Golden opportunity for the RSPB

88 Replies to “Golden opportunity for the RSPB”

1. Some good comments, Mark. Sadly, I do not think it is just bird persecution issues where the RSPB seems slow off the mark and neither is the RSPB alone amongst conservation NGOs. I recently contacted a few about local land loss issues and whilst I am aware that it is impossible to actively get involved due to the sheer number of such cases, it seems strange that no one has got themselves sufficiently organised to offer advice. Of course there could be any number of explanations why it is not possible to respond, especially in times of an economic recession. However, the total lack of (apart from an acknowledgement from Wildlife Enquiries) reply is less easy to understand and leads to the feeling that the conservation organisations are bvecoming detached from the public again. AS I said, it is not just the RSPB but local Wildlife Trusts (and others) too and seeing this from the outside has now made me see why I used to answer so many frustrated comments when I worked in Wildlife Enquiries.

2. As I pointed out yesterday, but its worth repeating, especially as martin may well read this blog, vicarious liability is (1) about more than just raptors and (2) would actually bring wildlife law in line with comparable legislation like health and safety.

   Anyone can make a mistake – even the RSPB itself may occasionally break a law because none of us are perfect and, like my profession of forestry, wardens are usually working in close proximity to wildlife, increasing the risk. So, in a forest, if the forwarder driver drives through a band of red and white tape and straight over the badger sett its marking there’s not much argument who is responsible. But if that badger sett were on the forester’s map but he forgot to put it on the site plan, mark it and inform the forwarder driver who should then be responsible ? Or, in RSPB’s case, the mistake was in the regional reserves policy and the warden was only doing what he was told. At the moment in both cases its the forwarder driver & the warden who are in the dock. Is that fair ? Surely there should be the ability to place the blame with the person most responsible ?

   I think Mark’s exposition of the gamekeepers dilemma in Fighting for Birds is spot on – its a precarious job working with an unpredictable product (birds over the guns) and bosses who not only are used to getting their own way but are effectively either showing off to their friends or have a great deal of money at stake. Its interesting that the more honorable owners can tacitly acknowledge it through their treatment of convicted keepers – I remember one case where the owner bought his disgraced keeper a ticket to Australia ! Shades of a former era… and in that case I don’t think he even knew or supported what was going on – the evidence suggested a young keeper misled by his more experienced peers.

3. The vice president of the RSPCA has recently stated on National Television that ‘we know’ that most ‘road kill’ badgers are being killed by farmers and then put on the road. This is wildlife crime on a massive scale – tens of thousands of animals being systematically and illegally killed.

   Surely by the same logic we should have an offense of vicarious liability for farmers with dead badgers on the roads adjoining their property.

   After all we ‘know’ they are guilty but the problem is we cannot prove it.

   The main problem with much of the criminal law is that it insists that we have to have evidence that someone has committed a crime that amounts to proof beyond reasonable doubt.

   The answer is simple. We need to shift the burden of proof onto the criminal so they have to prove that they didn’t commit a crime.

   For example I think Mark Avery is a rather suspicious character – he looks very shifty on his facebook profile. Can you prove exactly what you were up to last night Mark? I am sure their are numerous crimes you could be convicted of if only we did not have this outdated system whereby the prosecution would have to prove that you committed them.

   Why stop at bird crime? Let’s change the burden of proof for all crime. That way we can lock up those that we ‘know’ are guilty with out having to prove that they are.

   1. Giles – it’s all to do with responsibility – a rarely used word these days. And vicarious liability pertains to many other areas of the law. If you are someone’s boss, and if they, during the course of their work and as part of their work, commit a crime then you do bear some of the responsibility. Why should the working class gamekeeper carry the whole can IF he (or she) has been told to break the law by his boss?

      Vicarious liability exists in many other areas of the law – why not wildlife crime?

      Vicarious liability for wildlife crime exists in Scotland – why not England, Wales and NI?

      If it were not so clear that the law is being broken on a huge and systematic scale (absence of hen harriers, golden eagles etc from suitable habitat) then further measures would not be necessary. If it’s a small minority of folk who break the law then only a small minority of folk have anything to worry about.

      I look rather gormless on my Facebook profile I think.

      1. Mark you are talking complete nonsense. Vicarious CRIMINAL liability is extremely rare. Civil liability is a completely different matter because civil law does not have the same burden of proof attached to it. Civil matters are decided on a balance of probabilities. Criminal law requires proof of guilt.

         What you are proposing is that this is changed – for wildlife crime (or some wildlife crime)

         To claim that this is ‘common’ in law is simply NOT true.

      2. Answer me a simple question. Can you prove that you are not a wildlife criminal? If not why should I have to provide proof that you are not before getting you branded a criminal by the courts?

         In fact if you cannot prove you have not committed a crime why should the state not have the right to lock you up? Why should the burden of proof be on your accuser to prove your guilt?

         And if we have this situation in Scotland for wildlife crime – why not here for ALL crime?

4. “would actually bring wildlife law in line with comparable legislation like health and safety. ” That’s a completely ridiculous argument. Why bring wildlife crime into line with healthy and safety law and not murder, rape, theft, fraud, assault &c &c?

