First I will repeat that I have no legal qualifications. I actively seek comments which would allow me to correct the statements I make here about the law and it’s interpretation. This post cannot form part of my submission to any Scottish Government committee, but it will help me to prepare a more suitable submission. 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.
I have no personal details of the case. My interpretation will be based on the media statements. All media statements need to be read with caution. The case was in media as follows:
BBC “A man has been charged with setting wild bird traps on a Glenisla country estate. Craig Graham, 51, is alleged to have set a “fenn-type trap”, baited with a pheasant carcass on a tree stump, between Bridge of Brewlands and Kirkton of Glenisla. Prosecutors say he repeatedly set the trap, which was likely to “cause bodily injury to any wild birds coming into contact with it”.”
BBC “Confidence in prosecutors’ ability to convict for crimes against birds of prey is being significantly undermined, according to RSPB Scotland. The charity has questioned the Crown Office’s decision to drop the case against a gamekeeper accused of setting an illegal trap. It has released footage which was due to be used in the trial purporting to show a “pole trap” being laid out. The case against Craig Graham has been discontinued. The Crown Office said video evidence provided by the RSPB in both cases was not admissible to the court because it was filmed for the purposes of gathering evidence. The charity has insisted that was not the case and that the crimes were recorded accidently. RSPB Scotland’s lead investigator Ian Thomson told BBC Scotland: “What has happened over the last few weeks has undermined our confidence significantly in that we’ve had two cases discontinued with absolutely no explanation. “It removes any opportunity for either ourselves or the police or anyone else who is engaged in tackling the scourge of raptor persecution to learn anything at all.””
The National: “Staff from the charity had filmed Craig Graham from Brewlands in Angus seemingly setting a “pole trap” designed to snap shut and break the legs of raptors. The barbaric traps were outlawed in 1904. The birds are protected by law, but can cause difficulties for game- keepers and land managers by attacking smaller birds, such as grouse, which are being reared for shooting. RSPB staff had discovered the trap in Brewlands on top of a pheasant carcass. With no phone signal to allow them to contact police, they made the trap safe and then placed a video camera pointing towards it. A few days later the organisation’s staff and a police wildlife crime officer returned to the scene to find the trap had been reset. The footage recorded allegedly showed Graham resetting the trap. He was subsequently charged him with four offences under the Wildlife and Countryside Act 1981. Police sent a report to the procurator fiscal, who marked the case for prosecution. Graham pleaded not guilty, and after six hearings, the trial was due to start on Monday. On Thursday, with little warning, the RSPB were told the Crown had dropped the case.”
Legal Eagle August 2017; Pole trap case abandoned.
…”on 25 April 2017, the Crown Office discontinued the case against gamekeeper Craig Graham, who was accused of setting and re-setting a pole trap on the Brewlands Estate in July 2015. The case had been scheduled for a trial on 15 May this year. On 9 July 2015, during routine fieldwork, RSPB Scotland Investigations staff discovered a pole trap on the Brewlands Estate in Glen Isla, Angus. This consisted of an illegally set spring trap placed on top of a pheasant carcass on a post. With no mobile phone signal to allow contact with the police, the trap was made safe and a video camera installed with a view to securing evidence until the police could attend. A review of the video footage showed an individual resetting the trap on two occasions, one of which occurred after the trap had fallen off the bait and triggered itself. The individual was reported for four offences under the Wildlife and Countryside Act 1981.”
There is enough here to work with, together with the letter from COPFS reviewed in an earlier post. This letter states: “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.” I will first say that the setting of the camera in this case was subsequent to the initial detection of the crime. The pole trap is easy to detect, by both humans and birds. It has been illegal for over 100 years,and the setting of the pole trap is a crime. The crime had already been detected, accidentally according to the media extracts above. The placing of the covert camera was plainly subsequent to the initial detection. The RSPB I assume did help the police subsequent to informing them of the pole trap at an early opportunity, but the police from that point on were in charge of detection and investigation, not the RSPB.
The articles make clear that the persons who made the discovery were RSPB staff. It should therefore be apparent that they may have been intending to detect crime, particularly as we now know that a crime had likely already been committed. The media extracts here seem to suggest that the RSPB personnel did not say they were detecting crime, and the discovery of the trap, and hence the detection were accidental. It is reasonable for a court to decide that the purpose of the RSPB staff being in that location was to detect crime. It is my contention however, that the role of the COPFS in this instance is only to look at the law in relation to the matter. The defence challenge was not from the representative of Craig Graham, so I assume that no evidence was led by them to suggest that the RSPB personnel were known to be detecting and investigating crime. That should presumably be done in the court where witnesses could be questioned as to their presence in the area and their intent. It did not get to court. I have also reviewed whether investigating and detecting crime is allowable under the Town and Countryside Act 1981 in a previous post so will not repeat the argument here.
I will therefore only look at the law and how the common law could be interpreted, just as the COPFS would have done. The RSPB staff, if they were passing through the area, would have a right to be there.
