The ability for Scottish Natural Heritage (SNH) to impose a General Licence (GL) restriction order on land where there is evidence of raptor persecution taking place came in to force on 1 January 2014. This measure, based on a civil burden of proof, was introduced by then Environment Minister Paul Wheelhouse in response to the continuing difficulties of meeting a criminal burden of proof to facilitate a criminal prosecution.
Four years on, SNH has only imposed four GL restrictions. The first two were imposed in November 2015 (one for Raeshaw & Corsehope Estates in the Borders and one for Burnfoot & Wester Cringate Estates in Stirlingshire). Then there was a temporary halt for almost two years as Raeshaw & Corsehope Estates made a legal challenge which resulted in a judicial review in January 2017. The court’s decision was announced in March 2017 and SNH was found to have acted properly and lawfully. Since that decision was announced in March 2017, SNH has imposed two more GL restrictions: one for Edradynate Estate in Perthshire in September 2017 and one for an unnamed mystery gamekeeper in Aberdeenshire in September 2017.
In early October 2017 we submitted an FoI request to SNH to find out how many more cases were currently under consideration for a GL restriction. We were pretty shocked with the response:
“At the time of your request, no General Licence restrictions were under consideration”.
This surprised us as we knew of at least nine other cases that would potentially qualify for a GL restriction. Those nine cases were as follows:
Newlands Estate, Dumfriesshire. Gamekeeper William (Billy) Dick was convicted in 2015 for killing a buzzard on the estate in April 2014. He had thrown rocks at it and then stamped on it. The estate owner, Andrew Duncan, was prosecuted for alleged vicarious liability but then the Crown Office dropped the prosecution in April 2017, saying it wasn’t in the public interest to proceed (see here).
Brewlands Estate, Angus Glens. A gamekeeper was prosecuted for the alleged repeated setting of a pole trap on this estate between 9-17 July 2015. The Crown Office dropped the prosecution case in April 2017 because the video evidence was deemed inadmissible (see here). Another gamekeeper on this estate thought this result was hilarious.
Unnamed pheasant-shooting estate, Lanarkshire. In September 2015 a set pole trap was discovered on a bench directly outside a pheasant-rearing pen on an unnamed estate. Police Scotland apparently dropped the case, for unknown reasons.
Gamekeeper in Ayrshire. In May 2016 a named gamekeeper was charged after allegedly being caught using gin traps on a neighbouring farm of the estate on which he was employed. The Crown Office dropped the prosecution in March 2017 after reportedly ‘getting the dates wrong on its paperwork’ (see here).
Invercauld Estate, Aberdeenshire. In June 2016, walkers discovered a number of illegally-set spring traps staked out on a grouse moor. Two of the traps had caught a Common Gull by the legs. The bird had to be euthanised. There was no prosecution. ‘Some action’ was taken by the estate but whatever this action was it has remained a closely-guarded secret between the estate, the Cairngorms National Park Authority and the Scottish Government (see here).
Glendye Estate, Aberdeenshire. In January 2017 a number of illegally-set spring traps were discovered on a grouse moor on this estate. The Estate Factor and gamekeeper reportedly removed the traps and denied all knowledge of who had set them (see here). According to Police Scotland, there was insufficient evidence for a prosecution.
Leadhills Estate, South Lanarkshire. On 4th May 2017, witnesses observed the alleged shooting and killing of a hen harrier on this estate. Police Scotland appealed for information (see here & here). As far as we’re aware, there are no impending prosecutions.
Leadhills Estate, South Lanarkshire. On 31 May 2017, witnesses observed the shooting and killing of a short-eared owl on this estate. The corpse was retrieved and sent for a post-mortem. Police Scotland appealed for information. As far as we’re aware, there are no impending prosecutions.
Unnamed grouse shooting estate, Monadhliaths. On 7 June 2017, a member of the public found a buzzard caught in an illegally-set spring trap that had been staked out on an unnamed grouse moor in the Monadliaths. The buzzard was released. Police Scotland appealed for information. Inspector Mike Middlehurst of Police Scotland commented, “Unfortunately, there are some who continue to deliberately target birds of prey; there is nothing accidental in the setup of these traps“. As far as we’re aware, there are no impending prosecutions.
In late October 2017 we submitted another FoI to SNH to ask about these specific cases, to find out if any were under consideration for a GL restriction and if not, why not.
SNH has now responded as follows:
Part of this response makes sense, but part of it makes no sense at all.
As we’ve said on this blog before, it’s perfectly right and understandable that if SNH is actively considering a GL restriction for a particular estate or individual, then those details should not be published until the decision to impose a GL restriction has been made and the estate/individual has had a chance to appeal that decision. We fully accept that position. [And we note that according to the above response, SNH is now actively considering two cases for a potential GL restriction, although we don’t know whether those two cases are included in our list of nine potential cases. Time will tell].
However, if a decision has been made NOT to impose a GL restriction, for whatever reason, we do not accept, as SNH claims, that publishing that information would ‘prejudice the process’. How could it, if the decision has already been made?
We also don’t accept, as SNH claims, that ‘it is in the public interest not to release the information’. How can this lack of transparency possibly be in the public interest?
Defining what is meant by ‘public interest’ is a tricky thing to do. This article from The Guardian in 2012 provides an excellent overview from the perspective of various journalists and explains that it can be more of a philosophical interpretation rather than a definition set out by statute. However, the Press Complaints Commission defines it as ‘including but not confined to detecting and exposing crime, or serious impropriety; protecting public health and safety and preventing the public from being misled by an action or statement of an individual or organisation‘.
In the nine cases we’ve listed above, information about the crimes that were allegedly committed are already in the public domain, so it’s difficult for us to understand that if SNH has made a decision NOT to consider a GL restriction in any of those cases, why SNH believes it to be in the public interest NOT to explain those decisions.
We’ll be appealing SNH’s decision to withhold this information from the public.