Scottish Government proposals for increased sentences

A consultation was launched on 19 July 2019, closing on 16 August 2019 entitled Wildlife Crime Penalties. I have spent some time already trying to justify adding exactly these changes in a further submission to my petition. I am personally delighted that making some wildlife crimes ‘serious’ appears to be now Scottish Government policy. The consultation may be accessed via this page: https://www.gov.scot/publications/wildlife-crime-penalties-consultation/

Here are my proposed responses, not yet finally submitted:

1. The Scottish Government proposes that the maximum penalties for some wildlife offences, for example the injuring or un-licensed killing or taking of wild animals should be strengthened. Do you agree?

The government has carried out research which clearly shows that wildlife killing is still going on, likely associated with driven grouse shooting and possibly other shooting interests. The deterrent effect of increased penalties, together with the increased police powers of investigation when a crime is serious, may well help to bring this dreadful situation to an end, eve without convictions.

2. Do you agree that the maximum prison sentence available for some wildlife offences, for example the injuring or un-licensed killing, or taking of wild animals, should be increased to five years imprisonment?

As this is above the threshold for making a crime serious, 5 years is at a reasonable level.

3. Do you agree that the upper limit on fines for some wildlife offences, for example the injuring or un-licensed killing, or taking of wild animals, should be unlimited?

Most of those convicted of wildlife offences are gamekeepers. Clearly there is no need for unlimited fines in these cases. As the same crime may be perpetrated under vicarious conviction, and the responsible person may be receiving over time millions of pounds of taxpayers’ money, a large fine may well be appropriate.

4. Do you agree that the maximum prison sentence available for other wildlife offences including the disturbance of animals or damage of nests/shelters should be increased to twelve months imprisonment?

This is a reasonable compromise.

5. Do you agree that the upper limit on fines for other wildlife offences including the disturbance of animals or damage of nests/shelters should be increased to £40,000?

There is a case to be made that the fine should be unlimited in the case od vicarious liability, but the figure of £40,000 is not unreasonable.

6. Do you agree that the statutory time limit for wildlife crime offences that may be prosecuted under summary procedure only, e.g. the intentional or reckless taking, damage or destruction of nests under section 1(1)(b) of the Wildlife and Countryside Act 1981, should be increased to six months from which sufficient evidence came to the knowledge of the prosecutor, but no more than three years from the date of the offence?

No comment

7. Do you agree that we should allow some wildlife offences, for example the injuring or un-licensed killing, or taking of wild animals, to be tried under solemn proceedings before a jury in court?

This is a necessary consequence of the increase of maximum sentence.

8. Please use this question to provide any other commentary or observations you have on the proposal to increase the available penalties for wildlife crimes.

I am pleased that the Scottish Government is taking some action in relation to the continued persecution of wild animals.

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Second hearing of Petition on 4 April 2019

I was informed today that the second hearing is to be held on 4 April. There will be no evidence taken, as far as I am aware, and the papers for the meeting will be published on 1 April.

The submissions for this hearing are available here:
http://www.parliament.scot/GettingInvolved/Petitions/PE01705

My submission of 21 March is now listed as of 1 April 2019.

When I decided to be more aggressive on 16 December 2018, I realised that it would be difficult to score any points against the might of the Crown Office. I do believe, however, that the 2 major submissions that I have made in support of my petition are powerful. They may hopefully be pushing on an open door as far as MSPs are concerned.

The government has said in their submission speaking of the Poustie recommendations “It remains intention of the Scottish Government to take forward the necessary primary legislation during the current Parliamentary session. ” I find that hard to believe but nevertheless I am in time for MSPs who read my petition and supporting submissions to ensure that the levels of sentences for those wildlife crimes which concern me are increased to a satisfactory level, and no less that 3 years. The level needs to be such that it is regarded as serious crime. I’m not sure of the legal terms which would allow a hearing in a higher court but I can leave that to the government if it wishes, or to MSPs if not.

The Crown Office, in choosing to reinforce the omertà I have faced since I decided to take the matter of wildlife crime in hand, have not done themselves any favours. I would have been happy, had they allowed me to gain access by some means to more information about the use of video evidence as the Cabinet Secretary suggested, to remain silent as to many aspects of the communication between us. I am, due to their refusal to engage, free to make the submissions I have in the manner I have.

Update 2 April 2019. The agenda and meeting papers for the 4 April meeting were published, at https://www.parliament.scot/S5_PublicPetitionsCommittee/Meeting%20Papers/1April_PuplicPapers.pdf and I have no issues with the content. I will note here however that a) there is a reference “In a statement to the Parliament on 9 January 2019, the Minister for Rural Affairs and the Natural Environment outlined a number of measures and consultations that the Government is taking forward to inform any primary or secondary legislation.” and I can find no mention of anything relevant to the petition, and b) that my submission of 21 March 2019 seems to be redated to 31 March. This may mean nothing, but I am concerned that the date may be important.

Update 5 April 2019 The meeting was held. In a short consideration of the petition it was decided, as suggested in the meeting papers, that the petition be forwarded to the ECCLRC for consideration. I may change this update once I read the transcript, not available until Monday 8th. I’m happy with that decision.

Update 11 April 2019. Transcript of the short discussion:

“Our final continued petition is PE1705, lodged by Alex Milne, which calls for a review of legislation relating to the investigation of, and penalties applicable to, wildlife crime in Scotland.

The clerk’s note refers to the Scottish Government’s submission, which states that it intends to bring forward legislation to increase penalties relating to wildlife crime. The petitioner has welcomed that intention and has indicated that he will respond to any consultation that the Government brings forward to inform any primary or secondary legislation.

The petitioner has also provided what he considers to be potential solutions to the current difficulties in presenting video evidence in the context of wildlife crime, and he notes that the challenges were recently discussed as part of the Environment, Climate Change and Land Reform Committee’s consideration of the “Wildlife Crime in Scotland: 2017 Annual Report”.

Do members have any comments or suggestions for action?

Angus MacDonald:
The petitioner has rightly highlighted the issue of video evidence. The ECCLR Committee, of which I am a member, has been looking at this issue for some time, and it has heard that video evidence has, for various reasons, not been used, which is a matter of concern. Given that the ECCLR Committee recently took evidence on the wildlife crime annual report for 2017—we are always a year or sometimes two behind with the annual reports—given that the issue of wildlife crime has been very much on that committee’s radar since it was formed, and given that its predecessor, the Rural Affairs, Climate Change and Environment Committee, took the issue extremely seriously, too, there is a good argument for referring the petition to that committee so that it can be given the time and concentration that it deserves.

The Convener:
As there appear to be no other views, I thank the petitioner for his substantial response to help with our consideration of the petition. Do we agree to refer the petition to the ECCLR Committee for its consideration as part of its on-going work on wildlife crime and for any potential scrutiny of relevant legislation in this session?

Members indicated agreement.

The Convener:
I again thank the petitioner. I think that significant progress has been made as a consequence of this petition, and the petitioner himself will be able to follow the ECCLR Committee’s continuing consideration of this issue.”

Since the meeting I have found that the opinion of the bench of five judges which discussed the state of uncertainty in the law in relation to video evidence has been given, which means that the proposal I made in the submission cannot be now made in the manner I suggested, which means additionally that a similar proposal by government would infringe judiciary independence from the legislators, so I will need to amend the submission. I am actively considering how this can be accomplished to save this aspect of the petition. I do not minimise the difficulty as I do not yet know what aspects of Law any changes I need to encompass, and COPFS have been unhelpful in my attempt to determine the reason for the inadmissibility, or even the irregularity which was deemed inadmissible in the type of case I am trying to ensure reaches court. Truthfully, I had no idea when I set out writing the petition that it would be so hard for an individual to determine the necessary meaningful changes to the Law, or the huge obstacles to be faced in the extremely powerful silence. It appears beyond my ability at present.

