Another attempt to ask questions of COPFS in February 2019

On 22nd February, I decided to try for a final time to ask 4 questions of COPFS, in order that I could inform the ECCLRC of the questions and answers to the questions, or, failing that, for COPFS to inform the convener of the committee of the answers to the questions.

The ECCLRC has not yet considered the 2017 wildlife crime report. I assume that this will be held soon, as the 2016 report was discussed on 15th January 2018. This would be an ideal opportunity to raise the issue of admissibility again as it was discussed last year, but it cannot be assumed that the meeting will cover the issue again. These questions are at the heart of my difference in understanding of the law and admissibility in relation to particular wildlife crime cases from that proposed by Crown counsel as set out in the letter from COPFS to the convener of the committee on 30th May 2017.

I will not include the full text of the letter, but here are the questions:

a) Is the statutory access right granted by section 1(2)(b) and 1(4)(b)of the Land Reform (Scotland) Act (LRA) to cross land granted to persons who may have intent, should an unlawful act be encountered, to take further measures including reporting the possible unlawful act to the police, and other actions, whether a perceived unlawful act is discovered or not?

b) Is this a separate and additional right to that granted under 1(2)(a), 1(3) and 1(4)(a) of the LRA, which considers the purposes of the right to be on land?

c) Provided that a perceived unlawful act is encountered in a public place and other conditions are satisfied, does the Regulation of Investigatory Powers (Scotland) Act 2000 under 1(2)(c), which includes the words: “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance”, grant persons the right to conduct surveillance activities without prior authorisation? Matters such as privacy and authorisation issues are more fully considered in the Office of Surveillance Commissioners 2016 Procedures & Guidance document Section 279 and elsewhere issued by the Investigatory Powers Commissioner’s Office, and also in the Covert Surveillance and Property Interference Code of Practice section 3.30. published by the Scottish government.

d) Should an individual such as myself encounter what they believe to be an unlawful trap when exercising rights under the LRA, what can such a person lawfully do in the way of actions preparatory to informing the police at the soonest opportunity of the presence of the trap, which would or would not not be permitted under the LRA, and which typical actions which an individual might undertake would not be able to be able to be excused due to a perceived irregularity?

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