Tag: gamekeeper

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)

New study suggests that killing crows is mostly pointless, most of the time

Yesterday saw the publication of a new scientific research paper entitled: A review of the impacts of corvids on bird productivity and abundance. The paper is available for free download here.

If you want to skip over the technical details, the authors have helpfully issued a press release which provides a more general overview for the more casual reader. It reads as follows:

A MURDER OF CROWS?

They steal, raid nests, and keep the company of witches. But the unpopular crow may not be as big a menace as people think.

A new study has found that crows – along with their avian cousins the magpie and the raven – have surprisingly little impact on the abundance of other bird species.

Collectively known as corvids, these birds are in fact being menaced by mankind in the mistaken belief that removing them is good for conservation.

The new study was led by researchers at the University of Cape Town and published this week in the leading ornithological journal Ibis. It found that in the vast majority of cases (82 percent), corvids had no impact at all on their potential prey species.

“Many nature lovers have been distressed to witness a crow or magpie raiding the nests of their beloved garden songbirds, stealing their eggs or eating their defenceless chicks,” said study co-author Dr Arjun Amar from the Percy FitzPatrick Institute for Ornithology. “Although this predation is entirely natural, these observations can be upsetting to witness and often leave people wondering if these predators might be reducing bird numbers.”

“However, our global review suggests that we should be cautious before jumping to conclusions over the impacts these species may have. Just because a predator eats something occasionally does not always mean that they have an impact,” Dr Amar said.

The study, the first of its kind, reviewed all published evidence on whether predation by corvids actually reduces the overall breeding performance of birds or, more importantly from a conservation perspective, reduces their numbers. Data were collated from 42 studies of corvid predation conducted across the globe over the last sixty years.

Not only were corvids unlikely to have any impact on their potential prey species, if there was an impact it most often affected the breeding success of the prey species rather their subsequent numbers. Half of cases found that corvids reduced breeding success whereas less than 10% of cases found that they reduced prey numbers in the long term.

“These results have big implications for the likely benefits of corvid control,” Dr Amar said. “They suggest that killing corvids will be of most benefit to those interested in gamebird shooting rather than conservationists.” He added: “Bird hunters are usually most interested in increasing numbers of birds available to shoot immediately after the breeding season and this appears to be where corvids have most impact”. “Conservationists on the other hand, are usually interested in increasing a species population size and our results suggest that only in a very few cases did corvids have an influence on this aspect of their prey,” Dr Amar said.

The review analysed the impact of six corvid species on a variety of prey species including gamebirds, songbirds, waders, herons, cranes, sea birds, waterfowl and raptors. The 42 studies incorporated into the review included 326 cases of corvid – bird prey interaction Most of the data stemmed from field research in the UK, France and the United States. The impacts were determined partly by comparing bird counts before and after corvids were either removed or their numbers reduced.

The review also found large differences between the impacts of crows, historically considered the most ‘cunning’ corvid, and magpies which are sometimes killed by home owners hoping to protect songbirds in their gardens. Crow species were six times more likely to have an impact on bird prey species than Magpies.

Mistaken assumptions about corvid predation were possibly explained by the birds’ diurnal nature and the fact that they are conspicuous nest predators: “Their importance in prey population regulation is often assumed prior to any assessment of the evidence,” the study warned.

Chrissie Madden, the lead author on the paper, hoped that the review would challenge the perception that all corvids were bad, thereby preventing needless killing: “Our results suggest that this is a mistaken belief and that generally speaking people would be wasting their time killing corvids to increase bird numbers”.

“Overall therefore, our study points to the fact that we are often too quick to jump to the conclusion that crows and magpies may be the cause of bird population declines,” she said.

END

SNH logo 2The paper itself is an interesting bit of science, but of more interest (to us at least) is the potential application of the research results. Basically, this review paper has shown that in the vast majority of cases, corvids (including crows and ravens) have little effect on their prey populations, and thus this raises an important question about the validity (and legality) of Government-issued General Licences which allow the mass killing of corvids, supposedly for the purposes of ‘conserving wild birds’.

