Tag: carbofuran

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)

First vicarious liability prosecution: part 4

Criminal proceedings continued yesterday against Mr Ninian Robert Hathorn Johnston-Stewart in the first known vicarious liability prosecution under the WANE Act 2011.

Mr Johnston-Stewart, the landowner of Glasserton & Physgill Estates, is charged with being vicariously liable for the criminal actions of Glasserton gamekeeper Peter Bell, who was convicted in 2013 of laying poisoned bait which killed a buzzard (Carbofuran), and for possession of three banned pesticides (Carbofuran, Strychnine and Alphacloralose) (see here).

Yesterday’s intermediate diet was continued, with another intermediate diet scheduled for 23rd December 2014.

Previous blogs on this case here, here and here

Wildlife crime penalties: have your say

There has long been dissatisfaction with the penalties handed out to those convicted of wildlife crime. Yesterday’s sentencing of convicted mass raptor poisoner Allen Lambert of Stody Estate merely served to highlight the issue, again. But what we perceive to be unacceptably lenient penalties is certainly nothing new, and especially those sentences given to people (usually gamekeepers) associated with the game-shooting industry.

There’s a huge lack of public confidence in the way the judiciary deals with these criminals, with many people often talking about corruption, vested interests, biased judges/sheriffs etc. We’ve all come to expect unduly lenient measures – you only have to look at the comments on social media even before Lambert’s sentence was announced – people were predicting a metaphorical ‘slap on the wrist’, and in essence, that’s indeed what he got, even though the judge had stated that Lambert’s crimes “had crossed the custody threshold“.

Quite often (although apparently not in Lambert’s case), the accused’s employer (typically a wealthy landowner) will even fork out for a Queen’s Counsel (QC) to put forward the accused’s defence. A QC is considered to be an exceptional lawyer of outstanding ability – it’s hardly a level playing field to pit a QC against an ‘average’ public prosecutor, leading to even more public concern about the perceived ‘fairness’ of these trials and any subsequent punishment.

Sentencing for wildlife crimes has been hit or miss in both Scotland and England. For most wildlife crime offences (although not all), the maximum sentence available for each offence is a £5,000 fine and/or a six month custodial sentence. So for example, if someone had been convicted of poisoning two buzzards, they could potentially be hit with a £10,000 fine and a 12 month custodial sentence. As far as we’re aware, the maximum sentence has never been given. Instead, a large dollop of judicial discretion has been applied, resulting in weak and inconsistent penalties and a growing level of frustration amongst the general public who wish to see justice being done.

For example, in 2011, a gamekeeper in South Lanarkshire was convicted of poisoning four buzzards with the banned pesticide Alphachloralose. His sentence? An admonishment (basically a telling off). The maximum penalty available to the Sheriff was a £20,000 fine and/or a two-year custodial sentence. What was even more astonishing about this case was that the gamekeeper had been convicted of another wildlife crime three years earlier (illegal use of a crow cage trap in which he’d caught a buzzard), on the same land, for which he’d received a £300 fine. So the poisoning of four buzzards with a banned pesticide was his second conviction and yet he was given the most lenient penalty available.

A few months later, and just down the road in South Lanarkshire, a second gamekeeper was convicted of possessing the banned pesticide Carbofuran, which had been found in his vehicle. No charges were brought for the discovery of a dead buzzard and a pheasant bait (both tested positive for Carbofuran) found on land where this gamekeeper worked. His sentence? A £635 fine for possession (maximum sentence available was a £5,000 fine and/or a six month custodial sentence).

Things may be about to change in Scotland. Environment Minister Paul Wheelhouse has, to his credit, instructed a review of wildlife crime penalties. The group’s remit is:

“To examine and report on how wildlife crime in Scotland is dealt with by the criminal courts, with particular reference to the range of penalties available and whether these are sufficient for the purposes of deterrence and whether they are commensurate with the damage to ecosystems that may be caused by wildlife crime”.

Now, while we don’t for one minute think that a potential increase in penalties will be the great panacea to stopping wildlife crime (for that to happen there also needs to be a significant change in investigation and enforcement procedures…..it’s pointless having a severe penalty in place if the criminal knows the chances of being caught are virtually nil…but more on that in due course), it is nevertheless an encouraging step, assuming of course that the review committee recommends an increase in penalties. They may not – see here for our previous comments on the membership of this review committee, which inexplicably includes the owner of a game-shooting estate.

This is where you come in. There is an opportunity for you to share your views with the review committee by answering a simple questionnaire that includes some carefully-thought out questions. The deadline for responding is two weeks today (21st November 2014) and the questionnaire can be filled in on-line and emailed to the committee. Please click here to download.

This is an excellent opportunity to have your say and perhaps have some influence on future wildlife crime sentencing options. Although the review is only applicable to sentencing options in Scotland, you do not have to live in Scotland to participate – it’s open to anyone from anywhere. And who knows, if improvements are made in the Scottish system then it provides more leverage for calls to do a similar review of wildlife crime penalties in England, Wales and Northern Ireland.

