Group & logoEdit
Wildlife Law - Why you should be interestedEdit
Mr Pickins is the owner of Beecraigs Country Park. He plans to cut down a wooded area of his land and build log cabin holiday homes on it and employs Mr wood to carry out the project for him. In the course of the project it is discovered that the site is also home to the nests of several wild geese and that if the project is to continue these nests will be destroyed. The project is continued however and the log cabins are built.
This is a fictional scenario however if it were to be true both Mr Wood and Mr Pickins would have just committed an offence and could now potentially be liable for a fine of up to £5,000 or 6 months imprisonment.
We are Benign Lawyers and we are here today to stop you from making the same mistake.
- Welcome; Benign Lawyers Ltd;
- Wildlife and conservation being big concepts, but affecting us more than one would think
- Privatization of wildlife conservation over the last decade - Yuhan
"Wildlife law provides the framework within which wildlife can be controlled, so that it does not interfere unduly with the conduct of human activity, such as development" - From Law Commission; http://lawcommission.justice.gov.uk/docs/LCCP206_Wildlife_Law_consultation_paper_summary_(web).pdf
The Wildlife and Natural Environment (Scotland) Act 2011Edit
“An Act of the Scottish Parliament to make provision in connection with wildlife and the natural environment; and for connected purposes.”
Long title: An Act of the Scottish Parliament to make provision in connection with wildlife and the natural environment; and for connected purposes.
Part 2 of the Bill makes amendments to Part 1 of the Wildlife and Countrside Act 1981, which regulates the taking, killing, sale and possession of all wild birds and of the species of animals and plants which are specified in Schedules to the Act. It also prohibits certain methods of taking and killing birds and animals and regulates the use of other methods (including snares). Finally, it regulates the introduction of non-native species.
However... we are specifically concerned with section 24....
Section 24 -Edit
S. 24 Liability in relation to certain offences by others After section 18 of the 1981 Act insert—==
“18A Vicarious liability for certain offences by employee or agent … 18B Liability where securing services through another ...”
→ Wildlife and Countryside Act 1981
- Structure of the act
- Importance of the wording... Vicarious liability and liability where securing services through another.
- What is the Wildlife Countryside Act 1981?
Section 24 - What does it mean?Edit
Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011; outlines that if “a person commits an offence while acting as an employee or agent to someone who has a legal right to kill or take a wild bird on, or over that land; or manages or controls the exercise of any such right.” In this case, the employer is also guilty of the offence that they committed. In simple terms, If an employee kills or takes a wild bird contrary to the law, they are guilty of an offence and so is their employer due to “vicarious liability.” Vicarious liability simply means holding a person liable for the actions of someone else.
What it’s illegal to do :
- Cause bodily injury to a bird by using methods that would harm or kill it- i.e. stunning, poisoning, traps etc.
- Kill a wild bird, i.e. by bow, explosives, guns, gas or smoke or chemicals.
- Take a wild bird
- Use as a decoy for the purpose of taking or killing a wild bird.
Under the present law, a person needs to deliberately use the weapon or a trap. There needs to be conduct and a consequence before you can be convicted of a crime. For example, the conduct would be shooting a gun, or setting a trap and the consequences of your actions would be killing, or taking a bird. You also need to actively intend to take or kill the bird before you can be convicted, however if you’re reckless as to whether your actions would kill a bird, such as chopping down a tree when you’re aware there’s a birds nest there, this is also counted as an offence.
On the powerpoint:
- Illegal to kill or take a wild bird
- It must be deliberate killing or taking; or be a result of recklessness by the accused.
- You will be liable for actions that someone working for you on your land has committed.
Impact on landownersEdit
- strict liability will become a concern for landowners
- special care will need to be taken with employees
- defences are available, however it is best to avoid any harming of birds etc.
