Vicarious liability: contravention of human rights?

waneThe use of vicarious liability legislation is extremely topical right now, especially as we recently learned there was to be no vicarious liability prosecution in the Kildrummy case. We currently await a response from Police Scotland to explain why the legislation wasn’t enforced in this case (see here).

A couple of days ago a Cambridge University academic, Dr Findlay Stark, contacted us on Twitter to discuss his views about the vicarious liability legislation and whether it was in contravention of the European Convention on Human Rights.

Dr Stark is a lecturer in criminal law and specialises in the philosophical/theoretical aspects of this field. Rather than conduct an unsatisfactorily abbreviated discussion on Twitter, we asked him to consider writing a blog about this issue. He has done so, and it’s a fascinating read.

Dr Stark’s stance is that the current legislation may violate the human rights of the accused in a vicarious liability case. It’s important to point out that Dr Stark’s position is genuinely independent. There’s no hidden agenda for or against landowners/estate managers or conservationists; it’s a purely academic viewpoint and this gives some weight to his arguments.

He provides much food for thought and it’ll be interesting to see whether his recommendation is acted upon by the defence agent in the next vicarious liability prosecution.

Read his blog here

23 thoughts on “Vicarious liability: contravention of human rights?”

  1. This is how progressives always shoot themselves in the foot. Stop trying to be fair and impartial. Your opponents are not, and any impartial response that does not back you up 100% will be used against you to make it more difficult to effect change. Do what your opponents do, commission findings not discuss ways the law can be used in their favour. I bet you could have found someone to give you a full and comprehensive legal opinion showing that VicLi is completely, 100%, in accordance with the HRA. Instead there is the landowners legal research done for them, for free, and you are publicising it. That does not help the cause, not one single bit. I just hope we can turn up something in this guy’s background to discredit him now.

    1. Completely disagree with you. This article has been posted here to provoke discussion. We don’t have the legal expertise to critique Dr Stark’s analysis, but some blog readers might. There’s no point ignoring the issue just because it might run contrary to what we’re trying to achieve (justice). If the VL legislation is flawed (and it might not be), then it needs to be addressed and Scot Gov will need to introduce a measure that will work and is lawful.

      1. The tools are there, in my post, to argue the point either way. And I explain why if it doesn’t go the way of people fighting against wildlife crime, they could still achieve convictions. I am not quite sure that anybody has shot themselves in the foot.

      2. Provoking discussion was the error to start with. You should have either ignored him, or found someone with a better interpretation. If it runs contrary to our aim, then it does not exist and if someone tries to make it exist then an opinion showhing how they are wrong needs to be published instead. You cannot win anything that way. Of course I find it hard to believe that anyone educated at Cambridge could really be objective anyway, especially on land reform and wildlife crime. It is practically ground zero for authoritarian land owners and for the hunting, shooting, and fishing lobby. How can anyone from that background produce a truly objective report that is uninfluenced by those social pressures? It seems more likely to me they might be biased, perhaps unconsciously, to find a way to excuse those who are in that lobby and be prejudiced towards finding error in good and useful legislation. Finding controversy where there is none is a well established tactic of that lobby, as we all know.

        1. Of course, if the parliaments of Scotland and Westminster were to introduce penalties such as those imposed by the Spanish authorities, there would be a lesser need for Vicarious Liability.

        2. How could anyone (regardless of bacground) possibly produce anything ‘objective’? Everyone is biased and prejudiced to a certain extent. We are all influenced by social (and other) pressures.

    2. If you are suggesting turning up something in Dr Stark’s background to discredit him (I assume he is the “this guy” you refer to), don’t waste your time. He is just as passionate as any of us about the welfare of raptors, and indeed all animals, wild and domesticated. he is simply carrying on a family tradition of strong opposition to animal cruelty & persecution. But a flawed law is like any flawed object – unsuitable for purpose. In commenting on this legislation, and the way in which the vicarious liability element was arrived at, Findlay is making a completely legitimate point, not helping anyone’s defence. It’s very naive to assume that defence lawyers are not completely au fait with the tension between vicarious liability and the HRA.