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A further submission to the Public Petitions committee

I listened to the 12 March meeting of the ECCLRC and read the draft transcript both to see what was revealed about the 2017 Wildlife crime report and because I hoped that a member would ask questions related to the submission I was allowed to make to the committee just before the papers for the meeting were published. My effort turned out to be a damp squib, which was not entirely unexpected, but the discussion did several times cover matters of interest to my petition. The discussion did cover the difficulties of getting video evidence into court. That is a main purpose of my petition, but I was only too aware from the evidence session that the concerns of the police and SSPCA representatives would not be adequately dealt with even with the already large number of changes in the Law that I have suggested are necessary. When I returned to Scotland, I started research at home on the internet. Several of the references I came across were not available to me. In addition, not being a practising lawyer, I likely missed several references altogether. I visited my local University library, but now being retired, I no longer had full access via my employer. I was able to access some references, however. This was Sunday, and I was most concerned that my petition might be heard for the second time at the committee that coming week (Thursday 21 march 2019), and the papers would be published on Tuesday. I quickly (too quickly) made up a couple of submissions, and sent them on Monday 18th March. Even at the time, I was unhappy with how they appeared, and the haste was evident even on a first reading. The papers for the meeting were published on the Tuesday, my petition was not listed, and now I’ll never learn if that was the intent. My petition and submissions were already embarrassingly different from what I had written a year ago, but was absolutely necessary to deal with the issue.

I then took stock of what I could have done in the submission, rather than what I had done, and by Thursday morning I already had the bare bones of a much better, less contentious submission in my head, but with nothing on paper. I wrote off an email to the clerks in the morning, and started to write a new submission. This dealt with what I see as the intractable nature of COPFS attitude to accepting video evidence for submission. I already knew that an appeal court opinion had on 9th May 2017 said “The most recent of the cases was reported in 2000. Even since that time there has been a significant increase in the use of video evidence in court. We consider that it is undesirable that the law in this area should be in a state of uncertainty. We consider that this would be an opportune time for the matter to be reviewed by a larger court, and on this ground of appeal alone, we will put the case out for a hearing before a bench of five judges.” I had been unable to find such a hearing about video evidence, nor did I know if it ever happened, but I could base my submission on what it could conceivably cover, to my advantage, because it may not be seen as contentious, such as questioning COPFS decisions, and could reasonably be discussed by members of committee. There need be no continuation of the omertà which had been all too evident so far. I was reasonably sure that I could suggest how it could be achieved without making any change in the present law, which I had already suggested was possible in 2017.

I thought that I might need to carry out a lot of research, but I had quickly drafted a submission that seemed suitable. Quite often, once I have got something ready, all my attempts at improvement make it go backwards. I have no-one to proof read or comment on what I write, so decided to submit it that afternoon. In the last paragraph I did stray into controversy, but not as greatly as I had in mind.

Here is what I submitted:

Further suggestion for improving admissibility in video evidence – PE1705

Summary
In addition to previous proposals I urge the Scottish government to recommend by some means that a hearing before a bench of five judges to remove the state of uncertainty in the law in relation to video evidence should should be held and include consideration of the solutions to the challenges in presenting evidence made in this submission, as proposed by Lady Dorrian in [2017] HCJAC 25 but amended to consider inclusion of the suggestions in this submission.

History of this proposal and submission
When listening to and reading the report on the March 2019 evidence session of the Environment, Climate Change and Land Reform Committee (ECCLRC) discussing the 2017 wildlife crime report the SSPCA and police representatives both remarked on the obstacles facing those wishing to present video evidence before a court. This directly relates to one arm of this petition, and I decided that I therefore needed to address more issues than I have so far. I conducted research into these obstacles, in so far as I was able, as I now have limited access to my nearest University digital resources and Journals. This submission considers how this may be approached with a view to helping to ensure that the wish expressed in July 2013 by Environment Minister Paul Wheelhouse could be fulfilled. He said that he would be urging the Crown Office to consider the use of video footage in cases against those committing wildlife crime. I found that Lady Dorrian in an opinion given in early May 2017 [2017] HCJAC 25 stated: “The most recent of the cases was reported in 2000. Even since that time there has been a significant increase in the use of video evidence in court. We consider that it is undesirable that the law in this area should be in a state of uncertainty. We consider that this would be an opportune time for the matter to be reviewed by a larger court, and on this ground of appeal alone, we will put the case out for a hearing before a bench of five judges.” I have been unable to find such a hearing about video evidence, nor do I know if it ever happened, but if this could happen now it may well form a basis for a solution.

My proposal to suggest how to tackle considering the basis for a solution.
The Lady Dorrian opinion will likely result in considering all cases of video evidence. My concern is, in addition to that, in the specific issue of wildlife crime, which need have no different solution, there are additional considerations needed. I shall look at the issue in relation to 2 imaginary cases or scenarios of wildlife crime. The first is loosely based upon a real case, where a member of the public in say a pub causes injury to a bat, but no application was made to allow recorded evidence by another member of the public who may have filmed the event on a smart phone to have the video recording evidence presented in court. The second scenario is based upon an actual walk I undertook in February 2019 where I left my car adjacent to a public road, left that public road, carrying a large lens and camera which would allow me to view from several hundred metres details of any potential crime I witnessed. I also carried 3 cameras which could be used, should the need arise, for instance on encountering a set and baited pole trap, by being set in place with a view to recording evidence over a longer term which the police could retrieve, perhaps with myself in attendance, after I reported my actions to them. I will cover both of these imaginary events, describing them as a crime in progress, although, of course, I saw no sign of a crime. I crossed via a tall heather and Juniper covered valley to another public road which may have been suitable territory for Hen Harriers to nest, and returned via the other side of a hill to the first public road, past many inactive pheasant feeders.

The Challenges to presenting evidence.

