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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“A constable who enters any land in the exercise of a power conferred by this section—
(a)may—
(i)be accompanied by any other persons, and
(ii)take any machinery, other equipment or materials on to the land,for the purpose of assisting the constable in the exercise of that power,
(b)may take samples of any articles or substances found there and remove the samples from the land.”

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

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

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

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

I will only comment on the statement “I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision.”  I do not blame Dr Glover in making the assumption that authorisation in either cases considered in the correspondence could have been obtained. The option of “asking Police Scotland to obtain the relevant authorisation required” was not available. Here is the quote from the correspondence from COPFS:  “Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance.” Well they do have such powers, without doubt, but it should have been made clear that in neither of the two cases under consideration could the police be authorised to undertake covert surveillance. This is because the charges which were investigated were not for a serious crime, defined as that which has a maximum sentence of 3 years or more. I have searched for a reason why the sentence was written, but can not find any reason for it to have been included in the letter, and am reasonably confident that in neither case could authorisation be obtained. The sentence is not only superfluous, in these cases it is close to being mendacious. For the reasons stated above, however, and as is fairly normal in Scotland where video evidence is used in court, it is not uncommon for there to be no prior authorisation.

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The information I need from COPFS

Note This is subject to change, as are all posts, where errors are detected.

History. My MSP was contacted by the Cabinet secretary for the Environment, Climate and Land Reform committee (EECLRC) suggesting that I could contact the Crown Office Procurator Fiscal Service (COPFS) about my concerns over the correspondence between the two organisations. I did contact them, but did not have a constructive communication. I was of the opinion, along with some persons at COPFS as was suggested by the representative of COPFS at a discussion on the 2016 wildlife crime report, that the existing legislation would allow the cases considered to go to court. This makes the determination of the legislation I suggest even more difficult, as I need to locate the precise reasons for the decision, which I did not detect.

I’ll first list why I need information from COPFS. I have studied the correspondence between COPFS and the convener of the EECLRC, the Law in relation to the correspondence and other legislation to which others have referred. I am concerned that because I do not think the correspondence made sufficiently clear the reasons that the prosecutions were discontinued  I may not be able to suggest changes to legislation which are effective in allowing more cases to allow video evidence to reach court.

I do not wish to suggest legislation change which would be ineffective.

I wish to suggest something close to what is required to allow video evidence in wildlife crime cases where there is a clear offence already committed, and a suggestion that video evidence may be considered admissible if there is an incidental recording of an offence, but prevent there being as many covert cameras on estates as there are traps. The output from prospective covert cameras without some scientific purpose when an incidental offence has been detected, and without a crime having been committed should not be admitted in court. I thought that the present legislation should have allowed and disallowed evidence seen by COPFS to be as this, but apparently not.

The wording, and which legislation to amend, needs careful thought.

I cannot ask COPFS to confirm if the series of suggestions I am already considering are fit for the purpose I have in mind, as that is a function of the government and the Scottish Parliament, but if I have a full understanding of the reasons for the decision not to proceed, I may then make a proposal which may go some way to achieving the above aims. It may not even be possible to frame legislation which permits this without consequences which are not intended, but if I can get close, future cases which come to light may be treated more in the manner which I seek.

If I assume that I may ask COPFS some questions, although that is probably not likely at present, I will set out here what the might be, after consideration of the difficulties they, the police and I faced when looking at the issue of the 2 cases covered in the correspondence.

Looking logically I will go through  a process which I would do if faced with the 2 cases, and then frame questions to myself and then later to COPFS as I go though the process. There is a lot to cover, but really I only need to ask a few questions, but it is better to do it thoroughly, without letting irony, sarcasm or scepticism intrude.

Is there a major source for the legislation which could result in a charge being brought, and what can a policeman or member of the public do? The 2 cases are different, so first the Graham case, setting a trap in the open. The law listing the type of trap is the Spring Traps approval order. The type of trap must not be set on a pole or in the open. A member of the public may report such a trap to the police, but it is clear from the correspondence that a covert camera may not always be set by a member of the public. A policeman may carry out searches and do other things listed in Section 19 of the Wildlife and Countryside Act 1981 (WCA) which includes, the interesting sentence: “A constable who enters any land in the exercise of a power conferred by this section—
(a)may—
(i)be accompanied by any other persons, and
(ii)take any machinery, other equipment or materials on to the land,for the purpose of assisting the constable in the exercise of that power,
(b)may take samples of any articles or substances found there and remove the samples from the land.”

It may be the case that this would allow the setting of a covert camera, and it may be applicable in this case. It should perhaps be considered as permissible and allow a court to decide. Finding  an illegal trap is not the same as finding the individual who has set it, which is necessary if a conviction is to result, as the traps f do not need to be marked with the identity of the person who set them. The more regular method would be to obtain authorisation, but the present law does not allow authorisation to be obtained by the police. This is the second prong of my petition. I will not cover other charges which might be brought.

The second case, brought against Stanley Gordon, involved shooting a hen harrier sitting or flying from a nest. This is an offence or offences under Section 1 of the WCA. A member of the public or policeman if this is seen may film this at the time, if the person committing the offence has not seen him/her, and it would likely be lawful. As the offence could not be foreseen a policeman could not set a covert camera in the same manner as in the Graham case under section 19, and authorisation may not be obtained. The correspondence suggests that a covert camera may not be set by a member of the public on a nest, unless given permission by the landowner.

I shall cover other legislation, not covered in the correspondence, but which I will refer to later, as this could have resulted in charges had the cases been proceeded with. This is the Regulatory Reform (Scotland) Act 2014 which covers vicarious liability by persons for certain offences by employees and agents in Chapter 4. These persons could be the same as the owners mentioned in the Land Reform (Scotland) Act 2003 (LRA). Thus offences committed by the persons in the correspondence might also be assumed to be an possible offence by the owners.

Having determined some of the charges which could be brought I  therefore need to move to saying which legislation or common law aspects were crucial in the 2 cases in the decision not to proceed. This will result in questions to COPFS, I’m sure, although I have none so far.

There correspondence makes clear the opinion that there were irregularities committed by the persons on the public places in both cases considered in the correspondence. These were in relation to the LRA. The correspondence states: “The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.”

The European convention on human rights(ECHR) Article 8 which covers the right to privacy. In Scotland the application of this is guided by  OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. The Covert Surveillance and Property Interference Code of Practice in Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” The effect of the guidance and code is that under some circumstances the need for authorisation, particularly where information may be lost due the delay in obtaining authorisation , is removed and obtaining information about someone engaged in crime in a public place has their rights to privacy reduced. The ECHR Article 8 was not mentioned in the correspondence, but others have suggested it may have had a role. I assume that it may be the case that irregularities in persons being on that public land cannot expect that these irregularities may not always be excused in the same way as ECHR irregularities are excused.

That leads me to suggest that it could be assured that such irregularities might need to be excused by legislation either in the LRA or the WCA, more likely the LRA. This would have the effect of overriding the “common law of admissibility” aspects. I need to ensure that I have understood this correctly, which could be the subject of this question.

Question 1. Irregularities in ECHR Article 8 may be excused both in relation to a need for authorisation and due to being engaged in a criminal act. In the cases considered in the correspondence, was it deemed that the circumstances did not allow the irregularity in the Land Reform (Scotland) Act 2003 to be similarly excused, and does that apply to both cases?

It is also best to ensure that ECHR Article 8 was not considered because the irregularity referred to was enough of itself that the ECHR need not be considered. Others have mentioned the application of ECHR Article 8 to the cases.

