Tag: vicarious liability

Why we don’t trust the National Gamekeepers’ Organisation

A few days ago, Charles Nodder, Political Advisor to the National Gamekeepers’ Organisation (NGO), wrote on this blog:

“You should regard us [the NGO] as a key part of the solution [to stamping out illegal raptor persecution], not part of the problem. An organisation to be supported, not attacked”.

The thing is, in order to support an organisation there first needs to be a level of trust. It’s very hard for us to trust the NGO, and here’s why…

Until recently, we were under the impression (mistakenly, as it turns out) that the NGO wouldn’t tolerate any illegal gamekeeping activity and if any of their members were convicted of such an offence, they would be expelled from the organisation. This is what the NGO wants us all to believe, as outlined in their own Disciplinary Code, as published on their website.

However, it would now appear that the NGO does, in our opinion, tolerate some illegal gamekeeping activity. This has only come to light because we discovered that the NGO member who has been applying for licences to kill buzzards (and now sparrowhawks too) was recently convicted for being in possession of several banned poisons, including Carbofuran, the most common poison used to illegally kill birds of prey. We have now discovered that the NGO member, who we have called Mr Buzzard Licence Applicant, was not booted out of the NGO following his conviction for a wildlife crime that is closely linked with the illegal poisoning of birds of prey. Not only was he not booted out, but the NGO then actively supported this member by helping him to apply for his buzzard and sparrowhawk-killing licences.

When challenged about this, Mr Nodder provided some fascinating responses on this blog (see here). Before we take a closer look at those responses, we would first like to acknowledge Mr Nodder’s willingness to engage in conversation on this blog. That’s to his credit; there are many others within the game-shooting industry who have repeatedly refused to engage with us, citing excuses such as, “We don’t communicate with anonymous individuals” but who then go on to complain that we publish articles without giving them the right to reply!! Quite an astonishing response given today’s world of multi-media and social networking communications. A missed opportunity for them, but not really that surprising when you consider that many of them are still hanging on to other 19th Century ideals.

Anyway, back to that NGO policy of supposedly not tolerating any illegal gamekeeping activity.

To begin with, Mr Nodder tried to claim that “The possession of a banned substance [and remember we’re talking here about banned poisons that are routinely used to illegally poison wildlife] is quite clearly a possession offence and not an offence against wildlife”. We were astounded by this comment. There are many, many examples of ‘possession’ offences that are inextricably linked to wildlife crime. Here are just a few examples:

  • Possession of a dead red kite (see James Rolfe case).
  • Possession of 10.5kg of the banned poison Carbofuran (see Dean Barr case).
  • Possession of the banned poison Carbofuran (see Cyril McLachlan case).
  • Possession of wild birds eggs (see Matthew Gonshaw cases).
  • Possession of an illegal pole trap (see Ivan Crane case).
  • Possession of a wild bird (see Craig Barrie case).
  • Possession of live & dead birds for trade/taxidermy (see Gary McPhail case).
  • Possession of the banned poison Alphachloralose (see David Whitefield case).
  • Possession of the banned poison Carbofuran (see Tom McKellar case).
  • Possession of wild birds (see Cogoo Sherman Bowen case).
  • Possession of the banned poisons Carbofuran, Strychnine and Alphachloralose (see Peter Bell case).
  • Possession of wild birds eggs (see Keith Liddell case).
  • Possession of the banned poison Sodium Cyanide (see William Scobie case).
  • Possession of dead wild birds (see Luke Byrne case).
  • Possession of the banned poisons Carbofuran and Alphachloralose (see Graham Kerr case).

In many of these example cases, poisoned and/or other illegally killed raptors were also discovered. Indeed, in many cases it is the discovery of these poisoned animals that then leads on to a police investigation and search that then leads to the discovery of a stash of banned poisons. Quite often, as we all know, the subsequent charges that are brought do not often include charges for actually poisoning the wildlife, but instead the charges relate to the ‘lesser’ (in legal terms) offence of ‘possession’, either due to plea bargaining or due to lack of evidence needed to secure a conviction for the actual poisoning of a wild animal. It stands to reason that the actual poisoning of wildlife is inextricably linked to the possession of banned poisons; in order to poison wildlife, the criminal obviously first has to be in possession of the poison to carry out the act of poisoning.

The National Wildlife Crime Unit defines the possession of a banned poison as a wildlife crime – the Unit often publicises convictions for the possession of banned poisons in its reports. The Scottish Government also defines convictions for possession of banned poisons as wildlife crime – indeed, this is one of the offences that can trigger a prosecution under the new vicarious liability legislation, brought in specifically to address the continuing illegal persecution of raptors. The Crown Office considers possession of banned poisons as a wildlife crime because its specialist wildlife prosecutors take on these cases. The Partnership for Action against Wildlife Crime (PAW, of which the NGO boasts membership) also considers possession of banned poisons a wildlife crime – they, too, publicise ‘possession’ convictions in their newsletters.

So why is it that the National Gamekeepers’ Organisation doesn’t accept possession of banned poisons as a wildlife crime? And if they don’t, why the hell are they allowed to participate in the Raptor Persecution Wildlife Crime Priority Group? Surely that group has been established to find ways of stamping out illegal raptor persecution, but how can it achieve that if one organisational member refuses to expel members who have been convicted of a serious wildlife crime? It makes a mockery of the whole group and does absolutely nothing to instill public confidence in the sincerity of the process.

Mr Nodder’s next explanation for why Mr Buzzard Licence Applicant wasn’t booted out of the NGO was to suggest that possession of a banned poison was not a ‘gamekeeping activity’. On the contrary, if Mr Nodder took the time to look at the conviction statistics (publicly available to those who want to look) he would notice that the significant majority of those convicted for possession of banned poisons are gamekeepers, and that trend has continued for many years. In the case of Mr Buzzard Licence Applicant, his stashes of banned poisons were found in his work vehicle and inside one of his pheasant pens. There’s simply no denying it, unless of course you happen to be the NGO, trying to justify why you haven’t stuck to your stated Disciplinary Code and expelled a member for his criminal conviction.

And what sort of message does this policy send to other NGO members? ‘Don’t worry if you get caught in possession of banned poisons, we won’t kick you out of the club’. It makes you wonder what the law-abiding members of the NGO feel about this policy. If you were a law-abiding member (and there must be some, surely), would you want to be a member of a group that welcomed those with a criminal conviction related to banned poisons? If the NGO doesn’t distinguish between criminal and law-abiding members, why should we?

The third argument Mr Nodder used to try and get us to drop what must be quite embarrassing questions was to pull out the old ‘It’s a spent conviction so we can’t discuss it’ routine. Nice try, but in this case, wholly inapplicable. The legislation that prevents publication of so-called ‘spent convictions’ is the Rehabilitation of Offenders Act 1974 (see here for a good explanation). Its basic premise is that after a period of x years of rehabilitation (depending on the type of crime committed – in this case, five years), the conviction can be ignored and need not be divulged (with one or two exceptions). If somebody does then publish information about the conviction, they may be subject to libel damages, but only if the primary motive of publishing the information was malicious. In this case, seeing as though we haven’t named Mr Buzzard Licence Applicant, even though we’ve had lots of opportunity to do so (and indeed our own received legal advice was that we could name him), it would be extremely difficult, if not impossible, to demonstrate that we are acting in malice (against him as an individual) by discussing his spent conviction because he hasn’t been identified as a named individual. Our primary motive for discussing this case has been to (a) examine the Natural England/DEFRA policy that allows convicted wildlife criminals to apply for licences to kill protected species (see earlier blogs on this), and (b) to examine the sincerity of the NGO’s claims that they won’t tolerate any illegal gamekeeping activity and will expel any member with such a conviction.

And while we’re on the subject of the Rehab of Offenders Act, we’ve made a very interesting observation. Certain professions are exempt from the Act, so that individuals are not allowed to withhold details of previous convictions in relation to job applications. These professions include teachers, social workers, doctors, dentists, vets, accountants etc. But interestingly, also included are “Employees of the RSPCA or SSPCA whose duties extend to the humane killing of animals”. Now then, it is beyond question that the duties of gamekeepers ‘extend to the humane killing of animals’. They probably kill (legitimately) more animals on a daily basis than all the RSPCA and SSPCA employees put together. So why are gamekeepers not included in this list of exemptions? Why should a gamekeeper be able to hide past wildlife crime convictions but an RSPCA/SSPCA employee cannot? That’s a question for the policy makers…

In summary then, in our opinion the NGO’s stated claim that they don’t tolerate any illegal gamekeeping activity is not convincing. They don’t view the possession of a banned poison as a wildlife crime and a conviction for possession of a banned poison is not enough to warrant expulsion from the NGO, even when that poison just happens to be the most commonly used substance to illegally kill birds of prey. It doesn’t matter to us how many wildlife crime groups the NGO has joined – in our view this is just a convenient shield for hiding true intentions – we don’t trust them and will continue to view them with suspicion until they start to back up their stated claims with convincing actions.

