I have now to write my submission, which will likely be needed before my petition is heard, likely at the EECLRC.
I need to make a decision as to whether what I believe happened in the Crown Office and COPFS which I have learned about since I submitted my petition should form a part of that submission. Other than that the petition is quite clear as to the requests I made, and I’m sure it will receive a good reception by the majority of MSPs. I can add little of note, apart from an alternative suggestion as to the change in legislation as I now believe my original suggestion would be ineffective.
- MSPs should be aware of what has happened. They have a right to know.
- Those in COPFS should know that I know the truth of what happened. It may strengthen their resolve and stiffen their resistance in favour the legislation in place in future should these issues arise again. I believe that it will happen again, if nothing is known.
- It may damage the success of my petition
- I may be wrong. I’m not, of that I’m certain. However, I would strongly prefer to be wrong, but I can see no way to explain the various events which have occurred. I have conducted this research on my own, with no knowledge of anything which is not publicly available to an interested party. Of course, I have been researching the events for more than 18 months, only becoming aware of many of the issues since I submitted the petition in late March, 2018.
- The MSPs can do nothing with the knowledge, as they have to respect the independence of the judiciary. It is a pity that some persons in the judiciary does not seem to realise that such independence comes with an expectation and a demand that they act impartially, and in accordance with legislation passed by Parliament.
I’ll set it all down, and see if I can make up my mind. Unfortunately, putting it in my website means that I’m likely the only person who knows about it, so I would need to include it in my petition, in order that those in the Justice system are more likely to hear of it.
Here is what I believe happened, stated in a timeline of events, with some comments.
June 2013 Stanley Gordon (SG), a gamekeeper on the Cabrach estate appeared in a covert video where it appeared that he shot the female hen harrier as it left the nest. The police charged Mr Gordon, and there were 9 court appearances. This case, although included in subsequent events, was so different from the other 3 cases, I am not going to include it in this consideration. Each case needs to be considered on it’s own merits.
March 2014. A gamekeeper on the Tillypronie Estate in Aberdeenshire (TG) was seen on a covert camera attending an illegal spring trap. It is not really relevant how the case was handled, but I suggest that the police may have been restrained from charging the known suspect by COPFS, and there has been no public statement about this case other than an article in the Guardian placed after I submitted my petition in March 2018.
Late 2014. In a very similar case, George Mutch (GM) was tried convicted and sentenced to prison for offences including against Goshawk and Buzzard on an estate with pheasant pens. No subsequent charges against his employer for vicarious liability were brought.
In January 2015, COPFS placed on their website:
“Sara Shaw, Procurator Fiscal, Wildlife and Environment said:
“Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland.
“It is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection.
“This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message.
“COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.””
July 2015 Craig Graham (CG), a gamekeeper on the Brewlands estate was alleged to have been seen placing a bait on an illegal pole trap. The camera was placed by the RSPB. Many provisional trial dates were set.
May 2017 COPFS drops the cases against SG and CG. In correspondence between the convener of the EECLRC and COPFS much of the thinking of the Crown Office was revealed.
May 2017 David Harvie, Crown Agent writes to the Justice committee “I was heartened to read that the Committee concluded that the public can have confidence in an effective, rigorous, fair and independent COPFS.” As you continue to read this, you will become aware that I am not of that opinion. At least he did not use the word consistent or any synonym.
Sept. 2017 General Licence restriction 02/2017 was likely issued TG for 3 years from 15 September 2017 which prohibits them from using General Licences during that period.
This event demonstrates clearly that possible offences by TG had been under consideration for more than 3 years during which time the estate was sold and any offence was likely time barred by then. The protocol for issuing of any restriction is that the police must approach SNH. If the police had informed SNH before that time, the public would have learned about it, and an area restriction would have been issued, not a personal restriction. This has only come to light by detective work by others, but there can be no other conclusion.
I will now look at some issues in the letter from COPFS to the EECLRC convener, and demonstrate that these are at best half truths.
The letter states:
“Following a defence challenge to the admissibility of covert video evidence obtained by RSPB investigators in the case against Stanley Gordon, Crown Counsel carried out a review of the relevant material bearing on that case and the case against Craig Graham.”
This ignores the fact that there were possible charges against TG which had been held in abeyance for over 2 years at the time, and I believe that it is certain that the review included a consideration of that case, and most likely was a major reason for the review. It must certainly have been a reviewed internally prior to the challenge.
The letter also states:
“Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised, the subsequent video evidence was obtained irregularly.”
The camera in the case of CG was only placed after an illegal trap was discovered. It seems that this was still sufficient for the proceeding to be brought to an end. Really?
This sentence also suggests that the placing of the camera needed to be authorised. Why? Many cases come to court where camera evidence has not been authorised and it is specifically stated in the Covert Surveillance and Property Interference Code of Practice. Section 1.14 of the code states: “RIP(S)A provides a statutory framework under which covert surveillance activity can be authorised and conducted compatibly with Article 8. Where directed surveillance would not be likely to result in the obtaining of any private information about a person, no interference with Article 8 rights (Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence”) occurs and an authorisation under RIP(S)A is therefore not appropriate.”
Further, OSC’s 2016 Procedures & Guidance document Section 279 states: “Surveillance of persons while they are actually engaged in crime in a public place is not obtaining information about them which is properly to be regarded as “private”. But surveillance of persons who are not, or who turn out not to be, engaged in crime is much more likely to result in the obtaining of private information about them.”
Why then does the letter state that “as that activity was not authorised, the subsequent video evidence was obtained irregularly.”
Strange, is it not? I suggest that authorisation was known not to be needed, as happens on many occasions.
The letter further states: “Further, as you will appreciate, the police have statutory powers (under the Regulation of Investigatory Powers (Scotland) Act 2000 and the Police Act 1997) under which they may, when that is permitted under the statutory regime, be authorised to undertake covert surveillance.”
That completely ignores that absolute fact that as the maximum sentence faced by CG was only 6 months the police could not request authorisation. In neither of the cases could the police be authorised.
There is no conceivable reason for this sentence, whilst true, to be part of the submission by COPFS, as it does not apply in either case, and clearly this was well known to COPFS.
I’ll now look at how this was handled within the Scottish Crown Office.
The statements by COPFS personnel to the EECLRC meeting make it quite clear that there was not unanimity within COPFS about the decision to bring the proceedings to an end.
I am of the opinion that it is likely that many, and possibly most of personnel in COPFS did not agree with the decision, and the weakness of the case presented in the letter was well known. It may even be that a request for clarification was not expected, and none of the thinking would need to have been made public. I prefer to believe that the letter was the best case that could be sent to the convener of the EECLRC, and may well not even have been the true opinion of the writer or the majority in COPFS. In the questioning of the COPFS personnel at the EECLRC meeting of January 2018 it was stated that the final decision was made in the Crown Office.
So, will I include this in my submission to the Scottish Government committee? I would not if I thought that it might damage the two requests in my petition. I would not if the personnel in the Crown Office and a lot of members of the Law society of Scotland heard of this post,but I fear that they will not.
I will take more time to consider, and perhaps think of a better way to raise the issue in a way which meets my requirement that COPFS and some MSPs at least are aware of my desire to raise the issue without affecting the petition, which has to come first.