Tag: gamekeeper

Police Scotland explain failure of vicarious liability in Kildrummy case

waneLast month we blogged about the failure of the Crown Office to initiate a vicarious liability prosecution in the Kildrummy case (see here).

A quick re-cap: in December 2014, Kildrummy Estate gamekeeper George Mutch was convicted of a series of wildlife crime offences that took place on Kildrummy Estate in 2012, including the trapping of a goshawk which he then beat to death with a stick (see here). In January 2015, Mutch was sentenced to four months in prison – the first gamekeeper in the UK to receive a custodial sentence for raptor persecution crimes (see here).

In September 2015, the possibility for a vicarious liability prosecution against Mutch’s employer became impossible as the case had become legally time-barred (i.e. three years had elapsed since the commission of his crimes). We wanted to find out why a vicarious liability prosecution had not been brought in this case so we asked the Crown Office for an explanation. They responded by saying that as nobody had been reported to them for consideration, they couldn’t take forward a prosecution. We speculated (here) about the reasons why nobody had been reported, and thought that it probably had something to do with the fact that Kildrummy Estate is registered as an off-shore company (in Jersey) and thus identification of the actual owner was well hidden; this situation had been expertly uncovered by Andy Wightman’s research earlier this year – see here. However, to find out if this really was the reason why nobody had been reported to the Crown Office, we really needed to hear from Police Scotland, so last month we asked them why they hadn’t reported anyone from Kildrummy Estate to the Crown Office for consideration of a vicarious liability prosecution.

Police Scotland has now responded with a cryptic masterpiece, but if you look closely at their carefully-worded reply it is actually quite revealing:

“Police Scotland is committed to tackling wildlife crime whilst recognising that these investigations can often be challenging and prolonged. In 2013, a report about George Mutch was submitted to the Wildlife and Environmental Crime Unit (WECU) at the Crown Office and Procurator Fiscal Service (COPFS) alleging the unlawful taking and killing of birds of prey at Kildrummy Estate, Aberdeenshire in 2012. Following a criminal prosecution Mr Mutch was convicted and sentenced to 4 months imprisonment in January 2015.

In parallel with the investigation surrounding the activities of George Mutch, enquiries were made to establish whether any further charges could be brought in terms of Vicarious Liability legislation (Section 18A of the Wildlife & Countryside Act 1981). However, this legislation does require an offence to have been committed and therefore charges can only be formally libelled once a conviction has been confirmed. Significant international investigations were undertaken by Police Scotland but after consultation with COPFS it was established that due to insufficient evidence the additional charge of Vicarious Liability could not be libelled.

The experience of this case has, however, identified opportunities for refining future Vicarious Liability investigations, a matter currently being explored with COPFS. Please be assured that Police Scotland will continue to ensure that robust and modern investigative tactics are utilised to bring those committing wildlife crime to justice. Police Scotland’s wildlife crime commitment is additionally reflected in our membership of PAW (Partnership for Action Against Wildlife Crime) Scotland.

I hope the above information addresses the issue raised by you in your correspondence.

Yours sincerely,
Sean Scott, Detective Chief Superintendent”.
END
For the purposes of our interest, the first paragraph can be ignored. Where things start to get interesting is in paragraph two. Pay close attention to the wording:
“Significant international investigations were undertaken……..it was established that due to insufficient evidence the additional charge of Vicarious Liability could not be libelled“.
“International investigations” can only relate to an enquiry about either the land owner, or Mutch’s employer, or who owned the shooting rights; in other words, the individual who could be liable for a potential vicarious liability prosecution. “Insufficient evidence” implies that Police Scotland knew who was responsible for managing Mutch, but just couldn’t prove it. Why? Because the details are hidden in an off-shore holding.
It is apparent then, in the Kildrummy case, that justice has been defeated because the details of land ownership (or at least the hierarchical management structure from Mutch upwards) are concealed. This has big implications for any future vicarious liability prosecutions on estates where the land is registered as an off-shore company (a convenient ploy to escape a potential criminal prosecution) and we’re pretty sure Andy Wightman will have something to say about this in terms of his work on the Land Reform Bill currently being considered by the Scottish Parliament. (Update: Andy Wightman has blogged abut this latest development – see here).
The first line of paragraph three, (“The experience of this case has, however, identified opportunities for refining future Vicarious Liability investigations….“) is interesting and we’ll watch to see what this ‘refinement’ might entail.
As an aside, we were interested to read that Police Scotland thinks that vicarious liability charges “can only be formally libelled once a conviction has been confirmed“. That’s not actually what the legislation says. The legislation allows that 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 (see here). We’re a bit bemused by Police Scotland’s interpretation of this in their above statement, but, as we say, it’s a bit of a side issue in this case because even if Mutch hadn’t been convicted but an attempt was still made to undertake a vicarious liability prosecution, presumably Police Scotland would still have faced the same issue of being unable to identify the person in management or control because these details are squirreled away in an office in Jersey, apparently beyond the reach of Police Scotland.
So, even though vicarious liability has failed in the Kildrummy case, we feel it’s important to acknowledge that in this case, as far as we currently understand what went on, the failure is through no fault of Police Scotland or the Crown Office. This failure is, though, an indication that Vicarious Liability is not the panacea the Scottish Government would like us to believe it is for putting an end to raptor persecution crimes. Since vicarious liability was introduced as an option on 1st January 2012, there has still only been one single successful prosecution. In almost four years, that’s not a good return rate by anyone’s standards.