  1. Incomplete chain of evidence.
    The first matter is the incomplete chain of evidence which needs to be addressed, because unless the police themselves make the recording, there will be a gap between the recording being made and it coming into the possession of the police. I suggest that an agreed standard protocol could resolve this issue. This may be addressed purely by the use of a standard form being available for entering into evidence audio and video recordings which might be handled by means of a code issue or amendment, but even that may not be necessary. The form would need to state the approximate time of the recording, and the date it came into the hands of the police. The investigating officer would need to state if he has any evidence that the recording may have been tampered with in any way, and to confirm that any such evidence will be made available, even if discovered later. Much other information may need to be included but I will not detail it here. If this form and the recordings are given to the defence, they may challenge this in the same manner as any other evidence. In relation to the scenario of the injury to the bat, the investigating officer would only need to confirm, or not, that he was aware of any evidence that the recording on the phone had been tampered with etc.. The prosecution, unless there is clear evidence that the chain of evidence has had a material effect on the evidence, should permit it to be given to the defence and await a challenge on or before the first diet, and for them or the court to consider that, rather than simply refusing to allow the evidence on the basis that they lack any information to what might or might not have happened to contaminate the evidence, which may well be considered reliable unless there is evidence to the contrary. Other judiciaries operate in this matter without problem, even where corroborating evidence is not a requirement. These jurisdictions may find the present situation in Scotland strange, at a minimum.
  2. The rights of individuals being recorded.
    I quote, not from the law or case law, but from a code, and consideration as to whether it applies can be made prior to requesting that a recording be used as evidence. This is one, but there are several references:
    279 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.””
    This may require action to be taken where others recorded who are not engaged in crime to exclude them in some way from the evidence. In my scenario of an injured bat, there seems to me to be a clear case of likely allowing the evidence to be heard in court, although as always subject to a potential challenge.
  3. The rights of the persons who own the land or property where the recording is being made.
    I shall cover this in my case where I might have encountered a crime in progress in the second of my scenarios. Clearly challenge 2 applies, and I suggest that as both the landowner and the alleged perpetrator may be guilty of crimes if so proven, that challenge 2 is applicable. In addition however, the prosecution would need to show that I had a right to be on the land. This is covered more fully in my submission of February 2019, but I will repeat that I would have a right to cross land under the Land Reform Act 2003 (LRA) under sub-section 1(2) (b) and 1(4)(b) regardless of my obvious intent, should I encounter a crime in progress to take more action than simply contacting the police at the earliest opportunity. This would not necessarily apply in a general case of video recording which may occur, but is likely in a wildlife crime case because of the application of the LRA.
  4. The rights of a person who owns the land or property where the actual potential offence is being committed.
    This may be different from the rights of persons in challenge 3. Whilst this needs to be considered in more general cases, it is unlikely to need consideration in wildlife crime cases, but challenge 3 may well be similar, and the public place definition may help here as well.
  5. The need to demonstrate that a recording being made does not require authorisation.
    I’ll use my second scenario as illustration, being a crime in progress. Authorisation is unlikely at present, and may well be impossible, as the police representative may have hinted at in the evidence session referred to above for any suspected wildlife crime. I am forced therefore to show that it is not always required, and it is not in the second of my scenarios. There are laws as well as codes giving guidance, all in support of RIP(S)A 1(2)(c) which states “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance.” Page 4 of my February submission gives more details of when authorisation is not required, with quotes and links to codes. This would hold true in many cases of wildlife crime and perhaps also some general video recording situations.

Summary of the challenges.
It is my opinion that these challenges could be addressed in the manner I suggest without any required changes in Law. Perhaps members of the committee might consider commissioning an opinion from the government, whether it be a rebuttal or confirmation of the solution to the challenges in my submission here, as well as my request that they agree with my suggestion in the summary. I am, for obvious reasons, hesitant to spend more in legal costs than I already have in support of my petition. I should like to be made aware if my belief is correct but would agree that it is not necessary just to satisfy myself.

The relationship of this submission to the events referred to in the correspondence between the convener of the ECCLRC and the COPFS in May 2017.
Thus far in this submission, I have tried to be legally correct, but have not, as yet, sought to obtain independent legal advice, in contrast to my February 2019 submission. I have sought, despite my lack of legal training, to be as astute, clear and persuasive as an appeal court opinion.
This is in marked contrast, I suggest, to the letter from the head of the Wildlife and Environmental Crime Unit in COPFS who was asked to reply to the convener, and the support given to the decision of Crown Counsel by University of Aberdeen personnel. I have seen no remotely persuasive opinion in support of the decision, and I would like to see how such compares with my opinion given in my petition. I am truly prepared to be persuaded.
It is not in my nature, I admit, to shy away from such a controversial matter as wildlife crime, but do not see quite why it is controversial. Much wildlife crime is as often as not simply crime committed in support of what could be and is a legal activity, and I suggest it is only these crimes which are seen as controversial. These crimes, and their perpetrators, do not deserve the special treatment which some, including probably the perpetrators, believe that they receive.

Alex. S. Milne March 2019

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Events since my submission to the ECCLRC

The submission was made on 6 March 2019, was accepted as written and issued to members of the committee on the same day. The papers for the meeting were place on the ECCLRC website on 7 March, the public papers mentioned that I had made a submission, but did not include it. My submission said that I had not received an acknowledgement by the 6 March, On the 8 March, I received an email containing a letter dated 7 March from COPFS. The letter stated that COPFS did not consider it appropriate to comment on the questions in my letter or intend to contact the convener of the Environment, Climate Change and Land Reform Committee (ECCLRC) about my letter.

I thought that I should at least inform the clerk to the committee that I had received a reply, although I suspected that it had only been written after COPFS had seen that I had made a submission to the committee at which Ms. Sara Shaw was to be giving evidence on their behalf. I therefore replied to COPFS on the day of receipt, but copied it to the committee and others in order that they were aware of this development. The letter from myself to Ms. Shaw contained a copy of my submission in case COPFS had not seen a copy. I suggested that if the committee requested that she provide Crown Counsel versions of the questions that it would be reasonable for COPFS to provide these at a later date to the convener.

My letter to COPFS reminded them that my approach to them had been suggested by the Cabinet secretary for Environment, Climate Change and Land Reform, and mentioned that some might consider the constant refusal to provide any information be reasonably seen as disrespectful to a senior member of the government, a matter I had not previously raised.

Ms. Shaw is the head of the Wildlife and Environmental crime unit at COPFS, gave evidence at a similar meeting last year, has been the recipient of my letters, provided the negative responses, but successfully led the prosecution team which I was advised had successfully destroyed the expert witness evidence and overcame the no doubt convincing case put by an experienced QC. She stated on the COPFS website “COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.” It seems to me perfectly possible from her history and from revelations at last year’s meeting that she might not be wholly in favour of the decisions made by Crown Counsel, although in her position she would be bound to support them. That may well be an incorrect conclusion on my part.

I am out of the country until after the meeting, and so cannot attend, but will try if possible to record the session. I have not been able to hear them very well when I have done this previously, so may need to wait for the minutes.

Almost anything may happen to confound what I hope may result. The session is a very crowded one with many persons appearing as well as other agenda items; No one may ask her to provide a reply to the convener; she may dismiss the suggestion even if it is made, as she has done to myself; the possibilities are endless.

I may just have to accept that the best I can hope for is a successful petition, which will likely only take place after many years. I still cling to the hope at present that the government and MSPs generally are fed up with what is happening and take urgent action, including being prepared to continue pursuing the issue of admissibility. I made several suggestions, all unlikely to happen, in my latest petition submission, also on this website.

Exciting times!

A damp squib on Tuesday, or a larger explosion some time after the meeting on Tuesday. Who knows? I certainly don’t.

I have now also updated the timeline of events related to this matter.

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What on earth is the point of this website? What on earth have you been doing for almost 2 years?

I’m not sure that I can fully answer that, but I’m sure that I have done the right thing. I’ll try to answer this question and others, in no specific order, in this post, by asking and answering what I believe are relevant questions that could be asked. There is only me in this endeavour, so I’ll ask and answer the questions myself. Sad, isn’t it?

