Posts Tagged ‘vicarious liability

19
Aug
19

Monumentally inadequate sentence for convicted Scottish gamekeeper Alan Wilson

In July this year, Scottish gamekeeper Alan Wilson, then 60, pleaded guilty to nine of 12 charges of wildlife crime at Henlaw Wood on Longformacus Estate in the Borders (see here).

[Convicted wildlife criminal Alan Wilson, a member of the Scottish Gamekeepers Association. Photo by ITV Border]

Wilson’s crimes included the shooting and killing of two goshawks at Henlaw Wood between March 2016 and May 2017, three buzzards, three badgers and an otter. He also pleaded guilty to charges of setting 23 illegal snares and possession of two bottles of the highly toxic (and banned pesticide) Carbofuran (see here).

[SSPCA photos]

Following Wilson’s guilty plea, the Sheriff adjourned sentencing for a few weeks to allow reports to be submitted.

Soon after his conviction, Scottish Land & Estates issued a statement of condemnation and claimed the Longformacus Estate was being managed for low ground pheasant shooting but in its desperation to avoid any bad publicity of grouse moor management, completely failed to mention that part of the estate was also managed as a grouse moor. Here’s a photograph of Henlaw Wood (now felled) and its proximity to the grouse moor:

[Original photo by Richard Webb; additional text by RPUK]

Alan Wilson, now 61, was sentenced at Jedburgh Sheriff Court this afternoon. Astonishingly (or not!), despite his litany of violent crimes against protected raptors and mammals which easily passed the threshold for a custodial sentence, Wilson has dodged jail, has dodged a fine, and instead has been issued with a 10-month curfew and an instruction to carry out 225 hours of unpaid work as part of a Community Payback Scheme. His firearms and other equipment was confiscated (it’s not clear for how long).

This monumentally inadequate sentence is in no way a reflection of the severity or extent of Wilson’s crimes, nor does it offer a suitable deterrent for other would-be offenders. According to this article in the Guardian by Sev Carrell, Sheriff Peter Paterson acknowledged that Wilson’s offending warranted a custodial sentence but said that as the Wildlife & Countryside Act only allowed sentences of up to six months, and Scottish Ministers had recently introduced a presumption against jailing offenders for less than 12 months, he felt he had no choice but to impose a different sentence.

This doesn’t make sense to us. Sure, the W&CA does, currently, impose a limit of six months but that’s six months per offence, so in Wilson’s case, where he had pleaded guilty to multiple offences, this would have amounted to much more than one six-month sentence and so in our opinion, he should have received a custodial sentence. We don’t know if this sentence will be appealed by the Crown Office – it must first be satisfied that the sentence was unduly lenient (e.g. see here). We’ll have to wait and see.

What is absolutely crystal clear is that the Scottish Government needs to get on and implement the penalty increases for wildlife crimes that it agreed to do way back in 2016.

This is Wilson’s second conviction in relation to offences at Longformacus Estate: in February 2018 he was sentenced to a £400 fine and disqualified from keeping birds of prey for ten years after he was convicted of animal welfare offences in relation to an Eagle Owl he had kept in appalling conditions (see here).

We don’t know whether Wilson’s employer (which may be a landowner or a sporting agent) will face a charge of alleged vicarious liability. We know that two individuals were originally charged with alleged offences at Longformacus Estate (e.g. see here) but we don’t yet have any more details. We will be following up on this and will report here if there is news. [Please note: if you are commenting on this aspect of the crimes at Longformacus Estate, remember there is a potential defence to any allegation of vicarious liability – Wilson’s employer is not automatically guilty just because he was Wilson’s employer].

Interestingly, the Scottish Gamekeepers Association has, after months of refusing to comment, now finally admitted that Wilson was indeed an SGA member when he committed these wildlife crimes. Here is the SGA statement posted today:

We’ll be discussing Wilson’s SGA membership in a later post.

It is not clear to us whether the Longformacus Estate is a member of Scottish Land & Estates. So far SLE hasn’t issued a statement about today’s sentencing. Instead, it’s website is leading with an article with the unfortunate headline, ‘Making it Happen’.

More on this soon.

It only remains to acknowledge the huge efforts of all those involved in detecting, investigating and prosecuting this case. This successful conviction was the result of genuine partnership working between the League Against Cruel Sports, Scottish SPCA, RSPB Scotland, Police Scotland and the Crown Office, along with experts from the Scottish Raptor Study Group, SASA, and veterinary pathologists from Scottish Agricultural College. Well done and thanks to all those involved in exposing this filthy criminal activity on yet another grouse moor.