Environment Minister responds to our questions about his ‘further measures’ to tackle raptor persecution

On July 1st, Environment Minister Paul Wheelhouse laid out his ‘further measures’ to tackle the on-going problem of raptor persecution (here).

Whilst we welcomed his intentions, we wanted further clarification about these ‘further measures’ as well as some updates on previously-promised measures, so on July 2nd we posed five clear questions to him (see here).

This week, one of our blog readers received the following response from Wheelhouse’s wildlife crime policy officer:

Question 1:

Please can you clarify whether the Lord Advocate has instructed COPFS to accept covert video footage as admissible evidence in prosecutions for alleged raptor persecution incidents?

Answer:

The Lord Advocate has instructed the specialist prosecutors in the Wildlife and Environmental Crime Unit to work with Police Scotland to ensure that law enforcement utilises all investigative tools at their disposal in the fight against wildlife crime including tools such as video surveillance equipment where justified and appropriate.

Before instituting any prosecution, the Procurator Fiscal must be satisfied that there is sufficient admissible evidence to justify doing so. Established rules of evidence determine whether a court can take into account certain types of evidence including third party video evidence. If evidence does not comply with these rules, it is inadmissible and the court may not take it into account. In considering any case for prosecution, the Procurator Fiscal will assess, having regard to the particular facts and circumstances of any evidence and the manner in which it was obtained, whether the court will allow it to be considered. For example, the court may refuse to take account of evidence that has been obtained improperly, irregularly or unlawfully.

Our assessment:

It’s hard to know if the Lord Advocate’s instruction will make a blind bit of difference. Covert video evidence is routinely accepted as admissible evidence in England. It has, also, been previously accepted in Scotland, albeit rarely. More often than not, COPFS rejects it and we’re never provided with a transparent answer about why it was rejected. We’ve struggled to understand the legal reasoning behind these repeat rejections, especially when, as we understand it, the decision to accept or reject evidence should be made by the court (the Sheriff), not COPFS. We’ll just have to wait and see how covert video surveillance is treated in any future cases….and it’s quite likely we won’t have long to wait.

Question 2:

Please can you clarify the timescale for SNH’s review for introducing potential restrictions on the use of General Licences in areas where they have good reason to believe crimes against wild birds have been committed? In other words, when can we expect the review to be completed? Also, will their review be made publicly available?

Answer:

Officials are currently discussing with Scottish Natural Heritage how they will carry out the work to examine how and in what circumstances they can restrict the use of General Licences to trap and shoot wild birds on land where they have good reason to believe that crimes against wild birds have taken place. Timescales for completing the work are still to be concluded, but we would expect any new arrangements to be in place for next year and will ensure that we keep stakeholders in PAW Scotland informed of progress. SNH will be clear to all users of General Licences when and in what circumstances their use will be restricted or prohibited.

Our assessment:

This seems a perfectly reasonable explanation. We look forward to watching the developments.

Question 3:

Please can you advise whether there will be a prosecution under the new vicarious liability legislation following the recent conviction of gamekeeper Peter Bell, found guilty of poisoning offences on the Glasserton and Physgill Estates? If you don’t know the answer (which would be surprising, given that you said in March 2013 that you would be “keeping an eye on this particular area [i.e. vicarious liability] with interest”, please can you provide the contact details of someone who can answer the question?

Answer:

It would be inappropriate to comment further on this case as police enquiries have not yet concluded.

Our assessment:

Not very impressed, but as this case is probably the first of its kind to be considered under the new vicarious liability legislation, we don’t have any benchmark to be able to compare the timescales involved. It’s been 8 months since the crimes were committed (December 2012). Is it reasonable to expect Police Scotland to still be conducting enquiries or is this another fob-off to delay telling us that no charges will be brought under VL legislation? If they are still making enquiries, let’s hope they’re making a better job on this case than they did on this one! We’ll keep asking questions about this case every so often so it can’t just be swept quietly under the carpet.

Question 4:

Please can you tell us the status of the Scottish Government’s first annual report (2012) into wildlife crime? As you know, under the Wildlife and Natural Environment (Scotland) Act 2011, there is now a requirement (under section 26B) that ‘Scottish Ministers must, after the end of each calendar year, lay before the Scottish Parliament a report on offences relating to wildlife’. You mentioned in March 2013 that your policy officials ‘are currently working on’ this report. When can we expect this report to be available?

Answer:

Section 26B of the Wildlife and Countryside Act 1981 requires Scottish Ministers, after the end of each calendar year, to lay before the Scottish Parliament an annual report on wildlife crime. We will of course comply with that requirement and it is in preparation. Details about the laying of the report, including the timing, will be given to the Parliament in the first instance in accordance with established parliamentary protocol. We will, of course, ensure that the report publication is communicated to stakeholders and Parliament.

Our assessment:

It’s taking a very long time for this report to be published. We’ll keep asking about it.

Question 5:

Please can you tell us when, exactly, will you open the consultation regarding the increase of SSPCA powers to broaden the range of their work investigating wildlife crime? As you know, this consultation was first suggested by former MSP Peter Peacock as an amendment during the WANE Act debates, way back in February 2011. The then Environment Minister Roseanna Cunningham rejected it as an amendment but suggested a consultation was in order. Seven months later in September 2011, MSP Elaine Murray lodged a motion that further powers for the SSPCA should be considered. In November 2011, Elaine Murray MSP formalised the question in a P&Q session and the next Environment Minister, Stewart Stevenson, then promised that the consultation would happen in the first half of 2012. Nothing happened so in September 2012 we asked you, as the new Environment Minister, when the consultation would take place. In response to one of our blog readers in October 2012 your policy officer said: “The consultation has been delayed by resource pressures but will be brought forward in the near future”. Nine months later and we’re in July 2013 – almost 2.5 years after Scottish Ministers committed to undertaking the consultation. Where is it?

Answer:

We regret that resource pressures did further delay the public consultation on the extension of SSPCA powers. However, I can confirm that the consultation document will be published later this year.

Our assessment:

As far as we’re concerned, this consultation, if it does actually appear this year, could be a game-changer. Forget bringing in new legislation to tackle raptor persecution – we don’t need it. The legislation is all there – it just needs to be enforced. The enforcement process begins with a criminal investigation. Do we have complete confidence in Police Scotland to effectively and efficiently undertake these investigations? Based on their past performance, that has to be a resounding NO, with just a handful of exceptions. Do we have confidence in the SSPCA to undertake these investigations? If we judge them on their track record for successful prosecutions under animal welfare legislation, then YES, we do. We also know that certain organisations associated with the game-shooting industry do not support these extended powers for the SSPCA – they argue that criminal investigations should be carried out by the police. Funny that, because they support extended powers for water bailiffs – is that because the water bailiffs are often acting in the interests of landowners and gamekeepers (e.g. when tackling poachers)? Do they not support extended powers for the SSPCA because they know that with an extra 75+ highly-trained officers on the ground then the chances of raptor persecution crimes being uncovered become greater? You’d think, given that the game-shooting industry claims to be all for stamping out raptor crime, that they’d welcome the SSPCA with open arms.  We’ll be watching closely for this consultation to finally emerge and you can expect a great deal of blogging about it when it is published.

Questions for the Environment Minister

Following yesterday’s announcement by Environment Minister Paul Wheelhouse on his proposed further measures to tackle the illegal persecution of Scottish raptors (here), we’d like to follow up by asking him for some clarifications on the latest measures, and for some updates on previously-promised measures. If you want to cut and paste these questions and send them yourself, or adapt them in your own letter, or simply cut and paste this blog’s URL to your own letter, please feel free. His email address appears at the foot of this page.

Question 1.

Please can you clarify whether the Lord Advocate has instructed COPFS to accept covert video footage as admissible evidence in prosecutions for alleged raptor persecution incidents?

Question 2.

Please can you clarify the timescale for SNH’s review for introducing potential restrictions on the use of General Licences in areas where they have good reason to believe crimes against wild birds have been committed? In other words, when can we expect the review to be completed? Also, will their review be made publicly available?

Question 3.

