I am going to cover some of the areas in several blogs posted on the Law section of the university website. I am not going to cover all of the content of the blogs, just a selection with which I have issues. Quotes from the blogs will be in italics to help differentiate from my comments. My discussion of these issues is not a personal attack on the persons involved, but I do hope to provide a different view, using only my understanding of the law, on the statements in the blogs. I believe the persons will likely not object, and I shall try to inform them of this post. They are qualified in law, and as such I assume are bound to support the decision not to proceed in the cases involved. I assume that this may prevent them in some cases from supporting my view, but they can certainly rubbish them, and I welcome anyone pointing out any errors in my reasoning of the issues in law. Further I am only going to cover the case against Craig Graham, which concerned the discovery of an illegal trap. The cases need to be considered on their own merits and I freely admit it appears to be to be the easier case to defend.
The first blog is The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions by Professor Peter Duff.
“In the cases in question, we have the RSPB installing video cameras on private estates, apparently without the permission of the landowner, which is a breach of the privacy of the landowner and his or her employees who work on the estate. It seems that the RSPB claim that these cameras are placed solely for research purposes with no thought of detecting crime. It is not surprising that COPFS seems to find this explanation unconvincing because while one purpose may well be to gather research evidence – for example, as to the causes of the high attrition rate among birds of prey – it seems unlikely that the RSPB has not considered the possibility of gathering evidence of estates and their employees engaging in ‘wildlife crime’. “
In the case in question the camera was not placed for research purposes. It was placed only after an illegal trap had been discovered. The applicable legislation is the Spring Traps Approval (Scotland) Order 2011 and the type of trap commonly in use has the statement “The trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing, or injuring non-target species whilst not compromising the killing or taking of target species.” If a trap of this sort is seen on the open with no cover it can be easily seen that it is not legal and offences under the Wildlife and Countryside Act 1981 would be considered. Thus in this case an offence was known to have been committed before the camera was placed, although it was not known who was responsible. Was there a “breach of the privacy of the landowner and his or her employees who work on the estate”? This is determined by the European convention on human rights(ECHR) Article 8 which covers the right to privacy. In Scotland I believe this needs to be considered alongside both the OSC’s 2016 Procedures & Guidance document Section 279 and The Covert Surveillance and Property Interference Code of Practice in Section 1.14, which can reduce the need for authorisation where potential loss of information is a consideration and “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”. The person who placed the trap comes under this description, and due to the vicarious liability legislation, it may be that the landowner is covered as well. I have covered this more fully in other posts, also showing that the location was a public place in law under The Criminal Justice Act 1972 Part III section 33. I therefore believe that in this instance the ECHR was not breached, and there was no irregularity. The use of video evidence in Scotland is often used in court, both from police cameras and those of the public, where there has been no previous authorisation, and I assume the code and the guidance are things which on occasion provide for this to be allowable.
The later statements “As I observed above, the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees” and “A court would have to determine that the public interest in preventing wildlife crime of the type in question is sufficient to outweigh the unauthorised and deliberate invasion of privacy by the RSPB before it would admit the recorded evidence. In the judgement of COPFS, the criminal courts would not do this and it seems to me that this is a perfectly reasonable view to take.” are I believe incorrect, all being based upon ECHR Article 8, and my earlier consideration applies and their action cannot be said to be an “invasion of privacy”.
The next statement “On a more technical note, such video evidence might well also be rendered inadmissible under the Data Protection Act 1998 and the Regulation of Investigatory Powers (Scotland) Act 2000.)” I am having difficulty seeing how someone who was not subject to RIP(S)A and indeed informed the police at the earliest opportunity, handing over responsibility to the police for the investigation could be said to be doing anything which would render the evidence inadmissible due to data protection, the video evidence not being available at the time, and only their statements being required. It was the police who took charge of the video evidence (data), not the person who set the camera. I will cover any inadmissibility on the part of the police more fully in considering the next blog.
The second blog is Raptor Persecutions and Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making by Doctor Phil Glover, also of Aberdeen University.
I confess that my understanding of this blog is only partial. However, I will attempt to make some statements I believe to be relevant and correct.
“The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use- (Peck v United Kingdom, (2003) 36 EHRR 41 at  ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram  SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).”
I believe it is the police who had the primary responsibility here as it is clear that they were responsible for recovering the video evidence and handled the video evidence (data). Although it was acquired on an RSPB camera they did not acquire the data themselves, which was effectively acquired, albeit unknowingly, by the persons who did not know the camera was there when they visited the trap. After setting the camera the RSPB relinquished their primary role and did not handle the data for the purposes of the prosecution. The subsequent discussion of the RSPB role as a data controller are therefore not applicable.
“My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert,non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).
The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1))and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.”
In my discussion on the previous blog I covered the issue of whether directed surveillance in this case could be excused, and decided it did not need to be excused. I shall not repeat the argument, but explain again the the RSPB are not covered by RIP(S)A, with the police who are covered by RIP(S)A taking control of the prosecution and evidence once the potential offences were reported to them.
“Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfullyobtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.”
I would refer here to my previous comments on the acquisition of video evidence by the police and the public which is regularly used in court when no authorisation has been previously acquired. This relies on both the OSC’s 2016 Procedures & Guidance document Section 279 and The Covert Surveillance and Property Interference code of Practice in Section 1.14, I will now look at whether a police constable could set a covert camera without authorisation in this specific case. I am not saying that they would, because a constable is unlikely to have a suitable camera to hand but only that it would be allowed in law, removing the perceived anomaly or absurdity above. Section 19 of the WCA says
“A constable who enters any land in the exercise of a power conferred by this section—
(i)be accompanied by any other persons, and
(ii)take any machinery, other equipment or materials on to the land,for the purpose of assisting the constable in the exercise of that power,
(b)may take samples of any articles or substances found there and remove the samples from the land.”
I believe that this would allow a constable to place a covert camera (machinery) on seeing a reported illegal trap, if the perpetrator was not on the scene, only recording the facts before leaving, but believing that the investigation might be assisted if video evidence could be obtained and might otherwise not be available if the illegal trap were merely removed. This action would not require authorisation for the reasons listed above.
I will not comment on the RSPB being “a ‘public authority’ for RIP(S)A purposes.” or the use of evidence in previous cases. I will say that I do believe that to continue with the case I discuss here would under in my opinion have been the correct decision, even bearing in mind under “ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.” This is not due solely to the matters here which only cover a part of the content of the blogs and not the full correspondence, which is considered elsewhere.
This blog refers to an article published in the Juridical Review: The Law Journal of the Scottish Universities.
I will only comment on the statement “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.” I do not blame Dr Glover in making the assumption that authorisation in either cases considered in the correspondence could have been obtained. The option of “asking Police Scotland to obtain the relevant authorisation required” was not available. Here is the quote from the correspondence from COPFS: “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.” Well they do have such powers, without doubt, but it should have been made clear that in neither of the two cases under consideration could the police be authorised to undertake covert surveillance. This is because the charges which were investigated were not for a serious crime, defined as that which has a maximum sentence of 3 years or more. I have searched for a reason why the sentence was written, but can not find any reason for it to have been included in the letter, and am reasonably confident that in neither case could authorisation be obtained. The sentence is not only superfluous, in these cases it is close to being mendacious. For the reasons stated above, however, and as is fairly normal in Scotland where video evidence is used in court, it is not uncommon for there to be no prior authorisation.