Following my blog on Thursday I did phone the NE helpline to ask where I could find the information promised by their Minister, Richard Benyon, in his Parliamentary reply (see Thursday’s blog to catch up on this subject  – and read the comments there too).  The people I spoke to were very helpful and mentioned that I wasn’t the first person to be asking about this subject – so I directed them towards my blog.

I received an email later in the day asking whether this report was what I was after, to which I had to reply that they would have to ask their Minister that question, but if this was all they could find then it probably was.

This report is a good report – its title is particularly good; A future for the hen harrier in England?  The question mark is of great importance here as last week’s news suggests that the answer to the question might be ‘No’ and I notice that the question mark falls off in other mentions of the report on NE’s website (funny that).

It was refreshing to read what the government’s nature conservation advisor in England (those were the days when NE was much more than a ‘delivery body’ for government) said then about the hen harrier.  Here are some quotes:

  • evidence of persecution is irrefutable
  • we have observed masked and/or armed individuals in the vicinity of nest and roost sites and recorded activities likely to disturb birds at or near their nests
  • we have nevertheless found direct evidence that Hen Harriers have been persecuted
  • we have, for instance, been looking into the disappearance of six Hen Harriers at an autumn roost known to us in the northern uplands. The anecdotal evidence of deliberate persecution given to us in confidence by a local land manager correlates with the information provided by the last known location of a number of birds that were being radio-tracked by project staff
  • a number of birds, including six birds fitted with satellite transmitters have been tracked from the Bowland Fells into parts of the North Pennines managed principally as driven grouse moors, and have not been recorded subsequently
  • in three incidents nests had been destroyed by illegal burning
  • we have also come across eight instances where other birds of prey have been shot, poisoned or disappeared on sites where Hen Harriers have been observed

It probably just slipped the Minister’s mind to mention any of that in his Parliamentary answer.

I have a lot of time for Richard Benyon, I encountered him many times whilst I worked for the RSPB, and I remember him saying some very nice things about me when he heard I was leaving the RSPB, for which I thanked him at the time (and thank him again here), but is he looking like a biodiversity minister when he deals with these issues or does he look like a fellow grouse moor owner?

Mr Benyon is a past trustee of the Game and Wildlife Conservation Trust although it was quite a long time ago (1994-97) (as is another of his fellow Defra Ministers, James Paice; from 2003-09) and I would put £100 up to 1p that the GWCT has members, supporters and funders with grouse moor interests in the north of England (those are odds of 10,000 to 1 on).

Mr Benyon himself appears to have some grouse moor interests.  In the Register of Members’ Interests he properly declares ‘rural land and property in Inverness-shire’ and this appears to be at Glenmazeran. Glenmazeran is an estate which has signed up to being against bird of prey persecution which is good to see.  And a Richard Benyon from Glenmazeran isn’t terribly keen on windfarms we discover (at least, not in his back yard).  You can go and stay at Glenmazeran Lodge for a spot of flyfishing and grouse shooting.

And so it may come as little surprise that Mr Benyon is not keen on the idea of vicarious liability for land owners (but I am – please sign up here).  And we still await Defra’s response to my FoI and EIR request for information about any role (there may be none) that Mr Benyon played in the Walshaw Moor affair.

I wonder whether Mr Benyon has been shown the map of hen harrier movements from the NE study.  I’d like to see this map please.  Just a map of final resting locations of harriers whose transmitters ceased to work would be interesting enough given that we are told that some of them which were being satellite tracked disappeared in grouse moor areas.  Which grouse moor areas were these, please?  Can we, the funders of this research, please see the map?

The point is, Minister, you didn’t properly answer Fiona O’Donnell’s question did you?  You didn’t mention disappearance of birds.  You actually said that hen harriers wander around and then return to breed – are you sure that is entirely truthful?  Don’t some of them end up legs-up in the heather of grouse moors? Your answer was misleading in my opinion simply on the basis of what  the report actually says.   I am sure you did not mean to mislead, and you may not ever have seen the report yourself and you may not realise that the report had such a lot of mentions of illegal persecution but you didn’t mention it at all.

