A change of direction.

This has been a traumatic couple of weeks for me. I have no qualifications in Scots Law, which has meant that, although I can understand the general meaning of an Act as well as anyone, and realise that even a minor error may prevent a case from being prosecuted, I do not know how the Scottish legal system works. I have been thinking, incorrectly and only exaggerating slightly, that someone like a lead poisoned grouse shooting Advocate depute paying too much attention to the wishes of ‘The Establishment’ could be behind what I clearly saw as a miscarriage of justice. I was totally wrong. I’m learning fast, but clearly I’m in no way as competent as someone who has studied Scots Law.

The event of the week for me, perhaps, was to issue by the RSPB of
The illegal killing of birds of prey in Scotland 2015-17 Report . This is important to me personally because I have been urging the RSPB to be more forthright in their efforts associated with campaigning, whilst at the same time warning of the dangers associated with strong action. I said, for instance that I did not believe the RSPB should have taken out a legal challenge on brood meddling against Natural England currently being heard, but would have been better to state that they admired Mark Avery for his arranging for a Judicial Review  and explained to members that doing so themselves may have put the whole future of the RSPB in doubt due to recent legislation enacted by the UK government. I need not dwell on this here, but the strong statements in this report are exactly what I would like the RSPB to do in future on many more issues. 

I now feel duty bound to change course on my decision made about  my actions in support of the petition. I am now going to act, totally independently of the RSPB, in support of the petition much more aggressively. I appreciate that even the RSPB may not even agree with my position these matters, and I’m not best suited to undertake such a role, but I view the situation in the Scottish Justice system as so serious that I will in this case take as much action in defence of my beliefs as I deem may be effective.

How am I going to achieve that? 

  • I’m going to admit that I have already written a comment to The Inspectorate of Prosecution in Scotland (IPS). One may believe that this might have an effect until one realises that the IPS has the following functions, to inspect or arrange for the inspection of the operation of COPFS and to report to the Lord Advocate on any matter connected with the operation of COPFS. I’m still not sure if the Lord Advocate is part of COPFS, but it hardly matters; The RSPB report states: “The Lord Advocate replied to us with a somewhat fuller rationale than had initially been provided by  COPFS”. Additionally I now know that the Crown Counsel is described on the COPFS website, not as the type of  person I suspected of being behind the decision to bring proceedings to an end, but “together the Lord Advocate, Solicitor General and the Advocate Deputes are known as Crown Counsel.” The I in IPS does not stand for independent, unfortunately. I’ll write with my concerns to the Justice Committee in Parliament. I have also found (thanks Mr Google) that I am not alone in my feelings. This BBC article  may suggest that COPFS personnel did not on occasion agree with decisions and such decisions may have been imposed. The enquiry by the Justice Committee  may be what lies behind this, which I have viewed for a long time as important:
    David Harvie, Crown Agent writes to the Justice committee “I was heartened to read that the Committee concluded that the public can have confidence in an effective, rigorous, fair and independent COPFS.” Whether the COPFS is independent depends on whether the Lord Advocate is in the COPFS. If not, the Justice committee is wrong if they decided that. The IPS is not independent despite the statement confirming this on their website, and the Lord Advocate and Crown Counsel are well placed to enforce decisions, stifle or  suppress the result any investigation of the matters which concern me. It would only take short  interviews of the heads of department in COPFS to establish if they are also concerned. How can the IPS be expected to act if my suspicions relating to the views of the head of department in the wildlife crime unit of COPFS and/or others  are correct. I wrote, when I first heard of  the Tillypronie case as a comment on Mark Avery’s blog on 3rd April, 2018: “This whole affair stinks to high heaven. As far as the public have been led to believe, two proceeding cases were abandoned by the Crown Office Procurator Fiscal Service in association with the Scottish Crown Office. These cases were to use evidence from concealed cameras placed by the RSPB. It seemed strange, if not a conspiracy to defeat the course of justice, at the time it was announced. This is a third case where evidence obtained from a concealed RSPB camera not only did not proceed to court but was hidden from the public by SNH. It was dealt with by means of a general licence restriction on an individual, whom you may not know but clearly the police and SNH could readily identify. The legitimate question arises; was the decision not to prosecute influenced by the owner of the estate who could, even without a prosecution, have ended up in court himself, and why was he not prosecuted? We can of course never know if a case was prepared. Conspiracy theorists could also ask the following, with the knowledge, if true, gleaned from the Guardian piece:  Did this video evidence have any influence on the decision not to continue with the prosecution of the other 2 cases? Was the Philip Astor factor relevant in this whole sorry saga? Did this have a bearing on the sale of the estate? Is the Scottish Legal System still vastly skewed towards the desires of the large land owners? Will the Scottish Parliament take any concrete steps towards allowing video evidence to be used in such cases?”  I made many mistakes in this comment, of which I am now aware, but my feelings of outrage are unchanged. 
  • I am part way through writing a submission to the Public Petitions Committee which I need to do to ensure that the wrong Act is not amended. I’m now going to introduce the committee members to the Tillypronie case, my concerns about the independence of the IPS, my support for the RSPB document, despite my personal even stronger feelings about the matter, and probably many more issues. I did say in my petition: “This petition seeks to side with those members of the Crown Office who thought these prosecutions should proceed under the present Law.” It would do no harm to give my reasons for making this statement and amplifying it a great deal.

 I was going to stay silent on these 2 matters above as I was concerned that it may harm my petition. The RSPB has stepped up to the mark. I, as an individual, can hopefully contribute a great deal and say things which the RSPB will not, for understandable reasons. It may well not harm my petition, but I have decided to take the risk if it does.  

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The implications of my review of correspondence

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.

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A final consideration of the correspondence COPFS to ECCLRC

I have decided, for the present, not to include in any submission I am able to make to a Scottish Government committee a review of the letter from the Crown Office Procurator Fiscal Service(COPFS) in support of petition PE1705, except where absolutely necessary. The petition seeks to amend the law in such a way as to make a repeat unlikely, if not impossible, and I do not wish to take any action which might make the petition less likely to succeed.

I am placing this post in order to review how I may take forward the matter of my deliberations about the letter from COPFS and other matters before the cases were discontinued.

It may be necessary for those unfamiliar with the cases to to refer to the legislation, the timeline and the letter from COPFS (in italics where quoted here) to explain some issues. In addition, I will only review the letter in the context of the Craig Graham case.

I extract some items from the timeline which may be relevant here:

  • June 2013 Stanley Gordon (SG), a gamekeeper on the Cabrach estate appeared in a covert video where it appeared that he shot the female hen harrier as it left the nest. Note. This case is is not part of this review, as the same considerations do not necessarily apply.
  • March 2014. A gamekeeper on the Tillypronie Estate in Aberdeenshire (TG) was seen on a covert camera attending an illegal spring trap.
  • Late 2014. In a somewhat similar case, George Mutch (GM) was tried convicted and sentenced to prison for offences including against Goshawk and Buzzard on an estate with pheasant pens. No subsequent charges against his employer for vicarious liability were brought.
  • In January 2015, COPFS placed on their website: Sara Shaw, Procurator Fiscal, Wildlife and Environment said: “Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland. t is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection. This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message. COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”
  • July 2015 Craig Graham (CG), a gamekeeper on the Brewlands estate was alleged to have been seen placing a bait on an illegal pole trap. The camera was placed by the RSPB. Many provisional trial dates were set.
  • May 2017 COPFS does not continue with the cases against SG and CG. In correspondence between the convener of the Environment, Climate Change and Land Reform Committee (ECCLRC) and COPFS, some of the thinking in the case was revealed.
  • May 2017 David Harvie, Crown Agent writes to the Justice committee “I was heartened to read that the Committee concluded that the public can have confidence in an effective, rigorous, fair and independent COPFS.”
  • Sept. 2017 General Licence restriction 02/2017 was issued TG for 3 years from 15 September 2017 which prohibits them from using General Licences during that period.

“(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. 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.”

The Act has a section 9 “Conduct excluded from access rights
The conduct which is within this section is—(a)being on or crossing land in breach of an interdict or other order of a court;” etc.

None of the following lists of conduct suggests the words “investigating and detecting crime”. It is reasonable for COPFS reviewing the circumstances of a case to interpret the existing legislation. This is not an interpretation; it is a change. However, I have been reviewing the law in relation to this matter and I could have put forward a better interpretation which may have indicated in some way that the rights under the Act did not apply to them. The Crown Office could have said “We have considered the actions of those who set the concealed cameras. It is important that we consider whether those actions to see if they fall more within the provisions of Section 1 which allows the right of access or more to Section 9 which refuses right of access. We have considered each of the cases in detail and decided that…..”. This would have been an interpretation of the Law. In the case of Craig Graham, however, and up to the point an illegal trap were seen and after, I, many hillwalkers, ornithologists and the like would have fallen foul of any interpretation; we might all have reported the matter to the police as soon as possible and taken some action to assist the police in the matter of an investigation.

The only matter, which seems to have been considered a further issue, and which could be stated to possibly be relevant here is, as is also stated, “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.”

The revision of the Covert Surveillance and Property Interference Code of Practice. Section 1.14 of the code applicable at the time 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 latest issue of this document in December 2017 perhaps explains this better, and I believe had the same intent. I was confused by the strange wording when I read the earlier issue for the first time.: “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.”

It is fairly clear, therefore, that in the circumstances prevailing in the Craig Graham Case, authorisation was not necessary.

Further, and for completeness, 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.”

The camera was placed in a public place. The information obtained would not be regarded as “private”. Although the persons placing the camera were not covered by RIP(S)A it is reasonable that COPFS considered this, just as I have done. I can’t see the problem which the Crown Counsel saw. I am prepared to go further and say that perhaps personnel in COPFS did not see it either, based upon the wording in the letter and testimony to the ECCLRC in January 2018.

“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.”

