The Buck Stops Here: landowners and vicarious liability

For landowners, the Wildlife and Natural Environment (Scotland) Act 2011 act saw a significant shift of emphasis on the burden of proof in relation to raptor crime by introducing vicarious liability, a situation in which one party is held responsible for the unlawful actions of a third party.

Relevant crimes include killing, taking or disturbing wild birds and their nests, prohibited methods of killing, and possession of illegal pesticides. This should focus concerns for anyone involved in land management. Landowners or shooting occupiers are potentially liable for the criminal actions of their employees, contractors or agents; for example, a landowner could reside in London but be responsible for a crime committed in secret by their gamekeeper in Sutherland. In the past, ignorance of the crime being committed was a defence. Now the landowner must also demonstrate they have taken “all reasonable steps and exercised all due diligence to prevent the offence being committed”.

The first prosecution under vicarious liability came in December 2014 for the owner of a principally farming operation following the poisoning of a buzzard by a gamekeeper. Although the court was content that the landowner had no prior knowledge of the crime, the landowner was nonetheless found guilty of vicariously killing the bird. In this case the Procurator Fiscal summarised the role of the landowner by stating that there was “a proactive responsibility placed on those who employ gamekeepers to run shooting estates, to ensure that is done within the parameters of the law”.

This concept of proactive responsibility would require the landowner to show clear evidence of managing compliance with relevant wildlife legislation. Although not an exhaustive list, the following are important steps all landowners should take:

Contractual arrangements: Clear contractual arrangements, ensuring roles and responsibilities are clearly defined. Particular attention should be paid where land is leased to a third party or any complex arrangements such as landowners pooling staff or syndicated shoots.

Employment: Relevant staff contracts and staff manuals should set out requirements for compliance with wildlife legislation and reporting procedures for suspected breaches by other staff. All staff should be made aware that non-compliance would result in their dismissal and probable police intervention.

Training: Regular training of staff to ensure they are aware of their legal responsibilities, while promoting a general culture of compliance with environmental standards and legislation. This should include written best-practice guidance.

Monitoring: Keepers regularly operate as lone workers and a large amount of trust has to be placed in their ongoing compliance. To address this, management should partake in active monitoring, including where practicable the monitoring of estate raptor populations and nests, spot-checking storage areas for prohibited substances, and checking that crow traps are operated legally.

David McKie of Levy & McRae is one of Scotland’s leading wildlife crime defence lawyers and acted in all of the vicarious liability cases brought in Scotland to date. He stresses that all landowners are affected by this legislation and that doing nothing is akin to running a business with no insurance. Each operation will be different, but he believes that if you have any form of shooting or bird control on your ground, you ought to take measures to protect both you and your employees with the clear aim of the legislation being met; ie, to prevent criminal offences taking place on your ground. In addition to the threat of vicarious liability, Scottish Natural Heritage (SNH) has sought to restrict General Licences to further discourage raptor persecution. While the legality of culling pest species is taken for granted, it should be remembered that this is provided under a legislative mechanism called the General Licence. In Scotland the General Licence is issued by SNH and, where they deem geographic areas to have a prevalence of non-compliance with wildlife legislation, they have started to implement restrictions. While this will impede gamekeepers in their wider vermin control activities, a further consequence is the landowners potentially losing their Single Farm Payments.

While the tide has surely turned against illegal raptor persecution there may be some prospect of limited legal raptor control: in November 2015 Natural England lost a Judicial Review, which forced them to issue a licence to an estate for the culling of buzzards that were causing significant damage to pheasants. The case also revealed that the estate had previously been granted a licence in secret to remove the eggs from buzzard nests.

While SNH and Natural England seem firmly opposed to this route, there is a chance that, in very specific cases, raptor control licenses could become a ‘carrot’ to go with the very obvious legislative ‘stick’.