Posts Tagged ‘vicarious liability

25
Jun
17

Game shoot licensing discussed on BBC’s Landward programme today

Today’s edition of the BBC’s Landward programme had a small feature on proposals for the introduction of game shoot licensing, including contributions from Duncan Orr-Ewing (RSPB Scotland) and Lord David Johnstone (Scottish Land & Estates).

It is available to watch on BBC iPlayer for the next 29 days (Episode 12, starts at 17 mins – here).

We’ve reproduced the full transcript:

Presenter, Euan Mcllwraith: “The majestic golden eagle, soaring above Scottish hills. It’s an iconic image of wild Scotland. But a Government report has found that almost a third of all golden eagles which have been tracked by satellite died in mysterious circumstances, and the majority of those cases were found on land which is managed for grouse shooting. And the demise of the golden eagles has kick-started a re-examination of the way that game shooting is managed.

Game shooting is a major contributor to the Scottish rural economy and supports jobs in rural areas. But the field sport relies on there being a large population of grouse to shoot. The report’s findings led Scottish Environment Minister Roseanna Cunningham to propose an inquiry in to whether or not shooting estates should need a licence to operate.

But why would a licence protect eagles? Well at the moment, if a gamekeeper for example was caught killing a bird of prey, he might be prosecuted and in extreme cases be sent to jail, but the estate would still be allowed to carry on doing business. But the threat of a removal of a licence to operate could prove a more effective deterrent.

The proposal has delighted some groups and horrified others.

With me now are Duncan Orr-Ewing of RSPB Scotland and David Johnstone of Scottish Land & Estates.

Duncan, from your point of view, what’s the attraction of a licence, ‘cos there’s a lot of penalties at the moment, if a keeper gets convicted he goes to jail. Why a licence?”

Duncan Orr-Ewing: “Well, we very much welcome the Cabinet Secretary’s statement that she will look at options including a licensing system. The reason we support a licensing system is because we believe it will raise standards in the grouse moor sector in particular, which has a whole range of problems that have been highlighted in recent years and we think there is a need to reflect the public interest”.

Euan Mcllwraith: “David, from your point of view, you’re not in favour of licences. Why is that?”

David Johnstone: “There’s a number of reasons within that. There’s the SNH report that came out showing licensing going on around Europe, it clearly demonstrated that licensing, wildlife crime still exists in parts of Europe where licensing also takes place. But also we don’t think that it will actually be effective, we think that there are better ways of doing it that will lead to the higher standards that Duncan was talking about, creating good working relationships between ourselves and other stakeholders within, especially the Government”.

Euan Mcllwraith: “But is it not quite simple? If a nightclub has a licence, they break the rules, they go out of business. If a landowner on an estate was seen to be killing birds of prey, which does happen, you cease to have that right to run a business”.

David Johnstone: “This is a very, very different situation because within a nightclub, when a nightclub finishes business, the doors are shut and nobody else is allowed in to that nightclub at all, you control everything that’s going on. Within an estate on land in Scotland, under the 2003 Act, people have a right to roam anywhere, at any time, which we fully support, therefore you have people wandering across the land you’re managing, doing whatever they may wish to do and we have…”

Euan Mcllwraith: “Yeah, but people aren’t going to walk on to an estate and kill a bird, I mean it may happen, but the vast majority…”

David Johnstone: “I’m sorry but we have examples of people who have been interfering with legally set traps and everything else so it does happen, nefarious activity does go on, and that puts at risk people’s livelihood, their jobs, the economy, everything. You’ve got to prove you didn’t do something, as opposed to somebody proving that you did do something”.

Euan Mcllwraith: “Is that a real worry though? That an estate can go out of business, a vital part of the rural economy will cease to exist, on a very low level of proof?”

Duncan Orr-Ewing: “Look, we’re in this position because of a failure of self-regulation, despite repeated public warnings that the estate sector, particularly driven grouse moors, need to get their house in order. They have failed to deliver, that is why we’re at this point.

We believe a system of licensing can be developed, that has the right checks and balances in place, they do it in other countries, we imagine this won’t be done routinely….”

Euan Mcllwraith: “Duncan, David, I think this debate will rage for a long time to come. At the moment it’s in the hands of the Minister who will make a decision in the months and years to come”.

