Crown Office drops 5th case of alleged wildlife crime

Public prosecutors from Scotland’s Crown Office have dropped yet another case of alleged wildlife crime.

According to an article in the Sunday Post (see here), gamekeeper John Charles Goodenough, 32, had been charged after he was allegedly caught with illegal gin traps covered in animal blood, with dead fox cubs found nearby, in May 2016. It is reported Goodenough was employed at the time by Dalreoch Farming & Sporting Estates, owned by the well-connected Wellesley family. It was alleged that Goodenough was using the illegal traps on a neighbouring farm in Ayrshire.

The case was due to be heard at Ayr Sheriff Court on 27 March 2017 but two days prior to the hearing, the Crown Office dropped the case ‘after getting the dates wrong on its paperwork’.

This latest case brings the total of recently abandoned prosecutions for alleged wildlife crime to five. That’s five abandoned cases in the space of two months:

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 April 2017 – gamekeeper Stanley Gordon (Cabrach Estate), accused of the alleged shooting of a hen harrier. Prosecution dropped as video evidence deemed inadmissible.

25 April 2017 – gamekeeper Craig Graham (Brewlands Estate), accused of allegedly setting and re-setting an illegal pole trap. Prosecution dropped as video evidence deemed inadmissible.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Given how difficult it is to get just one wildlife crime case anywhere near a court, to have five abandoned in the space of two months does not inspire confidence in the criminal justice system.

In fact such was the public concern about some of these cases being abandoned due to the supposed inadmissibility of video evidence, last month the Scottish Parliament’s Environment Committee wrote to the Crown Office to ask for an explanation (see here).

The Crown Office has now responded with this: COPFS letter to ECCLR_EvidenceAdmissibility_May2017

We are not legally qualified to comment in depth about how good or how poor the Crown Office’s response is. If any of our legally-minded readers (Adam?) would like to comment, please do so.

However, what we can say is that this response does not address the question of why the Crown Office made the decision about inadmissibility instead of allowing a court to decide, as has happened in previous cases (e.g. see here).

Nor does this response address the question of why the Crown Office did not believe the RSPB ‘s explanation for their use of video surveillance for monitoring a hen harrier breeding attempt at Cabrach Estate. The Crown Office maintains, without explanation, that the RSPB had installed the video ‘for the purpose of detecting crime’, whereas the RSPB maintains the camera was installed as part of a legitimate monitoring study, an explanation which had been accepted by both the Crown and the court in a similar situation in another case (here).

The RSPB’s case is not so strong in the Brewlands Estate case, where a camera was installed to monitor an illegal pole trap (a trap that the RSPB had since made safe by flicking on the safety catch), although the circumstances might have been different had the police been able to attend the scene as soon as they were notified of an illegally-set trap. Nevertheless, the fact that the Crown Office allowed a year’s worth of court hearings to pass by before deciding to abandon this case, and their unwillingness to communicate their specific concerns to the RSPB, is yet to be adequately addressed by the Crown Office.

The Crown Office’s response also does not explain (although to be fair, it wasn’t asked to) why dropping the prosecution against Andrew Duncan for alleged vicarious liability was deemed to be ‘not in the public interest’, and nor does it explain why a prosecution was not brought against the unnamed Edradynate Estate gamekeeper for the alleged poisoning of three buzzards, despite pleas from Police Scotland to do so.

The Crown Office’s letter to the Environment Committee ends with this:

COPFS remains committed to tackling wildlife crime, including raptor persecution. There is a strong presumption in favour of prosecution in cases reported to the Service where there is sufficient admissible evidence and prosecution is in the public interest‘.

You could have fooled us.

To be honest, as frustrating as it was to see these cases abandoned for what seem to us to be spurious reasons, the Crown Office’s unimpressive performance has probably helped move things along, because these dropped cases came at the time when the Scottish Government was already under severe public pressure to do something other than make vague promises to tackle wildlife crime. That’s not to say we are pleased with the outcome of these cases – far from it – but it’s quite likely that these failed prosecutions helped tip the balance and persuaded the Scottish Government that actually, the current system is failing and they need to find new ways of addressing the problem.

