Vicarious liability prosecution abandoned as ‘not in public interest to continue’

Last week we blogged about the Crown Office dropping all proceedings against landowner Andrew Walter Bryce Duncan, who was alleged to be vicariously liable for the criminal actions of his 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).

The Crown Office & Procurator Fiscal Service (COPFS) began vicarious liability proceedings against Mr Duncan in August 2015 but the case was repeatedly adjourned (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 gamekeeper Dick’s appeal against his conviction but in part for other reasons which have not been explained.

As the third trial date (24 April 2017) approached, we were somewhat surprised to learn last week that the case had been abandoned. We asked COPFS why this had happened and this is their response:

All cases are continually kept under review, and after taking consideration of the full circumstances of this case, and all of the available evidence, Crown Counsel concluded that it was not in the public interest to continue the case to trial.

COPFS remain committed to tackling raptor persecution and there is a strong presumption in favour of prosecution of the cases reported to us where there is sufficient evidence and it is in the public interest to do so“.

There is no detail about why proceeding to trial ‘was not in the public interest’ and indeed, the COPFS does not have to disclose this information. We do know that the COPFS Prosecution Code outlines a large number of factors that are to be considered for a public interest test, including:

  • The nature and gravity of the offence
  • The impact of the offence on the victim and other witnesses
  • The age, background and personal circumstances of the accused
  • The age and personal circumstances of the victim and other witnesses
  • The attitude of the victim
  • The motive for the crime
  • The age of the offence
  • Mitigating circumstances
  • The effect of prosecution on the accused
  • The risk of further offending
  • The availability of a more appropriate civil remedy
  • The Powers of the court
  • Public concern

Without knowing the specific details of the evidence in this case it is pointless to speculate about why the case was abandoned (and for anyone commenting on this post, please be careful not to libel Mr Duncan). We just have to accept that it was abandoned, as frustrating as that is, but we do hope that the COPFS will share some detail with the reporting agencies so that lessons can be learned for future cases.

Journalist Rob Edwards has written an interesting piece about the case, published today on The Ferret website (here), which includes some news about the Newland Estate’s membership of Scottish Land & Estates and its accredited membership of the SLE-administered Wildlife Estates Scotland initiative.

In a wider context, this abandoned case is highly significant. Contrary to the COPFS’ decision, there is huge and legitimate public concern and interest about wildlife crime enforcement, particularly in respect to raptor persecution crimes. The Scottish Government is keenly aware of this and has come under increasing pressure in recent years to introduce new measures to tackle the problem. Vicarious liability was one of those new measures (introduced on 1 January 2012) but to date, only two cases have resulted in a conviction: 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 where raptor persecution is known to still be a common occurrence. 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).

Given the low success rate of vicarious liability, alongside the continued illegal persecution of raptors on game-shooting estates, it is clear that the Scottish Government needs to do more.

Tomorrow, the Scottish Parliament’s Environment Committee will hear evidence from the Scottish Raptor Study Group (Logan Steele & Andrea Hudspeth) in support of their petition to introduce a state-regulated licensing scheme for all game bird shooting in Scotland. Part of this licensing scheme would include provisions for sanctions against estates where raptor persecution takes place. Evidence will also be heard from various stakeholders including RSPB Scotland (Duncan Orr-Ewing), Scottish Gamekeepers’ Association (Andy Smith), SNH (Robbie Kernahan) and Scottish Land & Estates (David Johnstone). The evidence session begins at 10am and can be watched live on Scottish Parliament TV (here) and we’ll post the transcript when it becomes available later in the week.

26 thoughts on “Vicarious liability prosecution abandoned as ‘not in public interest to continue’”

  1. With a list of get of out clauses as long and vague as that, i am surprised anyone goes to trial at all.
    It is very hard for me to imagine this is not class related.
    The clause ‘The nature and gravity of the offence’ is wide open to bias of all descriptions.
    It seems that we have trial before trial.