But the report itself was pretty guarded in what it said.  It is now time for NE and Defra to be more open about what that study suggests is happening to hen harriers and where it is happening.   Did the tracked harriers all disappear while flying over TESCO car parks – if so we should be told as TESCO sites are clearly very dangerous for them? Did the hen harriers tend to disappear over Forestry Commission woodland – if so we should be told as this gives us a strong clue about the reasons for the declining population of the hen harrier in England? Or do the hen harriers tend to disappear when flying over grouse moors, or even some particular  grouse moors?

Come clean please, Minister, on what that NE study actually found.



33 Replies to “Harriers”

  1. The big question for me is just how long people like Richard Benyon who I believe is doing his best to do the right thing (and obey the law, surely a prerequisite for one oher majesty’s Ministers !?) have to go on covering for people who are increasingly blatantly breaking the law ?

  2. Hi Mark. Agree entirely. I suspect the key to Richard Benyon’s current approach is also contained within his comments about peer reviewed papers which I referred to in my own Blog “A shameful disgrace” ( http://www.birdingodyssey.blogspot.com/ ) last week. His lack of enthusiasm or firm commitment about the appearance of results suggests the matter is being “shut down” as far as ever possible. The next delay will be the disappearance of the map!
    Given the PhD. thesis has not yet been submitted ( I believe ), I think we spare a thought for the guy caught in the middle of this, whose results portray the problem, but whose efforts will no longer be applauded by Natural England, his Minister or grouse moor owners. But it was NE who commissioned the study ( for which “well done” ), and action we learn is going to be continued in 2012-13. It is important we all endorse this to prevent it becoming a sudden victim of “necessary budget cuts”.

    1. Mike, well done for trying at any rate. The application of Reg 12 (5) (g) to justify not revealing the locations where the tags failed is bitterly ironic as, clearly the criminals who are disposed to shoot and poison hen harriers already know full well where they are! Releasing this information, on the other hand, would shine a revealing public light on where are the places that are so dangerous to Hen Harriers and on what they have in common.

    2. Disappointing brush off, but I suspect that if the data is out there it will come out eventually. In the age of Wikileaks these things do. Then it will be interesting to re-visit all those who tried to suppress the information and ask them why. As it is even the incomplete evidence presented in the report is damning. In particular the quote extracted by Mark Avery:

      “a number of birds, including six birds fitted with satellite transmitters have been tracked from the Bowland Fells into parts of the North Pennines managed principally as driven grouse moors, and have not been recorded subsequently.”

      One wonders why this information hasn’t lead to investigations and prosecutions.

    3. I have written to ask Rosemary Budd whether a crime was committed regarding those missing satellite tagged Hen Harriers and if so, to which police authority was it reported and what was the outcome.
      I have always wondered what happened to the satellite tagged eagles that have died. Is the press not interested in a a story?

  3. In reply to Rod Leslie, it was the blatant raising of a metaphorical “two fingers” by sporting land managers to the “settled will of the people” which resulted finally in the Scottish Government introducing vicarious liablility – so well done Roseanna Cunningham. It remains to be seen quite how useful this law is going to be.

    It was also the worst of the bunch in land management practice over public access that eventually led to the Land Reform Act in Scotland which has produced arguably the most progressive public access legislation in Europe.

    Its up to ‘the people’ as to how long they allow governments to avoid action.

  4. How long do you feel the RSPB will carry on not supporting the e petition? If the numbers stay so low the shooting estates will be able to use it against future attempts to bring in the new law.

  5. BHi Mark,

    Criminal vicarious liability is an interesting one and I find it a much harder thing to justify than civil vicarious liability. I’d be interested to know if you are suggesting the former or the latter. To me it’s an important distinction.

    We don’t have criminal vicarious liability for many crimes including far more serious ones such as rape, murder etc. Although we do have criminal offences such as corporate manslaughter however I don’t believe these are really vicarious crimes because they have to involve a management failing.

    If you mean criminal liability what is your argument for it wrt harriers? I think you need something a bit stronger than that it is a crime you really care about.

    1. Reading from the text of a petition “This petition calls on the government to introduce an offence of vicarious liability to bring to justice those who direct or turn a blind eye to raptor persecution in England.”

      now to my mind if you want to bring people to justice for doing this then you have to prove that they have “directed or turn a blind eye to raptor persecution in England.”