   1. The H&S laws are a very good example of how it does actually work and work well. This is because the crime is based around procedures.
      When something nasty happens, the occurence should have been anticipated (risk assessment)and procedures and responsibility for the actions necessary should be put in place to ensure it does not happen. Everyone involved in the process has a degree of reponsibility BUT the employer has the ultimate responsibilty to make sure that whole process has been undertaken.

      This translates well to the running of an estate. Everyone has a responsibility to ensure that wildlife crime does not happen, but it is the estate owners higher responsibility to accept that they have the key role in the whole management system. They are accountable for the running of the estate. A well run estate will have clear policies and procedures, good lines of comminication and the owner will know what is happening.

5. “unless they can show they were unaware of the offence and had exercised due diligence.” That is the crucial statement. It’s guilty unless you can prove you are innocent. A fundamental breech of our ancient rights.

   In a word – you are eco fascists.

   1. Are you a responsible land-owner or an ir-responsible land-owner? Its fairly straight forward.

6. (well ok two words actually)

7. And as for the argument that we need to change the burden of proof because people are getting away with wildlife crime – that is a load of complete cobblers. Are you aware of the number of men getting away with rape? You may not like wildlife crime, well women happen not to like being forced into non consensual sex.

   Why change the burden of proof for wildlife crime and not far more serious crime?

   There is a basic principle here. We have to have protection against false allegations by a requirement in law that we are innocent until proved guilty.

   Unfortunately that means that some guilty people get off.

   1. Giles – you misrepresent the argument. If someone works for me that is easily establishable. If he breaks the law then that has to be proved.

8. “If he breaks the law then that has to be proved.” – but if I break the law it does not have to be proved. That’s your argument. It says it in black on white – the burden would be on ME to prove my innocence :

   “unless they can show they were unaware of the offence and had exercised due diligence.”

9. Your argument is – you believe that employers are instructing their employees to commit wildlife crime. However under the current law you would have to prove they are doing this. So you want to remove the requirement to prove this. Indeed you want to make employees criminals unless they can prove they had no knowledge of the crime.

   Is that ‘misrepresenting’ your argument?

   1. Giles – I think you meant employers.

      1. Correct and apologies for the typo. Now would you be kind enough to confirm that my representation of your argument is correct?

         And as for “they’ve got it in Scotland so why not have it here” – if you subscribe to that then why would you not subscribe to the argument that they have it for wildlife crime so why not for rape?

         People are getting away with horrendous crimes because the law places the burden of proof on the accuser in criminal cases. That is a simple undeniable fact.

         Why not change the burden of proof for all crimes?

         1. Can you recommend a procedure for the avoidance of rape? VL relates to the implementation of responsibility for good management? Rape is random.

   2. Giles – my position (and that of the RSPB and apparently the Scottish Government, and a few other people too no doubt) is that employers have a responsibility for how their employees carry out their jobs. The BBC seems to be discovering that over the Jimmy Saville affair – and to be fair is not ducking it either. But in that case, if anything untoward did happen, it wasn’t at the instruction of the BBC was it? When gamekeepers are forced to break the law then 1) they shouldn’t but 2) they are not solely to blame for the illegality. War crimes are rarely carried out personally by Head of Government but they can be held accountable for them. Responsibility is the key. But I think we now that we will not agree on this matter.

      1. ” is that employers have a responsibility for how their employees carry out their jobs” – absolutely! That’s what civil vicarious liability does.

         “When gamekeepers are forced to break the law” – forcing an employee to break the law should be a criminal offense and subject to the normal burden of proof as holds for other criminal offenses.

         “War crimes are rarely carried out personally by Head of Government ” war crimes by heads of government require the same burden of proof as I am arguing for.

      2. “When gamekeepers are forced to break the law then 1) they shouldn’t but 2) they are not solely to blame for the illegality.” – and there you go again – pure prejudice in the literal sense of the term. You pre judge people’s criminality and seek to remove the need to prove them guilty.

      3. And it is worth pointing out that you accept that the employer may not have instructed the crime because you allow him the possibility of proving his innocence.

         If a gamekeeper having killed a bird is sufficient proof that his employer instructed him – how is it possible that his employer could prove he didn’t?

         That makes no sense at all.

         1. The crime should be that the land owner did not have sufficient control of their land and their employees.

         2. Giles, I think you are missing a very important point here. Under UK law ignorance is no excuse and whilst a court will hear such a plea if it provides appropriate information, it is unlikely to result in an acquittal. OK, that covers the person actually undertaking the dark deed but as Mark rightly says in all other areas of employment law, an employer is responsible for the actions of an employee (H&S is a good example, Circus Maxima). Therefore I put it to you that after years of examples of raptor persecution why have few of the ‘guilty’ estates (I see no rerason to tarnish estates with a good reputation not changeds their work practises as an official edict? Any employer persistantly getting caught with H&S deficiencies would be chastised and could be wound up. I am not aware of a single example where this has happened to a game estate.

            Incidentally, an employee who is persistantly asked to break the law should alert the authorities (it certainly happens in H&S) but I doubt that is a common occurence either.

10. There is a very simple way forward which you refuse to even consider – vicarious civil liability. There is such liability in many areas of law such as for example ‘the polluter pays’ principle. Estates could be made to pay very large reparations for shot raptors without the need to shift the burden of proof in criminal law in a fundamentally illiberal manner.

