As regular blog readers will be aware, the Crown Office & Procurator Fiscal Service (COPFS), the public prosecutors in Scotland, have, in the space of two months, either dropped or refused to prosecute five cases of alleged wildlife crime. These include:
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.
Two of these cases (Cabrach Estate and Brewlands Estate) were dropped due to the COPFS deciding that the use of RSPB video evidence, on which the prosecutions relied, was inadmissible.
There has been widespread public condemnation and political concern about these decisions, especially in the case of the alleged shooting of a hen harrier on Cabrach Estate in Morayshire. The Crown Office has attempted to explain the decisions but many questions remain unanswered for those of us who don’t have the legal expertise, or all the case details, to challenge the COPFS decisions.
We read with interest, then, a blog that was published yesterday written by Peter Duff, Professor of Criminal Justice at Aberdeen University. His blog, entitled ‘The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions?‘ deals specifically with the Cabrach & Brewlands cases and can be read here.
We thoroughly recommend reading it. It’s important to read the perspective of an independent, expert academic who has no axe to grind on either side of the debate. It’s hard for those of us who are either tainted by years of frustration about criminal raptor killers getting away with it, or those with a vested interest in raptor killers avoiding prosecution, to take an unbiased view of the law and its application, so Professor Duff’s opinion is a valuable contribution to the debate. Not only that, it’s great to see this issue receiving wider coverage than the usual commentators.
That’s not to say we agree with his interpretation though! In short, Professor Duff concludes that the COPFS decisions were “perfectly reasonable”, and he explains his reasoning for this, but, crucially, some of what he writes does not take in to account previous case law on this issue, perhaps because he was unaware of such cases?
For example, Professor Duff states: ” In my view also, for what it is worth, I agree that the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless“.
First of all, the Scottish courts HAVE excused the irregularity of obtaining video evidence without the landowner’s permission and far from those prosecutions being ‘fruitless’, they actually resulted in the conviction of the accused (e.g. see the Marshall trial here and the Mutch trial here).
During the Marshall trial, there were several hours of legal argument about the admissibility of the video evidence. The Sheriff accepted the video evidence, commenting that the RSPB presence on the gamekeeper’s estate [from where the video was filmed] was “neither illegal nor irregular, and the intent to obtain evidence did not make it so“. This is no different to the recent Cabrach case.
During the Mutch trial, again involving several hours of legal argument about the admissibility of evidence, the Sheriff accepted that the RSPB had not placed the video camera with the purpose of gathering evidence for prosecution, but they had placed it as part of a legitimate survey in to the use of traps. This is no different to the recent Cabrach case.
There is also an on-going trial at the moment (concerning alleged fox hunting) that relies heavily on video evidence filmed on privately-owned land without the landowner’s permission. The court has accepted the video evidence as admissible (although we can’t comment too much on this as the trial is still live).
So on that basis, we profoundly disagree with Professor Duff’s opinion that covertly filmed video evidence would not be accepted by the Scottish courts. It already has been, on several occasions, resulting in convictions. The question remains then, why did the COPFS decide it was inadmissible? Somebody within the Crown Office (presumably an experienced lawyer from with the Wildlife & Environmental Crime Unit) decided, when this case was first marked, that the video evidence was admissible. It took nine court hearings over a period of a year before the COPFS decided that the video evidence was inadmissible. We still don’t know the basis for that decision. And the other related question to this is why didn’t the COPFS let the court make the decision? It’s this inconsistency of approach that has caused so much confusion, and as Professor Duff writes, ‘bewilderment’.
Professor Duff also writes: “The actions by the RSPB [of placing a covert camera] are a breach of the right to privacy of both the estate owners and their employees (whilst not quite analogous, imagine if your neighbour installed a secret camera to record everything that went on in your garden)“. Sorry, but it’s quite absurd to compare these two scenarios given the size difference between these two types of landholdings. Nobody could argue that placing a covert camera to film somebody’s back garden wouldn’t be a breach of privacy, as you’d reasonably expect to see the human occupants on a daily basis. But on a multi-thousand acre estate, far from any private dwelling? Come on, “not quite analogous” is one hell of an understatement. And not only that, in the Cabrach case, the camera was aimed at the nest of Schedule 1 hen harrier, which by law cannot be approached/disturbed without an appropriate licence from SNH so you wouldn’t expect to film anybody anywhere near the nest.
All in all then, Professor Duff’s interpretation of the law, whilst useful, still doesn’t explain, or justify, the decisions made by the Crown Office in these two cases.
