Law Commission reject calls for Vicarious Liability. (1 Viewer)

[John S. Armitage]

On 15th October the Law Commission put out an interim statement relating to its review of wildlife legislation in England and Wales. Basically it has rejected the idea that there should be an offence of Vicarious Liability. It has produced a "watered down " version of the proposal which ( in my view ) I suspect will be very hard to implement.

So where does that leave the RSPB as far as future direct action on raptor persecution is concerned? Great store had been laid on the potential benefit the adoption of this measure would bring and, I guess, the deterrent effect such would have on upland grouse managers and owners. It seems to me that the important thing now is not to allow a vacuum to emerge surrounding the current situation but to commence to be seen to be taking direct , overt action. There may be tough talk in the latest magazine , but such needs to be matched with tough action in my view. See the piece I've put out on my Blog (http://birdingodyssey.blogspot.co.uk/ )

AND if you haven't yet signed ( or persuaded someone else to sign ) the E-petition relating to licencing upland grouse moors and gamekeepers, then PLEASE do so. http://epetitions.direct.gov.uk/petitions/46473

Many thanks

 

[Mono]

For those that want to read the statement themselves http://lawcommission.justice.gov.uk/docs/cp206_wildlife_interim_statement.pdf

We therefore now recommend that it should be an
offence for an employer or principal knowingly to permit an act to be done which,
when done by the employee or agent, amounts to a wildlife crime.

I think "knowingly to permit" is will guidance given as to if it the defence to prove they didn't or the prosecution to prove they did.

 

[chris butterworth]

'Knowingly'? Every other aspect of law involves the concept of 'ignorance is no defence'. It makes you wonder what hobbies / friends the Law Commissioners have.

Chris

 

[Mono]

Knowingly is a common term in law. First 3 that turned up.

Licensing Act 2000
"A person commits an offence under section 136 if he carries on, attempts to carry on or knowingly allows to be carried on a licensable activity on or from any premises otherwise than under and in accordance with a premises license, club premises certificate or valid temporary event notice"

Misuse of Drugs Act 1971
"The suspect must knowingly permit (wilful blindness may be sufficient, but not mere suspicion), or suffer the taking place on those premises"

Water Resources Act 1991
"It is an offence to cause or knowingly permit a water discharge activity unless you are complying with an environmental permit or exemption."

 

[chris butterworth]

I really should have done a bit of research first. Thanks Mono. It seems that there are loopholes in English law wherever you look. The watered down recommendation is more than toothless, it's a green flag for estates etc. to continue on, regardless. There is, probably, no estate worker in the land who'll come out and implicate their employer ( not if they want to keep their job / get another one in the industry ). It just preserves the status quo.

Chris

 

[Farnboro John]

'Knowingly'? Every other aspect of law involves the concept of 'ignorance is no defence'. It makes you wonder what hobbies / friends the Law Commissioners have.

Chris

Ignorance of the law is no defence. Ignorance of the offence being carried out is a defence.

John

 

[Bob Philpott]

Ignorance of the law is no defence. Ignorance of the offence being carried out is a defence.

John

I tend to agree here John. I can understand licensing of keepers and estates and I can get to grips with some form of Civil Vicarious Liability but I do struggle with Criminal Vicarious Liability. The law in Scotland has yet to be tested and I am sure landowners will make sure that every form in existence is signed to cover their backs.

 

[Farnboro John]

I tend to agree here John. I can understand licensing of keepers and estates and I can get to grips with some form of Civil Vicarious Liability but I do struggle with Criminal Vicarious Liability. The law in Scotland has yet to be tested and I am sure landowners will make sure that every form in existence is signed to cover their backs.

Oh no. That's another matter entirely. I absolutely cannot believe that keepers and other estate staff would deliberately break the law if they were not absolutely confident that their employer would protect them and they would not lose their jobs. What would be the incentive? All estate owners who have reduced numbers of BOP on their estates, regardless of actual prosecutions and convictions, know full well that the persecution is going on and they in fact require it. Of course nothing is on paper as the object of a contract cannot be illegal. If the lying cheating murderous landowners weren't intent on BOP persecution it wouldn't happen. Criminal vicarious liability when their serfs transgress should not require any further prosecution, it should be fully automatic.