      1. A flawed law is only unsuitable for purpose when it is used against us. Until then, flawed or not, it is a great law. This is a very useful law, and nobody on the side of wildlife preservation should even think of picking at it. Pick at it and you are pro-wildlife persecution by default. Stop trying to play fair and be the better person with wildlife criminals and the land holders, it will never work and will end up making things harder for the real reformers. We need to present to them the same unified front, and use the same tactics, as they do against us. That is how land reform and wildlife protection laws will be won.

  2. Perhaps the answer to this problem is for SNH to modify the General licence to require that where a licence is issued it requires the licence holder to ensure that the licence is only used in compliance with the law, and suggests procedures be put in place to ensure that all persons making use of the licence are fully aware of the wish of the licence holder to maintain legality, and suggest that procedures are in place to ensure compliance.
    If a licence holder”s employee were then to commit a criminal act the holder would be able to show that he had done as advised, and if he had procedures in place, to claim that he had taken all necessary steps. If the employee chose to ignore this, and it could be shown at the time of the employee trial, a heavier book could be thrown at him. On the other hand, an employee might be less likely to commit the crimes when he knew that his employer had taken steps to avoid prosecution himself. Thanks for this bit of education.

    1. Modifications to the general licence are hardly likely to make any difference to the people holding it whatsoever, we already have legislated wildlife laws which if adhered to would be more than sufficient in protecting our indiginous wildlife. The fact that the wildlife laws are in most cases totally ignored by certain people involved with “game” shooting proves the point that any form of licence would be no deterrent without the courts of this land making sure the laws are upheld without prejudice. SNH/NE are certainly no guarantee of the wildlife laws ever being adhered to where the grouse shooting estates are involved. The same goes for vicarious liability legislation, it doesn’t matter how well the legislation is written if the willingness to uphold it and make it work is not there. While ever the courts are influenced by dubious loyalties and pressure from outside influences there will always be outcomes that seem to be in complete contrast to the true facts !!!

  3. ……..none of which was a consideration when the police decided not to prosecute the Kildrummy estate.One step at a time, let’s get prosecutions before snaring ourselves with legal theory.Unlikely that the Crown Prosecution or your average hairy arsed defence would have considered any of this.

  4. I must admit to bias, as I’m Findlay Stark’s mother – but my own feeling is that a flawed law is of no help in combatting the irresponsible behaviour we all (including Findlay!) abhor. The vicarious liability option has scarcely been used, and even where it has been used successfully, the penalty was risibly slight. There must surely be better ways of holding landowners to account where raptors and other native species have been illegally targeted. I think if we ignore the legal theory, then we risk more of the same: a scenario where a flawed law allows yet more people to duck all responsibility and penalty.

    1. It’s also important to remember that it’s not vicarious liability itself that is the problem; it’s the defences in section 18A which reverse the burden of proof.

      1. ‘I end by suggesting that the next person to be prosecuted under section 18A tries this human rights argument out to see what answer the courts come to.’

        Do you know for a fact that the issue hasn’t already been raised in the case(s) to date?

          1. And do we happen to know whether the issue of compatibility was discussed at any of the numerous preliminary diets? It would be unlike L&M not to raise the issue if it might offer a defence. My gut feeling is that the issue has been considered and rejected.

  5. Haven’t yet read the legal blog, but I suspect that if there was a compatibility issue it would have been fully explored by Levy & McRae before now.

  6. The fact that vicarious liability was introduced by a statute mainly concerned with wildlife conservation seem to suggest that wildlife crime is not necessarily considered to be part of the ‘mainstream’ criminal law.

  7. The law is an ass and philosophical arguments especially those concerning “human rights” issues are particularly so – indeed the whole human rights nonsense has led to some of the most glaring miscarriages of natural justice since the concept was invented. I prefer the opinion of the man on the Clapham omnibus who would give very short shrift to sophistry. Perhaps a new version of the star chamber is in order.

  8. Interesting blog about VL and the HRA. It would be worth asking Dr Stark’s opinion about parallels between this issue and the legislation covering Health & Safety at work. I believe a de facto Vicarious Liability applies up through an organisation or management/responsibility chain in relation to actions of employees when such laws are broken and people are hurt, and that there is plenty of case law behind that. There are many parallels with the responsibility chain for estate management, poisons etc. Does Dr Stark know, or believe, that such upwards liability, which can result in company directors being prosecuted or even jailed, is also incompatible with the Human Rights Act? If not, why not, and how does it compare with the situation for wildlife law and the chain of estate management?

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