      If you want to pin a crime on a landowner for a crime committed on his/her estate because it’s easier to pin it on him than prove who actually did it then I think you are on slightly dodgy ground. That’s not to say that I don’t accept that it is a serious crime because clearly it is but as I said above I am not sure that the seriousness of a crime is an argument for vicarious liability.

      Generally vicarious liability means that an employer is liable for the actions of his employee and would require in any case that it was proved that the actions were by his employee. Would that have to be the case with this new offence or would the law just have to prove that a raptor was persecuted on someone’s land for them to be liable. And in that case what about when the crime genuinely is undertaken by someone unconnected or not in the employ of the landowner and without his knowledge?

      There’s a much stronger case to be made for some form of CIVIL vicarious liability in my view partly because the burden of proof in such cases is just on a balance of probabilities.

      1. Giles,
        if you have read my earlier posts you will know that I have been involved in birds of prey and harriers in particular for a very long time. In that time I have come to know quite a number of grouse keepers some of whom have undoubtedly broken the law, a few I know have broken the law, one of the common denominators to the wildlife crimes they may or may not have committed is that, according to almost all of them, “no keeper persecutes without being instructed to”. That being the case we need a change in the law because under the wildlife and countryside act one can only prosecute the offender not, sadly the commissioner of the crime, be that agent, owner or shooting tenant. It really is that simple, if in the course of most people’s jobs if they break the law they and usually their employer are liable, why should the shooting industry be any different? Until the time that the law is changed then keepers will continue to be fall guys for those who commission the crime and pay the fines.

        On a slightly different note Mark asked me indirectly whether I thought that all keepers we ” at it”. The answer is no but in a lifetime of harrier interest I can count the number that weren’t, or given the opportunity would not, on the fingers of one hand when it comes to harriers or to misquote slightly an ex police WCO the only keepers who don’t kill harriers are those who don’t have the opportunity. I might also say that of those keepers I have known who didn’t three were sacked because they didn’t.

        1. I would absolutely agree that there should be a crime if a landowner commissions a gamekeeper to persecute a bird of prey. But in that case its the landowner as well as the gamekeeper who has committed a crime and in both cases guilt should have to be proved. The idea of ‘vicarious liability’ is making the landowner liable for the crimes of his keeper without having to prove he instructed him to commit a crime. That to me is a very different thing.

          I might have this wrong but does even the gamekeeper have to be proved to have committed a crime for the landowner to be guilty under the proposals?
          Also under this vicarious rule would it even have to be proved that the gamekeeper (or some other employee) of the landowner had poisoned/shot the bird?

          “It really is that simple, if in the course of most people’s jobs if they break the law they and usually their employer are liable, why should the shooting industry be any different?” That is by no means always the case. Employers are liable for the negligence of an employee which is a civil tort however they are not often liable for criminal offences unless it can be proved that they played a role in their commission by for example instructing the employee to act.

          For example the NHS managers were not liable for Beverly Allit’s crimes although they certainly would have a liability of they instructed her to kill children. However that would have to be proved in a court of law.

          This may seem a bit facaetious but it’s quite an important point imo. We should not short circuit the need to prove people guilty before finding them guilty of a criminal offence.

          IMO it might be better going for something like the ‘polluter pays’ principle. From what I understand this would not require the same burden of proof required in criminal cases and a vicarious liability would make much more sense. The Landowner would be vicariously liable to pay for the environmental damage that his estate has caused. In much the same way as a company has to pay if one of its employees leaves a tap on. For the last breeding pair of harriers in England I’d imagine that could be a vast amount of money. Maybe several million pounds.

          Criminal sanctions would still apply to the landowner and gamekeeper but only if they could be proved to have committed a crime. Ie actually poisoning the bird or instructing an employee to poison it.

  6. Mark —we both know the RSPB say they support the petition and will have a campaign but it seems awfully slow and muted.Think they consider petitions yesterdays way and have something in mind they think more appropriate.
    Just my reading between the lines.
    It would be nice if they made their position clear.