Please can you advise whether there will be a prosecution under the new vicarious liability legislation following the recent conviction of gamekeeper Peter Bell, found guilty of poisoning offences on the Glasserton and Physgill Estates (here)? If you don’t know the answer (which would be surprising, given that you said in March 2013 that you would be “keeping an eye on this particular area [i.e. vicarious liability] with interest“, see here), please can you provide the contact details of someone who can answer the question?

Question 4.

Please can you tell us the status of the Scottish Government’s first annual report (2012) into wildlife crime? As you know, under the Wildlife and Natural Environment (Scotland) Act 2011, there is a now a requirement (under section 26B) that ‘Scottish Ministers must, after the end of each calendar year, lay before the Scottish Parliament a report on offences relating to wildlife’ (see here for copy of the WANE Act 2011). You mentioned in March 2013 that your policy officials ‘are currently working on’ this report (see here). When can we expect this report to be available?

Question 5.

Please can you tell us when, exactly, will you open the consultation regarding the increase of SSPCA powers to broaden the range of their work  investigating wildlife crime? As you know, this consultation was first suggested by former MSP Peter Peacock as an amendment during the WANE Act debates, way back in February 2011. The then Environment Minister Roseanna Cunningham rejected it as an amendment but suggested a consultation was in order (see here). Seven months later in September 2011, MSP Elaine Murray lodged a motion that further powers for the SSPCA should be considered (see here). In November 2011, Elaine Murray MSP formalised the question in a P&Q session and the next Environment Minister, Stewart Stevenson, then promised that the consultation would happen in the first half of 2012 (see here). Nothing happened so in September 2012 we asked you, as the new Environment Minister, when the consultation would take place (see here). In response to one of our blog readers in October 2012 your policy officer said: “The consultation has been delayed by resource pressures but will be brought forward in the near future“. Nine months later and we’re in July 2013 – almost 2.5 years after Scottish Ministers committed to undertaking the consultation. Where is it?

Email: ministerforenvironment@scotland.gsi.gov.uk

Environment Minister announces ‘further measures’ to tackle raptor persecution

The Environment Minister Paul Wheelhouse has today announced what he calls ‘further measures’ to tackle the on-going problem of illegal raptor persecution in Scotland. Here is his statement in full:

“Since I took on responsibility for this portfolio, I have been clear that one of my priorities is to bear down on the illegal persecution of raptors that continues to blight the Scottish countryside and tarnish Scotland’s reputation.  These outdated, barbaric and criminal practices put at risk the conservation status of some of our most magnificent wildlife.  They also harm our reputation as a country which values its environment and wildlife and undermine the growing tourism sector that is built on that reputation.

We have achieved much since 2007. We have a robust legal framework that protects birds of prey and their nests, including the new vicarious liability provisions.  We have dedicated resources in Police Scotland and the Crown Office and Procurator Fiscal Service (COPFS).  We are leading the way in the UK in the development of wildlife crime forensics work, and we continue to work at building a broad-based alliance through the Partnership for Action Against Wildlife Crime (PAW Scotland).  

In 2012 we saw a very welcome reduction in poisoning cases.  However a number of recent reports, some of which are in the public domain and some of which are still subject to police enquiries, suggest that there is still a problem with the use of poison as well as cases involving illegal trapping and shooting.  I have decided therefore that the time is right to bring forward some further measures which I hope will deter those involved in illegal activities. 

Wildlife crime, and raptor persecution in particular, often takes place in remote locations or in the dark of night.  By its very surreptitious nature, the likelihood of being seen by a member of the public who can report the matter to the authorities is small.

I have spoken with the Lord Advocate, who maintains a close personal interest in all wildlife crime.  We are both keen to maximise the opportunity for offences to be detected and offenders to be tracked down.

The Lord Advocate has instructed the specialist prosecutors in the Wildlife and Environmental Crime Unit to work with Police Scotland to ensure that law enforcement utilises all investigative tools at their disposal in the fight against wildlife crime.

This work will take place within the National Wildlife Crime Co-Ordinating Forum – a group attended by police Wildlife Crime Liaison Officers from across Scotland and the police’s full-time Scottish Wildlife Crime Co-Ordinator, as well as senior police officers, the National Wildlife Crime Unit, Scottish Government officials and the specialist prosecutors from the Wildlife and Environment Crime Unit within COPFS.

Secondly, in my capacity as Chair of PAW Scotland, I intend to establish a group to carry out a review and report to me on how wildlife crime is treated within the criminal justice system, including examining whether the penalties available for wildlife crime properly reflect the seriousness of the damage caused to vulnerable wildlife and fragile habitats and ecosystems.  

Thirdly, I will be asking Scottish Natural Heritage in their capacity as the authority for licensing decisions under section 16 of the Wildlife and Countryside Act to examine how and in what circumstances they can restrict the use of General Licences to trap and shoot wild birds on land where they have good reason to believe that crimes against wild birds have taken place.  These General Licences allow the holders to carry out actions that would otherwise be unlawful if undertaken, without any reference to SNH.  We regard the use of General Licences as a privilege that should not be extended in circumstances where there is evidence that their use may be facilitating illegal activities. 

In putting together these measures I have sought to focus only on those individuals and businesses where there are very good reasons to believe they are involved in illegal practices.  I am very keen to avoid anything that places an unfair burden on the majority of shooting businesses that are law-abiding and responsible members of the rural community.  I should also say that I think it is important that wildlife crime is treated in exactly the same way as other types of crime. This means information about cases should be handled in the same way as in other types of crime and that the police and prosecutors are allowed the time and space to carry out whatever investigations they believe to be necessary according to their own professional judgement. We should not descend into allowing trial by leak and accusation. There is a responsibility on us all to avoid that. 

In conclusion I wish to reiterate that eradicating raptor persecution in Scotland remains a high priority for the Scottish Government.  It is not however the sole responsibility of the Scottish Government.  Law enforcement clearly has a key role to play and I am confident that we are ratcheting up the pressure on those committing acts of illegal persecution. However,  everyone involved in the Scottish countryside, and in particular those involved with shooting, should make abundantly clear their disapproval to the minority whose actions are tarnishing the reputation of Scotland’s country sports”.

So, this is the much anticipated ‘action’ against illegal raptor persecution that’s been promised since last autumn when Paul Wheelhouse was appointed. Whilst we welcome his willingness to engage with the issue (in stark comparison to his English counterpart who won’t even admit there’s a problem), we see these latest measures as tiny baby steps in the right direction, and not the decisive hefty stamp that could have been delivered.

The first four paragraphs of his statement are just introductory comments with the usual rhetoric, such as, “We have achieved much since 2007”. Actually, we haven’t. Raptors are still being illegally killed on land managed for game-shooting and more often than not the criminal(s) involved are not being prosecuted. In the few instances where they are prosecuted, there is evidence of extensive plea-bargaining resulting in convictions only for the minor offences, not for the major crimes.

“In 2012 we saw a very welcome reduction in poisoning cases”. No, we didn’t. What we saw was a reduction in the number of reported poisoning cases; that’s a very important distinction. Members of the game-shooting industry (and government, it seems) have made much of this claim, using it as an example of how the industry is cleaning up its act. They won’t be able to make the claim for much longer – we understand that there have been several poisoning incidents already in 2013 and we’re only half-way through the year. Naturally, once again the public haven’t (yet) been informed about these poisonings even though they took place several months ago. We’ll come back to this issue.

The first ‘new’ measure that Wheelhouse is introducing is this:“The Lord Advocate has instructed the specialist prosecutors in the Wildlife and Environmental Crime Unit to work with Police Scotland to ensure that law enforcement utilises all investigative tools at their disposal in the fight against wildlife crime”.

This is interesting, particularly because it immediately follows this paragraph:

“Wildlife crime, and raptor persecution in particular, often takes place in remote locations or in the dark of night.  By its very surreptitious nature, the likelihood of being seen by a member of the public who can report the matter to the authorities is small”.

Does this mean that prosecutors in Scotland are being told by the Lord Advocate that they should now accept covert video surveillance as admissible evidence? If this is the case then it would be a very welcome step indeed. Covert film footage is routinely accepted as admissible evidence in England, but in Scotland it continues to be blocked by the Crown Office prosecutors. Why? We don’t know – we’ve never heard a satisfactory explanation. If our assumption is correct (and of course it may not be) and covert footage is to be accepted, then Wheelhouse deserves a good deal of credit for this single measure. We’ll be watching this potential development with great interest.

