How to avoid vicarious criminal liability

How to avoid vicarious criminal liability

1 July, 2015 by Gilson Gray in Blog

Steps to be taken by Owners and Managers to try to avoid vicarious criminal liability under the Wildlife and Countryside Act 1981 (as amended by the Wildlife and Natural Environment (Scotland) Act 2011)

Owners and managers of shooting land can be held criminally responsible for certain crimes committed against wild birds on their land by their employees, contractors or agents.  Although landowners will be affected by the provision, other third parties who manage or control the legal right to kill or take a wild bird on the land will also be affected, such as agricultural tenants.

The offences for which the owner or manager can be held to be vicariously liable are as follows:

i)              Intentionally killing, injuring or taking a wild bird; taking, damaging or destroying the nest of any wild bird while that nest is in use or being built; or taking or destroying an egg of any wild bird;

ii)             Intentionally or recklessly disturbing certain wild birds while they are building a nest or are in, on or near a nest containing eggs or young; or disturbing dependent young of such a bird;

iii)            Using articles designed to kill or cause injury to any wild bird (eg. a springe, trap, gin, snare, hook and line, any electrical device for killing, stunning or frightening or any poisonous, poisoned or stupefying substance, any net, baited board, bird-lime or substance of a like nature to bird-lime);

iv)           The possession of pesticides with more than one prescribed active ingredient;

v)            Any attempt at the above offences.

In any proceedings against an owner or manager of shooting land, it will first have to be established that the crime was committed by the employee, contractor or agent.  However, proceedings do not need to be taken against that employee or agent who committed the offence.

The owner or manager will have a defence where he or she can prove that he or she did not know that the crime was being committed AND took all reasonable steps and exercised all due diligence to prevent the crime being committed.

If convicted, however, the maximum penalty is £5,000 and/or a six month prison sentence (although if more than one offence is committed at the same time, this may result in multiple fines or a longer prison sentence).

What does this mean for landowners?

As a result of this provision, landowners must take a proactive role in ensuring no crimes are committed on their land.  As the legal provision is relatively new, it is not yet clear when the Courts will allow a landowner to benefit from the defence noted above.  Until such clarity it provided, therefore, it would be prudent for landowners to take all reasonable steps to ensure that no offences are committed, such as providing training for employees on the offences and ensuring there is a proper disciplinary system in place for any employees breaching legislative requirements.

Protecting yourself

It is a defence to vicarious liability if it can be shown that the owner or manager:

(a)  did not know that the offence was being committed; and

(b) took all reasonable steps and exercised all due diligence to prevent the offence being committed.

In order to satisfy (b) above, owners and managers must take a proactive approach in order to prevent crimes being committed on their land.  As the legal provision is relatively new, it is not yet clear when the Courts will allow a landowner to benefit from the above defence. A recent prosecution offered little guidance on the more difficult limb (b), because the landowner in that case led no evidence and so could not establish the defence. This led to a guilty plea and conviction. Until such clarity is provided, it would be prudent for landowners to take the following steps to prevent offences being committed:

For Employees

i)              Provide a written Contract of Employment between the owner/manager of the shooting land and the employee which clearly details:

  1. The employee’s duties and responsibilities;
  2. The employee’s specific obligations to comply with the relevant legislation and ensure no offence is committed;
  3. The disciplinary system which will be adhered to where there the employee has breached the terms of their Contract of Employment and/or an offence has been committed.

ii)             Review the Contracts of Employment regularly to ensure that they are clear and up to date in relation to (a) to (c) above.

iii)            Provide clear, written and up-to-date guidance and training for employees on the relevant legislation and best practice to ensure compliance with the legislative provisions and to avoid committing offences.

iv)           Keep a written record of all guidance and training given to employees.

v)            Ensure an employee’s performance is regularly monitored to ensure they are adhering to the legislative provisions and their Contract of Employment.

vi)           Assess risks on the land and in employee practices, identify any areas of concern and put in place appropriate safeguards and checks.

vii)          Identify and record any near-miss incidents.

viii)         Regularly consider and identify areas for improvement in employee practices.

ix)           Ensure that there is a robust disciplinary system in place where an employee has breached the terms of their Contract of Employment and/or committed an offence, and that this system is adhered to in order to prevent any recurrence. This may extend to summary dismissal for a breach.

For Contractors/Agents

i)              Provide a written contract between the owner/manager of the shooting land and the contractor/agent which clearly details:

  1. The contractor’s/agent’s duties and responsibilities;
  2. The contractor’s/agent’s specific obligations to comply with the relevant legislation and ensure no offence is committed;
  3. The penalties to be imposed by the Landowner where there has been a breach of any relevant legislation or an offence has been committed on the land by the contractor/agent – including the possibility of immediate termination of the contract.

ii)             Review any standard contracts regularly to ensure that they are clear and up to date in relation to (a) to (c) above.

iii)            Ensure a contractor’s/agent’s performance is regularly monitored to ensure they are adhering to the legislative provisions and their contract with the Landowner.

iv)           Assess risks on the land and in contractors’/agents’ practices, identify any areas of concern and put in place appropriate safeguards and checks.

v)            Identify and record any near-miss incidents.

vi)           Regularly consider and identify areas for improvement in contractors’/agents’ practices.

For Tenants

 i)              Ensure the terms of the Lease clearly detail:

  1. The division of responsibility between the Landowner, Tenant, Factor and Service Providers.
  2. The specific obligations upon the Tenant, and anyone else using the land, to comply with relevant legislation and ensure no offence is committed;
  3. A duty upon the Tenant to report to the Landowner on the management of operations on the land and any employees employed by the Tenant;
  4. The penalties to be imposed by the Landowner where there has been a breach of any relevant legislation or an offence has been committed on the land.

However, having these processes in place is only part of the solution. These processes must then be adhered to, monitored and followed, with action taken swiftly to prevent any recurrence of offending behaviour.

Further guidance can be found in the Scottish Lands and Estates “Due Diligence Good Practice Guide”.


For More Information Contact:
Andrew Fleetwood
Mobile: 07841920101
Direct Dial: 0131 516 5365
Email:afleetwood@gilsongray.co.uk


For More Information Contact:
Murray Stewart
Mobile: 07920866998
Direct Dial: 0131 516 5370
Email: mstewart@gilsongray.co.uk

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.