In this eNewsletter: Land Resource Contacts  Alasdair Fox Direct Dial: Email:   Adele Nicol Direct Dial: Email:
Where are we?1 Rutland Court,
|
|
Sporting Estates and Shoots – Take Note Those involved with running sporting estates or organising shoots should be aware of the following developments (or potential developments) in the law.
Wildlife CrimeWildlife crime is an increasingly serious issue. It is an offence under the Wildlife and Countryside Act 1981 to “knowingly cause or permit the killing or injuring of protected wild birds” and to aid and abet another person (e.g. gamekeeper) to commit wildlife crime. Those principles may be extended if proposals before the Scottish Parliament are adopted. Parliament recently debated a report by Paddy Tomkins, Chief Constable of Lothian & Borders Police, which proposes options to assist the Scottish government in tackling and preventing wildlife crime. The report was welcomed by Michael Russell, Scottish Government Minister for the Environment, who commented that wildlife crime is at “an unacceptable level” and “is not only a crime against Scotland’s rich natural heritage but against Scotland itself”. Parliament approved a motion that it “should support in full the recommendations of the Tomkins report” and “called on the Scottish Government to propose an action plan for tackling wildlife crime”. Mr Russell is known to favour “zero tolerance”. Vicarious liability has been operated recently in a civil context where a farmer had £8,000 docked from his Single Farm Payments because of crimes committed by his gamekeeper. In a subsequent case a shooting tenant was accused, but not convicted, of using poisoned bait, yet the owner’s Single Farm Payment was, nevertheless, cut. Admittedly, a lower standard of proof is required where cross-compliance requirements have been breached (or may have been breached) than would be the case in a criminal prosecution, - for example, the prosecution of a landowner for crimes committed by an employee, of which the landowner has no knowledge. Among the 24 recommendations made by Tomkins is that consideration be given to the extension of criminal vicarious liability to landowners for wildlife crimes committed by their employees. The principle of vicarious liability for crimes by employees is well known in our law in other contexts, (for example in relation to the Licensing Act where a publican can be prosecuted if a barman sells alcohol to an underage drinker). Nor is it new in relation to wildlife crime, and indeed it has already been taken beyond the employer/employee relationship. A developer in England has been fined £2000 after pleading guilty to damaging a resting place for great crested newts. The developer knew about the newts and obtained a licence to temporarily relocate the colony. Unfortunately, a sub-contractor destroyed the temporary reserve. The developer was held liable for the actions of his sub-contractor. In this case the developer’s liability arose under The Habitats Directive (92/43/EEC) and the Conservation (Natural Habitats, &c.) Regulations 1994 which establish a protective regime for “European Protected Species”. Any act, even unintentional, which damages or destroys a breeding site or resting place of such a species, can result in criminal prosecution. Not all wildlife enjoys the special protection of “European Protected Species”. The introduction of criminal vicarious liability for all wildlife crime would be a new ballgame, especially if it were to follow the SFP Model and make landowners liable to prosecution for the crimes not only of their employees but also of their tenants – possibly not just shooting tenants but also, for example, agricultural tenants. The Tomkins Report considered the employer/employee relationship. The discussion that has followed has seen calls for “landowners” to be liable without being clear in what capacity. Landowners ignore this issue at their peril. Whilst unlikely to be a defence in a criminal prosecution, it is our advice that, at the very least, contracts of employment should include provision that wildlife crime constitutes grounds for instant dismissal and that Leases should contain indemnity for all losses suffered as a result of the actions or omissions of the tenants. Such provisions would show that landowners take wildlife crime very seriously. We are happy to assist in the drafting of appropriate clauses.
Health and SafetyA recent case involved the disruption of a shoot in Lancashire by saboteurs. The organisers of the shoot had failed to comply with the Health & Safety at Work Act 1974 and the Management of Health & Safety at Work Regulations 1999 which require there to be a written Heath & Safety Policy and Risk Assessment for any activity employing 5 or more people. For this purpose a shoot is an “activity” and “employment” would include beaters and pickers-up, even if employed on a casual basis. The Lancashire shoot had neither a written policy nor a Risk Assessment and was not therefore “a lawful activity”. Accordingly, prosecution of the saboteurs for aggravated trespass was dropped on the ground that they were not acting illegally by disturbing an activity which itself was unlawful. The lesson to be learned is that all shoots should have Health & Safety Policies and Risk Assessments. Failure to comply may lead to a substantial fine or imprisonment. And it should be noted that employment of people means not just paid employment but includes any unpaid helpers who may be taking instructions from the organisers.
Further informationFor further guidance on issues raised in this ezine or for any other land resource-related matter, please contact Alasdair Fox, Adele Nicol or your usual contact in our Land Resources Dept.
|