Stody Estate receives £221,000 subsidy penalty for mass raptor poisoning

stody buzzardsRegular blog readers will know that in October 2014, gamekeeper Allen Lambert was convicted of a series of wildlife crime offences on the Stody Estate, Norfolk, including the mass poisoning of birds of prey (10 buzzards and one sparrowhawk) which had been found dead on the estate in April 2013. He was also convicted of storing banned pesticides and other items capable of preparing poisoned baits (a ‘poisoner’s kit’) and a firearms offence (see here and here).

Lambert got off pretty lightly when he was sentenced in November 2014. Even though the judge acknowledged that Lambert’s crimes had passed the custody threshold, Lambert received a 10-week suspended sentence for poisoning 11 raptors (suspended for one year), a six-week suspended sentence for possession of firearms and dead buzzards (suspended for one year) and was ordered to pay £930 prosecution costs and an £80 victim surcharge. In our opinion (see here), this was absurdly lenient for one of England’s biggest known mass raptor poisoning incidents, and on top of that, Lambert wasn’t even sacked – it was reported that he’d been allowed to take early retirement from the Stody Estate.

Regular blog readers will also know that for the last year, we’ve turned our attention to the minted Stody Estate to try and find out whether the Rural Payments Agency had penalised the estate for breaches in cross-compliance and had removed any of their £MILLIONS of agricultural subsidies as punishment. To receive these tax-payer handouts, estates must comply with a number of measures (like don’t poison raptors) and if they don’t comply, then cross-compliance subsidies can be removed.

It’s taken a while to get any useful information about potential subsidy penalties at Stody Estate. Getting the RPA to reveal anything about this case has been like getting blood out of a stone, or the truth out of Allen Lambert. The RPA has wriggled and squirmed and done its best to avoid answering straightforward questions: see here for previous blogs about our correspondence with the RPA. However, we’re pretty much there now, although not quite there.

Our latest FoI received a response this week. We had asked the RPA (again) whether they’d now enforced a cross-compliance penalty on Stody Estate. They answered: “Yes“.

We asked what the penalty was for, exactly. They answered: “The penalty that has been applied was for a breach of farmer requirement A1, of the pre-2015 Statutory Management Requirement 1 (wild birds). The requirement reads: ‘You must not intentionally kill, injure or take any wild bird‘”.

We asked how much was the penalty applied to Stody Estate for this breach. They answered: “The financial amount has yet to be confirmed, however the penalty is 75% of the Single Payment Scheme payments made to the Estate in 2014“.

So, we now know a penalty has been imposed, but, unconvincingly, the RPA still claims it isn’t able to tell us how much that penalty is. Either they’re incompetent or unwilling to embarrass the Estate. Or maybe both.

Anyway, we’ve done a bit of digging. We’ve discovered that the Stody Estate received £295,929.01 from the Single Payment Scheme in 2014:

Stody SPS 2014 - Copy

75% of £295,929.01 is £221,946.75.

That’s a massive subsidy penalty! As far as we’re aware, this is the biggest ever civil penalty imposed for cross-compliance breaches in relation to raptor persecution crimes. Previously, the largest was £107,000 imposed on Glenogil Estate in 2008 following the discovery of 32 poisoned baits suspected of being used to target birds of prey (see here). Earlier this year, we blogged about the £66,000 subsidy penalty imposed on vicarious liability landowner Ninian Johnston Stewart, whose gamekeeper had been convicted of poisoning a buzzard (see here).

There may well have been other cases where a penalty greater than £221,946.75 has been imposed for cross-compliance breaches related to raptor persecution, but we’ve been unable to find any information. We’ve blogged previously (here) about why increased publicity is needed when these penalties are applied – the realistic threat of having thousands of pounds worth of subsidies removed from your business has got to be a far greater deterrent than the pathetically weak sanctions handed down in the criminal courts.

For this reason, over the next few months we intend to re-visit some other recent cases where a successful conviction has been secured for raptor persecution crimes and start asking some questions about whether those estates involved have also received a subsidy penalty (e.g. Kildrummy Estate, Cardross Estate for a start, and there are others).

There has previously been some discussion in the comments section of this blog about whether the new system for the Single Payment Scheme (replaced this year by the Basic Payment Scheme) would still allow for subsidy penalties for cross-compliance breaches relating to raptor persecution. Some readers thought the new system wouldn’t allow for penalties and other readers thought it would. It’s our understanding that the cross compliance rules for BPS in England still contain a Statutory Management Requirement (SMR) for Wild Birds (SMR2) stating that you must protect all wild birds, their eggs and their nests, so technically any recipient of BPS could still be fined for non-compliance with SMR2 if they were liable, vicariously or otherwise, for raptor persecution on their land.

However, the new system seems to be slightly different in Scotland where SMR2 states that you must protect all wild birds, their eggs and nests if you have land classified as a Special Protection Area. That could mean that a Scottish recipient of BPS could only be fined for breaching SMR2 if the breach took place in an SPA. If that interpretation is correct, it would exclude rather a lot of land. We’ll be seeking clarification from the Scottish Government about whether raptor persecution on non-SPA land would be considered a breach of the new SMR2.

A final word – thank you to all the blog readers who have exerted pressure on the RPA over the last year regarding the Stody Estate case; we know that a number of you have been involved. Had it not been for this sustained effort, the Stody Estate may well have escaped a penalty altogether, or perhaps been given a much smaller penalty. Well done!

