier Sid – ‘disappeared’ on a grouse moor in North Yorkshire in September 2014 (here).

Hen Harrier Blue – ‘disappeared’ somewhere (location not revealed) in October 2013 (here).

Hen Harrier Bowland Betty – found shot on a grouse moor in North Yorkshire in July 2012 (here).

Hen Harrier Tanar – ‘disappeared’ on a grouse moor in Aberdeenshire in June 2011 (here).

Hen Harrier (unnamed) – ‘disappeared’ on a grouse moor in southern Scotland in October 2011 (here).

And then there were the 47 hen harriers that Natural England sat-tagged between 2007-2014. Last year we were told that four were still known to be alive, six had been found dead, and a staggering 37 birds (78.7%) were ‘missing’ ‘somewhere’ (see here). Natural England has been persistently coy about telling us us where those 37 birds went missing, even though the satellite tagging project has been funded by us taxpayers.

And of course it’s not just hen harriers that we’ve watched meet a premature death. Other species have also been sat-tagged in recent years including Montagu’s harrier ‘Mo’, who ‘disappeared’ on the Queen’s Sandringham Estate in Norfolk last year (here) as well as at least eleven golden and white-tailed eagles (listed here), including some very high profile cases such as golden eagle Fearnan (found poisoned on a Scottish grouse moor here), golden eagle Alma (found poisoned on a Scottish grouse moor here) an unnamed golden eagle that had been illegally trapped on a Scottish grouse moor before being dumped in a lay by (here) and the first fledged white-tailed eagle in East Scotland for over 200 years who ‘disappeared’ on a Scottish grouse moor (here).

So, contrary to the belief of the Hawk & Owl Trust who earlier this year told us that fitting satellite tags to hen harriers “would prevent any gamekeepers from shooting them in the sky” (see here), gamekeepers don’t give a toss whether the bird in their gun sight is carrying a transmitter or not because they know full well that they are highly unlikely to get caught, let alone prosecuted. Not one of the above cases has resulted in a prosecution. So, no, the purpose of tagging isn’t to directly save the bird, but indirectly it just might, if enough of us follow the online movements of Holly and Chance and all the other tagged harriers that will be part of the RSPB’s Hen Harrier Life+ Project and then shout from the rooftops when each bird is illegally killed. It’s going to happen, and we are going to shout.

Top photo: Bowland Betty alive (photo Jude Lane).

Bottom photo: Bowland Betty dead (photo RSPB).