Author: RaptorPersecutionUK

Why the video evidence was ruled inadmissible in the Bleasdale Estate case

We’ve been reporting on the case against Bleasdale Estate gamekeeper James Hartley since September 2017 (see here, here, here, here for previous posts).

The case against Mr Hartley collapsed recently after the judge ruled the RSPB’s video evidence inadmissible.

In a series of blogs we’re examining what happened in this case.

In part one (here), we set out the nine charges against Mr Hartley relating to the alleged shooting of a peregrine and the alleged spring-trapping of a second peregrine on the Bleasdale Estate, Bowland, in April 2016. We outlined the evidence as presented to the court by the Crown Prosecution Service, the defence’s skeleton argument calling for the video evidence to be ruled inadmissible, and other technical issues relating to further evidence which the defence argued should also be ruled inadmissible. We also commented on the quality of the presentations by both the CPS barrister and the defence QC.

In this blog we discuss the legal argument surrounding the admissibility of the RSPB’s video evidence and the judge’s explanation for why she ruled the evidence inadmissible. In later blogs we’ll discuss the other issues raised, including the RSPB’s alleged breach of the Data Protection Act and the alleged breach of the Police and Criminal Evidence Act during the police search of the nest site and surrounding grouse moor.

Before we get in to the details of the legal arguments for and against the admissibilty of this particular video evidence, it is worth bearing in mind the statement made to the court during the first court hearing in September 2017, by the defendant’s solicitor, Tim Ryan:

“My client did not carry out the alleged offences and is not the person shown in the video footage“.

Unfortunately the strength of this argument and the evidence to support it remains untested in a court of law.

It’s also worth noting the judge’s comments to the court before her ruling on the admissisbility of the video evidence:

“I must remark that reaching a decision in this case has been made all the more difficult by the Crown declining to call live evidence [i.e. RSPB witnesses], despite the court inviting the Crown to consider doing so. The CPS website when addressing cases of this type states:

‘…Where surveillance product is to be relied upon, the question of whether that surveillance was overt or covert and was carried out at the initiation of or with the encouragement of the police in circumstances likely to result in private information being obtained, are questions of fact to be determined in each individual case…’

Even with that guidance, the Crown in this case ask the court to make such findings on the basis of written evidence alone. They have given no explanation as to why they do so. I find that approach most unusual“.

That statement alone probably summarises all you need to know about this particular case. The video evidence was crucial to the prosecution’s case, and yet the prosecution barrister missed opportunity after opportunity to challenge the defence QC’s legal arguments against its use.

On to the legal argument.

We’ve prepared an edited version of the court’s ruling on the admissibility of this particular video evidence, as delivered by District Judge Goodwin on 14 March 2018. We have redacted several names of witnesses and the peregrine nest site name, for obvious reasons.

This document summarises the defence’s argument against the admissibility of the video evidence, the prosecution’s counter-claims (such as they were), and the judge’s consideration of each point.

Download it here: Bleasdale RIPA_RPUK copy

A few thoughts….

The defence accepted that as the RSPB was not a public authority it was therefore not subject to RIPA (Regulation of Investigatory Powers Act 2000) whereby authorisation would be required for covert surveillance on private land. However, Mr Rouse QC (for the defence) painted a picture of the RSPB and police “working hand in glove” and being “inextricably entwined” and that the two RSPB investigators involved in this case were both ex-police officers [not actually true] and thus should have known that RIPA authority should have been sought for the installation of this camera and by not doing so they were “deliberately flouting the rules“.

Mr Yip (for the prosecution) argued that no breach of RIPA had occured because the RSPB is not a public authority, is not listed on the RIPA Schedule, and had been monitoring this nest for a number of years as a matter of routine. He also pointed to many other similar cases that had been reliant on covert video evidence where there hadn’t been an issue with its admissibility or where there had, the court had used its discretion to accept the evidence because the actual trial process, where the evidence is tested, still ensures the defendant receives a fair trial.

Mr Rouse suggested to the court that if the [RIPA] law doesn’t apply to the RSPB then it shouldn’t apply to others, “…for example, Fathers for Justice, who could put bugs and cameras in hospitals, schools, bedrooms“.

