Why vicarious liability is failing to have an impact in Scotland

Duncan Orr-Ewing, RSPB Scotland's Head of Species and Land Management, discusses why vicarious liability in Scotland isn’t working and why the Independent Grouse Moor Review urgently needs to come up with strong and workable recommendations to tackle raptor crimes.

Vicarious liability is failing to have an impact in Scotland

The conviction of the gamekeeper, Alan Wilson, employed by the Longformacus Estate in the Scottish Borders, for multiple offences including the illegal killing of birds of prey, badgers and otters, rightly received a lot of media attention, and elicited general public outrage in Scotland and further afield. In our many years of working with the police and other public agencies to tackle wildlife crime, this was one of the worst cases of the flagrant disregard of wildlife protection laws that we have seen.  

Whilst RSPB Scotland was very disappointed at the community sentence imposed by the Sheriff at Jedburgh Sheriff Court in the Wilson case, we do recognise that the Scottish Government is taking steps to increase sentences available to the courts, including the recent wildlife crime penalties consultation. We hope and expect that these new and increased penalties will be introduced shortly and at the earliest legislative opportunity. Raptor crimes deserve to be treated as serious crime due to the negative impacts that this causes to the populations of some of our most threatened species, as well more widely to the international reputation of Scotland. 

However, like many who follow the litany of bird of prey crime cases that keep occurring on the grouse moors of Scotland, we were extremely concerned that once again, there has been no vicarious liability prosecution in this case. The vicarious liability legislation, introduced by the Wildlife and Natural Environment Act 2011, and designed to make landowners and sporting agents responsible for the actions of their employees in cases involving crimes against birds of prey, has sadly proved to be much less effective than was initially hoped. Since vicarious liability was applied to raptor crime cases as part of Scots Law, there have only been two successful prosecutions. We are exploring why the Crown Office decided not to pursue vicarious liability against the Longformacus Estate, when to us and many others this would seem to be exactly the type of situation where this additional sanction should be applied?

This screengrab from video footage we captured on Leadhills estate in January this year shows a buzzard in a crow trap. Had a general licence restriction been in place, this trap should not have been in use.

On the positive side of the argument, vicarious liability, coupled with the increased use of satellite GPS transmitters to monitor the survival and dispersal of birds of prey, has had the clear and sustained impact of driving a marked reduction in the illegal and indiscriminate use of poisons to kill raptors. This “new” technology made such practices immediately detectable. We also accept that many responsible sporting estates now also undertake due diligence, and “vicarious liability checks” to ensure that their employees behave within wildlife protection laws, and this is to be commended.  However, as we all know, birds of prey continue to be illegally killed, and now while satellite-tagged birds may not be poisoned, methods have changed and they are still being trapped (as the recent case of the hen harrier “Rannoch” in Perthshire clearly showed), or otherwise killed and disposed of.

While 2019 has featured several high-profile cases, as usual, these represent the “tip of the iceberg”. There is no evidence of any let-up in persecution incidents, with several cases not yet in the public domain. What is of particular concern, however, are the number of estates where multiple incidents occur with impunity, and with no use of vicarious liability and other available sanctions.

As another example, on the Leadhills Estate in South Lanarkshire, a hen harrier was witnessed being shot in May 2017; a short-eared owl was also shot its body recovered just a few weeks later; a buzzard was found to have been shot twice in 2018; a buzzard was likely killed in a crow trap in January 2019; and a male hen harrier was caught in a spring trap that had been set on its nest in June 2019. We are advised that only now is an Open General Licence restriction, another sanction in the public authority wildlife crime “toolbox”, to be imposed here – in our opinion this should have happened at least a year ago. This restriction is designed to prevent the use of crow and other otherwise legal “pest” control of various bird species from happening over a specific area of land, and can act as a real impediment to an important aspect of normal game management activity therefore providing a genuine deterrent.    

One of several confirmed recent offences on Leadhills Estate, this short-eared owl was shot, then hidden by the perpetrator, in May 2017

We have previously commended steps that successive Scottish Governments have taken, such as introducing vicarious liability legislation and giving SNH the right to revoke Open General Licences, in an attempt to address raptor persecution. However, it has become increasingly clear that these steps have had a very limited impact, particularly in the context of the most intensively managed driven grouse shoots, which were the original target. A lack of regulation, lack of accountability, and difficulty in anyone securing sufficient admissible evidence to allow a prosecution, has led to a culture where grouse moor managers in particular feel (and act) as if they are untouchable

It is readily apparent to us at least that current legislation and the available penalties must be enhanced to provide a real deterrent to the continued criminal targeting of protected wildlife, especially on intensively managed grouse moors, where such crimes have become an entrenched part of the “business model” to deliver very large grouse numbers for clients to shoot. These estates have now had many decades to get their house in order and have repeatedly failed to heed warnings from successive Environment Ministers that stronger sanctions could follow if wildlife crimes are not stopped.  Although we await the publication of the Grouse Moor Review Group’s report, we consider that the time has come for a robust and efficient regulatory regime for gamebird shooting, similar to systems in place in other similar countries and designed to protect the public interest. We propose the licensing of gamebird shoots, where wildlife crimes with a proven link to estate management could lead to a loss of shooting rights. This proportionate approach would also respect the rights of those responsible landowners who work within the law, and who understand the damage that wildlife criminals are causing to the wider reputation of landownership in Scotland.