On July 1st, Environment Minister Paul Wheelhouse laid out his ‘further measures’ to tackle the on-going problem of raptor persecution (here).
Whilst we welcomed his intentions, we wanted further clarification about these ‘further measures’ as well as some updates on previously-promised measures, so on July 2nd we posed five clear questions to him (see here).
This week, one of our blog readers received the following response from Wheelhouse’s wildlife crime policy officer:
Question 1:
Please can you clarify whether the Lord Advocate has instructed COPFS to accept covert video footage as admissible evidence in prosecutions for alleged raptor persecution incidents?
Answer:
The Lord Advocate has instructed the specialist prosecutors in the Wildlife and Environmental Crime Unit to work with Police Scotland to ensure that law enforcement utilises all investigative tools at their disposal in the fight against wildlife crime including tools such as video surveillance equipment where justified and appropriate.
Before instituting any prosecution, the Procurator Fiscal must be satisfied that there is sufficient admissible evidence to justify doing so. Established rules of evidence determine whether a court can take into account certain types of evidence including third party video evidence. If evidence does not comply with these rules, it is inadmissible and the court may not take it into account. In considering any case for prosecution, the Procurator Fiscal will assess, having regard to the particular facts and circumstances of any evidence and the manner in which it was obtained, whether the court will allow it to be considered. For example, the court may refuse to take account of evidence that has been obtained improperly, irregularly or unlawfully.
Our assessment:
It’s hard to know if the Lord Advocate’s instruction will make a blind bit of difference. Covert video evidence is routinely accepted as admissible evidence in England. It has, also, been previously accepted in Scotland, albeit rarely. More often than not, COPFS rejects it and we’re never provided with a transparent answer about why it was rejected. We’ve struggled to understand the legal reasoning behind these repeat rejections, especially when, as we understand it, the decision to accept or reject evidence should be made by the court (the Sheriff), not COPFS. We’ll just have to wait and see how covert video surveillance is treated in any future cases….and it’s quite likely we won’t have long to wait.
Question 2:
Please can you clarify the timescale for SNH’s review for introducing potential restrictions on the use of General Licences in areas where they have good reason to believe crimes against wild birds have been committed? In other words, when can we expect the review to be completed? Also, will their review be made publicly available?
Answer:
Officials are currently discussing with Scottish Natural Heritage how they will carry out the work to examine how and in what circumstances they can restrict the use of General Licences to trap and shoot wild birds on land where they have good reason to believe that crimes against wild birds have taken place. Timescales for completing the work are still to be concluded, but we would expect any new arrangements to be in place for next year and will ensure that we keep stakeholders in PAW Scotland informed of progress. SNH will be clear to all users of General Licences when and in what circumstances their use will be restricted or prohibited.
Our assessment:
This seems a perfectly reasonable explanation. We look forward to watching the developments.
Question 3:
Please can you advise whether there will be a prosecution under the new vicarious liability legislation following the recent conviction of gamekeeper Peter Bell, found guilty of poisoning offences on the Glasserton and Physgill Estates? If you don’t know the answer (which would be surprising, given that you said in March 2013 that you would be “keeping an eye on this particular area [i.e. vicarious liability] with interest”, please can you provide the contact details of someone who can answer the question?
Answer:
It would be inappropriate to comment further on this case as police enquiries have not yet concluded.
Our assessment:
Not very impressed, but as this case is probably the first of its kind to be considered under the new vicarious liability legislation, we don’t have any benchmark to be able to compare the timescales involved. It’s been 8 months since the crimes were committed (December 2012). Is it reasonable to expect Police Scotland to still be conducting enquiries or is this another fob-off to delay telling us that no charges will be brought under VL legislation? If they are still making enquiries, let’s hope they’re making a better job on this case than they did on this one! We’ll keep asking questions about this case every so often so it can’t just be swept quietly under the carpet.
Question 4:
Please can you tell us the status of the Scottish Government’s first annual report (2012) into wildlife crime? As you know, under the Wildlife and Natural Environment (Scotland) Act 2011, there is now a requirement (under section 26B) that ‘Scottish Ministers must, after the end of each calendar year, lay before the Scottish Parliament a report on offences relating to wildlife’. You mentioned in March 2013 that your policy officials ‘are currently working on’ this report. When can we expect this report to be available?
Answer:
Section 26B of the Wildlife and Countryside Act 1981 requires Scottish Ministers, after the end of each calendar year, to lay before the Scottish Parliament an annual report on wildlife crime. We will of course comply with that requirement and it is in preparation. Details about the laying of the report, including the timing, will be given to the Parliament in the first instance in accordance with established parliamentary protocol. We will, of course, ensure that the report publication is communicated to stakeholders and Parliament.
Our assessment:
It’s taking a very long time for this report to be published. We’ll keep asking about it.
Question 5:
Please can you tell us when, exactly, will you open the consultation regarding the increase of SSPCA powers to broaden the range of their work investigating wildlife crime? As you know, this consultation was first suggested by former MSP Peter Peacock as an amendment during the WANE Act debates, way back in February 2011. The then Environment Minister Roseanna Cunningham rejected it as an amendment but suggested a consultation was in order. Seven months later in September 2011, MSP Elaine Murray lodged a motion that further powers for the SSPCA should be considered. In November 2011, Elaine Murray MSP formalised the question in a P&Q session and the next Environment Minister, Stewart Stevenson, then promised that the consultation would happen in the first half of 2012. Nothing happened so in September 2012 we asked you, as the new Environment Minister, when the consultation would take place. In response to one of our blog readers in October 2012 your policy officer said: “The consultation has been delayed by resource pressures but will be brought forward in the near future”. Nine months later and we’re in July 2013 – almost 2.5 years after Scottish Ministers committed to undertaking the consultation. Where is it?
Answer:
We regret that resource pressures did further delay the public consultation on the extension of SSPCA powers. However, I can confirm that the consultation document will be published later this year.
Our assessment:
As far as we’re concerned, this consultation, if it does actually appear this year, could be a game-changer. Forget bringing in new legislation to tackle raptor persecution – we don’t need it. The legislation is all there – it just needs to be enforced. The enforcement process begins with a criminal investigation. Do we have complete confidence in Police Scotland to effectively and efficiently undertake these investigations? Based on their past performance, that has to be a resounding NO, with just a handful of exceptions. Do we have confidence in the SSPCA to undertake these investigations? If we judge them on their track record for successful prosecutions under animal welfare legislation, then YES, we do. We also know that certain organisations associated with the game-shooting industry do not support these extended powers for the SSPCA – they argue that criminal investigations should be carried out by the police. Funny that, because they support extended powers for water bailiffs – is that because the water bailiffs are often acting in the interests of landowners and gamekeepers (e.g. when tackling poachers)? Do they not support extended powers for the SSPCA because they know that with an extra 75+ highly-trained officers on the ground then the chances of raptor persecution crimes being uncovered become greater? You’d think, given that the game-shooting industry claims to be all for stamping out raptor crime, that they’d welcome the SSPCA with open arms. We’ll be watching closely for this consultation to finally emerge and you can expect a great deal of blogging about it when it is published.