    I’d be very interested to hear what you think about the idea of vicarious civil liability. It’s something I would be very keen on.

11. “neither is the RSPB alone amongst conservation NGOs”

    Is this because they are covertly nurturing their lobbying activities and don’t want to seem overtly aggressive?

12. Funny how you are quick to say that the RSPB isn’t publicly supporting a campaign, but once Giles challenges you, you are equally quick to say that the RSPB’s public campaigning position is in favour of vicarious liability! How complicated. You criticise their position to back up your argument, then highlight the RSPB’s same position to back up your argument. Which seems to imply that you’re mainly interested in winning an argument (that you started yourself anyway). I would guess that they get asked to support a lot of campaigns and can’t possibly ask their members to support all of them, as it might create a loss of clarity. I’m also pretty sure I’ve seen them promote the petition on various RSPB blogs. If they’re doing that, they’re doing just as much as you are doing, aren’t they?!

    1. Linnet – hello! I have actually been very slow to say that the RSPB isn’t doing enough to support a campaign with which they agree. I have been slow because I was assured that they would. Maybe they still will.

       1. If we go down the road where people have to do nothing in order to be guilty of wildlife crime then I am becoming a wildlife criminal. I’m not prepared to harm wildlife in order to commit crime but remove the need for me to have to do that and I see no reason why not. There comes a point where laws become so obviously unjust and stupid that it is morally justified to flout them.

          1. Giles – I think you have made your point in the 14 comments on this post. Although because your argument is distributed in so many comments you might find that nobody reads them – just a thought.

             1. ah mark but you do! 🙂

             2. Giles – true! 🙂

13. If I’ve read this correctly (possibly I haven’t, in which case I am sure you’ll be quick to correct me), they have highlighted the Law Commission Review. Is it possible that they wanted people to respond to that (is it possible to respond?) rather than the petition? The vicarious liability principle is quite complicated so I can understand that they might be reluctant to ask twice. And i rather reluctantly admit that Giles possibly has a point – is it right that employers are liable for crimes committed by employees? Though my heart agrees in this case, I can think of lots of other cases where it might feel uncomfortable.

    If you have an employee who uses a company fleet car and causes death by dangerous driving, would it be fair to take the employer to court? The employee could claim that they were breaking the law because the employer was putting them under pressure to get to a meeting on time. Is that a reasonable parallel example? If it is, would it be right to prosecute the employer, who would already (like some landowners) have sacked the guilty employee?

    1. Linnet – you could have read my blog more carefully that’s true. Try reading it again.

       The RSPB said, to me, in January, on the record, and so I quoted them in Birdwatch which emerged in late February I guess, that they supported Chrissie Harper’s epetition, would promote it to their members and expected it to reach 100,000 signatures. That hasn’t happened.

       But, as you should have read in my blog, and can read in the RSPB report quoted in my blog (the link to which is near the bottom of the blog), the RSPB does support the introduction of vicarious laibility – apparently as strongly as I do. As you should have read in my blog I encouraged readers of this blog to respond to the Law Commission consultation supporting the RSPB’s 13 point plan (one point of which is vicarious liability – the link to that consultation is near the top of the blog).

    2. “would it be fair to take the employer to court?” – yes it would

       a) for civil vicarious liability – an employer should be responsible for actions of an employee undertaken as part of his/her employment – civil liability is decided on a balance of probabilities

       b) for possible criminal liability if for example it could be proved that the employer was putting undue pressure on the employee – criminal responsibility requires proof beyond reasonable doubt.

       (goes back to the naughty step)

    3. Any good employer would have protected themselves by having “use of pool vehicles ” policies. The employee would be hung out to dry and the employer would be protected. I doubt even a memo from the employer saying “you must break the speed limit” would get the employee off the hook with the offence. But I dont imagine the employer would look very good at any subsequent H&S investigation.

14. One thing that I have huge respect about you and your blog is that you are prepared to foster debate. This sets you apart from much of the ‘wildlife protection’ people who are very much not.

    I think this is because you realise that conservation/ animal welfare, human interests &c &c is a very complex matter and there are bound to be many worthwhile strands of opinion to hear. That’s how we move forwards.

    You’re wrong on vicarious criminal liability in my opinion and it is somewhat disappointing that you appear to refuse to even countenance vicarious civil liability as that would be more effective and avoids the legal can of worms opened up by criminal liability.

    I can’t see what the motivation for this is apart from the desire to attach society’s moral disapproval to people without proof.

    k will shut up for a bit as I have work to do! Maybe this afternoon I will go out and not run a badger over I won’t be able to prove I haven’t so you could take me to court and get me prosecuted as long as we remove this pesky burden of proof thing. I’m sure you do really!

15. The subject of Vicarious Liability does concern me and I hope it is not one of those bits of legislation that once introduced are then seen to be unworkable. I have read all of Giles comments and cannot help but understand where he is coming from.

    There is already good legislation out there which pushes the presumption of guilt towards the defendant. This is mainly in civil legislation and very rarely in criminal legislation (they are different -one is about responsibility and one about guilt).

