Submission to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament

I have been today (6 march 2019) advised that a submission I made earlier today will be sent to committee members and will appear on the government website. It is intended to be read in conjunction with the 2017 wildlife crime report and meeting, which last year’s similar meeting provided me with some information to help formulate my petition PE1705, which has had a single hearing so far. I wish that as many people as possible are aware of the content of the submission, and am therefore publishing it on this blog today.

The submission is a continuation of my long attempt to discuss the matter of video evidence and admissibility in wildlife crime cases with the Crown Office Procurator Fiscal Service (COPFS), suggested via my MSP Ms Maureen Watt by Ms Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and land Reform, who suggested on July 27 2017 that I should seek further information on the cases which were not proceeded with earlier in the year, by contacting COPFS. I have done so several times. They have said in 2017 and 2018 that they did not consider it necessary or appropriate to discuss these matters with me. The 2018 letter suggested that I may wish to seek independent legal advice in respect of the various matters in my letter. I was at the time developing my petition and became increasingly confident that in one or more cases, there was no irregularity in the actions of the RSPB personnel. COPFS considered, or rather Crown Counsel considered, that there an irregularity which could not be excused in both of the cases dropped at the time. Although I was still developing my case that there was no irregularity, I decided to follow the advice of COPFS and engage a firm of solicitors to get advice in mid December 2018. It was well into 2019 before I succeeded, despite having gone through a Who’s Who of large firms of solicitors in Scotland. The revision to my document eventually reached Revision 5 before I found firms prepared to conduct the review. The advice I received did not ask for representation or for their view, rather a review against Scottish Law of my document. I submitted the document, still noticeably my opinion, but with improved presentation and standing by means of the advice received, on 22 February to the Public Petitions Committee for it’s second hearing, likely in March. This document is also available on this blog, but I have not yet received confirmation that it meets the requirements for a submission. Of course, the main aim of that submission is to suggest changes in law which would make it almost certain that a court would be able to consider the admissibility of evidence in wildlife crime cases not presently being heard in court. I had convinced myself by this time that I had a strong case to ask COPFS 4 questions, some of which related to issues I had not seen raised elsewhere. I persisted, therefore, and in February 2019 I approached COPFS once again, stating that if they did not acknowledge or reply to my questions that I would assume that they still did not feel it necessary or appropriate to answer these questions. I suggested that COPFS might wish to answer the questions directly to the convener of the ECCLRC, and I do not know if that happened.

The submission to the Environment, Climate Change and Land Reform Committee draws upon the earlier submission. It mainly relates to the 4 questions I asked of COPFS, but also gives my answers in lieu of any response from COPFS. The questions are about the law in relation to the Land Reform Act and admissibility of evidence, discussed but not in terms of the matters raised prior to or at the 2018 meeting of the ECCLRC. It attempts to keep the matter general, and not relate the questions to any specific case, in order that members (and myself) are not seen to directly question any decision by COPFS. The matters considered in both submissions are by their nature technical, and it has taken me almost 2 years to get to this level of understanding, not being a lawyer by profession.

Here is the submission to the ECCLRC members:

Submission to the Environment, Climate Change and Land Reform Committee (ECCLRC) for consideration along with the 2017 wildlife crime report.

This submission relates to the discussion on the admissibility of evidence at the meeting of the ECCLRC on 15th January 2018, which considered the 2016 wildlife crime report. The Crown Office Prosecution Service (COPFS) had responded to a letter from the convener of the committee giving some detail of the reasoning behind the decision to discontinue 2 court cases in March 2017. This was further examined at the January meeting.

The representatives of COPFS at the January meeting gave some additional details of the process by which admissibility is judged. Whilst it is true that prosecutors have a large amount of flexibility to decide whether prosecutions may proceed, admissibility to a large extent depends on a consideration of whether any perceived irregularity in the obtaining of evidence may be excused.

The fact that prosecution decisions are entirely a matter for COPFS causes myself and MSPs some difficulty in what may be legitimately be discussed, and MSPs must not appear to question decisions lawfully made, but there are areas not previously raised where clarification may usefully be sought.

