Tag: buzzard

Subsidy penalty for Stody Estate?

stody buzzardsOn 1st October 2014, gamekeeper Allen Lambert from the Stody Estate in Norfolk was found guilty of poisoning 10 buzzards and one sparrowhawk, which had been found dead on the estate in April 2013. He was also convicted of storing banned pesticides & other items capable of preparing poisoned baits (a ‘poisoner’s kit’), and a firearms offence (see here and here).

On 6th November 2014, Lambert was sentenced. Even though the magistrate acknowledged that Lambert’s crimes passed the custody threshold, he only received a 10 week suspended sentence for poisoning 11 raptors (suspended for one year), a six week suspended sentence for possession of firearms and nine poisoned buzzards (suspended for one year), and was ordered to pay £930 prosecution costs and an £80 victim surcharge.

On 5th October 2014, we blogged about the millions of pounds worth of subsidies that had been awarded to Stody Estate in recent years (see here) and we encouraged blog readers to contact the Rural Payments Agency (RPA) to ask whether Stody Estate would receive a financial penalty in the form of subsidy withdrawal for being in breach of the terms & conditions of their subsidy-fest.

On 10th October 2014, the RPA responded by saying they would consider what action could be taken against Stody Estate (see here).

Then it all went quiet.

One of our blog readers decided to submit an FoI to the RPA in December 2014, to see what was going on. Here is his letter:

12 DECEMBER 2014

To whom it may concern

I am making this request for information under the Freedom of Information Act.

The information I request relates to the conviction in October 2014 of Mr Allen Lambert, a gamekeeper employed by the Stody Estate, Melton Constable, Norfolk, NR24 2ER for illegally poisoning ten buzzards and a sparrowhawk.

I would be grateful if you could provide me with all the information you hold relating to the following questions:

  1. Whether the RPA consider the illegal poisoning carried out by an employee of the Stody Estate as being in breach of Cross Compliance Statutory Management Requirement 1 – Wild Birds.
  2. Did the RPA investigate any breach of cross compliance at the Stody Estate relating to the illegal poisoning offence and what was the outcome of the investigation.
  3. Whether the RPA has imposed a fine on the Stody Estate’s Single Farm Payment, Environmental Stewardship Payment or any other public subsidy the estate receives and if so, how much.

I look forward to hearing from you.

Yours sincerely

XXXXX XXXXX

On 14th January 2015, the RPA responded with this:

14 JANUARY 2015

Dear XXXXX XXXXX

Re: Freedom of Information – Information Request

Thank you for your request for information dated 12 December 2014 which has been dealt with under Freedom of Information Act 2000 (FoIA).

You have asked:

‘1. Whether the RPA consider the illegal poisoning carried out by an employee of the Stody Estate as being in breach of Cross Compliance Statutory Management Requirement 1 – Wild Birds.’

‘2. Did the RPA investigate any breach of cross compliance at the Stody Estate relating to the illegal poisoning offence and what was the outcome of the investigation.’

‘3. Whether the RPA has imposed a fine on the Stody Estate’s Single Farm Payment, Environmental Stewardship Payment or any other public subsidy the estate receives and if so, how much.’

Having considered your request we regret that we are unable to provide you with any meaningful response as we do not hold any information that answers your questions. However, RPA would like to make clear that it is required to assess cross compliance reductions to CAP subsidy claims based on intent, extent, severity, permanence and repetition of the non-compliance. We can assure you that RPA will take action, including cross compliance reductions to CAP subsidy payments applicable, if this is found to be appropriate.

In order to qualify for most CAP subsidy payments, claimants are required to keep their land in Good Agricultural and Environmental Condition and comply with a set of Statutory Management Requirements (SMRs). This is known as cross compliance. One of the SMRs covers wild birds (SMR 1) and this includes a rule about killing, injuring or taking wild birds.

Further information is published on the GOV.UK website (Page 43 – deals with wild birds).

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/320833/The_Guide_to_Cross_Compliance_in_England_2014_complete_edition.pdf

If you are not happy with the way we have handled your request, you can ask for an internal review. These requests should be submitted within two months of the date of receipt of the response to your original letter and should be addressed to: Access to Information, Rural Payments Agency, North Gate House, 21-23 Valpy Street, Reading, RG1 1AF.

Yours sincerely

Rural Payments Agency

Not very helpful, is it?

Thanks to the blog reader who followed up with the FoI and shared the response with us. We understand the RPA can expect further FoIs until a satisfactory response is received. Watch this space….

Meanwhile, you might be interested to compare Lambert’s pathetic sentence with that of an anti-badger cull protester. Lambert was given a 10 week suspended sentence and ordered to pay £930 costs for the mass poisoning of protected birds, the illegal storage of banned poisons and a firearms offence. The badger cull protester, who breached the terms of an injunction designed to stop him disrupting badger culls (he filmed someone involved with the cull and stood outside the NFU office wearing a t-shirt that said: ‘FCK NFU’), was given a six month suspended sentence and ordered to pay costs that could amount to £55,000 (see here). The first installment of £25,000 is due on 1st May. A crowd-funding page has been set up for those who want to help – see here.