    Criminal legislation adopts this approach in driving matters – If our car can be proved to be on the road, it is down to you to prove it is insured etc. Even if the car is family owned and is driven by one person without an MOT, it is never (I had better say rarely to be on the safe side) the case that the husband or wife is then prosecuted for permitting.

    There is plenty of civil legislation where an employee can do something wrong and the employer is responsible. I can understand that, but I cannot think of any criminal legislation where if one person commits an offence another person can commit that offence without the prosecution having to prove knowledge or joint action.

    You are liable for your actions but to make you liable for another’s must require some proof of knowledge. This is why vicarious liability worries me.

    I understand the wish for making an employer responsible but am not sure that this is the right legislation to do that.

    1. Bob – thanks. Well put (and in just the one comment!). But of course this does exist in Scotland so the arguments were accepted there. And there is a slight suggestion, not yet by any means certain, that offences are decreasing in Scotland perhaps as a result. I am unaware of any purported miscarriage of justice which has occurred as a result of this new legal status in Scotland but maybe somebody could tell us if there has been one.

       1. Have there been any convictions? If you define a miscarriage of justice as someone being convicted without proof of guilt then you could argue that any conviction under the new law is a miscarriage of justice. But see my previous point about exactly what the new crime is and how it will be misinterpreted.

          1. Janet – I am interested to know whether anyone is jumping up and down saying that the things that Giles says might happen, have happened. We should learn from Scotland in that the argument for this being a good legal change was accepted (so why not in England and Wales too?) but if there are indications of bad consequences coming from this legal change then we should learn from those too – if there are any. Maybe it’s too early to know?

             1. I don’t understand your point. Of course what Giles says will happen. If you have a law which does not require proof of complicity for a conviction then people will be convicted without such proof. That’s why you are arguing there should be no need for proof surely?

             2. Janet – my point is that Giles says this will be unfair. Has anything happened in Scotland, so far, where the law exists, that people say is unfair? Actually happened rather than might happen. Where is the cause celebre which shows the wrong-headedness of vicarious liability for wildlife crimes? Or is too early to say?

             3. Would you regard someone being convicted for killing raptors without it being proved they had had any part in it as being unfair?

             4. Janet – I would. Whenever any change is proposed people suggest it will have awful consequences. This was true of stopping slavery, giving women the vote and a whole load of other rather smaller changes. Often, when the change is made, none of the dire consequences imagined ever comes to pass. I am just wondering whether anything that I would think was awful has yet happened in Scotland on the subject of vicarious liability for wildlife offences. Maybe it is too early – or maybe there are no awful consequences – or maybe there are; I don’t know, that’s why I am asking.

             5. So your position is that you would regard it as unfair if someone was prosecuted without it being proved they were complicit and yet you want the law changed so they can be?

                That is a completely illogical position surely?

             6. Janet – that would be illogical but it isn’t my position. Your last comment said ‘without being proved they had any part in it’. I would take complicit as being something else (maybe I’m wrong). In simple English I’m complicit if my children kill someone in the street while I am watching them out of the window even if I didn’t do any of the killing.

             7. If the parent or employer has knowledge or should have had knowledge of the crimes of the child or employee I could see your point. For example a parent takes no action to control their children. But it should be up to the courts to show that is the case. For example should the parents of Jamie Bulger’s killers have been punished too? Maybe but it would be for the courts to demonstrate their guilt in terms of lack of supervision.

             8. Janet – agreed.

16. Ok. I’ll try this one more time. Yes, I probably could have read this more carefully. I could read most things more carefully. The fact is that, like many people, I dont have time to get completely absorbed in the detail of a lot of these arguments. This one is complicated. The RSPB knows it’s complicated too I expect – so it will probably go over the heads of most of its members. So I haven’t hung on your every word, nor can I recall everything that you or everyone else had ever said. I’m a member of the public. That’s what we do.

    And while you were preoccupied with the incidentals of my last response, you ignored the comparison I gave. This comparison, which may not be truly comparable (hence my request for clarification), is the sort of thing that would make me reluctant to support vicarious liability. If your quest is to persuade people to get behind it, you haven’t convinced me yet – because you haven’t responded to my query. But that
    may not matter to you. Possibly you’re more interested in putting me back in my box than in persuading me (or Giles, or anyone else) to sign any petition. As you’ve said before, this is your blog, so I guess that’s your choice….

    1. Linnet – yes you could have read it more carefully. I’m quite happy to be criticised and attacked for what I do say but if someone is careless enough to criticise me for what I don’t say when the words are in front of them then I’ll probably want to correct them.

       Your point on vicarious liability is a perfectly fair one. Pity you started off by being unfair.

17. The argument for vicarious criminal liability is that grouse moor owners are instructing their servants to kill raptors. However unfortunately this is often very hard to prove. So therefore we should make a new offence that does not require what would normally be termed criminal responsibility. In simple terms there is no need for the estate owner to have instructed the employee to kill for a criminal offence to have occurred. It’s not strictly true that there is no proof needed because the new offence is not one of instructing or forcing an employee to kill a raptor. The new offence is merely one of having an employee who killed a raptor and not being able to prove you did not know anything about it.