In our opinion, Mr Rouse stretched this point beyond its limit. To compare the action of the RSPB placing a covert camera aimed at the nest of a protected Schedule 1 peregrine (to which only those in possession of a Sched 1 disturbance licence are permitted to visit) in the middle of a grouse moor far away from any homes and dwellings, with the placing of bugs/cameras in hospitals, schools and bedrooms, is simply ludicrous. Of course you would expect to capture ‘private’ information about people if you bugged hospitals, schools and bedrooms. You would NOT expect to capture private information about anybody if you pointed a camera at a Sched 1 nest site in the middle of a remote moor because nobody should have been there unless they held a disturbance licence.

Mr Yip should have been all over this and highlighted the obvious difference in circumstances, but he didn’t, other than to say the camera was not placed near a dwelling. Indeed he couldn’t take the argument apart, because as he told the court, he had not watched the video footage and nor did he have a copy available when the judge asked to see it (presumably she asked to see it to help determine the position of the camera and the view being recorded).

Mr Rouse argued that the RSPB’s placement of the camera did fall under the definition of ‘directed surveillance’ as defined by RIPA because even if it hadn’t captured ‘private’ information, the camera was CAPABLE of capturing private information (audio and visual) because the grouse moor was open access and the “public is entitled to privacy when out and about“. Again, had Mr Yip seen the video footage (it was nowhere near a private dwelling) and understood the restriction on visiting the nest sites of Schedule 1 species, he could have put this argument to bed.

The defence argued that the RSPB should have sought RIPA authority via the police for the placement of the camera, and pointed to a previous case, reported in Legal Eagle 2006, where this had been done. The judge asked Mr Yip what his view was on that case. Mr Yip said he didn’t know the details of that case but the circumstances would have been case specific. Had Mr Yip been familiar with that case, he would have known that it was a police-led investigation whereby the police had requested the assistance of the RSPB, not the other way around, that the landowner’s consent had been granted for the placement of a camera (it was a quarry owner) and therefore RIPA authority was easily obtained. [RIPA authority is not available for what are considered ‘low level’ offences such as wildlife crime, UNLESS the landowner’s permission is granted for the placement of a camera]. The judge asked Mr Yip why the RSPB had not sought the landowner’s consent for the Bleasdale camera and when he couldn’t answer she invited him to consider calling a ‘live’ witness [from the RSPB] to explain. Mr Yip did not accept the invitation, for reasons unknown, thus depriving the RSPB of an opportunity to explain.

Mr Rouse QC also drew the court’s attention to an open letter written last year by the Crown Office (Scotland) detailing its reasons why several prosecutions, all reliant on RSPB covert video footage, had recently been dropped [the alleged shooting of a hen harrier on Cabrach Estate & the alleged setting of a pole trap on Brewlands Estate]. Mr Rouse argued that this letter proved the RSPB had been told not to use covert cameras in Scotland “but the RSPB has decided to go on in England and take their chances“, referring to the current Bleasdale case. However, the Crown Office letter was written in May 2017, over a year AFTER the camera was placed on the Bleasdale Estate, so it was disingenuous of Mr Rouse to suggest the RSPB had ignored advice “and decided to go on in England and take their chances” at Bleasdale. Mr Yip missed this point entirely.

There’s no denying that the interpretation and application of RIPA is complex, is dependent upon the particular circumstances of a case, and we do not pretend to be experts on its use. Far from it. However, what is clear, not just from the Bleasdale case but also several others where covert footage was central to the prosecution, is an inconsistency of approach. Some courts allow it without question, others do not, and recently in Scotland the decision hasn’t even been made by the court because the Crown Office has ruled it inadmissible instead of allowing a Sheriff to consider the specific circumstances of each case.

So where does this leave us, apart from with an ever-increasing sense of injustice and an ever-decreasing confidence in the criminal justice system?

The RSPB and other groups who rely upon using covert video evidence could continue as they have been, and run the risk of cases collapsing on technicalities. That’s not really satisfactory though. Investigators need to be clear about the restrictions in advance, to allow them to take every measure to avoid this outcome and to safeguard the privacy of innocent individuals.

Alternatively, as has been suggested a few times now, the RSPB could simply forget about reporting suspected incidents to the police for a potential prosecution and instead could just place the footage in the public domain for the public to make up its own mind. This would save years of endless delay waiting for a case to reach court and, as we’ve seen in recent failed cases, video footage is a very powerful tool and stirs up public debate far more than a conviction does – the failed Cabrach case is a good example of this, as people are still talking about the injustice of that case collapsing a year on, whereas if there’d been a conviction the case would have been in the news for a few days and then forgotten. This alternative option is not really satisfactory either though. There would undoubtedly be legal issues about privacy and human rights (although it’s not difficult to pixellate a face to avoid identity) and it wouldn’t result in fair justice for either the alleged perpetrators (who wouldn’t have the opportunity of defending themselves in court) nor justice for the victims of these crimes.

