Video evidence loopholes to be closed with proposed new Scottish legislation on wildlife crime

Proposed new legislation in Scotland will have significant ramifications for those who continue to kill birds of prey.

The Animals and Wildlife (Penalties, Protections & Powers) (Scotland) Bill was introduced by Environment Cabinet Secretary Roseanna Cunningham on 30th September 2019 (see here for associated docs) and will, amongst other things, increase the maximum available penalties for the most serious animal welfare and wildlife offences.

For example, under the Wildlife & Countryside Act, the current maximum penalty available for intentionally or recklessly killing, taking or injuring a wild bird is six months imprisonment and/or a £5,000 fine with the case being heard in the Sheriff Court.

Under the proposed new Bill, the case could still be heard in the Sheriff Court where the maximum penalty would be 12 months imprisonment and/or a £40,000 fine, but the case could also be heard on indictment in a higher court where the maximum sentence would be five years imprisonment an/or an unlimited fine.

This policy document from the Scottish Government is worth reading for a clear explanation of what else is proposed under the new legislation.

These proposed changes are significant and very welcome – especially in light of the monumentally inadequate sentencing of convicted Scottish gamekeeper Alan Wilson recently (see here) although the new proposals still pale in to insignificance when compared with the zero tolerance penalties imposed in Spain (e.g. see herehere and here).

This Bill has been a long time coming – six years in fact – from 2013 when the then Environment Minister Paul Wheelhouse commissioned a review on whether penalties for wildlife crime should be increased, as a direct response to ongoing illegal raptor persecution. Professor Mark Poustie submitted his report and a series of recommendations, including a penalty increase, in 2015. The then Environment Minister Dr Aileen McLeod broadly accepted those recommendations in 2016 and the Scottish Government committed to progressing them in its 2017/2018 Programme for Government.

Importantly, the five-year custodial penalty is big news because effectively it would mean that Police Scotland would now have the authority to apply for permission, under the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA), to install covert cameras on private sporting estates for the purpose of detecting wildlife crime.

Currently, Police Scotland do not have the authority to seek permission to install covert cameras as part of an investigation simply because raptor persecution crimes do not merit a custodial sentence of three years or more. Authority can only be given if the activity is considered ‘proportionate’ and when the crime being detected is considered ‘serious’ (i.e. where the penalty would constitute a term of imprisonment for three years or more).

As we’ve seen in recent years, the RSPB has installed covert cameras at the remote nest sites of specially protected birds of prey and has recorded what is obviously a wildlife crime, but because the RSPB is a charity and not a statutory agency it is ineligible for RIPA/RIPSA authorisation so clever defence lawyers have been able to get cases thrown out of court on technicalities, and more recently some of these cases haven’t even reached court because the Crown prosecutors have decided the footage is inadmissible (e.g. see here and here).

It’s ironic that a law (RIPA/RIPSA) intended to protect the innocent has actually been exploited to protect the guilty and has undermined justice time and time again.

The Bill is currently at Stage 1 and is open to Parliamentary scrutiny. On 29th October the Environment, Climate Change and Land Reform (ECCLR) Committee took evidence from a number of Scottish Government policy officials and there was an interesting discussion about the implications of the Bill for police-led video evidence, and also questions about why the Bill didn’t include proposals to extend vicarious liability and increased powers for the Scottish SPCA. You can read the transcript here: ECCLR Animals and Wildlife Bill stage1_29Oct2019

In early December RPUK will be participating in a round-table discussion on this Bill at the Scottish Parliament.

15 thoughts on “Video evidence loopholes to be closed with proposed new Scottish legislation on wildlife crime”

  1. I applaud this initiative. I have pointed out to the minster that it is widely accepted that the greatest deterrent for crime is not the penalty, but the likelihood of getting caught. Detection and prosecution rates for raptor persecution are very low (only 1 successful prosecution out of 87 reported offences in 2017 and 1 in 68 in 2018), but it seems that increasing the penalty has had the aside effect of making covert surveillance allowable. However, the full gamut of laws relating to grouse moor management needs to be reviewed. Current provision does not protect our endangered mountain hares, the use of stink pits and snares, and lead and pesticide residues entering the food chain, so the question remains “Where is Werritty?”

    1. I hope the Werrity Report is released only after the general election so new MPs can be lobbied for action. It seems to me that if it was to be released during the election campaign then it could be quickly forgotten and swept under the carpet. So, for now, I hope the Werrity Report is held back for a short period.

  2. An excellent resume of the situation and the proposed new legislation, yet again thanks for the tremendous job which you are doing to keep us up to date.
    It is also testament to the ridiculously slow progress by government but credit to Roseanna Cunningham for eventually getting it started.

  3. Whilst I welcome this proposal I have concerns that if granted the difficulties police have in terms of resources , priorities and staff numbers will result in them using covert cameras in only a very few cases which will have limited impact and little reduction in crime levels.

    However granting SSPCA additional powers is a game changer and likely to have significant effect and result in a great many more prosecutions all over Scotland.

    We need more than window dressing to tackle what is a huge problem.

    1. Graham,
      Not sure if you have got it right about the SSPCA. If you read, in the transcript (P7) what Claudia Beamish (South Scotland) has to say about SSPCA involvement (or the absence of it) then there is a concern here.
      Early days yet. The legislation has some way to go before it can be effectively assessed.

  4. It will be interesting to see how this progresses through stages 1 and 2 within the committee and what amendments are proposed and passed (or not passed). The committee is made up of 3 SNP, 1 Green, 2 Con and 1 Lab. The position was similar when the Planning Bill was being considered where the SNP consistently voted together but relied on a vote from another party. I think the Green vote could be crucial in determining how amendments are voted on.

    I also note from the transcript of the meeting of the committee on 29 October that both Green and Lab have asked questions about extending the Scottish SPCA’s powers to wildlife crime. I don’t know if it is possible to propose such an amendment under this Bill. However, I would anticipate that if an amendment will be proposed to extend the SSPCA’s powers under the Bill, this will be voted against by SNP and Con.

  5. Great stuff! Given the SGA’s repeated comments that they are totally opposed to raptor persecution I’m sure they’ll really be waving the flag for this, the very few bad apples can now be taken out of the barrel!

  6. Not sure why SNP or Con would vote against it given the scale of the problem and the obvious difficulties police have with enforcement.

    SSPCA have a proven track record at investigating serious crimes involving all animals including wild animals and granting them increased powers would be at no cost.

    This is a opportunity to make a real difference and I would hope that all politicians would be in favour of reducing wildlife crime.

  7. All sounds great but will wait to see the appropriate legislation put in place and acted upon. Police Scotland just do not have the resources however and it will require support from the SSPCA investigation team to tackle the onslaught against predatory birds.

    Their work in dealing with the puppy trade highlights how just efficient they are in investigation, interrogation of suspects and working with the PF to get people into court to answer for their crimes and most importantly get convictions.

    Their success is an embarrassment to the present legal system for crimes against raptor populations.

    1. AnMac I agree with your views entirely.

      Allowing video evidence to be admissible sounds great however if there are no police officers available to deploy cameras or a more serious offence is competing for the cameras drugs, firearms, people trafficking etc wildlife crime will lose out every time and no one will argue otherwise.

      Wildlife crime is a single priority for the SSPCA and the results they have had clearly shows this.

      We need to get being this real opportunity to make significant reduction in wildlife crime.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: