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

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

  • Q. To have a successful petition, you only needed to list what you saw as necessary changes in Law. You have expanded that by giving reasons why you are asking for the changes and going into what might be seen as unnecessary detail. Why have you done that?
  • A. I wrote the petition in March 2018 missing some later information which came into the public domain and I was not as aware then as I am now of the legal issues. I decided that I had to add this extra detail for good reasons, but I agree perhaps it did not need to be in as great detail as I have recently decided to do. I now have other objectives other than the petition, but a successful petition is important
  • Q. You must have spent an eye watering sum to get to this point. Why?
  • A. I’m not a lawyer. Even now, I’m not sure I have got this entirely right, but that is probably because I don’t really want to believe what I am perhaps suggesting may be true is actually true. In order to get my points across I had to improve the presentation and give it more validity by obtaining independent legal advice from civil and criminal lawyers. Even now, I don’t know where the expertise in one branch of the law starts and the other takes over, but I don’t need to know if I employ others with expertise. I’m sure that the submission reads better after the injection of independent advice, even though the points of established law presented were all devised without the advice. It may also be seen as having more authority.
  • Q. What has got you so riled up?
  • A. Over the almost 2 years I have been interested and active in this area, I have come to believe, despite the assertions of Crown Counsel, that individuals, including RSPB investigators and myself, have the legal right in Scotland to devise a route which crosses one or more areas of land over which they have the right to cross under the Land Reform Act. This can be done without questioning if that is one of or perhaps the sole reason for crossing the land. I have done this, but never seen a pole trap. RSPB investigators have on some rare occasions seen pole traps. The RSPB is in a better position than I am to select more productive land crossing routes than myself, and do it far more often than I do. I assert that this is a legal activity, and allowed under the present Land Reform Act. In addition, the Law allows that following the discovery of an illegal act, covert surveillance may be carried out without authorisation, or in breach of any other statute. Crown Counsel have asserted that this is not the case. I did not understand why they had made this decision. It angers me that they did so.
  • Q. Let’s cut to the chase. What do you hope to achieve?
  • A. Very little. I cannot hope to take the matters I raised regarding what lay behind the events to court by means of a Judicial Review or challenging a decision by other legal means. I am not an interested party, only an aggrieved member of the public and was not even aware when I wrote the petition of many of the issues. I cannot hope to have the decision to discontinue any cases reversed. The most I can hope for is to make Crown Counsel slightly embarrassed. In case you don’t know Crown Counsel are the senior people in the Crown Office Prosecution Service (COPFS) in Scotland, from the Lord Advocate downwards, who is “the chief public prosecutor for Scotland and all prosecutions on indictment are conducted by the Crown Office and Procurator Fiscal Service, nominally in the Lord Advocate’s name. The officeholder is one of the Great Officers of State of Scotland”. i.e. definitely one of the heid bummers with other senior people in Scots Law. There is a new group founded in 2019 called Wild Justice, principally to challenge decisions by statutory bodies seen as possibly illegal in the field of wildlife and environmental matters throughout the UK. The issue I am pursuing here is not of that ilk, or even near. I cannot hope to get a truly successful outcome for any injustice I may have perceived, but have proceeded nonetheless, because I’m like that, stubborn and, I believe justly, annoyed. Wild Justice is intended to challenge statutory bodies who pay more attention to the desires of their political masters that the statutory duty they are meant to uphold. My task is much harder, and I don’t expect many lawyers in Scotland to be cheering me on. Does that worry me? Well, yes, it does, a bit.
  • Q. Lets get on to the matters about what you are concerned about. What do you think happened that got you so annoyed?
  • A. I can’t answer that fully. In April and may of 2017 a decision was made that some wildlife crime cases already before the courts involving birds of prey should be dropped. Luckily for me, the convener of the Environment Land Reform and Climate Change Committee (ECCLRC) in the Scottish parliament wrote to COPFS asking general information about admissibility of evidence. The public likely would not have had any details of the reasoning behind the decision if that had not happened. COPFS replied to the letter, giving specific details of the reasoning in 2 of the cases, although the 2 cases were not considered individually. I’m not really a ‘birder’ and was away in truly wild parts of Spain for a month riding my mountain bike solo slowly over a long distance, as I have done before and since. I was aggrieved enough to write to all my MSPs then the ECCLRC. I gained some more knowledge of how the matter had been handled within COPFS when I read the minutes of a meeting of the ECCLRC in January 2018 attended by, among others, the COPFS and the police. All of the above gave me enough information about what I believed were the changes in law necessary to ensure that it could never happen again, I wrote what I thought was a suitably worded petition and submitted it to the Scottish Parliament on 15th March 2018. On 4th April the Guardian newspaper wrote an article about another possible wildlife crime case involving birds of prey. This case had received no previous public exposure and although the initial event took place in March 2014 it was not resolved, if that is the correct word for what happened, until September 2017. By this stage I was not merely aggrieved, I was apoplectic with rage.
  • Q. You said that you can’t answer fully why you were so annoyed ? Why is that?