ENDS

When do you think Scottish Land & Estates will realise that the game’s up? That everybody, even the Scottish Government, now accepts the huge weight of evidence showing that illegal raptor persecution is undertaken as a matter of routine on many driven grouse moors?

Does David Johnstone honestly think that anybody is going to believe his inference that 41 satellite-tagged golden eagles ‘disappeared’ in suspicious circumstances on driven grouse moors as a result of ‘nefarious activity’ undertaken by random members of the public?

If he’s so sure of this (without any supporting evidence), then presumably SLE members won’t have any problem accepting the placement of monitoring cameras at raptor nest and roost sites on driven grouse moors? You’d think they’d welcome this measure, which would clear estate gamekeepers from the frame, right? It’s funny then that certain estates continue to refuse to participate in the placement of cameras by SNH’s Heads Up for Harriers project.

Lord Johnstone has used this tactic of blaming members of the public before, when objecting to the introduction of vicarious liability. In 2012 he was cited as saying there was a risk of estates being set up. Five years on, there hasn’t, as far as we are aware, been a single case of an estate being ‘set up’.

Johnstone talks about instances of interference with legally set traps as an example of ‘nefarious activity’. Yes, it does happen, although not as widely as the game-shooting industry claims (see here) and most, no, all of the examples that we’ve seen show vandalism of the trap (thus rendering it inoperable) as opposed to some random person placing illegally-set traps (e.g. pole traps, as pictured above (RSPB photo)) to infer guilt on the estate gamekeepers.

We should really be congratulating whoever is responsible for SLE’s media strategy (‘deny, deny, deny’) because the longer SLE and the grouse-shooting industry takes to accept responsibility, or continues to blame it on others, the more idiotic, the more complicit, and the more incapable of self-regulation, they look, and then the quicker a licensing regime will be imposed.

Former police wildlife crime officer Alan Stewart wrote a blog recently about the grouse shooting industry’s refusal to accept responsibility for raptor persecution and specifically about SLE’s Moorland Director Tim (Kim) Baynes’ accusations against so-called ‘extremists’ (that’ll be us) for ‘derailing progress’. It’s well worth a read – here.

15
Jun
17

Law professor comments on inadmissibility of video evidence in wildlife crime prosecutions

As regular blog readers will be aware, the Crown Office & Procurator Fiscal Service (COPFS), the public prosecutors in Scotland, have, in the space of two months, either dropped or refused to prosecute five cases of alleged wildlife crime. These include:

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 April 2017 – gamekeeper Stanley Gordon (Cabrach Estate), accused of the alleged shooting of a hen harrier. Prosecution dropped as video evidence deemed inadmissible.

25 April 2017 – gamekeeper Craig Graham (Brewlands Estate), accused of allegedly setting and re-setting an illegal pole trap. Prosecution dropped as video evidence deemed inadmissible.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Two of these cases (Cabrach Estate and Brewlands Estate) were dropped due to the COPFS deciding that the use of RSPB video evidence, on which the prosecutions relied, was inadmissible.

There has been widespread public condemnation and political concern about these decisions, especially in the case of the alleged shooting of a hen harrier on Cabrach Estate in Morayshire. The Crown Office has attempted to explain the decisions but many questions remain unanswered for those of us who don’t have the legal expertise, or all the case details, to challenge the COPFS decisions.

We read with interest, then, a blog that was published yesterday written by Peter Duff, Professor of Criminal Justice at Aberdeen University. His blog, entitled ‘The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions?‘ deals specifically with the Cabrach & Brewlands cases and can be read here.

We thoroughly recommend reading it. It’s important to read the perspective of an independent, expert academic who has no axe to grind on either side of the debate. It’s hard for those of us who are either tainted by years of frustration about criminal raptor killers getting away with it, or those with a vested interest in raptor killers avoiding prosecution, to take an unbiased view of the law and its application, so Professor Duff’s opinion is a valuable contribution to the debate. Not only that, it’s great to see this issue receiving wider coverage than the usual commentators.

That’s not to say we agree with his interpretation though! In short, Professor Duff concludes that the COPFS decisions were “perfectly reasonable”, and he explains his reasoning for this, but, crucially, some of what he writes does not take in to account previous case law on this issue, perhaps because he was unaware of such cases?

For example, Professor Duff states: ” In my view also, for what it is worth, I agree that the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless“.

