Legal advice line: landowners’ vicarious liability for wildlife crimes

Game shooting is important to the rural economy, but a recent court decision highlighted the need for such activities to be appropriately managed.

The offence of criminal vicarious liability for certain wildlife offences has been enshrined in Scots Law since its introduction in January 2012.

Late last year, for the first time, an estate owner from Galloway was found guilty of four offences for the illegal actions of an employee.

His gamekeeper had previously been convicted of killing a buzzard by setting a pheasant carcase laced with carbofuran in a field.

The offence means a person who has the legal right to kill or take wild birds on or over land, or who manages or controls the exercise of such rights, can be found guilty of an offence committed by another person who is then acting as their employee or agent.

While it is a defence to show that the accused did not know the offence was being committed by their employee or agent, it is also necessary to show that all reasonable steps were taken and all due diligence was exercised to prevent the offence being committed.

It is not only the owners of land over which the shooting takes place who need to be wary. Depending on the circumstances, a shooting tenant or other occupier of the land, a farmer who manages the land for predator control, a person who employs gamekeepers or engages keepering or pest and predator control services, a land agent, gamekeeper or other person with managerial responsibility for shoots should all make themselves aware of the strict legal obligations.

Depending on the level of involvement in the management of the operation, a shooting syndicate member should also be aware of these obligations.

The full case report has not been published but, as the landowner entered a plea of guilty, there may be little to assist in identifying what a court might deem to be ‘reasonable steps’ and ‘all due diligence’.

Indeed, each situation is likely to turn on its own circumstances.

Doing nothing is unlikely to be successful, as some positive action will be required.

As a minimum it will be necessary to show that the operation and management of the shooting has been closely looked at and that a system has been put in place for checking and reviewing that the management requirements and legal compliance are fully understood and are being met by all those involved with the shooting.

Without any court guidance as to what will be accepted as a good defence to a charge of vicarious liability, a starting point for an owner of land over which there is shooting will be to consider the following:

* Where the shooting is leased, review the terms of the lease and ensure that it includes a clear provision that the tenant, his employees and shooting guests will comply fully with the Wildlife Crime (and other) legislation.

Consider whether the gamekeeper might be best employed by the tenant, and whether the tenant should report regularly to the landowner on the management of the operations

* Where there is shooting over tenanted land, ensure the relevant responsibilities of landlord and tenant are clearly understood.

* Ensure areas of responsibility are clear between owner, factor and service providers, and that these are documented.

* Assess the risks within the shooting operation, understand the legal requirements, identify and record any stocks of pesticides, identify any areas of concern and then put in place appropriate safeguards and checks.

* Write down the requirements and update these as necessary

* Inform, train and monitor your employees and contractors in line with the written requirements and document such training.

* Ensure any contracts of employment clearly reflect the requirement to comply with all relevant legislation and a robust disciplinary system.

Where there is a head keeper and under keepers, these contracts should clearly reflect the different responsibilities of the employees.

* Check that the system is working. You may need to be able to show that there is a control system in place.

* Take and document any necessary corrective action, including disciplinary action if required.

In the recent cases the gamekeeper was fined £4,450 and the landowner was fined a total of £675 to cover four offences of vicarious liability.

The maximum penalty for vicarious liability is £5,000 and/or a six-month prison sentence.

Future cases may give guidance as to what a court considers to be reasonable due diligence but, for the time being, a review of the shooting operation may be required, and appropriate advice should be taken where there are any concerns.

*By Kenneth Mackay, land and rural business partner, Thorntons. Thorntons is a trading name of Thorntons Law LLP.

This article is for general guidance only. Professional advice on individual circumstances should always be taken.

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