General Licences have long been an issue of concern to conservationists, and we have blogged about this a lot (e.g. see here & scroll down through the posts and links). General Licences are routinely used by gamekeepers and land managers for the largely unregulated practice of killing so-called ‘pest’ species, especially corvids, in Larsen traps, clam traps and crow cage traps, or by shooting them. However, General Licences are not permitted to be used to kill ‘pest’ species for the purposes of protecting surplus stocks of gamebirds, even though that is exactly what gamekeepers have been doing, although they don’t admit to that – they simply claim they are ‘controlling vermin’ to protect wild birds such as waders.

How will SNH deal with the results of this latest study, given the overwhelming evidence that corvid predation isn’t having a significant impact on wild bird species in the majority of cases?

Don’t expect a quick response from SNH. We are still waiting for them to deal with other concerns that have been raised about the use of General Licences, some of which were raised in a publication dating back 15 years:

dick-stronach-1999-use-abuse-misuse-of-crow-traps

Interestingly, SNH has recently announced that their suite of 2015 General Licences will shortly (this week) be published on their website, WITHOUT conducting a public consultation and WITHOUT any substantive changes to their 2014 licences. Robbie Kernahan (SNH licensing dept) said:

“From our previous consultations and discussions on the GL suite, I think we have a good understanding of the key issues and your outstanding concerns relating to General Licences“.

So that’s ok then. SNH understands the key issues and concerns but has decided not to address them. Brilliant.

Although, they are apparently addressing one aspect of trap use and have been conducting a questionnaire survey of trap-users (see here). As we blogged at the time, asking trap-users for a truthful account of their activities is, frankly, ridiculous. We all saw quite graphically last week, with the conviction of gamekeeper George Mutch, how some of these trap-users are operating.

We’ll be re-visiting this topic in the New Year.

Scottish gamekeeper George Mutch: guilty on all 4 counts

This is an historic day in the battle against the raptor killers.

Scottish gamekeeper George Mutch, 48, of Kildrummy Estate, Aberdeenshire, has been found guilty on all four charges, including the illegal killing of a trapped goshawk, which he clubbed to death, and the taking of two other birds, a goshawk and a buzzard.

No-one will be surprised to learn that yet another gamekeeper has been convicted of illegally killing raptors; Mutch is the 28th gamekeeper to be convicted of wildlife crime in the last three years alone (see here). The big surprise in this case has been the Sheriff’s ruling that the covert video footage, filmed by RSPB Scotland, was admissible evidence. This alone was a significant ‘win’ for those of us who have been exasperated, for years, that this type of evidence has been consistently rejected by the Crown Office, thus allowing The Untouchables to be, well, untouchable. Especially when covert video surveillance has been consistently used in England to secure convictions in similar cases.

So what prompted the change of heart? Undoubtedly, the efforts of former Environment Minister Paul Wheelhouse, who said in July 2013 that he would be urging the Crown Office to consider the use of video footage in cases against those committing wildlife crime.

According to our journalist contacts, COPFS prosecutor Tom Dysart’s performance in court was dynamite, pressing for the admissibility of the video footage and then later shredding the evidence of defence witness Hugo Straker from the GWCT. He also then shredded the evidence of Mutch, resulting in the Sheriff saying that Mutch’s evidence was ‘not credible’ and that his explanation for killing the goshawk (because it was injured) was “a convenient lie”. We never thought we’d say this but Tom Dysart apparently played a blinder. Long may it continue.

The video nasty in this case, showing Mutch trapping and then clubbing the goshawk to death, can be viewed here. WARNING – CONTAINS DISTURBING IMAGES.

Sheriff McPartlin will pass sentence in January and has already said he is considering a custodial sentence. We’ll see.

Meanwhile, the SGA has put out a fascinating press statement. It turns out that Mutch was an SGA member and apparently “his membership of the SGA has been in suspension for some time, until the outcome of the case was known. Now that it is, he will no longer be a member of the SGA“.

