Month: September 2016

In July we blogged about the discovery in June of a critically-injured Common gull that had been found caught in two illegally-set spring traps on Invercauld Estate in the Cairngorms National Park (see here).

We also blogged about a bizarre press statement from Invercauld Estate (issued via the GWCT’s twitter feed) in which they denied any illegal activity had taken place or if it had, it was perhaps a set-up ‘intended to discredit the grouse industry‘ (see here).

We also blogged about the Scottish Gamekeepers’ Association’s press statement, which said the SGA was conducting its own enquiry (see here).

We also blogged about Police Scotland’s view that a Common gull had been found caught in an illegally-set trap but ‘despite a thorough investigation‘, Police enquiries had failed to find further evidence to proceed with a potential prosecution and ‘there are at present no further investigative opportunities available‘ (see here).

So that looked like the end of it. Until, through a series of FoIs to the Scottish Government and the Cairngorms National Park Authority, a very interesting letter has emerged.

The letter, dated 27 July 2016 (so a week after the original story had broken) was written by Angus McNicol, who identifies himself as the Estate Manager for Invercauld Estate, and was addressed to the Cabinet Secretary for the Environment, Roseanna Cunningham. A copy of the letter was also sent to the Cairngorms National Park Authority. It’s a fascinating read.

Here is a copy of the letter: Invercauld Estate letter

Having read it, our first question was, ‘Why was this letter written?’ That’s a hard question to answer because we can’t get inside Mr McNicol’s head to read his thought processes. We can, though, speculate about the intentions. In our opinion, this letter was written to reassure the Cabinet Secretary that Invercauld Estate takes wildlife crime seriously and they’ve done something about it.

You’ll see that one paragraph in this letter has been partially redacted (by the Scottish Government – and, incidentally, the copy of the letter received from the Cairngorms National Park Authority was redacted in exactly the same place). It’s this partial paragraph that interests us the most. Here it is:

Let’s focus on the sentence immediately before the redaction begins. “Whilst this was a press report, we decided to act on the worst case scenario, taking the report at face value“. Assuming that the ‘worst case scenario‘ might have been that an Estate employee was responsible for illegally setting the traps, the Estate ‘decided to act‘. What action they took is unknown, because that bit has been redacted. But interestingly, the word ‘gamekeepers’ appears later in the same paragraph.

Later in the letter, Mr McNicol reiterates that ‘action‘ had been taken:

So, was the ‘action’ to which Mr McNicol refers, disciplinary action against one or more Invercauld Estate gamekeepers in relation to this crime? Has somebody been sacked?

If that’s actually what happened, and if Mr McNicol has admitted this in writing, wouldn’t that trigger an investigation in to a potential vicarious liability prosecution?

Is that why, later in the letter, Mr McNicol goes to great lengths to explain the measures that Invercauld Estate has put in place to ensure its staff do not commit wildlife crimes? These measures, explained in such detail, might form the defence of ‘due diligence’ – remember, if an estate is accused of being vicariously liable for certain wildlife crimes, a defence of due diligence is permitted (see here).

Whether an estate’s attempts at due diligence are a sufficient defence to an accusation of vicarious liability is for a court to decide. We presume, if our interpretation of what happened is accurate, that both the Scottish Government and the Cairngorms National Park Authority have notified Police Scotland about the content of Mr McNicol’s letter and Police Scotland will now be following this up with an investigation? Time will tell.

The content of Mr McNicol’s letter raises some other interesting points.

Why, if Invercauld Estate has taken action against an employee, did the Estate deny in their original press statement that the offence had even taken place or claim that if it had, it had been a set-up ‘intended to discredit the grouse industry‘?

Who is the person/organisation that conducted “independent searches of hill ground and of buildings on the Estate to check for illegal traps, snares and illegal pesticides“? Presumably it wasn’t the GWCT – they can hardly be classed as being ‘independent’ if they’re publishing press statements on their twitter feed on behalf of Invercauld Estate. And presumably it wasn’t anybody from Scottish Land & Estates – they can hardly be classed as ‘independent’ as Mr McNicol states Invercauld Estate is a member of SLE. And presumably it wasn’t anybody from the SGA – they can hardly be classed as ‘independent’ as Mr McNicol states that ‘all the relevant staff are members of the SGA‘. So who was it?

When did these ‘independent searches of hill ground and of buildings on the Estate to check for illegal traps, snares and illegal pesticides” take place, and how often have they been conducted?

Why did Police Scotland, as part of what they described as a ‘thorough investigation‘, only speak to a representative of Invercauld Estate (Mr McNicol)? Why didn’t officers question, under caution, the gamekeepers who work on the part of the Estate where the illegally-set traps were found?

It’s all very interesting.

Perhaps we’ll get some answers once the SGA has finished its enquiry in to what happened. Presumably they’ll be publishing their findings in due course….