This sentence troubles me greatly. My petition, in part, seeks to allow this to happen in future, and requires a change in legislation. It could not happen in any of the cases being considered because authorisation may only be granted where a crime is considered serious, i.e. having a maximum sentence of 3 years or more. This superfluous sentence perhaps led directly to an article being printed in the Judicial Review: The Law Journal of the Scottish Universities, which contains the following: “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.” The writer suggests that authorisation could have been obtained it the cases under consideration, as is, at the very least, hinted at in the letter from COPFS. It could not, but it is likely that the writer was basing the article on the letter.

“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. In light of that conclusion it was appropriate that the proceedings were brought to an end.”

The order of events in the case, only placing a camera after an unlawful act was uncovered, and that it did not require authorisation, means that the evidence could be regarded as admissible without any action needing to be excused by a court.

Other conclusions and unanswered questions.

  • Clearly, it is essential that in an organisation such as COPFS, whilst it may hold internal robust discussions before a decision is made, once such a decision is made, it is incumbent on all members to support the conclusion. It may be that Advocates depute participate in the discussion, and their senior level input may be considered. I do not know of another group who might be involved. This pleases me, because it allows me to believe that COPFS likely acted in an honourable manner. In addition, such persons as MSPs perhaps should not make close enquiries as to decisions, for fear that it may be interpreted as questioning the independence of the judiciary. The government already has a role which may replace questionable decisions with new legislation.
  • It is likely that the intent of the decision, from studying the letter, is that someone employed, say, as an investigator by the RSPB may never be allowed to testify about any discoveries made whilst carrying out work for the RSPB. This would be regardless of how the investigator came across an unlawful act. An obvious exception would be if he or she has prior permission from the owner to be on the land where a discovery is made, or is invited by the police to be present.
  • When I submitted my petition in March 2018, some of these conclusions were not then reached by myself, and my petition sought to make a change to The Wildlife and Countryside Act 1981 (WCA). I feel that it is now incumbent on me to make a change only to the Land Reform (Scotland) Act 2003, because the decision in the letter would still prevent likely cases being heard in court. Were I to do this, no change to WCA would be necessary. I hope that I may be allowed to make this change.
  • The letter discusses how video evidence may be used in court, insists that authorisation was necessary, but does not consider the main means under which it is likely to be used in court, without authorisation being required, namely the Covert Surveillance and Property Interference Code of Practice. Under this video evidence from an automated system such as CCTV or dashcam taken in a public place is allowed. I can see no reason for omission of this matter from the letter.
  • I have been made aware of the Inspectorate of Prosecution in Scotland (IPS) . I wondered if they may have had a role in arbitrating the decisions in this case, but “Inspectorate staff are not involved in any activity relating to the operation of the COPFS”.
  • There is no public information about TG provided by the RSPB, the police or COPFS, but there is a newspaper report, SNH reports and other information in the public domain. The delay in the timeline above confirms that it was still under consideration, most likely by COPFS, during more than 3 years. Had the investigation been concluded before these years passed, with the police (the party who must submit cases to Scottish Natural Heritage (SNH)) then able to pass the information to SNH, an area restriction would have been appropriate, not a personal restriction.

Rev 2 Dec 9th, 2018

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Update on 14th November 2018


I had a letter from the Scottish government yesterday which said that the Poustie recommendations needed consultation as well as legislation being drawn up.  It was listed to be legislated in the 2017/18 year but now only the consultation will take place in 2018/19. If it had been made legislation last year my petition could not have been successful for a long time, so I’m reasonably content, but others may not be so happy.

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Update on 7th November 2018




The petition will not be considered this week and likely not until replies have been heard from interested parties who will have been approached about whether they wish to make a submission. If you are interested please contact me or direct to the petitions office.

I have now started to write my own submission, but am concerned about some of the content I may decide to include, which may be deemed unwarranted or worse. My consideration is here on this website.



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What to include in my submission to the Scottish Government committee?

I have now to write my submission, which will likely be needed before my petition is heard, likely at the ECCLRC.

I need to make a decision as to whether what I believe happened in the Crown Office and COPFS which I have learned about since I submitted my petition should form a part of that submission. Other than that the petition is quite clear as to the requests I made, and I’m sure it will receive a good reception by the majority of MSPs. I can add little of note, apart from an alternative suggestion as to the change in legislation as I now believe my original suggestion would be ineffective.

Pro

  • MSPs should be aware of what has happened. They have a right to know.
  • Those in COPFS should know that I know the truth of what happened. It may strengthen their resolve and stiffen their resistance in favour the legislation in place in future should these issues arise again. I believe that it will happen again, if nothing is known.

Against

  • It may damage the success of my petition
  • I may be wrong. I’m not, of that I’m certain. However, I would strongly prefer to be wrong, but I can see no way to explain the various events which have occurred. I have conducted this research on my own, with no knowledge of anything which is not publicly available to an interested party. Of course, I have been researching the events for more than 18 months, only becoming aware of many of the issues since I submitted the petition in late March, 2018.
  • The MSPs can do nothing with the knowledge, as they have to respect the independence of the judiciary. It is a pity that some persons in the judiciary does not seem to realise that such independence comes with an expectation and a demand that they act impartially, and in accordance with legislation passed by Parliament.

 

I’ll set it all down, and see if I can make up my mind. Unfortunately, putting it in my website means that I’m likely the only person who knows about it, so I would need to include it in my petition, in order that those in the Justice system are more likely to hear of it.

 

Here is what I believe happened, stated in a timeline of events, with some comments.

June 2013 Stanley Gordon (SG), a gamekeeper on the Cabrach estate appeared in a covert video where it appeared that he shot the female hen harrier as it left the nest. The police charged Mr Gordon, and there were 9 court appearances. This case, although included in subsequent events, was so different from the other 3 cases, I am not going to include it in this consideration. Each case needs to be considered on it’s own merits.

March 2014. A gamekeeper on the Tillypronie Estate in Aberdeenshire (TG) was seen on a covert camera attending an illegal spring trap. It is not really relevant how the case was handled, but I suggest that the police may have been restrained from charging the known suspect by COPFS, and there has been no public statement about this case other than an article in the Guardian placed after I submitted my petition in March 2018.

Late 2014. In a very similar case, George Mutch (GM) was tried convicted and sentenced to prison for offences including against Goshawk and Buzzard on an estate with pheasant pens. No subsequent charges against his employer for vicarious liability were brought.

In January 2015, COPFS placed on their website:

“Sara Shaw, Procurator Fiscal, Wildlife and Environment said:
“Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland.
“It is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection.
“This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message.
“COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.””

July 2015 Craig Graham (CG), a gamekeeper on the Brewlands estate was alleged to have been seen placing a bait on an illegal pole trap. The camera was placed by the RSPB. Many provisional trial dates were set.

May 2017 COPFS drops the cases against SG and CG. In correspondence between the convener of the ECCLRC and COPFS much of the thinking of the Crown Office was revealed.

May 2017 David Harvie, Crown Agent writes to the Justice committee “I was heartened to read that the Committee concluded that the public can have confidence in an effective, rigorous, fair and independent COPFS.” As you continue to read this, you will become aware that I am not of that opinion. At least he did not use the word consistent or any synonym.

Sept. 2017 General Licence restriction 02/2017 was likely issued TG for 3 years from 15 September 2017 which prohibits them from using General Licences during that period.

This event demonstrates clearly that possible offences by TG had been under consideration for more than 3 years during which time the estate was sold and any offence was likely time barred by then. The protocol for issuing of any restriction is that the police must approach SNH. If the police had informed SNH before that time, the public would have learned about it, and an area restriction would have been issued, not a personal restriction. This has only come to light by detective work by others, but there can be no other conclusion.

I will now look at some issues in the letter from COPFS to the ECCLRC convener, and demonstrate that these are at best half truths.

The letter states:

“Following a defence challenge to the admissibility of covert video evidence obtained by RSPB investigators in the case against Stanley Gordon, Crown Counsel carried out a review of the relevant material bearing on that case and the case against Craig Graham.”

This ignores the fact that there were possible charges against TG which had been held in abeyance for over 2 years at the time, and I believe that it is certain that the review included a consideration of that case, and most likely was a major reason for the review. It must certainly have been a reviewed internally prior to the challenge.

The letter also states:

“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.”

The camera in the case of CG was only placed after an illegal trap was discovered. It seems that this was still sufficient for the proceeding to be brought to an end. Really?

This sentence also suggests that the placing of the camera needed to be authorised. Why? Many cases come to court where camera evidence has not been authorised and it is specifically stated in the Covert Surveillance and Property Interference Code of Practice. 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.”

Further, 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.”

Why then does the letter state that “as that activity was not authorised, the subsequent video evidence was obtained irregularly.”

Strange, is it not? I suggest that authorisation was known not to be needed, as happens on many occasions.

The letter further states: “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.”

That completely ignores that absolute fact that as the maximum sentence faced by CG was only 6 months the police could not request authorisation. In neither of the cases could the police be authorised.

There is no conceivable reason for this sentence, whilst true, to be part of the submission by COPFS, as it does not apply in either case, and clearly this was well known to COPFS.

I’ll now look at how this was handled within the Scottish Crown Office.

The statements by COPFS personnel to the ECCLRC meeting make it quite clear that there was not unanimity within COPFS about the decision to bring the proceedings to an end.

I am of the opinion that it is likely that many, and possibly most of personnel in COPFS did not agree with the decision, and the weakness of the case presented in the letter was well known. It may even be that a request for clarification was not expected, and none of the thinking would need to have been made public.  I prefer to believe that the letter was the best case that could be sent to the convener of the ECCLRC, and may well not even have been the true opinion of the writer or the majority in COPFS. In the questioning of the COPFS personnel at the ECCLRC meeting of January 2018 it was stated that the final decision was made in the Crown Office.

So, will I include this in my submission to the Scottish Government committee? I would not if I thought that it might damage the two requests in my petition.  I would not if the personnel in the Crown Office and a lot of members of the Law society of Scotland heard of this post,but I fear that they will not.

