A Shropshire gamekeeper has been cleared of charges relating to the alleged illegal use of a trap after the District Judge pronounced the RSPB’s use of covert surveillance “disproportionate”.
Neil Wainwright had been accused of using a Larsen trap, illegally baited with two live quails, to trap birds of prey. The trap, set near to a pheasant pen, had been seen by an RSPB investigator (whilst walking on a public right of way), who had returned the following day to install covert video (on private land) to determine the identity of the trap user.
Footage from the camera had identified Wainwright, who was also reportedly seen carrying a dead buzzard. The RSPB then alerted the police who began an investigation, resulting in the Crown Prosecution Service taking the case to court.
This case featured several court hearings, and during one of these Wainwright had admitted using the trap baited with live quail but had claimed he was targeting mink, not birds of prey. So his use of the trap wasn’t in question (because he hadn’t denied using it); just his purpose for using it (which was the basis for some of the charges against him).
It’s very strange then, that the District Judge, Kevin Grego, should then exclude the video evidence and claim its use to be “disproportionate” because the RSPB didn’t have the landowner’s permission to film there. This implies that the RSPB should have sought the landowner’s permission, which would have been a complete non-starter because for all they knew, the landowner and/or the agent may have been complicit with any alleged offences so asking for permission to film would have defeated the objective of filming. It may also imply that the judge thought that the RSPB should have approached the police before setting the camera. However, for the police to have been involved they would have needed to seek authority to film under the Regulation of Investigatory Powers Act 2000. The chances of them getting that authority for what may be considered a minor offence (in terms of the scale used to categorize the seriousness of all crimes, not just wildlife crimes) on private land would be pretty slim.
In which case, any trap user intent on illegal activity to trap and kill birds of prey on private land can be assured that the chance of being prosecuted is virtually non-existent. In other words, they’re untouchable.
This is the second time this year that RSPB video footage in relation to the alleged mis-use of a trap by a gamekeeper has been ruled inadmissible in England – see here for earlier case. These are interesting developments because covert video footage has long been accepted as admissible in the English courts, as opposed to the difficulty of having it accepted by the Scottish courts. And although neither of these two recent cases set a legal precedent, you can bet your house that defence lawyers in future English cases will be pointing to these findings as they try to justify having similar evidence dismissed.
These examples serve to demonstrate, once again, just how high the odds are stacked against securing a conviction for wildlife crimes that take place in relatively remote areas where direct witnesses are few and far between.
Wainwright’s case wasn’t a complete failure though. He was convicted of three other offences which wouldn’t have come to light without this investigation in to the alleged mis-use of the trap: failure to properly store ammunition (two offences, for which he was fined a total of £300) and failure to store a dangerous chemical securely (Phostoxin, a highly toxic fumigant used to gas moles, rabbits etc) which was found in his vehicle (one offence, for which he was fined £200). He was also ordered to pay £85 costs and a £30 surcharge.
Previous blogs on this case here, here and here.
BBC news article on Wainwright’s trial here
Raptor Persecution UK 
The law is an ass! When video evidence can so easily be dismissed. Their “logic” that filming without permission is ultimate stupidity!
Does this mean that speed camera images can be inadmissible? What’s the difference?
The difference is, this was on private land.
What about if I murdered someone in my house and the ONLY evidence was someone videoing from my private garden without my permission – would I get off on a technicality?
You could also try to argue that if someone would film you in your home (where you have reasonable expectation to privacy) without your permission this person would breach your right to a private life (Article 8)
Disgusting but wholly anticipated outcome. Basically this judge, amongst many others, is …..[Ed: can’t publish the rest of this comment as it’s defamatory]
Can we say the Judge is a wanker? Because I think that would not be defamatory, every adult in the UK has had a wank at some point and is a wanker, so saying this judge is a wanker ought to be safe?
‘Probably a wanker’ might be safest.
This judge sounds like he is probably a wanker!
This judge has previously successfully defended a bird of prey trafficker in Birmingham. Wonder what his personal feelings about raptors are?
That’s v interesting, thanks. Here’s a link to news article about it:
http://www.birminghammail.co.uk/news/local-news/birmingham-bird-smuggler-avoids-jail-184211
So if you are dealing heroin on private ground and are filmed then that evidence gets thrown out too?? Sounds like utter b%ll%cks to me!
In the case of dealing hard drugs that video evidence might be classed by the judiciary as ‘proportionate’
In that case they are only upholding the laws that they want to – that is corruption.
Might as well bin half on the laws on the statute books then
I share the frustration being expressed here but its a difficult area I think. What is needed is a massive uplift in the understanding within the judiciary about the difficulty in detecting wildlife crimes in the first place and then obtaining any form of corroboration. Then we might see a greater acceptance of video evidence as being wholly ‘proportionate’
If we look at the english justice system as “a level playing field” – which defies reality – for a moment, then what this decision shows is that one magistrate doesnt think wildlife crime is serious.Which goes against the belief and feelings of a huge percentage of the general public and their representatives. So who exactly is this interpretation of proportionality meant to serve?……and….we should all also keep a sense of proportion, one bad decision is not a legal precedent. There have many such attacks on the RSPB [and others] attempts to stop wildlife crime through using the legal system…and they havent stopped them..Another question here of course is why doesnt the much vaunted english justice system have even the most basic efficiency, in following up such crimes [using covert filming , the only way to succeeed in court] through the police?…You would almost think that the police dont want to catch these criminals??
Disappointing, but technology marches on and pretty soon you won’t need the landowner in question’s permission. Just a vantage point within a couple of miles and an insane-zoom camera. http://gizmodo.com/photographers-are-shooting-the-moon-with-this-cameras-i-1714819724
I feel for the RSBP person,who after all was trying to do the decent thing in trying to catch an…..
[Ed: the rest of this comment has been deleted. Inserting the word ‘allegedly’ isn’t enough!!]
You are either involved doing a criminal act or you are not. If you are, in the name of decency, justice and deterrence, you should be prosecuted with the full force of the law, however any evidence (as long as it is truthful)is obtained. Failing this IMO any criminal is being aided and abetted in his act.
That is a good point, Chris. I wonder if the crime of aiding and abetting (or something similar) could be applied in such instances? Any legal experts out there?
What if a member of the public was concerned about, let’s say, the disappearance of Freshwater Pearl Mussels from a stretch of any given river system, and placed a covert camera on private land, without contacting the landowner, and caught the criminals (from council housing estates) in the act? One wonders if the system would be so keen to ignore the footage in such a case?
And surely, even without video evidence, considering he admitted to using live Quail in the trap, this should also have been considered a criminal offence? Or does the judicial system now even ignore admissions of guilt when shooting estates are concerned?