Wildlife crime is endemic on many grouse moors. We see it over and over again and we also see the offenders escape justice time and time again. If you’d like to help bring it to an end, please consider signing this new petition calling for a ban on driven grouse shooting – PLEASE SIGN HERE

 

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23
Jul
19

Convicted Scottish gamekeeper Alan Wilson & his litany of wildlife crimes

Further to the news yesterday that Scottish gamekeeper Alan Wilson, 60, had pleaded guilty to nine of the 12 charges of wildlife crime against him (see here), here is some further detail.

From The Times (by Robert Fairburn):

Gamekeeper killed protected birds, badger and otter

A gamekeeper shot dead badgers and buzzards and set dozens of illegal snares in Scottish woodland in what one wildlife expert described as the greatest cull of protected species he had ever seen.

Alan Wilson, 60, has pleaded guilty to priming 23 illegal snares in a small wood on the Berwickshire estate where he worked. A court was told that the League Against Cruel Sports had been tipped off by a member of the public out hiking that snares were being operated at Henlaw Wood on the Longformacus Estate.

[RPUK map of the location of Longformacus Estate]

In March 2016 a research officer found snares and a “stink pit” containing a pile of dead animals designed to attract other animals. A year later he returned and found the carcass of a badger and dead birds.

The site was visited by police officers and Scottish SPCA officers when the full catalogue of shot protected species emerged.

David Anderson, conservation manager for the Forestry Commission Scotland, attended Henlaw Wood, which is 550 metres in length, and wrote in his report: “In 40 years working in wildlife management I have never seen so many protected species dead in such a small area.”

Jedburgh sheriff court was told that Wilson was the sole gamekeeper for the Longformacus estate. He had worked as a gamekeeper in France for ten years before returning to Scotland and lived on the estate with his partner.

Wilson pleaded guilty to shooting and killing two goshawks at Henlaw Wood between March 2006 and May 2017, three buzzards, three badgers and an otter. He also pleaded guilty to charges of using illegal snares and possession of two bottles of carbofuran.

Wilson was fined £400 last year and banned from keeping birds of prey for ten years after admitting failing to protect an eagle owl in his care from suffering. He had pleaded guilty to keeping the pet bird in filthy conditions in a pigsty at his home in Longformacus [see here for RPUK blog on that case].

Wilson admitted nine offences and will be sentenced next month [19th August we believe] after background reports are prepared. Sheriff Peter Paterson told him: “These charges are serious and numerous and before I decide on an appropriate sentence I will need a report to see what sentencing options are open to me. Society, whatever you may think, takes a dim view on this.”

There has been growing debate about Scotland’s grouse moors. Chris Packham, the naturalist and broadcaster, has urged ministers to introduce a strict licensing system on moors, with powers to ban shooting estates where protected species are vanishing. A Scottish government review of grouse moor practices is expected to be published within weeks.

ENDS

It’ll be all eyes on Jedburgh Sheriff Court on 19th August when this criminal gamekeeper is sentenced. We believe the custody threshold has been easily met and given the range of offences against these protected species, in addition to being found in possession of the highly toxic (and thus banned) pesticide Carbofuran, only a custodial sentence will suffice.

There have been questions asked about Wilson’s employer and whether a charge of alleged vicarious liability is being pursued. We believe there is currently a live investigation on this and as such we won’t be blogging about it, or accepting comments specifically about it, until proceedings have concluded.

The conviction of gamekeeper Alan Wilson can now be discussed, however. We look forward to finding out whether he is/was a member of the Scottish Gamekeepers Association and if so, how they explain his appetite for illegally killing protected raptors and mammals, why he was setting illegal snares and why he had two bottles of Carbofuran in his possession.

Presumably the SGA knew nothing of Wilson’s crimes, which begs the question, how can the SGA make so many claims about the number of supposedly law-abiding gamekeepers when they haven’t got a clue what those gamekeepers are up to, nor do they have sufficient influence to prevent them committing wildlife crimes?

Over to you, SGA Chairman Alex Hogg…..

Previous blogs about this case: herehere here  here herehere, here, here, here here.

UPDATE: 24 July 2019: How has the game-shooting industry reacted to conviction of Scottish gamekeeper Alan Wilson? (see here).

