Author: RaptorPersecutionUK

2012 wildlife crime conference: Charlie Everitt (NWCU)

The 2012 annual police wildlife crime conference took place a couple of weeks ago. Quite a few of this year’s presentations were relevant to raptor persecution so we’ll be commenting on these in due course. To start off the series we’ll focus on what Charlie Everitt had to say. Charlie is the Scottish Investigative Support Officer at the UK National Wildlife Crime Unit (NWCU). See here for more details.

Charlie Everitt: Update on Raptor Persecution

“Scottish Raptor Persecution Priority Delivery Group, and that’s a mouthful, erm, has been concentrating more on poisonings just at the moment, and also on processes so that we can get things right in order to take things forward for core purposes. Consequently we’re just finishing off and hoping to sign off at the next meeting an evidence gathering protocol. Now this is guidance and best practice for organisations who are likely to come across raptor persecution victims, er, giving advice and guidance on who they should contact, how the, er, any carcasses should be recovered and where they should be handed in to, so it’s giving best practice in order to maximise our chances for convictions in court so we get the process right. So that should be signed off, er, at the next meeting.” [See here for a previous blog about an earlier draft of this protocol. We haven’t seen the final version yet but look forward to seeing it in the near future].

“And similarly we’re looking at, er, another protocol with regards to satellite tagged birds, and this is a case where we have birds that have been satellite tagged and maybe the tag, er, stops giving off a signal, erm, or the signal remains stationary, just a protocol as to what we should do, er, in order to take the next step in order to recover the satellite and to investigate what’s happened. So just to make sure that we are lawful in what we are doing. So that’s a protocol as well that should get signed off very soon.

And the third angle, and it’s taking up a fair bit of time, is looking at a very new approach to the whole raptor, erm, raptor persecution issue. Now I can’t really say a great deal more on this at the minute, it’s in its early stages of development just now but when it is it will be put through tests and if it is fit for purpose it will be rolled out and, erm, yes you’ll all be made well aware of it when it does emerge.

We’ve also been looking to the use of science to try and benefit from what science can deliver to us. Now the science of course can back up intelligence and information crucially and the science has been used to good effect when combined with information and intelligence in a presentation to Northern Constabulary last year about the red kites on the Black Isle and their failure to manage to expand from there. So I think that was a good example of just how the two can sit together.” [Eh?]

“The Raptor Study Group of course do a lot of good work with regards to monitoring, erm, raptors and are able to work out where black holes might appear where we should have raptors and where there might not be some. Now there might be good reason for these black holes appearing, [no shit, Sherlock!] er, but what it does do, as I say, when you mix the intelligence and information with the science we get the fuller picture of what might be happening on the land there.

And the final thing we’re looking at doing is to ensure that we can capture all the information from the Raptor Study Group because they’re the people who are out on the land and if they do have any snippets of information we want to make sure that we capture all that intelligence and information in the National Wildlife Crime Unit through the five X five X five system, so that’s, er, er, another area which I’m looking to address very soon.

Now we’ve had some prosecutions, er, either concluded, erm, or, er, occurring during 2011, er, just run through some for you just as an update. In May a shoot manager in Skibo was fined £3,300 for possessing 10.5 kilograms of carbofuran, er, that was the biggest haul we’ve ever recovered in Scotland. And also in May last year a keeper from Moy was fined £1,500 for the possession of a dead red kite. On in October a ‘keeper from Huntly was fined £250 for the illegal use of a cage trap and possession of an illegally trapped buzzard. In November two photographers from London and Norwich were fined £600 and £500 respectively for recklessly disturbing a pair of white-tailed sea eagles at a nest in Mull. In January of this year a former gamekeeper from Biggar was ordered to carry out 100 hours of community service for poisoning four buzzards with alphachloralose and this is a guy who had been convicted before back in 2008. And also in January of this year a, er, another keeper from Lamington was fined £635 for possession of carbofuran. Now for me I think that’s a really good return for one year’s worth of work, er, and there used to be years when we only got two or three convictions in a year, now we have a good number and, er, I think buried inside all of those results is excellent partnership working which I think we must recognise with all our partner agencies.”

