Wildlife and Countryside Act 1981. (WCA) Section 1 is titled. “Protection of wild birds, their nests and eggs”, and is the likely Act under which a prosecution would take place.
Section 19 of the WCA says “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.”
Land Reform (Scotland) Act 2003. This legislation and the associated Scottish Outdoor Access Code governs what activities may be conducted by people under Scots “Right to roam”.
The Criminal Justice Act 1972 Part III section 33 defines “Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.
Regulation of Investigatory Powers (Scotland) Act 2000. This legislation in Scotland does not apply to any NGO or to a member of the public but these sections of these documents may be of interest:
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”. But surveillance of persons who are not, or who turn out not to be, engaged in crime is much more likely to result in the obtaining of private information about them.”
Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. 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 (Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”) occurs and an authorisation under RIP(S)A is therefore not appropriate.”
General Licence Restrictions Framework for Implementing Restrictions. This is a Scottish Natural Heritage document governing the issuing of general licence restrictions..
This was used in when General Licence restriction 02/2017 was issued to an individual for 3 years from 15 September 2017 which prohibits them from using General Licences during that period. It most likely relates to an unknown person who in March 2014 was filmed setting illegal traps close to a goshawk nest on Tillypronie estate.
The Spring Traps Approval (Scotland) Order 2011 lists in the schedule the types of traps which may legally be used, and the conditions which are attached to the use.
Examples of case law which may be applicable.
Lawrie versus Muir 1950 JC 19:
“Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime.”
The courts must balance “the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.”
This decision was quoted by COPFS in the letter to the ECCLRC. “It is important in the public interest that prosecutors exercise their judgment independently, robustly, forensically and objectively on the whole evidence available”.
Irregularly obtained real evidence: The Scottish solution? by Peter Duff School of Law, Aberdeen University which says:
“Thus, despite over 50 years having elapsed since Lawrie, in Scotland we are in a position where the leading text on evidence simply lists, without further explanation, a series of factors which the courts may take into account in determining whether to excuse an irregularity and admit improperly obtained evidence. These include: the gravity of the crime; the seriousness of the irregularity; the urgency of the investigation; the likelihood of the evidence disappearing if not seized immediately (which is connected to the previous factor); the authority of those obtaining the evidence; the good faith of the investigators; and the question of fairness to the accused (whatever ‘fairness’ means in this context). It is not at all clear from the jurisprudence why each factor is relevant, nor in what circumstances it should be taken into account, nor what weight should be given to it. On examining the relevant cases, it is difficult to avoid the conclusion that the decision whether to admit improperly obtained real evidence is made by courts on the basis mainly of a ‘gut reaction’ which is then rationalised with whatever factor or factors from the list above best justifies the decision. As yet, no principled, logical and coherent regime has emerged in Scotland to guide the courts in the use of their power to admit or exclude irregularly obtained real evidence and it is important that other jurisdictions should learn from this experience which has now lasted for over 50 years.”
The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions? Blog by Professor Peter Duff. which states: “Thus, COPFS is faced with the situation where the RSPB has covertly placed surveillance cameras on private land, probably at least partly with the aim of detecting individual instances of criminal behaviour and deterring other potential criminals from engaging in such behaviour in future. Thus, any evidence of a crime recorded by such cameras has been irregularly obtained and would require to be excused by a court before the recording could be admitted as evidence at a criminal trial. “
Raptor Persecutions and Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making. Blog by Dr Phil Glover. This considers RIP(S)A and Human Rights acts aspects.
The Admissibility of Covert Video Data Evidence in Wildlife Crime Proceedings: A “Public Authority” Issue. Blog by Dr Philip Glover who has had an article published in issue 4 of the 2017 Juridical Review which contains this: “I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision. ”
Abandoned hen harrier case – comment. Blog of Alan Stewart. In the post he states: “If anything positive can be taken out of this infuriating incident it demonstrates even more strongly the need for effective sanctions against wildlife crime on grouse moors. It is to be hoped that Roseanna Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform, will consider this as yet another extreme difficulty in convicting wildlife criminals, especially on driven grouse moors. I am so fed up with repeated wildlife crimes related to shooting estates that I’d much rather driven grouse shooting was banned altogether, though if this incident and the absence of a satisfactory outcome helps licence driven grouse shooting then we may consider there has been some sort of a result.” There are also several relevant comments about the post.