Interestingly, as an aside, we’ve yet to see the covert video footage captured at Bleasdale Estate. We’ve heard about its apparent gruesome content, as described to the court, but surprisingly the RSPB has not yet put the footage in the public domain, as it has with other cases. Perhaps the defence is looking at ways of preventing its publication? Time will tell.

Another alternative is to change the law. As mentioned above, RIPA authority, without the landowner’s permission, is only available for what is classed as ‘serious crime’ (defined by the custodial sentence available for that offence). The types of crimes we’re seeing against raptors don’t fall within this definition. However, this might change in Scotland once the Scottish Government implements an increase of penalties for wildlife crime, following its acceptance two years ago of recommendations made in the Poustie Review. Would that mean that RIPA authority could then be sought by the police to investigate suspected raptor persecution crimes? We’re not entirely sure but hopefully some clever lawyers will be looking at that.

Whatever, something needs to change, and fast. It’s quite clear that the current rules permit landowners and their employees to commit whatever crimes they want against raptors, safe in the knowledge that they are unlikely to be held to account. NB: this is not a direct reference to the Bleasdale case, but is a general observation of raptor persecution crimes taking place on privately-owned land.

The next blog on the Bleasdale case will consider the legal arguments put forward against the admissibility of some of the other evidence collected, involving alleged breaches of the Data Protection Act and alleged breaches of the Police & Criminal Evidence Act in relation to the search of the nest site and surrounding grouse moor.

UPDATE 16 April 2018: Why other evidence was also ruled inadmissible in the Bleasdale Estate case (here)

UPDATE 16 April 2018: Grouse-shooting industry’s reaction to the failed Bleasdale Estate prosecution (here)

UPDATE 8 August 2018: Bleasdale video footage finally released (here)

UPDATE 10 August 2018: Moorland Association’s response to peregrine persecution on Bleasdale grouse moor (here)

‘Nonsense to suggest that grouse shooting is good for wildlife’

Last week The National published an astonishing letter from John Andrews, of Caithness, who falsely claimed, among other things, that hen harriers ‘never breed successfully’ unless on a grouse moor!

The letter is well worth a read (here), as are the comments below it. For posterity we’ve reproduced it here because these things have a habit of disappearing, a bit like satellite-tagged raptors flying over grouse moors:

LETTERS: GROUSE SHOOTING IS A BOON FOR ALL SORTS OF WILDLIFE

6 April 2018

SEEMS ‘tis the season for attacking the grouse shooting industry (Carolyn Leckie’s column of March 19 and Letters, March 31).

Fieldsports, mainly fishing and game shooting, employ many thousands, bringing many thousands of visitors who contribute many millions of pounds to rural areas of need. This greatly helps to keep alive many rural communities. Gamekeepers, ghillies, estate managers etc have wives and kids. Kids need schools, schools need teachers. All need healthcare, healthcare needs doctors and nurses, and so on. A small army of students and locals needing part-time work are gainfully employed each season as beaters.

Sadly, much of the hostility towards grouse shooting seems to stem from a distorted form of inverted snobbery. Not all slayers of grouse are tweedy, titled aristocrats – many are ordinary professional, business and tradespeople, many making vital contributions to Scottish society. They are not all forking out thousands to take a gun to the moor – a day “walking-up” grouse may cost less than a round of golf. Every grouse shot ends up as somebody’s dinner.

Contrary to popular belief, gamekeepers in these enlightened days do not seek to destroy everything with a hooked beak. Many of them are college-trained in a professional manner and seek to control only legitimate targets such as foxes and some corvids, which directly benefits hill-farming as well as game interests. It appears that there have been unexplained losses of eagles and other raptors in recent times – eagles kill eagles, so do starvation and powerlines and admittedly the odd rogue shepherd. Foxes kill ground-nesting hen harriers, buzzards kill osprey poults and red squirrels. If a gamekeeper is convicted of wildlife crime they automatically loses their firearms certificate and shotgun licence, thus becoming unemployable.