Photo of some of the poisoned buzzards found at Stody Estate is by Guy Shorrock (RSPB Investigations)

Licences to kill buzzards were unlawfully refused, says High Court

buzzard 3The High Court has this morning ruled that Natural England acted unlawfully when it refused to issue licences to kill buzzards.

In 2013, Natural England issued licences to Northumberland gamekeeper Ricky McMorn, allowing him the right to destroy buzzard eggs and nests ‘to protect’ his pheasant shoots.

Later the same year, McMorn applied for further licences, this time to shoot 16 buzzards and 3 sparrowhawks. Natural England refused his application.

In 2014, McMorn submitted more applications, wanting to shoot ten buzzards ‘to prevent serious damage’ to his pheasant poults. Natural England refused his application again.

McMorn, financially supported by the National Gamekeepers’ Organisation, brought a judicial review against Natural England and claimed NE had acted unfairly and inconsistently when considering his licence applications.

The High Court judge, Mr Justice Ouseley, has agreed with McMorn’s case. He held:

(1)   Natural England had unlawfully operated an undisclosed policy about how buzzard applications were to be treated. Natural England’s undisclosed policy had been to require more factors to be proved and proved by far higher quality evidence than for other species, to require individual birds to be identified as predators with proof that only those would be controlled, and to require any suggestions it made to be carried out punctiliously on pain of refusal;

(2)   Natural England unlawfully took into account public opinion by applying a different and more demanding approach to the grant of a licence to kill buzzards than other species because public opinion is in part hostile to the grant of such licences;

(3)   Natural England unlawfully applied published policy inconsistently as between buzzards and other species. The substantial reason for the difference in approach was some hostile public opinion;

(4)   Natural England’s decision was unreasonable because it operated the derogation under the Birds Directive so as to render it excessively difficult to obtain a licence;

(5)   Natural England acted unfairly in failing to raise with the claimant its own technical assessor’s suggestion of a live capture licence instead of a licence to kill.

The full decision can be read here: Judicial review buzzard licence verdict Nov 2015

So what does this all mean? For sure, this ruling will encourage more gamekeepers to submit more applications to kill buzzards ‘to protect’ their pheasants. It doesn’t mean that all licence applications will be successful, as each case will still have to be assessed on its individual circumstances and all tests will still have to be met (e.g. has the gamekeeper done everything else in his/her power to solve the perceived problem?). Nevertheless, Natural England will no doubt be wary of appearing ‘unreasonable’ when assessing future applications. This is where things will get really interesting because there is still no scientific evidence to demonstrate that buzzards have a significant impact on pheasants. Indeed, even the game-shooting industry’s own science has shown the impact to be virtually negligible, with an average of only 1-2% of pheasant poults taken by birds of prey. There are also numerous alternative measures for reducing alleged predation that should be tried and tested before the ‘kill’ option is chosen, including diversionary feeding.

If, however, buzzard-killing licences are issued, this will pave the way for what is effectively a criminal’s charter. The game-keeping industry is rife with criminals who are not averse to breaking the law; we see it time and time again, particularly in relation to the illegal killing of raptors. Let’s say a gamekeeper successfully applies for a licence to shoot ten buzzards. What’s to stop him from shooting 50? Who will know whether he’s shot his permitted ten, or whether he’s shot 50? Who is going to supervise his buzzard-killing activities to ensure that he sticks to his allotted number? Nobody! If a member of the public sees him shooting a buzzard (a highly unlikely scenario anyway but let’s just go with it for now), and reports him to the police, the gamekeeper will simply wave his buzzard-killing licence at the investigating police officer and say, “Look Guv, I’m allowed to kill ten and this is only the third one I’ve shot this year”. The police officer will have no option but to withdraw and let him get on with killing as many buzzards as he likes because it’ll be virtually impossible to prove that the gamekeeper has acted illegally, unless of course the keeper is stupid enough to leave the shot buzzards lying around as evidence, but even then it’ll be impossible to show that that individual gamekeeper had shot all the dead birds – he’ll simply claim someone else did it and dumped them on his ground.

IMG_5013 (2) - CopyAs absurd as it is, the bottom line is that DEFRA (and thus Natural England, acting on DEFRA’s behalf), permits gamekeepers (even those with criminal convictions) to apply for licences to kill protected native species like the buzzard, to allow the wholesale slaughter of millions of non-native gamebirds like pheasants, just for fun. There’s something fundamentally askew with that logic, even if you’re a die-hard supporter of game-bird shooting. A recent analysis of the GWCT’s National Gamebag Census revealed that by 2011, approx 42 million pheasants and almost 9 million red-legged partridges were released annually into the British countryside, for ‘sport’ shooting. The impact on biodiversity of releasing 50 million non-native gamebirds hasn’t been formally assessed. The game-shooting industry should accept that if they’re releasing birds in such magnitude, they should expect losses. How many are killed on the roads? An educated guess would suggest it’s a far higher number than the known 1-2% lost to raptors. If the game-shooting industry can’t operate without accepting such losses (as they claim they can’t), then it’s pretty clear evidence that this industry is unsustainable and as such, has no future.

The National Gamekeepers’ Organisation response to today’s ruling can be read here

We’ll update this blog later today as more responses are published.

Photographs copyright RPS

UPDATE: 15th November 2015: There’s a fascinating blog on the legal issues of this case, written by a legal academic at a London barristers’ chambers – see here.

UPDATE: 19th November 2015: A response to the judgement from the Northern England Raptor Forum – see here.

