The eight-day trial of Scottish gamekeeper James Marsh ended at Stirling Sheriff Court last week with a verdict of ‘not proven’.
The case centred on the discovery of a Larsen trap on the Duntreath Estate on 1st April 2012. The trap, found by a walker, was situated underneath a crag and contained a Jay (in the trap’s decoy compartment) and a Tawny Owl (within the catching compartment). The Tawny Owl was reportedly close to death. The trap had an identification tag which was registered to Duntreath Estate and the walker alerted the SSPCA to the trap. It was suspected that gamekeeper Marsh was using the Jay as a lure to trap birds of prey. It is not permitted under general licence to use a Jay as a decoy within a Larsen trap. [As a point of interest, since January 1st 2014 it is now no longer permitted in Scotland to use a Jay as a decoy inside a crow cage trap either, so if you see one, you should report it immediately].
Marsh, 49, of Middle Ballewan near Blanefield, Stirling, was reported to the Procurator Fiscal by the SSPCA for a number of alleged offences including:
1. Section 5(1)(b) of The Wildlife and Countryside Act 1981 (Use of an unlawful trap);
2. Section 19 2(a)(b) Animal Health and Welfare (Scotland) Act 2006 (Causing suffering to a Tawny Owl and a Jay);
3. Section 24 3(a)(b)(c)(e) Animal Health and Welfare (Scotland) Act 2006 (Failure to ensure the welfare of a Tawny Owl and Jay);
4. Section 1(1)(a) of The Wildlife and Countryside Act 1981 (Unlawfully taking a Tawny Owl);
5. Section 1(1)(a) of The Wildlife and Countryside Act 1981 (Unlawfully taking a Jay);
6. Section 1(2)(a) of The Wildlife and Countryside Act 1981 (Unlawfully possessing a Tawny Owl);
7. Section 1(2)(a) of The Wildlife and Countryside Act 1981 (Unlawfully possessing a Jay).
In defence, Marsh admitted to having set the trap [lawfully] some weeks prior to its discovery in order to catch a Carrion Crow which he intended to use as a decoy. He argued that the trap had been moved up hill and reset in the location where it was found and despite searching he had been unable to find it. He claimed the Jay may have squeezed into the trap decoy compartment by itself and attracted the Tawny Owl which had become trapped. He was unable to explain why the Jay, having squeezed into the trap, would not have been able to get back out.
The verdict of ‘not proven’ is an interesting one. In Scottish law, there are three possible outcomes to a criminal trial. These are ‘Guilty’ [a conviction], ‘Not Guilty’ [an acquittal] and ‘Not Proven’ [an aquittal]. Wikipedia offers an explanation for the use of ‘not proven’:
“The modern perception of the ‘not proven’ verdict is an acquittal when the judge or jury does not have enough evidence to convict but is not sufficiently convinced of the accused person’s innocence to bring in a ‘not guilty’ verdict. Essentially, the judge or jury is unconvinced that the suspect is innocent, but has insufficient evidence to the contrary. In popular parlance, this verdict is sometimes jokingly referred to as ‘not guilty and don’t do it again’.
Out of the country, the ‘not proven’ verdict may be referred to as the ‘Scottish verdict’, and in Scotland itself it may be referred to colloquially as the ‘bastard verdict’, which was a term coined by Sir Walter Scott, who was sheriff in the court of Selkirk“.
Despite the ‘not proven’ verdict, well done to the SSPCA for taking on the case. It is widely recognised that this type of investigation requires specialist knowledge, especially with the continuing difficulties of proving who has set a trap (or laid out a poisoned bait, chopped down a nest tree, stamped on eggs or young birds, shot a bird etc etc) and the SSPCA and the Fiscal did well to bring this case to court.
The Tawny Owl survived and was eventually released following extensive veterinary care.
Raptor Persecution UK 
Not Proven – always annoying but most certainly not the same as Not Guilty…the Sheriff is saying that a crime has been committed but hes unwilling to go the extra mile because of the high burden of proof needed. Will be interesting to see how its reported in the shooting press [if at all] – I have seen previous Not Provens in wildlife cases treated as if their man “got off”. Not enough guilt though, for those who control Open General Licences or other sanctions?
Another example of why the SSPCA must be given more powers and as soon as possible. They have the knowledge, the man/woman power and the equipment to deal with these specialised incidents and cases. It really is a no brainer.
Not Proven, the bastard verdict meaning “not guilty, now don’t do it again”.
The barbaric use of live prey as bait in Larson traps and their ilk should be banned totally, they are so easily abused and used for the nefarious means of capturing protected birds of prey. The usual excuses given out by the various gamekeeping organisations trying to justify themselves when a bird of prey is found in one of their traps would be laughable if it wasn’t so serious. Unfortunately they know that the probability of being caught is so extremely low and the chance of being found guilty in court if they are caught is even lower.
After 10 years dealing with wildlife crime in Scotland I can’t say that I’m surprised with this verdict.
So somebody stole the keepers Larsen trap (!) and despite they left it on ‘his’ estate he couldn’t find it! Really!
Having been the victim of a theft, he doesn’t report it to the police ( apparently) or even report it to the SSPCA seeking help to trace his trap which may have held a captive bird prior to it being stolen.
The Sheriff is entitled to disregard evidence given by incredible witnesses whilst considering his verdict and it would have been interesting if he had passed comment re this.
Having said that, if you disregard his ‘evidence’ is there enough prosecution evidence to convict him?
I’ve seen more serious cases been found guilty with less evidence but one aspect of this case, to convict, appears to be the need to believe him that he was responsible for setting the trap then disbelieve everything else he said!
I recall about 15 years ago giving a talk at a Wildlife Crime conference held at Hendon on the abusive use of Larsen traps and whilst representatives of the shooting community present that day were the first to shake my hand afterwards, it appears that very little has changed over the years.
This appears to make a mockery of upholding legal protection of birds!