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
to Petitions Committee of the Scottish Parliament when PE
further considered in 2019
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.
refer the Petitions Committee to the speech of Lord Hope in the case
of Walton v Scottish Ministers
 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.
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].
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
additional changes to legislation are three proposed amendments to
the Land Reform (Scotland) Act 2003 (“LRA”):
By adding a new sub-section 1(3)(d):
“for the purposes of protecting natural
or cultural heritage”;
By adding a new sub-section 1(5)(c):
“gathering information or evidence for
the purposes of protecting natural or cultural heritage”; and
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
explanation of these changes are set out in Appendix 1 below.
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
3: The latest actions I have taken in support of the petition.
4: The role of the Inspectorate of Prosecution in Scotland (IPS).
5: The case of the Tillypronie gamekeeper.
Appendix 1: A consideration of a change
of wording in the petition.
key sources of information informing this petition are the
communication between the Crown Office Procurator Fiscal Service
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.
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.”
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.”
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
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
the purposes of carrying on a relevant educational activity; or
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.”
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.
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
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.”
covert surveillance, whilst not, and not needing to be, authorised,
was the correct immediate response to events permitted under RIP(S)A.
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.”
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.”
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.
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.
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.”
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.
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
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
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.”
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.
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.
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.
2: Wildlife crime sentencing considerations.
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.
3: The latest actions I have taken in support of the petition.
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
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.”
a result, I have indeed sought independent legal advice, and this
submission is made with the benefit of that advice.
4: The role of the Inspectorate of Prosecution in Scotland (IPS)
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.”
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.
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.
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.”
only person able to request such a report from the Chief Inspector is
the Lord Advocate.
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.
is, however, not likely to be a possible result from my petition
5: The case of the Tillypronie gamekeeper.
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.
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.
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