Previous blogs on this issue:

12 Nov 2015: https://raptorpersecutionscotland.wordpress.com/2015/11/12/licences-to-kill-buzzards-judicial-review-decision-expected-tomorrow/

12 June 2015: https://raptorpersecutionscotland.wordpress.com/2015/06/12/judicial-review-underway-for-gamekeeper-who-wants-to-kill-buzzards/

25 Nov 2014: https://raptorpersecutionscotland.wordpress.com/2014/11/25/buzzard-licence-applicant-gets-high-court-approval-for-judicial-review/

1 Oct 2013: https://raptorpersecutionscotland.wordpress.com/2013/10/01/why-we-dont-trust-the-national-gamekeepers-organisation/ 

26 Sept 2013: https://raptorpersecutionscotland.wordpress.com/2013/09/26/buzzard-licence-applicant-tries-for-four-more-licences/

13 Aug 2013: https://raptorpersecutionscotland.wordpress.com/2013/08/13/natural-england-claims-release-of-buzzard-licence-info-not-in-public-interest/

20 June 2013: https://raptorpersecutionscotland.wordpress.com/2013/06/20/hand-in-of-buzzard-petition-today-at-holyrood/ 

5 June 2013: https://raptorpersecutionscotland.wordpress.com/2014/06/05/natural-england-says-no-to-buzzard-killing-licence/

5 June 2013: https://raptorpersecutionscotland.wordpress.com/2013/06/05/surely-the-buzzard-licence-applicant-doesnt-have-prior-convictions-for-poison-offences/

3 June 2013: https://raptorpersecutionscotland.wordpress.com/2013/06/03/buzzard-licensing-turning-up-the-heat/

30 May 2013: https://raptorpersecutionscotland.wordpress.com/2013/05/30/two-important-questions-to-ask-about-the-buzzard-licence-applicant/

25 May 2013: https://raptorpersecutionscotland.wordpress.com/2013/05/25/new-petition-snh-do-not-licence-buzzard-culling-in-scotland/

23 May 2013: https://raptorpersecutionscotland.wordpress.com/2013/05/23/natural-england-issues-licence-to-destroy-buzzard-eggs-nests-to-protect-pheasants/

10 Jan 2013: https://raptorpersecutionscotland.wordpress.com/2013/01/10/the-buzzard-blame-game/

13 June 2012: https://raptorpersecutionscotland.wordpress.com/2012/06/13/buzzardgate-aftermath/

30 May 2012: https://raptorpersecutionscotland.wordpress.com/2012/05/30/defra-backs-down-on-buzzard-management-trial/

24 May 2012: https://raptorpersecutionscotland.wordpress.com/2012/05/24/defra-responds-to-public-outcry-over-buzzard-management-trial/

23 May 2012: https://raptorpersecutionscotland.wordpress.com/2012/05/23/rspb-response-to-defras-proposed-illegal-buzzard-trial/

21 May 2012: https://raptorpersecutionscotland.wordpress.com/2012/05/21/buzzard-management-trial-gets-govt-approval-and-375k-funding/

Licences to kill buzzards: judicial review decision expected tomorrow

The long-running legal battle about Natural England’s refusal to issue a gamekeeper with licences to kill buzzards and sparrowhawks to ‘protect’ his pheasants is due to reach a climax tomorrow.

Northumberland gamekeeper, Ricky McMorn, backed by financial support from the National Gamekeepers’ Organisation, brought a judicial review to challenge Natural England’s decision. The judicial review took place in the High Court (London) over three days in June 2015 and the decision was deferred. We understand the decision is due to be announced tomorrow.

A quick re-cap:

In 2013, Natural England secretly provided Mr McMorn with a licence to destroy buzzard eggs and nests in order ‘to protect a pheasant shoot’ in Northumberland.

Later in 2013, McMorn submitted four more licence applications to Natural England, this time to shoot 16 buzzards and 3 sparrowhawks. Natural England rejected the application.

In 2014, McMorn submitted another licence application, this time to shoot ten buzzards “to prevent serious damage” to pheasant poults. Natural England rejected the application.

We’ve blogged extensively about this issue (see here for a summary).

It’s worth noting that the judicial review concerns whether Natural England acted fairly when rejecting McMorn’s licence applications. McMorn has argued that Natural England has unlawfully acted inconsistently in the way it has dealt with the licensing of buzzards as compared with other species of bird and that Natural England has been unlawfully influenced by public opinion. He has also argued that it was unreasonable for Natural England Directors repeatedly to reverse the recommendations of Natural England’s specialist scientific advisers that a licence should be granted.

The review is NOT about whether DEFRA/Natural England should entertain a licence application from a gamekeeper with a previous conviction for possession of banned poisons (apparently that’s not a problem, according to DEFRA/Natural England), nor whether the National Gamekeepers’ Organisation should expel a member with a conviction for possession of a banned poison (apparently not, according to the NGO), and nor whether there’s any scientific evidence to demonstrate that buzzards (and sparrowhawks) have a substantially detrimental effect on game bird shoots (there isn’t any evidence).

Tomorrow’s long-awaited decision will no doubt be interesting, whichever way it goes.

Scottish gamekeeper convicted of snaring offences on estate in Aberdeenshire

George Allan, 61, a Scottish gamekeeper working on an estate in Aberdeenshire, has been convicted of two snaring offences. He was sentenced yesterday at Aberdeen Sheriff Court and received a £600 fine.

A press release about this conviction is available on the SSPCA website here.

According to our local sources, Allan was a full time gamekeeper employed by the Easter Skene Shooting Syndicate on land rented to them by Dunecht Estate. There is no suggestion that Dunecht Estate had any knowledge of what Allan was up to.