His second measure is to establish (yet another) group within the framework of PAW Scotland, “to carry out a review and report to me on how wildlife crime is treated within the criminal justice system, including examining whether the penalties available for wildlife crime properly reflect the seriousness of the damage caused to vulnerable wildlife and fragile habitats and ecosystems”.  We’re not so impressed with this plan; it seems to be reinventing the wheel. A similar review was carried out in 2008 (Natural Justice 2008) following the poisoning of the last remaining breeding female golden eagle in the Scottish Borders in 2007. That review made many recommendations to improve the efficiency of detecting and prosecuting wildlife crime in Scotland, some of which have since been implemented but many have not. It would perhaps have been a good opportunity for Wheelhouse to critically evaluate the implementation of those recommendations made five years ago, rather than start off the process again from scratch, which just leads to further delays in addressing the actual problem.

The third and final new measure is what we would call a fig-leaf approach to tackling illegal raptor persecution. Wheelhouse says: “I will be asking Scottish Natural Heritage in their capacity as the authority for licensing decisions under section 16 of the Wildlife and Countryside Act to examine how and in what circumstances they can restrict the use of General Licences to trap and shoot wild birds on land where they have good reason to believe that crimes against wild birds have taken place.  These General Licences allow the holders to carry out actions that would otherwise be unlawful if undertaken, without any reference to SNH.  We regard the use of General Licences as a privilege that should not be extended in circumstances where there is evidence that their use may be facilitating illegal activities”. 

At a superficial level, a restriction on the use of the General Licence sounds like a positive action. But let’s just think about the practicalities. First of all, Wheelhouse suggests that the General Licence may be restricted where SNH have “good reason to believe that crimes against wild birds have taken place”. That sounds like SNH would require a lower burden of proof to show that crimes against wild birds have taken place than say, for example, a criminal conviction. In real terms, how would that work? What would constitute ‘good reason’? The discovery of a poisoned or shot bird on a particular piece of land? In legal terms that’s not enough evidence for a conviction because the estate in question could legitimately argue (no matter how implausible) that the dead bird had been planted by someone with a grudge against them, or that the bird had been poisoned/shot elsewhere and just happened to fly on to their estate where it finally succumbed to its injuries. We can be certain that if SNH tried to use such evidence as giving them ‘good reason to believe that crimes against wild birds have taken place’ they would face a strong legal challenge by the estate’s lawyers. So then we’re back to the current situation whereby a conviction in a court of law is the only acceptable proof that the crime was committed by someone associated with the estate where the dead bird was found and those convictions are, as we all know, almost as rare as rocking horse shit.

But even if SNH could use a lower burden of proof as reason to believe a crime had been committed, there would still be difficulties. The use of General Licences is barely monitored or enforced due to the high volume of people operating under their terms. By their very nature, a General Licence is not actually issued to an individual – you don’t have to apply to use one and there isn’t even a competency test that you must first pass – it’s an open ‘licence’ that anyone can use to carry out what would otherwise be unlawful activities, such as the killing of so-called ‘pest species’ such as crows. We occasionally see a prosecution for an offence relating to a General Licence, e.g. when the operator of a crow cage trap has failed to meet the licence’s terms and conditions, but these prosecutions are rare and incidental. No statutory authority is regularly monitoring the use of General Licences (e.g. SNH don’t do it, the police don’t do it)  – we don’t even know how many people are operating under the General Licences because the operators are not required to submit annual returns. So, if SNH did ‘restrict the use’ of a General Licence on a particular piece of land, who would be enforcing that restriction? How would we know whether a restriction was in place? Would the location and name of the estate be published? For how long would the restriction be in place? What would be the penalty if an estate was found to be flouting the restriction?

All in all, this proposed new measure has glaring loopholes that in practical terms would be very difficult to close. It’s hugely disappointing that the Minister has taken this route instead of another option that is already available to him in the provisions of the Wildlife & Countryside Act – that is, the ability to enforce a (temporary) ‘closed season’ on the hunting of a particular game bird species in a particular area (or in this case, a specific estate). For example, in exceptional circumstances a Minister can impose a temporary moratorium on shooting specific species during periods of prolonged severe weather. The authority to impose such restrictions is already there in the legislation – it wouldn’t require the lengthy drafting of new legislation – if he wanted to enforce a temporary ban on, say, driven grouse shooting on a particular moor, he could do so. This measure would fit with his approach of only targeting the criminals, not the ‘law-abiding majority’ (his words, not ours) so why isn’t he pursuing it? Just another missed opportunity.

One final point about the Minister’s statement – the bit in his penultimate paragraph where he says this:

“I should also say that I think it is important that wildlife crime is treated in exactly the same way as other types of crime. This means information about cases should be handled in the same way as in other types of crime and that the police and prosecutors are allowed the time and space to carry out whatever investigations they believe to be necessary according to their own professional judgement. We should not descend into allowing trial by leak and accusation. There is a responsibility on us all to avoid that”. 

We whole-heartedly agree that wildlife crime should be treated in exactly the same way as other types of crime. This means that these crimes should be properly publicised in the media, just as other crimes are, and especially when they involve the discovery of potentially-fatal poisons that put the general public at significant risk. We hold very strong opinions on this and are adamant that it is not in the public interest for the police to keep these crimes hidden from view for months on end. Until we see an end to this ridiculous culture of silence we’ll continue to blog about these crimes with a measured, accurate and responsible approach.

We’ll be blogging later this week with some specific questions for Paul Wheelhouse….

Scottish Land & Estate’s response to the announcement here.

RSPB Scotland’s response here.

Scottish Gamekeepers’ Association response here.

BASC Scotland’s response here.

Scottish gamekeeper convicted for poisoning buzzard

Buzzard BellA Scottish gamekeeper has today been convicted for a number of wildlife crime offences, including the poisoning of a buzzard.

Peter Finley Bell (62) pleaded guilty to four charges at Stranraer Sheriff Court and was fined a total of £4,450.

Bell is a full-time gamekeeper and has sole responsibility for rearing pheasants and organising shooting on Glasserton and Physgill Estates which includes land on Glasserton Home Farm, Whithorn.

Bell 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.

A search of Bell’s home address on 5 March 2013 revealed poisonous substances in his tool shed and home which are illegal to possess, namely Carbofuran, Strychnine and Aphachloralose.

Bell’s fine was broken down as follows:

£2,450 for killing the buzzard (reduced from £3,500 to reflect his guilty plea)

£1,400 for possession of Carbofuran (reduced from £2,000)

£300 for possession of Strychnine (reduced from £500)

£300 for possession of Alphachloralose (reduced from £500).

There are some interesting points about this case. First of all, the speed of the judicial process – offences committed in December 2012 and March 2013, criminal convicted by June 2013! That has to be some sort of record and it is very, very pleasing to see.

But why, if the poisoned pheasant carcass and buzzard were found in December, did it take more than two months to conduct a search of Bell’s home?

It’ll be interesting to find out if Bell is/was a member of the Scottish Gamekeepers’ Association: info@scottishgamekeepers.co.uk

It’ll also be interesting to find out if Glasserton & Physgill Estates are members of Scottish Land & Estates: info@scottishlandandestates.co.uk

UPDATE: An important question, raised by blog commentator Michael Gill: what about vicarious liability in this case? Shall we ask the Environment Minister? Email: ministerforenvironment@scotland.gsi.gov.uk

UPDATE 16.20: The SGA has issued a statement about this conviction (see here). Interestingly, they do not address the fundamental question of whether this gamekeeper is/was one of their members. The SGA is a member of PAW Scotland and serves on the PAW Scotland Raptor Persecution Priority Delivery Group. Would it be appropriate for the SGA to continue to serve in this capacity (and take credit for its PAW membership) without being transparent about whether it has a convicted poisoner amongst its membership? We think it would be highly inappropriate. Please raise these concerns with the PAW Scotland Chair – Environment Minister Paul Wheelhouse – and demand SGA transparency on this case. Email: ministerforenvironment@scotland.gsi.gov.uk

UPDATE 17.25: Scottish Land and Estates have issued a statement to say that the estate in question has been booted out of their organisation. Good news. Statement here.

UPDATE 19th June 08.30: According to a BBC article (here), this convicted gamekeeper was indeed a member of the Scottish Gamekeepers’ Association and he’s now been kicked out. Strange that the SGA excluded this information from their own statement on their own website.

Golden eagle protection discussed in parliament

Great to see more MSPs raising questions about golden eagles in the Scottish Parliament….

Joan McAlpine (South Scotland) (SNP): To ask the Scottish Government what steps it is taking to protect golden eagles. (S4O-02010).