[We believe it’s misleading to use these cases as an indicator of success. What Charlie failed to mention is that in some of these cases (Skibo, Moy and Lamington) the only successful charges related to ‘possession’. Nobody was actually charged for poisoning the raptors that were found at each of these sites (and in the Moy case, there were also other offences that related to the illegal use of spring traps, for which nobody was charged). It looks like the Crown Office has gone for the minimum charge possible (i.e. possession) just to secure a conviction. To put this in context, it would be like claiming a success if someone had gone on a killing rampage using a car but was only convicted for not having any road tax. One of the other cases mentioned (Biggar – i.e. David Whitefield from Cullter Allers Farm, who already had a previous conviction for wildlife crime) was given a pathetic 100 hours community service order for poisoning four buzzards! Not good enough and certainly not an indication of ‘a really good return for one year’s worth of work’].

“The 2011 poisoning figures as the Minister suggested was significantly down, er, er, which is great news and very, very welcome to us to hear. Erm, all I’ll say is let’s see if we can continue that downward trend for the next three to five years and actually, and then, erm, solidify into a trend so that we do have this downward movement in poisonings but very grateful for anything where we have a drop in poisonings and that is, erm, excellent news.”

[Charlie failed to distinguish between reported poisoning incidents and actual poisoning incidents. There’s quite a difference and this should put the 2011 poisoning figures into context. He also failed to acknowledge the other methods of illegal killing and their impact on the overall issue of raptor persecution in Scotland. See here for previous blog on this].

“The hotspot maps meantime continue to help the police to focus their attention and, erm, identify where the areas need to be for resources to be deployed.

Now a few years back Lothian & Borders police had a pesticides dog that was able to sniff out carbofuran but it was very quickly withdrawn after there were some health and safety concerns. Well I’ve been having this chat with some of the dog handlers across Lothian & Borders and, er, they have told me that that dog is now available again for any searches, er, which Scotland want to undertake with regards to carbofuran. So that’s I think a positive move they’ve managed to sort out any health and safety issues there and just to put a little bit of context into that, Spain now have 15 dogs that can sniff out carbofuran and other poisons. Carbofuran poisoning has dropped by 40% since the early 2000s so we can think about the impact of the dogs.”

[Again, Charlie has only given half the story here. Yes, in parts of southern Spain (but not all!) the number of reported poisoning incidents has dropped by 40% since sniffer dogs were employed from 2004 onwards. However, crucially, there has also been a concurrent effort to increase enforcement against the poisoners. This includes the use of fines that have a real deterrent (up to €200,000 [~£167,000!]) as well as prison sentences; the temporary closure of the hunting area where poison has been detected; the suspension of hunting rights where the hunting methods are considered to have an unsustainable effect on natural resources; the employment of specialised units (x 3, containing 18 dogs) to patrol areas for the detection of poison – these patrols include ‘emergency inspections’ after poison has been reported, as well as ‘routine inspections’ of hotspots where the use of poison is suspected; and the use of three toxicology labs for poison testing. This is particularly interesting as when poison has not been detected in the first lab, but the use of poison is still suspected based on forensic evidence found at the crime scene (e.g. presence of certain insects), then the carcass/bait is submitted to one of two other labs that use more powerful techniques. In 2010, poison was detected in 38% of these carcasses/baits even though it was undetected at the first lab.

So yes, Charlie, the use of one single sniffer dog in Scotland is a positive move, but without the wider enforcement measures as outlined above, we’d be exceptionally naïve to expect that what has been achieved in parts of southern Spain will be replicated here in Scotland].

“Vicarious liability is also, erm, very much in discussion at the moment and I think last year I described myself as being cautiously optimistic about it. Well this year I’m very optimistic about it, er, with all the work that has been going on, er, behind the scenes and, er, what I would say is that this is not something that is just going to be a case of well we can’t get the person who has put out the poison so let’s just go and charge the landowner, this is going to require a lot of work, er, by any police forces looking into it, er, and looking to, to, er, look at charges of vicarious liability. The industry have also looked into it and have indeed a number of organisations in order to understand what they need to do to fulfil their obligations and that is to be welcomed because it does give us a minimum standard across the, er, industries which is as I say very, very welcomed.

So I was interested in the Minister’s comment as well that, erm, I got the impression that he wasn’t really looking for many prosecutions from this, erm, he was hoping that this would sort of be a Sword of Damocles if anybody was to continue poisoning so, er, I think with some of the work that’s been going on in the Raptor Priority Delivery Group that I think that is a very realistic possibility that we will get things sorted before we ever have to resort to vicarious liability.