And questions still remain about the decisions to drop the other three cases (gamekeeper John Charles Goodenough of Dalreoch Estates; landowner Andrew Duncan of Newlands Estate; an unnamed gamekeeper of Edradynate Estate), none of which were reliant upon video evidence.
Raptor Persecution UK 
“A court would have to determine that the public interest in preventing wildlife crime of the type in question is sufficient to outweigh the unauthorised and deliberate invasion of privacy by the RSPB before it would admit the recorded evidence.”
Surely sufficient public interest in this matter has already been established?
Can I ask what Prof Duff’s motivation was to pen this article? Does he have shooting interests?
“Can I ask what Prof Duff’s motivation was to pen this article? Does he have shooting interests?”
In response, a comment from @RuralLaw on twitter, who also works in the Aberdeen University Law School:
“For the avoidance of doubt, Duff has no shooting interests that I know of. He is a keen Munro-bagger/outdoorsy-type”.
If Professor Duff did not know of the previous cases (surely he should have known), certainly COPFS did, which makes their decision a the more ridiculous. Although it is a matter of common law, my feeling is that there is likely to be an appetite in the Scottish Parliament to incorporate this in some way into Scottish law. I’m looking at the moment as to how this can be accomplished, although I have no training in law.
The problem seems to be the lack of consent from the landowner.
I’d suggest the simplest way to resolve the issue is as part of a licensing system for shooting estates.
Make it a condition of the licence that the landowner is deemed to have granted consent to, for instance, the RSPB, for the installation of covert cameras to cover nest and other sensitive sites.
That should allow video footage to be admissible.
And if the landowner withdraws consent and anytime then the licence would be automatically revoked.
Simple and straightforward.
No that makes far too much sense to be codified in law.
Now that the COPFS has replied I believe that I am in a position to propose a change in the law. I have previously indicated to the several MSPs that represent me that it was my intention to approach them regarding this. I would greatly appreciate anyone with a greater knowledge of criminal law than myself (none) would suggest if I have made any glaring or small errors.
I also intend to write to ECCLRC and look for an MSP to take this forward.
Here is my submission.
“The Law on admissibility of evidence.
The convener of the Environment, Climate Change and Land Reform Committee (ECCLRC) wrote to the Crown Office and Procurator Fiscal Service (COPFS) requesting clarification of the position regarding video evidence in Wildlife crime cases following the decision to drop prosecutions against Stanley Gordon and Craig Graham on the grounds that the video evidence would not be admissible. COPFS have now replied stating that “The admissibility of evidence in criminal proceedings in Scotland is largely governed by the common law“ and “Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised, the subsequent video evidence was obtained irregularly. The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.“
As the admissibility of evidence is governed by common law, and in similar cases previously COPFS have allowed prosecutions to proceed, which have had the evidence accepted in court resulting in convictions, it does appear that COPFS have used their revised interpretation of the law to drop the cases rather than allow the courts to decide on the merits of the case.
I find this to be extraordinary. It is not right that the deliberations of the COPFS be interfered with, but a situation now exists where video evidence which could be used to corroborate other evidence which would almost certainly lead to a conviction is now regarded as inadmissible, and guilty people will no longer be prosecuted for wildlife crimes corroborated only by video evidence.
Clearly some members of the public and ECCLRC will be dismayed by this new interpretation. The only solution that I can see is to amend the law, even though if COPFS had allowed these cases to go to trial as previously, no change in the law would be necessary, and people tried for crimes in wildlife cases would have had the admissibility of the video evidence decided by the courts.
As the admissibility of evidence is governed by common law and not the Act under which the person is being prosecuted this causes difficulty in deciding how any Act may be modified.
I therefore suggest that the Wildlife and Countryside Act 1981 be amended by adding in a Section 19B
entitled
“Admissibility of evidence in Scotland.
In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.”
I have considered whether this should be limited by saying say within 100m of a presently occupied house or having other requirements for admissibility, but the COPFS can still exert their powers to prevent unlawful recording being admitted, but I really just want the situation to revert to where we were before COPFS undertook to prevent the court from ruling on admissibility. “
The letter from the COPFS to the committee in response to their request is revealed in the blog and is available at
Click to access 20170530_COPFS_to_GD_response_letter.pdf
(sorry, don’t know if I can add a link)
I’m dubious about reasoning of the professor for the obvious reason you pointed out. COPFS put forward to the courts these other 2 cases which both admitted the evidence. What has changed?
Perhaps the Professor is just trying to shore up the dubious reasoning of COPFS.
When Augusto Pinochet was on trial here one of the judges was dismissed because he was a member of Amnesty International and so considered to be biased. Could those making prosecution impossible be scrutinised and disqualified if and when any connections are made with grouse shooting?