The Minister for Environment and Climate Change (Paul Wheelhouse): All wild birds are protected in Scotland under the Wildlife and Countryside Act 1981. Golden eagles are listed in schedule 1 to the 1981 act, which provides further protection measures to prevent disturbance to nesting birds. Last month, we added golden eagles to schedules A1 and 1A to the 1981 act, to provide year-round protection for nest sites and protect birds from harassment.

Since 2008, we have broadened and developed the partnership for action against wildlife crime in Scotland—PAW Scotland; strengthened the legal framework by introducing vicarious liability; provided funding for the national wildlife crime unit; and supported initiatives to tag and satellite track golden eagles. Recent police reform has increased the number of specialist wildlife crime officers.

We have been active in the fight against raptor persecution, and poisoning has reduced significantly. However, we are in no way complacent and we are actively considering whether other methods of persecution are being deployed. Some of the new wildlife crime measures that we have put in place are yet to be tested, but we know that there is still a problem in some parts of Scotland, and I reiterate to people outside the Parliament that we stand ready to introduce further measures, should that be necessary.

May2012 GE tayside grampianJoan McAlpine: As the minister acknowledged, there have been a number of shocking incidents across Scotland during the past year. Earlier this month, a golden eagle was shot on the southern upland way. In light of that, will the minister reassure the Parliament that investigations into the illegal killing of eagles are carried out quickly and effectively? Is he willing to update the Parliament on the investigation into the killing of the golden eagle that was found on Deeside in May 2012?

Paul Wheelhouse: As I said, police reform has resulted in a revised structure for wildlife crime, which will improve co-ordination and support for wildlife crime officers. I have every confidence in Assistant Chief Constable Graham, who has been appointed to lead the work. We also have a specialist unit in the Crown Office, which ensures that there is greater understanding of the complexities of this area of the law, in and out of the courtroom. That is a major development, which should not be underestimated and which will increase the focus on wildlife crime.

I assure the member and the Parliament that such measures, along with robust working in the partnership for action against wildlife crime in Scotland, will ensure that investigations are carried out as quickly and effectively as possible. PAW Scotland is looking at making the evidential trail on issues such as raptor persecution more robust, if it is possible to do so, which involves working closely with the Scottish raptor persecution priority delivery group.

I am not in a position to update the Parliament on the 2012 Deeside eagle case. There is an on-going police investigation and it would be entirely inappropriate for me to comment at this point.

[Ed: this issue about when is a case still ‘live’ is of great interest to us. How do you define when a case is still live/on-going? We would expect the definition to mean that active leads are still being followed up and/or a court case is pending. However, we are suspicious that the regularly-heard phrase ‘it’s an on-going police investigation and therefore can’t be discussed’ is a convenient excuse for the police/government to avoid answering serious questions about the effectiveness of these investigations. Take the Deeside eagle case as an example. That golden eagle was found dead almost one year ago. Are we expected to believe that the police are still following up active leads? Come on, let’s be realistic here. How about some of the other 26 cases of either dead or ‘missing’ eagles in the past seven years (see here), for which no-one has been prosecuted? Are they still ‘on-going’ investigations as well? Are the police still investigating the death of Alma, the golden eagle found poisoned on Millden Estate in 2009? How about the poisoning of the last remaining breeding golden eagle in the Borders in 2007? We would like to see much more transparency about these cases – obviously not while they’re genuinely on-going – but when a case is clearly going nowhere shouldn’t there be a point when questions can be asked, and answered, no? We would be very interested to hear from anyone who can tell us the official definition of how an ‘active case’ is defined and at what point, if any, can the police/government be questioned about an incident?]

Graeme Pearson (South Scotland) (Lab): I am sure that members welcome the drop in reported poisonings of birds of prey, but I am concerned that there has been no decline in other forms of raptor persecution. The Wildlife and Natural Environment (Scotland) Act 2011 introduced vicarious liability, to combat raptor persecution. Will the minister indicate what the next steps will be? Now that Police Scotland has been established, what new approaches will be introduced?

Paul Wheelhouse: Graeme Pearson is right to say that vicarious liability is a significant development in the law on wildlife crime. The provisions came into force on 1 January 2012 and the legislation has not yet been tested in court, as he is aware. I believe, however, that the legislation has had the welcome effect of encouraging responsible land managers to examine the training of and procedures for their staff. I have no doubt that, if a land manager or owner is prosecuted under the provisions, it will have a salutary effect on others who have been content to turn a blind eye to unlawful practices that are carried out on their land.

More generally, the Government is doing everything that it can to encourage good practice. Recently, Scottish Land & Estates launched the wildlife estates Scotland initiative, which I hope will gather arms and legs and cover an ever-greater share of landowners. In theory, that will enable the promotion of the most proactive and progressive conservation measures by land managers. However, I reassure the member that, if the measures under vicarious liability prove to be ineffective, I will take further action.

Jamie McGrigor (Highlands and Islands) (Con): The RSPB states that one of the key problems for the survival of golden eagles is the lack of live prey that is available to the species. Does the minister agree that a healthy supply of food species in golden eagle areas, such as rabbits and mountain hares, is a factor in the maintenance of healthy numbers of golden eagles? Is he, through the appropriate agencies, doing something about the decline of those species in some areas?

Paul Wheelhouse: The member raises an important point about the need for golden eagles to have adequate food supplies. It is not as simple as saying that it is all about raptor persecution; we know that there are multiple influences on the sad decline in the populations of a number of our key, iconic species of birds. Clearly, mountain hares are a species that we want to protect. If there was any persecution of those animals by land managers, we would be concerned about it. If the member has constructive proposals that he would like me to consider, I would be happy to meet him to discuss the issues.

Environment Minister answers PQs on poisoning & vicarious liability

Claire Baker MSPClaire Baker MSP has been asking some more pertinent parliamentary questions….

Question S4W-13709: Claire Baker, Mid Scotland and Fife, Scottish Labour, Date Lodged: 14/03/2013

To ask the Scottish Government how many (a) investigations, (b) arrests and (c) convictions there have been for the offence of vicarious liability under the Wildlife and Natural Environment (Scotland) Act 2011.

Answered by Paul Wheelhouse (26/03/2013): Since the vicarious liability provisions in the Wildlife and Natural Environment (Scotland) Act 2011 came into force on 1 January 2012 there have been no arrests, prosecutions or convictions of people for vicarious liability for relevant offences. Vicarious liability is not in itself an offence, but rather a land owner or manager may be held to be vicariously liable for relevant offences as set out in Section 18, Wildlife and Countryside Act (1981). The relevant offences under the Wildlife and Countryside Act 1981 are those in:

Section 1(1), (5) or (5B)

Section 5(1) (a) or (b)

Section 15A (1)

These offences are in relation to the intentional or reckless killing, injuring of a wild bird or the damage to, or destruction of a nest or egg(s); the prohibition of certain methods of killing wild birds (e.g. by the use of traps or poisons); and the possession of certain prescribed pesticides.

Vicarious liability can be considered in relation to all relevant offences that are investigated or prosecuted. When any investigation for a relevant offence is ongoing, the possibility of an arrest or prosecution under the vicarious liability provisions will be considered.

Question S4W-13710: Claire Baker, Mid Scotland and Fife, Scottish Labour, Date Lodged: 14/03/2013

To ask the Scottish Government how many poisoned baits have been discovered and how many (a) birds and (b) other animals have been poisoned in this way since 2008, broken down by (i) year and (ii) species.

Answered by Paul Wheelhouse (27/03/2013): The available information on poisoned baits and the poisoning of birds and other animals is shown in the following table.

Science and Advice for Scottish Agriculture, collate and publish data on animal poisonings information on a quarterly and annual basis on their website.

RPS_poisoned birds 2008-12

RPS_other poisoned animals 2008-12

RPS_poison incidents & baits 2008-2012

We’re still waiting for the Environment Minister to issue a statement on his intended course of action following the reports of two buzzards, shot and killed in two separate incidents before Easter…..

 

2013 wildlife crime conference: Duncan Orr-Ewing, RSPB

This is the third blog in our series about the 2013 Scottish Police Wildlife Crime conference. (NB: these are not being produced in the order the presentations were made at the conference). Here’s what Duncan Orr-Ewing of RSPB Scotland had to say on the topic of raptor persecution:

“Good morning everybody, I think most of you know me here, but my name is Duncan Orr-Ewing, I’m Head of Species and Land Management at RSPB Scotland, based in Edinburgh. My talk today, what I plan to do is give a bit of an outline of the issue if you like, then cover some of the sort of on-going work that is underway to try and address the problems, and then take a bit of a forward view if you like, on what the next steps might be. I should probably also confess at this point that I’m also a Director of the Langholm Demonstration Project, which Simon’s just talked about. I’m not planning to talk a lot about that but obviously as a science-based organisation the RSPB is heavily involved with that and a range of other scientific projects to try and identify solutions to some of the issues on-going in this area. I should also say, just briefly at the outset, as a science-based organisation our focus is on the conservation of raptors, we’re informed by the science, our focus is on raptor populations. We are not opposed to hunting as an organisation provided it’s carried out sustainably and legally.