One final thing, well another thing I’d just like to, er, just bring to your attention is a egg collector who was, lived down in London, erm, and his house was searched, a number of eggs removed including some golden eagle and osprey, erm, eggs which had been taken from Scotland. The CPS did some work, er, with one of the partner organisations and sought an ASBO against him and although he’s currently in jail, when he re-emerges he will not be allowed to enter Scotland during the nesting season for the next ten years. Now that’s a very powerful piece of legislation and a powerful condition to put on him and it’s something which I’ve asked for them to see if we can get hold of the paperwork to look at the procedure to see if we can do some, mirror something like that up in Scotland because it’s not just for, erm, for egg collecting that this is relevant, I can see other angles of hare coursing, er, deer coursing and the like so, er, that is going to be an interesting development to see what how it transpires.

Finally on the raptor persecution side, these are the guys who make up the Scottish Raptor Persecution Priority Delivery Group. Now there have been articles that are out in the public domain where we actually have organisations, people from organisations that are representative of the group, trying to drive wedges in against other organisations which, er, are in that group as well, which is often very disruptive and really doesn’t help us with the trying to take the full raptor persecution debate forward. What I would say to you is that if you do have an issue which you would like to discuss in, er, er, in an appropriate forum, rather than having a, er, er, a rant shall I say for a better word in, er, other media, here is a foum which you could bring this to through your representative in order to get a good full informed debate amongst all the organisations that need to be consulted in it. So that’s what I’d urge you to do if you do have any issues and you want to bring forward then please do not hesitate to contact them through your, through your representative.” [We think this rebuke was aimed at the Scottish Gamekeepers Association who recently published an article that suggested raptor workers could be laundering eggs and chicks on the black market – see here for previous blog on that].

Big, big day in court (part 3)

Last month we blogged about a high profile case of significant public interest that was due to be heard in February but was postponed.

The case came back to the court yesterday for a notional diet (legal jargon for the discussion of a legal point) and has now been continued to the next hearing in April.

At this stage we are not naming the accused, or the charge(s) he faces, or details of the alleged incident(s). These will all be reported in due course. You’ll understand the need for tight lips when the case details finally emerge.

The outcome of this particular case will be informative on oh so many levels. We are watching with interest….

Unravelling the ‘relationship’ between Hopetoun and Leadhills Estates

Last week we blogged about the recent article in The Scotsman and on the Deadline News website, relating to criticism of the RSPB for deciding to hold their inaugural Scottish Birdfair at Hopetoun House (see here).

To begin with, readers should be clear that the location of the Scottish Bird Fair is Hopetoun House, in West Lothian, near Edinburgh. Hopetoun House is the historical family seat of the Hopetoun family (see here) and is home to the current Earl of Hopetoun (Andrew, who is also a Director of Scottish Land & Estates – see here). According to his SLE profile, Andrew is Chairman of Hopetoun Estates and Deputy Chairman of the Hopetoun House Preservation Trust, and, “These two organisations manage Hopetoun House and its related estates, mostly at Hopetoun near Edinburgh and around Leadhills in the Scottish Borders” [South Lanarkshire].

We are not aware of any alleged raptor persecution incidents taking place at Hopetoun House or its surrounding [West Lothian] landholdings and indeed, raptors such as buzzards and tawny owls are reportedly resident in the grounds of Hopetoun House and on the surrounding estate.

However, we believe that the criticism of the RSPB’s decision to hold their bird fair at Hopetoun House was not in relation to Hopetoun House per se, but rather it was probably in relation to the Hopetoun Estate’s alleged connection with Leadhills Estate in South Lanarkshire.

Leadhills Estate, as many readers will be aware, has been at the centre of dozens of allegations of raptor persecution (e.g. see here), and several gamekeepers there have been found guilty of wildlife crime offences (e.g. see here and here). Leadhills Estate is situated on land that is owned (but apparently not managed) by Hopetoun Estates and, if you believe the RSPB and the Earl of Hopetoun, that is the full extent of the relationship, as Leadhills Estate is reportedly let on a long sporting lease.