30 thoughts on “Crown Office drops 5th case of alleged wildlife crime”

  1. I’m probably naive but is it too much to ask that we have a legal system that is more concerned with the actual crimes committed than errors on paperwork? If it is a simple mistake, why can’t it be corrected? And why can’t those whose job it is to do that take any responsibility? Too many questions I guess, just seems strange that the odds always seem stacked in favour of the (alleged) criminal…

  2. The Crown Office ,it’s management and or directorate is, [in my opinion] clearly a distorted ,false or crooked institution where the issues of raptor killing is concerned.Rather an authorised institution of illegal poachers such as kill the Elephant and wildlife of Africa.But as ever this land is democratic.

  3. Another suggestion for the Crown Office and its directorate is that they issue all shooting estates with a book of chits on which gamekeepers,estate owners and the like can record the kills of wild life upon which they may justify each case.This would save police time and effort.

  4. Strikes me that they’re making it up as they go along. Surely any issue over the admissibility of video evidence should be limited to whether it accurately shows a crime being committed, where it is happening and who is involved. How the evidence was obtained should be immaterial. Time for the law/reported case law to be reviewed and clarified.

  5. The Goodenough case sounds like a most unfortunate error, though obviously good news for the accused and, presumably, his employers.

    One can only hope that the estate does not suffer any adverse publicity as a result.

    I can’t help but wonder though just exactly what the mistake with the dates was, whether the mistake was fatal to the prosecution or whether the prosecution might have been able to ask the Sheriff to use his/her discretion to allow the case to proceed.

    I don’t suppose we’ll ever know.

  6. According to their website the Dalreoch Farming & Sporting Estate “believes that visitors come to South Ayrshire to appreciate the scenery, wild-life and the unspoilt countryside”. Evidently, foxes (and who know what other kinds of wildlife) are excluded.

    [Ed: Please note, the article in the Sunday Post alleged that the gamekeeper was using the illegal gin traps on a neighbouring estate. It’s not clear from the article whether Dalreoch had a formal agreement with the neighbouring estate for pest control, or whether the gamekeeper was acting (allegedly) of his own accord. Be careful not to libel the estate]

  7. I was a solicitor for many years in general practice and also tutored in law at Glasgow Uni, although not a specialist in criminal law. As the Crown Office say, the law on admissibility is common law, i.e. judge made law rather than statute. Laurie v Muir was a significant case, as Lord Cooper was a free thinking judge who clearly felt that a stand had to be made against illegal searches and the court did so by disallowing the evidence obtained. The case is also interesting, as an example of a full bench of judges being convened to state an important point of principle. Surely it would be better for the Crown to test the law by running a case and allowing the judge, or perhaps even a full bench, to restate the position in light of developments since 1950? Access to the countryside is, I believe, partly common law again and partly statutory under the Access Code. It is not obvious that just because a specific right to do something isn’t granted under the Code doing that thing becomes illegal. Basically we are looking at new technologies and new laws and it does not seem right for civil servants to concede in advance points which might well be upheld in court.

    1. The difficulty with that approach would be that the sheriff might have admitted the evidence. The approach you have stated would have been excellent. I assume that someone did not want this to happen, as it clearly should have done. COPFS should not have been deciding this on their own, effectively writing their own new and distorted version of the law.

  8. Don’t rock the boat of the money people, we don’t want them leaving Scotland, this is coming from higher up the chain, find the slightest excuse to get rid of as many cases against the landed gentry as possible, [allegedly] killing fox cubs with illegal traps he must be rightly proud of himself, so must the person xxxxx xxxxx xxxxx xxxxx xxxxx because of a spelling mistake. Hope there are some photos of the fox cubs so we can add them to the gift of grouse poster along with the piles of mountain hare bodies and the dead raptors

    [Ed: Again, please be careful. The offences were only alleged and since the prosecution has now been dropped the gamekeepers innocence or guilt cannot be ascertained]

  9. It was suggested some time ago (can’t now recall where) that the instructions from the top were that wildlife crime was to be seen as a low priority. The recent evidence all suggests that this is a deliberate manipulation of the legal process and we all need to do all we can to keep highlighting what is happening. And don’t t vote Tory on thursday! Yes-it is political!