  • Q. To have a successful petition, you only needed to list what you saw as necessary changes in Law. You have expanded that by giving reasons why you are asking for the changes and going into what might be seen as unnecessary detail. Why have you done that?
  • A. I wrote the petition in March 2018 missing some later information which came into the public domain and I was not as aware then as I am now of the legal issues. I decided that I had to add this extra detail for good reasons, but I agree perhaps it did not need to be in as great detail as I have recently decided to do. I now have other objectives other than the petition, but a successful petition is important
  • Q. You must have spent an eye watering sum to get to this point. Why?
  • A. I’m not a lawyer. Even now, I’m not sure I have got this entirely right, but that is probably because I don’t really want to believe what I am perhaps suggesting may be true is actually true. In order to get my points across I had to improve the presentation and give it more validity by obtaining independent legal advice from civil and criminal lawyers. Even now, I don’t know where the expertise in one branch of the law starts and the other takes over, but I don’t need to know if I employ others with expertise. I’m sure that the submission reads better after the injection of independent advice, even though the points of established law presented were all devised without the advice. It may also be seen as having more authority.
  • Q. What has got you so riled up?
  • A. Over the almost 2 years I have been interested and active in this area, I have come to believe, despite the assertions of Crown Counsel, that individuals, including RSPB investigators and myself, have the legal right in Scotland to devise a route which crosses one or more areas of land over which they have the right to cross under the Land Reform Act. This can be done without questioning if that is one of or perhaps the sole reason for crossing the land. I have done this, but never seen a pole trap. RSPB investigators have on some rare occasions seen pole traps. The RSPB is in a better position than I am to select more productive land crossing routes than myself, and do it far more often than I do. I assert that this is a legal activity, and allowed under the present Land Reform Act. In addition, the Law allows that following the discovery of an illegal act, covert surveillance may be carried out without authorisation, or in breach of any other statute. Crown Counsel have asserted that this is not the case. I did not understand why they had made this decision. It angers me that they did so.
  • Q. Let’s cut to the chase. What do you hope to achieve?
  • A. Very little. I cannot hope to take the matters I raised regarding what lay behind the events to court by means of a Judicial Review or challenging a decision by other legal means. I am not an interested party, only an aggrieved member of the public and was not even aware when I wrote the petition of many of the issues. I cannot hope to have the decision to discontinue any cases reversed. The most I can hope for is to make Crown Counsel slightly embarrassed. In case you don’t know Crown Counsel are the senior people in the Crown Office Prosecution Service (COPFS) in Scotland, from the Lord Advocate downwards, who is “the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office and Procurator Fiscal Service, nominally in the Lord Advocate’s name. The officeholder is one of the Great Officers of State of Scotland”. i.e. definitely one of the heid bummers with other senior people in Scots Law. There is a new group founded in 2019 called Wild Justice, principally to challenge decisions by statutory bodies seen as possibly illegal in the field of wildlife and environmental matters throughout the UK. The issue I am pursuing here is not of that ilk, or even near. I cannot hope to get a truly successful outcome for any injustice I may have perceived, but have proceeded nonetheless, because I’m like that, stubborn and, I believe justly, annoyed. Wild Justice is intended to challenge statutory bodies who pay more attention to the desires of their political masters that the statutory duty they are meant to uphold. My task is much harder, and I don’t expect many lawyers in Scotland to be cheering me on. Does that worry me? Well, yes, it does, a bit.
  • Q. Lets get on to the matters about what you are concerned about. What do you think happened that got you so annoyed?
  • A. I can’t answer that fully. In April and may of 2017 a decision was made that some wildlife crime cases already before the courts involving birds of prey should be dropped. Luckily for me, the convener of the Environment Land Reform and Climate Change Committee (ECCLRC) in the Scottish parliament wrote to COPFS asking general information about admissibility of evidence. The public likely would not have had any details of the reasoning behind the decision if that had not happened. COPFS replied to the letter, giving specific details of the reasoning in 2 of the cases, although the 2 cases were not considered individually. I’m not really a ‘birder’ and was away in truly wild parts of Spain for a month riding my mountain bike solo slowly over a long distance, as I have done before and since. I was aggrieved enough to write to all my MSPs then the ECCLRC. I gained some more knowledge of how the matter had been handled within COPFS when I read the minutes of a meeting of the ECCLRC in January 2018 attended by, among others, the COPFS and the police. All of the above gave me enough information about what I believed were the changes in law necessary to ensure that it could never happen again, I wrote what I thought was a suitably worded petition and submitted it to the Scottish Parliament on 15th March 2018. On 4th April the Guardian newspaper wrote an article about another possible wildlife crime case involving birds of prey. This case had received no previous public exposure and although the initial event took place in March 2014 it was not resolved, if that is the correct word for what happened, until September 2017. By this stage I was not merely aggrieved, I was apoplectic with rage.
  • Q. You said that you can’t answer fully why you were so annoyed ? Why is that?
  • A. I had realised what might well have happened, but I had, and have, absolutely no evidence for what I believe may have happened. Scotland has good laws which prohibit the making of unfounded allegations in public. I also support the reasoning behind these laws, and I believe strongly in upholding the Law. I therefore cannot discuss here or elsewhere any motives for what may have happened, because it then might be blindingly obvious what could have occurred. I could, however concentrate my efforts to see if it was possible, as I already suspected that it might be, that one of these cases should have continued to be heard fully in court, and thus a court should have been allowed to make the decision as to admissibility. That does not require an examination of motive, and only requires a thorough consideration of the Law as it stands. I believe that I have done that, or certainly come close to that, despite the fact that COPFS have wide discretion in deciding what is admissible or not. The decision must start with a perceived irregularity in the presented evidence available to COPFS. If there is no anomaly, then there is likely no question of the evidence being inadmissible. I believe that I have shown that there was likely no irregularity in the gathering if the evidence before the courts in one of the cases.
  • Q. The RSPB, unlike you, have been able to discuss this with COPFS. Surely they should have noticed.
  • A. They did, but I believe that I have detected more errors in the decision than they have picked up. The RSPB asked in Legal Eagle 82 published in August 2017 the question: “Is the Scottish criminal justice system fit for purpose?” That is fairly strong, but I am suggesting that the criminal justice system is actually fit for purpose. It was decided by Crown Counsel that there was a perceived anomaly in the collection of evidence in one case that I do not believe exists in actuality. The reasoning I have given, included in my latest submission to the Public Petitions Committee, was not considered in correspondence or other communications from COPFS. That committee will have no authority to do anything about it other than ask the Scottish government to change the law in the ways I suggest, which is something, and what I started out to achieve. That is still a principal aim. I attended a law seminar at Aberdeen University on 15th June 2018 entitled ‘Nature Conservation & The Law of Evidence’ at which several people gave presentations. The RSPB presentation gave me some guidance as to their problems with the decision, but even as late as 1st January 2019 I realised that there were more errors in the decisions than they had noted.
  • Q. Surely others in COPFS could see what was happening and put a stop to it.