  • A. I had realised what might well have happened, but I had, and have, absolutely no evidence for what I believe may have happened. Scotland has good laws which prohibit the making of unfounded allegations in public. I also support the reasoning behind these laws, and I believe strongly in upholding the Law. I therefore cannot discuss here or elsewhere any motives for what may have happened, because it then might be blindingly obvious what could have occurred. I could, however concentrate my efforts to see if it was possible, as I already suspected that it might be, that one of these cases should have continued to be heard fully in court, and thus a court should have been allowed to make the decision as to admissibility. That does not require an examination of motive, and only requires a thorough consideration of the Law as it stands. I believe that I have done that, or certainly come close to that, despite the fact that COPFS have wide discretion in deciding what is admissible or not. The decision must start with a perceived irregularity in the presented evidence available to COPFS. If there is no anomaly, then there is likely no question of the evidence being inadmissible. I believe that I have shown that there was likely no irregularity in the gathering if the evidence before the courts in one of the cases.
  • Q. The RSPB, unlike you, have been able to discuss this with COPFS. Surely they should have noticed.
  • A. They did, but I believe that I have detected more errors in the decision than they have picked up. The RSPB asked in Legal Eagle 82 published in August 2017 the question: “Is the Scottish criminal justice system fit for purpose?” That is fairly strong, but I am suggesting that the criminal justice system is actually fit for purpose. It was decided by Crown Counsel that there was a perceived anomaly in the collection of evidence in one case that I do not believe exists in actuality. The reasoning I have given, included in my latest submission to the Public Petitions Committee, was not considered in correspondence or other communications from COPFS. That committee will have no authority to do anything about it other than ask the Scottish government to change the law in the ways I suggest, which is something, and what I started out to achieve. That is still a principal aim. I attended a law seminar at Aberdeen University on 15th June 2018 entitled ‘Nature Conservation & The Law of Evidence’ at which several people gave presentations. The RSPB presentation gave me some guidance as to their problems with the decision, but even as late as 1st January 2019 I realised that there were more errors in the decisions than they had noted.
  • Q. Surely others in COPFS could see what was happening and put a stop to it.
  • A. Perhaps they did notice, but even so could not put a stop to it. Certainly, once a decision has been made, all in COPFS must at all times adhere to support of that decision. That is the only way the system can work, and I fully accept that. It may well be that the whole of the legal profession feels bound to support even a bad decision, but I’m not sure if that is the case. I certainly raised it in my communications with COPFS, and it may have been a factor after I tried to obtain independent legal advice about the issues I raised. I had run through effectively a Who’s Who of large firms of solicitors before I found one who suggested they might be prepared to give advice. COPFS set out in questioning by the ECCLRC in January 2018 which noted how disagreements were dealt with, before decisions are made. I raised the issue with the Inspectorate of Prosecution Services in Scotland (IPS) but the IPS is hampered by it’s statutory lack of independence from the Lord Advocate in what it can undertake and so I confined somewhat my correspondence with the IPS to show how they could contribute to resolving conflicts before a decision is finalised. Even there I believe the IPS likely has very limited ability to assist. However, the inspectorate (IPS) could be asked to examine the cases I believe may have had errors in the decision to drop the cases. In Law the Lord Advocate is the only person who could ask for this to be done. I’ve made the suggestion, but is it really likely that he will ask IPS to investigate? He might, if he truly believed that the investigation would confirm that the cases, had they been heard in court, would have been bound to fail due to obvious irregularities in the obtaining of the video evidence. I don’t think it will come to pass. I should also make it clear that there may even be persons in the COPFS, who believe that I am right. Even if they do not feel able to speak out, they are acting in an honourable fashion. I have long urged members of the legal profession to examine the issues I have highlighted. I hope that some of them may, if they feel that the assertions I make have some validity, privately say that it should be examined. The herd instinct to follow the leader may make that difficult to achieve.
  • Q. Why do you suggest that there may not have been an irregularity in the evidence which was to be given in court?
  • A. COPFS said that “The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. The purpose of investigating and detecting crime is not one of those purposes. It follows that someone who is on land for such a purpose is not there pursuant to the rights granted under the Act. ” Now that is a bit technical, but there is another separate right granted by section 1 of the Act which is simply the right to cross land. Provided that the person does not contravene other additional qualifications, such as exist on golf courses or being in breach of a court, the right to cross from one side of land to the other in Scotland does not depend additionally on complying with the purposes set out in section 1(3) which I claim COPFS suggested it did.
  • A. COPFS said “Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised, the subsequent video evidence was obtained irregularly.” This brings up the question of authorisation. I suggest that authorisation was not needed for the camera in the same way that authorisation, which has to be obtained in advance of any cameras being in place and that was not possible in this case, is not needed for the presentation in a court of video evidence obtained in a public place, when there is no ability to obtain authorisation in advance. A good example of this is if it has been taken on a CCTV camera. My submission covers the technicalities in some detail.
  • A. These two statements, both of which I suggest were in error in one of the cases specifically covered by COPFS, would allow an RSPB employee, suitably equipped with photographic equipment, to set in place a video and audio recording device in support of the police. They did, as might be expected, report it directly to the police. The police could be expected to return to the scene and take over the investigation, including the data from the camera. this is exactly what happened in one case where it was claimed that the video was obtained irregularly.