Police search premises in another poisoning blackspot in Northern Ireland

A few days ago we blogged about a multi-agency raid on premises in the Drumbanagher area of Co Armagh, a notorious buzzard-poisoning blackspot (see here).

It looks like the PSNI is taking raptor persecution very seriously, because on the same day, another search in another poisoning blackspot was also carried out, this time in Co Derry.

The team went to targeted locations in the Magherafelt area where a number of raptor persecution incidents are reported to have taken place, including the Carbofuran-poisoning of a peregrine last July (see here).

Great to see a coordinated, proactive response from the police and partner agencies, and how refreshing to see this response publicised.

Details on the Co Derry search here.

Peregrine photo by Steve Waterhouse

Balaclava sales set to rise

Daily Mail Bloody battle of the glens (2)The angst generated by the successful use of video evidence to convict gamekeeper George Mutch continues, as does the game-shooting lobby’s pathetic attempts to discredit the RSPB….

The following excerpts are from a recent article in the Mail, written by Jonathan Brocklebank:

The camera was hidden in a pile of twigs deep inside a sporting estate whose owner had no idea that it had been infiltrated by Europe’s wildlife charity.

But then, RSPB Scotland needs no invitation or permission to launch covert surveillance ops on private land. These days, it gives its own go-aheads.

So it was that gamekeeper George Mutch, 48, came to be filmed with a juvenile goshawk he beat to death with a stick on the Kildrummy Estate, Aberdeenshire. He began a four month jail sentence this week after damning footage showed him using two traps to catch birds of prey.

His apparent motive was to protect pheasants from the raptors, thus ensuring a plentiful supply of game birds for the shooting parties whose business helps keep such estates alive. Mutch, thought to be the first person ever to be jailed in Scotland for killing a bird of prey, will win no sympathy from animal lovers.

But the court case did not simply highlight the inhumane behaviour of a lone gamekeeper who brought disgrace upon his profession. It also served as a demonstration of the now immense power of the charity whose evidence convicted him.

That power, say ever-growing numbers of critics, leaves few areas of outdoor and rural life untouched.

[There follows some predictably tedious claims made by Botham’s You Forgot The Birds campaign, whose failed complaints about the RSPB to the Charity Commission Mr Brocklebank failed to mention (see here), and how some landowners are erecting signs saying RSPB Not Welcome (see here). It then continues….]

During Mutch’s trial, Aberdeen Sheriff Court was told the RSPB routinely enters estates without asking the landowners and, once inside, staff are free to use hidden cameras to gather ‘data’.

When questioned in court, Ian Thomson, the charity’s head of investigations, explained why they needed no permission. “Because we are entering an area for scientific study, we feel we are using our access rights under the Land Reform Act”.

Is it, then, acceptable for RSPB officials to march onto a private estate and set up equipment to secretly video employees?

It seems so. A spokesman for the charity told the Mail: “In Scotland, the Land Reform Act (2003) enshrined a legal “right to roam” and this includes access for survey and research purposes, provided this is carried out responsibly”.

He said the shocking images captured on the video spoke for themselves.

Notwithstanding Mutch’s appalling actions, there is a distinct air of discomfort in the Scottish Gamekeepers’ Association (SGA) over the means by which the RSPB’s evidence was obtained.

A spokesman for the organisation said it seemed wrong for individuals “from one particular profession” to be under surveillance in their workplace without their knowledge.

He added: “Is it the case now that charities can do this rather than the police – and is this the correct thing?

They have said they used their rights of access to go on to the land to do this. Really, they should have asked the landowner out of courtesy, if anything. Although it is not sacrosanct in law to do so, I think it would rile people a lot less if there were a little bit more cooperation from organisations such as the RSPB.

These are the things that lead to the breakdown of trust. If they did things a little bit more with due respect, they would find themselves in a lot less problems”.

His words hint at both a clash of cultures and at competing interests in the schism between senior figures in the charity and the ‘tweedies’ who own and manage vast swathes of the Scottish countryside.

While Scottish Natural Heritage (SNH) routinely issues licences to farmers to control wildlife which threatens their livestock, it has never issued a licence to a gamekeeper or landowner to control any species threatening birds kept for game, which also count as livestock under the Wildlife & Countryside Act 1981. The reasons for this, gamekeepers believe, is obvious: politics.

[The rest of the article covers complaints from a gamekeeper on the Lochnell Estate in Argyll about people turning up unannounced to monitor raptor nests; how many members the RSPB has; how much income the RSPB generates; the RSPB’s involvement in the renewal energy debate; how the RSPB is seen as the ‘go to’ organisation for advice on developments; how arrogant the RSPB is; and ends with the question: Is there a time, perhaps, when a charity just becomes too big?]