    The problem is with the issue of moral opprobrium. People are bound to point to estate owners convicted under such a law and suggest that they have been shown to be complicit in raptor killing when this is not actually the case. The truth is that their conviction indicates precisely the opposite – that they have NOT been shown to be complicit in raptor killing. If they could have been shown to be complicit in raptor killing then they would have been prosecuted for such complicity.

    Giles does have a good point. There are all sorts of horrible things that we know people are doing yet the law requires proof before people are convicted of them. What’s special about raptor killing? Moreover what is wrong with civil vicarious liability in such cases?

    I think what Giles is arguing for is that it should be illegal for an estate owner to be complicit in raptor killing but also where and as well as this cannot be proved estates should have a legal liability for ecological damage that the estate causes irrespective of proof of intent on behalf of the owner. That makes good sense to me. Estate owners should be responsible for the actions of their staff.

    Take for example a nightclub where a bouncer beats up a customer. It’s reasonable to convict the bouncer and to make the nightclub pay. But unless the owners can be shown to have instructed the bouncer (or to have recklessly employed a maniac) they should not be criminally convicted for the assault.

    1. Janet – thank you for your comment and welcome!

18. P.S. Thanks to Bob for responding. That’s exactly my concern. The distinction between civil and criminal liability seems important. It’s why I’m not convinced. This type of legislation could be dangerous in the wrong hands!

19. “This type of legislation could be dangerous in the wrong hands!”

    Whether or not it has happened in Scotland, such a law opens the door for social engineering by activists motivated against a number of issues – land ownership, huntin’, shootin’, fishin’, drivin’ a Chelsea Tractor, wearin’ tweeds.

    A dead raptor can only be evidence, not a witness.

20. I am wholy in favour of wildlife protection law being fully and effectively enforced and for it to be strengthened wherever it appears to be ineffective. Having said that I can see Giles’ point and wonder whether his suggestion of a civil vicarious liability would offer an effective approach that does not have the effect of criminalising people without the normal burden of proof. (If a land-owner can be proven to have ordered the killing of birds of prey I would say that is already an offence punishable under existing statutes). I do think that the principle of ‘innocent until proven beyond reasonable doubt to be guilty’ is an extremely important one that we should be very cautious about losing.

    If, under such a civil VL, the operators of shooting estates had a legal duty of care to protect birds of prey on their land then any poisoning, trapping or shooting of a bird of prey that occurs would potentially represent a failure to uphold this duty of care for which they could be obliged to pay reparations. As when someone is killed on a building site, say, the owners/directors would need to demonstrate that all reasonable measures had been implemented to prevent the incident and if these measures are deemed insufficient by the court then the appropriate sanctions can be applied.

    It is still worth signing the VL petition because it would be extremely helpful for the ongoing persecutin of birds of prey to be debated in Parliament and such a debate could consider alternative options including criminal and civil VL and the practical, legal and constitutional implications of each.

    There is another aspect to this debate which is that the Countryside Alliance is fostering a kind of siege mentality amongst the shooting fraternity whereby they kick against any and all measures to limit the ecologically harmful aspects of their sport. An excessively illiberal law could have the counter productive effect of increasing this intransigence. I would like to believe that not all shooters are impervious to reason and so I think it is important that as far as possible we should seek to win the hearts and minds of these people and encourage them to reject the attitude of the CA and their ilk that only they know whatever is right for the countryside and that everything they do is right and justiifed.

    PS With respect to the taking the argument to shooters I was in Sainsbury’s at the weekend and took the opportunity to leaf through Shooting Times. I noticed they are publishing an article by Songbird Survival in the next issue to explain why there are too many raptors(!). It would be good if , when the article appears, people could respond by writing to the editor to refute the SS line. If at least one such letter were published it would be helpful to confront predjudice with reason in the hope that at least some readers would be able to see the difference!

    1. Jonathan – great comment, thank you.

21. Giles & Linnet (and Mark),

    In my view, the offence of ‘vicarious liability’ inserted in to section 18A of the Wildlife and Countryside Act 1981 (by section 24 of the Wildlife and Natural Environment (Scotland) Act 2011) could be, in all likelihood, quite difficult to prove in a Court, given its current wording.

    Section 18A(3) of the 1981 Act states that it is a defence for ‘B’ (the landowner/ employer) to show

    (a) that B did not know that the offence was being committed by A; and .
    (b) that B took all reasonable steps and exercised all due diligence to prevent the offence being committed.

    Where ‘B’ is the employee.

    So in a situation where a poisoned golden eagle is discovered on a shooting estate in Scotland, and there is robust evidence that ‘B’ committed the crime (let’s say they admitted it to the police), it would therefore be necessary to prove, beyond reasonable doubt, that the landowner instructed them to do it.

    In reality, the landowner could provide a strongly worded letter addressed to all employees, dating from January 2011 (when this section came in to force) that under no circumstances, should any employee undertake any actions which would or could be interpreted as an offence under the Wildlife and Countryside Act 1981, or any other relevant legislation (e.g. Pesticides Regulations). This would be a strong defence complying with section 18A(3)(b) and provide a robust supportive argument for 18A(3)(a). Of course it could be handed over to all employees with a nod and a wink and no one else would be the wiser. You prove, beyond all reasonable doubt that ‘A’ knew what ‘B’ was up to when faced with this defence…it would have to be very difficuly to obtain as I suspect that much ‘instruction’ is verbal, e.g. ‘B’ says to ‘A’; “I’ve seen a sparrowhawk over that wood yesterday” and all parties will ‘know’ what is meant by that.