This, clearly, is not a raptor persecution case, so some people (people who don’t like this blog) will no doubt query why we’re blogging about it. There are a few reasons why:

  1. This is yet further evidence that some gamekeepers are not the ‘law-abiding guardians of the countryside and friends to all animals’ that we’re so frequently told they are. This gamekeeper had completed the obligatory snaring training course (a legal requirement for anyone who wishes to set snares in Scotland) and yet, even though he had passed this course and so presumably knew the laws relating to snare-use, he chose to ignore them.
  2. He pled guilty to two snaring offences. There is no mention of him being convicted for causing unnecessary suffering to a badger. There is no doubt whatsoever that this badger suffered – it was electrocuted (from the electric fence) and, judging by the graphic photograph, it was more than likely asphyxiated too. So why wasn’t there a welfare charge against this keeper? Did the Crown accept a plea bargain and decide to just go for the snaring offences? As there was no conviction relating to the welfare of the badger, does this mean that this badger-related wildlife crime will not feature in the Government’s annual statistics on recorded badger crime?
  3. In order to secure the snaring convictions, the SSPCA used some advanced techniques to find supporting evidence. For the first time, they used forensic entomology to determine the age of the fly larvae present on the badger, to show that the badger had been in that snare for longer than the 24 hour period ‘allowed’ by the snaring regulations. Further evidence, as if it was needed (it isn’t), that the SSPCA will make extraordinary efforts to investigate wildlife crime offences. Why is it taking Environment Minister Dr Aileen McLeod so very long to make a decision about increasing the investigatory powers of this organisation? It’s now been one year and two months since the public consultation ended on this issue. These SSPCA investigators are experts in the field and know how to secure evidence that will stand up to legal scrutiny. It’s an absolute no-brainer that they should be given increased investigatory powers if the Scottish Government is committed to cracking down on wildlife crime, as it says it is.
  4. We’re interested to know if criminal gamekeeper George Allan is/was a member of the Scottish Gamekeepers’ Association. Emails to: info@scottishgamekeepers.co.uk

badger pic 1 - Copy

Vicarious liability prosecution: Andrew Duncan (Newlands Estate) part 2

Back in August we blogged (here) about a vicarious liability prosecution against Andrew Walter Bryce Duncan of Newlands Estate, Dumfriesshire.

The prosecution against Mr Duncan began after the conviction in August of Newlands Estate gamekeeper William (Billy) Dick, who was found guilty of illegally killing a buzzard by striking it with rocks and repeatedly stamping on it (see here). Dick was sentenced in September and received a £2,000 fine (here). It also emerged that the Newlands Estate was a member of Scottish Land & Estates (SLE) and an accredited member of SLE’s ‘Wildlife Estates Scotland’ initiative (see here).

The vicarious liability prosecution against Duncan continued last week with an intermediate diet at Dumfries Sheriff Court. Prior to that hearing, a provisional trial date had been set for 23rd November 2015.

However, at last week’s hearing the provisional trial date (November) was dumped and now a notional trial diet has been set for 18th January 2016. A notional trial diet just means that a formal trial date is likely to be set at that hearing.

So why the delay in the case against Mr Duncan? It may be because the gamekeeper, Billy Dick, is rumoured to be appealing his conviction, which if upheld could impact on the allegations against Mr Duncan. Although, confusingly, a vicarious liability prosecution is not dependent on the conviction of the person who committed the primary offence, but 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 (see here).

Clear? As mud. Guess we’ll have to wait and see what happens with the gamekeeper’s appeal.

No vicarious liability prosecution for Kildrummy Estate

Last month we blogged about whether anyone from the Kildrummy Estate in Aberdeenshire would face a vicarious liability prosecution for the criminal actions of Kildrummy gamekeeper George Mutch.

Mutch, as you may recall, was convicted in December 2014 for various wildlife crimes he committed on the Kildrummy Estate in August and September 2012, including the trapping of a goshawk which he then beat to death with a stick (see here). In January 2015, Mutch was sentenced to four months in prison; a landmark custodial sentence for a raptor-killing gamekeeper (see here).

In September 2015 we noticed that time was running out for a subsequent potential vicarious liability prosecution because after three years from the date the crime was committed, the case becomes ‘time-barred’ and a prosecution is no longer possible. We decided to ask the Crown Office for information about any pending vicarious liability prosecution (see here) but to be honest, we weren’t expecting much of a response.

However, the Crown Office has surprised us by issuing the following unusually open response:

“Wildlife and environmental crime is a priority for the Crown Office and Procurator Fiscal Service. Such cases are investigated and prosecuted by our specialist Wildlife and Environmental Crime Unit, WECU. A report was submitted by the police against George Mutch alleging the unlawful taking and killing of birds of prey by him at Kildrummy Estate, Aberdeenshire in dates in August and September 2012 and considered by WECU. Following further investigation, a criminal prosecution was raised. Mr Mutch pled not guilty but was convicted of the offences after trial and in January 2015 he was sentenced to four months imprisonment.

Despite further investigations including investigations which focused on establishing vicarious liability, no-one else has been reported to COPFS in relation to the events which took place in Kildrummy Estate in 2012 and accordingly, no further prosecution, including any prosecution for a vicarious liability offence, has taken place“.

FAILSo, just to be clear, a vicarious liability prosecution is not underway, and as this case has now become time-barred (because the offences were committed in Aug/Sept 2012), as we understand it there won’t be a vicarious liability prosecution for this case in the future. Massive fail.

