In law vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment (http://www.acas.org.uk/index.aspx?articleid=3715).
In Scotland a new law of vicarious liability for wildlife offences was introduced under the Scottish Parliament’s Wildlife and Natural Environment (Scotland) Act 2011 (known widely as the WANE Act). It came into effect on 1st Jan 2012 and is specifically aimed at anyone who has the legal right to kill or take wild birds over land or manages or controls the exercise of that right. It was passed in response to the illegal killing of protected birds (usually raptors) on (especially) shooting estates, and is designed to make land owners/managers ‘vicariously responsible’ for crimes committed by their employees, contractors and agents under existing laws that relate to:
- the protection of wild birds, nests and eggs;
- the prohibition of certain methods of killing or taking wild birds;
- the possession of pesticides;
- attempts to commit such offences.
Note that English law does not yet recognise vicarious liability for wildlife offences.
What does the law do?
The offence means a person who has the legal right to kill or take wild birds on or over land, or who manages or controls the exercise of such rights, can be found guilty of an offence committed by another person who is then acting as their employee or agent.
The law therefore puts the onus on landowners/managers to take a proactive role in the management of their land and of the management of employees who can kill or take wild birds on their behalf (which would usually be gamekeepers). For a charge of vicarious liability to be brought against a landowner/manager there must be other people involved (ie other than the landowner/manager themselves), and there must be an element of management, control or instruction (including cases where there is consent, conspiracy or neglect).
The maximum penalty on summary conviction is six months imprisonment or a fine on level 5 of the standard scale (£5,000), or both. The maximum penalty applies to a single offence only, so possibly multiple offences committed at the same time would result in multiple fines/longer imprisonment though this is not clear at this time.
Defences against vicarious liability:
The forerunner of the WANE Act is the Wildlife and Countryside Act 1981 which, as amended, gives the landowner a statutory defence under Section 18A:
- “In any proceedings under subsection (2), it is a defence for B [the landowner/manager] to show – (a) that B did not know that the offence was being committed by A [the employee/agent]; and (b) that B took all reasonable steps and exercised all due diligence to prevent the offence being committed.”
In other words, while it is a defence to show that the accused did not know the offence was being committed by their employee or agent, the land owner/manager must also show that they took all reasonable steps and all due diligence to prevent their employee/agent committing a wildlife crime. If they can do that, then no charges of vicarious liability can be brought against them.
Expanding on that, defences against charges of vicarious liability might therefore include:
- Providing a written employment contract between the owner/manager and the employee
- Issuing clear instructions on the law and illegal activities
- Making clear division of responsibility
- Providing ‘best practice’ guides
- Providing regular updates on changes to wildlife crime laws and appropriate training
- Holding annual reviews of employees and making spot checks on their practices
Opponents of the law have commented that it will be very difficult to prove that vicarious liability applies to an offence – and perhaps key will be the interpretation of ‘all reasonable steps’ – but the Scottish Govt website notes that “many responsible land owners and managers have been prompted to review their management and training practices to ensure their employees are aware of duties and responsibilities under the law [which] is a positive effect of the new legislation“.
- For more see Trapped by the Wildlife Act?, Journal of the Law Society of Scotland, Aug 2013, and Raptor Persecution Scotland, March 2013.
UPDATE: The first conviction under this law was of landowner Ninian Stewart who was sentenced on 23 December 2014 after pleading guilty to being vicariously liable for Glasserton & Physgill Estates’ gamekeeper Peter Bell’s crime of poisoning and killing of a wild bird. Stewart was convicted at Stranraer Sheriff Court and 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.
Thanks to Raptor Persecution Scotland for their help with this information
Page updated December 2014.
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