Regular blog readers will be well aware that the concept of vicarious liability in relation to raptor persecution became enacted in Scotland on January 1st 2012 as part of the WANE Act. For new readers, some background can be found here. Vicarious liability has had its critics but until the first test case in court, nobody really knows just how strong, or weak, the new legislation will prove to be.
An interesting comment about vicarious liability was received on the blog at the end of last week; it suggests legal loopholes may be being exploited to avoid possible conviction. Given the interest in VL, we’ve decided to re-post the comment here. Thanks to Steve from OneKind for submitting it:
“Information gathered by Onekind suggests how some estate owners may try to avoid vicarious liability in the future by sending their game keepers on all the trapping and best practice courses there are going. According to our intelligence, top lawyers are being hired to travel around the country lecturing to gamekeepers on the law related to wildlife crime. Our information suggests that the idea behind this action, being taken by landowners and worked on by these top Lawyers, is that if a wildlife crime were to occur on their land by one of their keepers then the landowner can say that he put his keeper through the relevant courses and that he doesn’t know why the keeper did what he did. They hope that this will be enough to persuade the court that they were not complicit with the crime carried out on their land. Further information we have acquired tells us that a well-known land owner has been urging other landowners to take this idea on and which will probably be up and running properly within the next few months“.
I guess we’ll wait and see whether this defence is used if/when charges of vicarious liability are ever brought against anyone. It’s an interesting one because what they are allegedly proposing to do is not illegal, but its hardly in the spirit of moving towards the elimination of raptor persecution from the game-shooting industry, is it? In its defence, some will probably argue that we should all be thankful that gamekeepers are receiving such excellent training, but some may argue that some of the training is far from excellent. For example, OneKind has concerns about the adequacy of the snare training courses and suggests there may be an ulterior motive for running them (see here).
The use of legal loopholes to avoid possible conviction is a well-known tactic in many areas of crime, not just wildlife crime, although wildlife crime does have its fair share of examples. A recent one was reported in a newspaper at the beginning of July (sorry, no URL available) concerning the case of a gamekeeper on the Airlie Estate at Kirriemuir, Angus. He was accused of alleged criminal activity after the discovery of three buzzards inside a crow cage trap. However, he was acquitted after Sheriff Kevin Veal decided that the keeper was not given proper information about why he was being interviewed by an SSPCA inspector and a Tayside Police wildlife crime officer. Some lawyers are very good at their jobs.
It certainly pays to employ a professional lawyer rather than a pretend one. An employee from a very well-known organisation recently sent an email to a group (no, not us!) who publish the names of convicted gamekeepers and other wildlife criminals on their website. The email suggested that certain names should be removed from the website because the convictions were considered spent. The email explained the relevant law under which the names should be removed and went into some detail about how the law applied. The employee signed off with an impressive number of letters after their name, including LLB (a law degree). Uncannily, the information that the impressively-qualified employee wrote about this particular law bore an incredibly close resemblance to a Wikipedia entry on the same subject. Hmm, not quite so impressive now!
Raptor Persecution UK 
I’ll believe in Vicarious Liability when there is a conviction, but I doubt that it will ever happen.
[Ed: the last part of this message has been removed. We share your sentiment but criminal activity in this case hasn’t been proven].
VL was always goign to be difficult to make stick, for the reasons noted above- even without training courses and the like, that the landowners, all good decent chaps, were always going to persuade their learned friends that its not really their fault if their employees broke the law. Surely a more effective way would be compulsory lifetime banning orders to convicted gamekeepers (no wriggle room for gentrified sheriffs to avoid such orders) and to make it illegal to employ anyone under such an order. This, though, would involve political will and a bit of political nous, rather than the tokenistic approach from the SG
Well, I know nothing about how this would all pan out in reality – but – my employer sends me on lots ot training courses (it’s better than working) on lots of different subjects including safety related matters, best practice within the industry and our legal responsibilities, I receive constant team briefings highlighting matters arising from regulatory agencys investigations, rule changes, company policy etc. If I were then to deliberatly (and perhaps even inadvertantly) transgress these instructions and this came to light by an inspection carried by one of my managers, HSE, an independant auditor from another area within the company (or even an accusation or report from another member of staff) then I would face immediate suspension with almost inevitable dismissal. If sufficiently serious, such as leading to an accident, questioning under caution – but – and more importantly, the company and my line managers would also face some pretty serious questioning from the regulator/HSE and the company might in eventuallity very be fined a substantial amount – the buck doesn’t stop with me. It would be regarded that the company (employer) had failed to ensure that me (employee) had been properly managed, supervised and that insufficiently stringent procedures were in place to prevent the ocourance.
So how can the defence of “that if a wildlife crime were to occur on their land by one of their keepers then the landowner can say that he put his keeper through the relevant courses and that he doesn’t know why the keeper did what he did” hold good when it obviously doesn’t in other industries? My point being that sending someone to a training course does not abrogate the responsibility of the employer in the eyes of the court. One law for the rich perhaps?
Pip