The articles above make clear that they could not contact the police from the location. Any person may accidentally detect crime, however the police are the appropriate people to investigate crime, and the articles made clear that the RSPB personnel were well aware of that. They did report the trap to the police who did investigate, charging Craig Graham with an offence. The prosecution failed on the actions of the RSPB personnel so let us look at what they did and could have done. They could have reported to the police without placing a camera. You may think that the police could then have placed a camera or asked the RSPB to do so with the police in attendance, particularly as the COPFS said in the letter “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. ” I would ask you not to be swayed by this as the statutory regime does not allow the police to undertake covert surveillance where the crime only has a 6 month maximum sentence. It suggests the the police, when alerted by the persons discovering the illegal trap, could have applied for authority to subsequently set a concealed camera themselves or delegated the RSPB to do so under police supervision. It is a pity that it is not true. They could have approached the appropriate land manager to get permission. As the person charged was likely in the employment of the land manager, had a conviction of the person setting the trap occurred then the land manager would be facing a possible charge of vicarious liability if the land manager could at that stage be identified. The RSPB staff did not try to find a land manager, but informed the police, presumably as soon as they could do so. The only issue therefore is the setting of the camera after the discovery of the possible crime. It is important to reiterate that the people did not set the camera with any issue of the camera being placed for research purposes. They were well aware that a crime had been committed.
Having determined, as the RSPB staff, the police but not apparently COPFS were aware, that they could not ask the police to approve the use of a camera, we already know what they did. They set a concealed camera.
It is at this stage that the COPFS say that the error was made which drew them to the conclusion that the case could not be proceeded. It is stated that the setting of the camera was to detect crime and that they would be breaking the Scottish outdoor access code. That may be true because a land manager would be required to approve it. However COPFS also state that the police had not obtained authorisation for the camera, which would have to be done before the camera was placed. There are 2 issues here. The first is that the people setting the camera were not bound by RIP(S)A, and would not need to have authorisation and it is not available to them. The second is that I believe that the police did not need authorisation to use the video evidence so obtained. The police were bound by RIP(S)A and may have needed approval to set a camera themselves. They did not need approval to use the video evidence and place it before a court. They do that all the time.
The only irregularity is the failure of the persons setting the camera after seeing an illegal trap to get approval from a potential criminal to set the camera in place. It appears in that case that a potential criminal has rights that overrule the failure of the non criminals to seek approval from him or her. COPFS state: “the subsequent video evidence was obtained irregularly. The irregularity was not capable of being excused, for the purposes of the common law of admissibility…”. That would not be the decision I would take, and I reject it utterly.
It is important not only to consider whether the statement that “the placing of covert cameras was, in those cases, for the purpose of detecting crime.” Crime detection in the Oxford dictionary is defined as: “The process of uncovering criminal activity (or verifying reported crime) and acquiring evidence in order to identify and prosecute its perpetrators.” In the post about the letter I said that in relation to the Land Reform (Scotland) Act 2003 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. Section 1 allows “the right to cross land.” In the media above it indicates that the trap was discovered during routine field work. From the statement about in the letter and the above it seems that “the placing of covert cameras” was when COPFS decide that the contravention of the Act occurred, not when they were crossing the land and came across the trap. When they placed the trap it might have been said that they were investigating a crime already detected, allowing the police to continue the process of both detection and investigation of the crime. I believe it might be the decision of a court that the investigation of an already detected crime could be excused. The detection of the crime, it seems, was not deemed an issue by COPFS, if you accept my assertion that to anyone would conclude at the sight of a baited pole trap that a crime had taken place (or detected). Again, this makes the decision somewhat strange.
The Land Reform (Scotland) Act 2003 already states in Section 3 “Reciprocal obligations of owners” Subsection (3) “In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights”. I would have thought that unlawful acts committed by an employee and hence possibly also by the land manager under vicarious responsibility legislation that this would be sufficient to allow a member of the public to provide video evidence to the police even if it was obtained in contravention of 3.64 of the guidance. It appears that the decision allows an employee and the owner to act illegally, in contravention of the Act whereas the person discovering an illegality cannot legally provide video evidence as corroboration to the police.
I think that this is an appropriate place to consider issues not raised by COPFS, but which I have considered in the preparation of this blog, because it has been suggested that it may be relevant, and I would like to show that someone committing such a crime can have no expectation that a video “is not obtaining information about them which is properly to be regarded as “private””. I assume that the police have the power to view video evidence from a camera which has been placed by someone who is not bound by RIP(S)A. This is fairly routine for the police, who regularly use video from CCTV, their own sources etc. for which they have not previously sought authorisation. If the video evidence has been obtained subsequent to the police being made aware of the potential offence and the placing of the camera, I believe it is more than likely that no authorisation was necessary under the present legislation. It could even be, that if before placing the camera, the persons, if they had phone coverage, which it was stated that they did not, could have contacted the police who could instruct them to place a camera without authorisation, as it was recognised that a crime most likely had already taken place, and the evidence from the camera would be useful in the investigation.
I will look at this in respect of the blog by Professor Peter Duff of the University of Aberdeen. In his defence of the decision not to proceed, he says “the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees”.
An estate owner who does not take active steps to prevent the placing of pole traps is likely to be committing a crime of vicarious liability, and the employee is also likely committing a crime in setting the trap. Under 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”. Additionally under Section 1.14 of Covert Surveillance and Property Interference Code of Practice as described elsewhere authorisation is not needed for directed surveillance if no private information is likely to result. My conclusion is that in setting the camera is not such a breach of privacy, and no irregularity in the obtaining of evidence has taken place.
It is important to again reiterate that I have no qualifications in law, these words are a result of my researches into finding a suitable set of words to enter legislation to allow video footage to be used in future cases. I am happy, but would not be delighted, to be persuaded that I have made errors.