ENDS

So, the SGA thinks that wildlife crime investigators should let landowners know, in advance, of their arrival on a privately-owned estate. They seem to be missing the point. The landowner can now be held criminally vicariously liable for some crimes against raptors that are carried out by their gamekeepers; what do you think is the first thing the landowner would do, if he/she was notified that wildlife crime investigators were on their way? Advanced warning would hardly be in the interest of an investigation, (or justice), would it? Besides, as was pointed out in the article, nobody has to give advanced warning to a landowner of an impending visit and as long as they act responsibly once on the land, they’re well within their rights – that’s kind of the point of the Land Reform Act.

And what’s all this guff about gamekeepers have never been issued an SNH licence to ‘control’ (kill) “any species” that is perceived as a threat to their game birds? What utter nonsense! Gamekeepers routinely use the SNH General Licences to ‘control’ (kill) corvids. Ironically, this is what Mutch was supposed to be doing when he was filmed killing a trapped goshawk and shoving two other raptors in sacks and walking off with them. Sounds to us like the SGA are trying to play the victim card, again, albeit unsuccessfully.

McAdam 1The SGA aren’t the only ones up in arms about the admissibility of the RSPB’s video footage which was used to devastatingly good effect in the Mutch trial.

Here’s what the CEO of Scottish Land & Estates (SLE), Doug McAdam, wrote in last week’s SLE e-newsletter:

“There can be no doubt that the custodial sentence handed down this week to a gamekeeper convicted of wildlife crime will send a very strong message out to those who continue to break the law. The illegal killing of any bird of prey is unacceptable and anyone who engages in such activity can, rightly, expect to feel the full weight of the law.

However, this case has raised some fundamental issues regarding access rights and the law as it becomes clear that a central party to this investigation [he means the RSPB] has chosen to totally disregard Scottish Government approved guidance contained in the Scottish Outdoor Access Code regarding undertaking survey work on someone else’s land. This is a serious matter in its own right, but it also reaches well beyond matters of wildlife crime, crossing in to areas such as new development and planning work where it could have some serious implications”.

Why is this “a serious matter”? It’s no such thing (unless you happen to be CEO of an organisation that just wants to have another go at discrediting the RSPB or is concerned about what future video footage may reveal). The Scottish Outdoor Access Code is just that – it’s a code, not a statutory instrument. It has as much legal influence as the Green Cross Code. It is trumped, magnificently, by the 2003 Land Reform Act. The totally independent Sheriff in the Mutch trial (who, don’t forget, was brought in because the defence thought that the original Sheriff, as an RSPB member, might be biased – see here) deemed that, in this instance, the RSPB video footage was admissible.

That’s not to say that other video footage will be deemed admissible in other trials – it will depend entirely on the circumstances of the case. In the Mutch trial, the RSPB argued successfully that their cameras were not in place to ‘catch someone at it’ – they had been placed as part of a long-term study in to crow cage trap use. That their footage captured Mutch engaging in his disgusting crimes was just a very happy coincidence.

You have to wonder, with all this consternation from the game-shooting crowd, just what it is they’re so frightened that covert cameras might record….

Now might be a good time to buy some shares in balaclava-making companies.

Police search notorious raptor poisoning blackspot

Drumbanagher NI police search Jan 2015Police in Northern Ireland last week joined forces with officers from the Northern Ireland Environment Agency and the Health & Safety Executive (NI) to conduct a search of premises in one of the region’s most notorious raptor- poisoning blackspots.

The search focused on premises in the Drumbanagher area of Co. Armagh following the discovery of a Carbofuran-poisoned buzzard last October. The Drumbanagher/Poyntzpass area is known for its commercial game-shooting interests.

A dead cat was found during the search and has been sent for analysis.

We’ve blogged about this location before. Here’s the list of known (to us) victims:

2006: 1 x poisoned buzzard (type of poison unknown).

2008: 4 x poisoned buzzards (Alphachloralose).

2009: 2 x poisoned red kites (Alphachloralose). One bird survived, the other one didn’t.

2011: 1 x dead buzzard found under a hedge. Too decomposed for analysis.

2011: 3 x dead buzzards, suspected poisoning, but carcasses removed before police attendance. 1 x poisoned magpie (Alphachloralose).

2012: Another poisoned buzzard (Alphachloralose), reportedly the ’36th dead buzzard’ found in this area.

2014: 1 x poisoned buzzard (Carbofuran).

Our previous blogs on this area here and here.

