In January, I blogged about the opaque ownership of Kildrummy Estate in Aberdeenshire. A gamekeeper, George Mutch, had been convicted of wildlife crime. Under Section 24 of the Wildlife and Natural Environment (Scotland) Act 2011, an employer or agent of George Mutch can be charged with vicarious liability.
I asked a simple question – against whom would such a charge be brought? The estate is owned by Kildrummy (Jersey) Ltd. and, having outlined the complex ownership structure of Kildrummy (Jersey) Ltd. (see below and January blog for a full explanation), I speculated that the Crown Office might have a job on its hands to determine who (if anyone) could be prosecuted.
This week, thanks to the diligent and dogged investigative work undertaken by Raptor Persecution Scotland (RPS), we are now closer to answering that question. In September 2015, the Crown Office told RPS that,
“Despite further investigations including investigations which focused on establishing vicarious liability, no-one else has been reported to COPFS in relation to the events which took place in Kildrummy Estate in 2012 and accordingly, no further prosecution, including any prosecution for a vicarious liability offence, has taken place“
RPS followed this up by asking Police Scotland why they had been unable to report anyone to the Crown Office who might be considered to be vicariously liable for the crime carried out by George Mutch. Police Scotland’s response was published by RPS yesterday. The key part of Police Scotland’s reply is as follows
“Significant international investigations were undertaken……..it was established that due to insufficient evidence the additional charge of Vicarious Liability could not be libelled“.
This suggests that it was impossible, within the resources available to investigators, to identify with sufficient certainty who is actually behind Kildrummy (Jersey) Ltd. The Police may well know who could be libelled for the offence but had insufficient evidence to connect that person with Kildrummy (Jersey) Ltd. for the simple reason that is is virtually impossible to ascertain the answer to that question. If the Police, with the full range of investigatory powers available to them (including powers to force the Jersey authorities to divulge what information they hold), cannot find that answer, it is hard to see how anyone else might be able to.
Beyond the implications for wildlife crime legislation (and the Police note that “The experience of this case has, however, identified opportunities for refining future Vicarious Liability investigations….”), this raises questions about Scottish Government policy in relation to the offshore ownership provisions in the Land Reform Bill.
In a blog – Scottish Land and Secrecy Jurisdictions -from last month, I refuted the Scottish Government’s arguments as to why they could and would not implement the recommendation by the Land Reform Review Group and the proposal in their own consultation paper to restrict the registration of land by legal persons (companies etc) to those registered within the EU. The provisions currently set out in Sections 35 and 36 of the Bill merely allow authorised persons to ask the Keeper of the Registers of Scotland to, in turn, ask further questions about the true ownership of companies in secrecy jurisdictions. It is a meaningless provision since authorities in Jersey, British Virgin Islands and Grand Cayman are under no obligation to provide any answers. If even the Police cannot find such answers, what hope has the Keeper?
Included in the Scottish Government’s reasoning was a bullet point 3 that
“There is no clear evidence base to establish that the fact that land is owned by a company or legal entity that is registered or incorporated outside the EU has caused detriment to an individual or community.”
The Kildrummy case is prima facie evidence of precisely the circumstances in which opaque ownership in a secrecy jurisdiction has caused detriment – specifically to the ability of the Police to gather the necessary evidence to pursue a prosecution under an important statute passed by the Scottish Parliament.
Had Kildrummy Estate been owned by a company registered in the EU, the Directors of that company would be easily identified and could have been charged with vicarious liability.
The Rural Affairs, Environment and Climate Change Committee is currently preparing its Stage One report into the Land Reform Bill due to be published in early December. It might like to reflect on the Kildrummy case
The Scottish Tenant Farmers Association issued the following media release today.
WITHOUT ACTION, FARM EVICTIONS WILL BECOME SCOTLAND’S SHAME
The Scottish Tenant Farmers Association has welcomed the focus given to land and tenancy reform at last week’s SNP conference and the clear signal from SNP grassroots support for strengthening the land reform proposals in the current bill. The delegate’s call followed a powerful documentary on Channel 4 TV which highlighted what are seen as some of the worst areas of bad land and estate management in Scotland.
The conference also heard pleas to halt the impending eviction of tenant farmer Andrew Stoddart whose tenancy on Colstoun Mains in East Lothian is due to come to an end in a few short weeks. Andrew Stoddart, who also spoke at a fringe event, is the first of the Salvesen Riddell tenants to be forced to quit their farms following the Remedial Order passed by the Scottish Parliament last year.
Commenting on the grassroots “rebellion” at the SNP conference, STFA Chairman Christopher Nicholson said: “STFA has been concerned that the government may have been wilting in the face of intense pressure from landed interests, intent on weakening what can only be seen as an already diluted bill. We hope that this message from the conference will strengthen the government’s resolve to deliver more radical and much needed reforms to create fairer conditions for tenant farmers, stimulating investment on agriculture, greater access to land and encouraging opportunities for new entrants.”
STFA has also become appalled at the recent treatment of tenant farmers affected by the Salvesen Riddell Remedial Order, including Andrew Stoddart who faces imminent eviction without having had the opportunity to take part in the government’s mediation process or be considered for any recompense which should be due from the government following the implementation of the Remedial Order.
STFA Director, Angus McCall who has been involved in the Salvesen Riddell debacle for the last few years said: “This whole episode has become Scotland’s shame which has seen the victims of a legal error hung out to dry by uncaring government lawyers and an inflexible government process.
“This tragic episode stemmed from legislation passed in 2003 which was proved to be defective. The UK Supreme Court then instructed the Scottish parliament to remedy the situation and, as a consequence, 8 families will lose their farms and livelihoods. However, rather than seeking to fulfil commitments made by government to parliament and the industry, government lawyers are abdicating all responsibility and liability and refusing point blank to consider any compensation package for the affected tenants. These tenants are now faced with a lengthy and expensive court battle to exert their rights.
“STFA has already written, and is writing again to the First Minister, Cabinet Secretary, Richard Lochhead, the RACCE committee and MSPs to get the matter resolved and allow these tenants and their families to move their lives on, but all to no avail. Ministers, MSPs and some officials have expressed a willingness to help, but seem to be held to ransom by lawyers.
“We all appreciate that this is a complex situation, but the rulers of this country must accept a moral responsibility for the damage done though the actions of a previous government to these families and move without further delay to find a way towards an equitable settlement rather than forcing them into a long drawn out, expensive and life sapping legal battle. This has been devastating for all concerned and, after 18 months of prevarication, the tenants’ lives are still on hold and they are no further on in knowing their future.
“This affair has been a well-kept secret, but it must be time for the Scottish people to wake up and realise what is going on and allow common decency and a sense of fair play to prevail and put an end to this sorry affair before any lives are tragically lost as has happened in the past?”