  • A. Perhaps they did notice, but even so could not put a stop to it. Certainly, once a decision has been made, all in COPFS must at all times adhere to support of that decision. That is the only way the system can work, and I fully accept that. It may well be that the whole of the legal profession feels bound to support even a bad decision, but I’m not sure if that is the case. I certainly raised it in my communications with COPFS, and it may have been a factor after I tried to obtain independent legal advice about the issues I raised. I had run through effectively a Who’s Who of large firms of solicitors before I found one who suggested they might be prepared to give advice. COPFS set out in questioning by the ECCLRC in January 2018 which noted how disagreements were dealt with, before decisions are made. I raised the issue with the Inspectorate of Prosecution Services in Scotland (IPS) but the IPS is hampered by it’s statutory lack of independence from the Lord Advocate in what it can undertake and so I confined somewhat my correspondence with the IPS to show how they could contribute to resolving conflicts before a decision is finalised. Even there I believe the IPS likely has very limited ability to assist. However, the inspectorate (IPS) could be asked to examine the cases I believe may have had errors in the decision to drop the cases. In Law the Lord Advocate is the only person who could ask for this to be done. I’ve made the suggestion, but is it really likely that he will ask IPS to investigate? He might, if he truly believed that the investigation would confirm that the cases, had they been heard in court, would have been bound to fail due to obvious irregularities in the obtaining of the video evidence. I don’t think it will come to pass. I should also make it clear that there may even be persons in the COPFS, who believe that I am right. Even if they do not feel able to speak out, they are acting in an honourable fashion. I have long urged members of the legal profession to examine the issues I have highlighted. I hope that some of them may, if they feel that the assertions I make have some validity, privately say that it should be examined. The herd instinct to follow the leader may make that difficult to achieve.
  • Q. Why do you suggest that there may not have been an irregularity in the evidence which was to be given in court?
  • A. COPFS said that “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. ” Now that is a bit technical, but there is another separate right granted by section 1 of the Act which is simply the right to cross land. Provided that the person does not contravene other additional qualifications, such as exist on golf courses or being in breach of a court, the right to cross from one side of land to the other in Scotland does not depend additionally on complying with the purposes set out in section 1(3) which I claim COPFS suggested it did.
  • A. COPFS said “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.” This brings up the question of authorisation. I suggest that authorisation was not needed for the camera in the same way that authorisation, which has to be obtained in advance of any cameras being in place and that was not possible in this case, is not needed for the presentation in a court of video evidence obtained in a public place, when there is no ability to obtain authorisation in advance. A good example of this is if it has been taken on a CCTV camera. My submission covers the technicalities in some detail.
  • A. These two statements, both of which I suggest were in error in one of the cases specifically covered by COPFS, would allow an RSPB employee, suitably equipped with photographic equipment, to set in place a video and audio recording device in support of the police. They did, as might be expected, report it directly to the police. The police could be expected to return to the scene and take over the investigation, including the data from the camera. this is exactly what happened in one case where it was claimed that the video was obtained irregularly.
  • Q. If you were not a party to any of the cases, surely there is nothing more that you can do?
  • A. Well so far, I have written the submission to the Public Petitions Committee. My petition PE 1705, which has had a single hearing so far, originally sought to add a clause to the Wildlife and Countryside Act to allow video evidence to be presented in court in wildlife crime cases. Obviously a person needs to have a right to go on the land even as a starting point. If I made no request for changes to the Land Reform Act, we would be no further forward, and my petition, I realised too late, seeks something that in most if not all cases would make no difference. Thus the submission was necessary, and I needed to explain my reasoning for the additional changes. I have suggested several changes to the Act which would make a great deal of difference. I have also written to the COPFS who so far have not been keen to discuss the matter with me, despite a suggestion from the Cabinet Secretary for Environment, Land Reform and Climate Change that I approach them. I have recently asked significant questions which, if they still do not wish to answer my questions, the convener of the ECCLRC might be interested in knowing, rather than answering them to myself, even if it is to dismiss their relevance for a stated reason. COPFS have continued to ignore me, so I have approached the ECCLRC, which I have previously done, with a view to resuming the debate on admissibility, when a similar meeting to that of last year presents an opportunity for members of the committee to question COPFS. That meeting has now been announced for 12 March as an evidence session, but having evidence from 7 people as well as considering other issues. I have now made a submission to that committee as well, because in 2 weeks since I sent the letter to COPFS, they have not yet acknowledged receipt or answered. The submission had to make clear that the intent of my letter and the submission is to seek clarity on general matters not raised so far, and specifically not to question specific decisions made by COPFS. I need my submission to be raised and answered in such a way as to allow me to continue to have it discussed at a later stage. I am terrified that this does not happen. Other than that, I can make as much fuss about this as possible. I already have a website in support of the petition, but I’m not very active on social media in support of my views. I won’t be stopping until either I am proven correct, or, and I agree this is possible, I am proven wrong. Ignoring me is not going to allow that to happen. I welcome any healthy debate on my assertions by persons better qualified than myself. I’m not competent to contribute to such a debate, and can probably not afford to pay for more services from the legal profession in support of my assertions, should an opportunity present itself for my views to be represented.
  • Q. What do you see as the possibilities to achieve even a small amount?
  • A. The first possibility was that COPFS would respond to my letter of 22 February, although after 2 weeks I have not received an acknowledgement, which has happened before. They could, I freely admit, deliver a crushing blow by explaining how the general questions about the Law and admissibility I asked are no basis to suggest that any specific case should have been held in court, and back this up by explaining the legal points they make. I just don’t at the moment see how that is possible, but it may be. From my point of view that is as good as I could hope for. Through the suggestion made by Roseanna Cunningham, I have enough skin in the game to have with difficulty extracted 2 poor responses from COPFS. That may yet provoke a response. Secondly, as mentioned above, I may yet get a member of the ECCLRC to ask the same questions of COPFS, and an opportunity for this to happen will occur likely next week, and the reticence of COPFS to communicate with me makes that more likely if I can get my message across. Thirdly, and really my preferred option, is for some persons qualified in Law to consider the various points I have made, to discuss this privately and take action without my involvement. If there is any merit in my assertions this may produce the best result of all.
  • Q. You do realise that you can never win, as a non lawyer, trying to take on such senior people in the Law profession.
  • A. I do wonder, with little evidence to back me up, if I am taking on even the whole of COPFS. The person in COPFS who has been left holding the baby is the head of the Wildlife and Environmental Crime Unit. This was the person, I understand, who led the successful prosecution in 2014 which led to a term of imprisonment for wildlife crimes. This was seen at the time as a well informed and able prosecution team taking on highly qualified defence experts and defence counsel and winning. It is likely that this did not go down as well with some influential figures as it did with myself and others. She was the person asked to respond to the letter from the convener of the ECCLRC. In the letter she made it clear that the decisions in the cases has been made by others, when stating the position of COPFS. She gave a statement on the COPFS website on 12 January 2015 about the custodial sentence handed down on the wildlife crime case mentioned above. She said “COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.” At the time, although not known to the public, she would have been aware, if I am correct, that the case of the Tillypronie gamekeeper had been paused. I prefer to believe that the statement may have in some way been setting out her personal view on the admissibility of evidence, but was years later overruled, and certainly the successful case in 2014 would not now be seen as an appropriate case be prosecuted. Thus my later communications with the same person may be seen as a sparring match between 2 persons who in some ways may be seen as being on the same side, but that can not be admitted. The view I take on this matter certainly would explain the strained nature of the communication we have had. She will be the COPFS representative at the 12 March meeting. The only other group of whom I am aware who have supported in public the decision are the persons from the University of Aberdeen who wrote blog articles in support of the Crown Counsel decision. Professor Peter Duff, who was the first to write an article, did not examine the cases individually, and, even to my untutored eye, seemed to make some basic errors in the article. I would be interested to know, but have no right to ask, what he or the others think of my very different viewpoint on the individual cases and points of law.