Question 2. Was it the case that ECHR Article 8 considerations of the privacy of the owner and others who might be committing a criminal act did not need to be considered as the irregularity for the purposes of the common law of admissibility had effectively made that unnecessary?

and, to ensure that I have understood the application of the ECHR Article 8 correctly, and for completeness,

Question 3. Please also confirm that in Scotland, dependent on the circumstances, irregularities in ECHR Article 8 may be excused both in relation to a need for authorisation where loss of evidence which may potentially be obtained might occur is a consideration and due to being engaged in a criminal act.

Finally, I would reaffirm that my major concern about the latter from COPFS involves the sentence: “Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance. ” The sentence to my mind implies that it might have been possible to the police to obtain authorisation in one or both of these cases and a person even with some legal knowledge might come to that conclusion from the sentence. I can find nowhere that there is any possibility. that in these 2 cases under consideration, that the police could obtain authorisation.   This, I admit, has even led me to question the motives of including the sentence in the letter as I can find no validity for it’s inclusion, as the letter purports to justify the actions of the COPFS only in relation to the two cases. If I ask the question, when I’m fairly sure of the answer, it could be considered inflammatory, and perhaps it is. It does not help me in determining the appropriate change in legislation, which is my only reason for approaching COPFS at this stage.

Question 4. Please confirm if, in either of the 2 cases considered in the letter, the police could have expected to obtain authorisation to undertake covert surveillance.

I have approached COPFS for a second time following the petition becoming open on the Scottish government website. It was not acknowledged, much less answered. I shall write again, to try not only to get an acknowledgement, but to ask the specific questions 1 to 3 as the only communication I need between us to allow me to have the information I need to change the legislation I proposed in the petition to something addressing the specific concerns of COPFS which led to the decision not to proceed with the two cases.

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Choice of wording to allow video evidence in court

The present wording is:

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

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

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

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

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

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

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

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

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

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

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

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

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My beliefs and aims

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

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

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

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

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

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

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

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

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

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

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

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

Now it may be that the landowner or employees may not have set the trap. The privacy of a person not employed by the estate would not concern the landowner presumably, and the privacy of the person committing the crime need not concern us because under OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. However, is the middle if a moor a private place? Fortunately the Criminal Justice Act 1972 Part III section 33 defines it : ““Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”. Thus in Scotland most of the land mass is a public place under the Scottish Outdoor Access Code.

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

Could there be another reason for authorisation to be required? Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” It seems to me that this confirms that authorisation is not required.

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

Update 22 Aug. 2018

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

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The hoped for effects of the Petition, now open.

The petition is now open today 16th August 2018, and is online at :

Petition PE01705

I had originally asked that I would not collect signatures, but would allow comments on the petition. This apparently cannot be done, so people may give signatures and comment on the website above. There can be no mention of this website on the government site, apparently. Thus I need to have a reasonable number of signatures to show support to the committee, but I would also request comments on this website if I have made any errors in my understanding of the law, in order that I may make corrections. I am hoping that when the petitions committee reviews the petition, then it will be forwarded to either or eventually both of the Environment Committee (EECLRC) or the Justice Committee. The petition will, I think, be described as lodged after 4 weeks.

If the petition is forwarded for review by another government committee, at that point I intend to make a longer submission to that committee and possibly some others may wish to make submissions, such as Scottish Lands and Estates (SLE), the RSPB, etc.

The easiest part of the petition to get legislated is the request to increase some penalties for wildlife crime to at least 3 years. Penalties are under active consideration at present. I understand that the penalty under consideration is 2 years, which would not allow the police to request permission to set covert cameras. I hope to be aware of that reaching parliament, which may be before the petition goes through all these procedures.

If that passes, and the penalty is increased to 3 years, anyone discovering say a pole trap, could advise the police, who could then apply for permission to set a covert camera. If permission is granted, and only then, a camera could be placed, although I remain to be convinced that in some cases authorisation is not needed even at present. A camera placed before then might prevent a case coming to court. Authorisation at the present moment could not be requested, and I’d like COPFS to be more aware of that.  As an extreme example of the use of the increase in sentences, it may also be possible, following on from this, that scientific researchers may wish to use cameras to conduct research into breeding success of say Hen Harriers. They could, if earlier they had requested permission to set a camera if a Hen Harrier if one decided to nest on a series of estates as part of the setting up of the project, but it had not sometimes been granted, and knowing that COPFS view the setting of a camera to check on breeding success as detecting and investigating crime where permission has not been granted, all the cameras in the project could be part of a request for authorisation via a police wildlife crime officer, who might be interested in seeing any potential crimes thus uncovered. I’m not sure if this would be likely, but even the possibility is a remarkable change. It may also be a consideration that the penalty for vicarious liability needs to be increased to at least 3 years, as it has been suggested that at least one case has failed due to the inability to identify the land manger. If the penalty is increased, the police powers may allow more targeted searches which could reveal the correct person to charge with an offence. This is not part of the petition, and I have not investigated this fully.

The second part of the petition relates to getting the case to court, following previous cases which have not proceeded. This requires a single minor legislation change by means of an amendment to the Wildlife and Countryside Act 1981.  These cases were decided on common law, and were thus not necessarily in Scottish legislation. The petition seeks to make it more likely that cases would proceed to go to court, without overriding greatly the common law aspects. It is essential that I make a full consideration of the correspondence between COPFS and the EECLRC to help inform me of the correct change in the law necessary.  I have now realised that there is no way for me to know if the minor change proposed would allow similar cases to those which were not proceeded with might then reach court. COPFS cannot advise on legislation, as that is the prerogative of the Scottish Parliament. I would hope that if the petition succeeds in the government tabling the amendment to the Act, that they may ensure that the Crown Office agrees that it would achieve the expressed desire on at least some occasions. In July 2013 Environment Minister Paul Wheelhouse said that he would be urging the Crown Office to consider the use of video footage in cases against those committing wildlife crime, and this has singularly failed. I hope the petition may rectify this. The difficulty I have had in reading the reply from COPFS is that I may have not fully grasped why the cases were discontinued. Neither RIP(S)A or clause 8 of the EHCR were mentioned, and it may be that COPFS consider that the common law aspects overrule any consideration of those, and how does one go about checking this? Certainly my opinion, formed since the letter was sent,  is that had these aspects been taken into consideration, the cases could have proceeded to court.

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

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

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

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

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

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

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

Recent Cases Involving Video Evidence
Following a defence challenge to the admissibility of covert video evidence obtained by
RSPB investigators in the case against Stanley Gordon, Crown Counsel carried out a
review of the relevant material bearing on that case and the case against Craig Graham.
Crown Counsel concluded that the placing of covert cameras was, in those cases, for the
purpose of detecting crime and, as that activity was not authorised, the subsequent video
evidence was obtained irregularly. The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible. In light of that conclusion it was appropriate that the proceedings were brought to an end.

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

The letter says: “The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.”

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

By way of context, it may be useful to mention the following:
(i) The statutory access rights granted by section 1 of the Land Reform (Scotland) Act
2003 are granted for specific purposes. The purpose of investigating and detecting
crime is not one of those purposes. It follows that someone who is on land for such a
purpose is not there pursuant to the rights granted under the Act.

I reject this statement outright, for the following reason:

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

I will give examples here:

The Crown Office could have said

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

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

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

Section 1  Access rights

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

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

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

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

(iii) The police have specific powers which they may utilise in appropriate cases in the
investigation of wildlife crime. In particular, section 19(2) of the Wildlife and
Countryside Act 1981 gives a specific power to constables to enter premises other
than a dwelling if the constable suspects with reasonable cause that any person is
committing or has committed an offence under Part I of the 1982 Act. Further, as you
will appreciate, the police have statutory powers (under the Regulation of
Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they
may, when that is permitted under the statutory regime, be authorised to undertake
covert surveillance.