The management of hill land as grouse moors benefits many desirable species. All upland ground-nesting birds – curlew, lapwing, golden plover and many others – benefit, including hen harriers which never breed successfully where there is no food (grouse) or an abundance of predators (fox, corvids). The nutritious young heather created by strategic “muirburn” and control of heather beetle feeds mountain hare, deer and sheep as well as grouse.

[Satellite-tagged hen harrier Annie, found shot on a Scottish grouse moor, photo by RSPB]

If you want to see a prolific variety of wildlife, take a walk across a managed grouse moor – you can, you have a right thanks to our Scottish Government, and the nice landowner has even provided you with a nice hill track to make it easy. This type of land management creates the “bonnie purple hills” so well-loved by tourists and poets.

It is difficult for those who have not really examined the big picture to view grouse as a crop, but producing grouse is little different from producing hill sheep or cattle – the end result is the same for the beast except that many of the grouse stock are permitted to survive. Notable that a brace of grouse is worth considerably more to the rural economy than a brace of lambs. A bonus is that all these forms of husbandry are not mutually exclusive and all may be carried out side by side on the same ground.

Multiple and varied ownership and use of all land should be the way ahead in a progressive Scotland, with everyone now having a right of access. A sensible cooperation between varied interests could be very productive. For instance, the problem of raptor predation on game species could be eased with feeding stations for birds of prey during peak nesting/rearing times. Rats, rabbits, deceased day-old chicks are good grub for young harriers and eaglets. Viewing hides at these feed stations could provide additional tourist attractions. No reason why the RSPB could not steer some of its wealth in this direction combining interests and sharing funding with land owners and everybody wins.

Much as it is a romantically attractive idea to “divvy-up” Scotland’s huge upland areas into little parcels and share these out among the population, creating a living from a small acreage of hill ground is problematic. The bulk of Highland hill and moorland is of little agricultural value, suitable only for blanket forestry, limited sheep or hill cattle grazing or for grouse production.

Progress is being made. Some community buy-outs are thriving, injecting a new vigour into some parts of the Highlands. An independent Scotland will flourish best with a good mix of types of land ownership and a tolerant understanding and cooperation between those who wish to utilise it.

John Andrews, Caithness

In response to this drivel, a letter written by Graeme Myles, of Alyth, was published yesterday. Again, well worth a read as well as the comments below it (here).

LETTERS: NONSENSE TO SUGGEST THAT GROUSE SHOOTING IS GOOD FOR WILDLIFE

11 April 2018

I WRITE in response to your long letter of April 6 from John Andrews extolling the virtues of grouse shooting. I honestly thought that this tosh had been consigned to history. Where to start? I shall try to address his points one by one.

1) Game shooting is an economic mainstay of rural life. Estate owners are not benevolent benefactors propping up the countryside for the benefit of the rural economy – far from it. Estates receive huge subsidies from the public purse simply for owning land, and these are more than enough to offset the wages of a few gamekeepers. If I can quote Andy Wightman: “there is something seriously wrong with a rural development programme that relies on a few wealthy individuals owning huge swathes of land who support a few low-paid jobs.”

The estates themselves can be a very lucrative investment. A recent advertisement in a well-known country magazine read: “As an investment, owning Scottish sporting estates has generally proved very rewarding, with significant long-term capital gain being achieved.” A recent Scottish Ratings and Tribunal Chairman’s report, when referring to shooting estates, read: “The local staff are poorly paid, their wages bearing no relation to the capital investment. Estates use short-term labour, leaving the taxpayer to often pay their staff from the dole for the rest of the year.”

2) Shooting grouse is not just for toffs. Quite apart from the fact that most right-thinking people would not be interested in blasting a few small birds to bits for fun, his figures don’t add up. Shooting for a party of eight guns on a prime grouse moor was advertised at £35,000 plus VAT. Think about that on your next outing, which will it be? The food bank, or pop up the hill and kill something?

3) Eagles die of various causes. Two RSPB studies are very interesting here. Firstly: “Occupations of those convicted of offences linked to raptor persecution in Scotland 1994-2014: gamekeepers 86 per cent, farmers six per cent, pigeon fanciers six per cent, pest control two per cent.”

Secondly: “Land use types in relation to confirmed poison abuse incidents 2005-2014: grouse moors 57 per cent, lowland pheasant shoots 24 per cent, farmland 14 per cent, urban two per cent, quarry three per cent.”