That’s interesting. Mutch committed his crimes in 2012, but according to the SGA’s 2013 silent auction booklet, the SGA accepted a fundraising donation from Kildrummy Estate, with George Mutch listed as the contact:

SGA Silent Auction Booklet 2013 (see Lot #17)

So not only was the SGA still accepting donations from this estate the year after the crimes were committed, but it’s also apparent that Mutch was still employed by Kildrummy Estate after he’d committed those crimes. Fascinating.

The SGA’s statement continues:

“On the separate, theoretical, issue of the use of covert video evidence, it is clear to us that it should not be acceptable for individuals from one particular profession to be under surveillance in their place of work, without their knowledge, and to have their right to liberty and privacy from such encroachment, removed.

If this is to be the direction of travel, it is not right for Scottish Government to deny people whose livelihoods come under pressure due to the activity of certain species or animals, recourse to a legal solution to solve that conflict.

Currently, there are no legal or scientific means by which people can protect their investments or jobs in situations exacerbated by conflicts with species. Scottish Government has never granted anyone from the game industry a licence to protect investments, which they have the power to do, although it does grant licences routinely to other industries. This, in our view, is a barrier to justice and does nothing to prevent wildlife crime.

In a society supposedly enlightened when it comes to tackling this issue, we believe this is untenable and we will be seeking talks with Scottish Government so that this anomaly is finally closed, removing once and for all the rationale for people to commit wildlife crime.”

So, the SGA doesn’t agree with the use of covert video footage to convict those within the gamekeeping industry of wildlife crime. Why ever not? Surely, they’d be thrilled to root out those individuals who are causing so much damage to the industry’s reputation? By their reaction, you’d be forgiven for thinking that that’s not the case at all. And as Mutch was an SGA member when he committed his crimes, what does that tell us about the SGA’s ability to provide adequate training for its members? They even admit that Mutch is the 5th SGA member in three years to have been convicted!

And then they go into the usual whine about how wildlife crime would stop if only the Government would issue licences to allow the killing of protected species, (although they don’t actually mention the word ‘killing’ – instead they say “licence to protect investments”). The bottom line is, if the leisure industry of killing millions of gamebirds is reliant on the killing of protected species then that industry has had its day.

This case has taken over two years to conclude. We had thought that because the crimes were committed in 2012, before the vicarious legislation was enacted (1st Jan 2013), that there wouldn’t be a vicarious liability prosecution because we didn’t think it could be applied retrospectively. However, one of our legal friends has since advised us that there still may be a vicarious liability prosecution as long as it’s lodged within the three-year time frame from the date the offence was committed (August 2012). So potentially then, if the Crown deems it appropriate and they get it in before August 2015, we could have another vicarious liability prosecution on the cards.

For now though, let’s just enjoy the successful conviction of another raptor-killing gamekeeper, and acknowledge the work of the people who got it to this stage. Huge congratulations to the RSPB Scotland Investigations Team, the SSPCA, Police Scotland, COPFS, Sheriff McPartlin and former Environment Minister Paul Wheelhouse. Real partnership working at its best.

Media coverage:

RSPB press release and video here

BBC news here

STV news here (this one is amusing!)

Reporting Scotland here [6.25 – 8.40] (this film only available for 24 hrs)

Herald here

George Mutch trial: sheriff rules video evidence admissible

Sheriff Noel McPartlin, presiding over the trial of gamekeeper George Mutch (Kildrummy Estate, Aberdeenshire) yesterday ruled that the RSPB’s video footage is admissible.

His ruling was based on his view that the footage in question was a by-product of a legitimate survey (in to the use of crow cage traps) rather than the camera being placed with the sole intention of filming someone committing a criminal act.

This ruling doesn’t mean that covert video footage will be acceptable evidence in all criminal proceedings; each case will have to be considered based on its specific circumstances. But in this trial at least, the video evidence has been ruled lawful.

That is a big result. More often than not, this sort of evidence has not been accepted in Scotland, although it is routinely accepted in England. Credit is due to the Fiscal, Tom Dysart, and especially to former Environment Minister Paul Wheelhouse for all the political pressure he piled on to the Crown regarding the use of video evidence in wildlife crime prosecutions.