The statement is indeed correct in Law. The fact that in the cases under consideration the police are not permitted under the statutory regime to undertake covert surveillance is not mentioned, which would require that the charges which were investigated was for a serious crime, defined as that which has a maximum sentence of 3 years or more. The last sentence is a misrepresentation of the present Law as it applies to the cases before the courts which carried a maximum sentence of 6 months. It may not have been intended to deceive but it certainly deceived Dr Phil Glover who has had an article published in issue 4 of the 2017 Juridical Review which contains this: “I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision. ” It sounds good, and I confess it would be a solution, and reading the letter from COPFS supports that view, but it can’t be done with crimes of this nature at the present time.

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

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

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

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

I am now going to attempt to consider the application of Article 8 of the EHCR to the case, regardless of whether COPFS stated that the cases failed due to the common law aspects. I need to be sure that the proposal I am making in the petition is sufficient to allow such cases to go to court in future.  I have not found it easy but I am comfortable with what I am saying about the references if they are applicable in Scottish Law and to the cases under consideration. Both of these references relate to the Regulation of Investigatory Powers (Scotland) Act 2000. This legislation in Scotland does not apply to any NGO or to a member of the public, but I see them as relevant as follows, firstly drawing from OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. Secondly I refer to the Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights occurs and an authorisation under RIP(S)A is therefore not appropriate.” I confess that I had some difficulty understanding the meaning of the sentence. I will give my present interpretation using my interpretation of both documents. Authorisation is not needed for directed surveillance if no private information is likely to result, and if a person is engaged in crime in a public place any information can not be regarded as private.

If my interpretation is correct, and it is applicable in these cases, then it is very important. I think that it is the power the police use when using CCTV or other video evidence and subsequently providing this evidence to a court. No authorisation is requested or needed. The police may already have to power to look at video evidence provided by someone other than themselves, and they do not need authorisation to do it in the cases under consideration. I am in fact not sure that they could not have set a camera themselves in cases where it is known that a crime has been committed  without needing to obtain authorisation. That did not occur in either case, however. I have been taking a new look at the statement “Further, as you will appreciate, the police have statutory powers (under the Regulation of  Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance”  in case it hints that authorisation may not have been needed or could have been obtained. However the obstacle to obtaining authorisation remains.

For information, the Criminal Justice Act 1972 Part III section 33 defines “Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise ”. This includes both places where the video evidence was obtained.

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

My conclusions

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

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

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

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

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

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

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

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

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

The letter from COPFS to the convener of EECLRC on 30th May 2017 said: “The police have specific powers which they may utilise in appropriate cases in the investigation of wildlife crime. In particular, section 19(2) of the Wildlife and Countryside Act 1981 gives a specific power to constables to enter premises other than a dwelling if the constable suspects with reasonable cause that any person is committing or has committed an offence under Part I of the 1982 Act. Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance. ” I would like the last sentence to be true in the case of specific cases such as those discussed in the letter. The letter made no reference to other cases. It is at present not true that the police in such cases can be authorised, and I find it strange that COPFS suggested that the power might be available to the police. I suggest then so as to avoid the blushes of COPFS, the Government passes the necessary legislation at the earliest opportunity.

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

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

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Post 3. The abandoned cases. The Craig Graham case.

First I will repeat that I have no legal qualifications. I actively seek comments which would allow me to correct the statements I make here about the law and it’s interpretation. This post cannot form part of my submission to any Scottish Government committee, but it will help me to prepare a more suitable submission. Please understand that I am not seeking to undermine the independence of the Scottish Justice system, and will take no action which leads to that. The petition does not have this aim either, and will not mention much of the contents of these posts.

I have no personal details of the case. My interpretation will be based on the media statements. All media statements need to be read with caution. The case was in media as follows:

BBC “A man has been charged with setting wild bird traps on a Glenisla country estate. Craig Graham, 51, is alleged to have set a “fenn-type trap”, baited with a pheasant carcass on a tree stump, between Bridge of Brewlands and Kirkton of Glenisla. Prosecutors say he repeatedly set the trap, which was likely to “cause bodily injury to any wild birds coming into contact with it”.”

BBC “Confidence in prosecutors’ ability to convict for crimes against birds of prey is being significantly undermined, according to RSPB Scotland. The charity has questioned the Crown Office’s decision to drop the case against a gamekeeper accused of setting an illegal trap. It has released footage which was due to be used in the trial purporting to show a “pole trap” being laid out. The case against Craig Graham has been discontinued. The Crown Office said video evidence provided by the RSPB in both cases was not admissible to the court because it was filmed for the purposes of gathering evidence. The charity has insisted that was not the case and that the crimes were recorded accidently. RSPB Scotland’s lead investigator Ian Thomson told BBC Scotland: “What has happened over the last few weeks has undermined our confidence significantly in that we’ve had two cases discontinued with absolutely no explanation. “It removes any opportunity for either ourselves or the police or anyone else who is engaged in tackling the scourge of raptor persecution to learn anything at all.””

The National: “Staff from the charity had filmed Craig Graham from Brewlands in Angus seemingly setting a “pole trap” designed to snap shut and break the legs of raptors. The barbaric traps were outlawed in 1904. The birds are protected by law, but can cause difficulties for game- keepers and land managers by attacking smaller birds, such as grouse, which are being reared for shooting. RSPB staff had discovered the trap in Brewlands on top of a pheasant carcass. With no phone signal to allow them to contact police, they made the trap safe and then placed a video camera pointing towards it. A few days later the organisation’s staff and a police wildlife crime officer returned to the scene to find the trap had been reset. The footage recorded allegedly showed Graham resetting the trap. He was subsequently charged him with four offences under the Wildlife and Countryside Act 1981. Police sent a report to the procurator fiscal, who marked the case for prosecution. Graham pleaded not guilty, and after six hearings, the trial was due to start on Monday. On Thursday, with little warning, the RSPB were told the Crown had dropped the case.”

Legal Eagle August 2017; Pole trap case abandoned.
…”on 25 April 2017, the Crown Office discontinued the case against gamekeeper 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 this year. On 9 July 2015, during routine fieldwork, RSPB Scotland Investigations staff discovered a pole trap on the Brewlands Estate in Glen Isla, Angus. This consisted of an illegally set spring trap placed on top of a pheasant carcass on a post. With no mobile phone signal to allow contact with the police, the trap was made safe and a video camera installed with a view to securing evidence until the police could attend. A review of the video footage showed an individual resetting the trap on two occasions, one of which occurred after the trap had fallen off the bait and triggered itself. The individual was reported for four offences under the Wildlife and Countryside Act 1981.”

There is enough here to work with, together with the letter from COPFS reviewed in an earlier post. This 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. Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime.” I will first say that the setting of the camera in this case was subsequent to the initial detection of the crime. The pole trap is easy to detect, by both humans and birds. It has been illegal for over 100 years,and the setting of the pole trap is a crime. The crime had already been detected, accidentally according to the media extracts above. The placing of the covert camera was plainly subsequent to the initial detection. The RSPB I assume did help the police subsequent to informing them of the pole trap at an early opportunity, but the police from that point on were in charge of detection and investigation, not the RSPB.