First of all, the Scottish courts HAVE excused the irregularity of obtaining video evidence without the landowner’s permission and far from those prosecutions being ‘fruitless’, they actually resulted in the conviction of the accused (e.g. see the Marshall trial here and the Mutch trial here).

During the Marshall trial, there were several hours of legal argument about the admissibility of the video evidence. The Sheriff accepted the video evidence, commenting that the RSPB presence on the gamekeeper’s estate [from where the video was filmed] was “neither illegal nor irregular, and the intent to obtain evidence did not make it so“.  This is no different to the recent Cabrach case.

During the Mutch trial, again involving several hours of legal argument about the admissibility of evidence, the Sheriff accepted that the RSPB had not placed the video camera with the purpose of gathering evidence for prosecution, but they had placed it as part of a legitimate survey in to the use of traps. This is no different to the recent Cabrach case.

There is also an on-going trial at the moment (concerning alleged fox hunting) that relies heavily on video evidence filmed on privately-owned land without the landowner’s permission. The court has accepted the video evidence as admissible (although we can’t comment too much on this as the trial is still live).

So on that basis, we profoundly disagree with Professor Duff’s opinion that covertly filmed video evidence would not be accepted by the Scottish courts. It already has been, on several occasions, resulting in convictions. The question remains then, why did the COPFS decide it was inadmissible? Somebody within the Crown Office (presumably an experienced lawyer from with the Wildlife & Environmental Crime Unit) decided, when this case was first marked, that the video evidence was admissible. It took nine court hearings over a period of a year before the COPFS decided that the video evidence was inadmissible. We still don’t know the basis for that decision. And the other related question to this is why didn’t the COPFS let the court make the decision? It’s this inconsistency of approach that has caused so much confusion, and as Professor Duff writes, ‘bewilderment’.

Professor Duff also writes: “The actions by the RSPB [of placing a covert camera] are a breach of the right to privacy of both the estate owners and their employees (whilst not quite analogous, imagine if your neighbour installed a secret camera to record everything that went on in your garden)“. Sorry, but it’s quite absurd to compare these two scenarios given the size difference between these two types of landholdings. Nobody could argue that placing a covert camera to film somebody’s back garden wouldn’t be a breach of privacy, as you’d reasonably expect to see the human occupants on a daily basis. But on a multi-thousand acre estate, far from any private dwelling? Come on, “not quite analogous” is one hell of an understatement. And not only that, in the Cabrach case, the camera was aimed at the nest of Schedule 1 hen harrier, which by law cannot be approached/disturbed without an appropriate licence from SNH so you wouldn’t expect to film anybody anywhere near the nest.

All in all then, Professor Duff’s interpretation of the law, whilst useful, still doesn’t explain, or justify, the decisions made by the Crown Office in these two cases.

And questions still remain about the decisions to drop the other three cases (gamekeeper John Charles Goodenough of Dalreoch Estates; landowner Andrew Duncan of Newlands Estate; an unnamed gamekeeper of Edradynate Estate), none of which were reliant upon video evidence.

06
Jun
17

Crown Office drops 5th case of alleged wildlife crime

Public prosecutors from Scotland’s Crown Office have dropped yet another case of alleged wildlife crime.

According to an article in the Sunday Post (see here), gamekeeper John Charles Goodenough, 32, had been charged after he was allegedly caught with illegal gin traps covered in animal blood, with dead fox cubs found nearby, in May 2016. It is reported Goodenough was employed at the time by Dalreoch Farming & Sporting Estates, owned by the well-connected Wellesley family. It was alleged that Goodenough was using the illegal traps on a neighbouring farm in Ayrshire.

The case was due to be heard at Ayr Sheriff Court on 27 March 2017 but two days prior to the hearing, the Crown Office dropped the case ‘after getting the dates wrong on its paperwork’.

This latest case brings the total of recently abandoned prosecutions for alleged wildlife crime to five. That’s five abandoned cases in the space of two months:

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 April 2017 – gamekeeper Stanley Gordon (Cabrach Estate), accused of the alleged shooting of a hen harrier. Prosecution dropped as video evidence deemed inadmissible.

25 April 2017 – gamekeeper Craig Graham (Brewlands Estate), accused of allegedly setting and re-setting an illegal pole trap. Prosecution dropped as video evidence deemed inadmissible.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Given how difficult it is to get just one wildlife crime case anywhere near a court, to have five abandoned in the space of two months does not inspire confidence in the criminal justice system.