I will take more time to consider, and perhaps think of a better way to raise the issue in a way which meets my requirement that COPFS and some MSPs at least are aware of my desire to raise the issue without affecting the petition, which has to come first.

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Update on 2nd November 2018




The minutes of the meeting and the official report have now been published. There is the most useful information in then official report, and I append below the extract about this petition, which is more detailed than I was able to follow from the broadcast. I am extremely encouraged by the content.

“Wildlife Crime (Penalties and Investigation) (PE1705)
The Convener (Johann Lamont):
I welcome everyone to the 15th meeting in 2018 of the Public Petitions Committee. The first item on our agenda is consideration of new petitions.

The first petition is PE1705, by Alex Milne. Members have a copy of the petition and the briefing prepared by the Scottish Parliament information centre and the clerks. The petition calls for a review of the penalties that are available for incidents of wildlife crime and the methods by which wildlife crime is investigated. The petitioner considers that by increasing the minimum punishment to three years in prison, a crime would be categorised as serious, which in turn would allow investigating authorities to use covert video surveillance. The issue of wildlife crime has previously been considered by the Environment, Climate Change and Land Reform Committee.

Do members have any comments or suggestions for action?

Angus MacDonald (Falkirk East) (SNP):
I am a member of the ECCLR Committee, which has followed the issue extremely closely over the past few years. I have a lot of sympathy for the petition.

Given that there does not seem to have been much movement on the Scottish Government’s side with regard to Professor Poustie’s recommendation to increase penalties, the petition is quite timely. We need to know where the Scottish Government is with regard to its proposed consultation and the introduction of primary legislation. If there is to be primary legislation, time is running out in this parliamentary session. It would therefore be good to have some clarity on that.

The Convener:
We agree to write to the Scottish Government to seek its views on the action called for in the petition and on Angus MacDonald’s point about timescales. A general nod in the direction of the issue would not be sufficient; we would want something more specific.

Angus MacDonald:
Indeed.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con):
Angus MacDonald mentioned the ECCLR Committee. Perhaps we should flag up the petition with that committee in advance of scrutiny of the 2017 annual report on wildlife crime in Scotland.

Angus MacDonald:
The committee is due to look at the wildlife crime report in January, so the sooner that it is made aware of this petition the better.

The Convener:
Are there any other suggestions?

Brian Whittle (South Scotland) (Con):
Can we seek the views of other stakeholders? I am not sure who would that be.

The Convener:
That is an important idea. We can ask the clerks to look at which might be the best groups. Obviously, people who are closely involved with this issue in the ECCLR Committee might have views and suggestions. We know from coverage yesterday on social media that there has been further commentary on cruelty to animals and protection of wildlife. The committee has dealt previously with this theme in relation to mountain hares and other creatures. It is something that there is a lot of interest in.

We agree to write to the Scottish Government, to take the views of other stakeholders and to flag the petition up to the ECCLR Committee. Is that agreed?

Members indicated agreement.

The Convener:
We thank the petitioner for their timely petition.”



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My future actions

This petition is well under way now and I have enough material here to make a submission to any committee which may handle it in future. The public petitions committee seemed keen for it to go to the EECLRC, which is fine and probably will get a better reception than I could expect at the justice committee, although I’ve no evidence for that. I have made remarks about how this situation arose, which may not be universally appreciated by lawyers in the Scottish Justice system.

I’m working on a website in support of the Peoples Manifesto for Wildlife, intended to be a resource for people who support the manifesto aims, whether they just wish to be advised of petitions which may have a real effect requiring governments to respond, to be a source of links for selected campaigns, or to be a resource for people to take effective actions as individuals which others may support. At present I only have sample data in the website, and am trying to get all the extensions and plugins working correctly. I’m not a professional website designer, and it is a task well beyond that which WordPress can handle, unfortunately. I have already deleted everything four times, but I expect that it will be able to go fully live this year, as a website perhaps not up to professional standards, but effective nonetheless.

I’d rather that I did not devise any more petitions at present until my present petition has run it’s course. The following matters do interest me though, and I may spend some time in research, even though they may not be manifesto aims.

Pine martens I believe are regularly trapped, despite the fact that they are protected. I’d like to propose that SNH require as a condition of the general licence that any pine martens caught be reported, with no penalty other than that for failing to report within say a month that a pine marten has been “inadvertently” caught. SNH would also  have a duty to maintain a register, to be made public annually and take action where there is a hot spot of Pine Marten deaths.

I’m interested in the case of the US hunter who shot feral goats. They have apparently only been here since the stone age, or so the story goes, and they are therefore not a native animal. That is clearly based on zero evidence, and I’d like to investigate further, and see if they can be them listed as a native animal. That would allow them to be hunted or culled (I expect) only on a special licence, and the conditions of the licence could be laid down. I expect it arrived this way because of the influence of large landowners, and I’d like “the people” to take greater charge of our wildlife. I’ve not studied this at all, but I’m intrigued.

 

 

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Update on 24th October 2018



The televised committee meeting tomorrow at 0915 will not take evidence from me, but the Agenda includes this about my petition. I won’t attend, but will watch. The Clerk note seems fair enough, and can be seen in full on the petitions committee website complete with the necessary links. My hope at present is that it will not fail at this stage and some of the actions listed by the Clerk will be adopted :

PE1705: Wildlife crime – penalties and investigation
Note by the Clerk
Petitioner Alex Milne
Petition
summary
Calling on the Scottish Parliament to urge the Scottish Government to review legislation relating to the investigation of and penalties applicable to wildlife crime in Scotland.
Webpage parliament.scot/GettingInvolved/Petitions/PE01705
Introduction
1. This is a new petition that collected 365 signatures and 104 comments in support.
Background
2. Wildlife crime is defined by the Partnership for Action against Wildlife Crime in Scotland (PAW Scotland) (PAW Scotland consists of a variety of organisations including the police, land managers, NGOs and the Scottish Government. Its aim is to address wildlife persecution and habitat destruction.) as “any unlawful act or omission, which affects any wild creature, plant or habitat, in Scotland”. This can range from targeted
persecution of rare species and habitats for financial gain to unnecessary cruelty against common species for sport. A list of offence categories considered to constitute wildlife crime can be found in the Appendix of the most recent Scottish Government Report on Wildlife Crime in Scotland.
3. In 2015-16, there were 261 recorded wildlife offences. This included (amongst
other categories) offences relating to badgers, birds, cruelty to wild animals and
fish poaching.
Current penalties for wildlife crimes
4. The maximum penalties for many of the principal offences, for example those
set out in the Wildlife and Countryside Act 1981, are a £5,000 fine and/or up to
six months imprisonment on summary conviction (i.e. by a sheriff sitting alone)
with no option of conviction on indictment (i.e. by a sheriff or judge sitting with a
jury) although there have been penalty increases for newer offences and for
offences involving certain species.
Investigation of wildlife crime
5. Each Police Scotland division has a Wildlife Crime Liaison Officer. Section 19(2)
of the Wildlife and Countryside Act 1982 gives a specific power to constables to
enter premises other than a dwelling if the constable has reasonable cause to
suspect that any person is committing or has committed an offence under Part I
of the Act.
6. The police have statutory powers under the Regulation of Investigatory Powers
(Scotland) Act 2000 and the Police Act 1997 under which they may, when
certain conditions are met, be authorised to undertake covert surveillance.
Scottish Ministers, or the senior authorising officer or designated deputy may
only authorise intrusive surveillance if they believe it meets certain conditions
including, for example, to prevent or detect serious crime. The tests for a
serious crime are set out in section 31(7) of the Regulation of Investigatory
Powers Act 2000 and section 93 of the Police Act 1997—
“(a) that the offence or one of the offences that is or would be constituted by
the conduct is an offence for which a person who has attained the age of
twenty-one and has no previous convictions could reasonably be expected to
be sentenced to imprisonment for a term of three years or more;
(b) that the conduct involves the use of violence, results in substantial
financial gain or is conduct by a large number of persons in pursuit of a
common purpose.”
7. The impact of these restrictions (in addition to those imposed by common law)
has been the subject of debate with relation to the admissibility of covert
camera evidence in wildlife crime cases, such as alleged persecution of birds of
prey, both in relation to the ability of the police to detect wildlife crime, and the
admissibility of camera evidence obtained by NGOs.
8. The petitioner in this case suggest that the Wildlife and Countryside Act 1981
should be amended to include a presumption that for any offence under Part 1
of the Act, photographic, audio recording or video evidence should be
admissible. The petition also calls for maximum penalties for wildlife crimes to
be increased to three years to enable them to be treated as ‘serious crimes’ for
the purposes of enabling the gathering and use of evidence.
Scottish Government Action
9. The Scottish Government established a Wildlife Crime Penalties Review Group
in 2013 (the Poustie Review) with a remit—
“To examine and report on how wildlife crime in Scotland is dealt with by the
criminal courts, with particular reference to the range of penalties available
and whether these are sufficient for the purposes of deterrence and whether
they are commensurate with the damage to ecosystems that may be caused
by wildlife crime.”
10. The Wildlife Crime Penalties Review Group Report was published in 2015. The
Group focused its work on the priority areas identified by the Government –
persecution, badger persecution, illegal trade in endangered species,
freshwater pearl mussels, poaching and raptor persecution.
11. The report includes ten recommendations including increasing maximum
penalties available on summary conviction, at least for the more serious
offences, to at least a £40,000 fine and up to 12 months imprisonment, and
making conviction on indictment more commonly available across the range of
wildlife offences with a maximum term of imprisonment of up to five years.
12. The Scottish Government responded to the report in a letter from the Minister
for Environment, Climate Change and Land Reform in February 2016, and in
relation to the recommendation on penalties stated—
“This issue is clearly at the heart of the issue of penalties for wildlife crime and
we agree with the conclusions in the Report. We will produce a list of the
offences to which we think the recommendation should apply and look to take
this forward in a suitable legislative vehicle in the next Parliament.”
13. The Scottish Government’s 2017-18 Programme for Government stated that
they will progress “Professor Poustie’s recommendations to increase penalties
for wildlife crime”.
Scottish Parliament action
14. PE1615: State regulated licensing system for gamebird hunting in Scotland
(lodged 22 August 2016) calls for the introduction of a licensing system for
gamebird hunting and for the recommendations of the Poustie Review to be
implemented.
15. The Committee took evidence from the petitioner at its meeting on 27 October
2016 and, after hearing further evidence from stakeholders at its meeting on 8
December 2016, agreed to refer the petition to the Environment, Climate
Change and Land Reform (ECCLR) Committee.
16. The ECCLR took written and oral evidence from the petitioner and stakeholders
in 2017 which focused on the call for a licensing system for gamebird shooting.
The Wildlife and Environmental Crime Unit of the Crown Office and Procurator
Fiscal Service wrote to the ECCLR Committee on 30 May 2017 about the
admissibility of evidence in respect of wildlife crime.
17. The Wildlife and Natural Environment (Scotland) Act 2011 requires the
Government to lay an annual report on wildlife crime before the Parliament. The
Wildlife Crime in Scotland (Annual Report 2016) was scrutinised by the ECCLR
Committee in January 2018. It is expected that the ECCLR Committee will
scrutinise the 2017 Annual Report in early 2019.
18. In response to a written Parliamentary Question, S5W-06079, in January 2017,
the Cabinet Secretary for Environment, Climate Change and Land Reform
stated that the Poustie recommendation to increase maximum penalties
requires consultation and primary legislation, and that the consultation will be
undertaken during this Parliamentary session.
Action
19. The Committee is invited to consider what action it wishes to take on the
petition. Options include—
• Writing to the Scottish Government to seek its views on the action called
for in the petition
• Seeking the views of other stakeholders on the action called for in the
petition.
• Flag the petition to the ECCLR Committee in advance of its scrutiny of
the Wildlife Crime in Scotland (Annual Report 2017)
• Any other action the Committee wishes to take.
SPICe/Clerk to the Committee

