Post 1. The letter from COPFS to the EECLRC convener. (mild)

This is one of a series of posts about specific parts of the areas which will be covered in the submission to the committee(s) if my petition reaches that stage. It is not intended even to be a draft section, but just my various thoughts, hopefully expressed using valid legal references and admitting that which I do not fully understand. If I have made a mistake in my understanding of the Law, please point it out to me by means of a comment and I will correct it. You may ask that the comment does not appear on the blog and am happy to make sure that it does not appear, but if I understand and agree I will still make the appropriate change. I also undertake to place suitable opposing views directly in the post if I find I can’t agree but admit that it has merit.  I would state that much of what I have written here will not appear in the final submission, particularly as much of this post and others can not be part of the petition. I have not considered relevant case law unless it is mentioned in the letter, but I will cover that in other posts. I would confirm that I have had no qualified  legal assistance in the production of any of the matters I have put in print or in digital media so far. Please understand that I am not seeking to undermine the independence of the Scottish Justice system, and will take no action which leads to that. The petition does not have this aim either, and will not mention much of the contents of these posts. It is still essential that I fully understand the reasoning of the Crown Office if my petition is to result in more successful prosecutions using video evidence as suggested in July 2013 by the then Environment Minister Paul Wheelhouse.

letter was written by the convener of the ECCLRC to COPFS, seeking  clarity around the gathering and admissibility of evidence of potential wildlife crime. The COPFS replied with a letter on 30th May which is shown in italics below. My comments are in normal text, after the part on which I am making a comment. Only the appearance of the original is changed to allow this to happen.

Thank you for your letter of 21 May 2017, addressed to my colleague Gary Aitken,
enquiring about the admissibility of evidence in respect of wildlife crime.
I have been asked to reply in my role as the Head of the Wildlife and Environmental Crime Unit (WECU) in COPFS.
The Law on Admissibility of Evidence
The admissibility of evidence in criminal proceedings in Scotland is largely governed by the common law, although there are also statutory provisions which bear on the admissibility of certain categories of evidence. There is a substantial body of case law, developed over many years, which sets out the principles and considerations which fall to be applied.
The key common law authority, for present purposes, is Lawrie v Muir 1950 JC 19. In that case, critical evidence had been obtained by officials who, though acting in good faith, had illegally obtained entry to the premises in question. A Full Bench of the High Court reviewed previous authority, and concluded that an irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. The Lord Justice-General, Lord Cooper, observed: “Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed”. In the particular circumstances, the evidence was held to be inadmissible. Quite apart from the common law rules, an accused person might object to the admissibility of particular evidence, on the basis that it would breach an accused’s right to a fair trial under Article 6 of the ECHR (European Convention on Human Rights and Fundamental Freedoms 1950) . There is case law determining that certain types of evidence are incompatible with an accused’s Article 6 right, rendering that type of evidence inadmissible in a criminal trial in Scotland. However, even if the admission of evidence would not be incompatible with the accused’s Convention rights, the common law rules of admissibility must also be satisfied.

My petition cannot question the decision, but I am writing this blog in support of a relevant Petition. It gives me an opportunity as a private citizen, who admits to having no prior knowledge of the Law, to examine this particular decision in some detail, and I am doing so. This should not be contentious.

The principles governing the admissibility of evidence are not specific to video evidence or CCTV evidence. Video and CCTV evidence is often used in criminal trials in Scotland. Any question about the admissibility of such evidence in any particular case will depend on the particular facts and circumstances of that case. Questions about the admissibility of evidence often relate, although not exclusively, to the manner, or the circumstances, in
which the evidence was obtained.
The Role of Prosecutors
In making decisions in individual cases, prosecutors must apply the law (including the law on the admissibility of evidence) to the particular circumstances of the case. There is no particular policy or guidance to be applied in assessing questions of admissibility of
evidence: it is a matter of law, not policy, and a matter to be resolved by applying the law to the particular factual circumstances of individual cases. Again, this is not specific to video evidence or CCTV evidence. Prosecutors are, moreover, under a duty to keep cases under review.
In a recent case, the Lord Justice-Clerk, Lady Dorrian, giving the Opinion of the Criminal
Appeal Court approved the Lord Advocate’s submission that: “it is important in the public interest that prosecutors exercise their judgment independently, robustly, forensically and objectively on the whole evidence available”: Stewart v. Payne 2017 SLT 159, para. 97.
From time to time, that may mean that prosecutors make decisions which are controversial – but it is important, in the public interest, that prosecutors exercise their independent judgment without regard to any potential controversy and that the independence of prosecutors to apply the law to the facts of particular cases is respected.

