Country sports and firearms legislation expert Tim Ryan warns against ignoring the implications of wildlife crime to your business.
Many of you will have read with horror about the Norfolk gamekeeper, Allen Lambert, who last November was found guilty of poisoning 10 buzzards and a sparrowhawk in what the RSPB described as the worst case of bird poisoning in England ever. Mr Lambert, who was 65 and in poor health, received a suspended prison sentence of 10 months.
In passing sentence, the Judge said: “Those who employ gamekeepers have a strict duty to know what is being done in their name and on their property. They also have duty to ensure their gamekeepers are properly trained and capable of keeping abreast of complex laws relating to the use of poisons. In other industries, employers as well as the employee could be facing prosecution in such cases and I hope this case can serve as a wake-up call to all who run estates as to their duties.”
In Scotland, the Wildlife and Countryside Act was amended in 2011 to introduce a new “vicarious liability offence” which, broadly, makes an employer liable for a wildlife offence committed by an employee unless he can prove he took all reasonable steps to prevent it. In December 2014, the first landowner was convicted, after his gamekeeper was found guilty of poisoning a buzzard. It was accepted he had no knowledge of the offence, but there was no evidence to show he’d taken any action or exercised due diligence to prevent it. He was fined £675, a fairly modest sum, but it was reported he had also lost a substantial sum from his single farm payment.
Although we don’t have vicarious liability for wildlife offences in England and Wales, that certainly doesn’t mean a landowner or agent has nothing to fear where offences are committed by a gamekeeper he employs or manages. He will be equally guilty and punishable in a like manner if it can be shown he has intentionally encouraged or assisted the crime, and, for some offences, there is statutory liability for anyone who “permits” them. For example:
- Illegal methods of killing or taking wild birds (for example, spring traps, poisons, automatic or semi-automatic weapons)
- Illegal methods of killing or taking wild animals (for example, self-locking snares and live decoys)
- Contravening the pesticides regulations
The penalties on conviction and other consequences can be substantial and include:
- Imprisonment for up to 6 months
- Large fines – the previous maximum of £5,000 which magistrates could impose for most wildlife offences has now gone
- Court and legal costs
- Forfeiture of vehicles or articles used in the commission of the offence
- Loss of shotgun and firearm certificates
- Automatic disqualification from use of general licences (needed to shoot pigeon and to trap crows)
- Loss of European subsidies due to cross-compliance requirements
- Loss of reputation
The Law Commission has described the current wildlife laws, spread over a collection of Acts dating back to 1831, as “resulting in a legal landscape that is out of date, confused and often contradictory.” It has proposed sweeping away most of them and replacing them with a single Act. A final report (expected 2015) and draft legislation are in the pipeline.
One suggestion put out to consultation in 2012 related to whether to create a version of the “vicarious liability” offence introduced in Scotland. In an interim statement in October 2013 it was said: “We have accepted the arguments of the minority who opposed the proposal, on the basis that it would result in an unjust extension of the normal principles of liability to those legitimately conducting businesses involving wildlife and increase burdens on rural businesses and developers.
“Nevertheless, we still consider that there is force in the argument that the criminal law should be able to respond to the real economic incentives for the commission of some wildlife crimes. We therefore now recommend that it should be an offence for an employer or principal knowingly to permit an act to be done which, when done by the employee or agent, amounts to a wildlife crime. The purpose of the proposed offence is to pin criminal liability on the ultimate beneficiaries of wildlife crime.”
In other words, if the current proposals are put into legislation, we’re not going to get vicarious liability – prosecutions of owners and managers for offences about which they knew nothing – but it is likely there will be an extension of liability to all wildlife offences for those who “knowingly permit” them.
There are many who continue to push for full vicarious liability. Although the RSPB conservation director, Martin Harper, has recently gone on record to say that the RSPB is not anti-shooting, it remains their long-held belief that it is those within the shooting industry – the employers and managers of gamekeepers – who are primarily responsible for the continuing persecution of birds of prey. Already the Crown Prosecution Service guidance makes it clear that when reviewing evidence obtained in the course of an inquiry into wildlife offences, prosecutors must look for any specific offences committed by the employer or that have been caused or permitted by a supervisor, and that, where sufficient evidence exists, it will usually be appropriate to prosecute all those involved.
Cases like Mr Lambert’s do irreparable harm to the credibility of shooting, despite receiving the universal condemnation of those involved in country sports. Whether we ever get full vicarious liability in England and Wales or not, it is no longer acceptable for shoot owners and managers to bury their heads in the sand, and those who do are increasingly likely to find themselves in the dock.
At the very least, they should be familiar with the Code of Good Shooting Practice, endorsed by all the leading organisations, which summarises the legal framework and provides advice on such things as safe shooting and respect for quarry and habitat.
Most, however, would be wise to provide their gamekeepers with thorough training on the law that affects the work they carry out, including the protection of wild animals, animal welfare, pest control, firearms, health and safety, their powers when dealing with poachers and saboteurs, and what to expect when subject to a police raid or other investigation.
Some questions shoot owners and managers may like to ask themselves:
- What predator control is being carried out on your land?
- Are your keepers up to date with the law and best practice guidance?
- Are they operating in accordance with the general licences issued annually by Natural England in their control of pest birds?
- Are they following the DEFRA Code of Practice on Snaring?
- Do they know how to deal with an accidentally snared badger?
- Are they only using spring vs that are approved under the current approvals order, and for the species and in the manner prescribed?
- Are they complying with the BASC Code of Practice for terrier work?
- Are pesticides being used and for what? Are they approved and properly stored?
- Has training been provided?
- Are they following the Code of Practice for the welfare of reared gamebirds?
- Does your estate insurance policy have cover for legal fees in the event of a criminal prosecution?
- Who are you going to call when the police arrive?
Tim Ryan is a partner at Warners Solicitors, specialising in country sports and firearms licensing law. For advice and assistance, contact Tim on 01732 770 660 or email firstname.lastname@example.org.