The review committee is due to report its findings (and recommendations) early in the New Year.

First vicarious liability prosecution: part 3

Criminal proceedings continued today against Ninian Robert Hathorn Johnston Stewart in the first known vicarious liability prosecution under the WANE Act 2011.

Mr Johnston Stewart, the landowner of Glasserton & Physgill Estates, is charged with being vicariously liable for the criminal actions of Glasserton gamekeeper Peter Bell, who was convicted in 2013 of laying poisoned bait which killed a buzzard (Carbofuran) and possession of three banned pesticides (Carbofuran, Strychnine and Alphacloralose) (see here).

Today’s hearing was continued for an intermediate diet on 8th December 2014.

Previous blogs on this case here and here

Ross-shire Massacre: unbelievable press release from Police Scotland

RK7Following the mass poisoning of raptors (16 red kites & 6 buzzards) at Conon Bridge, Ross-shire, seven months ago, Police Scotland has this evening put out the following press release:

Appeal for information in relation to death of raptors

Police Scotland has issued a further appeal for information relating to the deaths of raptors in various locations across the Ross-shire/Black Isle area earlier this year.

Following investigation Police Scotland can now confirm that the birds, 12 red kites and four buzzards, were most likely not targeted deliberately but instead were the victims of pest control measures. The raptor deaths occurred over March and April this year.

The criminal investigation into their deaths is still ongoing and Police Scotland continues to work closely with partners.

Detective Superintendent, Colin Carey, said:

“Investigations into the suspicious deaths of wildlife and especially raptors can be difficult and prolonged. The areas covered can be vast and it is seldom immediately apparent why a bird may have died.

“We work closely with partners to identify and thoroughly investigate all wildlife crime. The death of the raptors in Ross-shire remains an on-going investigation during which we are endeavouring to establish all of the circumstances around this crime. We would ask anyone who may have further information to come forward.”

A significant reward is being offered for witnesses or further information.

Partner agencies would seek to remind members of the public that if anyone finds any further dead birds or animals in the area they are asked to make a note of its location and inform the police on 101. Under no circumstances should anyone touch or attempt to recover any dead animal.

If anyone has any information regarding this matter please contact Dingwall Police Station, telephone 101.

END

This police statement is staggering. Pay close attention to the second paragraph: Police Scotland can now CONFIRM…..

How can they possibly CONFIRM this, without a full confession from the person who laid out the poison baits? Does this CONFIRMATION mean that they’ve got the poisoner? That he/she has been arrested? That he/she has been charged?

The truth of the matter is, they haven’t got the poisoner, so they cannot possibly CONFIRM whether the poisoner meant to target raptors or meant to target a legitimate ‘pest’. Besides, the only legitimate method of poisoning ‘pests’ is by the controlled use of rodenticides. We already know that the poison(s) involved in this case included a banned poison – the police said so months ago. According to the Vice President of the RSPB, the poison used was Carbofuran. We don’t know that for sure because Police Scotland has refused to say, and the Government toxicology lab who would normally publish this information has mysteriously chosen not to on this occasion. We also know that poisoned baits were picked up at the crime scene – as reported here and here. How can this possibly be classified as a ‘non-deliberate’ poisoning?! It’s illegal to even possess these banned poisons, let alone to use them!

What on earth are Police Scotland playing at? This press statement is a disgrace. If we applied their logic to every other raptor that has been poisoned by a banned poison over the last ten years, then they’ve all been accidental! An unfortunate mistake by someone carrying out pest control measures! What sort of message does this police statement send to those who continue to use banned poisons to kill wildlife? ‘Ah don’t worry lads, we know you didn’t mean to deliberately target that golden eagle/red kite/buzzard with your illegal poisoned bait’.

WTF?

Somebody needs to be asking questions about this. It’s pointless us trying to ask Police Scotland – we’ll just get the stock response of “It’s a live investigation so we can’t comment”. So much for police accountability, eh? All this guff about how the SSPCA shouldn’t be given extra powers because they’re ‘unaccountable’ – Jesus.

So seeing as we have no confidence in Police Scotland to be (a) accountable, (b) competent or (c) trustworthy about this case, how about we ask the partner agencies “working closely” with the police on this case, whether they agree with Police Scotland’s CONFIRMATION that this incident was accidental?

Let’s ask Ian Thomson, Head of Investigations at RSPB: ian.thomson@rspb.org.uk and let’s ask Mark Rafferty, Head of Special Investigations Unit at SSPCA: mark.rafferty@scottishspca.org We’re not asking them to reveal any confidential information about the case, just whether they agree with Police Scotland’s assertions that these poisoned birds were not deliberately targeted, and if so, on what basis has the assertion been made?

