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 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 “The charity said their camera recorded evidence indicating the hen harrier was shot at Cabrach in June 2013. Stanley Gordon denied illegally killing the bird of prey. The Crown Office said it had been concluded that the evidence would not be admissible in court. Duncan Orr-Ewing, head of species and land management at RSPB Scotland, said: “RSPB video evidence has been used in the successful prosecution of previous wildlife crime cases in Scotland. “We are appalled and extremely frustrated that the court has not been given the opportunity to give a judgement based on this footage, and we are perplexed by the inconsistency in approach to these cases that seems to be taken by the Crown Office. “We have written to the Lord Advocate and will be seeking urgent meetings with the Crown Office to consider the implications.”
A Crown Office and Procurator Fiscal Service (COPFS) spokesman said: “In accordance with the Crown’s ongoing duty to keep prosecutions under review and after carrying out a detailed review of all of the relevant material, Crown counsel considered that the inevitable conclusion was that RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution.”
The National “Stanley Gordon, from Cabrach in Moray, was charged with illegally killing a hen harrier in Moray, after RSPB video footage appeared to show him shooting the bird in June 2013. Gordon always denied illegally killing the bird. In both cases the Crown Office said video evidence was not admissible to the court because it was filmed for the purposes of gathering evidence.”
Legal Eagle August 2017 “On 20 May 2013, an RSPB camera was deployed on a moorland hen harrier nest containing four eggs on the Cabrach Estate, Morayshire to record the outcome of the nesting attempt – a routine part of the RSPB’s work for this species. Over the next three weeks the footage indicated all was well. However, on 10 June 2013 the female hen harrier was apparently flushed off the nest. This was followed by two gun shots and a shower of feathers could be seen. A few seconds later, a man carrying a shotgun entered the frame and moved towards where the hen harrier had flown. He then returned into view holding what was believed to be the carcass of the bird, and picked up a few feathers. On reviewing the footage, RSPB Investigations staff reported the incident to Police Scotland.”
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.” This case is distinctly different from the case of Craig Graham, and it deserves to he considered separately here. Setting a covert camera on a bird nest is standard practice and it can reveal much useful science including nesting success, nesting failure and video evidence can determine exactly what happened in most cases. This is undertaken on a regular basis not only on hen harriers, but also on many other species all over the UK. It is normal part of a body such as the RSPB and I assume, not being a “birder”, that they work in conjunction with bodies such as the British Trust for Ornithology, Scottish Ornithology Club and various raptor monitoring groups throughout the UK in carrying out this work. You may ask why they need to use covert cameras. I’m sure it is because if the camera were visible it may modify the behaviour of either the birds or their predators, be they avian or mammalian. If a corvid were to use the camera as a perch, clearly the nest would be visible. The result would not only be a failed nest, it would provide bad science. Many estates allow the RSPB to place cameras on nests and I assume the necessary permissions are given. As virtually the whole UK has many “birders” any unusual bird which arrives in an area it is normally rapidly discovered, and the raptors which are present at nesting time would be reasonably accurately recorded over most of the country. Equally the estates which could be relied upon to refuse permission to place cameras would be well known. For these records to have general usefulness, it is important to cover a variety of habitats. Unfortunately there is likely to be commonality between uncooperative estates and the habitat. The areas of the country covered are also important for good science to be conducted. I have no doubt that the Cairngorms National Park and the Angus glens (I have been told that no Hen Harriers successfully bred on grouse moors in the Angus glens between 2006 and 2017 on what should be prime territory) would show much commonality. It is important however that these “blackspots” have as much work conducted therein as the estates which would cooperate to give good science. Now in the UK it is likely that the RSPB would be to go to source for camera installation, and I assume it is one of the regular duties of the investigations team. It is not all looking at dead birds and deciding if it has likely been persecuted and sending the bodies off, I can imagine. Much useful science would come from their cooperation in scientific studies, and I have read about many of them. This is not an aside to the legal issues, and it hopes to show that if a hen harrier is seen to be shot off it’s nest, it is not the only bird which will have nest cameras placed nearby, and a lot of them, such as on a wader for instance, cannot ever be deemed to be there for “the purpose of detecting crime” and “RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution.” The RSPB does not think this is the case and has robustly defended it’s actions. I think it appropriate to remind people that we see on our television screens for the purpose of entertainment but nonetheless sometimes providing good scientific insight, views of animals placed by cameras less likely to be placed covertly as the intent is to capture good images and by removing foliage actually puts the animal in more danger. The scientific use of covert cameras is taking place far more often than those seen on television screens. These are most likely in places where the public in Scotland has a perfect right to go but are most unlikely to venture.