Clearly I had found this judgement to be controversial even before the publication of the letter which explained the decision and I fully respect the independence of prosecutors to apply the law to the facts of the case. The fact that this letter has been published gives some insight into the decision taken, and gives the reasoning behind this. However, It is not unreasonable for someone such as myself, a normal member of the public,  to consider these issues independently of the prosecutors, I have done it previously, and I am doing so here. This blog is intended mainly to be in support of a petition submitted to the Scottish Parliament, but the decision taken is very relevant to my petition. I understand that this may well be considered as controversial as the decision taken, but I am writing this  in the full knowledge of that. Please let me be clear. Although I will criticise some parts of the letter the Scottish Parliament cannot ask the Crown Office to reconsider the letter, . That would be an interference in their right to exercise their judgement independently. I was given the opportunity by the relevant Cabinet Secretary to  approach the COPFS in the hope of pointing out the error of their ways, including many of the areas I cover here but that was rejected. My feeling is still the same as it was when the decision was taken in May 2017. The letter did not change my opinion after the announcement that the cases were to be discontinued. It reinforced it.  I hope to demonstrate in this post that there are basic errors in Law and in the description of the manner of handling of the cases in the content of the letter. I would like the Crown Office, as is it’s right and indeed duty, to reexamine their interpretation of the Law, should other cases come to light. I would like them to withdraw the letter completely, should the petition elements succeed. That is perhaps a vain hope. However, even as a private citizen, I would not wish to interfere in their right to act independently, although I would be delighted if my blog articles stimulate that. Please follow my arguments posted here, as I have not yet explained in any way those deliberations.

Recent Cases Involving Video Evidence
Following a defence challenge to the admissibility of covert video evidence obtained by
RSPB investigators in the case against Stanley Gordon, Crown Counsel carried out a
review of the relevant material bearing on that case and the case against Craig Graham.
Crown Counsel concluded that the placing of covert cameras was, in those cases, for the
purpose of detecting crime and, as that activity was not authorised, the subsequent video
evidence was obtained irregularly. The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible. In light of that conclusion it was appropriate that the proceedings were brought to an end.

We now come to the main issues. I shall deal with each of the references below and then may return to provide my own references at the end, or give them is separate posts.

The letter says: “The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.”

The letter this makes clear that it is the common law principles that have been used to determine inadmissibility, although it may also be that Article 8 of the European Convention on Human Rights (EHCR)  which provides a right to respect for one’s “private and family life, his home and his correspondence” has been considered, although not mentioned. Other commentators on the letter, with some legal standing unlike myself, have discussed Article 8 in relation to the proceedings which were brought to an end. I will examine Article 8 of ECHR in relation the common law of admissibility as mentioned  in the letter later.

By way of context, it may be useful to mention the following:
(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act
2003 are granted for specific purposes. The purpose of investigating and detecting
crime is not one of those purposes. It follows that someone who is on land for such a
purpose is not there pursuant to the rights granted under the Act.

I reject this statement outright, for the following reason:

Section 9 of the Act lists Conduct excluded from access rights. The Act thus already provides for exclusion of rights and lists them. The purpose of investigating and detecting crime is not one of those listed in Section 9. I therefore believe that a prosecutor should review any specific conduct to see whether it falls more within Section 1 or Section 9. It is not possible to say, as has been said, and also be correct according the the present Act: “section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. The purpose of investigating and detecting crime is not one of those purposes. It follows that someone who is on land for such a purpose is not there pursuant to the rights granted under the Act.” Because there are the two sections, 1 and 9, it is appropriate to say that the act is silent on any activity which does not fall within sections 1 and 9. It is therefore to be expected that any activity could and should be examined to see if it is an allowable activity.

I will give examples here:

The Crown Office could have said

  1. “The purpose of detecting crime is not included in Section 9 which lists conduct excluded from access rights. This is therefore no grounds for discontinuing the court case.” In that case we would have heard no more and the cases would have proceeded to trial. I would be no more happy that this statement is correct than I am with the statement that has been made, and they both have the same questionable validity.
  2. The Crown Office could have said “We have considered the actions of those who set the concealed cameras. It is important that we consider whether those actions to see if they fall more within the provisions of Section 1 which allows the right of access or more to Section 9  which refuses right of access. We have considered each of the cases in detail and decided that…..”. This would have been in full accordance with the Law.