John

 

[Trystan]

Oh no. That's another matter entirely. I absolutely cannot believe that keepers and other estate staff would deliberately break the law if they were not absolutely confident that their employer would protect them and they would not lose their jobs. What would be the incentive? All estate owners who have reduced numbers of BOP on their estates, regardless of actual prosecutions and convictions, know full well that the persecution is going on and they in fact require it. Of course nothing is on paper as the object of a contract cannot be illegal. If the lying cheating murderous landowners weren't intent on BOP persecution it wouldn't happen. Criminal vicarious liability when their serfs transgress should not require any further prosecution, it should be fully automatic.

John

As a food manufacturer, we are obliged to train our staff. If there is an issue, we have to prove that our staff are trained so there must be paperwork in place otherwise the owner of the company can be prosecuted.

Similar training should be mandatory in all industries, but especially in one where employees have access to lethal weapons.

 

[Bob Philpott]

As a food manufacturer, we are obliged to train our staff. If there is an issue, we have to prove that our staff are trained so there must be paperwork in place otherwise the owner of the company can be prosecuted.

Similar training should be mandatory in all industries, but especially in one where employees have access to lethal weapons.

Trystan, I think this has summed it up excellently. That training should be mandatory and landowners should be liable if they haven't done it and ensured their staff are properly qualified. My concern over Criminal Vicarious Liability is that in your case if your drivers delivering your food then exceeded the speed limit or drove dangerously VC would make you liable as well as them for the specific offences they committed. As a piece of natural justice that doesn't sit well with me.

 

[Mono]

The speeding case would only fall under vicarious liability if it was down to an action of the employer, such as setting unrealistic delivery schedules with sanctions for failure to complete them.

 

[Bob Philpott]

The speeding case would only fall under vicarious liability if it was down to an action of the employer, such as setting unrealistic delivery schedules with sanctions for failure to complete them.

Mono, That is why I have my doubts. the legislation as set up in Scotland actually works the other way, the employer would automatically be liable unless he/she could show that all necessary steps had been taken to ensure it wouldn't happen.

I am all for stopping this slaughter in the countryside but having worked in this area for quite a few years do think that VL may be a wrong route with better emphasis on the licensing aspects (as pushed in this forum and other places) with some form of civil penalty attached.

 

[DMW]

The speeding case would only fall under vicarious liability if it was down to an action of the employer, such as setting unrealistic delivery schedules with sanctions for failure to complete them.

I don't think this is correct. I believe the employer is vicariously liable if the employee is using the vehicle in the course of their employment, regardless of whether the employee was encouraged to speed by the requirements of the job.

Another way to tackle this problem would be to set targets for various raptor species on each estate, and fine the owners if they fail to meet these. I believe the principle is already established in employment law, where larger employers are expected to have a workforce that reflects the population from which it is drawn, and can be fined / sued if it doesn't. It would be a rather enjoyable irony to see gamekeepers scrabbling around trying to entice breeding Hen Harriers and Merlins on their estates, to avoid being prosecuted.

 

[John S. Armitage]

Hi. In a way SPA designations go some way towards this. Having been involved in the process, including obtaining that for the Forest of Bowland, the population levels of the various raptors in a given area were the driving force in terms of where the boundaries were then set over quite large areas. OK there are other aspects as well, but as an illustration it serves to show that, currently when those populations seriously decline ( or disappear as is the case with Hen Harriers in Bowland), there is no real action from Natural England and others , simply dialogue with the Estates!! Management grants still get paid and undoubtedly plausible explanations are put forward as to why the birds simply don't use the area anymore.........but in the meantime, as we all know, the main negative activity continues!! Still, let's not lose heart and make sure everyone signs the Licencing Petition!!!! Thanks.

 

[chris butterworth]

If the employers make sure that their employees remain within the law, surely that's not asking too much, then what have they to worry about? Criminal Vicarious Liability would have no effect on them, in the same way countless other laws have no effect on the majority of people. It would only become relevant if they were not carrying out their management obligations correctly. Simples :t:

Chris

 

[Farnboro John]

If the employers make sure that their employees remain within the law, surely that's not asking too much, then what have they to worry about? Criminal Vicarious Liability would have no effect on them, in the same way countless other laws have no effect on the majority of people. It would only become relevant if they were not carrying out their management obligations correctly. Simples :t:

Chris

Thats my whole big thing point. If the employers are squeaky clean the employees are bound to be.

I maintain that the converse is also true (if the employees are offenders then the employers must be behind it), which is why criminal vicarious liability is needed.

John