Please note change of email address. It is xxxxxxxxxxxxxxxxxxxx
Regards
Nigel Lewis
[Ed: Hi Nigel, we’re unable to edit blog subscribers’ email addresses. If you’ve changed address, you’ll need to subscribe again using your new email address]
An interesting comment from one of our Facebook followers:
“I note that Professor Peter Duff states that such video evidence might well be rendered inadmissible under the Regulation of Investigatory Powers (Scotland) Act 2000. Perhaps the professor does not know that that act only applies to statutory agencies, and not for example, the RSPB? The professor is clearly also ignorant of the fact that RSPB video evidence has in the past been deemed admissible in court and has resulted in sucessful prosecutions. An interesting read, however, it should be noted that the definitive authority on these matters are the courts, that is why it is so important for these cases to go to court and not have these decisions made in some opaque place by some nameless individuals. That will never engender public confidence in law enforcement justice”.
In that case perhaps the Professor would like to amend his blog on the subject?
Well let’s give him the opportunity (and time) to respond.
I too would like to know Professor Duff’s motive for this particular subject matter for his blog. I am extremely surprised that insufficient research appears to have been carried out by such an able academic – research that would have enabled him to write capably and knowledgeably.
His motive could simply be a genuine interest in the law – he’s a Professor of Criminal Justice after all.
However, we share your surprise at the apparent lack of research – it’s a shame because we would be genuinely interested in his comments about these other cases where video evidence was deemed admissible AND resulted in conviction.
Perhaps he’ll address this in a further comment?
And so his lack of research and omissions makes one wonder again what is motive was? If it was purely academic, one would expect a commentary worthy of one so qualified…
So the covert trap camera was not admissible according to the professor. What if the camera was in the hands of covert operator? What if the camera was in the hands an overt operator that simply had not been seen by the guilty?
Does the professor not know about access rights which specifically allow photography and defines public and private space…..
Access rights also allow for scientific research without landowner’s permission being necessary. If monitoring the breeding record of a pair of Hen Harriers isn’t scientific research, what is it?
Another interesting comment, this time from twitter user @JohnWMacPherson:
“His “privacy” comparison w/garden is invalid. Scottish Access Code clearly defines “curtilage” for lawful access. (NOT) in a garden. I “think” filming outwith “curtilage” is legal and an activity protected in law as it does not breach privacy if no privacy expected there”.
AND
“Anyway…for interest see this – to have land ‘excluded’ from Access Code & Right to Roam to enable ‘privacy’:
https://www.scotways.com/court-cases/193-mrs-ann-gloag-v-perth-a-kinross-council
thus suggesting (I think) that outwith ‘curtilage’ there is no right to privacy as it is publicly accessible”.
It will be interesting when licencing is introduced and we start to monitor muirburn by satellite photos.
The word “curtilage” is used in the Land Reform (Scotland) Act 2003 only to refer to an area of land around “a building which is not a house or of a group of buildings none of which is a house”. (Section 6(1)(b)(i))
Access rights are not exercisable in relation to land surrounding a (dwelling) house which comprises “sufficient adjacent land to enable persons living there to have reasonable measures of privacy in that house or place and to ensure that their enjoyment of that house or place is not unreasonably disturbed”. (Section 6(1)(b)(iv))
(I don’t think that it has much relevance to this discussion, but here is the full text of the case mentioned above http://www.bailii.org/scot/cases/ScotSC/2007/24.html
The decision in Gloag v Perth and Kinross Council 2007 SCLR 530 (Sh Ct (Tayside)) was that when considering the extent of the area over which access rights were not exercisable the “courts would have in mind what a reasonable person living in a property of the type under consideration would require, to have reasonable measures of privacy and to ensure their enjoyment of that house was not unreasonably disturbed”. There are a few cases focusing on section 6(1)(b)(iv), but I don’t think they are particularly relevant.)
Thanks, Adam. This topic has been discussed further on Twitter (too much to copy and paste here) but for those interested, it’s worth checking out @RuralLaw for informed opinion.
Professor Duff is employed at Aberdeen University along with Professor Steve Redpath of hen harrier brood management scheme fame is he not?
Yes, but that’s a pretty tenuous link, George. Aberdeen Uni employs a lot of academics, and these two are in completely different departments.
Yes, though both have outdoor interests, Professor Duff being a keen walker and Munro Bagger and Professor Redpath being a raptor expert, so it appears they might have a lot to chat about during any social occasions that might occur due their place of employment. I’m sure Professor Adam Smith (LL.D) of Wealth of Nations fame, had an inkling of what might happen in smoke filled
rooms…. but point taken.