Update on 16th October 2018

I have now been advised that the petition is to be considered by the Public Petitions Committee on the 25th October 2018.



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Update on 28th September, 2018.



The petition is now described as lodged, and I await a date when it will go to the petitions committee. It may even be in the next 2 weeks, looking at the petition numbers at the last meeting. I am attempting to resolve some issues prior to that time. I am principally concerned that the wording I suggest for the Wildlife and Countryside Act may be totally ineffective in allowing prosecutions to reach court. Rather than say that I wish to change the wording, it may be prudent to suggest a set of alternative wordings to different sections, as that may be better received, leaving the original wording in place as an alternative. I don’t even have a wording I’m totally happy with. I don’t know if the wording may be able to be submitted to the meeting, or if I will be invited to attend. I don’t suppose that there are many people who are expert at this. I’m sure I do not wish to become expert.



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A conspiracy theory. A tale of two illegal spring traps.

This post has no bearing on my petition, which can stand on it’s own feet. The Guardian article about an illegal spring trap on the Tillypronie estate had not even been written when I submitted the petition. It helps me give a possible explanation, however, as to why the COPFS made a decision not to proceed with 2 cases before the courts. It is therefore relevant to the petition.

I have always had a difficulty understanding the reasoning in the letter to the EECLRC from COPFS. This theory suggests that the case against Stanley Gordon was not proceeded with was just lucky for him. The explanation given for his case had a little merit. This could not be said for the case against Craig Graham. Had it gone to trial it would almost certainly have succeeded. This theory gives a reason why this was not allowed to happen.

It suggests that it is possible that COPFS had decided to prevent the police charging a gamekeeper on the Tillypronie estate who was seen on a recording by the RSPB setting or attending to an illegal spring trap. Had Craig Graham been convicted it would have revealed that COPFS had little reason to prevent the police from charging the keeper on the Tillypronie estate. There are undoubted similarities in the cases, but I know nothing about the Tillypronie case except that revealed in the Guardian article. Even that may not be true, but I suspect that it is.

This tale shows how it may have transpired that the decision was taken not to charge a keeper on the Tillypronie estate, and how the decision not to proceed in the other two cases relates to that.

It all starts with Detective Inspector Nevin Hunter, the then head of the police National Wildlife Crime Unit (NWCU) (from Feb 2012 to July 2014), about whom the excellent blog RPUK revealed some interesting information. In a FOI he is revealed to have said in a memo dated 30/1/2013.

“The concerns I have about several recent and ongoing cases of raptor persecution go beyond issues of deliberate poisoning/pesticide abuse and into such areas as illegal shooting and trapping. My concerns and those of my team centre on the role that the RSPB Investigations Team has/is playing in all of these cases. I will not go into the specific issues of each case, but there is a pattern whereby neither the NWCU nor Natural England are being made aware by PWCO’s and other Police officers of developing cases until enforcement actions such as warrants have already been taken or are imminent.”

“Over the next few months I will be working on developing the SOP for the Police. I will involve you all directly in this to ensure the document reflects the need for a close working relationship between us. In developing the SOP I would expect that any case that comes to light would be reported to the NWCU and that we set up a formal meeting process with NE to consider actions. I would also consider a formal meeting structure would need to be set up with NE and hopefully CRD to consider and review ongoing/possible cases (I think we suggested this at our meeting).”

The same FOI revels this correspondence from Elaine Kendall of DEFRA on the same day

“Sadly when the conduct of an NGO begins to prejudice the integrity of investigations action needs to be taken. I think what disappoints me most is that there are people within the RSPB investigations team who I understand are ex-police which makes the way they have secured their involvement with  investigations particularly inexcusable. They know full well the impact they are having. In the Marsh Harrier case is a prime example of holding back important info for what appears to be no other reason than to get a media
splash. It’s very calculated.
And who loses out? Everytime it’s the birds.”

Due to an article on Dr Mark Avery’s blog I became aware of this SOP. It is the Memorandum of understanding: enforcing wildlife crime (MOU). The MOU is dated September 2015. This states: “Police forces will identify wildlife crimes when they are submitted to the CPS for decision and that all cases within the National Wildlife Crime Priorities (save for poaching which will be dealt with by local arrangement) should be referred to the CPS for a charging decision. This will ensure that the CPS regional Wildlife Coordinator will be aware of ongoing  investigations and cases. ”  It will do that, but it may not be as innocent as it appears. It allows the CPS to prevent police forces who believe that they have sufficient evidence to charge a suspect from doing so even in and especially in cases of established police crime priority. It may even be that the feelings of DI Nevin Hunter may have been shared by others, lessening the chances of a police force being allowed to make charges where they believed they had excellent reasons for charging a suspect.  The FOI also reveals that it is very likely that the MOU had input from Detective Inspector Nevin Hunter.

The MOU is a document intended for England and Wales. The Scottish COPFS may however have used the same protocol (I can’t find one directly applicable) or other powers to make a decision not to allow the charging of a keeper on the Tillypronie estate by the police, who may have believed that they had sufficient evidence to charge a suspect.

The offence was stated in the Guardian article to be in March 2014. In the meantime another illegal spring trap was discovered and the police in Scotland charged Craig Graham who was accused of setting and re-setting a pole trap on the Brewlands Estate in July 2015.  The case had been scheduled for a trial on 15 May 2017. This conspiracy theory suggests that why a case so strong was abandoned was not due to it being certain that it would not succeed but a concern that it might well succeed. It may well have revealed that the actions of the COPFS in whatever action they took in the Tillypronie estate case, (and it does not really matter whether my suggestion that they prevented someone from being charged is correct or not) might then be seen to be a gross error, due to the obvious similarity between the cases.

Conspiracy theory revealed. Instruction to self. Please all levels of sarcasm, scepticism etc. to normal levels, if you possibly can.

I need to look to the future. I now need to concentrate on the petition, which has the potential to overrule any such bias, and hopefully ensure that wildlife crimes of this nature reach court where it may be properly and correctly dealt with according only to the law.

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A review of blogs posted on the Aberdeen University website about video evidence in wildlife crime cases

I am going to cover some of the areas in several blogs posted on the Law section of the university website. I am not going to cover all of the content of the blogs, just a selection with which I have issues. Quotes from the blogs will be in italics to help differentiate from my comments.  My discussion of these issues is not a personal attack on the persons involved, but I do hope to provide a different view, using only my understanding of the law, on the statements in the blogs. I believe the persons will likely not object, and I shall try to inform them of this post. They are qualified in law, and as such I assume are bound to support the decision not to proceed in the cases involved. I assume that this may prevent them in some cases from supporting my view, but they can certainly rubbish them, and I welcome anyone pointing out any errors in my reasoning of the issues in law. Further I am only going to cover the case against Craig Graham, which concerned the discovery of an illegal trap. The cases need to be considered on their own merits and I freely admit it appears to be to be the easier case to defend.

The first blog is The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions by  Professor Peter Duff.

“In the cases in question, we have the RSPB installing video cameras on private estates, apparently without the permission of the landowner, which is a breach of the privacy of the landowner and his or her employees who work on the estate. It seems that the RSPB claim that these cameras are placed solely for research purposes with no thought of detecting crime. It is not surprising that COPFS seems to find this explanation unconvincing because while one purpose may well be to gather research evidence – for example, as to the causes of the high attrition rate among birds of prey – it seems unlikely that the RSPB has not considered the possibility of gathering evidence of estates and their employees engaging in ‘wildlife crime’. “

In the case in question the camera was not placed for research purposes. It was placed only after an illegal trap had been discovered. The applicable legislation is the Spring Traps Approval (Scotland) Order 2011  and the type of trap commonly in use has the statement “The trap must be set in a natural or artificial tunnel which is suitable for minimising the chances of capturing, killing, or injuring non-target species whilst not compromising the killing or taking of target species.” If a trap of this sort is seen on the open with no cover it can be easily seen that it is not legal and offences under the Wildlife and Countryside Act 1981 would be considered. Thus in this case an offence was known to have been committed before the camera was placed, although it was not known who was responsible. Was there a “breach of the privacy of the landowner and his or her employees who work on the estate”? This is determined by the European convention on human rights(ECHR) Article 8 which covers the right to privacy. In Scotland I believe this needs to be considered alongside both the  OSC’s 2016 Procedures & Guidance document Section 279  and The Covert Surveillance and Property Interference Code of Practice in Section 1.14, which can reduce the need for authorisation where potential loss of information is a consideration and “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 person who placed the trap comes under this description, and due to the vicarious liability legislation, it may be that the landowner is covered as well. I have covered this more fully in other posts, also showing that the location was a public place in law under The Criminal Justice Act 1972 Part III section 33. I therefore believe that in this instance the ECHR was not breached, and there was no irregularity. The use of video evidence in Scotland is often used in court, both from police cameras and those of the public, where there has been no previous authorisation, and I assume the code and the guidance are things which on occasion provide for this to be allowable.