I am not saying definitively that investigating and detecting crime should be allowed without consideration. I am saying something different however. The consideration given in the letter is about “investigating and detecting crime”. If you read the item 2 of what I wrote about what the Crown Office could have said in accordance with the Law you will see that I said “the actions of those who set the concealed cameras”. I will show in another post when I consider the cases in detail that there is a world of difference between simply  “investigating and detecting crime” and the actions of the persons setting the cameras.  I will not precipitate my full consideration of the individual cases.

Excerpts from Land Reform (Scotland) Act 2003 are given below of sections 1 and 9. The full text is in the link. If you are not familiar with these, please take the time to consider whether you agree with my argument.  I will examine two of the cases in detail in another post and give my honest opinion of whether the decision was correct in Law, disregarding the actual decision taken.

Section 1  Access rights

(1) Everyone has the statutory rights established by this Part of this Act.
(2) Those rights (in this Part of this Act called “access rights”) are—
(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and
(b) the right to cross land.
(3) The right set out in subsection (2)(a) above may be exercised only—
(a) for recreational purposes;
(b) for the purposes of carrying on a relevant educational activity; or
(c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.
(4) The reference—
(a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—
(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or
(ii )any combination of those;
(b )in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.
(5) A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—
(a) furthering the person’s understanding of natural or cultural heritage; or
(b) enabling or assisting other persons to further their understanding of natural or cultural heritage.
(6) Access rights are exercisable above and below (as well as on) the surface of the land.
(7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

9 Conduct excluded from access rights
The conduct which is within this section is—
(a)being on or crossing land in breach of an interdict or other order of a court;
(b)being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;
(c)hunting, shooting or fishing;
(d)being on or crossing land while responsible for a dog or other animal which is not under proper control;
(e)being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;
(f)being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);
(g)being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

(ii) In any event, the Scottish Outdoor Access Code states that where people exercising
access rights wish to undertake surveys of natural or cultural heritage which require
the installation of any equipment or instruments they should “seek the permission of
the relevant land managers”: para. 3.64.

The statement is correct. The difficulty is that the Crown Office was fully aware of the reasoning of the persons who set the cameras. I have found it difficult to put simply but I will try.  In both cases the persons setting the cameras would have been reasonably  certain that any request would be refused. The reasoning is however different in each case so it will be more fully considered in the post dealing with each case. The police, the Crown Office and the persons not making the request are and were fully aware that they were not complying with 3.64 and the reasons for this. The Crown Office in the letter did not mention that they had considered this. I however will consider it with respect to my understanding of the Law in the post examining each case in detail.

(iii) The police have specific powers which they may utilise in appropriate cases in the
investigation of wildlife crime. In particular, section 19(2) of the Wildlife and
Countryside Act 1981 gives a specific power to constables to enter premises other
than a dwelling if the constable suspects with reasonable cause that any person is
committing or has committed an offence under Part I of the 1982 Act. 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.

The statement is indeed correct in Law. The fact that in the cases under consideration the police are not permitted under the statutory regime to undertake covert surveillance is not mentioned, which would require that the charges which were investigated was for a serious crime, defined as that which has a maximum sentence of 3 years or more. The last sentence is a misrepresentation of the present Law as it applies to the cases before the courts which carried a maximum sentence of 6 months. It may not have been intended to deceive but it certainly deceived Dr Phil Glover who has had an article published in issue 4 of the 2017 Juridical Review which contains this: “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. ” It sounds good, and I confess it would be a solution, and reading the letter from COPFS supports that view, but it can’t be done with crimes of this nature at the present time.

My petition actually seeks to change the Law by increasing the penalty for some crimes to 3 years to address this specific issue. This will be considered in a separate post and it is, thankfully, not very controversial.

COPFS remains committed to tackling wildlife crime, including raptor persecution. There is a strong presumption in favour of prosecution in cases reported to the Service where there is sufficient admissible evidence and prosecution is in the public interest.”