Article on last week’s police search from Farming Life here

RSPB Investigations Team: 1; Countryside Alliance: 0

Last October, the Countryside Alliance launched a scathing attack on the RSPB’s latest annual Birdcrime Report (Birdcrime 2013). The link to their article has mysteriously ‘disappeared’ from their website, so here’s a copy we took:

Thursday, 30 October 2014, Countryside Alliance website:

Countryside Alliance Director for Shooting Adrian Blackmore writes: The RSPB’s Birdcrime Report for 2013, which was published on Thursday 30th October 2014, provides a summary of the offences against wildlife legislation that were reported to the RSPB in 2013. It should be noted that in 2009, the RSPB took the decision to focus on bird crime that affected species of high conservation concern, and crime that it regarded as serious and organized. The figures supplied do not therefore give a total figure for wild bird crime in the UK in 2013, and they are not comparable with figures provided for years prior to 2009.

As is becoming increasingly the case, the report makes sweeping allegations against the shooting community, and grouse shooting in particular – allegations that are not consistent with the evidence provided. It claims that activity on grouse moors is having a serious impact on some of our most charismatic upland birds, and that current measures have failed to find a solution. The report claims that “over the years, a steady stream of grouse moor gamekeepers have been prosecuted for raptor persecution crimes”, and lists each of the offences for which those gamekeepers have been found guilty between 2001 and 2013. Over that 13 year period, 20 gamekeepers employed on grouse moors (an average of 1.5 per year) are shown as having been prosecuted, but according to the RSPB’s birdcrime reports for each of those years, the total number of individual prosecutions involving wild birds totalled 526 individuals. Given that grouse moor keepers therefore represent a mere 4% of those prosecuted in the courts, one can only wonder why the RSPB should choose not to focus on the occupations of the other 96%.

The RSPB also states in the report that “it believes it is the shooting industry as a whole, not individual gamekeepers, that is primarily responsible for raptor persecution in the UK”. It has therefore repeated its call for: political parties to introduce licensing of driven grouse shooting after the election; the introduction of an offence of vicarious liability in England; increasing the penalties available to courts for wildlife offences; and for game shooting to be regulated with an option to withdraw the ‘right’ of an individual to shoot game or businesses to supply shooting services for a fixed period following conviction for a wildlife or environmental offence.

For the third year running, the RSPB has included a piece of research in its Birdcrime Report that is intentionally misleading. Both the 2011 and 2012 reports covered in detail a research paper which claimed that peregrines on or close to intensive grouse moor areas bred much less successfully than those in other habitats, and that persecution was the reason for this. That same research paper is covered again in the 2013 Birdcrime report. The research in question used data from 1990 – 2006 and at the time it was published a representation was made to the National Wildlife Crime Unit which resulted in a caveat being circulated to all Police Wildlife Crime Officers in the UK explaining that the data used in the paper was out of date, and that in using such information there was danger that the research paper suggested a current situation. For the RSPB is well aware of that caveat, and to include this once again makes a complete mockery of its previously stated belief that reliable data are essential to monitoring the extent of wildlife crime.

Summary of statistics

341 reported incidents of illegal persecution in 2013 – a reduction of 24% since 2012 when there were 446 reported incidents, and well below the previous 4 year average of 573.

164 reported incidents of the shooting and destruction of Birds of Prey which included the confirmed shooting of 49 individual birds of which only 7 took place in counties associated with grouse shooting in the North of England.

74 reports of poisoning incidents involving the confirmed poisoning of 58 Birds of Prey of which only 2 occurred in counties in the North of England where grouse shooting occurs.

In total, there were 125 confirmed incidents of illegal persecution against Birds of Prey in 2013. Just 18 of those occurred in counties in the North of England where grouse shooting takes place, and none of those have been linked to grouse shooting.

Of the 32 individual prosecutions involving wild birds in 2013, only 6 individuals were game keepers, and one of those was found not guilty. Therefore, of those prosecuted, only 16% were gamekeepers and only 6% of the 32 cases involved birds (buzzards) that had been killed. Only one of the cases concerned an upland keeper employed by an estate with grouse shooting interests, and that case did not involve the destruction of a bird of prey.

Of the 14 incidents of nest robberies reported in 2013, only 3 were confirmed, one of which involved the robbery of at least 50 little tern nests.

There is no evidence to support the RSPB’s allegation of persecution of birds of prey by those involved in grouse shooting. The RSPB’s Birdcrime Reports show that between 2001 and 2013 there were 526 individual prosecutions involving wild birds, and according to its 2013 report only 20 of those individuals (4%) were actually gamekeepers employed on grouse moors.

Land managed for grouse shooting accounts for just 1/5th of the uplands of England and Wales.

The populations of almost all our birds of prey are at their highest levels since record began, and only the hen harrier and the white-tailed eagle are red listed as species of conservation concern.

REPORTED INCIDENTS IN 2013

In 2013, the RSPB received 341 reported incidents of wild bird crime in the UK, the lowest figure since 2009. This represents a reduction of 24% since 2012 when there were 446 reported incidents, and well below the previous 4 year average of 573.

SHOOTING INCIDENTS

As in previous years, the, the most commonly reported offence in 2013 was the shooting and destruction of birds of prey, with 164 reported incidents in 2013. Of these, the shooting of 49 birds of prey are shown in the report as being confirmed, of which 7 were in counties of the North of England where grouse shooting takes place. The remaining 23 incidents that were confirmed in England occurred elsewhere.

