There has to be implications for my petition, as I have recognised for some time, and my understanding of the matter has changed since I first submitted the petition in March 2018.
- I shall assume that “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.” means that COPFS accept that someone with job as an investigator in the RSPB cannot give evidence in a case unless he has permission from the owner to be on the land or is invited to be on the land by the police.
- I shall also assume that “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.” was taken as an instruction by COPFS members dealing with the cases. I have no legal training. The description of Crown Counsel is as follows: ‘Together, the Lord Advocate, Solicitor General and the Advocate Deputes are known as Crown Counsel.’ I assume that they are part of COPFS. As this is the case, a decision by Crown Counsel would not or could not be questioned closely by those prosecuting the cases. This might also explain why the correspondence did not include a reference to the guidance in the application of RIP(S)A which says: “3.30. Covert surveillance that is likely to reveal private information about a person but is carried out by way of an immediate response to events would not require a directed surveillance authorisation. RIP(S)A is not intended to prevent public authorities from fulfilling their legislative functions. To this end section 1(2)(c) of RIP(S)A provides that surveillance is not directed surveillance when it is carried out by way of an immediate response to events or circumstances the nature of which is such that it is not reasonably practicable for an authorisation to be sought for the carrying out of the surveillance.” If they had, the absurdity of the position taken by Crown Counsel in the case of Craig Graham and other similar cases would have been evident to anyone reading the correspondence. The actions taken by those who discovered the illegal trap and the police who recovered the camera footage with them could hardly be a closer fit for the circumstances.
- The wording of my petition is a suggestion to add a subsection to the Wildlife and Countryside Act 1981. The preceding assumptions I have made imply that the position as regards future cases would be unchanged. I therefore need to make a change to the Land Reform (Scotland) Act 2003 if the petition is to be of any use whatsoever. I could suggest an amendment which would allow the government to appoint persons such as RSPB investigators to be present on land without permission of the landowner. That would probably be best but there are 2 drawbacks in that a) it would require a consultation and b) it might be better tackled as part of the consideration of licensing of estates. I will suggest a modification to the Act which does not require consultation, as it could not be considered contentious, and may well serve the same purpose in allowing cases to be considered by a court. I will not dwell too closely on how I reached that decision, as it may cause problems for the success of my petition, and it will not matter greatly if the conclusions I reach in this post are greatly in error.