After two days of legal wrangling and following Sheriff McPartlin’s decision, Mutch’s trial got underway ‘properly’ yesterday, i.e. the evidence (video) was shown in court.

One recording filmed on August 14th 2012 showed a goshawk being caught inside a Larsen trap, which had been set inside a pheasant pen. A live Jay was being used as the decoy bird [illegally – the General Licences do not allow a Jay to be used as a decoy species in a Larsen trap]. Mutch was filmed approaching the trap the next morning at around 6am.

Prosecution expert witness David Anderson, a Conservation Manager for the Forestry Commission, was asked to tell the court what he could see in the footage, which was filmed in misty conditions. He said the man appeared to pick up an object to pin down the bird. “Then I saw the man got the bird, pulled it out and dispatched it with a stick or whatever they had in their hand”.

Another recording showed Mutch walking in to a crow cage trap (also set inside a pheasant pen) and catching a goshawk that had been caught in the trap. The bird was placed (alive) inside a white sack and removed from the cage.

Mutch has denied all the charges against him.

The trial continues at Aberdeen Sheriff Court and hopefully it’ll conclude today.

George Mutch trial: Sheriff to rule on admissibility of video evidence

The sheriff presiding over the trial of Scottish gamekeeper George Mutch is due to rule today on the admissibility of covert video footage.

Mutch is accused of several offences relating to the alleged killing or injuring of two goshawks and a buzzard that had been caught inside traps in August 2012. He has denied the charges. The evidence against him is based on covert footage collected by RSPB Scotland.

Mutch’s trial began on Monday, after months of adjournments, but so far the trial has focused on whether the evidence is admissible. The defence advocate, Mark Moir QC, has argued that the footage is inadmissible because the RSPB has an agenda against the use of crow cage traps and didn’t have the landowner’s permission to film. The prosecution (Tom Dysart from COPFS!) has argued that the evidence should be deemed admissible because the RSPB were filming as part of a research study.

Sheriff Noel McPartlin is due to rule on the question of admissibility today. Whatever his decision, it will have significant ramifications for not only this trial but also for future potential prosecutions.

News articles on this trial here and 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

Case against gamekeeper George Mutch: part 13

The criminal trial of Scottish gamekeeper George Mutch is set to re-start today.

Mutch, of Kildrummy Estate, Aberdeenshire, is accused of a series of offences relating to the capture and subsequent killing or injuring of a number of raptors, alleged to have taken place in August 2012. He has denied the charges.

This case has dragged on for over two years. Eventually a trial date was set for October 2014 but it was quickly adjourned after the defence QC argued that the presiding Sheriff shouldn’t hear the case as she was a member of the RSPB (see here).

Presumably there’ll be a different sheriff in court today; one with absolutely no connection whatsoever with game-shooting, eh?

Last night’s Landward programme: putting lipstick on a pig

Last night’s BBC 2 (Scotland) Landward programme was all about driven grouse shooting. The programme had been billed as follows:

‘Grouse shooting brings millions of pounds into the Scottish rural economy, yet it is controversial. Dougie Vipond and Sarah Mack go on a shoot to see the sport first-hand, while Euan McIlwriath investigates the impact of grouse moors on the environment’.

On that basis, we expected a well-balanced programme exploring the detail of those ‘controversies’ with input from both ‘sides’. What we got was a BBC whitewash with a quite astonishing level of presentational bias. Not what we expected from a team who are all-too-familiar with raptor persecution, especially after their programme a couple of years ago which produced the classic Alex Hogg quote lie: “Professional gamekeepers do not poison raptors“.

You only have to look at the line-up of interviewees on last night’s programme to see that something was amiss:

Robert Jamieson, owner of gunmakers James Crockhart & Son, Blairgowrie.

Andrew Farquharson, owner of Finzean Estate, Aberdeenshire.

Allan ‘Hedge’ Shand, head gamekeeper of Finzean Estate.

Charlie Thorburn, gungog trainer from Mordor Gundogs.

Robert Rattray, sporting letting agent from CKD Galbraith.

Robbie Kernahan from SNH’s licensing department.

