This article explores the implications of an affirmative response to the following consultation question.
“Question 9-9: Do consultees think that there should be a wildlife offence extending liability to a principal, such that an employer or someone exercising control over an individual could be liable to the same extent as the individual committing the underlying wildlife offence?”
The issue which is of key interest to landowners relates to the level of legal responsibility that they may be fixed with in relation to breaches of wildlife management law.
The possible changes are most relevant to landowners that host regular shoots. Nevertheless, the rules may also impact upon landowners who suffer unauthorised shooting or other hunting activities on their land.
The Scottish Model
Recent changes in Scottish law have been considered by the Law Commission with a view to bringing some of the principles on to the statute book inEnglandandWales.
The Scottish law imposes liability upon a landowner in relation to the wildlife offences of others. This type of liability is known in law as ‘vicarious liability’. Therefore inScotland, where an individual (A) commits certain offences whilst acting as employee or agent of another (B), B is liable to the same punishment as if he or she committed the crime. The rules also impose liability on B for the activities of certain ‘service providers’.
Under the Scottish law, B must be someone who either has a legal right to kill or take a wild bird on or over the relevant land, or someone who manages or controls the exercise of such a right. Thus, liability may extend to the landowner (and possibly even a shoot manager), notwithstanding that the actual offence was perpetrated by another person – whether or not that other person is prosecuted themselves.
The 2011 Scottish rules provide B with a defence if he or she can show that first, he or she did not know that the offence was being committed by their employee, agent or service provider, and second, that he or she took all reasonable steps and “exercised all due diligence to prevent the offence being committed”.
The England and Wales Consultation
The Law Commission has reported receiving mixed advice on the issue from key stakeholders. The advice can be summarised as follows.
Advantages of Vicarious liability:-
It fits with the sort of economic regulatory approach that the Commission is considering.
It seeks to ensure the responsibility of those who directed the regulatory transgressions or could have prevented them.
It fits with the sort of regulatory regime in place for areas such as health and safety.
Those having the equivalent of a safe system of work would not become liable for the unsanctioned activity of one in their employ or under their control.
Disadvantages of Vicarious Liability:-
It is a considerable step from the current regulation of wildlife.
It could impose significant burdens on business, as well as considerably increase anxiety.
It will, for the above reasons, be contentious.
It is too soon to see what effect the change in the law in Scotland has had, or will have.
Conclusions and next steps
The Law Commission makes no proposal for reform in relation to the introduction of vicarious liability. Although that provides a certain measure of comfort for landowners, the principle could be reintroduced as the draft bill is prepared and passes through Parliament. It is therefore worth keeping a close eye on the content and passage of any draft bill.
It is likely that the shape of the draft bill in England and Wales will be influenced by the experience in Scotland. It is important to consider how the Courts there grapple with ‘vicarious liability’ prosecutions under Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011, as this will surely impact on the coming bill.
Of crucial importance to landowners will be the nature of the defence provided within the bill. It is anticipated that demonstrating that best practice has been followed in terms of (a) control of unauthorised hunting and (b) training, supervision and monitoring in place in relation to authorised shooting, will be at the heart of any defence.
Demonstrating that best practice has been followed means that landowners need to keep clear written evidence to that effect. Although the specifics of the proposed rules will not be clear for many months yet, it is not too early to reflect upon whether or not best practice is followed on your land. If so, then how is it recorded? If not, then the clock is ticking in terms of making changes.