Taking us back to the beginning, I think the advent of the Scottish Parliament has seen political unity break out on this issue, and I’m minded to remind you all of Donald Dewar’s statement that the persecution of birds of prey in Scotland is a national disgrace, and subsequent Environment Ministers of all political persuasions that we’ve had in power in Scotland have also pretty well taken this sort of line. This is not a political issue, this is a significant conservation issue. The RSPB is involved with this because it is a conservation issue and we’re rightly standing up for the interests of raptors. And I would also remind you at this stage that there are no enlightened countries, shall we say, in the world, that I think I can point to, where people are allowed to illegally, or, in most cases I would also say, legally kill raptors. They’re rightly protected as I’ll come on to say.

So just talking about some of the issues, this is the Skibo Estate in Sutherland taking you back a few years, in the foreground you’ll see one of three golden eagles that were found poisoned on that estate. Why should we be concerned about this? This incident, in itself, has probably resulted in a set-back for that local golden eagle population for many many years to come, that one incident. So the question we ask ourselves here is, why has this been allowed to happen? The individuals that have been involved with this, why are they involved with the hunting industry? Why haven’t they been removed by the hunting industry? Why haven’t they been marginalised? Instead, we see some of these people held up as exemplars of best practice, in particularly in the grouse moor industry, and that is very disappointing and I think that has to be addressed.

I’ll also remind you that raptors are not just important as the Minister said, on their own volition, in their own right, they’re also important because they’re important to local economies. Need I say the story of the sea eagle, a reintroduced species, its value to the local Mull economy – £5 million per annum. People come to Scotland to see our environment, they’re attracted to seeing some of these iconic species that we have here, the sea eagle is one of those.

Another example, and there are examples across the whole of Scotland, the length and breadth of Scotland, the Galloway Kite Trail, also bringing in hundreds of thousands of pounds a year to a local Dumfries & Galloway economy. And some of these benefits that come from raptor conservation, supported it has to be said by local estates and enlightened land owners, they are now very important to the economies of some of our most rural areas in Scotland.

So why are raptors protected? And this is a very fundamental point which informs very much how we think about this issue. Firstly, they’re long-lived birds with slow reproductive rates, so illegal killing can be highly detrimental to their populations. Scotland also has a particularly poor history in conserving our raptor species. We have had national extinctions, I mean even birds like the buzzards, because of what we did two centuries ago, were driven to the edge of what should be their former range and only now are some of these species recovering their populations, and indeed, some have had to be reintroduced by humans with the support of local land owners because they were driven to extinction, and the red kite and the sea eagle being those. And we still, I’m afraid, based on some of this history, still have a prejudice in the UK and Scotland towards predators, and this isn’t just raptors, this is all sorts of predators, you know, big cats, wild cats, pine martens, otters, badgers, there is prejudice against these species as well, which persists in some places.

So I want to touch now just on what the impact of illegal killing has on three raptor species and I’m taking the golden eagle, hen harrier and red kite as examples, and we now have a very good body of science to support these assertions.

Conservation status of the golden eagle in ScotlandSo I’m referring here to the SNH Golden Eagle Framework, and here the red areas that are on the map show the areas in Scotland where the golden eagle population is considered to be in unfavourable conservation status. And overlaid on that map are the incidents of illegal persecution, poisoning incidents, between 2006 and 2012. And you’ll see there’s a strong coincidence with illegal persecution of golden eagle poisoning in this case and where the bird is in unfavourable conservation status. And in 2012 alone, I’ll just highlight three cases of crime against golden eagles that were detected: one in the far north west of Scotland, one in the Angus area and the other in Dumfries & Galloway/Strathclyde border. And every time one of these cases happens, I would say, you know, the trust that should be there between land managers and conservationists takes a step back.

With hen harrier I take you back to 2000 and a case in Strathspey in Morayshire, and here was a case of a gamekeeper shooting a hen harrier at the nest, successfully convicted for this, and I’m afraid that this was the first successful conviction of a gamekeeper for killing a hen harrier, although this is considered to be widespread practice, and I’ve put this in really just to show how difficult it is to secure convictions in this kind of case because these cases occur in remote areas, in this case on a grouse moor, you know, far away from public roads, it is difficult to get access and bring these people to justice but in this case we were successful in doing that and subsequently there have also been a couple of other successful convictions. But we think this is still widespread practice, and following on from the Joint Raptor Study than Simon mentioned earlier, we do know that that resulted in an escalation of crime against hen harriers because people saw that hen harriers were blamed for suppressing grouse populations and as a result people saw justification for taking the law into their own hands. And in 2010, as a result of this, we’ve just carried out a national population survey with the Raptor Study Groups and others, into hen harriers, we have a national population decline of 20% in hen harriers. And if I tell you that on grouse moors, driven grouse moors in the UK, we only have five breeding pairs of hen harriers, and as many of you will know the hen harrier is on the verge of extinction in England as a result of human persecution. Other work that has been done by people in this room actually and GWCT and others has shown that there is room for 500 breeding pairs of hen harriers on driven grouse moors in the UK, so their population is being suppressed  and they are at very low levels. And I’ve just put this in to show that this is a species that isn’t affected really by illegal poisoning – most of the impacts on hen harriers are either by direct nest destruction, or in this case, illegal trapping. You can see a male hen harrier there, caught in a leg-hold trap.

red kite 12And red kite, a species which I have a fair bit of involvement with myself, again we’re in a unique situation here where we have an almost totally marked population of birds, because the bird was reintroduced, all the birds that were released were wing-tagged and we know the fate of these birds because we’ve been radio-tracking them and recording all the wing tag data. And we’re also in a position where we’re able to compare between two reintroduction areas so in the south of England, in the Chilterns, there was a similar reintroduction and we released the same number of birds, about 90 birds were released, also 90 birds in north Scotland and the population in 2006 of red kites in the Chilterns area, with similar productivity, same number of young produced compared roughly to north Scotland is over 300 pairs whereas in north Scotland the population has bubbled along and has stayed pretty well static at about 50 breeding pairs. Indeed the Chilterns population this year is nearly 1,000 breeding pairs whereas the north Scotland population is still stuck below 60 breeding pairs. And the main difference between these rates of growth is explained by the prevailing levels of illegal poisoning in the two countries, i.e. we have far higher levels of illegal poisoning. And last time I was here speaking to you was about red kites and I reported that since reintroduction we’d found 50 kites that had been confirmed as being illegally poisoned since reintroduction began in 1989 and that figure is now 75 in Scotland. And where is this happening? There is a strong coincidence, illegal activity in the east of Scotland in the areas shaded, which are grouse moors, hence the work we’re doing at Langholm and elsewhere to try and find some solutions to this problem. And increasingly it is looking like the driven grouse moor areas are the problem areas to focus on.

The big concern if you like with the driven grouse shooting set-up these days is that this sport seems to be moving into a new, more intensive phase. So over the past 10-15 years we’ve seen land management systems that have been employed for England for quite a number of years, coming up to Scotland, means more intensive management, more keepers, more predator control, killing as you’re aware of hares and deer tick hosts, increased burning, and we’ve mapped this and we know that there is a strong coincidence where this intensive management is coming in there is a prevalence also of illegal raptor persecution. And I would see this very much as the problem area to focus on in the forthcoming years. There have been some very notorious cases of course, that have occurred in these places where this intensification of management has taken place, in this case ‘Alma’, a golden eagle being radio-tracked and being found dead in the Angus glens a few years ago, illegally poisoned.

So is the situation improving? I think the answer is yes in some places, and this is a map of BTO data on the breeding bird survey buzzard trend, and you will see that the buzzard population, as many of you will know, has increased quite rapidly in recent years but now it’s plateau-ed off as you’d expect and we have a largely stable buzzard population but this species is still absent from some areas of its former range but I think the next breeding bird atlas, coordinated by BTO, will show that the buzzard has recovered large areas of its former range, which is good progress.

