A case study. Special constables in the Cairngorms – could they set cameras?

To determine if the Special constables in the Cairngorms National Park could set covert cameras on illegal traps.

Summary. I have examined the law in Scotland on this matter. The police could not apply for authorisation to set a covert camera. If however they, or indeed any member of the public, discover an illegal trap, they could set a covert camera on the site of the trap, before reporting the matter to the police. The police could then complete the investigation after removing the camera and examining the evidence, exactly as they do if they or a member of the public provides video evidence elsewhere if a crime has likely been committed. I will therefore offer to provide a free suitable camera to all of the Special constables.

The law in relation to the use of video evidence from covert cameras.

If the police suspect that a someone may be about to commit a crime, and they wish to set a covert camera (directed surveillance) they need to obtain authorisation before they proceed. This is due to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A. However, due to the provisions of the Police Act 1997, Part III Section 93, only if a the crime being detected were to have a maximum sentence or more than 3 years, could a covert camera be set on the scene of a potential crime. As the sentences for committing a wildlife crime are no more than 6 months, then such authorisation is not possible, and need not concern us here.

We need to examine the case where an illegal act has likely already taken place, and useful evidence may be lost if a camera is not set, and may be obtained if a covert camera is placed at the scene by means of directed surveillance. The difficulty, as explained by Professor Peter Duff in a blog item on the University of Aberdeen website that it is “a breach of the privacy of the landowner and his or her employees who work on the estate.”

Now it may be that the landowner or employees may not have set the trap. The privacy of a person not employed by the estate would not concern the landowner presumably, and the privacy of the person committing the crime need not concern us because under OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. However, is the middle if a moor a private place? Fortunately the Criminal Justice Act 1972 Part III section 33 defines it : ““Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”. Thus in Scotland most of the land mass is a public place under the Scottish Outdoor Access Code.

We now need to consider if an employee of a landowner needs to have his privacy protected in this way. Well not if he or she is engaged in crime they are not. What about the landowner and his or her privacy? In Scotland, there is a crime of vicarious liability, such that if an employee commits a crime, the landowner must show that he has taken sufficient measures to ensure that employees do not commit crimes. It would seem reasonable to infer then if an employee is the person who tends an illegal trap, the employer may well be committing a crime as well. Thus neither person needs to have their privacy protected, although future investigation may well show that neither had committed a crime, even though there is evidence to suggest that they may have done so.

Could there be another reason for authorisation to be required? Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” It seems to me that this confirms that authorisation is not required.

Well I think that has covered everything. I will draft a letter to the Cairngorms National Park Authority offering to provide every Special Constable with a suitable camera to place with a view of any illegal trap they discover. I’m sure they will be delighted with the offer of free suitable equipment, and I look forward to having the offer accepted.

Update 22 Aug. 2018

I would confirm that an offer has been made to CNPA which has been acknowledged. Although one should never say never, I believe that no matter the outcome, there would be no benefit to my aims if I gave any further information. I shall not update or discuss this matter further,other than what I have already stated here.

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