The hoped for effects of the Petition, now open.

The petition is now open today 16th August 2018, and is online at :

Petition PE01705

I had originally asked that I would not collect signatures, but would allow comments on the petition. This apparently cannot be done, so people may give signatures and comment on the website above. There can be no mention of this website on the government site, apparently. Thus I need to have a reasonable number of signatures to show support to the committee, but I would also request comments on this website if I have made any errors in my understanding of the law, in order that I may make corrections. I am hoping that when the petitions committee reviews the petition, then it will be forwarded to either or eventually both of the Environment Committee (EECLRC) or the Justice Committee. The petition will, I think, be described as lodged after 4 weeks.

If the petition is forwarded for review by another government committee, at that point I intend to make a longer submission to that committee and possibly some others may wish to make submissions, such as Scottish Lands and Estates (SLE), the RSPB, etc.

The easiest part of the petition to get legislated is the request to increase some penalties for wildlife crime to at least 3 years. Penalties are under active consideration at present. I understand that the penalty under consideration is 2 years, which would not allow the police to request permission to set covert cameras. I hope to be aware of that reaching parliament, which may be before the petition goes through all these procedures.

If that passes, and the penalty is increased to 3 years, anyone discovering say a pole trap, could advise the police, who could then apply for permission to set a covert camera. If permission is granted, and only then, a camera could be placed, although I remain to be convinced that in some cases authorisation is not needed even at present. A camera placed before then might prevent a case coming to court. Authorisation at the present moment could not be requested, and I’d like COPFS to be more aware of that.  As an extreme example of the use of the increase in sentences, it may also be possible, following on from this, that scientific researchers may wish to use cameras to conduct research into breeding success of say Hen Harriers. They could, if earlier they had requested permission to set a camera if a Hen Harrier if one decided to nest on a series of estates as part of the setting up of the project, but it had not sometimes been granted, and knowing that COPFS view the setting of a camera to check on breeding success as detecting and investigating crime where permission has not been granted, all the cameras in the project could be part of a request for authorisation via a police wildlife crime officer, who might be interested in seeing any potential crimes thus uncovered. I’m not sure if this would be likely, but even the possibility is a remarkable change. It may also be a consideration that the penalty for vicarious liability needs to be increased to at least 3 years, as it has been suggested that at least one case has failed due to the inability to identify the land manger. If the penalty is increased, the police powers may allow more targeted searches which could reveal the correct person to charge with an offence. This is not part of the petition, and I have not investigated this fully.

The second part of the petition relates to getting the case to court, following previous cases which have not proceeded. This requires a single minor legislation change by means of an amendment to the Wildlife and Countryside Act 1981.  These cases were decided on common law, and were thus not necessarily in Scottish legislation. The petition seeks to make it more likely that cases would proceed to go to court, without overriding greatly the common law aspects. It is essential that I make a full consideration of the correspondence between COPFS and the EECLRC to help inform me of the correct change in the law necessary.  I have now realised that there is no way for me to know if the minor change proposed would allow similar cases to those which were not proceeded with might then reach court. COPFS cannot advise on legislation, as that is the prerogative of the Scottish Parliament. I would hope that if the petition succeeds in the government tabling the amendment to the Act, that they may ensure that the Crown Office agrees that it would achieve the expressed desire on at least some occasions. In July 2013 Environment Minister Paul Wheelhouse said that he would be urging the Crown Office to consider the use of video footage in cases against those committing wildlife crime, and this has singularly failed. I hope the petition may rectify this. The difficulty I have had in reading the reply from COPFS is that I may have not fully grasped why the cases were discontinued. Neither RIP(S)A or clause 8 of the EHCR were mentioned, and it may be that COPFS consider that the common law aspects overrule any consideration of those, and how does one go about checking this? Certainly my opinion, formed since the letter was sent,  is that had these aspects been taken into consideration, the cases could have proceeded to court.

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