Landowner becomes first one guilty of vicarious wildlife offence

A Galloway landowner has become the first person in Scotland to be convicted of the vicarious liability offence conferring liability for wildlife offences committed by an employee or agent.

Ninian Stewart, the landowner of Glasserton & Physgill Estates, was fined yesterday at Stranraer Sherifff Court after pleading guilty to being vicariously liable for Peter Finley Bell’s crime of poisoning and killing of a wild bird.

Mr Stewart was fined a total of £675 for four offences under section 15A(1) and section 18A(1) and (2) of the Wildlife and Countryside Act 1981. Section 18A(2) makes the accused guilty of the original offence and liable to be punished accordingly. The section came into force on 1 January 2012 and this is the first conviction obtained under it.

The offence means that a person who has shooting rights on or over land, or who manages or controls the exercise of such rights, can be found guilty of a relevant offence committed by another person who is then acting as their employee or agent.

The provision is designed to encourage landowners and employers with varying levels of responsibility in connection with shooting to be diligent and proactive in countering wildlife crime.

Bell was a full time gamekeeper employed by Mr Stewart when he committed the poisoning offence on 23 December 2012 at Glasserton Home Farm. He had laced the carcass of a pheasant with Carbofuran and set the bait in a field. A birdwatcher passing the farm saw something flapping in the field and on closer inspection found that it was a common buzzard, lying on the ground, in the last throes of life. Subsequent forensic work showed that the buzzard had died as a result of ingesting the poisoned bait.

Under section 18A(3) it is a defence for the landowner to show that they did not know that the offence(s) was being committed by their employee, and took all reasonable steps and exercised all due diligence to prevent the offence being committed.

In this case, while there was no indication that Mr Stewart instructed the commission of the offences or that he even knew about them being committed, there no evidence that he took any steps to exercise due diligence in respect of shooting on his estate.

Sara Shaw, procurator fiscal, wildlife and environment said: “There is a proactive responsibility placed on those who employ gamekeepers to run shooting estates, to ensure that is done within the parameters of the law.

“These offences were committed almost a year after the vicarious liability offence (under section 18A of the Wildlife and Countryside Act 1981) was introduced. Mr Stewart had adequate notice and time in which to take advice and put appropriate measures in place.

“Mr Stewart failed in his responsibilities and as a result stands convicted of the killing of a wild bird."