The admissibility (or, more to the point, the inadmissibility) of covert video footage as evidence in wildlife crime cases has long been a source of fascination and, for us at least, confusion.
We’ve blogged about it a lot over the years and we’ve received some interesting and useful responses from some legal commentators (e.g. see the comment from ‘Edinburgh Observer’ on this 2012 blog). Sometimes covert video footage has been accepted as admissible evidence (more so in English courts than Scottish courts, although it is being increasingly challenged in raptor persecution trials in the English courts) and other times, inexplicably to us lay observers, it has been ruled inadmissible. The decision to rule on inadmissibility in Scotland has, for a long time, been taken by the Crown Office rather than by a Sheriff, which has caused consternation among some observers, with a notable exception being the Mutch trial, where the Sheriff ruled the RSPB’s video evidence was indeed admissible, but only because the RSPB was able to show the footage was a by-product of a wider, legitimate research project (in this case the use of crow cage traps), rather than the camera being placed with the sole intention of filming someone committing a criminal act.
We were surprised, then, to read the news yesterday about the use of covert video footage obtained by the League Against Cruel Sports Scotland (LACS) that has led to the arrest of two people accused of alleged fox-hunting offences in the Borders. Not only that, but the video footage has already been placed in the public domain by the BBC, prior to any subsequent trial. The footage can be seen on the BBC news website here, included in a mini-documentary about fox-hunting in general. It’s well worth a look.
So what was it about this video footage that made it admissible, rather than inadmissible evidence? At this stage, we know the footage has been deemed admissible because two individuals have been charged on the basis of what was filmed. In the British justice system, you arrest on suspicion, charge on evidence, and convict on proof. If this case does reach trial, the footage may well be later challenged in court and ruled inadmissible by the Sheriff; we’ll have to wait and see. But for now, the Police (and presumably the Crown Office who would have advised on whether charges could be brought) have accepted the footage as admissible evidence, otherwise these two individuals would not have been charged.
There are several ways to look at admissibility in this case. If you watch the BBC’s mini-documentary, there’s an interview with Robbie Marsland, the Director of LACS Scotland. In that interview, Robbie seems to suggest that LACS Scotland hired wildlife crime investigators specifically to monitor the activities of Scottish hunts. He said he gave his investigators explicit instructions to remain covert while filming, because, justifiably, he didn’t want the overt presence of observers to alter the behaviour of the hunts they were monitoring. So in this case, you could argue that the LACS investigators were filming covertly and specifically to catch someone committing a criminal offence. On the other hand, it’s also quite clear from the interview with Robbie that this was part of a wider research project being undertaken by LACS. It wasn’t just the Jedforest Hunt that was being filmed – other Scottish hunts were also being filmed because LACS had received persistent intelligence reports that some hunts were breaking the law, even though the Police and Crown Office said they hadn’t received any reports. LACS began a wider research project to investigate patterns of behaviour among Scottish hunts.
To our mind, this scenario is very similar to the way the RSPB investigations team operates. When they undertake covert video monitoring they’re not just filming on one estate, they’re actively monitoring many estates because, as with LACS, they receive persistent intelligence reports that some estates are illegally killing raptors. Surely this could be viewed as being a ‘wider research project’, in the same way that LACS has operated?
The public release of the LACS footage, prior to a subsequent trial, is also interesting. We’re not sure the RSPB has ever done this before a trial, although they certainly have released footage post trial. Perhaps the early release of the LACS footage can be explained because, as the footage was captured from some distance to the hunt, it is virtually impossible to identify any individuals in the released LACS video. That’s important, especially in Scotland, where identification can be an issue in a trial. Because of this, it can be considered contempt of court to publish an image of the accused prior to conviction (although apparently you can in England) because it might prejudice a fair trial by influencing the jury. RSPB video footage, on the other hand, tends to be have been filmed at much closer range where the suspect’s identity is often clear.
However, as the two suspects in the LACS case have been charged with alleged summary offences (case heard by a single Sheriff rather than by a jury), as is often the case with suspects charged with summary offences on the basis of RSPB footage, then there’s no jury to prejudice so why not release the footage early?
All in all then, an intriguing (and still confusing) situation and we’ll watch with interest to see how this develops.
Raptor Persecution UK 
It was my understanding that one of the main distinctions between admissable and inadmissable filming was whether you had the landowner’s permission..[as the landowner was often a suspect and certainly so now we have vicarious liability, it would of course be ludicrous to ask them for permission]…perhaps LACS were filming from a public place?….and you are right, RSPB would never have released footage of an alleged crime prior to any trial..there were enough defence fences to get over without such an obviously arguable move.
Good point – perhaps this was filmed from ‘public’ land!