4) Gamekeepers found guilty of wildlife crime might lose their jobs – and so they should.

5) Waders thrive on grouse moors – not this old chestnut again! I think this nonsense stems from a report from the RSPB of all people from the early 90s, where they looked at wader numbers on two moors – one keepered intensively, one not – and the keepered one had more. Not really a surprise, as every living thing which could possibly be a threat to grouse had been shot, snared, poisoned, and trapped. I don’t know about you, but this is certainly not the countryside I want to see.

If we look at wader species, lapwing feed on worms and prefer the grassy moorland edges, curlew prefer a mixture of tufty grass, sedge and heather, and golden plover and dunlin prefer the high tops. George Monbiot states that research in the Cairngorms found wooded habitats were 11 times richer than grassland and 13 times richer than moorland in naturally important species. Of the 223 species on the Cairngorm massif only one, a fungus which lives on billberry leaves, requires heather moor for its survival. Intensively managed grouse moors are a desert given over to one species: the red grouse.

6) Hen harriers only breed on grouse moors. Where do I start with this one? The hen harrier was all but wiped out as a breeding species in mainland Britain. They survived only on the Western and Northern Isles, where there are no intensive grouse moors. In his monograph The Hen Harrier, Donald Watson comments on hen harrier breeding in forestry plantations. This was in the 1950s. On the continent hen harriers breed in hugely diverse habitats (some very close to human occupation) and would do so in this country too if they were allowed to.

7) Muirburn is good. Only in Britain could burning be looked at as a conservation tool. Muirburn is highly damaging to the ecosystem. It destroys untold numbers of reptiles and insects, including many nationally protected species. It destroys nationally important peat bog habitats and wetlands. It releases huge amounts of carbon into the atmosphere. It increases the risk of flooding. It acidifies the water table and pollutes the water supply with particulates.

I hope this can be published to counter some of the nonsensical statements made.

Graeme Myles, Alyth

[The two pie charts are from RSPB Scotland’s report: The Illegal Killing of Birds of Prey in Scotland 1994-2014: A Review]

Injured buzzard rescued from trap, rehabbed & released back to the wild

Great partnership working by North Yorkshire Police, RSPCA and Jean Thorpe (Ryedale Wildlife Rehabilitation Centre) resulted in an injured buzzard being released from a trap, rehabilitated and then released back to the wild.

There’s no information about the type of trap, whether it was illegally-set, or the extent of the buzzard’s injuries, but still a job well done by all concerned.

Read the full press release and watch the video of the buzzard’s release on North Yorkshire Police website here

Police Wildlife Crime Officer Jez Walmsley prepares to release the buzzard (photo by Jean Thorpe)

Witness observes buzzard shot dead in Norfolk

From today’s Eastern Daily Press (11/4/18):

BUZZARD SHOT NEAR DOWNHAM MARKET

A buzzard has been shot dead in the West Norfolk fens.

A gardener believes he saw a man shoot the protected bird of prey at Boughton, near Downham Market this lunchtime.

It came down near the home of retired insurance broker Paul Coulten, 77, who is now preserving the carcass until it can be examined by police wildlife crime officers.

“My gardener was out walking the dogs on my land when he heard some gunfire,” said Mr Coulten. “The next thing he saw a buzzard come down in the woods and saw a man on a quad bike in the distance.”

Police confirmed the incident had been reported to them and officers had arranged to visit Mr Coulten.

[Photo of the shot buzzard, by Susan Simper]

“I hope someone gets nabbed for it,” he said. “We’re getting fed up with it around here, there are no foxes because they all get shot to death, so I’m hopeful the police will progress it.”

Buzzards are one of our commonest birds of prey. They are frequently seen soaring on their large, broad wings, when warm rising air creates convection currents over woods and farmland.

The species is protected by the 1981 Wildlife and Countryside Act. Anyone convicted of killing one could face an unlimited fine and up to six months’ imprisonment.

Despite this, the RSPB says birds of prey are still persecuted. In 2016 – the latest year for which figures are available – some 40 were shot, including 14 buzzards, 11 red kites, seven peregrines and two hen harriers. Some 22 birds, including 13 buzzards, were also poisoned.

The RSPB, which fears the figures are the tip of the iceberg, says there were no prosecutions during that entire year.

