Fox-hunting duo convicted on basis of covertly-filmed video evidence

Well this is all very interesting.

Today, after a long-running court case, two members of the Jedforest Hunt in the Scottish Borders have been convicted at Jedburgh Sheriff Court of illegal fox hunting (see BBC news article here and League Scotland article here).

The prosecution case relied heavily upon covertly-filmed video footage, filmed by investigators from the League Against Cruel Sports Scotland. We have previously spoken to one of those investigators who confirmed that he was filming covertly on private land without landowner permission as part of a wider research project on the behaviour of hunts, whether the hunts were involved in alleged criminal activity at the time or not.

The video evidence was accepted as admissible by both the Crown Office and by the court. We’ve even read Sheriff Paterson’s written judgment and there is no mention whatsoever about the admissibility / inadmissibility of the video evidence. It was not deemed to be an issue.

So why the hell was the video evidence in the Cabrach hen harrier shooting deemed to be inadmissible by the Crown Office, before it got anywhere near a court? Does video evidence only become an issue if you have the word ‘gamekeeper’ associated with it?

The circumstances of the collection of video footage in both cases are remarkably similar (no landowner permission, and film work undertaken as part of a wider monitoring project) although there is an important distinction, but we think this distinction should actually have favoured the admissibility of the RSPB’s footage more so than the League Scotland’s footage.

Due to the nature of what they were filming (a fox hunt), the League Scotland investigators would reasonably expect to capture footage of individuals that presumably could be later identified. If you do that, you enter a minefield of legislation about the use of personal data / private information that is subject to the terms of the European Convention on Human Rights, as discussed recently by Dr Phil Glover of Aberdeen University Law School (here).

Whereas the investigators from RSPB Scotland had placed their camera pointing at the nest of a specially-protected hen harrier, miles from any private dwelling. Given the species’ Schedule 1 status, the investigators would not have expected to capture ANYBODY on camera unless they had a Schedule 1 disturbance licence giving permission to visit the nest.

You’d think then, based on the circumstances, that the RSPB’s video evidence would have sailed through but the League Scotland’s video evidence would have come up against more opposition. But what actually happened was the complete opposite!

Today’s judgement is a very good result for League Scotland (and well done to them) but it just throws up more questions about the inconsistency of the Crown Office when deciding whether video evidence is admissible or not.

If anybody with legal training is able to help us understand this seeming disparity, please give it a go.

29 thoughts on “Fox-hunting duo convicted on basis of covertly-filmed video evidence”

  1. My immediate thought is the reason for the cameras being there in the first place. I am very much a novice to the issue of raptor persecution/protection; I am an enthusiastic birder and a recently retired senior English police officer. In the case of the nest camera/s, if the reason was to protect the nest, a covert camera is not going to do that unless it is monitored with a plan as/when/if the nest is threatened. In the case of the fox hunt, with intelligence to support the installation and reasoning as to why no other tactic has/will succeed, The Regulation of Investigatory Powers Act (Scotland) (RIPA) covers the installation/management and it MAY be that the requirements were satisfied in the fox case and not the nest.

    1. I do not see why RIP(S)A should apply. RIP(S)A provides specified public authorities with a regulatory framework within which covert activity can be undertaken lawfully. The public authorities are named. I do realise that some commentators have suggested that it should cover all cases of covert cameras but frankly that is total nonsense, intended only to justify a point of view in support of COPFS.

      1. Indeed, RIPSA, far from being the snoopers charter made out be the press, was actually a response to the Human Rights Act, and regulated what had previously been an area with a wide range of ways of accessing personal data. Used to be you could get itemised telephone records just by faxing a letter to the provider stating the Act you were investigating and the powers that gave you.

        The interpreatation of the HR A is perhaps the problem, as the Convention right to privacy was intended originally as a right to privacy from intrusion from the state, but the Courts extended that to include others such as media etc

      2. I do not seek to justify any authorities’ throwing out evidence. I despise any animal cruelty and want any offenders brought to justice. I have looked at the list of those agencies covered by RIPA, police forces are but RSPB is not. I wonder if Courts use the RIPA regulations as a generic guide to the lawfulness of installations and so the admissibility of evidence given the camera’s use is to identify offences and offenders and then support their prosecution.

      3. The BBC says that those convicted intend to appeal against the decision. Since the decision by COPFS I could see no way of any covert video evidence going to an appeal where a set of senior judges could make a decision and set the common law decisions on firmer ground. If those convicted do appeal then perhaps there is a possibility that the change by COPFS can be dismissed. I have no faith that this will happen however as the legal profession will possibly merely confirm that they prefer criminal activities by estate employees which are seen on video to be ignored. Thus I fully intend to keep going the crusade for changes in the law to allow the RSPB and others to take covert footage of wildlife crime and have it accepted by the courts where as long as they are doing so in a similar fashion to the cases in question. I’m encouraged that many others are also pressing for action.

  2. The League’s site has the video footage. If you’re not convinced of the deliberate law breaking by these people then take a look at the video and see whether these hunt supporters are ‘sportsmen’ who made a genuine mistake or heartless, disgusting scoundrels who first deliberately tried to stop the fox seeking refuge in its earth and then dug it out, released it and set the nearby pack on it! Shooters and hunters. They’re one and the same as far as I’m concerned.

    1. Shooting and hunting people are NOT all the same. There are good and bad everywhere, and I can assure you I’ve encountered some pretty unpleasant thugs who were hunt saboteurs thinking they were fully justified in violence and law breaking. I’m sure you, lizzybusy, would be upset at being considered to be “one and the same” as these people.

      1. Well put Chris.
        However i have to remind myself not to buy into the paradigm. In spite of all the trappings it all boils down to killing for fun.
        Others have written on these comments to remind us of that fact. I had to strip that down to its bare bones to let it sink in because we repeat it or hear it so often it is easy to forget what it means. Mark Avery, a clever man, uses it a lot, for a reason.
        It doesn’t matter to me if it is the nicest person in the world, it is still killing for fun.

      2. Maligning hunt saboteurs, where the violence is overwhelmingly by hunt supporters against sabs, LACS observers etc. is a pretty pathetic attempt to justify that one group of wildlfie killing psychopaths is better than another. Anyone killing any wildlife for fun is a sick excuse for a human being: whether with a gun or with hounds. Trying to draw a distinction between them just shows up your particular prejudice.

      3. though I am expecting that my comment will be erased, I must say that in my experience hunt saboteurs and monitors are only there to enforce the Anti Hunting Laws. the Hunt thugs who are sometimes brought in are extremely violent and if sabs are not careful their cars are vandalised. so please do not besmirch those sabs and monitors who risk their lives literally. Go out there yourselves and watch before you lay blame on people. This is the reason why some sabs have to wear masks. Most actually don’t. Foxes do not need controlling and Hunts exist because many enjoy and get very excited about the chasing to exhaustion and then the ripping apart of the fox. Cub hunting will begin soon. Sadism seems rife in the countryside.

        1. In many years of witnessing fox hunts and hunt saboteurs, I have never seen the latter using violence, despite such frequent claims being made by hunt supporters. Even more ridiculous are the allegations that hunt saboteurs (unashamed animal lovers) inflict harm upon the hounds. Personally I have been threatened with assault, and even more serious consequences from hunt supporters, particularly those known as “the terrier men,” simply for expressing an opinion. Personal friends among the sabs have been physically assaulted on many occasions, even to the point of one very peace-loving individual almost losing an eye after being struck in the head with a spade. I would however add that it is undoubtedly a minority of supporters in this local hunt who resort to violence, but that violence can be quite extreme sometimes. The official huntsmen tend to restrict their actions to verbal abuse against the protesters, and in my experience anyway, the women stay well clear. The most important conclusion I’ve drawn, in years of observing from the sidelines, is that the violence is almost completely one-sided, and any that I’ve witnessed on the part of saboteurs has been in self defence. The reason I’m so familiar with fox hunts is because the local hunt kennels are near my home, and the area of countryside they hunt is where I grew up as a birdwatcher.

  3. I would presume that the convicted were not in the employment of the Independent Estate Land owner whether it be sole or corporate ownership or have any connection with them. I think you can guess what am suggesting.
    Yeah wink wink say no more as they may say in certain circles. If am wrong ……..

  4. It does seem somewhat irregular. Evidence against hunting which results in a prosecution is very hard to get and the evidence supplied by LACS was about as good as you can get. I’m currently the prime witness and supplier of video in another case against the xxxxxxxxxxx hunt which has been dragging on since Jan 2016, we hope to go to court in August. However I have been told that as a civilian I can gain evidence on private land without the owners permission whereas the police can’t. Their words, “get the evidence that we’re unable to”.