I’m currently involved in a similar case regarding illegal hunting. The footage I gained is the main evidence against the hunt along with a statement from myself and another person. The interest regarding the filming is that as a member of the public we don’t have to abide by certain rules with regards to obtaining evidence as law enforcement officials do. While we were certainly not covert we gained access to land and openly filmed the hunt and ultimately the kill they made, we were only a few feet away at this point (it is one of the most upsetting and disgusting things I’ve ever witnessed). It made all the national news and there was significant public outcry. Although some stills were made public the footage certainly won’t be until after the case has run it’s course.
I understand the hunt staff have been interviewed under caution and I’m awaiting further developments.
General point of principle, not pertaining to any specific case, but always get video footage into the public domain as early as possible and it has to be admissible as it cannot be covered up and swept under the carpet. Especially in a field where the prosecutors and judges are in the same social class and circle as the accused. They hate public scrutiny, it forces them to do their job.
So why can covert video footage be used to prosecute bad “carers” in nursing homes? Or CCTV footage of perpetrators of crime in cities used as evidence in court?
Cos that targets poor people and ordinary people, not the toffs and their pet forelock tuggers. They are supposed to be above the law and we plebs and proles should learn our place and not question them.
Sadly so true. Even financial fiddles that would put us public in gaol for embezzlement. MP’s just laugh, give an excuse of incompetence or similar and walk away, usually with the money too!
This is the test in relating to improperly obtained evidence as stated in the case of Lawrie v Muir 1950 JC 19:
‘From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict—( a ) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and ( b ) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost.’ (Lord Justice-General Cooper at p 26.)
Two other important cases from the same era are Fairley v Fishmongers of London 1951 JC 14 and McGovern v HM Advocate 1950 JC 33. The leading judgements in these cases were also delivered Lord Justice-General Cooper (within a year) – yet they are inconsistent.
Peter Duff’s article ‘Irregularly obtained real evidence: the Scottish solution?’ is worth reading:
Click to access 040928-001.pdf
This was his conclusion:
‘Unfortunately, the courts have failed to develop a clear and principled framework for operating this power, instead creating what sometimes seems to be a morass of incoherent and conflicting decisions in individual cases.’ (p 98)
Thanks Adam, v useful as always.
Incoherent & inconsistent seems to sum up the situation pretty well.
Added to which the Human Rights Act and Regulation of Investagory Powers (Scotland) Act add another layer of ‘protection/hinderance’ (delete depending on which side of the fence you sit)
‘( a ) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities’
That’s funny Alice In Wonderland stuff.
So the landowning class with their mates in the judiciary, police and previously in parliament are the ‘citizens’ and we are the ‘authority’.
Yet again grouse moors seem to be able to turn the law on its head.
It seems odd too that a 1950 ruling is being used today in the area of surveillance when now, 66 years on, we live in an era when public surveillance is everywhere, covert and overt.
Again everything seems to point to the grouse owners being exceptions to those rules enforced on everyone else.
Please can i have the same level of privacy as the grouse moors.
“The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand, the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods.” (Lord Justice-General Cooper) You can read the whole judgement here: http://www.bailii.org/scot/cases/ScotHC/1949/1950_JC_19.html
Lawrie v Muir is not specifically about surveillance. So it would be irrelevant to covert video recording, or covert human intelligence – if it was obtained under the applicable authority (eg. RIP(S)A).
Lawrie v Muir relates to evidence in general (which can be any document, data, statement, admission or really anything including covert video recording) which was obtained irregularly. ‘Irregularly’ in this context (usually) means ‘unlawfully’ or ‘illegally’ or ‘improperly’. As opposed to automatically admitting or excluding such evidence this case prescribes a test (of some sort) to deal with the admissibility of irregularly obtained evidence. It does so by looking at each case, the nature of the irregularity and the circumstances. (Peter Duff’s paper, which I posted above, is well worth reading.)
I posted the test as stated in Lawrie v Muir because maybe the sheriff relied on this test when admitted the LACS covert video footage.
It is not just not odd, but it is entirely normal in Scotland (and in common law jurisdictions) that ‘old’ cases are used today, especially in criminal law. See https://en.wikipedia.org/wiki/Scots_law#Common_law and https://en.wikipedia.org/wiki/Scottish_criminal_law
You’re not the only one who seems to be unhappy about this, there is an ongoing debate whether it would be better / fairer / more efficient to have at least some areas of the law codified (criminal law and contract law in particular).
A thoughtful article. It does seem that the burden of proof, is set too high ? The illegal killing seems to have continued unabated, perhaps even speeded up, as the estates are getting larger and larger subsidy payments! My own view is that, should a dead raptor be found on an estate, especially one with history, they should be closed down, subsidies frozen, bank accounts frozen, while investigation is carried out. Seems harsh perhaps, but we know that this is not going to stop otherwise.