Let us also look at part of a  statement on the COPFS website in 2015 after the Mutch conviction. “Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland. “It is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection. This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message. COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”

The letter and the statement seem very similar in aim. George Mutch, however, may not be pleased that if he had committed the same crime 12 months later he would most likely not  have gone to prison.  Clearly COPFS wish, if the statements in the letter and on the website is correct, to have laws in place in Scotland that will allow prosecution of wildlife crimes. There is only the issue of “sufficient admissible evidence and prosecution is in the public interest” to consider here. I have no complaint about anything in this paragraph. I would not wish prosecution to occur if there is not sufficient admissible evidence. My huge difficulty is that the letter does not convince me that there was not the necessary evidence available even before my petition is enacted, which I hope it will be, and strengthen the resolve of those in COPFS who wished to proceed in the 2 cases considered here. I will return at some point to the matter of  “prosecution is in the public interest”.

I am now going to attempt to consider the application of Article 8 of the EHCR to the case, regardless of whether COPFS stated that the cases failed due to the common law aspects. I need to be sure that the proposal I am making in the petition is sufficient to allow such cases to go to court in future.  I have not found it easy but I am comfortable with what I am saying about the references if they are applicable in Scottish Law and to the cases under consideration. Both of these references relate to the Regulation of Investigatory Powers (Scotland) Act 2000. This legislation in Scotland does not apply to any NGO or to a member of the public, but I see them as relevant as follows, firstly drawing from OSC’s 2016 Procedures & Guidance document Section 279 states: “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”. Secondly I refer to the Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” I confess that I had some difficulty understanding the meaning of the sentence. I will give my present interpretation using my interpretation of both documents. Authorisation is not needed for directed surveillance if no private information is likely to result, and if a person is engaged in crime in a public place any information can not be regarded as private.

If my interpretation is correct, and it is applicable in these cases, then it is very important. I think that it is the power the police use when using CCTV or other video evidence and subsequently providing this evidence to a court. No authorisation is requested or needed. The police may already have to power to look at video evidence provided by someone other than themselves, and they do not need authorisation to do it in the cases under consideration. I am in fact not sure that they could not have set a camera themselves in cases where it is known that a crime has been committed  without needing to obtain authorisation. That did not occur in either case, however. I have been taking a new look at the statement “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”  in case it hints that authorisation may not have been needed or could have been obtained. However the obstacle to obtaining authorisation remains.

For information, the Criminal Justice Act 1972 Part III section 33 defines “Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”. This includes both places where the video evidence was obtained.

A member of the public is not bound by RIP(S)A and could not obtain authorisation under any circumstances. Neither, as has been explained, could the police in these 2 cases.  This suggests however, that authorisation may not be needed, if it is thought that a crime may have been committed. The 2 cases are considered on their own merits in later posts.  If there was no need for the police in these cases to seek authorisation, surely the video evidence may not have been obtained irregularly, but  each case should be considered in detail. These matters do need examination by someone more competent in Law than myself, I freely admit, but I should like to know why if I am wrong, as I see similarities to police using video evidence when they have not previously had authorisation.

My conclusions

I will first repeat that if anything here that I have stated  is in error and pointed out to me I will change it or include alternative reasoning where I do not agree but believe it has merit. What follows is based on my present belief that I have interpreted the letter and the present law correctly.

It may be that the person(s) who drafted the letter were fully aware of the errors I point out above. Certainly most of them were pointed out in my correspondence with COPFS, when I suggested several methods which might be suitable for us to communicate where I could explain my concerns in detail, without hopefully challenging their independence, but pointing out the matters in this post somewhat more privately.

I am concerned that I have nowhere detected any suggestion that senior persons in the profession of Law in Scotland have expressed any reservations about the letter. I have now read many judgements in case law in pursuit of all the relevant references in the 15 months I have sought to pursue this issue, and I am impressed by the  quality, the open nature and insight of the decisions. There must be many persons who could have read the letter with more initial understanding than I had. Perhaps they have read it and not been impressed, but the Law may still be a profession which will not discuss errors openly. I do not know what members of the Law profession do in their spare time, behind closed doors or in rooms which used to be smoke filled. I hope that they may have influence on the fate of this letter or future cases if they agree with any or all of the content of this document. I hope that this document reaches some of them. It is reasonable that senior members of the profession discuss the issues, even if they insist it is done privately, and if they agree with any of the points I have made, make them forcefully to the persons concerned.

I truly believe that the letter brings the Justice System in Scotland into disrepute, but would be happy to be persuaded otherwise.

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