The later statements “As I observed above, the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees” and “A court would have to determine that the public interest in preventing wildlife crime of the type in question is sufficient to outweigh the unauthorised and deliberate invasion of privacy by the RSPB before it would admit the recorded evidence. In the judgement of COPFS, the criminal courts would not do this and it seems to me that this is a perfectly reasonable view to take.” are I believe incorrect, all being based upon ECHR Article 8, and my earlier consideration applies and their action cannot be said to be an “invasion of privacy”.

The next statement “On a more technical note, such video evidence might well also be rendered inadmissible under the Data Protection Act 1998 and the Regulation of Investigatory Powers (Scotland) Act 2000.)”  I am having difficulty seeing how someone who was not subject to RIP(S)A and indeed informed the police at the earliest opportunity, handing over responsibility to the police for the investigation could be said to be doing anything which would render the evidence inadmissible due to data protection, the video evidence not being available at the time, and only their statements being required. It was the police who took charge of the video evidence (data), not the person who set the camera. I will cover any inadmissibility on the part of the police more fully in considering the next blog.

The second blog is Raptor Persecutions and Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making  by Doctor Phil Glover, also of Aberdeen University.

I confess that my understanding of this blog is only partial.  However, I will attempt to make some statements I believe to be relevant and correct.

“The older, clearer, obviously applicable regime is that within the DPA. My PhD thesis concluded, inter alia, that virtually all forms of covert surveillance as commonly understood can be deconstructed to be reconceptualised as covert investigative data acquisition. Data acquisition and subsequent processing includes video recording of camera images and their subsequent use-  (Peck v United Kingdom, (2003) 36 EHRR 41 at [59] ) An excellent synopsis of the applicability of the DPA 1998 as regards the acquisition and processing of video recorded personal data in Scots law can be found in the recent case of Anthony & Deborah Woolley v Nahid Akbar or Akram [2017] SC Edin 7 (at paragraphs 72-74). For present purposes however, evidence suggests the RSPB are self-declared registered data controllers and data processors within the meaning of section 1 of the DPA insofar as they manage members’ personal data (defined in Section 1 of the DPA as … data which relate to a living individual who can be identified—(a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller. Their role as controllers mandates them (DPA, s4(4)) to comply with all the data protection principles (DPA, Schedules 1-4 according to context).” 

I believe it is the police who had the primary responsibility here as it is clear that they were responsible for recovering the video evidence and handled the video evidence (data). Although it was acquired on an RSPB camera they did not acquire the data themselves, which was effectively acquired, albeit unknowingly, by the persons who did not know the camera was there when they visited the trap. After setting the camera the RSPB relinquished their primary role and did not handle the data for the purposes of the prosecution. The subsequent discussion of the RSPB role as a data controller are therefore not applicable.

“My view however, is that a second, more modern legal regime applies, namely that within the RIP(S)A. (HOLD THAT ‘PUBLIC AUTHORITY’ ARGUMENT, I WILL DEAL WITH IT!) The RSPB’s conduct directly equates to ‘directed surveillance’ as defined in RIP(S)A 2000, s1(2), namely covert,non-intrusive surveillance undertaken for the purposes of a specific operation or a specific investigation in such a manner as is likely to result in the obtaining of private information about a person. The same section (at s1(8)(a)) additionally provides that ‘surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place’. Meanwhile, ‘Private information in relation to a person, includes any information relating to the person’s private or family life’ (s1(9).

The term ‘equates to’ is not chosen lightly. This is because the RIP(S)A further provides that conduct amounting to directed surveillance shall be ‘lawful for all purposes if authorised’ (s5(1))and that such an authorisation can only be issued by a ‘designated person’ (s6) within a ‘relevant public authority’ (s8). Inspection of s8 reveals that ‘relevant public authority’ does not include the RSPB. The RIP(S)A definitions for conduct amounting to covert directed (and intrusive) surveillance clearly state that such definitions apply only for the purposes of that Act (s1). Covert investigative conduct outside the RIP(S)A is not ‘surveillance’ within the meaning of the Act.”

In my discussion on the previous blog I covered the issue of whether directed surveillance in this case could be excused, and decided it did not need to be excused. I shall not repeat the argument, but explain again the the RSPB are not covered by RIP(S)A, with the police who are covered by RIP(S)A taking control of the prosecution and evidence once the potential offences were reported to them.

“Strict adherence to this view creates the anomaly, indeed absurdity, that if it were Police Scotland covertly placing the video data-capturing equipment in identical circumstances to the RSPB for the same purpose (prevention of crime), an authorisation under s6 of the RIP(S)A, issuable only after strict considerations of the investigation or operation’s necessity and proportionality would be required, with the very real risk that if not issued, the evidence would be rendered unlawfullyobtained and therefore inadmissible. Police Scotland have not been immune to severe censure for failure to adhere to RIP(S)A’s authorisation matrix (David Moran & Others v Police Scotland, IPT/15/602/CH, IPT/15/603 CH, IPT/15/613/CH, IPT/16/263/CH, IPT/16/264/CH, IPT/16/387/CH) It seems unthinkable therefore, that even before reading the Human Rights Act 1998 alongside the RIP(S)A, evidence obtained via covert investigative activity outside the RIP(S)A mechanism and safeguards would be considered lawfully acquired. If it were, Police Scotland would simply be able to ‘contract out’ of their ECHR-compliance obligations regarding covert surveillance by allowing non-State actors such as the RSPB to undertake it for them when it suited.”

I would refer here to my previous comments on the acquisition of video evidence by the police and the public which is regularly used in court when no authorisation has been previously acquired. This relies on both the  OSC’s 2016 Procedures & Guidance document Section 279  and The Covert Surveillance and Property Interference code of Practice in Section 1.14, I will now look at whether a police constable could set a covert camera without authorisation in this specific case. I am not saying that they would, because a constable is unlikely to have a suitable camera to hand but only that it would be allowed in law, removing the perceived anomaly or absurdity above. Section 19 of the WCA says

“A constable who enters any land in the exercise of a power conferred by this section—
(a)may—
(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.”

I believe that this would allow a constable to place a covert camera (machinery) on seeing a reported illegal trap, if the perpetrator was not on the scene, only recording the facts before leaving, but believing that the investigation might be assisted if video evidence could be obtained and might otherwise not be available if the illegal trap were merely removed. This action would not require authorisation for the reasons listed above.

I will not comment on the RSPB being “a ‘public authority’ for RIP(S)A purposes.” or the use of evidence in previous cases. I will say that I do believe that to continue with the case I discuss here would under in my opinion have been the correct decision, even bearing in mind under “ECHR Article 6 that proceedings be fair mandates that evidence acquisition must be lawful, on a legal basis, necessary and proportionate.”  This is not due solely to the matters here which only cover a part of the content of the blogs and not the full correspondence, which is considered elsewhere.

The third blog is The Admissibility of Covert Video Data Evidence in Wildlife Crime Proceedings: A “Public Authority” Issue.

This blog refers to an article published in the Juridical Review: The Law Journal of the Scottish Universities.

I will only comment on the statement “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.”  I do not blame Dr Glover in making the assumption that authorisation in either cases considered in the correspondence could have been obtained. The option of “asking Police Scotland to obtain the relevant authorisation required” was not available. Here is the quote from the correspondence from COPFS:  “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.” Well they do have such powers, without doubt, but it should have been made clear that in neither of the two cases under consideration could the police be authorised to undertake covert surveillance. This is because the charges which were investigated were not for a serious crime, defined as that which has a maximum sentence of 3 years or more. I have searched for a reason why the sentence was written, but can not find any reason for it to have been included in the letter, and am reasonably confident that in neither case could authorisation be obtained. The sentence is not only superfluous, in these cases it is close to being mendacious. For the reasons stated above, however, and as is fairly normal in Scotland where video evidence is used in court, it is not uncommon for there to be no prior authorisation.

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The information I need from COPFS

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—
(a)may—
(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.

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Choice of wording to allow video evidence in court

The present wording is:

The Wildlife and Countryside Act 1981 be amended by adding in a Section 19B entitled “Admissibility of evidence in Scotland”:

“In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.”

Clearly even the givernment or an MSP takes the petition forward it may well be radically changed to avoid unintended consequences etc. However it is important to ensure that the suggested wording tackles the correct issue.

The present wording seeks to allow video evidence by actually mentioning video evidence.

Several commentators with experience in law have written on the correspondence. They have discussed the application of the European Convention on Human Rights (ECHR) Article 8 to decide that the decision not to proceed was taken. I believe that this is likely not the case. The application of EHCR article 8 already allows for a reduction in the rights of someone committing a criminal act in a public place and the need for authorisation.

Ludicrous though it may seem, the Craig Graham case suggests that a member of the public, who up to the point of discovering an illegal act (the setting of a pole trap) was not known to have breached any of the provisions of the Land Reform (Scotland) Act, then breached the guidance given in the Scottish Outdoor Access Code by placing a camera at the site of the illegal act, in order to provide the police with corroborating evidence of the illegality, albeit in a way which was not illegal. This breach may well have been all that was needed.