    In other words, the wording of the legislation, in my view, places considerable onus on the prosecution to prove their case. Of course, in principle, this is quite right too. However, perhaps the onus is weighed too heavily in this instance.

    The only real solution to the argument would be to significantly increase the penalties to make it financially very difficult for the landowner to countenance any illegal killing of protected species. In other words, if an individual is found guilty, regardless of whether it is the landowner or the employee, regardless of whether it is one eagle or many eagles, the Estate suffers the punishment collectively. There would therefore be a collective responsibility to ensure that all employees keep within the law, just what vicarious liability should be about.

    And the punishment should be sufficiently severe to really deter the miscreant. I would advocate either a single penalty (e.g. £20,000 fine; a £10,000 fine and 6 months in prison/ conservation community service; or 100 % of profits on the previous published years accounts – to avoid ‘fiddling the books’ to reduce the penalty). If there is a second conviction by an employee of the Estate (no time-limit), regardless of the other circumstances, regardless of who that might be and regardless if they were employed at the time of the previous offence, the Estate is closed. And like a company director, a period of time (up to for life) preventing the convicted employer from gaining employment on an Estate in any capacity.

    This is harsh. But not as harsh as banning shooting altogether…which could be a reasonable proposal if this industry cannot deal with the illegality which is blatantly obvious and barely concealed.

    1. Richard – great comment, thank you.

       1. Thanks.

          I’d like to add/ clarify one point.

          It is a defence for ‘B’ (in the example above) to show that they did not know that the offence was committed by ‘A’. It is my interpretation and understanding based on general legal principles, that ‘B’ can just say “I didn’t know because I was not and would not normally be expected to work in close proximity to ‘A’ and there are several other levels of authority between us”. It would be for the prosecution to prove that this statement was a lie. In other words, ‘B’ is under no obligation to ‘prove the negative’. I may be wrong here as I say, it is my understanding and interpretation. But it is an important point.

          And it would also be necessary to understand what is understood by the legal profession as ‘show’. Is this different to ‘demonstrate’ [for example], (i.e. is the burden of proof higher/ lower for ‘show’)?

    2. You mean Where ‘B’ is the employer.

       And with regard to the onus or burden of proof you are wrong. The wording of the law explicitly places that burden specifically on the landowner to prove his innocence. Under almost any other criminal law it is up to the prosecution to show the accused is guilty.

       However I would agree with you that in practice the landowner could put steps in p[lace – such as the strongly worded letter which satisfied the court as proof of his innocence.

       In which case no matter what penalties you imposed for the crime it would not make the slightest bit of difference.

       To me that reinforces my point – if you want vicarious liability then make the landowner responsible for the actions of his gamekeeper without any exemption whatsoever. Only require that the killing by the gamekeeper be proved and on that basis make the estate liable for considerable financial reparations. Maybe in the case of very rare birds hundreds of thousands of pounds.

       A strongly worded letter would make no difference. It would be up to the landowner to employ people that don’t kill raptors and if they did then they do him/her considerable damage.

       I’m not really sure why people would be against that apart from those that have a desire to brand the landowner a criminal without proof.

       1. Giles

          Thanks for getting back.

          Firstly, I actually meant “Where ‘A’ is the employer” in my original post; but thanks for pointing this out and allowing me to clarify to others.

          I’m glad that you agree with me in your fifth paragraph but I disagree with you where you write “And with regard to the onus or burden of proof you are wrong. The wording of the law explicitly places that burden specifically on the landowner to prove his innocence.”

          The wording of the Act does not ‘explicitly place the burden of proof on the landowner’. Explicit is defined as “stated clearly and in detail, leaving no room for confusion or doubt”. The wording of the Act merely requires the defendent to ‘show’ that they didn’t know; or put in place procedures that could reasonably prevent such an act from taking place. This need not be explicit; it could be quite vague (see my second comment clarifying the first in this particular point). It would, in my opinion, still remain with the prosecution to prove if they were perjuring themselves, (i.e. they knew more than what they were letting on or lying).

          From what I can understand of the principle of ‘vicarious liability’; this is strict liability; in other words, you would not need to prove the ‘mens rea’: the guilty mind; just the ‘actus reus’: the guilty act. In other words, they either knew, or they didn’t. This might seem unfair but I think the intention of the Act (i.e. the spirit of the legislation) is to try and make the employer take more responsibility for what goes on within the jurisdiction, of say, the Estate. Ultimately, it would be up to the Courts (and jury) to determine the thresholds of what an employer could reasonably know. But I am also sure that there is case-law, in other circumstances (e.g. health and safety legislation) which may well provide guidance on such matters, including, if needed, whether the onus is on the landowner to ‘prove their innocence’. However, I still believe that this is not the case as it would be counter to legal principle (‘innocent until proven guilty’) and I cannot see Parliament (Scottish or UK) debasing this human right. If you are right, then Human Rights legislation would be able to overturn this section quite quickly, I would have thought.

22. Apologies if I am repeating something someone else has said, but I haven’t had the time to read all 45 messages on this subject.