Tim (Kim) Baynes, Moorland Group Director, Scottish Land & Estates.

How many of these individuals would you expect to provide a fully comprehensive commentary on the dirty realities of driven grouse shooting? It’s almost as if the programme had been written and directed by the SGA!

We heard about the history of driven grouse shooting, how it’s the ‘Sport of Kings’, how much a decent gun would cost, how it’s a key part of the Scottish rural economy, how good it is for supporting rural jobs and how it’s still considered a ‘prestigious field sport’. You’d expect as much from people with a vested interest in maintaining this filthy industry. But what about the other side of the story?

We did hear about habitat management on the Finzean Estate (from the estate owner and his head gamekeeper) and we were told that this is an award-winning estate because it won this year’s Golden Plover Award for Moorland Managagement. What wasn’t said was that this award was given by two industry organisations –  The Heather Trust and GWCT – two organisations who clearly don’t have a vested interest in promoting driven grouse shooting. Ahem.

But we didn’t hear anything about the environmental implications of driven grouse moor management, such as the effects of intensive heather burning, building tracks across the moorland, putting in car parks on the moors, installing grouse butts on the moors, the increased risk of flooding resulting from grouse moor management, the wholesale (legal) indiscriminate slaughter of hundreds of thousands of native creatures that could conceivably eat an egg or a grouse, including foxes, stoats, weasels, crows etc, nor the unregulated massacring of mountain hares for no good reason whatsoever (see here here and here). Why not?

And what about raptor persecution? Well, poisoning did get a brief mention, although there was no indication about the scale of illegal killing associated with driven grouse moors in Scotland (and northern England). Why not?

The head gamekeeper was asked what predators he had on the hill at Finzean, presumably in an attempt to show that this estate was predator-friendly. He mentioned foxes and hoodies, but ‘forgot’ to mention that they’re not tolerated and are routinely killed year-round, as they are on all driven grouse moors. He also mentioned a few raptor species, including merlin, ‘eagles’ and peregrine. Now that was interesting. Finzean does indeed have some raptor species, including a pair of red kites and golden eagles. But there’s having eagles and then there’s having eagles. The Finzean eagles aren’t doing very well. Their breeding attempts are routinely unsuccessful and there is a suspiciously regular turn-over of breeding birds at this site. Why is that? Golden eagles tend to be relatively sedentary once they’ve settled in a breeding territory, and only rarely do they move or change partner. The odd turn-over event is to be expected – if one of the pair dies (natural mortality) or if a nearby ‘superior’ breeding site becomes available – but these events are relatively rare and certainly couldn’t be described as a ‘regular’ behaviour, and yet territorial eagles are turning over with regularity at Finzean. Hmm.

And what about hen harriers? Why didn’t the presenter ask about those? We would have liked to have heard the head keeper’s comments on that. Finzean did used to have breeding hen harriers, but they’re not there any more and haven’t been for some time. Why not?

There was a short piece on the new restriction on General Licences that SNH may choose to use if they believe, on the balance of probabilities, that illegal raptor persecution has taken place. However, there was no mention of the ‘get-out clause‘ that would allow an estate to simply by-pass the imposed restriction and get an individual licence instead.

All in all then, a pretty god-awful, poorly-researched programme that failed to highlight the on-going environmental concerns associated with driven grouse shooting, and instead tried to portray it as something it really isn’t. You can put lipstick on a pig, but it’s still a pig.

As it’s the awards season, we might have to consider starting our own – the Lip-sticked Pig Awards for Grouse Moor Management. This programme would be a contender for best documentary of the year.

If you missed the programme, you can watch it in BBC iPlayer for the next 29 days here

Buzzard licence applicant gets High Court approval for judicial review

The following statement has been issued by the National Gamekeepers’ Organisation:

High Court Grants Gamekeeper Go-Ahead To Challenge Natural England

Tuesday 25th Nov 2014

A gamekeeper has been given permission by the High Court to proceed with a claim for Judicial Review against the Government’s wildlife licensing authority, Natural England (NE). The self-employed gamekeeper had applied for a licence to control buzzards attacking young pheasants on a small game shooting enterprise he runs for local farmers in Northumberland. NE acknowledged that the birds of prey were causing serious damage but refused to issue a licence under the well-established licensing process approved by Parliament for use in such circumstances.