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Submission to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament

I have been today (6 march 2019) advised that a submission I made earlier today will be sent to committee members and will appear on the government website. It is intended to be read in conjunction with the 2017 wildlife crime report and meeting, which last year’s similar meeting provided me with some information to help formulate my petition PE1705, which has had a single hearing so far. I wish that as many people as possible are aware of the content of the submission, and am therefore publishing it on this blog today.

The submission is a continuation of my long attempt to discuss the matter of video evidence and admissibility in wildlife crime cases with the Crown Office Procurator Fiscal Service (COPFS), suggested via my MSP Ms Maureen Watt by Ms Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and land Reform, who suggested on July 27 2017 that I should seek further information on the cases which were not proceeded with earlier in the year, by contacting COPFS. I have done so several times. They have said in 2017 and 2018 that they did not consider it necessary or appropriate to discuss these matters with me. The 2018 letter suggested that I may wish to seek independent legal advice in respect of the various matters in my letter. I was at the time developing my petition and became increasingly confident that in one or more cases, there was no irregularity in the actions of the RSPB personnel. COPFS considered, or rather Crown Counsel considered, that there an irregularity which could not be excused in both of the cases dropped at the time. Although I was still developing my case that there was no irregularity, I decided to follow the advice of COPFS and engage a firm of solicitors to get advice in mid December 2018. It was well into 2019 before I succeeded, despite having gone through a Who’s Who of large firms of solicitors in Scotland. The revision to my document eventually reached Revision 5 before I found firms prepared to conduct the review. The advice I received did not ask for representation or for their view, rather a review against Scottish Law of my document. I submitted the document, still noticeably my opinion, but with improved presentation and standing by means of the advice received, on 22 February to the Public Petitions Committee for it’s second hearing, likely in March. This document is also available on this blog, but I have not yet received confirmation that it meets the requirements for a submission. Of course, the main aim of that submission is to suggest changes in law which would make it almost certain that a court would be able to consider the admissibility of evidence in wildlife crime cases not presently being heard in court. I had convinced myself by this time that I had a strong case to ask COPFS 4 questions, some of which related to issues I had not seen raised elsewhere. I persisted, therefore, and in February 2019 I approached COPFS once again, stating that if they did not acknowledge or reply to my questions that I would assume that they still did not feel it necessary or appropriate to answer these questions. I suggested that COPFS might wish to answer the questions directly to the convener of the ECCLRC, and I do not know if that happened.

The submission to the Environment, Climate Change and Land Reform Committee draws upon the earlier submission. It mainly relates to the 4 questions I asked of COPFS, but also gives my answers in lieu of any response from COPFS. The questions are about the law in relation to the Land Reform Act and admissibility of evidence, discussed but not in terms of the matters raised prior to or at the 2018 meeting of the ECCLRC. It attempts to keep the matter general, and not relate the questions to any specific case, in order that members (and myself) are not seen to directly question any decision by COPFS. The matters considered in both submissions are by their nature technical, and it has taken me almost 2 years to get to this level of understanding, not being a lawyer by profession.

Here is the submission to the ECCLRC members:

Submission to the Environment, Climate Change and Land Reform Committee (ECCLRC) for consideration along with the 2017 wildlife crime report.

This submission relates to the discussion on the admissibility of evidence at the meeting of the ECCLRC on 15th January 2018, which considered the 2016 wildlife crime report. The Crown Office Prosecution Service (COPFS) had responded to a letter from the convener of the committee giving some detail of the reasoning behind the decision to discontinue 2 court cases in March 2017. This was further examined at the January meeting.

The representatives of COPFS at the January meeting gave some additional details of the process by which admissibility is judged. Whilst it is true that prosecutors have a large amount of flexibility to decide whether prosecutions may proceed, admissibility to a large extent depends on a consideration of whether any perceived irregularity in the obtaining of evidence may be excused.

The fact that prosecution decisions are entirely a matter for COPFS causes myself and MSPs some difficulty in what may be legitimately be discussed, and MSPs must not appear to question decisions lawfully made, but there are areas not previously raised where clarification may usefully be sought.

I was forwarded a letter to my MSP Ms Maureen Watt from Ms. Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, which suggested in July 2017 that I contact COPFS for further details on the decisions. I did try to contact COPFS to obtain further details, but in my very limited correspondence with COPFS it was made clear to me that they would not communicate with me about the issues I raised or answer the questions I asked. I did however take up the suggestion made by COPFS to obtain independent legal advice, and this resulted in a submission I have made to the petitions committee about my petition PE01705, now lodged and having been considered once. The petition aims ask the Scottish government to make suitable changes in the law such that wildlife crimes will likely reach court for a decision on admissibility.

This also leads me to suggest, as a completely separate matter, that members of the ECCLRC might themselves consider these general questions, which do not relate to any specific case or cases, but consider existing laws and admissibility.

I sent a letter on 22 February 2019 to the head of the Wildlife and Environmental Crime Unit at COPFS asking these questions, copied to the convener of the ECCLRC and others. As of 6 March 2019 I have not received an acknowledgement from COPFS. I did suggest that COPFS may wish to answer the questions direct to the convener if that was preferred, but I would not necessarily be aware of that. I said in the letter that if “I do not receive either acknowledgement or an answer in a reasonable time that you still do not consider it necessary or appropriate to communicate with me.”

I have therefore taken the decision to make a submission to the ECCLRC, giving my opinion as to the answers to the questions. These answers have the benefit of independent legal advice, and this submission is made with the benefit of that advice, although extracted from a submission about PE1705, and are phrased somewhat differently. The questions are intended to be general, phrased in such a way as not to openly question any decisions made by COPFS, although they do directly relate to decisions.

The questions and my answers are as follows:

These questions are:

Question a) Is the statutory access right granted by section 1(2)(b) and 1(4)(b)of the Land Reform (Scotland) Act (LRA) to cross land granted to persons who may have intent, should an unlawful act be encountered, to take further measures including reporting the possible unlawful act to the police, and other actions, whether a perceived unlawful act is discovered or not?

Answer a) Yes

Question b) Is this a separate and additional right to that granted under 1(2)(a), 1(3) and 1(4)(a), which considers the purposes of the right to be on land?

Answer b) Yes

Question c) Provided that a perceived unlawful act is encountered in a public place and other conditions are satisfied, does the Regulation of Investigatory Powers (Scotland) Act 2000 under 1(2)(c), which includes the words: “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance”, grant persons the right to conduct surveillance activities without prior authorisation? Matters such as privacy and authorisation issues are more fully considered in the Office of Surveillance Commissioners 2016 Procedures & Guidance document Section 279 and elsewhere issued by the Investigatory Powers Commissioner’s Office, and also in the Covert Surveillance and Property Interference Code of Practice section 3.30. published by the Scottish government.

Answer c) Yes

Question d) Should an individual such as myself encounter what they believe to be an unlawful trap when exercising rights under the LRA, what can such a person lawfully do in the way of actions preparatory to informing the police at the soonest opportunity of the presence of the trap, which would or would not not be permitted under the LRA, and which typical actions which an individual might undertake would not be able to be able to be excused due to a perceived irregularity?

Answer d) An individual has the right to take evidence, preferably without disturbing the scene of the probable unlawful act, including noting GPS coordinates, taking photographs, setting in place long time video and audio recording devices, whether automated or not, taking notes of anything which may be of interest to the police, and leaving security marked substances on the site which can be later be used to confirm if a particular person was likely at the scene after the substance was put in place. The individual should inform the police as soon as practicable of the actions taken, if they are unable to make an initial contact with the police from the location. If the police ask the individual to remain at the location and he is able to do so, he should comply with that request, and if later asked, he should assist the police in retrieval of the data from any apparatus left at the scene. None of these actions would be considered irregular if the evidence is later presented in court according to Scottish law as presently exists.

Alex. S. Milne

6 March 2019

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A submission to the Public Petitions Committee in February 2019

I have finalised a submission about my petition PE 1705, to be ready for it’s second consideration by the committee. I do not know if other persons will also make submissions at this stage, but others have been asked if they would wish to do so. I submitted it on 22nd February 2019. I will learn after some time if I have transgressed any of the requirement for such a submission. It is now more than 11 months since I first submitted the petition, my knowledge has increased significantly (but I’m still no expert) and I have learned of another possibly relevant case case which was not made public.