Does the right to privacy extend to persons committing crime.
Is this in line with natural justice
Surely RIP (S)A is a piece or legislation intended to regulate “public authorities ” and not private individuals or organisations.
I am unaware of any legislation or guidelines that prevent or proclude such persons from gathering evidence of crime and making it available to enforcement organisations.
eg. BBC investigations
Surely public interest must be taken into account
Seems very strange that the crown and some within the police seem to be trying at all costs to prevent this evidence reaching a sheriff and God forgive being ruled admissable.
I am actually disappointed with Professir Duff’s commentary. As we’ve seen, it hasn’t embraced the full scope of the issue and the metaphor of the ‘back garden’ is just ridiculous.
So the illegal activities of estate owners can go on unchallenged because cameras can’t be installed in their ‘back gardens?’
In my opinion, his commentary does not give a sense of impartiality.
Also, we read that Prof Duff enjoys a Munro or two. In my experience as a fellow outdoorsy ‘Munro bagger’ type person, people who enjoy the mountains tend to be sympathetic to raptor protection and not so enamoured with absentee landlords and their shady goings-on in their ‘back gardens.
It’s a shame that someone of such qualification and experience has written something that merely bolsters the status quo…
You make a good attempt at praising the fact that this guy is objecting, independent with no axe to grind, and therefore what he has to say has some merit. Then you proceed to rubbish what he has to say, on the basis of your wholly non-objective, non-independent view, umpteen axes to grind opinion.
“Then you proceed to rubbish what he has to say, on the basis of your wholly non-objective, non-independent view, umpteen axes to grind”.
Actually, we didn’t. We challenged Professor Duff’s conclusions based on the fact that contrary to Professor Duff’s opinion, previous prosecutions have relied upon video evidence, which were accepted by the court, and did result in convictions.
I commented before, to the effect that issues of importance should be decided by the judges and not by civil servants in the Crown Office. It’s clear that this point can be argued both ways and this sort of situation is precisely why we have judges. I also happen to think that there is a vast difference between, say, placing a hidden camera in someone’s private house where one is present by consent of the owner and doing so on land which on has the right to be on, both at common law and under the Access Code, which remember was intended not to detract from existing rights. A ruling from a larger bench than made the previous decision is clearly required, otherwise we will all just be chatting among ourselves while the Crown Office ditches other cases.
Placing a covert camera on a nest,badger sett or trap in a rural and isolated location causes very little collateral intrusion
It is not the same as placing a covert camera on a residential garden or a place private or public that is busy and likely to intrude on any persons private life.
I’d we look at the cases in questions the only persons who had their privacy effected was persons who were committing crime.
Each case should be judged on its own merits and the gathering of evidence should not be judged to be inadmissible simply because the crown office judge RSPB or any other non public authority are not suitable.
The Mutch case clearly shows that a Sheriff rules this type of evidence admissable.
What is needed is more cases to reach court and some case law………..this won’t happen if the crown keep preventing this by chucking cases.
Highly illustrative of the old adage that the law is an ass and interpreters of the same sometime likewise – perhaps we need less law and more common sense. These type of legal arguments always remind me of the conundrums that the early Christian church embroiled itself in (if you like that sort of thing), arguing about inconsequential minutiae and missing the obvious.
But there again legal archimandrities do have vested interests in making the law as complicated (and expensive) as possible for their brethren.
” the only persons who had their privacy effected was persons who were committing crime” (Martin) – hear, bloody hear!
Pip
Well, here we are again….during the attempts at prosecutions using video evidence in the [quite] recent past, some of which are mentioned above, many of the legal arguments put forward by Professor Duff were mulled over by QCs and of course Sheriffs. I always thought the case to allow such evidence was overwhelming [but I would wouldnt I!?] …but I had a niggling doubt that there was some other factor at play – a desire for the legal establishment to avoid a binding decision as it would affect the prosecutions of what they considered, far more serious crime. Well I suggest that now is the time to flush all that out – lets have an appeal case that will set the Law..and if the result is found wanting by the public, lets change the Law.
I don’t see how we can have an appeal case. Clearly COPFS intend that there will be no prosecutions using corroboration from video evidence. There can be no appeal against a conviction or indeed a case which never happened. COPFS have made new law, despite people having been convicted using video evidence recently.
I agree that we should change the Law.
If the law agrees that these birds need protection, then the RSPB, RPUK, BTO etc, should be able to request that any and all known HH nests be monitored by camera whether on estates or otherwise, (I do not know the laws on ‘right to roam’ in Scotland, does it include shooting estates?), as part of their normal research, monitoring process for subject birds, and therefore any human breach of the protection laws may be condemned and prosecuted?