    I sense some misunderstanding about how Vicarious Liability works in some of the comments above. In Scotland it is not the case that a landowner or factor will automatically be prosecuted if a wildlife crime occurs on their land. There is a defence, which is that a) the landowner/factor did not know that the offence was taking place and, more importantly b) they took all reasonable steps and due diligence to prevent such a crime occurring.

    It remains to be tested in law what ‘reasonable steps’ and ‘due diligence’ means but I would imagine at the very least there would have to be clear paper trail documenting risk assessments, training records and signed agreements of compliance with the law by employees.

    Finally, as far as I am aware, vicarious liability has not yet been tested in Scotland. It only took effect at the start of this year (I think) and none of the wildlife crimes that have been widely reported since then seem likely to result in a primary conviction, let alone one for vicarious liability. In this sense, I think that VL will be limited in its effectiveness. However, it has made many landowners and factors sit up and take the whole issue more seriously, which is a good thing.

    1. Paul – thank you – good summary.

       1. Thanks. I see that Richard Wilson has made the same point while I was taking too long to write my comment!

          1. Paul (and Richard) – your two comments taken together are very clear – thank you

23. Richard – at least A would know that, should he be convicted, he was “on his own” if he had received such a letter from B, albeit with a nod and a wink; might make A think a bit in his idle moments!

    1. Tony – welcome and good point!

24. 1: I wish Giles’ comments were placed in this blog as one “long” response as it would make for easier reading, as there are some good comments/points raised
    2: I have to thank Mark as if it wasn’t for you contacting the RSPB an incident I had last year of some teenagers (see not always gamekeepers) raiding the nest of a Little Owl would not have even made it into the sad satistics of the RSPB report..which brings me to point
    3: How can the law be improved at any level when the people you’re reporting the crime to don’t know how to handle it.
    In the case of the Little Owl the 999 operator actually asked me “Is it a crime to take birds from a nest?” Honestly in a complaint I launched to the Northants police the tape of the call was played to the Inspector and the Duty sargeant, as were the expletives that came from my mouth ( so ashamed 🙂 ). I hope any changes in the law will include the “upgrading” of wildlife crime from “non recorded” to “recorded”. I had a lenghty chat with the wildlife crime unit here in Northants after they told me difference between “recordable” and ” unrecorded”.
    If I ring the Police and say my car is being stolen that’s “recordable”. An officer is assigned the case, they investigate, they log it onto a database and any action taken by the officer is audited, it goes down in the stastic column.
    Unrecorded- same as above, investigated etc but it doesn’t go onto a computer database. And this as described by the WILDLIFE CRIME OFFICER “If I want to see if there’s a pattern of car crime in the area the computer will produce stats that allows me to see if a particular M.O. is being used, a favoured point of entry, particluar time of day/night, particular make of car and any notes/witness statements from similar crimes, any criminals in the area whose crimes match the reported crime, this helps the investigating officer and any queries they have, for me in the wildlife crime unit, if I wish to see if there’s an increase/decrease of wildlife crime in the county, types of animals targetted/areas of the county in which the crime is taking place etc I have to trawl through hundreds of files which also include crimes such as noisy neighbours and adds time taken to investigate/start an investigation”
    Has anyone one been brought to court under VL in Scotland?

    1. Read ‘fighting for sane wildlife law’ when it comes out 🙂

25. Mark, re-reading all the above comments (and yes I did) it is clear that Vicarious Liability is not clear and any such law should be well worded before implementation. In Scotland VL has only been on the statute books for 9 months and no legislation has that quick an impact.

    It also doesnt help, as I found during a trawl of this subject on the internet (and I did that as well), to find a Scottish raptor persecution site making comments that “legal loopholes may be being exploited to avoid possible conviction”. The legal loopholes that it is raising are that “some estate owners may try to avoid vicarious liability in the future by sending their game keepers on all the trapping and best practice courses there are going”. Which I presume is exactly what the law is trying to achieve.

    The only way to implement legal changes of this nature is to introduce strong legislation that is understood by all parties, that is enforceable and where the ‘enforcers’ have the power and ability to deal with it.

    I am still not sure that throwing words like Vicarious Liability out into the ether will produce the result that we all want.

    1. Bob – I respect your informed and thoughtful view.

    2. “legal loopholes may be being exploited to avoid possible conviction” Do I have a sick sense of humour because I find that extremely funny!

26. Bob, one of the loop-holes pointed out in an article on Birdguides is video evidence/photographs can’t be used for evidence if it was taken on private land..is that true?
    Giles, I would love to read Mark’s book, sadly dyslexia means it takes me ages to read/write/type things….hope an AUDIO BOOK might be on the cards(hint/hint)

    1. Douglas, I am sorry I don’t know the up to date answer to that one. It is a problem that affected an RSPB / Police case some time ago and I thought was a peculiarity of the Scottish legal system. I hope the issue has been resolved but I have been out of that business long enough to be out of touch on such practicalities.

27. First, a point of fact relating to Giles’ many points: the Law Commission consultation advocates introducing civil penalties to wildlife law – it recomends the full range of sanctions including stop orders, civil fines, restitution alongside current criminal penalties. What this means is the court has the choice and that seems best, doesn’t it ?