I was forwarded a letter to my MSP Ms Maureen Watt from Ms. Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, which suggested in July 2017 that I contact COPFS for further details on the decisions. I did try to contact COPFS to obtain further details, but in my very limited correspondence with COPFS it was made clear to me that they would not communicate with me about the issues I raised or answer the questions I asked. I did however take up the suggestion made by COPFS to obtain independent legal advice, and this resulted in a submission I have made to the petitions committee about my petition PE01705, now lodged and having been considered once. The petition aims ask the Scottish government to make suitable changes in the law such that wildlife crimes will likely reach court for a decision on admissibility.

This also leads me to suggest, as a completely separate matter, that members of the ECCLRC might themselves consider these general questions, which do not relate to any specific case or cases, but consider existing laws and admissibility.

I sent a letter on 22 February 2019 to the head of the Wildlife and Environmental Crime Unit at COPFS asking these questions, copied to the convener of the ECCLRC and others. As of 6 March 2019 I have not received an acknowledgement from COPFS. I did suggest that COPFS may wish to answer the questions direct to the convener if that was preferred, but I would not necessarily be aware of that. I said in the letter that if “I do not receive either acknowledgement or an answer in a reasonable time that you still do not consider it necessary or appropriate to communicate with me.”

I have therefore taken the decision to make a submission to the ECCLRC, giving my opinion as to the answers to the questions. These answers have the benefit of independent legal advice, and this submission is made with the benefit of that advice, although extracted from a submission about PE1705, and are phrased somewhat differently. The questions are intended to be general, phrased in such a way as not to openly question any decisions made by COPFS, although they do directly relate to decisions.

The questions and my answers are as follows:

These questions are:

Question a) Is the statutory access right granted by section 1(2)(b) and 1(4)(b)of the Land Reform (Scotland) Act (LRA) to cross land granted to persons who may have intent, should an unlawful act be encountered, to take further measures including reporting the possible unlawful act to the police, and other actions, whether a perceived unlawful act is discovered or not?

Answer a) Yes

Question b) Is this a separate and additional right to that granted under 1(2)(a), 1(3) and 1(4)(a), which considers the purposes of the right to be on land?

Answer b) Yes

Question c) Provided that a perceived unlawful act is encountered in a public place and other conditions are satisfied, does the Regulation of Investigatory Powers (Scotland) Act 2000 under 1(2)(c), which includes the words: “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance”, grant persons the right to conduct surveillance activities without prior authorisation? Matters such as privacy and authorisation issues are more fully considered in the Office of Surveillance Commissioners 2016 Procedures & Guidance document Section 279 and elsewhere issued by the Investigatory Powers Commissioner’s Office, and also in the Covert Surveillance and Property Interference Code of Practice section 3.30. published by the Scottish government.

Answer c) Yes

Question d) Should an individual such as myself encounter what they believe to be an unlawful trap when exercising rights under the LRA, what can such a person lawfully do in the way of actions preparatory to informing the police at the soonest opportunity of the presence of the trap, which would or would not not be permitted under the LRA, and which typical actions which an individual might undertake would not be able to be able to be excused due to a perceived irregularity?

Answer d) An individual has the right to take evidence, preferably without disturbing the scene of the probable unlawful act, including noting GPS coordinates, taking photographs, setting in place long time video and audio recording devices, whether automated or not, taking notes of anything which may be of interest to the police, and leaving security marked substances on the site which can be later be used to confirm if a particular person was likely at the scene after the substance was put in place. The individual should inform the police as soon as practicable of the actions taken, if they are unable to make an initial contact with the police from the location. If the police ask the individual to remain at the location and he is able to do so, he should comply with that request, and if later asked, he should assist the police in retrieval of the data from any apparatus left at the scene. None of these actions would be considered irregular if the evidence is later presented in court according to Scottish law as presently exists.

Alex. S. Milne

6 March 2019

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