The articles make clear that the persons who made the discovery were RSPB staff. It should therefore be apparent that they may have been intending to detect crime, particularly as we now know that a crime had likely already been committed. The media extracts here seem to suggest that the RSPB personnel did not say they were detecting crime, and the discovery of the trap, and hence the detection were accidental. It is reasonable for a court to decide that the purpose of the RSPB staff being in that location was to detect crime. It is my contention however, that the role of the COPFS in this instance is only to look at the law in relation to the matter. The defence challenge was not from the representative of Craig Graham, so I assume that no evidence was led by them to suggest that the RSPB personnel were known to be detecting and investigating crime. That should presumably be done in the court where witnesses could be questioned as to their presence in the area and their intent. It did not get to court. I have also reviewed whether investigating and detecting crime is allowable under the Town and Countryside Act 1981 in a previous post so will not repeat the argument here.

I will therefore only look at the law and how the common law could be interpreted, just as the COPFS would have done. The RSPB staff, if they were passing through the area,  would have a right to be there.

The articles above make clear that they could not contact the police from the location. Any person may accidentally detect crime, however the police are the appropriate people to investigate crime, and the articles made clear that the RSPB personnel were well aware of that. They did report the trap to the police who did investigate, charging Craig Graham with an offence. The prosecution failed on the actions of the RSPB personnel so let us look at what they did and could have done. They could have reported to the police without placing a camera. You may think that the police could then have placed a camera or asked the RSPB to do so with the police in attendance, particularly as the COPFS said in the letter “Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance. ” I would ask you not to be swayed by this as the statutory regime does not allow the police to undertake covert surveillance where the crime only has a 6 month maximum sentence. It suggests the the police, when alerted by the persons discovering the illegal trap, could have applied for authority to subsequently set a concealed camera themselves or delegated the RSPB to do so under police supervision. It is a pity that it is not true. They could have approached the appropriate land manager to get permission. As the person charged was likely in the employment of the land manager, had a conviction of the person setting the trap occurred then the land manager would be facing a possible charge of vicarious liability if the land manager could at that stage be identified. The RSPB staff did not try to find a land manager, but informed the police, presumably as soon as they could do so. The only issue therefore is the setting of the camera after the discovery of the possible crime. It is important to reiterate that the people did not set the camera with any issue of the camera being placed for research purposes. They were well aware that a crime had been committed.

Having determined, as the RSPB staff, the police but not apparently COPFS were aware, that they could not ask the police to approve the use of a camera, we already know what they did. They set a concealed camera.

It is at this stage that the COPFS say that the error was made which drew them to the conclusion that the case could not be proceeded. It is stated that the setting of the camera was to detect crime and that they would be breaking the Scottish outdoor access code. That may be true because a land manager would be required to approve it. However COPFS also state that the police had not obtained authorisation for the camera, which would have to be done before the camera was placed. There are 2 issues here. The first is that the people setting the camera were not bound by RIP(S)A, and would not need to have authorisation and it is not available to them.  The second is that I believe that the police did not need authorisation to use the video evidence so obtained. The police were bound by RIP(S)A and may have needed approval to set a camera themselves. They did not need approval to use the video evidence and place it before a court. They do that all the time.

The only irregularity is the failure of the persons setting the camera after seeing an illegal trap to get approval from a potential criminal to set the camera in place. It appears in that case that a potential criminal has rights that overrule the failure of the non criminals to seek approval from him or her. COPFS state: “the subsequent video evidence was obtained irregularly. The  irregularity was not capable of being excused, for the purposes of the common law of admissibility…”. That would not be the decision I would take, and I reject it utterly.

It is important not only to consider whether the statement that  “the placing of covert cameras was, in those cases, for the purpose of detecting crime.” Crime detection in the Oxford dictionary is defined as: “The process of uncovering criminal activity (or verifying reported crime) and acquiring evidence in order to identify and prosecute its perpetrators.” In the post about the letter I said that in relation to the Land Reform (Scotland) Act 2003 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. Section 1 allows “the right to cross land.” In the media above it indicates that the trap was discovered during routine field work. From the statement about in the letter and the above it seems that “the placing of covert cameras” was when COPFS decide that the contravention of the Act occurred, not when they were crossing the land and came across the trap. When they placed the trap it might have been said that they were investigating a crime already detected, allowing the police to continue the process of both detection and investigation of the crime. I believe it might be the decision of a court that the investigation of an already detected crime could be excused. The detection of the crime, it seems, was not deemed an issue by COPFS, if you accept my assertion that to anyone would conclude  at the sight of a baited pole trap that a crime had taken place (or detected).  Again, this makes the decision somewhat strange.

The Land Reform (Scotland) Act 2003 already states in Section 3 “Reciprocal obligations of owners” Subsection (3) “In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights”. I would have thought that unlawful acts committed by an employee and hence possibly also by the land manager under vicarious responsibility legislation that this would be sufficient to allow a member of the public to provide video evidence to the police even if it was obtained in contravention of 3.64 of the guidance. It appears that the decision allows an employee and the owner to act illegally, in contravention of the Act whereas the person discovering an illegality cannot legally provide video evidence as corroboration to the police.

I think that this is an appropriate place to consider issues not raised by COPFS, but which I have considered in the preparation of this blog, because it has been suggested that it may be relevant, and I would like to show that someone committing such a crime can have no expectation that a video “is not obtaining information about them which is properly to be regarded as “private””. I assume that the police have the power to view video evidence  from a camera which has been placed by someone who is not bound by RIP(S)A. This is fairly routine for the police, who regularly use video from CCTV, their own sources etc. for which they have not previously sought authorisation. If the video evidence has been obtained subsequent to the police being made aware of the potential offence and the placing of the camera, I believe it is more than likely that no authorisation was necessary under the present legislation. It could even be, that if before placing the camera, the persons, if they had phone coverage, which it was stated that they did not, could have contacted the police who could instruct them to place a camera without authorisation, as it was recognised that a crime most likely had already taken place, and the evidence from the camera would be useful in the investigation.

I will look at this in respect of the blog by Professor Peter Duff of the University of Aberdeen. In his defence of the decision not to proceed, he says “the actions by the RSPB are a breach of the right to privacy of both the estate owners and their employees”.

An estate owner who does not take active steps to prevent the placing of pole traps is likely to be committing a crime of vicarious liability, and the employee is also likely committing a crime in setting the trap. Under OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. Additionally under Section 1.14 of Covert Surveillance and Property Interference Code of Practice as described elsewhere authorisation is not needed for directed surveillance if no private information is likely to result. My conclusion is that in setting the camera is not such a breach of privacy, and no irregularity in the obtaining of evidence has taken place.

It is important to again reiterate that I have no qualifications in law, these words are a result of my researches into finding a suitable set of words to enter legislation to allow video footage to be used in future cases. I am happy, but would not be delighted, to be persuaded that I have made errors.

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Post 4. The abandoned cases. The Stanley Gordon case.

First I will repeat that I have no legal qualifications. I actively seek comments which would allow me to correct the statements I make here about the law and it’s interpretation. This post cannot form part of my submission to any Scottish Government committee, but it will help me to prepare a more suitable submission. Please understand that I am not seeking to undermine the independence of the Scottish Justice system, and will take no action which leads to that. The petition does not this aim either, and will not mention much of the contents of these posts.