  2. This may be simplistic but, I’m a member of the public and I’m very interested. A decision made on behalf of the public that can’t be scrutinised by the public. How very convenient.

  3. The ineffectiveness of the vicarious liability legislation strengthens the case for the compulsory licensing of shooting estates.

  4. The judicial system is inherently corrupt. The people that serve on the bench, the senior police, the lawyers and barristers either come from or aspire to be members of the rich and powerful elites: precisely the people behind the slaughter of our birds and mammals for fun or gain.

    1. What I find interesting first is that Crown Counsel’s guidance was sought in a summary case (which I think is unusual); and secondly, that the decision was based not on the lack of evidence, but that ‘it was not in the public interest continue the case to trial’. According to the article on The Ferret, an estate spokesman said that ‘Newlands is pleased that the Crown carefully considered the considerable steps which the estate has taken over many years to implement best practice measures both in terms of conservation and adherence to the law’ which seems to indicate that perhaps the steps taken by the estate played a role in deciding to discontinue the case, but I agree that it is pointless to speculate without having further information.

  5. Another tick in the SNP’s we care about animal welfare and the environment BS. All the SNP are concerned with is the central belt. The SNP have been in power for a decade and wildlife crime has been ignored.

  6. Sadly this result was to be expected, xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx. It was very much in the public interest to pursue this case.

  7. ” Not in the Public Interest” is nonsense! As for Mr Haden comments, rubbish. Remember, that ” Vicarious Liability” was voted Against in England by the parties he obviously supports. Plus, they intend bringing back Fox hunting among many other wildlife persecutions. Why are there NO successful Hen Harriers breeding in England? It was the Procurator Fiscal ( not CPS, as that’s the English system) who made the decision and Not the SNP.

      1. Yes, they should extend powers to the SSPCA, and it can’t come quick enough as far as I am concerned, but as usual, we have people spouting the usual SNP-bad nonsense.

        So, here’s a couple of wee questions for all of those SNP-hating Labour supporters. Why didn’t Labour introduce such a power when they had the opportunity to do so? Did Labour even consider giving the SSPCA further powers? If not, why not?

        Of course, before devolution, Labour had full control of the UK, and they could have entirely outlawed bloodsports, but opted against such action. Why did they not act when given the chance?

        It still amazes me, that there are Labour, LibDem and Conservative supporters, that fully expect that in the ten years the SNP been in power, they should have sorted out all of the failings of 300+ years of union rule.

  8. The fact that other politicians failed does not seem a great argument for explaining why the SNP have not treated the issue seriously enough. Where there is a will there is way. It is right that people hold them to account.

    1. I would agree that the SNP isn’t treating the issue as serious as I/we would like, but the fact is that they have at least tried to do things to combat persecution. It’s nowhere near enough, but the fact is that supporters of other parties will use any old excuse to wheel out the SNP-bad guff. The annoying thing about it all, is that these people that freely attack the SNP, sat and twiddled their thumbs when their own parties held power and did next to nothing to combat persecution, and they didn’t feel the any urge to criticise their own parties for failing to act.

      Hypocrites should be called out at all times.

  9. Two days later and I still don’t understand this.
    Could it be that if a employer gives his employee some training, tells him in writing, acknowledged by the employee, that he must not act like a 20th century gamekeeper, that it is not in the public interest to vicariously prosecute the employer when the gamekeeper does what comes naturally in front of witnesses?
    It is intolerable that cases are not brought to the courts so that this can be tested and be in the public domain.