Norfolk is one of the worst areas for bird crime. A total of 262 incidents were recorded between 2011 and 2016 across England and Wales, with 146 of these caused by shooting and 66 by poisoning.

Norfolk recorded the second highest number of incidents at 17 after North Yorkshire at 39.

Its senior investigations officer Mark Thomas said of the latest killing: “Raptor persecution, the illegal killing of birds of prey, is really common, it’s widespread across the UK. What should happen now is it should be X-Rayed, there would have to be an investigation, it’s very likely they’ll find out who’s responsible.”

ENDS

UPDATE 12 April 2018: EDP now reporting the buzzard was not shot (here)

Case against Bleasdale Estate gamekeeper collapses as RSPB video evidence ruled inadmissible

We’ve been reporting on the case against Bleasdale Estate gamekeeper James Hartley since September 2017 (see here, here, here, here for previous posts).

Mr Hartley faced 9 charges as follows:

  1. Disturbing the nesting site of a Schedule 1 wild bird (13/04/2016)
  2. Killing a Schedule 1 wild bird (13/04/2016)
  3. Killing a Schedule 1 wild bird (14/04/2016)
  4. Setting trap / gin / snare etc. to cause injury to a wild bird (between 13-14/04/2016)
  5. Taking a Schedule 1 wild bird (14/04/2016)
  6. Possessing a live / dead Schedule 1 wild bird or its parts (14/04/2016)
  7. Possessing an article capable of being used to commit a summary offence under section 1 to 13 or 15 to 17 (13/04/2016)
  8. Possessing an article capable of being used to commit a summary offence under section 1 to 13 or 15 to 17 (between 12/04/2016 – 27/04/2016)
  9. Causing unnecessary suffering to a protected animal – Animal Welfare Act 2006 (between 14/04/2016 – 15/04/2016)

The case collapsed last week after District Judge Goodwin ruled the RSPB video evidence inadmissible at a hearing at Preston Magistrates Court on 28 March 2018.

Reporting restrictions imposed early on in the case prevented us from blogging in detail until the case had concluded. We’re now able to report what happened.

This blog is the first in a series about this case. In this one, we set out the Crown’s case against Mr Hartley, and the defence’s skeleton argument against the admissibility of the video evidence.

Here are the details of the case as presented to the court by the Crown Prosecution Service (barrister: Mr Yip):

On the 11th April 2016 RSPB Investigations Officer [name redacted], in the presence of RSPB Investigations Officer [name redacted], installed a covert video camera pointed towards a peregrine falcon nest site within the boundary of Bleasdale Game Estate in the Forest of Bowland.

The red star denotes the location of the Bleasdale Estate:

The Bleasdale Estate is owned by Jeremy Duckworth. Mr Duckworth describes the upper moorland as managed for grouse shooting and he employs one gamekeeper for this area, that being the defendant James Hartley.

It is the Crown’s case that the covert camera captured footage which revealed incidents on the 13 and 14 April 2016 where the nest site and birds were interfered with.

The Crown say that a number of clips show that on 13th April 2016 at 19.53hrs an incubating peregrine leaves the nest scrape. This is immediately followed by what appears to be four shotgun discharges. A few minutes later at 19.57hrs a person wearing a camouflage suit and in possession of a hammer attends the nest site for a number of minutes before leaving.

The following morning, 14th April 2016 at 10.29hrs, a peregrine, believed to be the male parent, lands on the edge of the nest ledge and walks in to the nest scrape area. The bird becomes trapped all day in what the Crown say is a spring trap. At 20.25hrs the peregrine is still present. At 23.12hrs a person with a torch visits the site. It is the Crown’s case that the inference is this person had removed the peregrine and the trap as the bird was no longer present the following day.

On 21st April 2016 a number of officers from Lancashire Constabulary and the RSPB attended the nest site area and recovered four eggs and some feathers.

On 26th April 2016 a search warrant was executed and a search was conducted at the defendant’s home address and outbuildings. A green bag containing a number of items was seized from an outbuilding. Forensic DNA analysis from Dr Lucy Webster provides extremely strong support to the proposition that two of the items within this exhibit, an orange handled knife and a wooden handled hammer have been in contact with peregrine falcon.

Between 17.37hrs and 19.11hrs on 24th May 2016 the defendant was interviewed under caution when he declined to answer any questions put to him.

Between 13.16hrs and 13.50hrs on 2nd November 2016 the defendant was interviewed under caution for the second time when he declined to answer any questions put to him.

