Note This is subject to change, as are all posts, where errors are detected.
History. My MSP was contacted by the Cabinet secretary for the Environment, Climate and Land Reform committee (EECLRC) suggesting that I could contact the Crown Office Procurator Fiscal Service (COPFS) about my concerns over the correspondence between the two organisations. I did contact them, but did not have a constructive communication. I was of the opinion, along with some persons at COPFS as was suggested by the representative of COPFS at a discussion on the 2016 wildlife crime report, that the existing legislation would allow the cases considered to go to court. This makes the determination of the legislation I suggest even more difficult, as I need to locate the precise reasons for the decision, which I did not detect.
I’ll first list why I need information from COPFS. I have studied the correspondence between COPFS and the convener of the EECLRC, the Law in relation to the correspondence and other legislation to which others have referred. I am concerned that because I do not think the correspondence made sufficiently clear the reasons that the prosecutions were discontinued I may not be able to suggest changes to legislation which are effective in allowing more cases to allow video evidence to reach court.
I do not wish to suggest legislation change which would be ineffective.
I wish to suggest something close to what is required to allow video evidence in wildlife crime cases where there is a clear offence already committed, and a suggestion that video evidence may be considered admissible if there is an incidental recording of an offence, but prevent there being as many covert cameras on estates as there are traps. The output from prospective covert cameras without some scientific purpose when an incidental offence has been detected, and without a crime having been committed should not be admitted in court. I thought that the present legislation should have allowed and disallowed evidence seen by COPFS to be as this, but apparently not.
The wording, and which legislation to amend, needs careful thought.
I cannot ask COPFS to confirm if the series of suggestions I am already considering are fit for the purpose I have in mind, as that is a function of the government and the Scottish Parliament, but if I have a full understanding of the reasons for the decision not to proceed, I may then make a proposal which may go some way to achieving the above aims. It may not even be possible to frame legislation which permits this without consequences which are not intended, but if I can get close, future cases which come to light may be treated more in the manner which I seek.
If I assume that I may ask COPFS some questions, although that is probably not likely at present, I will set out here what the might be, after consideration of the difficulties they, the police and I faced when looking at the issue of the 2 cases covered in the correspondence.
Looking logically I will go through a process which I would do if faced with the 2 cases, and then frame questions to myself and then later to COPFS as I go though the process. There is a lot to cover, but really I only need to ask a few questions, but it is better to do it thoroughly, without letting irony, sarcasm or scepticism intrude.
Is there a major source for the legislation which could result in a charge being brought, and what can a policeman or member of the public do? The 2 cases are different, so first the Graham case, setting a trap in the open. The law listing the type of trap is the Spring Traps approval order. The type of trap must not be set on a pole or in the open. A member of the public may report such a trap to the police, but it is clear from the correspondence that a covert camera may not always be set by a member of the public. A policeman may carry out searches and do other things listed in Section 19 of the Wildlife and Countryside Act 1981 (WCA) which includes, the interesting sentence: “A constable who enters any land in the exercise of a power conferred by this section—
(i)be accompanied by any other persons, and
(ii)take any machinery, other equipment or materials on to the land,for the purpose of assisting the constable in the exercise of that power,
(b)may take samples of any articles or substances found there and remove the samples from the land.”
It may be the case that this would allow the setting of a covert camera, and it may be applicable in this case. It should perhaps be considered as permissible and allow a court to decide. Finding an illegal trap is not the same as finding the individual who has set it, which is necessary if a conviction is to result, as the traps f do not need to be marked with the identity of the person who set them. The more regular method would be to obtain authorisation, but the present law does not allow authorisation to be obtained by the police. This is the second prong of my petition. I will not cover other charges which might be brought.
The second case, brought against Stanley Gordon, involved shooting a hen harrier sitting or flying from a nest. This is an offence or offences under Section 1 of the WCA. A member of the public or policeman if this is seen may film this at the time, if the person committing the offence has not seen him/her, and it would likely be lawful. As the offence could not be foreseen a policeman could not set a covert camera in the same manner as in the Graham case under section 19, and authorisation may not be obtained. The correspondence suggests that a covert camera may not be set by a member of the public on a nest, unless given permission by the landowner.