After the original article (criticising the RSPB) was published in The Scotsman, various statements were made by, and on behalf of, both the RSPB and the Earl of Hopetoun, to clarify the relationship between Hopetoun Estates and Leadhills Estate (see here and here). In essence, both were keen to highlight that Hopetoun Estates has nothing whatsoever to do with the management of Leadhills Estate and therefore there should not be an ‘issue’ about the RSPB holding its bird fair on land managed by Hopetoun Estates. The most significant comment, made by an un-named spokesperson for the Earl of Hopetoun, was:

“More importantly, Hopetoun Estate has no role whatsoever in the management of Leadhills Estate. Leadhills Estate is run on a sporting lease completely separately and there is no connection between Hopetoun Estate and the sporting management of Leadhills Estate”.

This is a very interesting statement, mainly because it seeks to put distance between Hopetoun Estates and Leadhills Estate. However, if “Hopetoun Estate has no role whatsoever in the management of Leadhills Estate“, then how do Hopetoun Estates explain that they were one of the formal objectors to South Lanarkshire Council’s proposed ‘Core Paths Plan’ in January 2011, in which they objected to a proposed footpath network across a working grouse moor on Leadhills Estate? Here is a PDF of their objection statement: Hopetoun Estates objection statement

Looking at some of the comments made in the Hopetoun Estates’ objection statement, it would appear that this stated separation (between Hopetoun Estates and Leadhills Estate) may not be quite as clear cut as Hopetoun Estate and the RSPB would like us to believe. Of particular relevance are the comments made in section Q8, reproduced here:

“Our [Hopetoun Estates] particular concerns include potential detriment to our farming and sporting interests due to dogs and the disruption they cause to birds, wildlife and sheep (especially at lambing and hatching). We are concerned about the implications of Health & Safety as landowner due to the actions we and/or our tenants carry out over the Estate including the use of vehicles and firearms. Walkers, cyclists and horse-riders will inevitably be in conflict with the use of quad bikes, 4x4s etc – the speed issue alone, coupled with the rugged terrain, blind summits, corners etc. offers significant cause for concern. Further to this, there may be times (shoot days, or when certain land management actions are being carried out) when we would require the closure of the Core Paths for H&S reasons. We are concerned about the cost implications to ourselves of undertaking such a closure and one would have to provide the manpower to police such closures during shoot days. Maintenance of the tracks are also a concern as horses and bikes can significantly break up the surface of the tracks which allows water to get into the body of the track and cause significant damage potentially making the track impassable for our Estate vehicles”.

Hmmm.

Now, Hopetoun Estates were one of several formal objectors to the Core Paths Plan (see here). Others of interest here include Leadhills Sporting Ltd (sporting agents with land management responsibilities at Leadhills Estate – see here); Allershaw Farming Ltd (which is listed elsewhere as a company involved with ‘Hunting, Trapping & Game Propagation and Related Service Activities’ and whose two listed directors just happen to have exactly the same names as the two directors listed at Leadhills Sporting Ltd – imagine the coincidence of that!); and Lord Linlithgow’s Accumulation Trust, whose address on the objection statement is given as ‘Hopetoun Estates Office, West Lothian’!!

What is striking about all four of these objections is the similarity of (most of) the paths they object to, and the reasons they provide for their objections.

Here are the four PDFs – compare and contrast and draw your own conclusions:

Hopetoun Estates objection statement

Leadhills Sporting Ltd objection statement

Allershaw Farming Ltd objection statement

Lord Linlithgows Accumulation Trust objection statement

Does anybody still think that “Hopetoun Estate has no role whatsoever in the management of Leadhills Estate” ?

Naturally, we’d be happy to publish any clarifications that Hopetoun Estates may care to provide.

Red kite found poisoned in North Yorkshire

An article published in the York Press today reports that a poisoned red kite has been found near Pickering in North Yorkshire.

It was reportedly found in woodland at Cawthorn Roman Camp, and was rescued by a dog walker. The bird is now being cared for at Ryedale Wildlife Rehabilitation.

PC Stewart Ashton of North Yorkshire Police said: “Despite it being illegal to harm birds of prey, we have intelligence that people are still actively killing them in areas of Ryedale“.

According to the article, North Yorks Police are appealing for help in catching the person(s) responsible for this latest poisoning incident, although it is not known when the bird was found, what it was poisoned with, and no details are provided about who should be contacted. There isn’t a press statement on the North Yorks Police website either.