I have decided that the quickest possible way to get a change in the law is to write to the convener of the ECCLRC.
Here is what I have written:
The convener of the Environment, Climate Change and Land Reform Committee (ECCLRC) wrote to the Crown Office and Procurator Fiscal Service (COPFS) requesting clarification of the position regarding video evidence in Wildlife crime cases following the decision to drop prosecutions against Stanley Gordon and Craig Graham on the grounds that the video evidence would not be admissible. COPFS have now replied stating that “The admissibility of evidence in criminal proceedings in Scotland is largely governed by the common law“ and “Crown Counsel concluded that the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised, the subsequent video evidence was obtained irregularly. The irregularity was not capable of being excused, for the purposes of the common law of admissibility, and it followed, on the application of the common law principles to which I have referred, that the evidence was inadmissible.“
As the admissibility of evidence is governed by common law, and in similar cases previously COPFS have allowed prosecutions to proceed, which have had the evidence accepted in court resulting in convictions, it does appear that COPFS have used their revised interpretation of the law to drop the cases rather than allow the courts to decide on the merits of the case.
I find this to be extraordinary. It is not right that the deliberations of the COPFS be interfered with, but a situation now exists where video evidence which could be used to corroborate other evidence which would almost certainly lead to a conviction is now regarded as inadmissible, and guilty people will no longer be prosecuted for wildlife crimes corroborated only by video evidence.
Clearly some members of the public and ECCLRC will be dismayed by this new interpretation. The only solution that I can see is to amend the law, even though if COPFS had allowed these cases to go to trial as previously, no change in the law would be necessary, and people tried for crimes in wildlife cases would have had the admissibility of the video evidence decided by the courts.
As the admissibility of evidence is governed by common law and not the Act under which the person is being prosecuted this causes difficulty in deciding how any Act may be modified.
I therefore suggest that the Wildlife and Countryside Act 1981 be amended by adding in a Section 19B
entitled
“Admissibility of evidence in Scotland.
In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.”
I have considered whether this should be limited by saying say within 100m of a presently occupied house or having other requirements for admissibility, but the COPFS can still exert their powers to prevent unlawful recording being admitted, but I really just want the situation to revert to where we were before COPFS undertook to prevent the courts from ruling on admissibility.
It is interesting to note that the letter from COPFS comes from the head of department, Sara Shaw.
She said in 2014 about a conviction which relied on video evidence, recorded on the COPFS website:
“Birds of prey are given strict protection by our law. Goshawks in particular are rare birds: the court heard evidence in this case that there are only about 150 nesting pairs in Scotland.It is highly important to preserve Scotland’s natural heritage, including the wildlife that forms part of it. Our environmental laws exist to provide this protection. This case involved serious contraventions of those laws. The conviction of Mr Mutch and the severity of the sentence given by the Court highlights that message. COPFS will continue to prosecute such cases where appropriate to ensure that offenders are brought to justice.”
I would like COPFS to continue to prosecute such cases again.
Can I please ask that you reply to Sara Shaw at COPFS and ask what measures in Law would need to be taken to allow this to happen. While I believe my suggestion above is simple, elegant and would be adequate, I have no qualifications in criminal law, and COPFS would be the place to go to get a suggestion before approaching your own experts.
If you do not wish to do this, please let me know, in order that I may resume my quest for this change through the MSPs who represent me.
I have written a post on my blog supporting my petition to the Scottish Parliament
http://www.parliament.scot/GettingInvolved/Petitions/PE01705
which calls on the Scottish Parliament to urge the Scottish Government to review legislation relating to the investigation of and penalties applicable to wildlife crime in Scotland.
The blog post is
https://amilne.co.uk/Wildlifecrime/a-review-of-blogs-posted-on-the-aberdeen-university-website-about-video-evidence-in-wildlife-crime-cases/
Whilst not at all seeking to attack the persons involved, and after a thorough investigation of the applicable laws it seeks to provide a different view, using only my understanding of the law, of the statements in the Aberdeen University blogs. I do not believe my views to consist of “alternative facts”, but are carefully considered using my limited but thoroughly resaearched knowledge of the law.
The main items covered are whether a policeman could legally set a covert camera on discovering an illegal trap (not likely but allowable), consideration of the application of the European convention on human rights(ECHR) Article 8 which has been asserted to prevent evidence being used which is a breach of the privacy of the landowner and his or her employees who work on the estate (it depends), the Data Protection Act 1998 (not applicable to the RSPB here) and the Regulation of Investigatory Powers (Scotland) Act 2000. It only covers the application of the law to the Craig Graham case.