  7. Had to flick thorough this one.
    I want siskins they should be here but they are not !! Some folk want Capper wee animals eat the eggs.
    Harriers I suspect are harried off the ground by RSPB folk pestering em !

    1. Sorry Andy there is a very clear protocol for volunteers and licence holders in England when it comes to Harriers and whilst there have been assertions on another site that these are regularly broken there is absolutely no evidence that is the case at all. There is however very clear evidence that the problem lies within the game shooting industry, lets keep pointing the finger in the right direction!

      1. If it were found that an RSPB staffer had prevented a harrier nesting would you hold the RSPB vicariously liable on criminal charges? 😉

    2. Read the NE report linked in the blog Andy! Quite clear where the blame lies…

  8. Hear hear Paul and Giles!

    Its utterly bonkers that in other environmental legislation (but not wildlife!?) directors, landowners and even letting agents can have enforcement action taken against them. Rumour has it that civil sanctions are also supposedly coming into force within the env. permitting regs as of next year. Which is great.. So why not for WCA offences as well? Hmm, well its all about reducing the burden on business they say..regulate yourself (?) i.e. Shift the responsibility of a ‘problem’ from government to the entities producing it… so long as its also backed by the Organisation for Economic Co-operation and Development, I add.

    So regarding raptor persc, neither criminal or civil sanctions will even get an English hearing at this rate, despite it being in force in Scotland.. I assume the reason it came into force there was down to sufficient evidence based pressure?

    What’s even more bonkers is that all it takes is 1 in 10 petition signatories amongst the RSPB membership to reach the target for a parliamentary debate. Let alone the countless others from all walks that are no doubt also in support. Here we are back end of May (5 months left!!) and still not even 1/10th of the way on the petition. This pressure group needs more pressure x1000!

    1. ‘What’s even more bonkers is that all it takes is 1 in 10 petition signatories amongst the RSPB membership to reach the target for a parliamentary debate. Let alone the countless others from all walks that are no doubt also in support. Here we are back end of May (5 months left!!) and still not even 1/10th of the way on the petition. This pressure group needs more pressure x1000!’

      I do agree with this.

      I think we need a fully unified campaign here. Like the Friends of the Earth’s Bee Cause. The more people are behind this in a coherent way, the better. I think the FOE did well by asking David Cameron to construct a National Bee Strategy.

      How about asking for a National Hen Harrier Strategy?

      I think now is an excellent time to start it as so many people are becoming passionate about this issue as a result of the recent Defra news.

  9. Interesting points on vicarious liability.

    Whilst in theory a landowner might be liable for a dead raptor on his land in practise I suspect conviction would only be possible with supporting evidence – and that is likely to be from the keeper. An interesting sitaution because, having shopped the boss the keeper would then be eligible for unfair dismissal if sacked, whereas at present the excuse of a conviction allows the keeper to be sacked meaning a double whammy for the guy who is probably only obeying orders. Some landowners do the decent thing (or is it hush money ?) – recalling an earlier era (actually one that may still be alive in some of the remoter parts of the country !) the keeper at the centre of a case resulting in prosecutions on no less than 3 estates in the Welsh Marches had his fare to Australia paid by his chastened boss !

  10. I really feel passionately and care increasingly about this issue. I think we can do something. I’m not an expert in the law. I did create a petition (on HM e-petitions currently) asking to ban neonicotinoids. I can’t find a hen harrier petition on there currently! Is anyone going to write one? If not, I could have a go at writing a really simple one that ‘common’ people will understand and identify with eg. how about:

    ‘Save Hen Harriers From Extinction – Ask The Government To Create A National Strategy and ask DEFRA to Re-Allocate Money for Killing Buzzards to Saving Hen Harriers Instead’

    I’ll put a link to all this on my blog, Facebook and Twitter anyway.

  11. Pingback: Save England’s Hen Harriers From Extinction Quick! We Can Do It! :-) « Nature Fairies: Conservation & Angels
  12. Natalie—–there is a “e-petition vicarious liability” which should be able to access by googling in the above.

  13. Mark, as you are probablly awair, said map does exist and shows just what you think it does. Think you aught to ask NE for it as many of their staff have seen it already and are concerned what it clearly shows.

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