POISON ABUSE INCIDENTS

During 2013 there were 74 reports of poisoning incidents involving the confirmed poisoning of 58 Birds of Prey of which only 2 occurred in counties in the North of England where grouse shooting takes place:

ILLEGAL TRAPPING AND NEST DESTRUCTION

There were 18 confirmed incidents of illegal trapping of birds of prey in 2013, and no confirmed cases of nest destructions, compared to 2012 when there had been 10 incidents of nests being destroyed. Although this figure of 18 is an improvement on that for 2012, it is still above the previous 4 year average of 14 incidents.

WILD BIRD RELATED PROSECUTIONS

In 2013 there were 32 individual prosecutions involving wild birds. Only 6 of those individuals were game keepers, and one of those was found not guilty. Therefore, of those prosecuted, only 16% were gamekeepers and only 6% of the 32 cases involved birds (buzzards) that had been killed. Only one of the cases concerned an upland keeper employed by an estate with grouse shooting interests, and that case did not involve the destruction of a bird of prey:

CONCLUSION

It is clear from its 2013 Birdcrime Report that the RSPB is continuing in its efforts to promote an anti-shooting agenda, especially against driven grouse shooting. It has less to do with aconcern about birds and more about ideology and a political agenda. Like reports of recent years, the 2013 Birdcrime Report is deliberately misleading, and many readers will invariably take at face value the claims and accusations that have been made. Many of these are serious, and made without the necessary evidence with which to substantiate them.

ENDS

The reason, perhaps, this article has mysteriously ‘disappeared’ from the CA’s website can probably be explained by the following…..

The Countryside Alliance used this article to lodge a complaint against the RSPB with the Charity Commission. The CA’s claim was based on this:

“The report [Birdcrime 2013] makes sweeping allegations against the shooting community, and grouse shooting in particular – allegations that are not consistent with the evidence provided [in Birdcrime 2013]”.

The Charity Commission was obliged to investigate the CA’s complaint that the RSPB had ‘mis-used’ data and had made ‘un-founded allegations’ and they have now issued their verdict – they have rejected every single complaint made by the Countryside Alliance against the RSPB.

Strangely, although the Charity Commission’s response letter was sent to the CA on 7th January 2015, the findings have not appeared on the CA’s website. Can’t think why. Anyway, here’s a copy for those who want to read it – it’s really rather good:

Charity Commission response to Countryside Alliance complaint re RSPB Jan 2015

Not to be deterred by making yet another ‘embarrassing blunder‘, this week the Countryside Alliance wrote a response to the sentencing of goshawk-bludgeoning gamekeeper George Mutch, sent to jail for four months for his raptor-killing crimes. The CA’s response starts off well, condemning Mutch’s actions, but then it all goes badly wrong. According to the CA, it’s the RSPB’s ‘wider policy’ that is driving the continued illegal persecution of raptors!

You couldn’t make this stuff up. Why is it so hard for the game-shooting industry to take responsibility for their actions instead of continually trying (and failing) to discredit the RSPB? Is it because they have no intention whatsoever of addressing the widespread criminality within their ranks and so they churn out all this anti-RSPB rhetoric as a distraction technique? Nothing to do with the RSPB being so effective at exposing and documenting the game-shooting industry’s crimes, of course.

Expect more ludicrous attacks on the RSPB over the coming weeks and months….a predictable response from an industry unable, or unwilling, to self-regulate and undoubtedly feeling the pressure of scrutiny and demand for change from an increasingly well-informed public.

The link to the CA’s latest absurd accusation can be found here, but just in case it also mysteriously ‘disappears’, here’s the full text. Enjoy!

Countryside Alliance website

16th January 2015

‘Shooting, livelihoods and raptors’

The illegal killing of birds of prey is about the most selfish crime it is possible to commit because even if there are short term benefits for the preservation of game (and those benefits are as likely to be perceived as real) they will always be outweighed by the long term damage to the shooting industry as a whole.

That is why the Alliance has no hesitation in condemning an Aberdeenshire gamekeeper who was sentenced to four months in prison earlier this week for four offences including the killing of a goshawk.

Raptors as a whole may be the biggest success story in British birds with numbers having increased hugely as a result of legal protection and reintroduction, but some species remain rare and killing them for the sake of providing more birds to shoot is never going to be anything but a political and PR disaster.

The RSPB collected the evidence which convicted that gamekeeper and was understandably pleased with the outcome of the case. Whilst its actions in relation to individual cases like this are entirely justified the Society must, however, consider whether its wider policy is actually helping to perpetuate, rather than reduce, illegal persecution.