This will be a huge disappointment to all those who have been following this particular case, and especially for those who worked so hard to secure the initial conviction of Mutch. But perhaps more importantly, this is yet further evidence that the new and much-lauded Government measures to tackle raptor persecution are simply not working as well as they should be.

So what went wrong, and what are the potential ramifications for future vicarious liability prosecutions?

Let’s go back to that statement from the Crown Office, and particularly the first part of the sentence in the last paragraph:

“Despite further investigations including investigations which focused on establishing vicarious liability, no-one else has been reported to COPFS…..”

It’s clear from this that attempts were made to identify somebody for a vicarious liability prosecution. There are at least three possible explanations for what happened next:

  1. An individual was identified but they were able to show that they had exercised ‘due diligence‘ in that they had written records demonstrating that they did not know the offences were being committed AND they had taken all reasonable steps AND exercised all due diligence to prevent the offences being committed. This is possible, of course, but in this particular case is fairly implausible given that during the trial, Mutch was asked, quite pointedly by the Fiscal Tom Dysart, whether he had received training [from his employer/supervisor] for the use of his traps, to which Mutch had replied ‘No’. Given Mutch’s claim, if his employer/supervisor had subsequently claimed due diligence as a defence to a vicarious liability prosecution, the case should have been heard in court where the Fiscal could challenge the veracity of the employer’s/supervisor’s claims.
  2. Police Scotland ran out of time for their investigation. This is plausible, seeing as Mutch was only convicted in December 2014 leaving just nine months before the case became time-barred. Having said that, if this is what happened it would reflect badly on Police Scotland because they should have been thinking about, and planning for, a potential vicarious liability prosecution way back in 2012 when they were first made aware of these crimes. The legislation enabling vicarious liability prosecutions was enacted on 1st January 2012, to much public fanfare, so the police can hardly claim they didn’t know about it at the time they were initially investigating these crimes in September 2012.
  3. It was impossible for Police Scotland to identify a suspect for a potential vicarious liability prosecution due to the complexity of ownership at Kildrummy Estate. On the one hand, this seems a pretty implausible explanation. Mutch, surely, knew who employed him and who paid his wages. But on the other hand, this explanation could be highly plausible given the convoluted information about ownership of the Kildrummy Estate as revealed by Andy Wightman’s excellent investigation earlier this year – see here. If this is indeed what happened in this case, it has far-reaching implications for future vicarious liability prosecutions. All an estate owner has to do to avoid a potential prosecution is register his/her land in an offshore tax haven because then the landowner becomes untraceable. Genius. For a fascinating and detailed explanation of how these tax havens work, and how the Scottish Government has so far refused to legislate against them despite recommendations, have a read of Andy’s latest blog – here.

Given the faith that the Environment Minister has placed in the use of vicarious liability prosecutions as an effective tool to tackle illegal raptor persecution (and thus sees no need to introduce further measures), and given the failure to prosecute in this particular case, as well as the huge public interest, an explanation is required about what did (or didn’t) happen here. The Crown Office has said it didn’t prosecute because Police Scotland didn’t report anybody for a potential vicarious liability prosecution. So, the next port of call for an explanation has to be Police Scotland. They can’t use their usual get out clause of saying ‘Sorry, can’t comment, it’s a live investigation’ because this case is no longer live. It’s very much dead in the water. So will they show some transparency and accountability here? Let’s hope so.

To ask Assistant Chief Constable Malcolm Graham why nobody was reported for a vicarious liability prosecution in relation to raptor persecution crimes at Kildrummy Estate in 2012, please email: ACC.CrimeMCPP@scotland.pnn.police.uk

Stody Estate subsidy penalties: another update

IMG_4752 (2) - CopyA year ago, gamekeeper Allen Lambert was convicted of a series of wildlife crime offences on the Stody Estate in Norfolk, including the mass poisoning of birds of prey (10 buzzards and one sparrowhawk) which had been found dead on the estate in April 2013 (see here and here).

We found out that the Stody Estate had received millions of pounds worth of agricultural subsidies (i.e. money given to them from our taxes to help them farm on the condition they look after the wildlife and wildlife habitats under their management) and we wanted to find out whether the Estate would now face a financial penalty in the form of a reduction in their subsidies for what was a very serious breach of the cross-compliance regulations.

One year later and we’re still trying to find out.

In October 2014, the Rural Payments Agency (RPA) told us they “would consider action against Stody Estate“, although one of our blog readers was told, “there is no investigation ongoing” (see here).

In December 2014, one of our blog readers contacted the RPA again to ask for an update. The RPA responded in January 2015 by saying “We are unable to provide you with any meaningful response as we do not hold any information that answers your questions” (see here).

In July 2015, we again wrote to the RPA to ask whether they had imposed a penalty on Stody Estate. We were told that as the convicted gamekeeper wasn’t the actual subsidy recipient, the RPA was trying to determine whether there was “a link” between the convicted gamekeeper and the subsidy recipient (i.e. his employer) and if so, whether the recipient (Stody Estate) could be considered liable for the actions of the gamekeeper (see here). Amazing.

As the one-year anniversary of the gamekeeper’s conviction approached, in September 2015 we wrote to the RPA again to see whether they’d now worked out “a link” between the convicted employee and his employer. Last week they responded with this:

“The Rural Payments Agency (RPA) has notified the Stody Estate in Norfolk that a cross compliance breach occurred, as [sic] result of the actions of their gamekeeper. This is because the estate is vicariously liable for the actions of their employees. Under European cross compliance rules, the RPA is obliged to follow-up reports of cross compliance breaches brought to its attention. The rates of applicable reductions are explained in the scheme rules“.