I shall cover other legislation, not covered in the correspondence, but which I will refer to later, as this could have resulted in charges had the cases been proceeded with. This is the Regulatory Reform (Scotland) Act 2014 which covers vicarious liability by persons for certain offences by employees and agents in Chapter 4. These persons could be the same as the owners mentioned in the Land Reform (Scotland) Act 2003 (LRA). Thus offences committed by the persons in the correspondence might also be assumed to be an possible offence by the owners.
Having determined some of the charges which could be brought I therefore need to move to saying which legislation or common law aspects were crucial in the 2 cases in the decision not to proceed. This will result in questions to COPFS, I’m sure, although I have none so far.
There correspondence makes clear the opinion that there were irregularities committed by the persons on the public places in both cases considered in the correspondence. These were in relation to the LRA. The correspondence states: “The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.”
The European convention on human rights(ECHR) Article 8 which covers the right to privacy. In Scotland the application of this is guided by 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”. The Covert Surveillance and Property Interference Code of Practice in Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” The effect of the guidance and code is that under some circumstances the need for authorisation, particularly where information may be lost due the delay in obtaining authorisation , is removed and obtaining information about someone engaged in crime in a public place has their rights to privacy reduced. The ECHR Article 8 was not mentioned in the correspondence, but others have suggested it may have had a role. I assume that it may be the case that irregularities in persons being on that public land cannot expect that these irregularities may not always be excused in the same way as ECHR irregularities are excused.
That leads me to suggest that it could be assured that such irregularities might need to be excused by legislation either in the LRA or the WCA, more likely the LRA. This would have the effect of overriding the “common law of admissibility” aspects. I need to ensure that I have understood this correctly, which could be the subject of this question.
Question 1. Irregularities in ECHR Article 8 may be excused both in relation to a need for authorisation and due to being engaged in a criminal act. In the cases considered in the correspondence, was it deemed that the circumstances did not allow the irregularity in the Land Reform (Scotland) Act 2003 to be similarly excused, and does that apply to both cases?
It is also best to ensure that ECHR Article 8 was not considered because the irregularity referred to was enough of itself that the ECHR need not be considered. Others have mentioned the application of ECHR Article 8 to the cases.
Question 2. Was it the case that ECHR Article 8 considerations of the privacy of the owner and others who might be committing a criminal act did not need to be considered as the irregularity for the purposes of the common law of admissibility had effectively made that unnecessary?
and, to ensure that I have understood the application of the ECHR Article 8 correctly, and for completeness,
Question 3. Please also confirm that in Scotland, dependent on the circumstances, irregularities in ECHR Article 8 may be excused both in relation to a need for authorisation where loss of evidence which may potentially be obtained might occur is a consideration and due to being engaged in a criminal act.
Finally, I would reaffirm that my major concern about the latter from COPFS involves the sentence: “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. ” The sentence to my mind implies that it might have been possible to the police to obtain authorisation in one or both of these cases and a person even with some legal knowledge might come to that conclusion from the sentence. I can find nowhere that there is any possibility. that in these 2 cases under consideration, that the police could obtain authorisation. This, I admit, has even led me to question the motives of including the sentence in the letter as I can find no validity for it’s inclusion, as the letter purports to justify the actions of the COPFS only in relation to the two cases. If I ask the question, when I’m fairly sure of the answer, it could be considered inflammatory, and perhaps it is. It does not help me in determining the appropriate change in legislation, which is my only reason for approaching COPFS at this stage.
Question 4. Please confirm if, in either of the 2 cases considered in the letter, the police could have expected to obtain authorisation to undertake covert surveillance.
I have approached COPFS for a second time following the petition becoming open on the Scottish government website. It was not acknowledged, much less answered. I shall write again, to try not only to get an acknowledgement, but to ask the specific questions 1 to 3 as the only communication I need between us to allow me to have the information I need to change the legislation I proposed in the petition to something addressing the specific concerns of COPFS which led to the decision not to proceed with the two cases.