This might sound a strange statement, but it is worth considering the RSPB’s own history and how other wildlife conflicts have been resolved. The RSPB was founded by a group of women appalled by the trade in exotic feathers for ladies’ hats. Its first campaign was not aimed at prosecuting the people killing birds, but at removing the causes of persecution, which in that case was the high value of feathers. By reducing demand for rare birds it removed the economic imperative for persecution.

One argument might be to simply ban shooting and with it one of the main reasons someone might have for killing a raptor. However, that policy would create far greater conflict and remove the many positive environmental, economic and social benefits of shooting which far outweigh the negatives of any associated raptor killing.

Another, we would argue far more logical, approach would be to consider the causes of any illegal raptor killing and how the drivers for that activity could be removed. In two areas in particular the RSPB seems unwilling to consider proposals which tackle the causes of persecution, as well as persecution itself.

Firstly by refusing to endorse proposals for hen harrier ‘brood management’ which would give assurances to upland keepers that colonies of hen harriers could not make their moors unviable and their jobs redundant. And secondly by opposing absolutely any management, even non-lethal, of the burgeoning buzzard population even if they are having a significant economic impact on game shooting.

We are not suggesting that these management practices must take place, but surely an agreement that they could be used where absolutely necessary to protect livelihoods would make it less likely that people would make the wrong decision about illegal killing?

END

Who owns Kildrummy Estate?

Following yesterday’s news that Kildrummy Estate gamekeeper George Mutch has been jailed for four months for his raptor-killing criminal activities, a common question we’ve heard is, ‘Will there now be a vicarious liability prosecution?’

We think that there is the potential for a prosecution, although obviously we’re not privy to any evidence that the Crown might have available when they make a decision whether to proceed or not. We’ll just have to be patient and see what happens.

Let’s assume the Crown does decide that there is sufficient evidence to proceed, and that it would be in the public interest to prosecute, then the question becomes, ‘Who would be charged?’

That will depend on who was in the chain of command above Mutch and what managerial responsibilities they had at the time he committed his crimes (see here for our interpretation of how vicarious liability works). For example, if there was a Head Gamekeeper then perhaps he/she might be the one charged. If there was an Estate Factor then perhaps he/she might be the one charged. Perhaps there wasn’t anyone in a hierarchical managerial role between Mutch and the landowner, in which case, the landowner may be the one charged. But in this case, that might be a bit difficult.

Why? Have a read of Andy Wightman’s brilliant blog here and you’ll understand!

George Mutch sentenced to four months in prison

Scottish gamekeeper George Mutch, convicted in December for trapping a goshawk and then battering it to death (and a few other things – see here) on the Kildrummy Estate in Aberdeenshire, has been sentenced to four months in prison for his crimes.

He was led away from the court in handcuffs and is currently en-route to a prison cell.

What an unbelievably brilliant outcome – we never thought we’d see the day. Mutch is the first gamekeeper ever to be jailed in the UK for killing raptors.

Huge congratulations to the RSPB Investigations Team, SSPCA, Police Scotland and the Crown Office, and kudos (and thanks) to Sheriff Noel McPartlin for handing out this sentence. An acknowledgement also to former Environment Minister Paul Wheelhouse, who pushed hard for the admissibility of video evidence. Had he not done so, this case would probably not have made it to court.

For anyone who missed it when he was convicted in December, here is the video nasty showing gamekeeper Mutch carrying out his crimes on the Kildrummy Estate in Aberdeenshire.

We understand there’s the potential for a vicarious liability prosecution in this case. We’ll have to wait and see whether COPFS deems there’s enough evidence to proceed. Although that may prove difficult – have a read of Andy Wightman’s blog about who owns Kildrummy Estate, here.

Media coverage:

A bizarre statement from the SGA here. Isn’t it great to see the representative organisation strongly condemning his crimes, er…

BBC news here, including statements from the Sheriff, RSPB Scotland, COPFS, SGA and SLE.

RSPB Scotland statement here

Press & Journal here

Herald here. This is an interesting one, with quotes from defence agent David McKie about Mutch’s employment status and the status of his firearms certificates.

Telegraph here, with claims that Mutch had been sent a ‘threatening letter’ following his conviction in December. The police are investigating.

Daily Mail here, with a classic quote from Superintendent George MacDonald (Police Scotland) suggesting it’s just a “small minority” of gamekeepers who are at it. What he meant, of course, is that it’s just a small minority that are actually caught.

Courier here, which is pretty much a carbon copy of the Mail’s piece.

COPFS statement here

Sentencing today for gamekeeper George Mutch, convicted raptor killer

Convicted gamekeeper George Mutch will be sentenced today at Aberdeen Sheriff Court.

Mutch, a 48-year old (now former) member of the Scottish Gamekeepers’ Association who worked on Kildrummy Estate, Aberdeenshire, was found guilty of four wildlife crimes in December, including the illegal killing of a goshawk which he trapped and then clubbed to death, and the trapping and taking of a further goshawk and a buzzard (see here).