  • Q. If you were not a party to any of the cases, surely there is nothing more that you can do?
  • A. Well so far, I have written the submission to the Public Petitions Committee. My petition PE 1705, which has had a single hearing so far, originally sought to add a clause to the Wildlife and Countryside Act to allow video evidence to be presented in court in wildlife crime cases. Obviously a person needs to have a right to go on the land even as a starting point. If I made no request for changes to the Land Reform Act, we would be no further forward, and my petition, I realised too late, seeks something that in most if not all cases would make no difference. Thus the submission was necessary, and I needed to explain my reasoning for the additional changes. I have suggested several changes to the Act which would make a great deal of difference. I have also written to the COPFS who so far have not been keen to discuss the matter with me, despite a suggestion from the Cabinet Secretary for Environment, Land Reform and Climate Change that I approach them. I have recently asked significant questions which, if they still do not wish to answer my questions, the convener of the ECCLRC might be interested in knowing, rather than answering them to myself, even if it is to dismiss their relevance for a stated reason. COPFS have continued to ignore me, so I have approached the ECCLRC, which I have previously done, with a view to resuming the debate on admissibility, when a similar meeting to that of last year presents an opportunity for members of the committee to question COPFS. That meeting has now been announced for 12 March as an evidence session, but having evidence from 7 people as well as considering other issues. I have now made a submission to that committee as well, because in 2 weeks since I sent the letter to COPFS, they have not yet acknowledged receipt or answered. The submission had to make clear that the intent of my letter and the submission is to seek clarity on general matters not raised so far, and specifically not to question specific decisions made by COPFS. I need my submission to be raised and answered in such a way as to allow me to continue to have it discussed at a later stage. I am terrified that this does not happen. Other than that, I can make as much fuss about this as possible. I already have a website in support of the petition, but I’m not very active on social media in support of my views. I won’t be stopping until either I am proven correct, or, and I agree this is possible, I am proven wrong. Ignoring me is not going to allow that to happen. I welcome any healthy debate on my assertions by persons better qualified than myself. I’m not competent to contribute to such a debate, and can probably not afford to pay for more services from the legal profession in support of my assertions, should an opportunity present itself for my views to be represented.
  • Q. What do you see as the possibilities to achieve even a small amount?
  • A. The first possibility was that COPFS would respond to my letter of 22 February, although after 2 weeks I have not received an acknowledgement, which has happened before. They could, I freely admit, deliver a crushing blow by explaining how the general questions about the Law and admissibility I asked are no basis to suggest that any specific case should have been held in court, and back this up by explaining the legal points they make. I just don’t at the moment see how that is possible, but it may be. From my point of view that is as good as I could hope for. Through the suggestion made by Roseanna Cunningham, I have enough skin in the game to have with difficulty extracted 2 poor responses from COPFS. That may yet provoke a response. Secondly, as mentioned above, I may yet get a member of the ECCLRC to ask the same questions of COPFS, and an opportunity for this to happen will occur likely next week, and the reticence of COPFS to communicate with me makes that more likely if I can get my message across. Thirdly, and really my preferred option, is for some persons qualified in Law to consider the various points I have made, to discuss this privately and take action without my involvement. If there is any merit in my assertions this may produce the best result of all.
  • Q. You do realise that you can never win, as a non lawyer, trying to take on such senior people in the Law profession.
  • A. I do wonder, with little evidence to back me up, if I am taking on even the whole of COPFS. The person in COPFS who has been left holding the baby is the head of the Wildlife and Environmental Crime Unit. This was the person, I understand, who led the successful prosecution in 2014 which led to a term of imprisonment for wildlife crimes. This was seen at the time as a well informed and able prosecution team taking on highly qualified defence experts and defence counsel and winning. It is likely that this did not go down as well with some influential figures as it did with myself and others. She was the person asked to respond to the letter from the convener of the ECCLRC. In the letter she made it clear that the decisions in the cases has been made by others, when stating the position of COPFS. She gave a statement on the COPFS website on 12 January 2015 about the custodial sentence handed down on the wildlife crime case mentioned above. She said “COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.” At the time, although not known to the public, she would have been aware, if I am correct, that the case of the Tillypronie gamekeeper had been paused. I prefer to believe that the statement may have in some way been setting out her personal view on the admissibility of evidence, but was years later overruled, and certainly the successful case in 2014 would not now be seen as an appropriate case be prosecuted. Thus my later communications with the same person may be seen as a sparring match between 2 persons who in some ways may be seen as being on the same side, but that can not be admitted. The view I take on this matter certainly would explain the strained nature of the communication we have had. She will be the COPFS representative at the 12 March meeting. The only other group of whom I am aware who have supported in public the decision are the persons from the University of Aberdeen who wrote blog articles in support of the Crown Counsel decision. Professor Peter Duff, who was the first to write an article, did not examine the cases individually, and, even to my untutored eye, seemed to make some basic errors in the article. I would be interested to know, but have no right to ask, what he or the others think of my very different viewpoint on the individual cases and points of law.

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