Earlier today we were talking about the illegal poisoning incidents in Scotland. This is a bar chart showing the number of reported poisoning incidents over the years since 1989, and as the Minister mentioned, over the past couple of years we have seen a significant decline in illegal poisoning and that is again very good progress. We would say this is informed by a few things perhaps as background which have helped us get to where we are today and this is work in progress, there’s no room for complacency here and we will work with Scottish Land and Estates and others to make sure that we continue to bear down on this problem.

AlmaBut the high point [on the graph] in 2009 was when Alma, the eagle that I mentioned earlier, was found poisoned. We also had a case, the Skibo case also mentioned earlier, a seizure of 10kg of Carbofuran, one of the poisons most implicated in illegal poisoning. And then again, 2011, another satellite-tagged eagle found poisoned. And of course the introduction of vicarious liability making land owners more responsible for the actions of their employees. These welcome steps, apart from the poisonings of course, are helping to move the situation onwards but as I say, we’re not complacent and we will continue to work with partners in the Partnership Against Wildlife Crime to bear down on this problem. What we’ve learned through poisoning hopefully will transfer to other types of raptor crime in due course.

Ok, this is just to remind you also that there are quite a large number of birds that have been killed since 1989 through illegal poisoning – 930 birds and animals have been discovered poisoned and hopefully in the future we can make a dent in that situation. Ultimately, consign illegal poisoning to history, that’s what we want to do.

But also worth mentioning that birds of prey are killed in other ways, they’re shot, trapped or have their nests destroyed and we need to start progressing that as well, as was stated earlier.

So what are the solutions? As we’ve heard earlier, we’re developing legal alternatives to killing birds of prey, and diversionary feeding is one such method, which in the case of the hen harrier has been shown to be pretty effective and we hope over the next few years the grouse moor sector will start adopting this technique and rolling it out across driven grouse moors across Scotland and perhaps even in the north of England. These are legal techniques to solve problems.

I think we also need a model of how grouse moors can be managed more sustainably. It’s not acceptable that this continued intensification occurs and the people that are involved with it are held up as exemplars of best practice if that involves illegal activity. We need a model that fits more with 21st century public expectations and is not predicated on ever-increasing grouse bags. Some of the moors which we see now have the highest grouse bags they’ve had for many years. You would think there would be room for raptors there. They also don’t have the grouse cycle that they used to have because we have medicated grit and other methods developed by GWCT to prevent that from happening. So why can’t these places tolerate raptors? Many of the grouse moors that we’re talking about here don’t have any breeding raptors, let alone hen harriers and eagles, they are black holes for raptors. But we also need more land owners and their employees to work with the police and marginalise those who undermine other good practice and that is happening to a large extent now, through PAW and the work of Scottish Land and Estates and others and we very much welcome that.

And of course there has to be a deterrent out there and that includes effectively robust policing, enforcement, to deal with those serious incidents when they occur.

And I throw this open, but do we need more regulation of the sporting industry? It was discussed last time, the Wildlife and Natural Environment (WANE) Act went through the Scottish Parliament. We have one of the most unregulated shooting industry anywhere in the world. Does this contribute to this problem? In Germany, North America, Scandinavia, other countries, they have quite an established system of regulation for hunting.

But what it’s all about for us, and we will measure success of all of these actions, is through improved populations of the key species, in this case goshawks, ospreys, hen harriers. That is how we will measure progress. But this will be delivered through a range of partnership arrangements as well. It’s easy to knock these partnership arrangements but they are important. They build trust, they build dialogue and in Scotland as a small country of only 5 million people we have good communication between most of the key players here, and that can only help us move this along.

I’m delighted that Scottish Land and Estates are developing their Wildlife Estates initiative; some RSPB staff are involved with helping develop this and we will help Scottish Land and Estates encourage those good land owners who want to do the right thing as we move forward with that programme.

The Langholm Demonstration Project, I won’t dwell on that in detail because Simon’s covered a lot of it – a very important project. This is the model for sustainable grouse moor management going forward. Many of you  may not see that, and Simon said, it’s not without problems, the project, but we’re working our way through those problems as partners, and this less intensive approach to grouse moor management, within the law, with protected raptor species, has to be the way forward, and a combination of hunting and conservation occurs.

And of course I should mention the Partnership Against Wildlife Crime, which over the past few years has really developed into a solid partnership and we’re all working together in the same direction. Thank you very much”.

2013 wildlife crime conference: Paul Wheelhouse, Environment minister

The 2013 Scottish Police Wildlife Crime conference took place last Thursday (14th March). Many of this year’s presentations were once again directly relevant to raptor persecution and we’ll be commenting on these in due course.

To start off this year’s blog series, here are excerpts from the Environment Minister’s speech. He started by thanking the organisers etc before moving onto the meaty stuff:

“We’re now more than a year on since the passing of the Wildlife & Natural Environment (Scotland) Act 2011 and my predecessor, Stewart Stevenson, stood here last year and, amongst other things, talked about the new vicarious liability provisions. Now, we’ve not seen any prosecutions under the vicarious liability yet; I think it remains very likely that circumstances will arise in the future when these provisions can be brought into play and we will all be very interested to see how they work out in court.

In the meantime though, I am certain that whilst persecution of wild birds does exist in parts of our countryside, this change in the law has already had a deterrent effect as responsible land managers take a close look at management practices and training for employees and contractors. As Stewart said last year, we’ve never been out to get prosecutions; we just want to see an end to these criminal acts. However, if a conviction is what it takes to make those breaking the law stop, take notice and address their behaviour, then so be it. I shall be keeping an eye on this particular area with interest. A true test of course may be when we see raptors in all areas that should be their natural habitat and a disappearance of these ‘not spots’.

So what’s coming up in 2013? Legislative changes my team of policy officials have been working on which are of relevance to the conference include provisions relating to snaring, and invasive non-native species, and you will be hearing more from Catherine Murdoch about non-native species later today, and Kenny Wilmott from BASC will be talking about the importance of keeping up to date in relation to the use of snares and traps.

2013 will also see the publication of the first government report into wildlife crime. Policy officials are currently working on this and I’m sure it will make for an interesting read and it will no doubt provide a focal point to drive forward the debate on what is a very important topic. What we are looking to achieve with this report is an idea of what wildlife crime in Scotland looks like overall, the big picture if you will. This will not be easy because it’s the first report, there’ll be nothing to compare it with. However, like poisoning maps, once we have a few reports published we will hopefully start to see trends and pictures emerge. It will also be a challenge to compare data from all of the different agencies such as the police, National Wildlife Crime Unit, the Crown Office and the Scottish Government Justice Department. However challenging that may be, it is an extremely worthwhile cause. And unfortunately crimes and any resulting prosecutions don’t fall neatly into calendar years. They also are not always recorded in a manner which allows for obvious interpretation of the charges. So for example, where there is more than one charge, which so often occurs in the lesser charges of wildlife crimes, then the main charge is usually what appears in the records. We’ll therefore be looking to present the data as simply as possible, but with a view to ensuring any comparisons are meaningful, if indeed that is possible. And I’m looking forward to the publication of this report to act as a standard we can use going forward. I will leave the experts to talk to you about the legislative changes across the rest of today, however should you fancy a chat with a policy official over a sausage roll at lunch, please feel free to collar any one of them.

I’d like now to turn to the annual raptor poisoning maps which were published this morning. These maps generate significant media interest and many of you will already have seen the figures. There has been a major drop in confirmed incident numbers recorded for 2012 and this must be welcomed in the warmest possible terms. Whilst any poisoning is unacceptable, the fact that just three birds were confirmed poisoned in 2012 – a golden eagle and two buzzards – must represent progress. This is the second significant drop in two years and we hope it is evidence of the beginning of the end of poisoning of birds of prey in Scotland. We are now, however, facing a critical moment with the maps. The purpose of the maps is to highlight problem areas with an agreed and confirmed set of data, and to build the partnership working within PAW. So, so far we’ve made good progress on those objectives but we cannot now afford to see things slipping back. So let me make it abundantly clear: poisoning cannot be replaced with other types of persecution, and whilst it’s not appropriate for me to elaborate, I was heartened to hear that the police investigation into the 2012 poisoning case for a buzzard has made progress. And it does sicken me that unfortunately, once again, a bird has died as a result of Carbofuran poisoning, but I very much hope to see a positive outcome in that particular case. If we do continue to see a downward trend with the poisoning maps, but there is evidence perhaps of other types of persecution taking its place, as I’ve already said on the record, I will have no hesitation nor indeed very little option but to consider what other measures might be necessary.

optableLast year we lost two golden eagles – one was poisoned, another was found dead in suspicious circumstances, whilst a third which was shot is thankfully in recovery with the SSPCA, and I must thank Chief Superintendant Mike Flynn and his colleagues for their excellent efforts in caring for the eagle so far and I look forward to one day seeing that particular victim of a crime return to good health. These golden eagle incidents generated a huge amount of media and public interest and rightly so, as our golden eagles are part of what makes up our national identity. As a partnership we share a duty of care to work hard to stop wildlife crime and as I stated earlier, we will know if we’ve achieved success when we see the raptors return to areas where they are currently absent. And we must also recognise that this will not happen overnight.