According to RSPB statistics, North Yorkshire was identified as having the highest level of reported raptor persecution incidents in the UK in 2010 (see here).

York Press news article here

2011 poisoning stats ‘out’ in every sense of the word

The Scottish Government has today published the 2011 poisoning map (otherwise known as Scotland’s map of shame).

The newspapers are heralding the figures as a success story, as the numbers show an apparent drop in poisoning incidents (“only [only??!] 16 raptors were killed as a result of being illegally poisoned in Scotland – 12 fewer than in 2010 and the lowest death toll since the first maps were published six years ago“, says The Scotsman). The victims included seven buzzards, four red kites, two peregrines, two sparrowhawks and a golden eagle.

On a superficial level this does look like convincing progress, but let’s scratch the surface and see what’s underneath…

The official Scottish government poisoning map only shows the places where poisoned birds were discovered. Given the remote areas involved and the fact that most of these poisoned birds were found by chance (by passing hillwalkers etc.), the official figures can in no way represent the actual number of raptors that were poisoned (but undetected) during 2011.

The figures behind the map also do not show the areas where poisoned baits (but no dead birds) were discovered during 2011. Nor do they show the other incidents of raptor persecution that were discovered during 2011, including shooting, trapping and nest destruction incidents. According to an article in today’s Guardian, it is claimed that last year’s illegal shooting, trapping and nest destruction incidents “have remained constant with previous years“. We’ll have to wait a good few months for the RSPB Birdcrime Report to see the actual figures. (Incidentally, how come the 2011 poisoning figures, as compiled by SASA, have not yet been released to the public? They’re obviously available as they were used to construct the poisoning map. So far they’ve only published data up to September 2011. Isn’t it in the public interest to release them? Why all the secrecy?).

It seems plausible that some shooting estates are doing their best to distance themselves from any sign of illegal raptor persecution, especially in light of the new law on vicarious liability. A likely example of this behaviour was an incident in the Borders in September 2011. A dog walker discovered a bag full of dead raptors by the side of the busy A68  road (see here for earlier blog on this). The police were alerted and the birds were sent to SASA for toxicology tests. The results showed that the two sparrowhawks and two buzzards had been poisoned with the banned pesticide Carbofuran. Because the dead birds had been dumped away from any shooting estate or farm, without being seen, it was virtually impossible for the police to prosecute anyone (SASA reports that the police have now closed the case due to a lack of positive leads – see here). What is the probablity that other estates up and down the country are poisoning raptors on their land and then removing the evidence as far from their location as possible?  It was pure chance that this bag of poisoned raptors was discovered. How many more are left rotting and undiscovered across the country?

But let’s suppose, just for a minute, that the latest map IS an accurate representation of all raptor poisoning incidents that took place in 2011. Should we then accept that shooting estates are cleaning up their act and they’ve all suddenly decided, after over 100 years of persecution, that raptors are actually ok and shouldn’t be killed? The only way to measure that will be to look at LONG-TERM TRENDS of poisoning incidents as well as LONG-TERM TRENDS of raptor populations. We’ve blogged about this before (see here) but it’s worth repeating some of it to show the bigger picture. The graph (adapted from the RSPB’s excellent report: The Illegal Killing of Birds of Prey in Scotland in 2010, see here) shows the long-term trend of poisoning incidents in Scotland from 1989-2010. Look carefully at the graph and you’ll see peaks and troughs in the numbers recorded. Yes, there certainly have been previous drops in the number of poisoning incidents, but then look what happened in the following years – another increase, and then another drop, then another increase etc. Before the game-shooting lobby starts its self-congratulatory back-slapping, we need to see a continuous decline in the number of recorded incidents, AND we need to see raptor populations recovering in those areas where persecution has been endemic. This will take time, but could arguably be judged in about five years’ time.

Of course we all hope that the 2011 figures are the start of a new era in raptor conservation in Scotland. As Environment Minister Stewart Stevenson has said in today’s media: “I hope this proves to be the beginning of a continuing reduction in such cases, leading to the end of this outdated, dangerous and cruel practice“. It is notable that his statement contains more than a hint of caution. That man’s no fool.

