As we noted in a recent blog post, the jury is still out on the effectiveness of the vicarious liability offence under section 24 of the Wildlife and Natural Environment (Scotland) Act 2011. A recent report by Scottish Natural Heritage seems to raise doubts about the success of the offence in reducing wildlife crime rates. The report, published at the end of October, cites “illegal killing” as the key factor continuing to limit the population growth of red kites in the north of Scotland.

Section 24 of the Act – what does it do and why?

Under section 24 landowners (or managers of land) can be found criminally liable for the actions of employees or agents which cause death or injury to wild birds or cause interference to the nests of those birds. Ignorance is not bliss: to avoid liability, landowners must show that as well as being unaware of the offence being committed, they had taken “all reasonable steps and due diligence” to prevent offences being committed on their land. This can include training gamekeepers and demonstrating a commitment to preventing wildlife crime in employment contracts.

Section 24 carries on the growing trend of imposing criminal liability at the “top of the chain”, in the hope that compliance would then be managed from the top down.

Scottish Natural Heritage – what do they say?

As highlighted by media commentary on the report, Scottish Natural Heritage did have some good news to share. The red kite population in the north of Scotland is growing (albeit slowly) with around 70 breeding pairs now nesting there. However, the report noted that this population is significantly smaller than other populations of red kites throughout Scotland and the wider UK. Amongst their primary objectives, the writers of the report wished to update previous reporting from 2010 and “test whether illegal killing still limits the population growth of red kites in North Scotland”. To do so, the authors compared data gathered for another report between 1989 and 2006 against their own data, collected between 2007 and 2014.

Having assessed breeding success and other factors, the report came to a firm conclusion: “illegal killing is still the major factor limiting the population growth of red kites in North Scotland.” The authors found “no evidence” that the rate of illegal killing had changed between the two time periods considered. While the impact of the vicarious liability offence is not specifically considered in the report, this would suggest little to no change in culture or behaviour following its introduction in 2012.

Scottish Government – what was their response?

Environment Secretary Roseanna Cunningham, while highlighting the positive news of the increasing population, focussed on these findings in a public statement on the report:

“…it must be said that it is extremely disappointing that this success is being lessened by illegal persecution of these magnificent birds. I want to be clear that wildlife crime is not acceptable in a modern Scotland and this is why we are doing all we can to end the illegal killing of birds of prey and working in partnership with stakeholders to achieve that.”

The Secretary also commented on the Government’s plans to increase the maximum penalties for those who commit wildlife crimes, following the recommendations made by the Wildlife Crime Penalties Review Group last year. As we blogged in September, implementation of the recommendations features in the Scottish Government’s Programme for government for this session.