If this is the case, then the wording I have used, particularly in mentioning of video evidence is not necessary. In addition, it may be that although video evidence may be permitted in court, the same determination as was made in these cases might still be made in the future.

I could instead have said something along the lines of the Land Reform (Scotland) Act 2003 be amended by adding a subsection (4) to Section 3 “Reciprocal obligations of owners” as follows: “(4) An unlawful act by the owner or someone under his control may not, dependent on the circumstances, rely on the provisions of this Act to avoid prosecution.” This is probably not satisfactory.

A less prescriptive wording could be “(4) Whilst the provision of the Act limit the actions of individuals in exercising their rights under the Act it shall not remove the obligations of the owner and others on the land to act in a lawful manner. The provisions of the Act, depending on the circumstances, shall not be deemed to permit further unlawful acts if an unlawful act has already taken place.” This would cover the type of case where an illegal act is uncovered followed by the placing of a covert camera to discover later illegal acts, providing corroboration of the first act and any subsequent acts, but would not allow persons prospecting for illegal acts to claim that they are acting in accordance with the Act, rendering the video evidence likely inadmissible in court. It is less that I might hope for but makes more sense than leaving the present situation as it is.

I would then need to rely upon the way that the EHCR Article 8 is applied to allow video evidence. I am fairly sure that it would not prevent the video evidence from reaching court, regardless of the views expressed by others.

Addition in Octber 2018. That being the case, an alternative form of wording could seeks to prevent an unlawful act by the owner or others he permits to use the land to have no more protection in a public place than that afforded by EHCR Article 8 could be developed. This could be in the section covering responsible use by the owner  : “(2(c)) The provisions of the Act shall not be presumed to permit an illegal act by the owner or others he allows to be on the land where the illegal act is committed in a public place.” This would still allow a defence of protection of privacy, but that is limited in a public place. It does not mention video evidence or the EHCR but that is not necessary. It would still require persons exercising access rights to do so in accordance with the Act, but limit the protection the correspondence appears to afford the owner and other users of the land to commit unlawful acts.

Roseanna Cunningham, MSP, the Cabinet Secretary for Environment, Climate Change and Land Reform,wrote to my MSP stating: “If Mr. Milne would like further information on these decisions, he may wish to contact COPFS directly.” I have done this, but so far have not been permitted to communicate in any meaningful way, in order that I may help establish more fully the reasoning of the decisions. Although I could not expect COPFS to comment on my proposed wording, as that is a function of the Scottish government and parliament, I do need a greater understanding of the decisions to decide upon the form of wording I propose in the petition.

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My beliefs and aims

There are many people opposed to law breaking. I’m interested only in wildlife crime, although I should expand that by saying I’m also opposed to those who support organised crime. My position is quite similar to that of the RSPB, but I believe they have bent too far backwards in some cases, and forgotten how and why they were formed. As lead should already be removed as a component of ammunition in legislation, I oppose the use of lead ammunition.

People who oppose wildlife crime may also oppose some or all shooting or trapping of animals. I’m not opposed to any legal activities, although I would not take part in the likes of shooting for fun, or even for the pot. I still maintain mink rafts, and have caught several mink. For the life of me, I cannot understand why there are any mink in the u.k. I have not detected a mink for years, although I would likely be amongst the first to know if one migrated into my area or river catchment. I’m sure that there are enough volunteers willing to put time and energy into the eradication of mink that it could be accomplished in a very few years. I developed a simple system using a small mobile phone to send a photograph 3 times a day by email where there was reception to avoid going every day, with the battery lasting 3 weeks.

I have also previously joined with the trapping of grey squirrels in Scotland, and still report any greys I see. There are undoubtedly many people who like and feed their local grey squirrels, making eradication, even in Scotland, more of a hot potato, and politicians might not be too keen to accept the removal grey squirrels from the parks in, say, Dunfermline, which has a large population. It is difficult for people to understand and accept that we can only have red squirrels in our towns and cities if we first eradicate the grey squirrels, and if we carried on as we did 30 years ago, we would have few reds in Scotland. I don’t have the answer to that. I even have reservations about the increasing number of geese which nest here rather than head north on a migration. I’m sure that these are good eating, and would not oppose a huge reduction in the number staying all year by lethal control before eggs hatch and before migrating birds return.

I’m not even opposed to driven grouse shooting, if it is done legally. There is a perception, both in those for and against, that driven grouse shooting can not be maintained if illegal measures are not taken. I’m not convinced of the scientific basis for this, and the first Langholm results may have been due to factors other than the rise of the hen harrier population and their taking of grouse. Perhaps foolishly, I once wrote to a local MSP who clearly was in favour of driven grouse shooting, asking that he advise estates that he visited of my suggestions for legal measures to achieve a greater financial return for driven grouse moors who should advertise that they welcomed hen harriers, only employed legal methods of “vermin control” and meant what they said, clearly differentiating their actions from the other driven grouse moors, who almost universally act illegally on a regular basis.

Although there is a larger voice opposing driven grouse moors, they are not the only people acting illegally. The only person to go to prison for acting against raptors that I am aware of was “protecting” pheasants from raptors, I understand. SNH have published measures which can legally be taken against predation. It is clear, however, that SNH are not really interested in the scientific basis of their trials, and are not doing their job correctly. They are still a better organisation than Natural England, who have given up even a pretence to be complying with their mandate. Luckily I live in Scotland.

Here, we are also lucky enough to have some Pine Martens. I have little doubt that they are regularly trapped and killed. My solution to that, and this should be an aim of SNH, is to reduce and measure the number killed. The law as well as the general licence makes clear that Pine martens are protected but takes no effective measures to measure the number “accidentally” killed, or to reduce that number. If the general licence required that any bycatch of Pine Marten were reported within one month to SNH, with no penalty except for non reporting, not only would there be some data provided, but SNH could possibly take action to try to reduce the numbers killed if hot spots were found. This would be vastly aided by a requirement to affix a tag to all traps, exactly as is required for snares but I do not here attempt to define all the requirements etc. Any proposal to try to measure or reduce the killing of Pine Marten should have a full proposal of all the regulation and/or legalisation changes in mind, before any real effort is put into getting it enacted, and I don’t have time, as I’ve only been retired over 13 years, and have plenty to occupy my time already.

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A case study. Special constables in the Cairngorms – could they set cameras?

To determine if the Special constables in the Cairngorms National Park could set covert cameras on illegal traps.

Summary. I have examined the law in Scotland on this matter. The police could not apply for authorisation to set a covert camera. If however they, or indeed any member of the public, discover an illegal trap, they could set a covert camera on the site of the trap, before reporting the matter to the police. The police could then complete the investigation after removing the camera and examining the evidence, exactly as they do if they or a member of the public provides video evidence elsewhere if a crime has likely been committed. I will therefore offer to provide a free suitable camera to all of the Special constables.

The law in relation to the use of video evidence from covert cameras.

If the police suspect that a someone may be about to commit a crime, and they wish to set a covert camera (directed surveillance) they need to obtain authorisation before they proceed. This is due to the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A. However, due to the provisions of the Police Act 1997, Part III Section 93, only if a the crime being detected were to have a maximum sentence or more than 3 years, could a covert camera be set on the scene of a potential crime. As the sentences for committing a wildlife crime are no more than 6 months, then such authorisation is not possible, and need not concern us here.

We need to examine the case where an illegal act has likely already taken place, and useful evidence may be lost if a camera is not set, and may be obtained if a covert camera is placed at the scene by means of directed surveillance. The difficulty, as explained by Professor Peter Duff in a blog item on the University of Aberdeen website that it is “a breach of the privacy of the landowner and his or her employees who work on the estate.”

Now it may be that the landowner or employees may not have set the trap. The privacy of a person not employed by the estate would not concern the landowner presumably, and the privacy of the person committing the crime need not concern us because under 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”. However, is the middle if a moor a private place? Fortunately the Criminal Justice Act 1972 Part III section 33 defines it : ““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 ”. Thus in Scotland most of the land mass is a public place under the Scottish Outdoor Access Code.

We now need to consider if an employee of a landowner needs to have his privacy protected in this way. Well not if he or she is engaged in crime they are not. What about the landowner and his or her privacy? In Scotland, there is a crime of vicarious liability, such that if an employee commits a crime, the landowner must show that he has taken sufficient measures to ensure that employees do not commit crimes. It would seem reasonable to infer then if an employee is the person who tends an illegal trap, the employer may well be committing a crime as well. Thus neither person needs to have their privacy protected, although future investigation may well show that neither had committed a crime, even though there is evidence to suggest that they may have done so.

Could there be another reason for authorisation to be required? 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 occurs and an authorisation under RIP(S)A is therefore not appropriate.” It seems to me that this confirms that authorisation is not required.

Well I think that has covered everything. I will draft a letter to the Cairngorms National Park Authority offering to provide every Special Constable with a suitable camera to place with a view of any illegal trap they discover. I’m sure they will be delighted with the offer of free suitable equipment, and I look forward to having the offer accepted.

Update 22 Aug. 2018

I would confirm that an offer has been made to CNPA which has been acknowledged. Although one should never say never, I believe that no matter the outcome, there would be no benefit to my aims if I gave any further information. I shall not update or discuss this matter further,other than what I have already stated here.

