The significance of the ruling was that it was portrayed at the time that no-one was entitled to kill, injure or take any protected bird without a licence from the Secretary of State (in accordance with Section 16(1) of the Wildlife and Countryside Act 1981). However Sheriff Cameron ruled that section 4(3)(c) negated the need to apply for a licence if you can prove that serious agricultural damage is occurring. Daniel Quinn proved that Barnacle geese had caused the damage and as a result he was acquitted, collapsing the Procurator Fiscal, David Howdle’s case. The court proceedings additionally highlighted three important points; (1) serious agricultural damage to Powhillon and it’s SSSI was admitted by Scottish Office Agriculture and Fisheries department officials and recorded as such within internal reports, (2) the departments recommended scaring techniques were not a suitable alternative to killing in order to prevent serious damage to crops and (3) their wasn’t a substantive reason or any evidence to the contrary for the Secretary of State refusing to issue a licence to Danny
Forced to shoot.
It was never Danny’s intention to shoot geese, who up until this date had never owned a gun. It was however a deplorable situation he was forced into by Ministers, the Wildfowl and Wetlands Trust (WWT), Scottish Natural Heritage (SNH) and bodies such as the Royal Society for Protection of Birds (RSPB) who put their pursuit of providing undisturbed feeding areas for migrating Barnacle geese before sustaining the habitat, native fauna and flora and local interests.
The decision to shoot without a licence was not taken lightly. Danny had for approximately seven years prior to taking up arms, doggedly tried the authorities recommended scaring techniques of littering the fields with flags, whirlies, drums and bangers but they had no effect at all on the geese. We had even tried gas guns and verey pistols but to no avail. The only way to get the geese to lift off the fields was to walk in amongst them or send out our collie dog, but even that action would only cause them to rise and circle overhead and then land elsewhere on the holding. R Hill & Co didn’t have the time to continually walk around the farm scaring geese therefore they tried asking their landlords, the Wildfowl and Wetlands Trust to assist with scaring but they adamantly refused stating that they bought Powhillon as an area the Barnacle geese could feed and didn’t believe that the birds should be disturbed at all. In a despairing attempt R Hill & Co wrote to the WWT requesting them to exercise rights reserved solely to them in accordance with the lease, to shoot the wildfowl but you can imagine the abusive response that that suggestion was met with. R Hill & Co also tried approaching the Nature Conservancy Council (now known a Scottish Natural Heritage) with whom they had a management agreement for the Site of Special Scientific Interest (merse). The management agreement’s objective was to protect the botanical interest and R Hill & Co were paid public money not to alter it agriculturally. We notified NCC of the damage the geese were causing to the merse and asked them to assist with scaring but they refused and referred the matter to Scottish Office Agriculture and Fisheries department. Danny then tried applying for a licence to shoot Barnacle geese, from the then Secretary of State for Scotland but the applications were either not acknowledged, refused or he was referred to his local Scottish Office Agriculture and Fisheries department for advice on scaring techniques. As each year passed the population of Barnacle geese feeding at Powhillon grew and with that growth the destructive effect to the holding and its old pasture (merse) which had a SSSI designation, increased exponentially. In 1993, the number of geese feeding on Powhillon land reached twelve to thirteen thousand and it was at this point when Danny decided he had to do something to protect Powhillon and reverted to what had historically been the most effective deterrent against geese – shooting!
Reason for increase in Barnacle geese.
Powhillon’s merse and foreshore had always been a haven for wildfowlers who came to shoot the wigeon and teal ducks and the greylag and pink-footed geese. It was such a pre-eminent destination that the Solway Wildfowlers Association entered into a Minute of Agreement and Lease between themselves and the Viscount Stormont (previous landlord of Powhillon), dated 01 December 1966 to shoot wildfowl over this specific area of land. It was an agreement and situation that suited all concerned. The wildfowlers secured access to shoot, whilst Viscount Stormont could control the wildfowlers such that they didn’t detract from his estates gaming rights. The tenant had their natural pasture and most productive grazing land protected from geese and the habitat was protected for the other species of local wildlife (such as Lapwings, Swallows, Curlews, Oyster Catchers and Natterjack toads) that bred and lived in the area.