I have no personal details of the case. My interpretation will be based on the media statements. All media statements need to be read with caution. The case was in media as follows:

BBC “The charity said their camera recorded evidence indicating the hen harrier was shot at Cabrach in June 2013. Stanley Gordon denied illegally killing the bird of prey. The Crown Office said it had been concluded that the evidence would not be admissible in court. Duncan Orr-Ewing, head of species and land management at RSPB Scotland, said: “RSPB video evidence has been used in the successful prosecution of previous wildlife crime cases in Scotland. “We are appalled and extremely frustrated that the court has not been given the opportunity to give a judgement based on this footage, and we are perplexed by the inconsistency in approach to these cases that seems to be taken by the Crown Office. “We have written to the Lord Advocate and will be seeking urgent meetings with the Crown Office to consider the implications.”
‘Entirely appropriate’
A Crown Office and Procurator Fiscal Service (COPFS) spokesman said: “In accordance with the Crown’s ongoing duty to keep prosecutions under review and after carrying out a detailed review of all of the relevant material, Crown counsel considered that the inevitable conclusion was that RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution.”

The National “Stanley Gordon, from Cabrach in Moray, was charged with illegally killing a hen harrier in Moray, after RSPB video footage appeared to show him shooting the bird in June 2013. Gordon always denied illegally killing the bird. In both cases the Crown Office said video evidence was not admissible to the court because it was filmed for the purposes of gathering evidence.”

Legal Eagle August 2017 “On 20 May 2013, an RSPB camera was deployed on a moorland hen harrier nest containing four eggs on the Cabrach Estate, Morayshire to record the outcome of the nesting attempt – a routine part of the RSPB’s work for this species. Over the next three weeks the footage indicated all was well. However, on 10 June 2013 the female hen harrier was apparently flushed off the nest. This was followed by two gun shots and a shower of feathers could be seen. A few seconds later, a man carrying a shotgun entered the frame and moved towards where the hen harrier had flown. He then returned into view holding what was believed to be the carcass of the bird, and picked up a few feathers. On reviewing the footage, RSPB Investigations staff reported the incident to Police Scotland.”

 

 

There is enough here to work with, together with the letter from COPFS reviewed in an earlier post. This 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. Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime.” This case is distinctly different from the case of Craig Graham, and it deserves to he considered separately here. Setting a covert camera on a bird nest is standard practice and it can reveal much useful science including nesting success, nesting failure and video evidence can determine exactly what happened in most cases. This is undertaken on a regular basis not only on hen harriers, but also on many other species all over the UK. It is  normal part of a body such as the RSPB and I assume, not being a “birder”, that they work in conjunction with bodies such as the British Trust for Ornithology, Scottish Ornithology Club and various raptor monitoring groups throughout the UK in carrying out this work. You may ask why they need to use covert cameras. I’m sure it is because if the camera were visible it may modify the behaviour of either the birds or their predators, be they avian or mammalian. If a corvid were to use the camera as a perch, clearly the nest would be visible. The result would not only be a failed nest, it would provide bad science. Many estates allow the RSPB to place cameras on nests and I assume the necessary permissions are given. As virtually the whole UK has many “birders” any unusual bird which arrives in an area it is normally rapidly discovered, and the raptors which are present at nesting time would be reasonably accurately recorded  over most of the country. Equally the estates which could be relied upon to refuse permission to place cameras would be well known.  For these records to have general usefulness, it is important to cover a variety of habitats. Unfortunately there is  likely to be commonality between uncooperative estates and the habitat. The areas of the country covered are also important for good science to be conducted. I have no doubt that the Cairngorms National Park and the Angus glens (I have been told that no Hen Harriers successfully bred on grouse moors in the Angus glens between 2006 and 2017 on what should be prime territory) would show much commonality. It is important however that these “blackspots” have as much work conducted therein as the estates which would cooperate to give good science. Now in the UK it is likely that the RSPB would be to go to source for camera installation, and I assume it is one of the regular duties of the investigations team. It is not all looking at dead birds and deciding if it has likely been persecuted and sending the bodies off, I can imagine. Much useful science would come from their cooperation in scientific studies, and I have read about many of them.  This is not an aside to the legal issues, and it hopes to show that if a hen harrier is seen to be shot off it’s nest, it is not the only bird which will have nest cameras placed nearby, and a lot of them, such as on a wader for instance, cannot ever be deemed to be there for “the purpose of detecting crime” and “RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution.” The RSPB does not think this is the case and has robustly defended it’s actions.  I think it appropriate to remind people that we see on our television screens for the purpose of entertainment but nonetheless sometimes providing good scientific insight, views of animals placed by cameras less likely to be placed covertly as the intent is to capture good images and by removing foliage actually puts the animal in more danger. The scientific use of covert cameras is taking place far more often than those seen on television screens. These are most likely in places where the public in Scotland has a perfect right to go but are most unlikely to venture.

I will now look at the conduct of the owner and (likely) his employee in light of the Land Reform (Scotland) Act 2003 which states in Section 3 “Reciprocal obligations of owners” Subsection (3) “In this section the references to the use, management and conduct of the ownership of land in a way which is responsible are references to the use, management and conduct of the ownership of it in a way which is lawful and reasonable and takes proper account of the interests of persons exercising or seeking to exercise access rights. ” It is the unlawful acts by an employee and hence possibly also by the land manager under vicarious responsibility legislation that has caused the member of the public obtain on the camera the video evidence which COPFS say was obtained in contravention of the guidance and the Act. If the employee had not acted unlawfully in this way, the contravention by the member of the public would not have occurred.

There is a government sponsored scheme at present called “Heads up for Harriers”. This sets cameras on the nests of these most persecuted birds. It requires the land manager to give permission for the setting of the camera. For obvious reasons it is most unlikely that a crime would be committed against the birds on the nest. The science from these nests is already useful, if limited, and I understand that some grouse moors have recently joined the scheme. This is to be lauded, but concern has been expressed that there are many estates who have refused to participate. That is their right, but adds to the suspicion that many more birds are being killed or disturbed.

It is important not only to consider whether the statement that  “the placing of covert cameras was, in those cases, for the purpose of detecting crime.” In the post about the letter I said that in relation to the Land Reform (Scotland) Act 2003 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. Section 1 allows “for the purposes of carrying on a relevant educational activity” In the media above it indicates that The camera on the nest had been there for some time, and it is undoubtedly the case that much useful material has been obtained of an educational nature using this technique. This seems to have been missed by COPFS in their bold statement that: “The purpose of investigating and detecting crime is not one of those purposes.” when referring to section 1 and ignoring section which lists activities which are not permitted.

It seems strange however, that by not allowing a court to make that decision, which I assume would need to be backed up by strong evidence, that that was the decision taken in this instance. They must have been pretty sure, and it is strange that with such strong evidence, if indeed they did have such strong evidence, that they decided to discontinue the case rather than let a court make the decision in a more public forum so the public could have confidence in the decision, and remove the likely confusion on the part of the police who took the decision to charge.. It might indeed be the case that a court might excuse the behaviour upon examination. If this happened, the person convicted has every right to appeal. That would  allow an appeal court to decide on the issue with a public pronouncement that we could all accept. It is all very strange.

This case raises the simple issue of whether anything can be done about it.The petition which I have submitted should be simple and may do the trick. It does require the government to take some action, and I would suggest that it is done sooner rather than later. At the moment it has the same authority as an Act passed in the Scottish Parliament, an appeal decision or case law, issued always in my experience with competent public explanation.

The letter only came into public view when COPFS were asked to explain their thinking, which was a reasonable request. Without the letter we would be no wiser as the the thinking behind it, and I could not now be asking relevant questions. The letter with it’s reasons, however, is accessible to the public, which may not have been anticipated. The letter, whilst it still sits there is, I suggest, an embarrassment to the Scottish legal establishment, probably the butt of many jokes from other legal authorities. If my critique of the letter is correct, there is barely a statement which withstands scrutiny. The Scottish legal establishment, far from proclaiming “that the public can have confidence in an effective, rigorous, fair and independent COPFS”, as the Crown Agent wrote to the Justice committee in May 2017, embarrassed that it is in existence. Remember, and I am firmly in favour of this, the independence of the Crown Office must be maintained. The public and the government cannot act. The COPFS has rejected an opportunity that I was kindly afforded to communicate with them about the same matters in a more private format than this blog.