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Update on 16th August 2018



The petition is now classed as open on the government website at   Petition PE01705

I now need to collect signatures which I had hoped to avoid so please go to the website and sign the petition if you agree with the aims, and/or make comments there. I have used my almost dormant twitter account to help publicise the petition. My handle  is @amilne1945



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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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Post 1. The letter from COPFS to the EECLRC convener. (mild)

This is one of a series of posts about specific parts of the areas which will be covered in the submission to the committee(s) if my petition reaches that stage. It is not intended even to be a draft section, but just my various thoughts, hopefully expressed using valid legal references and admitting that which I do not fully understand. If I have made a mistake in my understanding of the Law, please point it out to me by means of a comment and I will correct it. You may ask that the comment does not appear on the blog and am happy to make sure that it does not appear, but if I understand and agree I will still make the appropriate change. I also undertake to place suitable opposing views directly in the post if I find I can’t agree but admit that it has merit.  I would state that much of what I have written here will not appear in the final submission, particularly as much of this post and others can not be part of the petition. I have not considered relevant case law unless it is mentioned in the letter, but I will cover that in other posts. I would confirm that I have had no qualified  legal assistance in the production of any of the matters I have put in print or in digital media so far. Please understand that I am not seeking to undermine the independence of the Scottish Justice system, and will take no action which leads to that. The petition does not have this aim either, and will not mention much of the contents of these posts. It is still essential that I fully understand the reasoning of the Crown Office if my petition is to result in more successful prosecutions using video evidence as suggested in July 2013 by the then Environment Minister Paul Wheelhouse.

letter was written by the convener of the ECCLRC to COPFS, seeking  clarity around the gathering and admissibility of evidence of potential wildlife crime. The COPFS replied with a letter on 30th May which is shown in italics below. My comments are in normal text, after the part on which I am making a comment. Only the appearance of the original is changed to allow this to happen.

Thank you for your letter of 21 May 2017, addressed to my colleague Gary Aitken,
enquiring about the admissibility of evidence in respect of wildlife crime.
I have been asked to reply in my role as the Head of the Wildlife and Environmental Crime Unit (WECU) in COPFS.
The Law on Admissibility of Evidence
The admissibility of evidence in criminal proceedings in Scotland is largely governed by the common law, although there are also statutory provisions which bear on the admissibility of certain categories of evidence. There is a substantial body of case law, developed over many years, which sets out the principles and considerations which fall to be applied.
The key common law authority, for present purposes, is Lawrie v Muir 1950 JC 19. In that case, critical evidence had been obtained by officials who, though acting in good faith, had illegally obtained entry to the premises in question. A Full Bench of the High Court reviewed previous authority, and concluded that an irregularity in the obtaining of evidence does not necessarily make that evidence inadmissible. The Lord Justice-General, Lord Cooper, observed: “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 the particular circumstances, the evidence was held to be inadmissible. Quite apart from the common law rules, an accused person might object to the admissibility of particular evidence, on the basis that it would breach an accused’s right to a fair trial under Article 6 of the ECHR (European Convention on Human Rights and Fundamental Freedoms 1950) . There is case law determining that certain types of evidence are incompatible with an accused’s Article 6 right, rendering that type of evidence inadmissible in a criminal trial in Scotland. However, even if the admission of evidence would not be incompatible with the accused’s Convention rights, the common law rules of admissibility must also be satisfied.

My petition cannot question the decision, but I am writing this blog in support of a relevant Petition. It gives me an opportunity as a private citizen, who admits to having no prior knowledge of the Law, to examine this particular decision in some detail, and I am doing so. This should not be contentious.

The principles governing the admissibility of evidence are not specific to video evidence or CCTV evidence. Video and CCTV evidence is often used in criminal trials in Scotland. Any question about the admissibility of such evidence in any particular case will depend on the particular facts and circumstances of that case. Questions about the admissibility of evidence often relate, although not exclusively, to the manner, or the circumstances, in
which the evidence was obtained.
The Role of Prosecutors
In making decisions in individual cases, prosecutors must apply the law (including the law on the admissibility of evidence) to the particular circumstances of the case. There is no particular policy or guidance to be applied in assessing questions of admissibility of
evidence: it is a matter of law, not policy, and a matter to be resolved by applying the law to the particular factual circumstances of individual cases. Again, this is not specific to video evidence or CCTV evidence. Prosecutors are, moreover, under a duty to keep cases under review.
In a recent case, the Lord Justice-Clerk, Lady Dorrian, giving the Opinion of the Criminal
Appeal Court approved the Lord Advocate’s submission that: “it is important in the public interest that prosecutors exercise their judgment independently, robustly, forensically and objectively on the whole evidence available”: Stewart v. Payne 2017 SLT 159, para. 97.
From time to time, that may mean that prosecutors make decisions which are controversial – but it is important, in the public interest, that prosecutors exercise their independent judgment without regard to any potential controversy and that the independence of prosecutors to apply the law to the facts of particular cases is respected.

Clearly I had found this judgement to be controversial even before the publication of the letter which explained the decision and I fully respect the independence of prosecutors to apply the law to the facts of the case. The fact that this letter has been published gives some insight into the decision taken, and gives the reasoning behind this. However, It is not unreasonable for someone such as myself, a normal member of the public,  to consider these issues independently of the prosecutors, I have done it previously, and I am doing so here. This blog is intended mainly to be in support of a petition submitted to the Scottish Parliament, but the decision taken is very relevant to my petition. I understand that this may well be considered as controversial as the decision taken, but I am writing this  in the full knowledge of that. Please let me be clear. Although I will criticise some parts of the letter the Scottish Parliament cannot ask the Crown Office to reconsider the letter, . That would be an interference in their right to exercise their judgement independently. I was given the opportunity by the relevant Cabinet Secretary to  approach the COPFS in the hope of pointing out the error of their ways, including many of the areas I cover here but that was rejected. My feeling is still the same as it was when the decision was taken in May 2017. The letter did not change my opinion after the announcement that the cases were to be discontinued. It reinforced it.  I hope to demonstrate in this post that there are basic errors in Law and in the description of the manner of handling of the cases in the content of the letter. I would like the Crown Office, as is it’s right and indeed duty, to reexamine their interpretation of the Law, should other cases come to light. I would like them to withdraw the letter completely, should the petition elements succeed. That is perhaps a vain hope. However, even as a private citizen, I would not wish to interfere in their right to act independently, although I would be delighted if my blog articles stimulate that. Please follow my arguments posted here, as I have not yet explained in any way those deliberations.

Recent Cases Involving Video Evidence
Following a defence challenge to the admissibility of covert video evidence obtained by
RSPB investigators in the case against Stanley Gordon, Crown Counsel carried out a
review of the relevant material bearing on that case and the case against Craig Graham.
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. 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. In light of that conclusion it was appropriate that the proceedings were brought to an end.

We now come to the main issues. I shall deal with each of the references below and then may return to provide my own references at the end, or give them is separate posts.

The letter says: “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 letter this makes clear that it is the common law principles that have been used to determine inadmissibility, although it may also be that Article 8 of the European Convention on Human Rights (EHCR)  which provides a right to respect for one’s “private and family life, his home and his correspondence” has been considered, although not mentioned. Other commentators on the letter, with some legal standing unlike myself, have discussed Article 8 in relation to the proceedings which were brought to an end. I will examine Article 8 of ECHR in relation the common law of admissibility as mentioned  in the letter later.

By way of context, it may be useful to mention the following:
(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act
2003 are granted for specific purposes. 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.

I reject this statement outright, for the following reason:

Section 9 of the Act lists Conduct excluded from access rights. The Act thus already provides for exclusion of rights and lists them. The purpose of investigating and detecting crime is not one of those listed in Section 9. I therefore believe that a prosecutor should review any specific conduct to see whether it falls more within Section 1 or Section 9. It is not possible to say, as has been said, and also be correct according the the present Act: “section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. 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.” Because there are the two sections, 1 and 9, it is appropriate to say that the act is silent on any activity which does not fall within sections 1 and 9. It is therefore to be expected that any activity could and should be examined to see if it is an allowable activity.

I will give examples here:

The Crown Office could have said

  1. “The purpose of detecting crime is not included in Section 9 which lists conduct excluded from access rights. This is therefore no grounds for discontinuing the court case.” In that case we would have heard no more and the cases would have proceeded to trial. I would be no more happy that this statement is correct than I am with the statement that has been made, and they both have the same questionable validity.
  2. The Crown Office could have said “We have considered the actions of those who set the concealed cameras. It is important that we consider whether those actions to see if they fall more within the provisions of Section 1 which allows the right of access or more to Section 9  which refuses right of access. We have considered each of the cases in detail and decided that…..”. This would have been in full accordance with the Law.

I am not saying definitively that investigating and detecting crime should be allowed without consideration. I am saying something different however. The consideration given in the letter is about “investigating and detecting crime”. If you read the item 2 of what I wrote about what the Crown Office could have said in accordance with the Law you will see that I said “the actions of those who set the concealed cameras”. I will show in another post when I consider the cases in detail that there is a world of difference between simply  “investigating and detecting crime” and the actions of the persons setting the cameras.  I will not precipitate my full consideration of the individual cases.

Excerpts from Land Reform (Scotland) Act 2003 are given below of sections 1 and 9. The full text is in the link. If you are not familiar with these, please take the time to consider whether you agree with my argument.  I will examine two of the cases in detail in another post and give my honest opinion of whether the decision was correct in Law, disregarding the actual decision taken.

Section 1  Access rights

(1) Everyone has the statutory rights established by this Part of this Act.
(2) Those rights (in this Part of this Act called “access rights”) are—
(a) the right to be, for any of the purposes set out in subsection (3) below, on land; and
(b) the right to cross land.
(3) The right set out in subsection (2)(a) above may be exercised only—
(a) for recreational purposes;
(b) for the purposes of carrying on a relevant educational activity; or
(c) for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.
(4) The reference—
(a) in subsection (2)(a) above to being on land for any of the purposes set out in subsection (3) above is a reference to—
(i) going into, passing over and remaining on it for any of those purposes and then leaving it; or
(ii )any combination of those;
(b )in subsection (2)(b) above to crossing land is a reference to going into it, passing over it and leaving it all for the purpose of getting from one place outside the land to another such place.
(5) A “relevant educational activity” is, for the purposes of subsection (3) above, an activity which is carried on by a person for the purposes of—
(a) furthering the person’s understanding of natural or cultural heritage; or
(b) enabling or assisting other persons to further their understanding of natural or cultural heritage.
(6) Access rights are exercisable above and below (as well as on) the surface of the land.
(7) The land in respect of which access rights are exercisable is all land except that specified in or under section 6 below.