See an excellent article about the latest figures in today’s Guardian here

Article in The Scotsman here

RSPB criticised over link to Hopetoun Estate for Scottish Bird Fair

An article in today’s Scotsman has criticised the RSPB’s decision to hold the first-ever Scottish Bird Fair at Hopetoun House near Edinburgh in May.

The event, to celebrate Scottish birdlife and expected to attract 5,000 visitors, is to be held at the stately home of the Earl of Hopetoun, whose family also reportedly own Leadhills Estate (also known as Hopetoun Estate) in South Lanarkshire. Leadhills is a well-known grouse moor that has been at the centre of numerous police investigations over the years for allegations of raptor persecution. Many of these investigations did not result in a subsequent prosecution, but several did. The most recent one was the conviction of a 20-year old gamekeeper (in November 2010) who was found guilty of laying a rabbit bait laced with the banned pesticide Carbofuran.

The RSPB has defended its decision to link with Hopetoun:

“We understand that there is a clear separation between land managed in hand by Hopetoun Estate in West Lothian, and the Leadhills Estate, which is let on a long lease to American tenants. It is the American sporting tenants on Leadhills Estate, through a UK sporting agent, who employ and manage the land and the employees at this site, and who are therefore ultimately responsible with ensuring that birds of prey are protected on this land. We accept that Hopetoun Estate do not condone any illegal practices on their land.”

Hang on a minute. Doesn’t ‘ultimate responsibility’ lie with the landowner? Isn’t that the message from the new law on vicarious liability? Apparently not!

The Scotsman reports that attempts to contact the Earl of Hopetoun were unsuccessful. However, an article on the Deadline News website has a statement that has reportedly come from the Earl’s spokesman:

“The Earl of Hopetoun’s position on wildlife crime is unequivocal. He has constantly condemned any such activity. More importantly, Hopetoun Estate has no role whatsoever in the management of Leadhills Estate. Leadhills Estate is run on a sporting lease completely separately and there is no connection between Hopetoun Estate and the sporting management of Leadhills“.

Surely that lease would contain a clause that says if any unlawful activity is shown to have taken place then the lease becomes null and void and the tenants can be removed? Apparently not!

Full article in The Scotsman here

Article on Deadline News website here

RSPB’s Scottish Birdfair website here

Hen harriers thriving on Orkney but in trouble elsewhere

The hen harrier, considered by many to be the UK’s most persecuted raptor, has reached a twenty-year high on Orkney, according to the latest study.

New figures have revealed 100 breeding females, producing more than 100 chicks, following a steep population decline there during the 1980s and 1990s. The cause of that particular decline was believed to be related to the high number of grazing sheep that reduced the amount of available rough grassland (and thus voles) that Orkney harriers depend on during the breeding season. Once the sheep numbers were reduced (with the help of agricultural support payments) the habitat was allowed to regenerate (and thus vole abundance increased) which was obviously beneficial to the harriers.

We have searched online to find this ‘latest study’ but only found this paper: ‘Long-term impact of changes in sheep densities on the breeding output of the hen harrier‘, authored by Amar et al. This was actually published in February 2011 (see here) but seems to be the one that is being referred to in today’s press releases. This paper only documents hen harrier breeding success up until 2008 though, so perhaps these new figures of 100 breeding females refer to the 2011 breeding season. That could have been made clearer in the news releases. 

RSPB press release about the latest study here; STV news article here; BBC news article here

Unfortunately, in other areas of the UK the hen harrier is doing anything but thriving, especially in northern England where it is on the verge of becoming extinct as a breeding species. A national UK hen harrier survey carried out in 2010 showed an overall decline of more than 22% over just a six-year period (see here and here). In Scotland, the population fell to 489 pairs (from 633 in 2004). Last year in England, there were just four breeding pairs, all on a single estate in Lancashire. Scientists have estimated that there is suitable habitat in England to support over 300 breeding pairs.

The cause of the hen harrier decline? You all know the answer to that by now – illegal persecution, particularly associated with driven grouse moors. We’ve blogged endlessly about it – see here, here, here, here, here….

For anyone who missed it, here’s the government’s official 2011 report on the conservation status of the UK’s hen harriers and the reasons behind their demise (here).

RSPB ‘deeply concerned’ over Natural England’s statement on Walshaw Moor

Earlier in February we blogged about legal action being taken by Natural England against Walshaw Moor Estate in the Pennines, over the way the estate’s burning regime may impact on the fragile blanket bog habitat. This was seen as an important test case that could have far-reaching implications for the way other English grouse moors are managed (see here).