- Hiring someone's services can lead to liability also
The act will impact landowners in various ways. Any employer whose employee is found to be guilty of an offence also become liable under the new act. Landowners can now even become indirectly liable for the services of another if they commit an offence while under contract. The act makes life much more complicated for landowners, however if they do everything in their power to prevent any killing or harming from taking place they can use it as a defence if they are thought to be guilty.
Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011 imposes “vicarious liability” offences. So, as a landowner, if you have any employees working for you on your land, you are liable for their actions as well as your own. If say, one of your employees kills a bird illegally, you are liable for their actions. Even though you didn’t personally kill the bird, you’ll still suffer from the consequences. There are certain defences available to you, however it would be profitable to ensure that any employees or services that you have working for you are also aware of what they aren’t allowed to do whilst on your land, to avoid having to deal with the consequences of their actions.
On the powerpoint:
- Can’t kill or take a wild bird
- Will be liable for crimes committed by an employee
- Will also be penalised for crimes you didn’t personally commit
Consequences & PenaltiesEdit
Presentation - Consequences
Main points on Powerpoint slide
· Landowners will be burdened with strict liability
· For the most part they will be held responsible for the actions of their employees
· A defence may be available if the landowner has taken all necessary steps to make sure no offences could be committed
· Despite this the landowner may still have action taken against him/her
Except in very limited circumstances, the criminal law rejects the imposition of vicarious liability, on the sound principle that one should only be held criminally responsible for one's own criminal wrongdoing and not that of others. Statutory exceptions to this principle do arise in the context of delegation, most commonly in relation to licensing but where vicarious criminal liability has been held to arise, it has done so in the context of employers being liable for offences committed by their agents. (as it does in s.24 of the Wildlife and Natural Environment Act)
There is a defence for the employer if he can show that he (the employer ) did not know that the offence was being committed by his employee/agent ; and that he (the employer) took all reasonable steps and exercised all due diligence to prevent the offence being committed. Despite this proceedings may be taken against the employer even if proceedings are also taken against the employee. Therefore S.24 applies concept of strict liability on the employer.
Main points on PowerPoint slide
A person is not guilty of an offence if:
- Currently birds can be hunted under the Game Acts, schedules to the Wildlife and Countryside Act 1981 and general licences
- Taking any bird/mammal if it has been disabled
- So seriously disabled there was no chance of its recovery
- If the act was the incidental result of a lawful operation, and could not have reasonably been avoided.
As previously mentioned, it is now no longer lawful for a landowner to employ or engage anyone else to kill or take a wild bird on or over the land. However, as with every act there are exceptions. The landowner and the employee/agent/service may no longer be liable if they can prove certain circumstances. Exceptions include if the landowner can prove that the bird had been badly disabled and so he took it for the purpose of tending to it, in the hope it would return to its original health and be released again. It’s also legal to actually kill the bird if the circumstance should arise that the bird was so badly injured, through no illegal act that it had no chance of recovering, and otherwise may suffer. Another exemption could be that in the event of carrying out a lawful act, the bird was incidentally injured but was unavoidable. There’s also a certain set of circumstances which must be satisfied to prove that the situation was completely unavoidable and that all necessary measures were taken, but in the end there was no alternative. Any of these circumstances may life the liability off the landowner and the person who he hired/employed to kill birds over his land. Any other circumstances which the landowner felt was necessary to kill birds over his land will have to be disclosed to the relevant authorised person who will decide which circumstance would apply.
It is not an offence for an authorised person (authorised meaning landowner, authorised in writing by local authority and authorised in writing by Scottish Natural Heritage, a water authority or any other statutory water undertakers) to kill, injure or take certain birds not specially protected or damage, take, destroy nests/eggs, except on Christmas days and Sundays.
It is also not an offence to kill or take certain birds outside the close season for those specific birds, or injure one of them outside the close season in the course of an attempt to kill it, again except on Sundays and Christmas Day.
Close season is Feb 1st to 31st August.
Q & AEdit
“Who has the first question?”
“A question I’m often asked is….”
Message from Yuhan: Add possible questions to get audience going