Video evidence has been available which could have been used as corroboration on at least 2 occasions, and at least one other is known about the fate of which is unknown. The COPFS in conjunction with the Crown Office did not allow these 2 cases to proceed. In 2014/15 COPFS allowed a case to go for trial which resulted in a criminal conviction and imprisonment. The later decision makes it unlikely that in cases where video evidence is available that the case will proceed. Whether a case may proceed depends on Common Law, so the following change in the Law is proposed to make it likely that courts will be allowed to decide if evidence is admissible.
The Wildlife and Countryside Act 1981 be amended by adding in a Section 19B
“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.”
This change is proposed to make video evidence more likely to be admissible in wildlife crime without overruling the common law aspects completely.
It should be noted that at present the Crown Office and COPFS have decided to act in place of the Courts in deciding that this covert video evidence wss inadmissible. The petition seeks to allow courts to make this decision.
The Crown Office Procurator Fiscal Service (COPFS) detailed in a letter to the Environment, Climate Change and Land Reform Committee (ECCLRC) committee the reasoning behind refusing to allow the cases before the courts which had video evidence available.
During the 2018 meeting discussing the wildlife crime report for 2016 Laura Buchan, who is head of the health and safety division of the Crown Office and Procurator Fiscal Service, stated: “There will often be disagreements within the team as lawyers discuss how best to apply the law. If that happens, we do not stop there. Often, when we have cases and decisions of such magnitude, reports are prepared for our senior advocate depute within the Crown Office so that they can make the final decision as to whether cases should proceed or whether, in some instances, we should no longer proceed.” This suggests that the law as it stands is close to what is required, and the minor change suggested here would be sufficient.
It should be noted that at present the Crown Office and COPFS have decided to act in place of the Courts in deciding that this covert video evidence was inadmissible. The petition merely seeks to allow courts to make this decision. It should be noted that the team did not agree. Court is the place to decide such matters, surely.