  10. Marco, the Scottish Government’s been quite ineffective at tackling raptor persecution, it’s still as rife here as it is in England. To be fair to the SNP, the previous Labour SG administration did not face a fraction of the level of pressure to address the issue, because it is only in the last 7 years that this very effective web site as exposed the extent of these barbaric crimes to the wider public & authorities. We know from the Westminster debate on driven grouse shooting that the UK Government is in denial about the issue and has no intention of taking any action. The extreme level of persecution on driven grouse moors is as intense in Scotland as in England. Yes we have breeding hen harriers, but on the islands & in the west well away from the intensively managed grouse moors. No doubt that some of harriers which disperse from these safe areas after breeding end up being killed on the eastern grouse moors and indeed on the English moors too. We never got a cheep from the SNP MP’s on that in the debate in Westminster. We had good news recently on the increase on golden eagle numbers in Scotland, yet the same survey showed a marked decrease in the east & south over the intensively managed grouse moors. We have are own parliament here, run by an administration claiming to be progressive, but so far there is no difference between Westminster & Holyrood when it comes to curbing these crimes.They should be be making a difference, but samefully they haven’t.

    1. “Marco, the Scottish Government’s been quite ineffective at tackling raptor persecution, it’s still as rife here as it is in England.”

      I don’t disagree with that, and never have. You’re preaching to the converted on that matter. All I have done, is point out that the Scottish Government has tried to implement new measures in an attempt to combat persecution, much as Labour tried to curb hunting with dogs. It’s now quite clear that Labour’s plan hasn’t worked out as intended. They tried to do something positive, but it didn’t quite work out, but I’m not going to have a go at Labour just for the sake of it. Sadly, the SNP-bad brigade don’t act in this same manner, and will just criticise the party for any old reason.

      “To be fair to the SNP, the previous Labour SG administration did not face a fraction of the level of pressure to address the issue, because it is only in the last 7 years that this very effective web site as exposed the extent of these barbaric crimes to the wider public & authorities.”

      Yes, we, and the general public have had the great benefit of RPS/RPUK for seven years, but the authorities have known about the persecution issue for decades. As previously mentioned, other governments could have done something about persecution during those decades, but chose not to.

      “We have are own parliament here, run by an administration claiming to be progressive, but so far there is no difference between Westminster & Holyrood when it comes to curbing these crimes.They should be be making a difference, but samefully they haven’t.”

      Well, in relation to other UK parties that hold power, or have held power in recent years, the Scottish Government is more progressive, and by a considerable margin. Vicarious Liability, increased penalties, the poisons amnesty, and other changes, are all positive steps (much of which no other government has even considered), and then there is the talk of further powers for the SSPCA, land reform, gamebird licencing, and it becomes obvious that we are heading in the right direction.

      I can’t help but emphasise the point, that ten years is a very short time to counteract all of the inherited problems from decades of inaction, especially in a parliament that was designed not to give any party an overall majority.

  11. Despite what you say, it doesn’t alter the fact that the Scottish Government’s been quite ineffective at tackling raptor persecution.

    1. I’ve already agreed with you on that point, so I don’t understand why you feel the need to keep repeating it.

    1. Please have the courtesy to restrict your criticism to things I actually said, rather than things you’ve totally imagined.

      I’m not making any excuses, I have simply pointed out that there are people on here, you included by the appearance of things, that fully expect that in the relatively short ten years that the SNP have been in power, they should have sorted out all of the problems of previous administrations. Yet when the other administrations held power, those that supported them, we’re only too happy to keep quiet about the ineffectiveness of their own parties in tackling persecution.

      If people want to be hypocrites and/or liars, and openly shout it from the rooftops, don’t expect others to sit back and keep quiet.

      It’s a fact that the SNP-led administration has tried to do more to tackle persecution than any of its predecessors, but it’s still not enough on my opinion.

      But it looks like you, and all the rest of the SNP-bad brigade, would prefer to go back to the “good old days” before the SNP held power, when everything was so much better for our raptors.

  12. Strange the ruling classes have such “get out of jail” clauses, imagine if the rest of society had the same pre test before going to court, our prison would be empty. In fact it’s a wonder this government hasn’t done the same for the rest of us as a cost saving exercise?

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