The Honourable Mrs Justice Thirlwall DBE gave permission to proceed with the claim for Judicial Review on the basis that it was arguable NE had been inconsistent and unreasonable in refusing the licence. The case will now proceed to a full hearing which is likely to take place in the first half of next year.

Ricky McMorn, the self-employed gamekeeper seeking the buzzard control licence, may go out of business and lose his livelihood if a licence is not forthcoming. He said:

“This is a real David and Goliath situation. I am having to battle the might of the state in the form of Natural England to protect my birds and my job. They admit I’ve got a problem and agree that I have done everything I can but still they won’t give me a licence. It’s unfair and it’s wrong. Hundreds of other people get licences to kill protected birds every year.”

The Wildlife and Countryside Act 1981 protects all wild birds but it also allows for control licences to be granted for certain purposes. One of these is the prevention of serious damage to livestock including, specifically, gamebirds kept for the provision of shooting. Before any such licence can be granted by NE strict tests must be met – including demonstrating that the damage being caused is indeed serious and that there is no other satisfactory solution. Where these tests are met, however, a licence cannot be unreasonably withheld.

Whilst refusing this licence, in earlier considerations of the case NE has accepted that:

  • the damage being experienced is serious;
  • buzzards are the main cause of the pheasant deaths;
  • Mr McMorn has done all that can reasonably be expected of him in scaring off the buzzards and otherwise protecting his pheasants;
  • removing a small number of buzzards from the site would not compromise the species’ conservation status.

There are now over 300,000 buzzards in the UK and numbers are booming. The population has undergone a four-fold increase during the last forty years according to The State of UK Birds 2014, published on behalf of Natural England by the RSPB.

To prevent damage to fisheries, NE regularly issues licences under the same system to kill many thousands of cormorants each year – up to 20% of the UK population. Cormorant numbers peak at around 41,000 birds in the UK, compared to 300,000 buzzards.

NE also allows buzzards to be killed at UK airports and it has, in the recent past, allowed a free-range poultry farmer to trap and remove buzzards causing serious damage to his chickens. This is in sharp contrast to applications made by gamekeepers, where no licence to kill or remove buzzards has ever been granted.

Mr McMorn’s case is being supported by the National Gamekeepers’ Organisation (NGO), which believes strongly that the law and due process should always be followed. The NGO’s spokesman said:

“This case is about a gamekeeper who is trying to do the right thing within the law to address a real and serious threat to his livelihood. NE has a duty to administer licensing fairly, yet the facts speak for themselves. Extensive discussions with NE about solving our member’s problem and saving his job have got nowhere. It is time to let the High Court decide whether NE has been acting in accordance with the law.

“Fair and proper implementation of the longstanding licensing system is essential, not only to the wellbeing of the countryside and those who work there but also ultimately to its wildlife. If expanding predatory species become problematic but people are denied access to the existing legitimate solution, the risk of mavericks undertaking indiscriminate, illegal activity will never go away. We utterly condemn illegal persecution of birds of prey and it must stop.”

END

Previous blogs on this issue:

21 May 2012: Buzzard ‘management trial’ gets govt approval and £375K funding.

23 May 2012: RSPB response to DEFRA’s (illegal) buzzard trial.

24 May 2012: DEFRA responds to public outcry over Buzzard management trial.

30 May 2012: DEFRA backs down on Buzzard ‘management’ trial.

13 June 2012: #Buzzardgate aftermath.

10 January 2013: The buzzard blame game.

23 May 2013: Natural England issues licence to destroy buzzard eggs & nests to protect pheasants.

25 May 2013: New petition: SNH, do not licence buzzard culling in Scotland.

30 May 2013: Two important questions to ask about the buzzard licence applicant.

3 June 2013: Buzzard licencing: turning up the heat.

5 June 2013: Surely the buzzard licence applicant doesn’t have prior convictions for poison offences?

5 June 2013: Natural England says no to buzzard-killing licence.

20 June 2013: Hand in of buzzard petition today at Holyrood.

13 August 2013: Natural England claims release of buzzard licence info ‘not in public interest’.

26 September 2013: Buzzard licence applicant tries for four more licences.

1 October 2013: Why we don’t trust the National Gamekeepers’ Organisation.

Last night’s Countryfile

Last night’s Countryfile featured a section on raptor persecution and was actually fairly well balanced, in terms of the amount of air time given to both ‘sides’ of the debate.