I decided that I should seek independent legal advice, to review my submission, only for compliance with Scottish Law and make suggestions as to improvement. This in now final and I have submitted it to the clerk of the committee. Unfortunately it may need correction if it judged not suitable at present to go to the committee. I was going to wait for this review before making it public, but I believe I should go back to the legal team I employed to review the corrections, if there are any, so it may take some time. I have already noted an error in the first title line, despite looking at it repeatedly

Petition PE1505: Wildlife Crime – penalties and investigation

Submission to Petitions Committee of the Scottish Parliament when PE 1705 is further considered in 2019

Alex S. Milne

Introduction

Since I submitted my petition in March 2018 my knowledge of the subject has increased, and I have been made aware of many things related to my petition of which I was unaware in March. This has led me to suggest (below) additional changes in the law which I consider necessary and would help facilitate the protection of natural and cultural heritage including allowing more video evidence to be heard in court than is presently the case.

I refer the Petitions Committee to the speech of Lord Hope in the case of Walton v Scottish Ministers [2012] UKSC 44 at paragraph 152. Although this part of Lord Hope’s speech is particularly focussed on legal standing, I would submit that it is especially relevant to this petition.

“But some environmental issues that can properly be raised by an individual are not of that character. Take, for example, the risk that a route used by an osprey as it moves to and from a favourite fishing loch will be impeded by the proposed erection across it of a cluster of wind turbines. Does the fact that this proposal cannot reasonably be said to affect any individual’s property rights or interests mean that it is not open to an individual to challenge the proposed development on this ground? That would seem to be contrary to the purpose of environmental law, which proceeds on the basis that the quality of the natural environment is of legitimate concern to everyone. The osprey has no means of taking that step on its own behalf, any more than any other wild creature. If its interests are to be protected someone has to be allowed to speak up on its behalf.” [emphasis added].

Protecting wildlife is something that requires the involvement of the general public if it is to be effective. Indeed, protecting the natural environment is a legitimate concern to the public, and such protection should not be stifled by the limitations of the Land Reform (Scotland) Act 2003 where the wildlife in question is in a public place.

Land Reform (Scotland) Act 2003

The additional changes to legislation are three proposed amendments to the Land Reform (Scotland) Act 2003 (“LRA”):

  1. By adding a new sub-section 1(3)(d):

“for the purposes of protecting natural or cultural heritage”;

  1. By adding a new sub-section 1(5)(c):

“gathering information or evidence for the purposes of protecting natural or cultural heritage”; and

  1. By adding a new to sub-section (9)(h):

“investigating and detecting crime except where a possible crime is detected while being on land which is a public place”.

My explanation of these changes are set out in Appendix 1 below.

I do not see a need for the second part of my petition to need a similar change, but I examine further the sentencing issue in Appendix 2.

Other Appendices are:

Appendix 3: The latest actions I have taken in support of the petition.

Appendix 4: The role of the Inspectorate of Prosecution in Scotland (IPS).

Appendix 5: The case of the Tillypronie gamekeeper.

Appendix 1: A consideration of a change of wording in the petition.

The key sources of information informing this petition are the communication between the Crown Office Procurator Fiscal Service (COPFS) and the convener of the Land Reform and Climate Change committee (ECCLRC), the notes of a meeting of the ECCLRC on 16 January 2018, the applicable legislation, and reports in the media.

The letter from COPFS dated 30 May 2017 where quoted here is in italics.

(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 (LRA) 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 am only going to consider the case of Craig Graham, who was charged with setting a baited ‘pole trap’. It is an easier case for me to consider in order for me to justify my assertions in this submission. The persons who discovered the baited pole trap, and many persons passing the location, would have realised that it was illegal. It has been stated in media “On 9 July 2015, during routine fieldwork, RSPB Scotland Investigations staff discovered a pole trap on the Brewlands Estate in Glen Isla, Angus.”

I will look first to see if the RSPB Scotland staff were acting in accordance with the LRA up to the point where they noticed a set pole trap. The LRA allows under sub-section 1(2) (b) “the right to cross land”. Sub-section 1(4)(b) of the LRA states that: “[The reference] 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.” Had the RSPB staff not been interrupted in crossing the land by the discovery of a set baited pole trap, they would have reached “another such place”.

They were not necessarily exercising rights under sub-section 1(2)(a) of the LRA being “the right to be, for any of the purposes set out in subsection (3) below, on land;” and in terms of sub-section 1(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.”

It should be noted that these are additional rights to those under sub-section 1(2)(b) which are independent of those described by the letter as ‘investigating and detecting crime’ as these would likely be rights under sub-section 1(2)(a). It may well be possible for me to suggest that the RSPB staff were not ‘investigating and detecting crime’ whilst crossing the land, perhaps as it may be assumed that the discovery of a crime could not be predicted in advance but I do not need to show that as the rights under sub-section 1(2)(b) are not dependent on any conclusion as to purpose other than crossing land, and which they were doing until the discovery of an illegal trap.

I will now examine the next actions of the RSPB personnel, after discovering an illegal set baited pole trap and placing a concealed camera. That activity can now be described as undertaking covert surveillance and has changed from having the “the right to cross land”. However sub-section 1(2)(c) of Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) states: “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance.”

It is appropriate here, although not enacted legislation, to quote the Covert Surveillance and Property Interference Code of Practice for a fuller understanding: “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.”

The covert surveillance, whilst not, and not needing to be, authorised, was the correct immediate response to events permitted under RIP(S)A.

Additionally, it is noted that 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 RSPB personnel reported their actions to the police as soon as practicable and returned with the police in cooperation who investigated the crime and recover the data from the concealed camera. The police, after taking the lead in the investigation, were presumably able to identify one of the individuals and Craig Graham was charged probably under the Wildlife and Countryside Act 1981 (WCA). I intentionally do not consider why the head of the Wildlife and Environmental Crime Unit in COPFS did not consider this in the letter she was asked to write in reply.

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.”

I have already shown that authorisation was not necessary in the case I am examining in detail. The admission of video evidence in a public place, and this is a public place, such as from CCTV, police video cameras, and dash cams is well established, and the procedure for authorisation, which needs to be sought in advance of any setting of a camera, is well known to Crown Counsel. The paragraph does not state that it does not apply in the case of Craig Graham. In my opinion, it is in error in the case of Craig Graham.

My view is that the case referred to by Crown Counsel of Lawrie v Muir 1950 JC 19 confers discretion on what is and is not an irregularity. I find it regrettable, to say the least, that Crown Counsel formed the view that the video evidence was inadmissible.

“(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.”

That is true, in that it does say that. It is a Code, nevertheless. However, the implication here is that the land manager (who may face prosecution under vicarious liability legislation) and in this case his employee are protected from the actions of persons who have already discovered a crime. Does this require to be excused? There is no suggestion that the persons were undertaking surveys of natural or cultural heritage, they were not. They were seeking to assist the police whom they subsequently advised of the offence and the actions which they took. They needed no authorisation as a crime had been committed and the correct immediate response was taken exactly in accordance with RIP(S)A. I do not see how any reasonable person could require that such action even needed to be excused.

(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 first section is correct and the police even may have used this power after they were informed by those discovering the crime. The second sentence is true but I can only classify this as a ‘red herring’ as it has no validity in either of the cases which were reviewed. Neither case would be considered ‘serious’, carrying a maximum sentence of 3 years or more and authorisation, of necessity, in advance could never be granted; indeed my petition seeks to remedy this. I can see no relevance for this paragraph at all, but it is likely to have confused others.

Having discounted each of the 3 listed context items in the one case I am reviewing, the only item which may have some validity is that these persons were not allowed to be on the land for the first reason considered: “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.”