So, the inefficient RPA has taken a year to decide that there was a cross compliance breach, but we still don’t know whether a financial penalty has been imposed, and if it has, what its value is.

According to the RPA’s ‘scheme rules’, cross compliance breaches can be categorised  as either ‘negligible’ or ‘intentional’, and the severity of the penalty is dependent on this.

For negligible non-compliance (falls below the standard of care expected of a competent claimant) subsidy payment is normally reduced by 3% but could range from 1-5% depending on the extent, severity, re-occurrence and permanence of the non-compliance.

For intentional non-compliance, payments will normally be reduced by 20%, but may be reduced to 15% or increased to 100% depending on the extent, severity, re-occurrence and permanence of the non-compliance.

What do you think? Is laying out banned poisons that kill 11 raptors a negligible or intentional non-compliance?

Given that we don’t know how the RPA will determine if the breaches were negligible or intentional, and given that we don’t know how much of our money was awarded to the Stody Estate in 2013 (the year the breaches occurred), although judging by the amounts they received between 2004-2012 it was probably a considerable sum (see here), it’s difficult for us to establish even a rough guesstimate of what the penalty might be, and that’s assuming that the RPA has decided a penalty is warranted.

So, we’ve written, again, to the RPA to ask whether a penalty has been imposed (and if not, why not) and if it has been imposed, how much is it?

Case against gamekeeper William Curr, Glenogil Estate: part 3

Glenogil sign RPSCopyCriminal proceedings continued yesterday against Scottish gamekeeper William Curr of Glenogil Estate in the Angus Glens.

Curr, 22, is accused of several wildlife crimes alleged to have taken place on the Glenogil Estate in August and September 2014.

An intermediate diet has been set for 19th January 2016 and a preliminary trial date of 9th February 2016.

Previous blogs on this case here and here

The gift of grouse: spectacular propaganda from the Angus Glens

Gift of GrouseWe love it when the grouse shooting community produces its propaganda pieces to spoon-feed to the (sym)pathetic right wing elements of the national press. It’s usually a masterclass in foot-shooting and provides us with ample material for a good laugh.

Take this month’s latest offering –  a published, commissioned report from the University of the Highlands & Islands:

‘Grouse Shooting, Moorland Management and Local Communities: Community Perceptions and Socio-Economic Impacts of Moorland Management and Grouse Shooting in the Monadhliaths and Angus Glens‘

and a video produced by the Angus Glens Moorland Group (basically all the gamekeepers that work there) entitled:

‘The Untold Story: Driven Grouse Shooting’.

The publication of these two pieces was celebrated at a Parliamentary reception last week (see here) hosted by Fergus Ewing MSP, Minister for Business, Energy and Tourism (a long-standing supporter of the Scottish Gamekeepers’ Association) and attended by gamekeepers and luminaries from the grouse shooting industry such as Doug McAdam from Scottish Land & Estates.

The report mostly suggests that there is great support for grouse moor management and all its ‘benefits’, from within the two communities surveyed. We’re not going to say very much about these findings at the moment other than to say that we are aware that someone has been analysing the survey questionnaire data and has discovered some fundamental flaws that basically render the report’s findings obsolete. We’ll return to this once the analysis has been completed. The report can be downloaded here: Grouse Shooting Moorland Management and Local Communities_2015

What we do want to blog about now is the hilarious video produced by the Angus Glens gamekeepers. This video (watch it here) was first published on the Inglorious 12th, timed to coincide with the opening of the grouse shooting season. It formed part of a new campaign called ‘The Gift of Grouse’, which is a one-year propaganda offensive, heavily promoted (and maybe even funded) by Scottish Land & Estates, and others, aimed at cleaning up the media image of the grouse shooting industry. Check out their website here.

For some reason, the video has now been re-launched this month, perhaps to coincide with the publication of the commissioned report. Whatever, that doesn’t really matter. This video really is a gift and an almighty own-goal.

You would think that if the grouse-shooting industry wanted to portray an image of lawful, environmentally-sensitive management, that they’d choose to focus on an area that wasn’t notorious as a massive wildlife crime scene, wouldn’t you? Well, apparently not.

This video is brilliant. It includes interviews with head gamekeepers from five grouse-shooting estates in the Angus Glens; some of these estate names will be very familiar to regular readers of this blog. The interviewees are: Jason Clamp (Millden Estate), Garry MacLennan (Invermark Estate), Martin Taylor (Glenlethnot Estate), Danny Lawson (Glenogil Estate) and Bruce Cooper (Glenprosen Estate). [Incidentally, one of these head keepers shares his name with a gamekeeper who was formerly employed on Skibo Estate in 2010 when three poisoned golden eagles were found poisoned. What an amazing coincidence. No prosecution for poisoning those eagles, natch, although the sporting manager was done for possession of a massive stash of banned Carbofuran].

The video provides a heart-warming narrative of the daily lives of gamekeepers in the Angus Glens, complete with a soothing musical backing track, where the keepers are keen to explain how they care for the welfare of all the wildlife in the Glens and how the emphasis is no longer on just the grouse, apparently.

Jason Clamp (Millden) says: “We’re not looking for massive bags of grouse” and “We’re not looking to kill thousands of grouse“.

That’s an odd statement coming from the head keeper of perhaps one of the most intensively-managed grouse moors in the area. According to the Millden Estate sales brochures (2010 and 2011) great emphasis is placed on the record number of grouse that have been killed / are available to be killed and this is a prime selling point. Record bag sizes are also apparently the main reason the estate owner decided to withdraw his estate from sale in 2011 (see here).