Last Friday (9 March), English Nature issued a statement that said they had now ‘resolved their dispute regarding management activities at Walshaw Moor’ (see here for full statement).

However, the RSPB has issued its own statement, raising concerns about the resolution. The RSPB’s Chief Executive, Mike Clarke, has written to the Chairman of Natural England to ask for clarification about the details of the resolution (see here for full statement).

strange anomaly over photographic evidence

Compare and contrast this case (where a photographer’s evidence was used to convict badger baiters and the photographer was commended as “brave and courageous” by the judge, see here), with the recent OneKind crow cage incident (see here).

Strange, isn’t it?

Still waiting for a response from Scottish Environment Minister Stewart Stevenson to clarify what is and isn’t acceptable evidence in suspected wildlife crime incidents in Scotland.

Thank you to the contributor who sent us the link.

Vicarious liability – what’s it all about?

There’s been a lot of talk recently about the new offence of vicarious liability and whether it will finally address the issue of illegal raptor persecution in Scotland. Some see it as the ultimate enforcement tool that will stamp out raptor persecution on shooting estates once and for all. Others see it as an unnecessary burden on purportedly law-abiding landowners, land managers and gamekeepers who have managerial responsibilities. The truth is that nobody knows for certain just how effective this new legislation will be, and until there have been some ‘test’ court cases, that uncertainty will remain.

We had hoped that the Scottish Government would provide detailed information and advice about the new legislation, but they haven’t. The following overview is our current understanding of the issue and has been put together after reading various articles and documents and we’ve included a list of useful links for further reading at the end of this blog post.

The new offence of vicarious liability in relation to the persecution of wild birds (where one person may potentially be legally responsible for the actions of another person) came in to force on 1 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 former Scottish Environment Minister, Roseanna Cunningham. It was a direct response to the unrelenting problem of illegal raptor poisoning and the apparent inability/unwillingness of the game shooting lobby to get their own house (grouse moors) in order (see here and here for background).

Interestingly, upon its enactment on 1 January 2012, it was widely touted as being aimed at ‘the few’ or ‘the minority’ who are persistently culpable in this area of wildlife crime (see press statements from Scottish Government, Scottish Land & Estates and National Wildlife Crime Unit here). Strange that the actions of a ‘few’, or the so-called ‘minority’, could cause the creation and introduction of a new offence, don’t you think? Isn’t it more likely that the government recognised that these crimes are carried out by so many, and to such a wide extent, that new legislation had to be brought in as the only measure capable of dealing with crime on this scale? Anyway, we digress….

When will the offence of criminal vicarious liability apply? According to the provisions in the WANE Act, it will apply to certain wildlife offences, but not all. There are three main areas of wildlife crime for which a person can be held vicariously liable:

1. Intentionally or recklessly killing, taking, disturbing wild birds and their nests.

There are exceptions, such as killing certain game birds or other species that are permitted to be killed, taken or disturbed under a general licence (e.g. crows), but in general, it is an offence to interfere with certain wild birds (including raptors), their nests and their nest contents, and it is also an offence to obstruct or prevent these birds from using their nests.

2. Prohibited methods of killing or taking wild birds.

This relates to the setting or placing of articles that could cause bodily injury to a wild bird. This includes the setting of various traps (including spring traps), snares, hooks, lines, birdlime, electrical devices for killing, stunning or frightening, and any poisonous, poisoned or stupefying substance.

3. Possession of pesticides.

Anyone found in possession of a pesticide containing at least one prohibited ingredient will be guilty of an offence (unless they have a specific approval order for its use). Prohibited ingredients currently include Aldicarb, Alphachloralose, Aluminium phosphide, Bendiocarb, Carbofuran, Mevinphos, Sodium cyanide and Strychnine (as named in the Possession of Pesticides (Scotland) Order 2005).

We understand that the maximum penalty for any of the offences is six months imprisonment and/or a £5,000 fine. If the offence was committed in respect of more than one bird, nest or egg etc, they will be treated as separate offences and carry separate penalties. In other words, the maximum penalty applies to a single offence only. So if someone is convicted of being vicariously liable for the killing of two protected birds, they could face up to 12 months imprisonment and/or a £10,000 fine etc.

