Last week RSPB Scotland published a blog called ‘Why vicarious liability is failing to have an impact in Scotland‘.
Written by Duncan Orr-Ewing, Head of Species & Land Management, it’s the latest in a series, following on from the excellent blog challenging the Scottish Gamekeepers’ ignorance on satellite tags, written by Ian Thomson, Head of Investigations at RSPB Scotland.
Duncan’s blog is well worth a read. It questions the Crown Office’s recent decision not to prosecute anyone for alleged vicarious liability following the conviction of Scottish gamekeeper Alan Wilson for a series of barbaric wildlife crimes on the Longformacus Estate in the Scottish Borders.
It also considers the potential benefits of having the threat of a vicarious liability prosecution, and how this may have driven down the use of illegal poisons as a method of killing raptors, but been replaced by shooting and trapping methods which are much harder to detect.
The really interesting part of the blog, as far as we’re concerned, is the section on the Leadhills Estate in South Lanarkshire. Blog readers will recall this is where a male hen harrier was found with an almost severed leg caught in an illegally-set spring trap next to his nest earlier this summer. Despite the heroic efforts of a number of experts, he didn’t survive. The estate denied all knowledge and responsibility and nobody has been charged.
[The trapped hen harrier found on Leadhills Estate. Photo by Scottish Raptor Study Group]
Regular blog readers will know this poor hen harrier is not the only victim reported from the Leadhills Estate. The list is long and goes back more than a decade (e.g. scroll down this page). Duncan’s blog discusses some of the most recent incidents including the witnessed shooting of a hen harrier in May 2017; the witnessed shooting of a short-eared owl just a few weeks later and whose body was recovered; the discovery of a buzzard in 2018 that was found to have been shot twice; and the filmed buzzard that according to the RSPB was likely killed in a crow trap in January 2019.
Nobody has been charged for any of the above, but significantly, Duncan’s blog says this:
“We are advised that only now is an Open General Licence restriction, another sanction in the public authority wildlife crime “toolbox”, to be imposed here”.
SNH has had the power to impose General Licence restrictions since 1 January 2014. This was instigated by former Environment Minister Paul Wheelhouse in response to continuing difficulties of securing criminal prosecutions and was an instruction to SNH to withdraw the use of the General Licence (available for legal predator control) on land where crimes against raptors are believed to have taken place but where there is insufficient evidence to instigate criminal proceedings. The decision to withdraw the licence is based on the civil standard of proof which relates to the balance of probability as opposed to the higher standard of proof required for a criminal conviction.
This measure is not without its limitations, particularly as estates can simply apply for an individual licence instead which allows them to continue predator control activities but under slightly closer scrutiny.
SNH has only imposed four such restrictions since 2014 – a pathetically small figure when we are aware of at least a dozen other cases where a restriction should have been applied. SNH has claimed it is ‘not in the public interest‘ to explain those failures.
We’ve looked on the SNH website to see whether Leadhills Estate has been listed as having a General Licence restriction imposed (SNH does publicise the details when it imposes the restriction) but so far Leadhills Estate is not named. Potentially the estate has been notified and is currently in the period where it may challenge SNH’s decision, as per the framework for a General Licence restriction.
Watch this space.
UPDATE 26 November 2019: SNH imposes General Licence restriction on Leadhills Estate (here)