We’re also told by Garry MacLennan (Invermark) that the Angus Glens are great for raptors (ahem – see below) and the video bizarrely cuts to show what looks remarkably like a Gyr/Saker hybrid falconry bird….whatever it is, it certainly isn’t a native species and it certainly isn’t a wild bird living in those Glens.

Probably the most amusing thing about this video (and there is an awful lot to laugh at) is the title: ‘The Untold Story’. Oh, the irony.

Here are some of the untold bits of the untold story that, unsurprisingly, don’t feature in this film:

Known raptor persecution incidents in the Angus Glens 2004-2014 – 

2004 May, near Edzell: long-eared owl and two short-eared owls starved to death in crow cage trap.  No prosecution.

2004 May, Invermark Estate: peregrine nest destroyed. No prosecution.

2006 March, Glenogil Estate: poisoned rabbit bait (Carbofuran). No prosecution.

2006 April, Easter Ogil: poisoned buzzard (Alphachloralose). No prosecution.

2006 April, Easter Ogil: poisoned tawny owl (Alphachloralose). No prosecution.

2006 May, Glenogil Estate: poisoned rabbit bait (Carbofuran). No prosecution.

2006 June, Glenogil Estate: poisoned woodpigeon bait (Carbofuran). No prosecution.

2006 June, Glenogil Estate: Traces of Carbofuran found in estate vehicles & on equipment during police search. No prosecution. Estate owner had £107k withdrawn from his farm subsidy payments. This was being appealed, but it is not known how this was resolved.

2006 July, Millden Estate; poisoned sheepdog (Lindane). No prosecution.

2007 November, Glenogil Estate: Disappearance of radio-tagged white-tailed eagle ‘Bird N’ coincides with tip off to police that bird been shot. No further transmissions or sightings of the bird.

2008 May, ‘Nr Noranside’: poisoned white-tailed eagle ‘White G’ (Carbofuran, Isophenfos, Bendiocarb). No prosecution.

2008 May, ‘Nr Noranside’: poisoned buzzard (Bendiocarb). No prosecution.

2008 May, ‘Nr Noranside’: poisoned mountain hare bait (Carbofuran, Isophenfos, Bendiocarb). No prosecution.

2008 May, Glenogil Estate: 32 x poisoned meat baits on fenceposts (Carbofuran, Isophenfos, Bendiocarb). No prosecution.

2008 October, ‘Glenogil Estate: poisoned meat bait on fencepost (Carbofuran). No prosecution.

2009 March, Glenogil Estate: poisoned buzzard (Carbofuran). No prosecution.

2009 March, Glenogil Estate: poisoned buzzard (Carbofuran). No prosecution.

2009 April, Millden Estate: poisoned buzzard (Alphachloralose). No prosecution.

2009 July, Millden Estate: poisoned golden eagle ‘Alma’ (Carbofuran). No prosecution.

2009 August, Glenogil Estate: poisoned white-tailed eagle “89” (Carbofuran). No prosecution.

2010 May, ‘Nr Noranside’: poisoned red kite (Carbofuran). No prosecution.

2010 September, Glenogil Estate: poisoned buzzard (Chloralose). No prosecution.

2010 October, Glenogil Estate: poisoned buzzard (Carbofuran). No prosecution.

2010 October, Glenogil Estate: poisoned pigeon bait (Carbofuran). No prosecution.

2010 October, Glenogil Estate: poisoned pigeon bait (Carbofuran). No prosecution.

2011 February, Airlie Estate: buzzard caught in illegal crow trap. (see below)

2011 March, Airlie Estate: 3 x buzzard caught in illegal crow trap. Prosecution (!) but dropped after statement from suspect given to SSPCA deemed inadmissible.

2011 April, Millden Estate: shot buzzard. No prosecution.

2012 April, ‘Nr Noranside’: Remains of buzzard found beside pheasant pen. Suspicious death.

2011 June, Rottal & Tarabuckle Estate: dead kestrel inside crow cage trap. No prosecution.

2012 February, ‘Nr Edzell’: spring-trapped buzzard. No prosecution.

2012 February, ‘Nr Bridgend’: remains of buzzard found under a rock. Suspicious death.

2012 May, Millden Estate: satellite-tagged golden eagle seemingly caught in spring trap, then apparently uplifted overnight and dumped on Deeside with two broken legs & left to die. No prosecution.

2012 May, Glen Esk: disappearance of sat-tagged red kite. No further transmissions or sightings of bird.

2013 January, Invermark Estate: white-tailed eagle nest tree felled. No prosecution.

2013 November, Glen Lethnot: poisoned golden eagle ‘Fearnan’. No prosecution.

2014 October, Nathro: shot buzzard. Prosecution? Unknown.

There’s also no mention of the massacre of mountain hares known to take place across the Angus Glens. This photo shows a pile of slaughtered hares photographed on Glenogil Estate in 2012:

mountain-hare-cull-angus-glens-large - Copy

And no mention of the “savaged, stripped and blasted land” as portrayed in this photograph of Millden Estate in 2014 (by Chris Townsend):

Interestingly, a Parliamentary Motion has now been lodged (Jamie McGrigor, Tory) congratulating the Angus Glens gamekeepers on their video and welcoming the Gift of Grouse initiative. The motion hasn’t attracted a lot of support although some of the signatories are surprising, to say the least (see here).