As MSPs settle into the new Parliamentary session, many have turned their attention to issues of wildlife and agricultural crime. In the last week we have seen MSPs – most notably, Liam McArthur MSP for the Orkney Islands – submitting written questions to Ministers, seeking to maintain momentum and build on progress made in the last Parliament. Questions included queries around the monitoring of satellite-tagged wild birds and the extension of the powers of the Scottish Society for the Prevention of Cruelty to Animals, together with the following pertinent questions about wildlife crime.

Vicarious liability and wildlife crime – is it working?

Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011 (“section 24”) represented a step change in Scotland’s approach to the prosecution of wildlife crime – to the risk and detriment of landowners and managers – with the introduction of vicarious liability for wildlife offences.

Individuals commit a criminal offence where they take certain actions with the aim or effect of harming wild birds. Offences include causing death or injury to any wild bird, or interfering with the nests of wild birds. Under section 24, where the individual operates as the employee or agent of a landowner or manager, the latter may also be guilty of a criminal offence.

Liability may be avoided where the landowner or manager can demonstrate to the court that:

  • They did not know that the offence was being committed; and
  • They took all reasonable steps and due diligence to prevent it.

While protection and management of raptors and other wild birds remains a key issue on the rural and environmental agenda, so too does the significant financial and individual risk presented to landowners by the vicarious liability offence.

On 5 September 2016 Liam McArthur MSP sought clarity on how the provisions are working in a written question to the Scottish Government:

To ask the Scottish Government what assessment has it made of the impact of the vicarious liability provisions in the Wildlife and Natural Environment (Scotland) Act 2011”.

Wildlife Crime Penalties Review Group

In the last year, further progress has been made by the Wildlife Crime Penalties Review Group (the “Group”) established by Paul Wheelhouse, then Minister for Environment and Climate Change, in July 2013. Last week

On 19 November 2015, the Group published a Report which made a wide range of recommendations, including:

  • increasing the maximum penalties available on summary conviction to a £40,000 fine and up to 12 months imprisonment;
  • making conviction on indictment more commonly available with a maximum penalty of 5 years imprisonment;
  • using Community Payback Orders to require wildlife crime offenders to attend retraining courses (for example, on empathy); and
  • the development of sentencing guidelines for wildlife offences.

On 24 February 2016 Aileen McLeod MSP, Minister for Environment, Climate Change and Land Reform, wrote to the Group’s chair to indicate the Scottish Government’s broad endorsement of the recommendations of the Report. However, progress with the proposals has since stalled. Liam McArthur MSP also submitted a question on this subject, asking “what action [the Government] is taking to implement the recommendations” of the Group.