All eyes on Sheriff McPartlin, who said in December that a custodial sentence was being considered….

Subsidy penalty for convicted vicarious liability landowner

Last month we blogged about the Scottish landowner who was the first to be convicted under the new vicarious liability legislation which came in to force on 1st January 2012.

Ninian Robert Hathorn Johnston Stewart of the Physgill & Glasserton Estates was found guilty of being vicariously liable for the actions of his gamekeeper, Peter Finley Bell, who had laid out a poisoned bait which killed a buzzard. Bell was also found to be in possession of three banned poisons (see here).

The landowner’s conviction was met with mixed feelings. Many of us were pleased to see a successful prosecution in what was a landmark case, but there was widespread disappointment in the derisory fine of just £675.

A number of blog commentators asked whether the landowner would also be hit by a Single Farm Payment penalty for cross compliance breaches. We weren’t able to answer that at the time, although we knew that the use of a banned poison to kill a protected wild bird would certainly merit a penalty.

Well, it turns out that Mr Johnston Stewart was indeed hit with a subsidy penalty. According to his defence agent (David McKie),

“He [Johnston Stewart] had already been penalised substantially via a high five-figure deduction to his single farm payment“.

We don’t know what that “high five-figure deduction” was (presumably somewhere between £10,000 – £99,999), nor do we know how it was calculated, nor what percentage it was of his annual subsidy payment. Nevertheless, it’s good to hear that a penalty was imposed so well done to SGRPID (Scottish Government, Rural Payments & Inspections Directorate) for being on the ball.

Wouldn’t it be good if this sort of detail was easily available in the public domain? We’d like to know how these public subsidies are being distributed (or revoked) and it surely has a deterrent value for other landowners who might just be persuaded to take a closer look at what their gamekeepers are up to. A section on this in the Scottish Government’s annual wildlife crime report wouldn’t go amiss….

First conviction in landmark vicarious liability case

The first ever prosecution under the new vicarious liability legislation concluded today with a conviction at Stranraer Sheriff Court.

Landowner Ninian Robert Hathorn Johnston Stewart pleaded guilty to being vicariously liable for the criminal actions of Glasserton & Physgill Estates’ gamekeeper Peter Bell, who was convicted in 2013 of laying poisoned bait (Carbofuran) which killed a buzzard, and for possession of three banned pesticides (Carbofuran, Strychnine and Alphachloralose). Bell was fined a total of £4,450 (see here). On conviction, Bell was expelled from the Scottish Gamekeepers’ Association and the Glasserton & Physgill Estates were expelled from the landowners’ representative organisation, Scottish Land & Estates.

So, what was the penalty in this landmark vicarious liability conviction? A pathetic £675! We don’t know the full details of Johnston Stewart’s plea, or if there was any mitigation, but nevertheless, a £675 fine is extremely disappointing, especially when you consider that the maximum penalty for this offence is £5,000 and /or a six month prison sentence.

Will a derisory fine of £675 act as a suitable deterrent to others? No, of course not; that’s pocket change to a wealthy landowner. It’s yet another example of why there needs to be a complete overhaul of the penalties for wildlife crime and we look forward to reading Professor Poustie’s review on this issue, which is due to be submitted to the Scottish Government early next year.

What might act as a deterrent is the reputational impact of the conviction, but only if the conviction is widely publicised. We haven’t seen anything in the press, yet. Hopefully some of the journalists who follow this blog will get something out there….

So, although this is a disappointing penalty, the fact that there has been a conviction and thus a demonstration that the legislation works, is to be welcomed. Well done to the Fiscal and all those involved with bringing this case to court.

We now have information on the second vicarious liability prosecution currently going through the system and we’ll be blogging about that one in the new year.

UPDATE 19.15hrs. The following press release has been issued by the Crown Office:

copfs logoFIRST WILDLIFE VICARIOUS LIABILITY CONVICTION IN SCOTLAND

Landowner Ninian Stewart sentenced today after pleading guilty to being vicariously liable for Peter Finley Bells’ crime of poisoning and killing of a wild bird.

Ninian Robert Hathorn Johnston Stewart was convicted at Stranraer Sheriff Court on 23 December 2014 and fined a total of £675 today for four offences under Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981. Section 18A(2) makes the accused guilty of the original offence and liable to be punished accordingly.

This is the first prosecution and conviction in Scotland under section 18A of the Wildlife and Countryside Act 1981. This section came into force on 1 January 2012.

Section 18A(2) created a new vicarious liability offence meaning that a person (B), who has shooting rights on or over land, or who manages or controls the exercise of such rights, can be found guilty of a relevant offence(s) committed by a person (A) while acting as the employee or agent of B.

This provision is designed to encourage landowners and employers with varying levels of responsibility in connection with shooting to be diligent and proactive in countering wildlife crime.

Stewart, the landowner of Glasserton & Physgill Estates, was convicted of being vicariously liable for the criminal actions of Glasserton gamekeeper Peter Bell on land owned by Stewart and on which he held the shooting rights.

