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“.

FAILSo, 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:

14 thoughts on “No vicarious liability prosecution for Kildrummy Estate”

  1. ‘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)’

    Yesterday i watched the Channel 4 clip on the SNP Land Reform Bill

    In it Aileen McLeod gives her sound-bite. Wow, she really hasn’t a clue.

  2. Last month I emailed the Crown Office requesting information about the possibility of vicarious liability in this case and yesterday I received the same reply as yourselves – hugely disappointing but not hugely surprising!

    1. That is funny. I wrote that originally but changed it. It’s cruel but true. XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX. Definitely way out of her depth. Being out of her depth could even be a good thing if she could admit it and then look to educate herself and get help from experts. But she is pretending she looks like she knows what she is doing and looks like a fraud. Very worrying that she is in charge of the environment.

  3. My message
    To: ACC Crime MCPP
    Subject: Raptor persecution crimes at Kildrummy Estate in
    Aberdeenshire in 2012.
    Sent: Tue, 20 Oct 2015 18:56:14 +0100
    Dear Sir/madam,
    Please can you tell us why no-one else was reported to COPFS. other than
    Kildrummy gamekeeper George Mutch (e.g. for a vicarious liability
    prosecution for the criminal actions of Mutch) in relation to raptor
    persecution crimes at Kildrummy Estate in Aberdeenshire in 2012.

    was read on Wed, 21 Oct 2015 07:37:28 +0100

  4. Interesting. Re point 2, back in the days when I reported offences to the Procurator Fiscal, if an offence was prosecutable under vicarious liability provisions, we would always investigate, establish and include that in the original report to the fiscal. No need to wait until the original offence has been to trial to investigate it, vicarious liability meant that ‘You did, By the hand of your servant ****, ” so it always included in the original report, if we were satisfied the defences were not made. Occasionally the Fiscal would drop the vicarious charge (I can recall occasional cases where the principal was found not guilty but the employer found guilty under the vicarious provision). Mind you, these days the reports aren’t done in the way we used to.

    I’ve never understood the theory that you would have to establish the original offence to prosecute the employer (unless the legislation is actually worded that way, in which case I’ll go back to dozing in front of the fire) – maybe the Police need to speak to those who have spent years prosecutiong VL offences for some hints?

  5. This case was majorly disadvantaged because of police reluctance to joint work with RSPB and SSPCA. RSPB obtained the video evidence and passed it to SSPCA who approached police to jointly investigate.
    The resulting police investigation was a token gesture. Opportunities to seize vital evidence were missed. This would have reduced the chances of obtaining evidence supporting vicarious liability.

    I would be extremely surprised if there was any real investigation into the vicarious liability issue what so ever.

    Same mistakes over and over again, year after year, incident after incident. Nothing learned, nothing changes.

    Desperately depressing

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