The short film on fox hunting was interesting, two points grabbed me, one was that you might be better with the fox that you know, rather than killing it, and have another ‘unknown quality’ fox take its place, and the second point, that ” foxes have no natural predators” If you have not seen it, this bbc documentery,
http://www.bbc.co.uk/iplayer/episode/b00rrd7t/human-planet-5-mountains-life-in-thin-air
shows foxes being hunted by eagles in Mongolia. Now, I do not know if this is natural behaviour, or learned?
Perhaps it is in the estates own interests, to stop killing our golden Eagles!
Whether covertly filmed or not, all video evidence should be admissable. If individual(s) were seen not to be committing a crime on film – then there’s no problem. If they are seen to be committing a crime, then they meant to commit that crime – not knowing they were being filmed isn’t an excuse. What they gonna say – ‘I did it ‘cos I knew I was being filmed’ – I don’t think so.
Sad thing is, someone probably would try saying they had a compulsion to break the law if they know they are being filmed. We’re living in a world where being too rich to know what is right and wrong was accepted as a defence in America, some bright spark lawyer is probably dying to try something like that here just for the sheer mischief of it.
Could it be possible that the video was the catalyst for the arrests? The charges being based on information that arose through the investigation of the video? Is that your land Farmer Jones? Who was on your land that day? Who was that terrier man, who had the quadbike, did the hunt have permission to be there? ETC
I think that the timing of the release of this film in relation to the review of the legislation will have a significant impact and more than justifies any potential threat to a successful prosecution.
It is beyond belief that clear evidence of a crime being committed can be deemed inadmissible unless a crime was committed by the people gaining the evidence. Trespass is not criminal: it is a civil offence and should have no bearing on the fitness of the evidence to be presented.
Any other interpretation is just the Establishment protecting its own.
I think there are two separate (but intertwined) issues:
1. The Crown appears to assume that irregularly obtained evidence will be deemed inadmissible, and there seems to be a reluctance to puruse some ‘test cases’ – even through the appeal process if necessary.
2. The ‘fruit of the poisonous tree’ is a distinctly American approach. The fact that the evidence was obtained irregularly (which includes illegal or unlawful methods) will not, in itself, lead to inadmissibility of evidence. But the test established by the judiciary is not particularly useful and its application is inconsistent (see my comment above).
(I don’t think it’s particularly relevant, but trespass can be a criminal offence when lodging, occupying or encamping on private land; and when encamping or lighting a fire on or near any road, cultivated land, or plantation. See: Section 3 of the Trespass (Scotland) Act 1865. http://www.legislation.gov.uk/ukpga/Vict/28-29/56)
I think that reference to trespass was overwritten by the access legislation- responsible wild camping is now perfectly legal.
Yes, the 1865 Act was amended in 2003 and subsection 2 of section 3 states that ‘Subsection (1) above does not extend to anything done by a person in the exercise of the access rights created by the Land Reform (Scotland) Act 2003’. But I don’t think trespass is relevant to this discussion, as subsection 1 relates to lodging, occupying, camping and lighting fire only, I just wanted to clarify that in certain (very limited) circumstances it can be an offence in Scotland.
Not actually that limited – BAA land, NWR land, MOD land, Hydro/Gas land and other some other statutory bodies land and, of course, RSPB land where designated hence the problems at Forsinard…….
If the Scottish Government is serious about curbing the obvious still very prevalent levels of raptor persecution, in addition to increased powers to the SSPCA it should ensure that the courts allow video evidence. There’s no excuse not to do either.
Should covert video surveillance footage be admissible in all criminal cases, or just those involving crimes against wildlife?
It is and has been – as long as it’s properly obtained. It was a lot easier in the days before RIPSA, and even now so long as properly authorised enforcement agencies can use it. The issue comes (as Adam notes above) with ‘irregular’ evidence, which includes (for now) SSPCA, RSPB and Joe Public. In many ways the law has not caught up with the 21st Century technology.
Has there not been cases of covert video being used to catch shoplifters in shops and stores etc. If so I don’t see the difference between using it for people stealing from shops and using it to catch wildlife criminals.
Shoplifters et al are stealing property – and property is sacrosanct. Penalties for theft of money are often out of all proportion to those handed down for cruelty to animals.
If the latter are indeed prosecuted at all.
Main problem in Scotland is Procurators Fiscal who do not want to take cases involving sporting estates to trial.
A sheriff should make the decision of admissibility not a fiscal who is looking for any reason to justify not proceeding to trial.