Vicarious liability prosecution: case dropped (Andrew Duncan, Newlands Estate)

Regular blog readers will know that we’ve been tracking the vicarious liability prosecution of landowner Andrew Walter Bryce Duncan, who was alleged to be vicariously liable for the crimes committed by gamekeeper William (Billy) Dick in April 2014.

Gamekeeper Dick was convicted in August 2015 of killing a buzzard on the Newlands Estate, Dumfriesshire by striking it with rocks and repeatedly stamping on it (see here). Mr Dick was sentenced in September 2015 and was given a £2000 fine (see here). Mr Dick appealed his conviction but this appeal was rejected on 15 July 2016 (see here).

Vicarious liability proceedings against Mr Duncan began in August 2015 and the case has been repeatedly adjourned since then (a total of 13 court hearings) with two trial dates assigned but then later dropped (see here). These repeated delays were due in part to Mr Dick’s appeal against his conviction but in part for other reasons which have not been explained.

The third trial date (24 April 2017) looked set to go ahead but today we’ve learned that the Crown Office & Procurator Fiscal Service has dropped all proceedings. We do not yet know why the prosecution has been dropped.

Whatever the reason for dropping the prosecution, this result does not reflect well on the efficiency of wildlife crime enforcement measures in Scotland.

Vicarious liability in relation to the persecution of raptors in Scotland (where one person may potentially be legally responsible for the criminal actions of another person working under their supervision) came in to effect over five years ago on 1st January 2012 as a provision in the Wildlife and Natural Environment (Scotland) Act 2011. It was introduced as an amendment to the draft WANE Bill in November 2010 by the then Scottish Environment Minister, Roseanna Cunningham. It was a direct response to the unrelenting problem of illegal raptor persecution and the apparent inability/unwillingness of the game shooting lobby to get their own house (grouse moors) in order.

To date there have only been two successful prosecutions/convictions: one in December 2014 (see here) and one in December 2015 (see here). Both related to raptor persecution on low ground shoots, not on intensively managed driven grouse moors. One further case in October 2015 did not reach the prosecution stage due, we believe, to the difficulties associated with identifying the management structure on the estate where the crimes were committed (see here). And now this latest case has failed, for reasons as yet unknown.

Two successful prosecutions in five years is not very impressive, and won’t be much of a deterrent for those who continue to kill raptors safe in the knowledge that the probability of being caught, prosecuted and convicted is still virtually nil.

18 thoughts on “Vicarious liability prosecution: case dropped (Andrew Duncan, Newlands Estate)”

  1. As you would expect, the UK legal system is just not interested in anything other than covering their own tracks.

    [Ed: Chris, this case was being handled within the Scottish legal system and until we know why COPFS decided to drop proceedings, it’s unreasonable to suggest anything underhand took place]

  2. This is disturbing. I hope the reasons for dropping the case will become public. As it is the worry must be that it reflects either a deliberate strategy to spiral up costs to deter future prosecution or a level of mismanagement by prosecuting authorities.

  3. It is not exactly inspiring confidence in the system when there have only been two prosecutions in five years!

  4. Vicarious liabilty is only a small tool in the tool box and will not make a great deal of difference.
    Giving SSPCA suitable powers will make real positive change for the better.

    Support increasing sspca powers by writing or emailing your local msp and rosanna cunningham.

  5. As I always expected. Does Dick still work for the estate in question? If so, that alone should throw some doubt on the innocence of his Lords and masters.

  6. Doesn’t the vicarious part mean that even if you were totally unaware of the criminal actions of an employee, you should have known, and therefore you are still responsible? As the employee was found guilty, how can the landowner escape prosecution? We need to know what facts/evidence were presented to the COPFS, without this, it makes the law look an impotent ass. All the holding appearances would have cost a bomb, now all gone to waste and public opinion is that a member of the establishment has escaped justice. Surely going to trial and then not getting a successful prosecution would’ve been better from a “justice has to be seen to be done” perspective?
    I’m aware we have an innocent until proven guilty justice system, but this now looks like the opposite: guilty until proven innocent. Some pertinent facts from COPFS may help ‘prove’ it.

    1. ‘As the employee was found guilty, how can the landowner escape prosecution?’

      If there’s a system (ie paperwork) in place showing the landowner took all reasonable precautions to prevent wildlife crime occurring then that would form a defence, unless there was evidence to show that the system was a sham and only in place to avoid prosecution.

      The legislation is a paper tiger, little more than virtue signaling by the Scottish Government.

      What’s needed is licensing of shooting estates and an extension of powers to the SSPCA.

      1. ‘If there’s a system (ie paperwork) in place showing the landowner took all reasonable precautions to prevent wildlife crime occurring then that would form a defence,’

        If it is as easy as that, and i don’t doubt you, then it is is incredibly easy to get off this charge.

        [Ed: part of comment deleted]

        The silver lining is of course, as RPUK hinted, that when VL doesn’t work the Scottish government has to make the law stricter and stricter.
        The actions of the criminals xxxxx xxxxx xxxxx xxxxx just makes a ban more and more certain and yet they appear to be too stupid to realise it.

        [Ed: Prasad, we’ve edited part of your message. The defence is not as easy as suggested – please see our post on vicarious liability here: https://raptorpersecutionscotland.wordpress.com/2012/03/10/vicarious-liability-whats-it-all-about/

        We’ll be blogging more about this specific case tomorrow, as the Crown Office has now issued a statement about why the prosecution was discontinued]

    2. Hi Chris,

      As Dave Angel pointed out, there is a defence available. The accused has to demonstrate to the court that:

      (a) he did not know the offence was being committed; AND
      (b) he took all reasonable steps AND exercised all due dilliegence to prevent the offence being committed.

      It’s important to remember that Mr Duncan is innocent of all alleged charges against him in this case.

      We don’t yet know why the COPFS decided to drop proceedings. It could have been on the basis of evidence provided, or it could have been on a procedural technicality, or something else. It would be dangerous to speculate.

      We have asked COPFS to comment – whether they will or not remains to be seen. But given the high profile of this case, and the Government’s current focus on wildlife crime enforcement, it would be strange if any explanation wasn’t forthcoming.

      1. ‘We have asked COPFS to comment’

        Good luck with that, but I suspect you’ll be onto plums. Their policy is not to comment in detail on reasons not to prosecute. To be fair there are good reasons for that policy, however frustrating it might be in particular cases.

        ‘The prosecutor cannot disclose publicly the detailed reasons
        for a decision in a particular case. There are a number of
        reasons for this policy; the decision will have been based
        on confidential information, for example information relating
        to matters such as the credibility, reliability or state of
        health of an essential witness or details of police operations.
        Furthermore, public disclosure of the reasons for not
        proceeding or for accepting reduced pleas may expose the
        accused person to accusations of crime in circumstances
        where he no longer has the opportunity of defending himself
        against such allegations in a court of law.

        Click to access Prosecution20Code20_Final20180412__1.pdf

  7. I have spoken with Bert, a local journalist who reports on court matters. The matter was treated as ‘not called’ which means that it did not appear before the Sheriff. This is consistent with the Crown having abandoned the case. Bert was unable to provide any more information as he was yet to speak to the Sheriff Clerk or the Fiscal. It is unlikely that the Fiscal will give any explanation why the matter has been abandoned. Hopefully Bert will call me back if he gets any more information.

  8. difficult to comment without knowing the reasons why this case was dropped, will we learn them ?

    But, deeply saddened that our law is not robust enough, the slaughter will continue……..

    Sorry, posted on the wrong item previously.

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