9 Conduct excluded from access rights
The conduct which is within this section is—
(a)being on or crossing land in breach of an interdict or other order of a court;
(b)being on or crossing land for the purpose of doing anything which is an offence or a breach of an interdict or other order of a court;
(c)hunting, shooting or fishing;
(d)being on or crossing land while responsible for a dog or other animal which is not under proper control;
(e)being on or crossing land for the purpose of taking away, for commercial purposes or for profit, anything in or on the land;
(f)being on or crossing land in or with a motorised vehicle or vessel (other than a vehicle or vessel which has been constructed or adapted for use by a person who has a disability and which is being used by such a person);
(g)being, for any of the purposes set out in section 1(3) above, on land which is a golf course.

(ii) In any event, the Scottish Outdoor Access Code states that where people exercising
access rights wish to undertake surveys of natural or cultural heritage which require
the installation of any equipment or instruments they should “seek the permission of
the relevant land managers”: para. 3.64.

The statement is correct. The difficulty is that the Crown Office was fully aware of the reasoning of the persons who set the cameras. I have found it difficult to put simply but I will try.  In both cases the persons setting the cameras would have been reasonably  certain that any request would be refused. The reasoning is however different in each case so it will be more fully considered in the post dealing with each case. The police, the Crown Office and the persons not making the request are and were fully aware that they were not complying with 3.64 and the reasons for this. The Crown Office in the letter did not mention that they had considered this. I however will consider it with respect to my understanding of the Law in the post examining each case in detail.

(iii) The police have specific powers which they may utilise in appropriate cases in the
investigation of wildlife crime. In particular, section 19(2) of the Wildlife and
Countryside Act 1981 gives a specific power to constables to enter premises other
than a dwelling if the constable suspects with reasonable cause that any person is
committing or has committed an offence under Part I of the 1982 Act. 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 statement is indeed correct in Law. The fact that in the cases under consideration the police are not permitted under the statutory regime to undertake covert surveillance is not mentioned, which would require that the charges which were investigated was for a serious crime, defined as that which has a maximum sentence of 3 years or more. The last sentence is a misrepresentation of the present Law as it applies to the cases before the courts which carried a maximum sentence of 6 months. It may not have been intended to deceive but it certainly deceived Dr Phil 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. ” It sounds good, and I confess it would be a solution, and reading the letter from COPFS supports that view, but it can’t be done with crimes of this nature at the present time.

My petition actually seeks to change the Law by increasing the penalty for some crimes to 3 years to address this specific issue. This will be considered in a separate post and it is, thankfully, not very controversial.

COPFS remains committed to tackling wildlife crime, including raptor persecution. There is a strong presumption in favour of prosecution in cases reported to the Service where there is sufficient admissible evidence and prosecution is in the public interest.”

Let us also look at part of a  statement on the COPFS website in 2015 after the Mutch conviction. “Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland. “It is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection. This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message. COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”

The letter and the statement seem very similar in aim. George Mutch, however, may not be pleased that if he had committed the same crime 12 months later he would most likely not  have gone to prison.  Clearly COPFS wish, if the statements in the letter and on the website is correct, to have laws in place in Scotland that will allow prosecution of wildlife crimes. There is only the issue of “sufficient admissible evidence and prosecution is in the public interest” to consider here. I have no complaint about anything in this paragraph. I would not wish prosecution to occur if there is not sufficient admissible evidence. My huge difficulty is that the letter does not convince me that there was not the necessary evidence available even before my petition is enacted, which I hope it will be, and strengthen the resolve of those in COPFS who wished to proceed in the 2 cases considered here. I will return at some point to the matter of  “prosecution is in the public interest”.

I am now going to attempt to consider the application of Article 8 of the EHCR to the case, regardless of whether COPFS stated that the cases failed due to the common law aspects. I need to be sure that the proposal I am making in the petition is sufficient to allow such cases to go to court in future.  I have not found it easy but I am comfortable with what I am saying about the references if they are applicable in Scottish Law and to the cases under consideration. Both of these references relate to the 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 I see them as relevant as follows, firstly drawing from 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”. Secondly I refer to the 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 occurs and an authorisation under RIP(S)A is therefore not appropriate.” I confess that I had some difficulty understanding the meaning of the sentence. I will give my present interpretation using my interpretation of both documents. Authorisation is not needed for directed surveillance if no private information is likely to result, and if a person is engaged in crime in a public place any information can not be regarded as private.

If my interpretation is correct, and it is applicable in these cases, then it is very important. I think that it is the power the police use when using CCTV or other video evidence and subsequently providing this evidence to a court. No authorisation is requested or needed. The police may already have to power to look at video evidence provided by someone other than themselves, and they do not need authorisation to do it in the cases under consideration. I am in fact not sure that they could not have set a camera themselves in cases where it is known that a crime has been committed  without needing to obtain authorisation. That did not occur in either case, however. I have been taking a new look at the statement “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”  in case it hints that authorisation may not have been needed or could have been obtained. However the obstacle to obtaining authorisation remains.

For information, 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 ”. This includes both places where the video evidence was obtained.

A member of the public is not bound by RIP(S)A and could not obtain authorisation under any circumstances. Neither, as has been explained, could the police in these 2 cases.  This suggests however, that authorisation may not be needed, if it is thought that a crime may have been committed. The 2 cases are considered on their own merits in later posts.  If there was no need for the police in these cases to seek authorisation, surely the video evidence may not have been obtained irregularly, but  each case should be considered in detail. These matters do need examination by someone more competent in Law than myself, I freely admit, but I should like to know why if I am wrong, as I see similarities to police using video evidence when they have not previously had authorisation.

My conclusions

I will first repeat that if anything here that I have stated  is in error and pointed out to me I will change it or include alternative reasoning where I do not agree but believe it has merit. What follows is based on my present belief that I have interpreted the letter and the present law correctly.

It may be that the person(s) who drafted the letter were fully aware of the errors I point out above. Certainly most of them were pointed out in my correspondence with COPFS, when I suggested several methods which might be suitable for us to communicate where I could explain my concerns in detail, without hopefully challenging their independence, but pointing out the matters in this post somewhat more privately.

I am concerned that I have nowhere detected any suggestion that senior persons in the profession of Law in Scotland have expressed any reservations about the letter. I have now read many judgements in case law in pursuit of all the relevant references in the 15 months I have sought to pursue this issue, and I am impressed by the  quality, the open nature and insight of the decisions. There must be many persons who could have read the letter with more initial understanding than I had. Perhaps they have read it and not been impressed, but the Law may still be a profession which will not discuss errors openly. I do not know what members of the Law profession do in their spare time, behind closed doors or in rooms which used to be smoke filled. I hope that they may have influence on the fate of this letter or future cases if they agree with any or all of the content of this document. I hope that this document reaches some of them. It is reasonable that senior members of the profession discuss the issues, even if they insist it is done privately, and if they agree with any of the points I have made, make them forcefully to the persons concerned.

I truly believe that the letter brings the Justice System in Scotland into disrepute, but would be happy to be persuaded otherwise.

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Post 2. A deeper look at the proposal for increasing sentences.

Please understand that I am not seeking to undermine the independence of the Scottish Justice system, and will take no action which leads to that. The petition does not this aim either, and will not mention much of the contents of these posts.

The Wildlife Crime Penalties Review Group headed by Professor Poustie issued it’s report in November 2015.  The report considers the present sentences for the many crimes for in it’s remit, and also whether an increase in sentence would be effective in reducing the crimes. It does not propose exact sentences. The government has agreed that it will increase some of the sentences to specific figures. The present applicable sentences under the Wildlife and Countryside Act 1981 can be found in a table on the government website, most being 6 months imprisonment.

This petition only addresses a small sector of the crimes considered in the report. The  petition is only concerned with the maximum sentence because it would increase the powers of the police to investigate crimes if the sentence were increased to a figure of 3 years or more, although an increase may also deter. It is suggested that each of the present sentences for offences be considered before legislation is put forward to assess the sentence proposed.

I will now go through exactly why the sentence needs to be increased for some crimes.  The Environment, Climate Change and Land Reform Committee (ECCLRC) held a meeting on 16th January 2018 at which the Wildlife Crime Annual Report 2016 was discussed. The excellent discussion covered this aspect of this petition.
Detective Chief Superintendent Sean Scott stated: “It is worth pointing out that our operational activity in the deployment of cameras and directed surveillance is clearly bound by strict legislation. Any activity that we might want to carry out in that regard—in relation to any type of crime, and not just wildlife crime—is bound by that legislation. Under the serious crime test and so on, a three-year sentence would have to be applicable, so there are a number of factors before we can even consider deploying cameras in an investigation.” This statement confirms that if there is a possible sentence of 3 years the work of the police in investigating wildlife crime would be enhanced.

The letter from COPFS to the convener of EECLRC on 30th May 2017 said: “The police have specific powers which they may utilise in appropriate cases in the investigation of wildlife crime. In particular, section 19(2) of the Wildlife and Countryside Act 1981 gives a specific power to constables to enter premises other than a dwelling if the constable suspects with reasonable cause that any person is committing or has committed an offence under Part I of the 1982 Act. 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. ” I would like the last sentence to be true in the case of specific cases such as those discussed in the letter. The letter made no reference to other cases. It is at present not true that the police in such cases can be authorised, and I find it strange that COPFS suggested that the power might be available to the police. I suggest then so as to avoid the blushes of COPFS, the Government passes the necessary legislation at the earliest opportunity.

It is the case that the police would wish to have the powers afforded by a sentence of 3 years of greater, COPFS perhaps thinks the power is already there, so I can see no negative aspect to the suggestion in the petition. I look forward to seeing if it has universal support within the Scottish Parliament.

Although not part of the petition, it may be worth bringing to the attention of MSPs that an increase in the sentence for vicarious liability in wildlife crime cases would allow some cases to proceed by giving better powers of investigation to the police which would otherwise fail. Such a failure may already have occurred.

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