  10. What I find particularly annoying is that I have defended cases where the PF has gone ahead with a prosecution even though there is clearly no merit, public interest or sufficiency of evidence. It was not a regular occurrence but it did happen (and in some cases proceed to trial) despite trying to convey this to the depute. I feel like the Crown Office is portraying itself on some kind of high horse that it would never prosecute where there is any irregularity but this is simply not true. For example, there was a time when the PF raised proceedings against an elderly lady for a breach of the peace because she was playing loud music in her house and was singing to it. The neighbour complained (it was really just two neighbours who didn’t get on) that the lady was screaming and shouting obscenities. There was no corroboration! It went to trial and the lady was found not guilty on the basis that no crime had even occurred! That clearly should never, ever have made it to trial and the PF told me he would have discontinued proceedings if it weren’t for Crown policy requiring him to proceed.

    1. Winston, I can understand that, as I had similar experiences. At the start of my career it was normal for the PF to have quite a bit of professional discretion, but as time went on one felt that they were all on some sort of points system and incapable of making any independent

      1. I get the impression that the defence side in these cases make it clear to COPFOS that they will challenge everything, every step of the way, and have more or less unlimited resources available to do so.

        It might not work in every individual case, but taken cumulatively, it might just affect the attitude of Crown Counsel when considering whether or not to proceed with a particular case if it will result in time and resource consuming proceedings with no guarantee of success. And I wouldn’t rule out a PR company lobbying the Scottish Government in the background questioning the cost effectiveness of these prosecutions.

  11. Corrupt and not fit for purpose. Wildlife crime has been given one of the lowest priorities in the CPS and cases are just not followed up because they claim not to have the resources to effectively prosecute them. Me – I think money talks.

  12. Section 96 Criminal Proceedure (Scotland ) Act 1995

    2)It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the indictment by deletion, alteration or addition, so as to—
    (a)cure any error or defect in it;
    (b)meet any objection to it; or
    (c)cure any discrepancy or variance between the indictment and the evidence.

    This would include changing a date.

    Unless it was deemed unfair or prejudicial to the accused.

    Common denominator in all these recent cases appears to be the word gamekeeper!

    Is it the same person making these decisions.

    1. Many thanks for this info, it is nice to know that there is provision to allow for use of common sense, but at the same time raises more doubts about why the case was thrown out, could it therefore be that someone was looking for an excuse to abandon it?

    2. None of these cases were on indictment, so section 96 is not relevant. Section 159 deals with the amendment of the complaint in similar terms:

      (1)It shall be competent at any time prior to the determination of the case, unless the court see just cause to the contrary, to amend the complaint or any notice of previous conviction relative thereto by deletion, alteration or addition, so as to—

      (a)cure any error or defect in it;

      (b)meet any objection to it; or

      (c)cure any discrepancy or variance between the complaint or notice and the evidence.

      (2)Nothing in this section shall authorise an amendment which changes the character of the offence charged, and, if it appears to the court that the accused may in any way be prejudiced in his defence on the merits of the case by any amendment made under this section, the court shall grant such remedy to the accused by adjournment or otherwise as appears to the court to be just.

      (3)An amendment made under this section shall be sufficiently authenticated by the initials of the clerk of the court.

      According to the Sunday Post article “Legal sources at the court say the Crown abandoned the case two days before it was to be heard after getting the dates wrong on its paperwork.” (which may or may not be true). It’s possible that the case reached a time bar, perhaps due to someone “getting the dates wrong”.

  13. As much as most of us might think the dropping of these cases is disgraceful, maybe it’s the final plea bargaining in the run up to whatever licensing might be brought in…

  14. Some interesting contributions here. But your last para is surely right. In the end it probably does not matter too much what has gone wrong – even if it has a tang of corruption – if it helps move us forward : which it has. Just so long as the pace now seriously quickens.

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