END

Here is the skeleton argument presented to the court by the defence (barrister: Mr Justin Rouse QC):

The defence seek to exclude the video footage obtained by [RSPB Investigator, name redacted] and the items recovered in the search on the 21 April 2016 under s78 Police & Criminal Evidence Act [PACE] 1984.

S78 PACE provides as follows:

‘…..In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court, that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’.

The defence submit that the RSPB have sought to circumvent the provisions of RIPA 2000 [Regulation of Investigatory Powers Act 2000] together with s93 of the Police Act 1997; that they have breached Code B of PACE 1984; that RSPB Investigator [name redacted] was not a data handler for the purposes of the Data Protection Act 1998; that the RSPB chose not to voluntarily adopt the Surveillance Camera Code and/or that the police were bound by that code and that the RSPB were trespassing on the land unlawfully, having failed to seek the permission of the landowner.

END

The full details of the defence’s legal argument will be published in a second blog, along with the judge’s commentary on each of the components of the defence’s argument. For those of us interested in such details it was a fascinating and well-presented argument. And therein lies the crux of this case. In our opinion, the court’s ruling on the video evidence was inevitable, not necessarily because of the strength of the defence’s legal argument, but because of the weakness in the prosecution’s counter-argument against it.

For those of us who sat in the public gallery to observe the legal argument hearing on 14 March 2018, it became apparent, very quickly, that the outcome of this case (and thus, supposed ‘justice’) would be determined by the amount of money available to pay for legal representation.

The representative for the defence was the highly-regarded Mr Justin Rouse QC. We have no idea who paid for his time and expertise (e.g. the defendant? His family? His employer? A representative membership body, e.g. National Gamekeepers Org or BASC?) but whoever it was will no doubt consider it money well spent. It was very clear that Mr Rouse (or his junior) had probably spent a long time in preparation for this case: his presentation was meticulous and thoroughly organised, with every aspect labelled and referenced in a bundle of documents that he’d provided to the judge. On every single point he raised, he was able to tell the judge on which page she should be looking. He was calm, measured and in complete control. A bit of a masterclass.

In contrast, the representative for the prosecution was Mr Yip, who turned up completely unprepared. He arrived without his bundle of evidential documents, muttering something about having left them behind, so he was unable to look up the detail of points raised by the judge. At one point Mr Rouse passed over his own copy of the evidential documents to Mr Yip, to try and help him out. The judge asked Mr Yip several questions about the video evidence and asked to see it (she was particularly interested in the angle of the covert camera and how wide a view it was able to record – a crucial element in deciding whether this was ‘directional’ surveillance, as detailed in RIPA 2000). Astonishingly, Mr Yip told the court he hadn’t seen the video evidence and he didn’t have a copy with him. He was able to produce a couple of still photos from the video but when the judge asked him to point out the position of the nest in the photos, he was unable to do so.

It has been reported on social media that the RSPB “failed to support” this case by “declining” to attend court on 14 March 2018 to answer questions raised by the judge during the legal argument hearing. What utter nonsense. The statement is categorically untrue and is a false claim being made by a group with a long-held and well-documented grudge against the RSPB, presumably with the intention of portraying the RSPB in a bad light. What actually happened was Mr Yip declined to call the RSPB as a witness during that hearing, even after being prompted by the judge, and nor did he ask for an adjournment to allow for him to call an RSPB witness at a later hearing. His reason for this decision is not known (to us) and it proved to be catastrophic for the prosecution’s case.

We think it is fair comment to describe Mr Yip as being ill-prepared for the hearing. However, there may be many reasons for that, beyond his control. It isn’t unusual for the financially-squeezed and under-resourced CPS to drop cases on lawyers at the last minute so for all we know Mr Yip might not have ‘seen’ this case until the night before the hearing. If that is what had happened, it would partly explain the gulf in quality between Mr Rouse’s and Mr Yip’s presentations. That being said, if Mr Yip had not had adequate time to prepare, he could probably have called for an adjournment.

His poor performance did not go unnoticed by the judge and in her ruling delivered to the court on 28 March her criticism was evident. More on this subject in the second blog.

Putting aside for a moment the legal arguments and the standard of presentation, the bottom line is that yet another case of alleged raptor persecution, caught on covert camera, has failed on a technicality (or in this case, several technicalities).