First up was Bob Elliot, the RSPB’s Head of Investigations. He talked about the effect of persecution on certain raptor populations and the need for better legislation, vicarious liability, estate licensing and greater penalties for those convicted of illegally killing raptors. It was a well-delivered performance.

The presenter, Tom Heap, claimed that there is “some evidence that vicarious liability has reduced the illegal killings of birds of prey” in Scotland. Rubbish. That’s what the landowners would like everyone to believe because then it makes it more difficult for the Government to introduce even further measures against them. As the (now former) Environment Minister Paul Wheelhouse said recently, there isn’t any evidence to suggest that vicarious liability  has reduced raptor persecution. Indeed, the latest Government statistics show that raptor killing is actually back on the increase in Scotland, which demonstrates that so far, vicarious liability is not having the deterrent effect that we’d all like.

Next we heard from a poor guy whose dog had died after it had minimal contact with a poisoned bait whilst out on a walk on a Yorkshire moor. This was followed by North Yorkshire Police Wildlife Crime Officer Gareth Jones, who discussed another poisoning incident he’d investigated that involved a poisoned fox, crow and two red kites.  This was a bit strange because he mentioned that a local gamekeeper had put out a poisoned rabbit bait to target a fox that had been eating his pheasant poults and that the keeeper hadn’t intended to kill the kites, only the fox. But then we heard that there wasn’t enough evidence to make a ‘definitive link’ to the culprit and so there wasn’t a prosecution. Eh? If the keeper had admitted putting out the bait to target a fox, surely that’s the link? If the keeper hadn’t admitted targeting the fox, how did the Police know the kites hadn’t been deliberately targeted? Very odd.

Duncan Thomas BASCNext up was Duncan Thomas from BASC. What he had to say was quite interesting, but not as interesting as what he didn’t say (or maybe he did say and it was just edited out). For context, it’s worth bearing in mind that before joining the BASC payroll, Mr Thomas was a Police Wildlife Crime Liaison Officer with Lancashire Constabulary, and his patch included the Forest of Bowland, a well-known raptor persecution hotspot.

We were told that he’d been involved with game-bird shooting at Bowland for 20 years and he was filmed waxing lyrical about one of this year’s successful hen harrier nests in Bowland. But no mention of the ‘disappearance’ of two of the nest’s sat-tagged fledglings, Sky and Hope, both vanishing without trace on the Bowland moors just a few weeks after fledging (see here and here).

When asked about the RSPB’s call for game-shooting leaders to acknowledge the role of gamekeepers in raptor persecution, Mr Thomas said:

“I think that some of the press releases are quite unfair and they don’t represent a true and accurate picture of what goes on here. If you show me direct evidence that leads to the conviction of a gamekeeper for doing that then those people are not welcome within our community. All the shooting organisations, their stance is very clear, we would expel them from any of our organisations“.

So here we have a former police officer claiming that the only convincing measure of criminal activity is a conviction! On this basis, the UK should be considered as a virtually crime-free zone. All those murders, rapes, assaults, burglaries etc for which nobody has been convicted simply didn’t happen because, er, there weren’t any convictions.

Oh, and all that guff about convicted gamekeepers not being welcome….that’s simply untrue. A classic example is the gamekeeper who was convicted for having a banned poison in his vehicle, home and pheasant pen, and yet went on to enjoy the support of the National Gamekeepers’ Organisation who helped him to apply successfully for licenses to destroy buzzard nests and eggs to protect his pheasants!

Mr Thomas was then asked how he felt “when the RSPB seems to be tarring the whole shooting industry“. He said:

“Frustrated. And angry. The RSPB appears to be using some EXTREMELY isolated cases to colour us all bad“.