In addition my concerns over this statement, I would refer to my consideration of the letter and the Craig Graham case. Most of the criticism I make of the letter can be found in those previous posts.

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Some good news about the petition

I was contacted yesterday (Wednesday 18th July) by one of the civil servants about the content of the petition which confirmed that I would be receiving their suggestions about the petition shortly. Things are probably moving forward. I will not be revealing any of the discussion but will wait until the petition wording is agreed, and will give details of the petition when it is published.

There is no hurry, as I have now ascertained that the next session of Parliament does not commence until September. By then I hope to have developed more posts ready to have my arguments finalised if I have to give evidence to the Petitions Committee and beyond. I’m content with what I could write even now, but I’m sure that there are more good arguments available.

The email arrived today (Thursday 19th July), and I shall respond after reading it carefully and collecting my thoughts.

I expect that the first hurdle will be the Petitions committee. I do not think I need to have all my apples in a row even by then. The second hurdle(s) if the first is passed will likely be the ECCLRC and/or the Justice Committee. At this stage I imagine other parties will be able to submit papers for consideration by the committee(s). Both the RSPB and Scottish Land and Estates (SLE) are already aware of the petition as I sent a copy of my original petition to their representatives of both organisations, as they spoke at the Law Seminar in Aberdeen and I sent a copy to the speakers for whom I found an email address. The RSPB presentation was excellent, and gave me some references which I had never seen before. I do not expect SLE to support the petition, but I met both the representative of SLE and RSPB after the Seminar. My feeling, probably shared by many, is that the SLE representative seems a nice chap, but he is defending the indefensible. It is essential that my paper, which I assume I can submit, must be robust, understandable, and able to demolish any  counter argument put forward about how  the prosecution of wildlife crime is seen by COPFS. I do wish that even before (or if) my petition is approved for later incorporation in legislation at some stage I need to show that the COPFS reasoning is flawed, but the paper must also give strong reasons for the suggested changes.

As it is the duty of Parliament to set legislation, I do not expect that the Crown Office will have a paper, but they may be present in the background, and I personally would like to know their views some of which which were heard at a meeting of the ECCLRC in January of this year. I have sought their views previously without success.

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An quick update after the first day.

I have been had several helpful replies to my emails.

When I started the blog it was just a wish to publicise the petition which seemed to be dragging on. My researches (o.k. a google search) uncovered that the Poustie recommendations were on the Scottish Government’s Programme for Scotland 2017-18.  This would be the opportunity for one of the two parts of the petition to be enacted without much delay and thus seemed to me to be very urgent, and possibly too late to influence.  One of the replies included an update from the Cabinet Secretary for Environment, Climate Change and Land Reform which made clear that this is not the case as the legislation had not yet been prepared so my panic is over, and I can just wait until my petition proceeds through the system. I can then wait until it hopefully reaches the relevant committees. It would only reach panic stations again if the legislation appears before the petition reaches any parliament committees.

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New blog started on 14th July to promote my Petition, who can help and why.

I first decided to set up this website yeterday as I had been waiting what I thought was a long time. I was also concerned about the possibility that the Poustie report would reach the Scottish Parliament. I googled for it yesterday to find that it is listed to reach the Parliament in year 2017/2018.

I do not know if it has been passed, and it may already be too late.

One of the recommendations is that the maximum penalty for wildlife crime be increased to 2 years from 6 months. My petition has 2 aims, one is to increase the penalty to 3 years which would satisfy the concerns expressed by the Police representative at a meeting of the ECCLRC this year.

It is now too late for my petition to go through the process and hope to catch the optimum timing, which could I assume be achieved by an amendment to the proposal.

I have sent a link to this blog to my MSPs, the members of the ECCLRC and the Cabinet secretaries for Environment and Justice, and to the speakers at a Law Seminar on these matters at Aberdeen University.

I do not know any MSPs personally, and can only hope that it can be arranged that someone proposes an amendment to the bill as it comes to the chamber.

I’m sure that the person proposing the amendment could come from any party, as the change make a great deal of sense, and it would be dreadful to leave the Police force still powerless to investigate wildlife crime properly, as they have clearly indicated.

The difficulty is then that the amendment needs to pass by a majority. I would be the first to admit that the subject is unlikely to be a first priority for any MSPs.

I can only hope to reach a few MSPs by means of this blog.

My miracle solution is this.

Although any party is likely to propose the amendment, I feel that it is likely that the Tory Party will ask all its MSPs to vote against this, not because it does not make sense, but many of the people in Scotland whom it represents will not wish this to be passed for the obvious reason.

Thus I would ask the senior party members of all other parties to ensure that their members vote for the amendment if I or someone else can find someone to propose it. They would look pretty stupid if they let it fail for lack of interest.

I know it is not much, and I may be wrong about the conservative party, but it could work, and it is just like me to suggest it.

Here is the wording of the email sent today:

“Petition to the Scottish Parliament – Wildlife Crime

I am writing to you …. about a petition which I submitted to the Scottish Parliament on 15th March 2018.

I am not aware of how long a petition normally takes but each time I have telephoned I have been assured that it is a valid petition which is almost at the front of the queue but not quite yet.

My only concern over the delay, if indeed it is being delayed, is that the report available from a Review Group which was set up in the context of a Ministerial commitment to enhance the enforcement of wildlife crime particularly in relation to the level of penalties imposed. The Group, chaired by Professor Mark Poustie of Strathclyde University reported in 2015. It is expected that at some stage the penalty for wildlife crime will be increased to 2 years. This is not enough. If the penalty is less than 3 years it is not regarded as a serious crime and the police are limited in what action they can take in respect of a reported possible crime. They cannot, for instance, set up covert video cameras, and the searches they can undertake in detection of crime are more limited unless a crime is considered serious.

My petition seeks to increase the penalty to 3 years.

Further information may be found in a website I have set up to support the petition because the delay is starting to concern me. At least if you are aware of my concern if the Poustie recommendations come to the chamber you would be able to make yourself aware of the issue.

I need someone to propose an amendment to the recommendations, and am considering how to get an amendment to succeed, if I can get it into the chamber. I think I may have designed a foolproof way to have this happen, and will write an article later today once I have got my thoughts together.

The website is located at :

https://amilne.co.uk/Wildlifecrime/

I would be grateful if you could find the time to read at least part of the information. It would be a long read unfortunately due to the complex subject, but is divided into small chunks as posts.

Best Regards

Alex. S. Milne”

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The Law and other documents in relation to the matters in the Petition

Wildlife and Countryside Act  1981. (WCA) Section 1 is titled. “Protection of wild birds, their nests and eggs”, and is the likely Act under which a prosecution would take place.

Section 19 of the WCA says “A constable who enters any land in the exercise of a power conferred by this section—
(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.”

Land Reform (Scotland) Act 2003. This legislation and the associated Scottish Outdoor Access Code governs what activities may be conducted by people under Scots “Right to roam”.

The Criminal Justice Act 1972 Part III section 33 defines “Public place” includes any highway and any other premises or place to which at the material time the public have or are permitted to have access, whether on payment or otherwise.