First vicarious liability prosecution: part 2

wane1Last week we blogged about what we believe to be the first prosecution under the 2011 vicarious liability legislation (see here), relating to poisoning offences that took place on the Glasserton & Physgill Estates in December 2012. Gamekeeper Peter Bell was convicted in June 2013 for those crimes, including the laying out of a poisoned bait that subsequently killed a buzzard, and the possession of three banned poisons (Carbofuran, Strychnine and Alphachloralose) which were found in his tool shed and in his home (see here).

The vicarious liability prosecution was adjourned yesterday and the next hearing is due in November.

Definitely one to watch.

Ross-shire Massacre: seven months on

It’s been seven months since 22 birds of prey (16 red kites and six buzzards) were illegally killed in a mass poisoning incident near Conon Bridge, Ross-shire.

Here’s an imaginary update from the police:

No arrests.

No charges.

No prosecution.

No justice.

Previous posts on the Ross-shire Massacre here.

Update on first vicarious liability prosecution

wane1Regular blog readers will know that we’ve been interested in the first prosecution of a landowner under the vicarious liability legislation for some time now….in fact ever since the legislation was enacted as part of the WANE Act on 1st January 2012 (see here for background info on what vicarious liability is and to what wildlife crime offences it can be applied).

We believe the first prosecution relates to the employers of gamekeeper and (now ex) SGA member Peter Bell, who was convicted in June 2013 of various poisoning offences that took place in December 2012 on the Glasserton & Physgill Estates. Those offences included laying a poisoned bait that subsequently killed a buzzard, and the possession of three banned poisons (Carbofuran, Strychnine and Alphachloralose) found in his tool shed and in his home (see here).

We’ve been asking whether there would be a vicarious liability prosecution against Bell’s employers for over a year, but each time we asked, various obstructions were put in our way (see here and here). However, in May this year, Environment Minister Paul Wheelhouse announced during a parliamentary debate on raptor persecution that vicarious liability proceedings had commenced (see here).

Since May, we’ve heard nothing at all, which we find surprising given the high level of public interest in how this new (well, nearly 3-year-old now)  and significant legislation will work.

We’ve been doing quite a lot of research since then and have finally discovered that this case is indeed in progress, and the next court hearing will take place next week. It won’t be an evidence-led hearing – it’s a special hearing that is designed to hear legal arguments. What happens next will depend on what the Sheriff decides at the end of the hearing. We’ll keep you posted.

We’ve also heard that there is a second vicarious liability case underway…..more on that in due course.

Cairngorms National Park Authority wants ‘action’ against raptor persecution

Duncan BrydenThe Convenor of the Cairngorms National Park Authority (CPNA), Duncan Bryden, has written to the Environment Minister to tell him that continued incidents of raptor persecution and ‘disappearing birds’ in the eastern side of the Cairngorms National Park “threatens to undermine the reputation of the National Park as a high quality wildlife tourism destination“.

He has asked for the Minister to attend a meeting of stakeholders in the Eastern Cairngorms (including RSPB Scotland and, er, Scottish Land & Estates) to discuss ways to address this on-going issue.

That’ll be interesting, seeing as though SLE continue to deny the extent of the problem (e.g. see here) and only last year gave membership to the ranks of SLE to the North Glenbuchat Estate – a grouse moor in the National Park that has been at the centre of wildlife crime investigations for years, most recently following the ‘disappearance’ in April of the first fledged white-tailed eagle in eastern Scotland for 200 years – it’s final signal reportedly came from North Glenbuchat estate (see here). The eagle is presumed dead but it’s body has not been recovered, just like the bodies of three other young satellite tagged eagles that ‘disappeared’ in the area in recent years. The body of a fifth eagle was found on North Glenbuchat Estate in 2011 – it had been poisoned with Carbofuran. As had a poisoned buzzard, also found in 2011, as well as a poisoned bait. A dead short-eared owl was also found in 2011 – it had been shot and stuffed under a rock.

Good luck to the CNPA in trying to oust the raptor-killing criminals from the National Park and well done Duncan Bryden for taking a stand.

Download: CNPA letter to Paul Wheelhouse May2014

Download: Paul Wheelhouse response to CNPA

CNP map

 

Another peregrine poisoned in Derry

Last week we blogged about the suspected poisoning of a famous peregrine that had been found dead in the grounds of St Columb’s Cathedral in Derry (see here).

Seven days on and we’ve been told by one of our contributors (thank you) of another dead peregrine in Derry, this time confirmed to have been poisoned.

The dead bird was discovered at the Carmean Road in Moneymore on the afternoon of Tuesday July 15th. The carcass was taken to a vet at the Department of Agriculture and Rural Development for a post mortem. Tests revealed it had been killed by ingesting the banned poison Carbofuran.

Police in Magherafelt have launched an appeal for information about this incident and about any suspicious activity around the local quarries. Anyone with information is asked to contact Magherafelt Police Station on Tel: 101.

This is the 19th peregrine known to have been targeted in these isles this year. And these are only the ones that have been reported. Details of the first 17 can be found here, details of the 18th here.

Peregrine photo by Steve Waterhouse