In fact such was the public concern about some of these cases being abandoned due to the supposed inadmissibility of video evidence, last month the Scottish Parliament’s Environment Committee wrote to the Crown Office to ask for an explanation (see here).

The Crown Office has now responded with this: COPFS letter to ECCLR_EvidenceAdmissibility_May2017

We are not legally qualified to comment in depth about how good or how poor the Crown Office’s response is. If any of our legally-minded readers (Adam?) would like to comment, please do so.

However, what we can say is that this response does not address the question of why the Crown Office made the decision about inadmissibility instead of allowing a court to decide, as has happened in previous cases (e.g. see here).

Nor does this response address the question of why the Crown Office did not believe the RSPB ‘s explanation for their use of video surveillance for monitoring a hen harrier breeding attempt at Cabrach Estate. The Crown Office maintains, without explanation, that the RSPB had installed the video ‘for the purpose of detecting crime’, whereas the RSPB maintains the camera was installed as part of a legitimate monitoring study, an explanation which had been accepted by both the Crown and the court in a similar situation in another case (here).

The RSPB’s case is not so strong in the Brewlands Estate case, where a camera was installed to monitor an illegal pole trap (a trap that the RSPB had since made safe by flicking on the safety catch), although the circumstances might have been different had the police been able to attend the scene as soon as they were notified of an illegally-set trap. Nevertheless, the fact that the Crown Office allowed a year’s worth of court hearings to pass by before deciding to abandon this case, and their unwillingness to communicate their specific concerns to the RSPB, is yet to be adequately addressed by the Crown Office.

The Crown Office’s response also does not explain (although to be fair, it wasn’t asked to) why dropping the prosecution against Andrew Duncan for alleged vicarious liability was deemed to be ‘not in the public interest’, and nor does it explain why a prosecution was not brought against the unnamed Edradynate Estate gamekeeper for the alleged poisoning of three buzzards, despite pleas from Police Scotland to do so.

The Crown Office’s letter to the Environment Committee ends with this:

COPFS remains committed to tackling wildlife crime, including raptor persecution. There is a strong presumption in favour of prosecution in cases reported to the Service where there is sufficient admissible evidence and prosecution is in the public interest‘.

You could have fooled us.

To be honest, as frustrating as it was to see these cases abandoned for what seem to us to be spurious reasons, the Crown Office’s unimpressive performance has probably helped move things along, because these dropped cases came at the time when the Scottish Government was already under severe public pressure to do something other than make vague promises to tackle wildlife crime. That’s not to say we are pleased with the outcome of these cases – far from it – but it’s quite likely that these failed prosecutions helped tip the balance and persuaded the Scottish Government that actually, the current system is failing and they need to find new ways of addressing the problem.

25
Apr
17

Crown Office drops third prosecution in two weeks

Two weeks ago, we blogged about how the Crown Office & Procurator Fiscal Service (COPFS – the public prosecutors in Scotland) had dropped a long-running vicarious liability prosecution against landowner Andrew Duncan, who was alleged to have been vicariously liable for the crimes of his gamekeeper, who had killed a buzzard on the Newlands Estate in 2014. When pressed for a reason behind the decision to drop the vicarious liability case, the Crown Office said it was “not in the public interest to continue” but did not provide any further detail of how, or why, that decision had been reached (see here).

Ten days later, we learned that the COPFS had dropped another long-running prosecution, this time against gamekeeper Stanley Gordon who was alleged to have shot a hen harrier on the Cabrach Estate in 2012. No explanation was given for this decision.

And now today, we have learned that the COPFS have dropped another long-running prosecution, this time against Angus Glens gamekeeper Craig Graham who was alleged to have set and re-set an illegal pole trap on the Brewlands Estate in 2015. Again, no explanation has been given for this decision.

That’s three high profile prosecutions for alleged raptor persecution crimes, dropped within a two week period, with no explanation why.

One long-running case being dropped would raise an eyebrow; a second long-running case dropped a few days later would cause concern, but three long-running cases, all dropped within a fortnight, all on the eve of an actual trial? That is highly suspicious, even for the most unassuming observer.