Hmm. Those ‘extremely isolated’ cases actually amount to over 100 gamekeepers convicted of raptor persecution between 1990 – 2010. Not what we’d call ‘extremely isolated’. Our definition of ‘extremely isolated’ would be if, say, a District Nurse had been convicted. There she was, trundling over the uplands on her way to see another patient when she decided to pull over, whip out a shotgun from her medical bag and take a pop at a passing hen harrier. If that had ever happened, then it would clearly be seen as an ‘extremely isolated’ incident and not at all indicative as being representative of her entire profession. But over 100 gamekeepers? Well, those facts speak for themselves. In fact, in the last four years alone, a further 27 gamekeepers have been convicted of wildlife crimes, and at least a further five cases are currently pending. Knowing how difficult it is to actually secure a conviction for wildlife crime, these can only be considered the tip of the iceberg. Here are the latest 27:

Feb 2011: Gamekeeper Connor Patterson convicted of causing animal fights between dogs, foxes and badgers.

May 2011: Gamekeeper Ivan Mark Crane convicted of using an illegal trap.

May 2011: Gamekeeper Ivan Peter Crane convicted of using an illegal trap.

May 2011: Gamekeeper Dean Barr convicted of being in possession of a banned poison.

May 2011: Gamekeeper James Rolfe convicted of being in possession of a dead red kite.

June 2011: Gamekeeper Glenn Brown convicted of using an illegal trap.

October 2011: Gamekeeper Craig Barrie convicted of illegal possession & control of a wild bird

Dec 2011: Gamekeeper Christopher John Carter convicted of causing a fight between two dogs and a fox.

Dec 2011: Gamekeeper Luke James Byrne convicted of causing three animal fights and possession of three dead wild birds (heron, cormorant, buzzard).

Jan 2012: Gamekeeper David Whitefield convicted of poisoning 4 buzzards.

Jan 2012: Gamekeeper Cyril McLachlan convicted of possessing a banned poison.

April 2012: Gamekeeper Robert Christie convicted of illegal use of a trap.

June 2012: Gamekeeper Jonathan Smith Graham convicted of illegal use of a trap.

Sept 2012: Gamekeeper Tom McKellar convicted of possessing a banned poison.

Nov 2012: Gamekeeper Bill Scobie convicted of possessing and using a banned poison.

Jan 2013: Gamekeeper Robert Hebblewhite convicted of poisoning buzzards.

Feb 2013: Gamekeeper Shaun Allanson convicted of illegal use of a trap.

Feb 2013: Gamekeeper (un-named) cautioned for illegal use of a trap.

May 2013: Gamekeeper Brian Petrie convicted for trapping offences.

June 2013: Gamekeeper Peter Bell convicted for poisoning a buzzard.

July 2013: Gamekeeper Colin Burne convicted for trapping then battering to death 2 buzzards.

Sept 2013: Gamekeeper Andrew Knights convicted for storing banned poisons.

Dec 2013: Gamekeeper Wayne Priday convicted for setting an illegal trap.

Feb 2014 Gamekeeper Ryan Waite convicted for setting an illegal trap.

May 2014 Gamekeeper Derek Sanderson convicted for storing five banned poisons.

July 2014 Gamekeeper Mark Stevens convicted for setting illegal traps.

October 2014 Gamekeeper Allen Lambert convicted for poisoning 11 raptors, illegal storage and use of pesticides & possession of a poisoner’s kit.

The final contributor to the Countryfile piece was Amanda Anderson of the Moorland Association, discussing DEFRA’s proposed Hen Harrier Recovery Plan and the ridiculous ‘brood management’ scheme, which we believe is nothing more than legalised persecution. We are supposed to believe that the Moorland Association loves hen harriers (ahem) and that the recovery plan would help prevent hen harriers “eating themselves out of house and home“. Good god. Somebody send her on a basic ecology course, please.

This episode of Countryfile is available on BBCiPlayer for 29 days here.

The petition to ban driven grouse shooting is here.