Choice of wording to allow video evidence in court

The present wording is:

The Wildlife and Countryside Act 1981 be amended by adding in a Section 19B entitled “Admissibility of evidence in Scotland”:

“In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.”

Clearly even the givernment or an MSP takes the petition forward it may well be radically changed to avoid unintended consequences etc. However it is important to ensure that the suggested wording tackles the correct issue.

The present wording seeks to allow video evidence by actually mentioning video evidence.

Several commentators with experience in law have written on the correspondence. They have discussed the application of the European Convention on Human Rights (ECHR) Article 8 to decide that the decision not to proceed was taken. I believe that this is likely not the case. The application of EHCR article 8 already allows for a reduction in the rights of someone committing a criminal act in a public place and the need for authorisation.

Ludicrous though it may seem, the Craig Graham case suggests that a member of the public, who up to the point of discovering an illegal act (the setting of a pole trap) was not known to have breached any of the provisions of the Land Reform (Scotland) Act, then breached the guidance given in the Scottish Outdoor Access Code by placing a camera at the site of the illegal act, in order to provide the police with corroborating evidence of the illegality, albeit in a way which was not illegal. This breach may well have been all that was needed.

If this is the case, then the wording I have used, particularly in mentioning of video evidence is not necessary. In addition, it may be that although video evidence may be permitted in court, the same determination as was made in these cases might still be made in the future.

I could instead have said something along the lines of the Land Reform (Scotland) Act 2003 be amended by adding a subsection (4) to Section 3 “Reciprocal obligations of owners” as follows: “(4) An unlawful act by the owner or someone under his control may not, dependent on the circumstances, rely on the provisions of this Act to avoid prosecution.” This is probably not satisfactory.

A less prescriptive wording could be “(4) Whilst the provision of the Act limit the actions of individuals in exercising their rights under the Act it shall not remove the obligations of the owner and others on the land to act in a lawful manner. The provisions of the Act, depending on the circumstances, shall not be deemed to permit further unlawful acts if an unlawful act has already taken place.” This would cover the type of case where an illegal act is uncovered followed by the placing of a covert camera to discover later illegal acts, providing corroboration of the first act and any subsequent acts, but would not allow persons prospecting for illegal acts to claim that they are acting in accordance with the Act, rendering the video evidence likely inadmissible in court. It is less that I might hope for but makes more sense than leaving the present situation as it is.

I would then need to rely upon the way that the EHCR Article 8 is applied to allow video evidence. I am fairly sure that it would not prevent the video evidence from reaching court, regardless of the views expressed by others.

Addition in Octber 2018. That being the case, an alternative form of wording could seeks to prevent an unlawful act by the owner or others he permits to use the land to have no more protection in a public place than that afforded by EHCR Article 8 could be developed. This could be in the section covering responsible use by the owner  : “(2(c)) The provisions of the Act shall not be presumed to permit an illegal act by the owner or others he allows to be on the land where the illegal act is committed in a public place.” This would still allow a defence of protection of privacy, but that is limited in a public place. It does not mention video evidence or the EHCR but that is not necessary. It would still require persons exercising access rights to do so in accordance with the Act, but limit the protection the correspondence appears to afford the owner and other users of the land to commit unlawful acts.

Roseanna Cunningham, MSP, the Cabinet Secretary for Environment, Climate Change and Land Reform,wrote to my MSP stating: “If Mr. Milne would like further information on these decisions, he may wish to contact COPFS directly.” I have done this, but so far have not been permitted to communicate in any meaningful way, in order that I may help establish more fully the reasoning of the decisions. Although I could not expect COPFS to comment on my proposed wording, as that is a function of the Scottish government and parliament, I do need a greater understanding of the decisions to decide upon the form of wording I propose in the petition.

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