Keeping on the raptor theme, the Raptor Persecution Priority Delivery Group, which is a key PAW Scotland group, has been continuing to look at a number of initiatives, latest being a hen harrier action plan. The members of this group have come up with a strategy to look at the status of this species across Scotland and see what can be done to help it recover. Whilst the plan is still being finalised I wanted to draw your attention to it and highlight what work is being done in the background. This is an exciting piece of work and I hope it will build on the partnership working approach by involving all those on the ground in monitoring and reporting on nesting birds. If I’m standing here this time next year, I hope that I’ll be able to give you an update as to what’s been accomplished and that genuine progress is being observed”.

The Minister then went on to discuss other areas of wildlife crime, police reform in Scotland and the Year of Natural Scotland. He ended by thanking everyone for their work and particularly on behalf of “the innocent victims of wildlife crime who clearly cannot speak for themselves”.

Comment:

It’s tempting to make comparisons between Scotland’s Environment Minister and his UK equivalent. In light of the UK government’s appalling recent attitude towards dealing with wildlife crime, Wheelhouse looks like an environmental god. He isn’t that, but he is certainly a good way further ahead than his contemporaries south of the border. But although comparisons are useful, it’s also important to assess his presentation just within the context of Scottish wildlife crime, and particularly within the field of raptor persecution.

In our opinion, this presentation drew the battle line. Wheelhouse is exceptionally well-informed on the persecution issue (especially for someone who has only been in post for six months), he understands the important details of how these crimes are reported (or not reported) and he seems genuinely determined that raptor persecution will not be allowed to continue on his watch.

Wheelhouse is clearly not fooled by the superficial short-term results of the poisoning maps. He understands that other persecution methods are being used to achieve the same effect. He understands that despite vicarious liability and other measures, persecution will undoubtedly continue. He understands that the only true measure of success will be the return of raptors into areas where currently they are conspicuously absent. He understands the shambolic state of raptor crime reporting and the limitations of the data in their current format. He understands the fury and frustration we all experience when we hear of yet another persecuted bird of prey and he seems to understand that our patience has run out – we simply will not tolerate this disgraceful practice any longer.

Of course, it’s easy to give a rousing speech and to say the things the audience wants to hear. It’s fair to say that most of us have become jaded by the empty rhetoric that’s been heaped on us decade after decade while the raptor killing continues right under our noses. However, to be fair to Wheelhouse, he personally is not responsible for all those previous platitudes and promises. Is he going to be different and stick by his commitment to stamp out persecution? More than with any other Environment Minister of recent years, there is a sense that something is going to happen this time. As always though, it will be the actions that follow the words that we’ll be taking the most interest in. The battle line has most definitely been drawn and now it’s a question of watching and waiting. The next persecution incident is just around the corner…

No need to criminalise possession of Carbofuran, reckons UK govt

EACLast October the cross-party Environmental Audit Committee recommended a range of measures to help tackle wildlife crime in the UK (excluding Scotland) following an extensive public inquiry into the scale of wildlife crime (see here, here, here, here, here for previous blog entries). The recommended measures included:

  • Criminalising the ‘possession’ — not just the use — of the poison Carbofuran, to make it easier to secure bird poisoning convictions;
  • Introducing an offence of vicarious liability to make landowners responsible for wildlife crimes on their land;
  • Providing long-term Home Office and Defra funding to the National Wildlife Crime Unit, and
  • Tightening up the recording of wildlife crime data to help keep track and tackle trends in wildlife crime.

Today, the Government has published its response to the EAC report and has rejected calls from MPs to criminalise possession of Carbofuran and has refused to give funding certainty for the National Wildlife Crime Unit.

Chair of the Environmental Audit Committee, Joan Walley MP, said:

“The Government has missed an opportunity to take two simple measures to protect important wildlife threatened by poachers and criminals in the UK.

It has failed to follow Scotland’s lead in criminalising possession of carbofuran – the main poison used to kill birds of prey. And it has refused to provide the long-term financial certainty that the National Wildlife Crime Unit needs, only making money available for the next 12 months.

It’s good news that the Government will watch how well the ‘vicarious liability’ law works in Scotland, making landowners responsible for what happens on their estates. But the Government should also look at how well the tougher law in Scotland acts as a deterrent, not simply how many convictions there are there.”

Here are the government’s specific responses on the two measures directly relating to raptor persecution:

Recommended measure: To discharge its obligations under the EC Birds Directive, to demonstrate its commitment to addressing raptor persecution and to send a clear signal that it regards poisoning birds of prey as wholly unacceptable, we recommend that the Government immediately introduces an Order under Section 43 of the Natural Environment and Rural Communities Act 2006 proscribing possession of carbofuran and other similar substances in England and Wales.

Government’s response: The Government is firmly committed to addressing raptor persecution in England and Wales and this is one of the UK’s wildlife crime priorities (with a focus on hen harrier, goshawk, golden eagle, white-tailed eagle, red kite and peregrine). There is a robust legal framework for protecting birds of prey with penalties which can include imprisonment for offenders.

Approvals for pesticide products containing carbofuran were revoked in 2001; this means that the advertisement, sale, supply, storage or use of products containing carbofuran is already a criminal offence under existing UK pesticide legislation. This offence carries, on conviction, an unlimited fine.

Similar restrictions apply to all other pesticides as the basis of UK and EU pesticide legislation is that no pesticide may be sold, stored or used unless it is first approved. All sale, storage and use of approved pesticides are subject to strict legislative control and are also subject to a code of practice3  as published by Defra.

Additionally the use of any poisonous substance to kill or take wild birds is already an offence under section 5 of the Wildlife and Countryside Act 1981. The laws surrounding the possession of pesticides, such as carbofuran, which are harmful to wildlife, have been considered, and the conclusion is that there are alternative ways to handle the issue other than introducing an Order under s.43 of the Natural Environment and Rural Communities Act 2006. These include the existing powers under UK pesticide legislation (the Plant Protection Products Regulations 2011 and the Plant Protection Products (Sustainable Use) Regulations 2012), or by encouraging participation in amnesty initiatives, such as the Home Office’s pesticide amnesty, which have already been run very successfully.

 It is difficult to see what more the Government could do that could make it any worse for someone caught using or possessing carbofuran or other similar pesticides.

Recommended measure: Given the scale of ongoing persecution of birds of prey, the current law appears to carry insufficient deterrent weight. We recommend that the Government evaluates the effect of the introduction of an offence of vicarious liability in relation to raptor persecution in Scotland and considers introducing a similar offence in England and Wales in that light. We expect the Government to report to us, or otherwise publish, the results of that review within the next 12 months.

Government’s response: There is already strong legal protection afforded to birds of prey through the provisions of the Wildlife and Countryside Act 1981 where it is an offence to intentionally kill or injure any wild bird; take, damage or destroy the nest of any wild bird while that nest is in use or being built; or take or destroy an egg of any wild bird.

Some birds are further protected by their listing in Schedule 1 to the Act. It is an offence to intentionally or recklessly disturb them while they are building a nest, or are on, in, or near a nest containing eggs or their young. Native raptors are listed in the Schedule and so are afforded this additional protection.

The Scottish Government introduced the concept of vicarious liability for certain offences by an employee or agent through the Wildlife and Natural Environment Act (Scotland) 2011 which inserted a new section 18A into the Wildlife and Countryside Act 1981 (as it applies in Scotland). This provision came into force in January 2012 but it is early days, and as yet there have not been any convictions under the new provisions. While there are no plans to introduce similar vicarious liability offences in England, we will be looking closely at how the new offences in Scotland work in practice and once prosecutions begin to be brought forward it will be possible to start to assess the impact that the introduction of this legislation has made. It is important that such measures are able to deliver a real improvement in the enforcement of wildlife offences if they are to be considered in the shaping of our future wildlife crime policy in England and as yet it is not possible to assess the effect of these measures.

We are happy to review this as soon as suitable statistics are available.

To read all of the Government’s responses, read the report here.