    Looking at the way the law works, as you’ll have gathered from my early comments, this doesn’t seem that big a deal and I simply don’t believe the Scottish law is worded or would be applied on the basis of ‘proven until proved innocent’. There are actually two instances in current wildlife law where this is, very unusually, the case: if you are found digging at a badger sett and if you are found in possession of birds eggs – in both cases its up to you to produce a plausible excuse !

    As Giles keeps saying, it is going to be difficult to prove vicarious liability – but noone seems to have touched on the interesting possibility of the accused keeper actually saying ‘he told me to do it’. What then, one asks ? And taking the fleet car example, whilst there may not be any wildlife precedents there is a huge weight of case law around responsibility over health and safety in particular which very clearly defines responsibility, proof etc and I know from having been on the sharp end of a number of claims that the reality of the courts is an incredible level of care and a level of reasonableness you’d never recognise from reading the Daily Mail.

    In case anyone thinks there isn’t a real problem I know of a significant numbers of instances where following proven persecution – poisoning and shooting – but where no conviction has resulted RSPB have requested big shooting estates to make a firm commitment that they will not illegally persecute raptors – and the estates have refused. So they wouldn’t even issue the letter – even with the nod & wink.

    1. I do find myself in an odd position here because I strongly believe in the need for a deterrent to prevent the kind of pressure gamekeepers and others must be under. I don’t think VL is it and must correct Roderick’s examples.

       Neither are about guilty until proved innocent. It is an prima facie offence to dig into a badgers sett and also to have wild birds eggs in your possession. As in most legislation there then exists certain defences you can rely on. A lot of legislation works like that and even a bird ringer might have to show if needed his defence (i.e. Licence) to trapping wild birds. The potential VL seems to include dealing with someone who has no prima facie case against them but still has to prove innocence. That to my mind is the BIG change. I do like the sound of a Civil Law form of VL though.

    2. You’re correct in stating that an individual with a collection of bird eggs would need to prove they pre-date the 1954 Act, but (and this is important in the context being discussed), the burden of proof is lower (balance of probability as opposed to beyond reasonable doubt).

       In response to what would happen if a gamekeeper said “he told me to do it”, that would be interesting! My hunch is that if this was their defence, they’d have to present some credible and/ or convincing evidence otherwise the jury/ judge/ magistrate might just think, “Well, you would say that”. This is another reason but not thought of by me, why the text of the Scottish version of VL is poor.

       At the end of the day though, as in most legal arguments, what actually happens us dependent on a case…so ironically (perversely some might add), we need an offence. Habeas corpus!…to introduce another legal phrase!

28. Always the same especially with Giles.All those against Vicarious Liablity never come up with other solutions to stop raptor killing especially Hen Harriers of which I understand we should have over 300 breeding pairs and we may have 1 breeding pair.That is disgraceful.
    This game of opposing any move forward to combat something bad always whatever it is without proposing any other solutions always happens.

    1. Dennis how can you say that?? I have proposed and strongly argued for vicarious civil liability which would be much easier to enforce and suggested far higher reparations!

29. Giles,you are so predictable you always say such opposing views to any control of cruelty to animals and write in such a confusing manner that eventually you confuse yourself.
    Really I do not mean to be critical of you but by doing this it is a massive waste of a intellectual person and I honestly find that sad.
    It is much like a bird egger,now if only they put their knowledge and craft to good use they would be brilliant at wildlife jobs,as it is they are wasted.

30. well Dennis I haven’t been wasting my mind as I’ve also been working hard earning a living and attempting to put a roof over my families head. Unlike you I feel that ideas are important and I think this has been a good discussion about an emotive subject and it is refreshing that perhaps with just the one notable exception no one has sunk into the juvenile personal abuse which is so common in such discussions. Maybe if this could be carried on much of wildlife law would not be in the messy state in which it is currently.

    Perhaps if you do want to contribute you should respond to the law commission’s review on wildlife crime. I am ‘wasting my talents’ by penning them an email because I think wildlife law is a very important subject – Mark maybe you could blog encouraging others to do likewise?

    http://lawcommission.justice.gov.uk/consultations/wildlife.htm

    1. Giles – I do encourage people to respond to the Law Commission consultation in the last paragraph of this blog. Do people read these blogs – I sometimes wonder?

       This blog stimulated a lively, at times chaotic, but overall very productive discussion. I’d like to thank all for taking part. I learned a lot and was given plenty to think about – your views certainly influenced mine. Thank you again.

31. It is hard to read 84 comments but I would like to point out that no one has made the remark suggesting that most land owners do not actually ask the game keeper to kill the birds of prey but he does ask for the number of Red Grouse or Pheasants to be in such numbers that there will be a successful shoot each year. What that means is that any predator that can weaken the possible shoot can be removed. Again the majority of game keepers live in tied houses, they have transport provided, shot, access to free food, their own hours and more importantly a cash injection on every shoot that is successful often running into £10,000s. Even free holidays abroad and days out on other shoots with their MASTER. This is a VICTORIAN institution which has to change if you want to see Birds of Prey on every estate

32. If you go and read the Birdguides “webzine” article I see YET another Golden Eagle has been found shot dead (found on 6th Oct).

    1. Douglas – I did see that. Terrible isn’t it?

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