    Now I’m unsure of the laws in Scotland but I fail to see the difference between the LACS evidence and that supplied on the HH shooting. One can only assume there are darker forces at play here.

  5. COPFS are clearly making it up as they go along.

    Specialist wildlife fiscals are surely intended to use expertise and knowledge in what is a technical area. Unfortunately this appears not to be the case and someone within COPFS is making very questionable decisions to prevent cases progressing.

    Whilst it is fully appreciated that COPFS should be able to make decisions based on the law and public interest there needs to be consistency and transparency to ensure credibility and trust.

    If wildlife crime is a priority then COPFS should play their part and allow these cases to progress and allow a Sheriff to interpret important legal matters including, admissibility, proportionality and levels of entrusion. .

    I hope they are feeling the heat

  6. Could it be because the footage of the fox hunt was actually filmed by a person and the RSPB footage was from an unmanned camera? It’s the only difference I can see. The admissibility of remote cameras needs to be changed quickly!

    1. That’s what I thought, maybe the LACS footage is admissible since it was proof of a witness statement, rather than evidence on it’s own. But I am no lawyer.

  7. In terms of intrusion into a person’s private life.

    Scenario 1. Covert filming on land without landowners permission with the expressed intention of gathering evidence of suspected criminal activity by an organisation that is not a public authority. Sheriff rules evidence as admissable and finds guilty.

    Scenario 2. Covert filming on land without landowners permission for conservation and with no expressed intention of gathering evidence of criminal activity by an organisation that is not a public authority.

    COPFS rules case should not proceed.

    It could be argued that as this first case involved a high level of intrusion as it involved a persons privacy and the second case very little as it involved a birds nest.

    The difference appears to be one involved the illegal activity of a sporting estate.

  8. Like most interested parties here, I’m am intrigued about why the surveillance evidence in a hunting case was not opposed by the defending solicitors or ruled inadmissible by the Sheriff. I’m not a lawyer but I wonder if the answer lies in rulings of the ECtHR on 24.11.2009 on the applications of Brian Friend (application number 16072/06) and the Countryside Alliance & Others against the UK (application number 27809/08), together with previous rulings by the Inner and Outer houses of the Court of Session and the House of Lords on the issue of hunting legislation being a breach of human rights. The court confirmed the decisions in the U.K. Courts that hunting with dogs is a public activity, therefore the participants are not entitled to the protection of Article 8.

    1. Steve looks like you could be onto something here and this may be the reason why the defence did not pursue this angle.

      And whilst it potentially explains why the evidence involving the foxhunting case was admissable it doesn’t explain why a covert camera pointed directly at a birds nest and not a person has been judged inadmissible.

      Can it even be ruled as directed surveillance?

      It was not directed at any person.
      It was not intended to gather evidence of criminal activity.

      In terms of intrusion into private life I would have thought that covertly filming members of the public in a private place was far more intrusive.

      Copfs are making it up as they go along

      Let’s see if we can get some of these cases into court and see how a sheriff interprets these issues……..I bet a sheriff will not have the same difficulty as copfs have.

      Same rules apply for wildlife crime as any other crime.

  9. And remember, if you will, that in Scottish Law, evidence need to be corroborated, that’s why their cops patrol as a duo. The hand-held footage can be substantiated by the operator whilst a lone camera cannot.

      1. The white lines on the road and the vehicle’s time between the first and last are the corroboration.

        1. The flight of the,the sound of a shot gun, a scattering of feathers and a bird falling the ground, man appears within, 20m of the nest,
          flipping heck if that isnt corroboration of a offence/ crime.Have RSPB to take a tin of paint out with them and draw lines on the moorland ?
          We all know the reason it was not submitted the same reason no one was the subject of a report to the PF re the Conner Bridge incident.

          1. What the camera shows is just one evidence source. If you had a few feathers, or the dead Harrier, or an eye witness, or an admission in interview, ……I’m on your side, don’t forget. I’ve had 30 years as a cop and having to let the guilty go free as the evidence wasn’t there. I really do share your pain

    1. Good pointment and that’s the purpose of a follow up investigation

      Identify a suspect
      Seize identifiable clothing /equipment
      Identify a motive
      Access to locus

      All this could potentially corroberate video footage.

      Nothing here is anything but routine criminal investigation so what makes it differenter?

      Answer: the copfs apparent reluctance to allow these cases to proceed.

  10. The accused Riley and Richardson in the Fox Hunting case have lodged appeals against conviction. A judgement report from the Sheriff will not be available until the end of the month.

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