Regulation of Investigatory Powers (Scotland) Act 2000. This legislation in Scotland does not apply to any NGO or to a member of the public but these sections of these documents may be of interest:

OSC’s 2016 Procedures & Guidance document Section 279 states:

“Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. But surveillance of persons who are not, or who turn out not to be, engaged in crime is much more likely to result in the obtaining of private information about them.”

Covert Surveillance and Property Interference Code of Practice is mainly applicable to police operations. Section 1.14 of the code states:

“RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights (Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”) occurs and an authorisation under RIP(S)A is therefore not appropriate.”

General Licence Restrictions Framework for Implementing Restrictions. This is a Scottish Natural Heritage document governing the issuing of general licence restrictions..

This was used in when General Licence restriction 02/2017 was issued to an individual for 3 years from 15 September 2017 which prohibits them from using General Licences during that period. It most likely relates to an unknown person who in March 2014 was filmed setting illegal traps close to a goshawk nest on Tillypronie estate.

The Spring Traps Approval (Scotland) Order 2011 lists in the schedule the types of traps which may legally be used, and the conditions which are attached to the use.

Examples of case law which may be applicable.

Lawrie versus Muir 1950 JC 19:
“Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime.”
The courts must balance “the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.”

Stewart v. Payne 2017 SLT 159

This decision was quoted by COPFS in the letter to the ECCLRC.  “It is important in the public interest that prosecutors exercise their judgment independently, robustly, forensically and objectively on the whole evidence available”.

Further reading.

Irregularly obtained real evidence: The Scottish solution? by Peter Duff School of Law, Aberdeen University which says:

“Thus, despite over 50 years having elapsed since Lawrie, in Scotland we are in a position where the leading text on evidence simply lists, without further explanation, a series of factors which the courts may take into account in determining whether to excuse an irregularity and admit improperly obtained evidence. These include: the gravity of the crime; the seriousness of the irregularity; the urgency of the investigation; the likelihood of the evidence disappearing if not seized immediately (which is connected to the previous factor); the authority of those obtaining the evidence; the good faith of the investigators; and the question of fairness to the accused (whatever ‘fairness’ means in this context). It is not at all clear from the jurisprudence why each factor is relevant, nor in what circumstances it should be taken into account, nor what weight should be given to it. On examining the relevant cases, it is difficult to avoid the conclusion that the decision whether to admit improperly obtained real evidence is made by courts on the basis mainly of a ‘gut reaction’ which is then rationalised with whatever factor or factors from the list above best justifies the decision. As yet, no principled, logical and coherent regime has emerged in Scotland to guide the courts in the use of their power to admit or exclude irregularly obtained real evidence and it is important that other jurisdictions should learn from this experience which has now lasted for over 50 years.”

The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions? Blog by Professor Peter Duff. which states: “Thus, COPFS is faced with the situation where the RSPB has covertly placed surveillance cameras on private land, probably at least partly with the aim of detecting individual instances of criminal behaviour and deterring other potential criminals from engaging in such behaviour in future. Thus, any evidence of a crime recorded by such cameras has been irregularly obtained and would require to be excused by a court before the recording could be admitted as evidence at a criminal trial. “

Raptor Persecutions and Prosecutions Take 2: How investigatory powers legislation read with human rights requirements might explain recent COPFS decision-making. Blog by Dr Phil Glover. This considers RIP(S)A and Human Rights acts aspects.

The Admissibility of Covert Video Data Evidence in Wildlife Crime Proceedings: A “Public Authority” Issue. Blog  by Dr Philip Glover who has had an article published in issue 4 of the 2017 Juridical Review which contains this: “I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision. ”

Abandoned hen harrier case – comment. Blog of Alan Stewart. In the post he states: “If anything positive can be taken out of this infuriating incident it demonstrates even more strongly the need for effective sanctions against wildlife crime on grouse moors. It is to be hoped that Roseanna Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform, will consider this as yet another extreme difficulty in convicting wildlife criminals, especially on driven grouse moors. I am so fed up with repeated wildlife crimes related to shooting estates that I’d much rather driven grouse shooting was banned altogether, though if this incident and the absence of a satisfactory outcome helps licence driven grouse shooting then we may consider there has been some sort of a result.” There are also several relevant comments about the post.

 

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Tillypronie Estate

When I submitted the petition I did not know about the video evidence of a possible offence on Tillypronie Estate.

This information came into the public domain on Monday 2nd April 2018 in an article published by the Guardian

This fits into the same category as the failed prosecutions which involved video evidence.

The possible offence took place in March 2014. Scottish Natural Heritage (SNH) issued a personal restriction in September 2017.

I do not know who the person is, and do not want to know.

I would like to know the following to assist in my understanding, which I will explain.

Was he charged by the police?

My understanding is that a report would go to the Procurator Fiscal, who would decide whether to prosecute the person arrested.

At that time the person would be required to attend court if the matter is charged at Summary Level (heard before a Sheriff only) then there would be a ‘Pleading Diet’ to tender their plea.

At this stage the Criminal Procedure (Scotland) Act 1995 requires that a trial is commenced within 12 months of the first appearance of the accused on petition in respect of the offence.

I assume that if the prosecution was started that information would be in the public domain, and the public would have known. I was not aware of a case going through the courts. It could be that a reporting restriction was placed on the court case, which seems strange as I can think of no reason this could have happened in an offence of this nature.

Did the police report the possible offence to Scottish Natural Heritage, once a decision had been taken not to prosecute, under the information sharing protocol? The information sharing protocol is mentioned in this  document.

As the personal restriction was only handed down in September 2017 it is reasonable to assume that something was going on in the intervening 3 years.

Is it correct that the COPFS seems to have taken over 3 years to decide whether to prosecute?

If that is the case then this case should be examined in the same way as the other 2 cases, as they were decided together or very close together before May 2017.

Is the decision in this case guiding the other 2 cases, which, although each is required to be  decided on its own merits, are so similar that a different decision in one case could not be explained?

Why was this person handed a personal restriction on the General licence?

Scottish Natural Heritage have on their website a document entitled “General Licence Restrictions – Framework for Implementing Restrictions”

I have read this several times. When combined with the possibly correct information from the Guardian I have concluded that the person could have been handed a personal restriction because by the time the police had informed SNH of the offence the owner of the estate at the time of the offence had sold the estate. 

Because there is no information in the public sphere, as none of these cases have been decided in court, although only the Tillypronie case has been kept as a state secret, the reasons that this case has not come to court is impossible to decide. It only makes it more imperative for the Crown Office to permit cases to come to court to allow these matters to be decided in a more public forum.

Addendum. In England and Wales, there is a memorandum of understanding published by PAW containing 4.4“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.“ I cannot find a similar document for Partnership Against Wildlife Crime Scotland.

It may add to the probability however, that the gamekeeper was not charged due to an intervention from COPFS, even if the police believed they had enough evidence to charge an individual. The memorandum of understanding postdates the decision in the Tillypronie case, and allows in England a similar decision to be made, where it is considered “sensitive”.

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The abandoned cases.

In 2014/15 George Mutch was convicted and imprisoned for killing a Goshawk and other offences whilst employed as a gamekeeper on the Kildrummy estate in Aberdeenshire. There was no vicarious liability conviction associated with this crime, most likely due to a possible inability to determine whom to charge. During the trial, the COPFS prosecutor argued strongly the the video evidence should be accepted in court, and it was accepted. The present head of COPFS, Sara Shaw, said “COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”

In this case a concealed camera had been placed by RSPB which was trained upon the location(s) where possible crimes may have occurred. The law has not changed since that time in respect of the cases considered here.