 

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)

06
Mar
18

Stody Estate exonerated after gamekeeper’s conviction for mass raptor poisoning

Regular blog readers will remember the mass poisoning of birds of prey on the Stody Estate, Norfolk in 2013.

In October 2014, Stody Estate gamekeeper Allen Lambert was convicted of a series of wildlife crime offences on the estate, including the mass poisoning of birds of prey (10 buzzards and one sparrowhawk) which had been found dead on the estate in April 2013. He was also convicted of storing banned pesticides and other items capable of preparing poisoned baits (a ‘poisoner’s kit’) and a firearms offence (see here and here).

Photo of nine of the buzzards poisoned by gamekeeper Lambert [photo: RSPB]

In our opinion, gamekeeper Lambert got off pretty lightly when he was sentenced in November 2014. Even though the judge acknowledged that Lambert’s crimes had passed the custody threshold, Lambert received a 10-week suspended sentence for poisoning 11 raptors (suspended for one year), a six-week suspended sentence for possession of firearms and dead buzzards (suspended for one year) and was ordered to pay £930 prosecution costs and an £80 victim surcharge. In our opinion (see here), this was absurdly lenient for one of England’s biggest known mass raptor poisoning incidents, and on top of that, Lambert wasn’t even sacked – it was reported that he’d been allowed to take early retirement from the Stody Estate.

However, even though Lambert appeared to have got off lightly, his employers at Stody Estate were hit with a massive financial penalty (through cross-compliance regulations), believed to be the biggest ever civil penalty imposed for raptor persecution crimes.

Today though, the High Court has ruled that Lambert’s actions were “not directly attributable” to Stody Estate or its senior management and the subsidy penalty has been quashed!

In other words, the employer (Stody Estate) cannot be held accountable for the criminal actions of its employee (Allan Lambert). That’s quite astonishing, although it’s difficult to comment in detail without knowing the finer details of Lambert’s employment contract with Stody Estate. [UPDATE 7th March – full written judgement now available at foot of this blog post]

It does seem like yet another example of the need to introduce vicarious liability legislation for specific offences against birds of prey in England, as has been done in Scotland.

Stody Estate photo by RPUK

The following article has been published in the EDP:

A farm company was wrongly penalised after a gamekeeper poisoned wild birds of prey to preserve game birds for shooting, the High Court has ruled.

Allen Lambert poisoned 10 buzzards and a sparrowhawk which he saw as a threat to 2,500 pheasants and partridges laid down for a 10-day “family shoot”.

The gamekeeper on the 4,200-acre Stody Estate in north Norfolk was convicted of an offence under the Wildlife Conservation Act 1981 in October 2014.

And, in January last year, then Environment Secretary, Andrea Leadsom, stripped Stody Estate Ltd of 55pc of its farm subsidy for that year.

Overturning the penalty today, a senior judge noted that there had been “no finding of fault” against the company, based in Melton Constable, or its senior management.

The mere fact of Mr Lambert’s conviction did not prove that poisoning the birds was “directly attributable” to his employer, said Mrs Justice May.

“Some further enquiry directed at the level of fault, if any, on the part of Stody Estate in connection with Mr Lambert’s actions was required,” she added.

“In the absence of any finding of fault there was no proper basis for the imposition of a penalty.”

The Stody Estate, which has 15 employees, has been farmed by the MacNicol family for 75 years and Charles MacNicol is its managing director.

Estate manager, Ross Haddow, has day to day management of the farm and Mr Lambert had been a gamekeeper since 1990, living in a tied cottage.

The Rural Payments Agency, which administers the single farm payment subsidy scheme, at first said the company should lose 75pc of its subsidy.

That was reduced to 20pc by the Independent Agricultural Appeals Panel, but the penalty was upped again, to 55pc, by Ms Leadsom last year.

Stody Estate Ltd and its management were “exonerated” from any involvement in poisoning birds, the court heard.

But Ms Leadsom concluded that “the intentional acts of Mr Lambert, acting within the scope of his employment, were to be treated as those of the farmer, being Stody Estate.”

The issue was of such importance to the farming industry that the National Farmers Union intervened in the case, arguing that the penalty could only lawfully have been imposed if Charles MacNicol, or possibly Mr Haddow, had poisoned the birds.

Mrs Justice May said that that was going too far, but nevertheless ruled that Mr Lambert’s actions could not be “directly attributed” to Stody Estate or its management. The penalty was quashed.

ENDS

UPDATE 7 March 2018: The written judgement can be read HERE (with thanks to @borobarrister)

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.




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