Last week we blogged about what we see as double standards being applied to decide whether evidence is considered admissable or inadmissable in certain wildlife crime cases (see here). This stemmed from the COPFS decision not to proceed with a prosecution against the gamekeeper who was filmed apparently battering crows to death with a stick inside a crow cage trap, because COPFS decided the film evidence was inadmissable. Basically COPFS decided that the public interest was best served by concentrating on the legality of the evidence as opposed to focusing on the alleged crime itself.
It’s been a source of frustration for many of us that the prosecutors will accept what seems to us as improbable evidence such as, ‘I wasn’t using that illegal poison you just found in my shed; I just had it in there because I didn’t know how to dispose of it properly. Honestly officer, I had nothing to do with the poisoned raptors that you’ve found nearby even though government testing has shown they were poisoned by the same illegal substance I’ve got in my shed” and yet they seem so reluctant to accept evidence from those who are legitimately undertaking raptor site monitoring and who happen to find evidence of alleged wildlife crime during the course of their legitimate monitoring activities.
Our article attracted a number of comments and one in particular stands out. Rather than have it ‘lost’ in the comments section of the blog, we’ve decided to re-post it here to make sure that it is read by as many people as possible, and especially by those who are out and about and likely to stumble across evidence of wildlife crime. It is an articulate and insightful comment and we thank the commentator, ‘Edinburgh Observer’, for taking the time and trouble to write it.
Why should the interests of justice be compromised by an interpretation of the law that is seemingly biased in favour of the criminal? Perhaps it’s time to play them at their own game. Here’s what Edinburgh Observer had to say:
This thread begs two questions: (1) what types of access are lawful and what is not? and (2) in each case, what factors affect the admissibilty of any evidence secured in relation to a crime wirnessed in the course of exercising such access.
First, access: as the posts indicate the Land Reform (Scotland) Act 2003 provides rights of responsible access to most land, and certainly all land where wildlife crime is an issue – but not, of course, to dwellings or buildlings. Unfortunately, however, these rights are associated with the purpose of the visit. These are primarily for recreation or education – the latter including wildlife research or monitoring. So, if one visits land for those purposes and happen, by chance, to encounter a crime, the evidence is probably admissable. However, it is arguable that visiting land primarily or knowingly for the express purpose of obtaining or seeking to find such evidence, makes that access unlawful. This ‘unlawfulness’ is, however, only in relation to statutory access rights under the 2003 Act (see below), and the admissibility or otherwise of any evidence must be subjected to the second issue (see further below).
Notwithstanding the above, the 2003 Act also creates a statutory right to “cross land” that is not conditional on the purpose – so any access for the purpose of obtaining or seeking to find evidence while “crossing land” should be lawful – perhaps all raptor workers/OneKind staff should be forever heading somewhere else and, therefore, only “crossing land”!!?!
As well as statutory access rights under the 2003 Act, many access campaigners also argue that, in Scotland, there are traditional rights of ‘customary access’ (see Blackshaw, 1999 in Edinburgh Law Review at http://www.euppublishing.com/doi/abs/10.3366/elr.19126.96.36.1998). Such rights would apply to the kind of open countryside where wildlife crime is an issue – and are not subject to the limitations of purpose described above. Thus, access for any purpose could – according to Blackshaw be lawful.
Secondly, is evidence obtained by lawful or unlawful access (as distinguished above) admissible? This boils down to a decision, ultimately, for the court to determine – on the basis of balancing competing concerns. Of course, in the OneKind case referred to above (and in several other wildlife cases), the Court has not been asked to make a determination because the Procurator Fiscal has (pre)determined the answer and decided not to proceed. Procurators should, of course, make such judgements in cases where the balance of competing interests is so obvious that no reasonable court would reach an alternative conclusion. However, in these wildlife cases, this obvious-ness is less clear and Procurators appear to be pre-judging the answer – and, as suggested, creating double standards.
The origin of the doctrine of balancing competing interests was the case of Lawrie v Muir (1950 JC 19, 1950 SLT 37,  ScotHC HCJAC_2, see http://www.bailii.org/scot/cases/ScotHC/1949/1950_JC_19.html) and has developed since, and is discussed in detail in “Illegally Obtained Evidence and Scots Law: A Fair Balance?” (Stark and Leverick, 2010 – online but as a word document – google it!). The rule seems to be that a court, in determining admissibility, should balance the “upside” of securing justice via prosecution against the “downside” of seeming to allow irregularity or unlawfulness in the securing of the evidence. In extreme cases, for instance, where a housebreaker witnesses a murder, the unlawfulness of housebreaking may be overlooked to secure prosecution for murder – and, of course, the housebreaking could be subsequently prosecuted. These issues, of course, will mean lots of variables in comparing and contrasting the interests of justice with the interests of the accused or other deterring other irregularities, and are affected by various modern legislation both on access and on human rights. However, as Stark and Leverick rightly conclude the approach of the Scottish courts to the question of whether illegally obtained evidence should be admitted in or excluded from criminal proceedings is “unsatisfactory” and “largely incoherent”. They also discuss the need for reform of the law which has gone unaddressed for over fifty years.
So, in the wildlife cases, it seems the procurator has taken the view that the court would consider the irregularity of unlawful access (trespass!?) to be a more serious issue than the alleged wildlife crime, and not a matter of such relative insignificance that it might be overlooked by the court. However, one might ask, when has the Crown ever tested such an argument in Court? Very few reported cases are available – and those that are have special circumstances. To date, no Court has determined whether the public interest in securing justice, convicting an offender and deterring wildlife crime is or is not greater than the public interest in not encouraging the (potential) unlawfulness of ‘irregular’ access to open countryside.
In this issue, the comparison with Malta above, and incidentally England, is notable – the post above suggests that the Maltese jusisdiction has admitted such evidence, as has regularly been the case in England. It is scandalous that this is not, apparently, the case in Scotland – but perhaps even more scandalous that the determination of the public interest has, to date, rested with the COPFS. It is time that the relevant arguments were made in Court – to date, no full exploration of all the issues has been made or a definitive Court judgement sought. Pressure should be applied to the COPFS to make a test case of one such as that described above – or do they find it useful to have “unsatifactory” and “incoherent” law that allows them to make arbitary decisions as they wish?
In addition, of course, it is probably time that wider concerns raised by Stark and Leverick were addressed. Something for the Scottish Parliament?