Bell was a full time Gamekeeper in the employ of Ninian Stewart when he committed the poisoning offence on 23 December 2012 at Glasserton Home Farm. He had laced the carcass of a pheasant baited with Carbofuran and set the bait in a field. A birdwatcher passing the farm saw something flapping in the field and on closer inspection found that it was a common buzzard, lying on the ground, in the last throws of life. Subsequent forensic work showed that the buzzard had died as a result of ingesting the poisoned bait.

Under section 18A(3) it is a defence for B to show that B did not know that the offence(s) was being committed by A, and that B took all reasonable steps and exercised all due diligence to prevent the offence being committed.

In this case, while there was no indication that Mr Stewart instructed the commission of the offences or that he even knew about them being committed, there no evidence that Mr Stewart took any steps to exercise due diligence in respect of shooting on his Estate.

Sara Shaw, Procurator Fiscal, Wildlife and Environment said:

“There is a proactive responsibility placed on those who employ game keepers to run shooting estates, to ensure that is done within the parameters of the law.

“These offences were committed almost a year after the vicarious liability offence (under section 18A of the Wildlife and Countryside Act 1981) was introduced. Mr Stewart had adequate notice and time in which to take advice and put appropriate measures in place.

“Mr Stewart failed in his responsibilities and as a result stands convicted of the killing of a wild bird.

“The law specifically protects wild birds. Those who seek to poison wild birds, or continue to possess stocks of illegal poison, and those who employ or engage the services of such persons and tolerate the commission of these offences, or who do so without taking all reasonable steps and exercising all due diligence to prevent them being committed, can fully expect to be brought to account before the courts.”

ENDS

Notes to Editor

  1. Ninian Robert Hathorn Johnston Stewart (DOB 18/02/1948) of Newton Stewart pleaded guilty on 23 December 2014 at Stranraer Sheriff Court to four offences under the Wildlife and Countryside Act 1981 as below.

(001) on 23rd December 2012 on or in relation to land at Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 1(1)(a) of the aftermentioned Act, in that he did intentionally or recklessly kill a wild bird, namely a common buzzard in that he set the carcass of a pheasant baited with poison, namely carbofuran after which said buzzard did ingest said Carbofuran and did poison said buzzard whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 1(1)(a) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 1: £150 (reduced from £200)

(002) between 23rd December 2012 and 5th March 2013 both dates inclusive on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely Carbofuran containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely Carbofuran whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence; CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 2: £225 (reduced from £300)

(003) on 05 March 2013 on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely Strychnine containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely Strychnine whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being

a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 3: £75 (reduced from £100)

(004) on 05 March 2013 on or in relation to land at Physgill Cottage, Glasserton Home Farm, Whithorn, Newton Stewart, Peter Finley Bell, a person then acting as your employee or agent, did commit a relevant offence as defined by Section 18A(6)(a) of the aftermentioned Act, namely an offence under Section 15A(1) of the aftermentioned Act, in that he did have in his possession a pesticide, namely alphachloralose containing a prescribed ingredient within the terms of the Possession of Pesticides (Scotland) Order 2005/66, Article 2 and the Schedule, namely alphachloralose whereby you NINIAN ROBERT HATHORN JOHNSTON STEWART, being a person who has and who manages or controls the exercise of a legal right to kill or take a wild bird on or over that land, are guilty of an offence;

CONTRARY to Section 15A(1) and Section 18A(1) and (2) of the Wildlife and Countryside Act 1981 as amended

And it is hereby certified in terms of section 20 of the aforementioned Act that evidence sufficient in the opinion of the prosecutor to warrant proceedings came to his knowledge on 17th July 2013

Charge 4: £225 (reduced from £300)

  1. Peter Finley Bell (DOB 11/02/1951) from Whithorn, Newton Stewart was fined £4,450 on 18 June 2013 after pleading guilty to four charges contrary to the Wildlife and Countryside Act 1981: one contravention of section 1(1)(a) (killing a wild bird) and three contraventions of section 15A (possession of an illegal pesticide). He was fined £2,450 for killing the buzzard (reduced from £3,500 to reflect his plea of guilty); £1,400 for possession of Carbuforan (reduced from £2,000) and £300 on each charge for possession of Strychnine and Alphachloralose (reduced from £500 on each charge).

END

MEDIA COVERAGE

BBC news here

Galloway Gazette names Sheriff Kenneth Robb here

Scottish Land & Estates: an extraordinary statement here. Glasserton & Physgill Estates were expelled from SLE in 2013, following the conviction of gamekeeper Bell (see here). Reading SLE’s defensive response to the conviction of landowner Johnston Stewart, you have to wonder…..

Journal of the Law Society of Scotland here

Scottish Daily Mail here

UPDATE 6th January 2015: Landowner hit with a five-figure subsidy penalty (here)