Was it incompetence on the part of the COPFS? That is surely a possibility, especially as each of these cases has been running for months, at huge cost to the public purse. Why did it take so long to decide to abandon each case? Was it an issue with video evidence? We’ve been there before, although we’ve also seen successful prosecutions based on video evidence. If it was an issue with video admissibility (and we don’t yet know if it was, so this is just speculation), why did it take so long to reach that decision and anyway, wouldn’t admissibility be an issue for the court to decide, not the prosecutor? Was there another reason for discontinuing these cases? We don’t know, because the Crown Office is saying nothing.

Whatever it was, the discontinuing of these three cases will cause huge damage to public confidence in the Scottish criminal justice system. What do you have to do to get someone to stand trial for alleged raptor persecution in Scotland? We know how difficult it is to identify a named suspect, and we know that the evidential threshold is set extraordinarily high for this sort of crime, so when you do manage to secure enough evidence to charge and then prosecute somebody, it is massively frustrating to (a) see the cases dropped and (b) not be told why.

What is clear amongst all this murkiness is that the current system is not fit for purpose. This series of discontinued prosecutions just adds more grist to the mill for the introduction of a licensing system, and for basing that system on the civil burden of proof.

Meanwhile, we’re looking forward to the release of the video footage……

24
Apr
17

Evidence session: petition to introduce gamebird hunting licensing

Last week the Scottish Parliament’s Environment, Climate Change & Land Reform (ECCLR) Committee held an evidence session as part of their consideration of the Scottish Raptor Study Group’s petition calling for the introduction of state-regulated licensing for all game bird hunting in Scotland.

The archived video of the session can be viewed here

The official transcript can be read here: ECCLR transcript gamebird shooting licensing 18 April 2017

The evidence session was split in to two parts. The first part comprised evidence from the petitioners (Logan Steele & Andrea Hudspeth from the SRSG) and the second part comprised a panel of ‘stakeholders’ including Logan Steele, Duncan Orr-Ewing (RSPB Scotland), Robbie Kernahan (SNH), Andy Smith (Scottish Gamekeepers’ Assoc) and Lord David Johnstone (Scottish Land & Estates). (Photos from ECCLR webpage).

We’re not going to go through the transcript line by line because that would be tedious, but instead we wanted to comment on a few observations.

Unlike the evidence session held at Westminster last autumn, this was a civilised, unbiased hearing. That may be because, unlike the Westminster Environment Committee, none of the ECCLR Committee have a direct conflict of interest in the subject nor receive payment from any of the organisations represented by the witnesses. The Convenor of the ECCLR Committee (Graeme Dey MSP) was far more professional than his inexplicably rude Westminster counterpart, and although Mr Dey is known to support the propagandist Gift of Grouse campaign, his management of this evidence session was reasonably balanced and fair.

In the first part of the session, Logan and Andrea gave measured, thoughtful evidence about the continuing issue of illegal raptor persecution, supported by decades of scientific monitoring and peer-reviewed science. These two witnesses deserve much kudos. They are ‘ordinary’ members of the public, so exasperated by the failure of successive Governments to sort out this problem that they’ve been moved to exercise their right through the democratic process of petitioning the country’s decision-makers. As a result, they’ve been vilified on social media, exposed to a barrage of personal abuse from certain individuals within the game shooting sector, and yet here they were again, calmly and adeptly stating their case. We all owe them a massive vote of thanks.

The performance of the other witnesses was mixed. Andy Smith (SGA) is doubtless well intentioned but his ability to engage in the actual discussion is limited. He clearly had a list of points he wanted to get across, but blurting them out whenever he had an opportunity to speak, instead of listening to the question that was posed and reacting to that, didn’t help his cause.

Robbie Kernahan (SNH) didn’t say too much, and most of what he said was fairly standard SNH-speak (i.e. fence sitting), although he did make an important opening statement that should add some gravitas to the Committee’s future deliberations:

Generally, in Scotland, we have quite a positive message about the recovery of raptor populations from those all-time lows. It is certainly a national picture. However, that is not to say that there are not issues. Certainly, some of the concerns about the intensification of moorland management prompted our scientific advisory committee to have a review two years ago. Without wanting to go through that chapter and verse, I can say that there is no doubt that the on-going issue of raptor persecution is inhibiting the recovery of populations in some parts of the country“.

