This submission has been a long time in the works. I hope that it has been worthwhile taking so long in the formulation.
“Further Submission relating to Petition PE1705
Wildlife Crime and Admissible Video Surveillance
I write in connection with Petition PE1705 and subsequent submissions made by me to the Public Petitions Committee, and including my ancillary submission made on 31 March 2019 (listed as PE1705/D). Now that the matter has been referred to the ECCLR Committee, I wish to highlight some additional points which are both important and relevant to this issue, and which I would respectfully ask the ECCLR Committee to consider as part of its review and hopeful implementation of the points raised in my petition.
This year, climate change and rapid biodiversity loss have become central topics of international concern and importance. In recognition of this increasing awareness of the impacts of climate change, the Scottish Government has declared a Climate Emergency. Also, a progress review on Scotland’s biodiversity strategy is due to be carried out in 2020 in terms of the Nature Conservation (Scotland) Act 2004. My recommendations are made in the context of safeguarding protected species in this increasing focus on climate change mitigation and biodiversity restoration, and to assist the Scottish Government achieve the targets set out in its ‘2020 Challenge for Scotland’s Biodiversity’ policy.
- Admissibility of recorded evidence
I recommend that it becomes a requirement for the Safer Communities Directorate to issue a new code of practice relating to the admissibility of photographic, video or audio evidence. In particular, I would suggest that the Code of Practice should provide a methodology to help investigators decide if a recording is likely to be admissible in court. This would help eliminate the ambiguity surrounding the admissibility of these types of evidence.
- Members of public acting in an immediate response to an unlawful act
I recommend that Section 3.30 of the Covert Surveillance Property Interference: Code of Practice (2017) is amended to add the following text at the end of the second sentence:
“, nor does it prohibit members of the public from taking similar action as an immediate response to events if they advise the appropriate public authority without delay, who may take action as if they had made the response.”
This recommendation is made: (a) to determine the extent to which authorisation is required to record a crime taking place as an immediate response; and (b) to clarify policy on the use of footage taken or recorded by a member of the public in connection with criminal activity.
- Spring traps used in an illegal manner
I also recommend that section 11 of the Wildlife and Countryside Act 1981 is amended to introduce stricter measures on the operation of spring traps. Furthermore, I recommend that this Act be amended so that it would be an offence for spring traps to be used if they were not marked (in a similar way to snares).
An amendment of the Spring Traps Approval (Scotland) Amendment Order 2018 (which banned the use of spring traps in certain circumstances) might also be a suitable legislative vehicle to make it a legal requirement for traps to show the individual markings of the person responsible for a trap.
These suggested amendments may deter potential offenders as well as make it more likely to be able to identify the person responsible. The change is only necessary for traps which when baited and set in the open would be likely to trap a raptor by the legs.
- Progress review of changes in legislation and new Code of Practice
Following the hopeful introduction of the suggested changes proposed in my petition and as set out above, I recommend that the Scottish Government requests the Lord Advocate to require the Inspectorate for Prosecution in Scotland to provide a progress report to the Lord Advocate and to the Safer Communities Directorate after years 1, 2 and 5 following any such changes. Any progress report should detail the practical functioning of these changes in relation to video evidence.
At present there appears to be no means for the public to understand why wildlife crime cases have not proceeded to court. The provision of these progress reports to at least a restricted audience would help form the basis for better review and reform of the way wildlife crime is investigated and prosecuted.
I also recommend that a similar request is made to the Inspectorate for Prosecution in Scotland to provide similar reports detailing the results of investigations and prosecutions of vicarious liability in terms of the Wildlife and Natural Environment (Scotland) Act 2011, following the introduction of provisions for vicarious liability for wildlife crime under that Act.
Against the above and previous submissions, I urge the ECCLR Committee to consider these proposals so that effective and necessary changes are brought about to help protect wildlife in Scotland.”