A final consideration of the correspondence COPFS to ECCLRC

I have decided, for the present, not to include in any submission I am able to make to a Scottish Government committee a review of the letter from the Crown Office Procurator Fiscal Service(COPFS) in support of petition PE1705, except where absolutely necessary. The petition seeks to amend the law in such a way as to make a repeat unlikely, if not impossible, and I do not wish to take any action which might make the petition less likely to succeed.

I am placing this post in order to review how I may take forward the matter of my deliberations about the letter from COPFS and other matters before the cases were discontinued.

It may be necessary for those unfamiliar with the cases to to refer to the legislation, the timeline and the letter from COPFS (in italics where quoted here) to explain some issues. In addition, I will only review the letter in the context of the Craig Graham case.

I extract some items from the timeline which may be relevant here:

  • June 2013 Stanley Gordon (SG), a gamekeeper on the Cabrach estate appeared in a covert video where it appeared that he shot the female hen harrier as it left the nest. Note. This case is is not part of this review, as the same considerations do not necessarily apply.
  • March 2014. A gamekeeper on the Tillypronie Estate in Aberdeenshire (TG) was seen on a covert camera attending an illegal spring trap.
  • Late 2014. In a somewhat similar case, George Mutch (GM) was tried convicted and sentenced to prison for offences including against Goshawk and Buzzard on an estate with pheasant pens. No subsequent charges against his employer for vicarious liability were brought.
  • In January 2015, COPFS placed on their website: Sara Shaw, Procurator Fiscal, Wildlife and Environment said: “Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland. t is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection. This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message. COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”
  • July 2015 Craig Graham (CG), a gamekeeper on the Brewlands estate was alleged to have been seen placing a bait on an illegal pole trap. The camera was placed by the RSPB. Many provisional trial dates were set.
  • May 2017 COPFS does not continue with the cases against SG and CG. In correspondence between the convener of the Environment, Climate Change and Land Reform Committee (ECCLRC) and COPFS, some of the thinking in the case was revealed.
  • May 2017 David Harvie, Crown Agent writes to the Justice committee “I was heartened to read that the Committee concluded that the public can have confidence in an effective, rigorous, fair and independent COPFS.”
  • Sept. 2017 General Licence restriction 02/2017 was issued TG for 3 years from 15 September 2017 which prohibits them from using General Licences during that period.

“(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. The purpose of investigating and detecting crime is not one of those purposes. It follows that someone who is on land for such a purpose is not there pursuant to the rights granted under the Act.”

The Act has a section 9 “Conduct excluded from access rights
The conduct which is within this section is—(a)being on or crossing land in breach of an interdict or other order of a court;” etc.

None of the following lists of conduct suggests the words “investigating and detecting crime”. It is reasonable for COPFS reviewing the circumstances of a case to interpret the existing legislation. This is not an interpretation; it is a change. However, I have been reviewing the law in relation to this matter and I could have put forward a better interpretation which may have indicated in some way that the rights under the Act did not apply to them. The Crown Office could have said “We have considered the actions of those who set the concealed cameras. It is important that we consider whether those actions to see if they fall more within the provisions of Section 1 which allows the right of access or more to Section 9 which refuses right of access. We have considered each of the cases in detail and decided that…..”. This would have been an interpretation of the Law. In the case of Craig Graham, however, and up to the point an illegal trap were seen and after, I, many hillwalkers, ornithologists and the like would have fallen foul of any interpretation; we might all have reported the matter to the police as soon as possible and taken some action to assist the police in the matter of an investigation.

The only matter, which seems to have been considered a further issue, and which could be stated to possibly be relevant here is, as is also stated, “Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised,the subsequent video evidence was obtained irregularly.”

The revision of the Covert Surveillance and Property Interference Code of Practice. Section 1.14 of the code applicable at the time 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.”

The latest issue of this document in December 2017 perhaps explains this better, and I believe had the same intent. I was confused by the strange wording when I read the earlier issue for the first time.: “3.30. Covert surveillance that is likely to reveal private information about a person but is carried out by way of an immediate response to events would not require a directed surveillance authorisation. RIP(S)A is not intended to prevent public authorities from fulfilling their legislative functions. To this end section 1(2)(c) of RIP(S)A provides that surveillance is not directed surveillance when it is carried out by way of an immediate response to events or circumstances the nature of which is such that it is not reasonably practicable for an authorisation to be sought for the carrying out of the surveillance.”