In June 2013, Stanley Gordon, a gamekeeper on the Cabrach estate in Aberdeenshire was alleged to have appeared in a covert video where it appeared that he shot the female hen harrier as it left the nest. The RSPB said they were trying to find out why hen harrier nests failed. The police charged Mr Gordon, but after 9 court appearances, all charges were dropped by COPFS in May 2017.

In 2015 Craig Graham, a gamekeeper on the Brewlands estate is alleged to have set a pole trap to catch raptors. RSPB employees passed the location of the trap, use of which has been banned for many years. They unset the trap, set a concealed camera, and informed the police. Some days later, the police and RSPB returned and removed the trap. The video on the concealed camera allowed the police to charge Mr Graham. The case was first called in March 2016 and after several trial dates were abandoned, COPFS discontinued the case in May 2017.

In March 2014 a gamekeeper of Tillypronie Estate was alleged to set a trap near Goshawk nest on the estate. This was seen on a camera concealed by the RSPB. This case is considered here because, although no details have been officially made public, it has several similarities to the abandoned cases. It is therefore not known whether the gamekeeper was charged, or whether a report was made to COPFS. The gamekeeper was probably the person who received a personal restriction on the General Licence preventing him from carrying out a lot of activities normal for a position as a gamekeeper. This restriction was not applied until September 2017, more than 3 years after the possible offence. It is not unreasonable to believe, therefore, that his case was considered by the Crown Office at the same time as the other 2 cases above, and the same determination made. This case is considered more fully in another post.

There may yet be other cases of which the public is not aware.

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Timeline

Timeline

August 2012 George Mutch seen on a concealed camera placed by the RSPB killing Goshawk and committing other offences.

January 2013, written by DI Nevin Hunter NWCU
“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.”

June 2013 Stanley Gordon, 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.

July 2013 Environment Minister Paul Wheelhouse said that he would be urging the Crown Office to consider the use of video footage in cases against those committing wildlife crime.

March 2014 Gamekeeper of Tillypronie Estate alleged to set trap near Goshawk nest on the estate. This was seen on a camera concealed by the RSPB.

January 2015 Sara Shaw of the Crown Office procurator fiscal service (COPFS) says  in relation to the custodial sentence after the conviction of George Mutch “COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”

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

September 2015. A memorandum of understanding on the prevention, investigation and enforcement of Wildlife Crime between Natural England Natural Resources Body for Wales, The Crown Prosecution Service, and the National Police Chiefs’ Council was issued. It is not known if a similar document existed in Scotland, and cannot locate an earlier version. It contains 4.4 :“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.“ This gives CPS an opportunity to prevent charges being brought even where the police may believe they have sufficient evidence available to them, and may not be entirely innocent.

August 2016 Tillypronie Estate goes on sale, the property employing the gamekeeper alleged to set a trap in March 2014.

May 2017 COPFS drops the cases against Stanley Gordon and Craig Graham.

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.”

May 2017 The convener of the Environment, Climate Change and Land Reform Committee (ECCLRC)  wrote to the COPFS seeking clarity over the decision to drop the cases cases and admissibility of evidence on wildlife crime.  

Sept. 2017 General Licence restriction 02/2017 was issued to an individual for 3 years from 15 September 2017 which prohibits them from using General Licences during that period. This is likely to be the unknown individual  who in March 2014 was filmed setting illegal traps close to a goshawk nest on Tillypronie estate.

January 2018 The ECCLRC held a meeting on 16 January 2018 about the 2016 Wildlife crime report. This meeting was the basis of my request for 2 changes to Scottish Law. I had previously considered and distributed to the ECCLRC proposals for several other changes. I hope other changes may not be needed if these changes are enacted.

Feb. 2018 Issued a revised document to the ECCLRC members revising down the number of changes to the law.

March 2018 Petition submitted.

April 2018 Article  in the Guardian about the three-year restriction on unnamed keeper on Philip Astor’s Tillypronie estate after incident with baited trap.

16th August 2018 Petition goes live and is open for signatures until 26th September. Website at https://bit.ly/2KZxni9

 

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Video evidence being decided in court

Video evidence has been available which could have been used as corroboration on at least 2 occasions, and at least one other is known about the fate of which is unknown. The COPFS in conjunction with the Crown Office did not allow these 2 cases to proceed. In 2014/15 COPFS allowed a case to go for trial which resulted in a criminal conviction and imprisonment. The later decision makes it unlikely that in cases where video evidence is available that the case will proceed. Whether a case may proceed depends on Common Law, so the following change in the Law is proposed to make it likely that courts will be allowed to decide if evidence is admissible.
The Wildlife and Countryside Act 1981 be amended by adding in a Section 19B
entitled
“Admissibility of evidence in Scotland.
In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.”
This change is proposed to make video evidence more likely to be admissible in wildlife crime without overruling the common law aspects completely.

It should be noted that at present the Crown Office and COPFS have decided to act in place of the Courts in deciding that this covert video evidence wss inadmissible. The petition seeks to allow courts to make this decision.

The Crown Office Procurator Fiscal Service (COPFS) detailed in a letter  to the Environment, Climate Change and Land Reform Committee (ECCLRC) committee the reasoning behind refusing to allow the cases before the courts which had video evidence available.
During the 2018 meeting discussing the wildlife crime report for 2016 Laura Buchan, who is head of the health and safety division of the Crown Office and Procurator Fiscal Service, stated: “There will often be disagreements within the team as lawyers discuss how best to apply the law. If that happens, we do not stop there. Often, when we have cases and decisions of such magnitude, reports are prepared for our senior advocate depute within the Crown Office so that they can make the final decision as to whether cases should proceed or whether, in some instances, we should no longer proceed.” This suggests that the law as it stands is close to what is required, and the minor change suggested here would be sufficient. 

It should be noted that at present the Crown Office and COPFS have decided to act in place of the Courts in deciding that this covert video evidence was inadmissible. The petition merely  seeks to allow courts to make this decision. It should be noted that the team did not agree. Court is the place to decide such matters, surely.

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Greater powers for the police in investigating wildlife crime.

At present there is a report available from a Review Group which was set up in the context of a Ministerial commitment to enhance the enforcement of wildlife crime particularly in relation to the level of penalties imposed. The Group, chaired by Professor Mark Poustie of Strathclyde University reported in 2015.

It is expected that at some stage the penalty for wildlife crime will be increased to 2 years.

This is not enough. If the penalty is less than 3 years it is not regarded as a serious crime and the police are limited in what action they can take in respect of a reported possible crime. They cannot, for instance, set up covert video cameras, and the searches they can undertake in detection of crime are more limited unless a crime is considered serious. The petition requests that the offence for wildlife crime be increased to 3 years. If this petition is much more delayed then it could be that the recommendations of the report will be enacted and a chance will be lost to put it through the Scottish Parliament without much delay.

The Environment, Climate Change and Land Reform Committee (ECCLRC) held a meeting on 16th January 2018 at which the Wildlife Crime Annual Report 2016 was discussed. The excellent discussion covered this aspect of this petition.
Detective Chief Superintendent Sean Scott stated: “It is worth pointing out that our operational activity in the deployment of cameras and directed surveillance is clearly bound by strict legislation. Any activity that we might want to carry out in that regard—in relation to any type of crime, and not just wildlife crime—is bound by that legislation. Under the serious crime test and so on, a three-year sentence would have to be applicable, so there are a number of factors before we can even consider deploying cameras in an investigation.” This statement confirms that there are serious difficulties in allowing the police to use or deploy video cameras and conduct some searches in wildlife crime cases unless wildlife crime can be included in the definition of serious crime.

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