I will now look at the conduct of the owner and (likely) his employee in light of the Land Reform (Scotland) Act 2003 which 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. ” It is the unlawful acts by an employee and hence possibly also by the land manager under vicarious responsibility legislation that has caused the member of the public obtain on the camera the video evidence which COPFS say was obtained in contravention of the guidance and the Act. If the employee had not acted unlawfully in this way, the contravention by the member of the public would not have occurred.
There is a government sponsored scheme at present called “Heads up for Harriers”. This sets cameras on the nests of these most persecuted birds. It requires the land manager to give permission for the setting of the camera. For obvious reasons it is most unlikely that a crime would be committed against the birds on the nest. The science from these nests is already useful, if limited, and I understand that some grouse moors have recently joined the scheme. This is to be lauded, but concern has been expressed that there are many estates who have refused to participate. That is their right, but adds to the suspicion that many more birds are being killed or disturbed.
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.” 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 “for the purposes of carrying on a relevant educational activity” In the media above it indicates that The camera on the nest had been there for some time, and it is undoubtedly the case that much useful material has been obtained of an educational nature using this technique. This seems to have been missed by COPFS in their bold statement that: “The purpose of investigating and detecting crime is not one of those purposes.” when referring to section 1 and ignoring section which lists activities which are not permitted.
It seems strange however, that by not allowing a court to make that decision, which I assume would need to be backed up by strong evidence, that that was the decision taken in this instance. They must have been pretty sure, and it is strange that with such strong evidence, if indeed they did have such strong evidence, that they decided to discontinue the case rather than let a court make the decision in a more public forum so the public could have confidence in the decision, and remove the likely confusion on the part of the police who took the decision to charge.. It might indeed be the case that a court might excuse the behaviour upon examination. If this happened, the person convicted has every right to appeal. That would allow an appeal court to decide on the issue with a public pronouncement that we could all accept. It is all very strange.
This case raises the simple issue of whether anything can be done about it.The petition which I have submitted should be simple and may do the trick. It does require the government to take some action, and I would suggest that it is done sooner rather than later. At the moment it has the same authority as an Act passed in the Scottish Parliament, an appeal decision or case law, issued always in my experience with competent public explanation.
The letter only came into public view when COPFS were asked to explain their thinking, which was a reasonable request. Without the letter we would be no wiser as the the thinking behind it, and I could not now be asking relevant questions. The letter with it’s reasons, however, is accessible to the public, which may not have been anticipated. The letter, whilst it still sits there is, I suggest, an embarrassment to the Scottish legal establishment, probably the butt of many jokes from other legal authorities. If my critique of the letter is correct, there is barely a statement which withstands scrutiny. The Scottish legal establishment, far from proclaiming “that the public can have confidence in an effective, rigorous, fair and independent COPFS”, as the Crown Agent wrote to the Justice committee in May 2017, embarrassed that it is in existence. Remember, and I am firmly in favour of this, the independence of the Crown Office must be maintained. The public and the government cannot act. The COPFS has rejected an opportunity that I was kindly afforded to communicate with them about the same matters in a more private format than this blog.
In addition my concerns over this statement, I would refer to my consideration of the letter and the Craig Graham case. Most of the criticism I make of the letter can be found in those previous posts.