It is fairly clear, therefore, that in the circumstances prevailing in the Craig Graham Case, authorisation was not necessary.

Further, and for completeness, 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”. But surveillance of persons who are not,or who turn out not to be, engaged in crime is much more likely to result in the obtaining of private information about them.”

The camera was placed in a public place. The information obtained would not be regarded as “private”. Although the persons placing the camera were not covered by RIP(S)A it is reasonable that COPFS considered this, just as I have done. I can’t see the problem which the Crown Counsel saw. I am prepared to go further and say that perhaps personnel in COPFS did not see it either, based upon the wording in the letter and testimony to the ECCLRC in January 2018.

“Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance.”

This sentence troubles me greatly. My petition, in part, seeks to allow this to happen in future, and requires a change in legislation. It could not happen in any of the cases being considered because authorisation may only be granted where a crime is considered serious, i.e. having a maximum sentence of 3 years or more. This superfluous sentence perhaps led directly to an article being printed in the Judicial Review: The Law Journal of the Scottish Universities, which contains the following: “I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation,‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision.” The writer suggests that authorisation could have been obtained it the cases under consideration, as is, at the very least, hinted at in the letter from COPFS. It could not, but it is likely that the writer was basing the article on the letter.

“The irregularity was not capable of being excused, for the purposes of the common law of admissibility,and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible. In light of that conclusion it was appropriate that the proceedings were brought to an end.”

The order of events in the case, only placing a camera after an unlawful act was uncovered, and that it did not require authorisation, means that the evidence could be regarded as admissible without any action needing to be excused by a court.

Other conclusions and unanswered questions.

  • Clearly, it is essential that in an organisation such as COPFS, whilst it may hold internal robust discussions before a decision is made, once such a decision is made, it is incumbent on all members to support the conclusion. It may be that Advocates depute participate in the discussion, and their senior level input may be considered. I do not know of another group who might be involved. This pleases me, because it allows me to believe that COPFS likely acted in an honourable manner. In addition, such persons as MSPs perhaps should not make close enquiries as to decisions, for fear that it may be interpreted as questioning the independence of the judiciary. The government already has a role which may replace questionable decisions with new legislation.
  • It is likely that the intent of the decision, from studying the letter, is that someone employed, say, as an investigator by the RSPB may never be allowed to testify about any discoveries made whilst carrying out work for the RSPB. This would be regardless of how the investigator came across an unlawful act. An obvious exception would be if he or she has prior permission from the owner to be on the land where a discovery is made, or is invited by the police to be present.
  • When I submitted my petition in March 2018, some of these conclusions were not then reached by myself, and my petition sought to make a change to The Wildlife and Countryside Act 1981 (WCA). I feel that it is now incumbent on me to make a change only to the Land Reform (Scotland) Act 2003, because the decision in the letter would still prevent likely cases being heard in court. Were I to do this, no change to WCA would be necessary. I hope that I may be allowed to make this change.
  • The letter discusses how video evidence may be used in court, insists that authorisation was necessary, but does not consider the main means under which it is likely to be used in court, without authorisation being required, namely the Covert Surveillance and Property Interference Code of Practice. Under this video evidence from an automated system such as CCTV or dashcam taken in a public place is allowed. I can see no reason for omission of this matter from the letter.
  • I have been made aware of the Inspectorate of Prosecution in Scotland (IPS) . I wondered if they may have had a role in arbitrating the decisions in this case, but “Inspectorate staff are not involved in any activity relating to the operation of the COPFS”.
  • There is no public information about TG provided by the RSPB, the police or COPFS, but there is a newspaper report, SNH reports and other information in the public domain. The delay in the timeline above confirms that it was still under consideration, most likely by COPFS, during more than 3 years. Had the investigation been concluded before these years passed, with the police (the party who must submit cases to Scottish Natural Heritage (SNH)) then able to pass the information to SNH, an area restriction would have been appropriate, not a personal restriction.

Rev 2 Dec 9th, 2018

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