Crown Counsel may well have decided that RSPB personnel, if they have not been invited on the land either by the police or the owner, are not permitted to be on any land in Scotland where access is granted under the LRA to individuals, despite or because of their necessity to cross land as part of their fieldwork. It may also apply to myself or other members of the public, when they cross land equipped with suitable cameras to remotely monitor and/or covert cameras to use if they were ever to detect illegal activity. It may be that they believe that the separate right to cross land is overruled by this decision. Whilst I do not agree with this conclusion, I have decided that my attempt to allow more video evidence to reach court should be by means of changes to the LRA in addition to my suggested amendments to the WCA. It may allow some cases to go to court which otherwise might not do so, and that is the aim of my petition.

It should be noted that I believe, and may well have demonstrated, that no change in the law is required at all in this case, but given the approach taken by Crown Counsel it would clarify the position for the use of such material in other cases and put the question beyond doubt of whether or not evidence gathered by the public can be led, so I suggest the wording of the proposed changes in the LRA may be appropriate for consideration.

Again, to repeat the words of Lord Hope, “the natural environment is of legitimate concern to everyone”. Our justice system must be able to rely on evidence provided by the public if wildlife crime is to be tackled more robustly.

Appendix 2: Wildlife crime sentencing considerations.

The petition was clear in its reasoning, and I see no need to change it. However, I would suggest that in order to ensure that the police have all the necessary powers at their disposal to ensure that those who are suspected of a wildlife crime (including land owners and managers for vicarious liability) that the proposals are implemented to enable cases against those committing wildlife crime to be investigated thoroughly. The law presently allows those in charge of large landholdings to conceal the true identity of individuals who might be suspected, and an entity which makes claims for government farm subsidy payments is not required to be registered in such a way as to be identified at individual level. The Poustie report may or may not have included this in its brief, but perhaps the government or MSPs in their consideration of its implementation may wish to bear this in mind. This is not part of my petition, but MSPs may wish to be aware of this.

Appendix 3: The latest actions I have taken in support of the petition.

Although the Cabinet Secretary for the Environment, Land Reform and Climate Change committee (ECCLRC) suggested in a letter to my MSP, Ms Maureen Watt, that I should write to the COPFS to see if it was possible to obtain further information on the decisions taken in relation to the cases, despite several attempts to arrange some communication or to ask questions, I was unable to have any substantive communication with COPFS.

The COPFS letters I received had two common themes: There was no possibility of any form of communication between us, and the suggestion that “you may wish to seek independent legal advice.”

As a result, I have indeed sought independent legal advice, and this submission is made with the benefit of that advice.

Appendix 4: The role of the Inspectorate of Prosecution in Scotland (IPS)

The Criminal Proceedings etc. (Reform) (Scotland) Act 2007, Part 5 states: “The Inspector is to submit to the Lord Advocate a report on any particular matter connected with the operation of the Service which the Lord Advocate refers to the Inspector.”

The inspector is thus limited by statute in which matters to investigate and report upon, and hence limiting independence. This was made clear in submissions during the preparation of the Inquiry into the role and purpose of the Crown Office and Procurator Fiscal Service conducted in 2016/2017.

I felt that the IPS could usefully have a role in ‘conflict resolution’ which might both assist where there were conflicting views and help morale. The correspondence may be found here.

The Chief Inspector did write to me, although I was already aware, explaining that: “For clarification, please note that the Inspectorate of Prosecution has no authority or remit to review decisions taken by the police or the prosecution service relating to individual cases or for any legislative changes.”

The only person able to request such a report from the Chief Inspector is the Lord Advocate.

Of course, it may be assumed that I would desire that the Lord Advocate confirm that the Scottish justice system is fit for purpose by requesting that the Chief Inspector issue an independent report (with a copy to Cabinet Secretary for Justice for information) within 28 days into the decision by Crown Counsel in relation to the case against Craig Graham and any case which was made or could have been made by COPFS in the matters involved in the SNH restriction 02/2017. The report need only list the areas of law covered, and in the areas where a court would be bound to find that evidence was inadmissible, give a short reasoning.

That is, however, not likely to be a possible result from my petition submission.

Appendix 5: The case of the Tillypronie gamekeeper.

After I submitted my petition originally in March 2018, the Guardian newspaper printed an article about another case which had no official public exposure. I am going to assume that it is true. Further, I am going to assume that the unknown person referred to in the article who set a pole trap in March 2014, apparently in very similar circumstances to the Craig Graham case, was the only person to have been issued a personal restriction in Scotland by SNH, in September 2017, General Licence restriction 02/2017. The restriction gives next to no information. There are two conclusions I make from this.

Firstly, that the case was ongoing in some way from March 2014 until September 2017. The protocol SNH has in place for restrictions in licences requires the police to report cases where there is insufficient evidence for a prosecution but enough for a restriction to be applied. This suggests that the police made the decision, or perhaps were told of a decision, only after more than three years had elapsed.

The second conclusion is that the case was likely under consideration, possibly by COPFS, and may even have been a factor in, or subject to, the same considerations as the decision to bring the known proceedings to an end by Crown Counsel. I do not know how this delay came about and my conclusions could possibly be explained by any other means of which I am not aware, but I do not consider that it is likely. Truthfully, I was very concerned when I learned of the article’s contents, and believe it to be relevant to my petition. Had I been aware of the matter at the time of my petition or the actions I took prior to that time, I might well have been able to cover the case. As it is, I can only hint at its relevance, and wonder why was I not aware in a country where I thought cases were able to be known, even in a very restricted way in some cases, to the public during a period of more than three years?

Alex. S. Milne

February 2019

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Another attempt to ask questions of COPFS in February 2019

On 22nd February, I decided to try for a final time to ask 4 questions of COPFS, in order that I could inform the ECCLRC of the questions and answers to the questions, or, failing that, for COPFS to inform the convener of the committee of the answers to the questions.

The ECCLRC has not yet considered the 2017 wildlife crime report. I assume that this will be held soon, as the 2016 report was discussed on 15th January 2018. This would be an ideal opportunity to raise the issue of admissibility again as it was discussed last year, but it cannot be assumed that the meeting will cover the issue again. These questions are at the heart of my difference in understanding of the law and admissibility in relation to particular wildlife crime cases from that proposed by Crown counsel as set out in the letter from COPFS to the convener of the committee on 30th May 2017.

I will not include the full text of the letter, but here are the questions:

a) Is the statutory access right granted by section 1(2)(b) and 1(4)(b)of the Land Reform (Scotland) Act (LRA) to cross land granted to persons who may have intent, should an unlawful act be encountered, to take further measures including reporting the possible unlawful act to the police, and other actions, whether a perceived unlawful act is discovered or not?

b) Is this a separate and additional right to that granted under 1(2)(a), 1(3) and 1(4)(a) of the LRA, which considers the purposes of the right to be on land?

c) Provided that a perceived unlawful act is encountered in a public place and other conditions are satisfied, does the Regulation of Investigatory Powers (Scotland) Act 2000 under 1(2)(c), which includes the words: “otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Act to be sought for the carrying out of the surveillance”, grant persons the right to conduct surveillance activities without prior authorisation? Matters such as privacy and authorisation issues are more fully considered in the Office of Surveillance Commissioners 2016 Procedures & Guidance document Section 279 and elsewhere issued by the Investigatory Powers Commissioner’s Office, and also in the Covert Surveillance and Property Interference Code of Practice section 3.30. published by the Scottish government.


d) Should an individual such as myself encounter what they believe to be an unlawful trap when exercising rights under the LRA, what can such a person lawfully do in the way of actions preparatory to informing the police at the soonest opportunity of the presence of the trap, which would or would not not be permitted under the LRA, and which typical actions which an individual might undertake would not be able to be able to be excused due to a perceived irregularity?

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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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