When the Wildfowl and Wetlands Trust acquired Powhillon in 1975, their intention was not to manage the farm as an 'agricultural holding' or to honour any wildfowling agreements which may already have existed. Their sole purpose was to “improve the area for geese by reducing disturbance” and to “expand the Caerlaverock National Nature Reserve”. In order to achieve this though they had to prevent wildfowlers from gaining access to the foreshore at Powhillon. The UK’s foreshore is owned by the Crown Estate and in Scotland it is a public right to conduct wildfowling on the foreshore if you desire to do so and you have obtained a firearm licence. Although Powhillon’s foreshore was a haven for wildfowling it was not readily accessible, with the most accessible route requiring the wildfowler to cross the farm. After acquiring Powhillon, the Wildfowl and Wetlands Trust with support from the Nature Conservancy Council set about removing wildfowlers from the area by coming to secretive arrangements with the Solway Wildfowlers Association and British Association for Shooting and Conservation to restrict their members from using the area. For those who chose to ignore the associations stipulations the Wildfowl and Wetlands Trust would demand that the offenders be prosecuted for armed trespass under the Firearms Act 1968.
In the following years several attempts were made to prosecute wildfowlers for armed trespass but none of them were successful primarily because the wildfowlers being prosecuted had R Hill & Co’s authorisation to cross Powhillon. However the fear and threat of conviction was enough to scare off the wildfowlers and eventually in 1986 no one attended Powhillon to shoot.
The Wildfowl and Wetlands Trust also obtained local bye-laws and were further aided in their quest to create a migrating goose sanctuary with the release of the Wildlife and Countryside Act 1981. This Act brought greater protection for all wild birds and restricted wildfowling from being an all year round activity to one conducted between the months of September and January.
In the mid 1980s the Wildfowl and Wetlands Trust had won the fight against wildfowling and with it came thousands of migrating Barnacle geese. Historically grey-lag and pink-footed geese were the most common species to the area but eventually they succumb to the dominant population of Barnacle geese. The problem this brought was that Barnacle geese (Branta leucopsis) don’t graze grasslands like other species. They are notorious for digging and ripping out pastures because they uproot their preferred grassland plant species for example white clover (Trifolium repens) that flourishes in the undergrowth. This ripping feeding habit combined with the paddling effect of their webbed feet, the tons of acidic faeces deposited and the very thin top soil on a clay base geology of Powhillon’s lands eventually took its toll on the holding and especially its’ SSSI. Each year the plant species found it harder and harder to regenerate and couldn’t sustain the increasing population of Barnacle geese. The old pasture started to deteriorate and as a consequence the nesting Lapwings, Oyster Catchers and Curlews moved out, the wild mushrooms and some of the other naturally occurring plant species disappeared and the available grazing for R Hill & Co’s cattle dropped drastically.
On Thursday, 11 March 1993 Danny was reported to Dumfries and Galloway Constabulary by John Doherty and Steven Cooper, both Nature Reserve Wardens for the Wildfowl and Wetlands Trust. On the same day he was charged by WPC Annette Clark and PC William Dodds and had his shotgun seized.
He was eventually tried, 9 months later at the instance of Procurator Fiscal David Howdle on 17 December 1993 where he was acquitted of all charges. Following his acquittal, Danny applied again to the Minister and became the first person on the Solway to be granted a licence to shoot to scare protected Barnacle geese. However along with the licence came notoriety and a punishing onslaught for R Hill & Co, instigated by their landlords the Wildfowl and Wetlands Trust. Outraged at the fact that their tenant, on their land was shooting their only interest they invoked condemnation for Danny’s actions and stirred up emotions to a point where he started to receive death threats. In addition the Wildfowl and Wetlands Trust also started their campaign to evict R Hill & Co bringing successive court actions against them with the sole intent of making Danny pay and suffer for shooting Barnacle geese.
They also refused to accept Sheriff Cameron’s ruling and rather than recognise that R Hill & Co had a right to protect their crops they claimed that the Wildlife and Countryside Act 1981 (an act which they themselves were heavily involved in bringing into being) was inadequate and didn’t fully incorporate the objectives of the European Bird Directives. They subsequently campaigned and lobbied ministers and the parliament to amend the act which resulted in the passing of the Wildlife and Countryside Act 1981 (Amendment) Regulations 1995. It was an Act which was passed without proper consultation and one which means that you can no longer just rely on Section 4(3)(c) of the Wildlife and Countryside Act 1981 as a defence, as in Danny’s case. The amendments mean that in addition to demonstrating and proving that serious agricultural damage is occurring you also have to show that there are no other suitable alternatives to killing. The only way you can prevent damage is to ensure that the birds do not land on the fields. Powhillon and Islay have demonstrated to exhaustion that the only way to do this is to shoot to kill. Every recommended method of scaring has been tried, retried and then tried again. All have patently failed and the Scottish Office Agriculture and Fisheries department have endless reports confirming such. The ineffectiveness of scaring methods was also accepted during Danny’s trial. It’s farcical that such amendments would be passed when there clearly aren’t any practical means of being able to comply with the requirements stipulated.