The evidence provided by Duncan Orr-Ewing (RSPB) and David Johnstone (SLE) was perhaps the most interesting. Duncan spoke with authority about the extent of illegal raptor persecution, saying the RSPB “thinks the situation is as bad as it has ever been“, while David flatly denied this, pointing to the annual ‘body count’ as his supporting evidence but completely ignoring the long-term population data, as published in peer-reviewed scientific papers. When asked by the Convener whether there was a possibility that culprits might now be better at hiding the evidence, in part pressured by measures such as the threat of vicarious liability, David’s response was “No“. No? Really? No possibility of that happening at all? Come on.

What made David’s response even more incredible (in the literal sense) was that SLE, as members of the PAW Scotland Raptor Group, have been made aware of the recent flow of scientific papers (e.g. on red kite, golden eagle, hen harrier, peregrine), all clearly showing population-level impacts of illegal raptor persecution, and as PAW partners, are supposed to have been advising their members accordingly. So how come the Chairman of SLE hasn’t been informed?

And on the subject of ‘possibilities’, much was made of the possibility of estates being ‘set up’ (i.e. someone planting evidence) if a licensing system was introduced. Both Logan and Duncan accepted that this was a possibility and they were right to do so. Of course it is a possibility, although on previous experience, the probability of it happening seems quite low.

In January 2012, just after the introduction of vicarious liability, David Johnstone was cited as saying there was a risk of estates being set up in response to the new vicarious liability measure. Five years on, there hasn’t, as far as we are aware, been a single case of an estate being ‘set up’.

Similarly, in November 2013, the then Environment Minister Paul Wheelhouse was asked during a Parliamentary Committee whether estates being ‘set up’ was a legitimate concern for landowners and gamekeepers. Wheelhouse responded that yes, it was a possibility, but that there wasn’t currently any evidence to support such claims, although a new study on trap interference was due to assess the issue. The results of that study showed that the illegal tampering of traps was not as widespread as the gameshooting industry had claimed (see here) and when it had happened, the interference mostly related to trap ‘damage’ (rendering the trap inoperable) as opposed to setting an illegal trap to infer a guilty responsibility on the estate.

There was quite a lot of discussion about what a licensing system might look like, and it was argued by Logan and Duncan that it should be based on the civil burden of proof (much like the policy used for General Licence restrictions) and that this should be a tiered approach, so that a number of incidents would be required before a licensing penalty was applied. David Johnstone was totally opposed to this, saying that the use of the civil burden of proof would be too much of a business risk. There was quite an amusing discussion about this between him and Committee member Mark Ruskell MSP, who argued that if the business was already fully compliant with the law, as David claimed, then the risk should be very low.

All in all, it was a useful evidence session and the ECCLR Committee will be hard pressed to justify not taking things further. The Committee now has to consider the evidence presented and decide on its next move. We may well have to wait until after 8 June to find out what that move might be, because thanks to the forthcoming General Election, no political or sensitive announcements or decisions are permitted during election purdah.

17
Apr
17

Vicarious liability prosecution abandoned as ‘not in public interest to continue’

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.

11
Apr
17

Vicarious liability prosecution: case dropped (Andrew Duncan, Newlands Estate)

Regular blog readers will know that we’ve been tracking the vicarious liability prosecution of landowner Andrew Walter Bryce Duncan, who was 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 appealed his conviction but this appeal was rejected on 15 July 2016 (see here).

Vicarious liability proceedings against Mr Duncan began in August 2015 and the case has been repeatedly adjourned since then (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 Mr Dick’s appeal against his conviction but in part for other reasons which have not been explained.

The third trial date (24 April 2017) looked set to go ahead but today we’ve learned that the Crown Office & Procurator Fiscal Service has dropped all proceedings. We do not yet know why the prosecution has been dropped.

Whatever the reason for dropping the prosecution, this result does not reflect well on the efficiency of wildlife crime enforcement measures in Scotland.

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 effect over five years ago on 1st January 2012 as a provision in the Wildlife and Natural Environment (Scotland) Act 2011. It was introduced as an amendment to the draft WANE Bill in November 2010 by the then Scottish Environment Minister, Roseanna Cunningham. It was a direct response to the unrelenting problem of illegal raptor persecution and the apparent inability/unwillingness of the game shooting lobby to get their own house (grouse moors) in order.

To date there have only been two successful prosecutions/convictions: 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. 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). And now this latest case has failed, for reasons as yet unknown.

Two successful prosecutions in five years is not very impressive, and won’t be much of a deterrent for those who continue to kill raptors safe in the knowledge that the probability of being caught, prosecuted and convicted is still virtually nil.




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