Who can be prosecuted for the offence of vicarious liability? Well, that will depend very much on the circumstances of each individual case, and specifically the managerial involvement of each individual person. In general terms, however, anyone who either has the legal right to kill or take wild birds, or manages or controls the exercise of that right, and anyone who secures the provision of certain shoot-related ‘services’ from someone else may be vicariously liable for offences committed by another person. This could include, either singly or in combination, landowners, trustees, directors & officers (such as in a limited company), farmers, crofters, shooting tenants, shoot syndicate members, factors, agents, gamekeepers and contractors who procure or provide services relating to habitat management or shoot management.

Before somebody can be prosecuted for the offence of vicarious liability, the prosecutor must demonstrate that the primary offence took place and that the offence was committed by a third party who has a specific relationship to the person being charged with vicarious liability. The person who committed the primary offence need not be prosecuted in order for a prosecution to be brought against the person in management or control. This seems a bit odd though, because if it can be shown that the primary offender committed the offence, then why wouldn’t he be prosecuted? Although perhaps it covers situations such as the primary offender emigrating, or dying, or having a plea-bargaining agreement with the prosecutor whereby he doesn’t get prosecuted in return for providing information about another crime or another person.

There is, of course, a defence to the charge of vicarious liability. 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 diligence to prevent the offence being committed.

It is not yet known what a court will accept as reasonable steps and due diligence, but the word ‘all’ may be significant (as in ‘all’ reasonable steps and ‘all’ due diligence). Much will depend on the specific circumstances of each case, but what does seem clear is that doing nothing will not be an adequate defence. As a minimum, the defendant should be able to show, with written documentary evidence, that work procedures have been evaluated, risks have been assessed, training has been offered if deemed necessary, a system of checks are in place and that regular reviews have been undertaken. These procedures are not dissimilar to the way a health and safety system operates so it should not be beyond the capabilities of someone with managerial responsibilities to undertake this type of procedural audit.

There is a significant amount of interest in how effective the new legislation will be, and we will watch with interest as the (inevitable) cases are brought before the courts.

It should be noted that the offence of vicarious liability (in relation to the persecution of raptors) is only currently applicable in Scotland. Other parts of the UK have not yet adopted this approach, although it has been reported that legislators in England are watching to see how well it works in Scotland. As illegal raptor persecution is just as much of a problem in England, conservationists have launched a petition to have the issue of vicarious liability debated in the English Parliament. The petition needs 100,000 signatures to trigger the parliamentary debate – please visit the petition site (here) and sign it!

FURTHER READING

Wildlife and Natural Environment (Scotland) Act 2011 (the full text of the Act here).

Scottish Land & Estates, the representative body of Scottish landowners, has written a guide about the issue of vicarious liability called ‘Due Diligence Good Practice Guide’. It has a foreword by Scottish Environment Minister Stewart Stevenson and it is said to have been endorsed by the PAW Scotland Executive. You might think that such endorsements would mean the guide is freely available, but you’d be wrong. It’s only free to SLE members; if you’re an interested member of the public you have to pay the princely sum of £30 (thank you to the three contributors who each sent us a free copy!). It is an interesting read though, and is by far the most useful guide we’ve seen so far.  Especially helpful is the presentation of various case studies involving different sectors of the shooting sector (e.g. large grouse moor, medium-sized owner occupied mixed estate, farm syndicate shoot etc) and the discussions about who might be liable to prosecution in each scenario. It’s been prepared by several ‘legal eagles’ who specialise in wildlife law but perhaps most surprisingly, thanks are given to James Hodge of Baikie Hodge Ltd. Would this be the same Baikie Hodge Ltd. with connections to Millden Estate (see here) and also Leadhills Estate (see here to download the PDF)? Interesting! If you want to pay £30 for a hard copy of the guide, contact SLE via their website here.

Solicitor Robert Scott-Demspter’s article on vicarious liability in the Scottish Field here [Scott-Dempster is also acknowledged as a contributor in the SLE’s guide].

Law firm Lindsay’s rural bulletin on vicarious liability here.

Law firm Turcan Connell’s briefing note on vicarious liability here.

Law firm Brodies’ article on vicarious liability here

An article on VL in The Journal of The Law Society of Scotland (Aug 2012) here