Although the identity of the alleged perpetrator in the Bleasdale case has not been tried and tested in court, there’s no getting away from the fact that the CPS believed the video footage to show that two peregrines appear to have been illegally killed at a nest site on the Bleasdale Estate in 2016. The unidentified perpetrator of this alleged crime will not face justice. Given the catalogue of failed cases under similar circumstances (i.e. covert video footage ruled inadmissible on a technicality), the perpetrators of these crimes have been given yet more impetus to continue, as the chances of successful prosecution these days are almost nil.

No doubt the grouse-shooting industry will jump on this result as an excuse to vilify the RSPB and its approach to investigating raptor persecution crimes. But when the RSPB publishes the video footage of this latest incident, the public will be in a position to judge for itself whether or not the RSPB’s actions were discreditable. Whether the grouse shooting industry likes it or not, public opinion, not court convictions, will ultimately be the deciding factor in addressing the ongoing illegal killing of birds of prey.

UPDATE 13 April 2018: Why the video evidence was ruled inadmissible in the Bleasdale Estate case (here)

UPDATE 16 April 2018: Why other evidence was also ruled inadmissible in the Bleasdale Estate case (here)

UPDATE 16 April 2018: Grouse-shooting industry’s reaction to the failed Bleasdale Estate case (here)

UPDATE 8 August 2018: Peregrine persecution on a grouse moor: Bleasdale video footage finally released (here)

Buzzard shot in the head, south Yorkshire

From Yorkshire Post (7/4/18):

‘WILDLIFE CRIME WILL NOT BE TOLERATED’, SAY SOUTH YORKSHIRE POLICE AFTER BUZZARD IS FATALLY SHOT IN THE HEAD

‘Wildlife crime will not be tolerated in our county’ – that’s the message from South Yorkshire Police after they found a buzzard that had been fatally shot in the head.

The force confirmed yesterday that the buzzard was found dead in the lower part of Hound Hill Lane, Barnsley, with trauma to its head attributed to either a pellet or shot projectile.

Police Constable Mark Winter, Penistone Community Constable and Wildlife Crime Officer said: “Buzzards, being part of the bird of prey family are protected in law and it is quite obviously an offence to shoot, injure or trap one.

This incident has occurred over the last few days and this is an appeal for information to assist with this investigation. Wildlife crime will not be tolerated in our county, please enjoy the countryside safely, responsibly and leave it as you found it”.

ENDS

[Photo by South Yorkshire Police]

Red kites “hammered” by persistent persecution, says Chair Yorkshire Dales National Park Authority

The Yorkshire Dales National Park Authority continues its recent efforts to highlight and condemn illegal raptor persecution in and around the National Park.

Last month we blogged about some of these efforts, which have included the Park’s involvement with ‘Operation Owl’, a police-led multi-agency initiative designed to target the raptor-killing criminals in North Yorkshire, the Park’s publication of a raptor persecution ‘evidence report’, a wildlife crime seminar organised for Park staff teaching them how to recognise and report suspected wildlife crimes, and an article on raptor persecution published in the Yorkshire Post and written by the Park Authority’s CEO, David Butterworth.

The latest in this commendable series of activities is an article published in the Craven Herald, written by the Chair of the Yorkshire Dales National Park Authority, Carl Lis, entitled, ‘Red kites ‘hammered’ by persistent persecution on national park borders’.

Read the article here

Mr Lis focuses on the ‘barbaric’ persecution of red kites taking place on the eastern border of the National Park in the Nidderdale Area of Outstanding Natural Beauty. He is quoted:

“There is no doubt that the eastern fringes, where the grouse moors start, is the real problem area. Red kites have attempted to spread east from their reintroduction sites but have got hammered“.

Here is an RSPB map detailing the illegal killing of 22 red kites in the Nidderdale AONB between 1999-2017 – read this blog for more information:

Mr Lis goes on to say, “I want to stress that the national park authority is not against grouse shooting, and we have had fantastic cooperation from a number of grouse moor managers and owners. What the authority is against is the barbaric and persistent persecution of birds of prey“.

This public condemnation of raptor persecution is very, very welcome, but Mr Lis needs to understand that by continuing to support driven grouse shooting, he is indirectly supporting the continued illegal killing of raptors. There’s no separating the two: driven grouse shooting, in its current format where bag size is king, is reliant on the illegal killing of raptors.

The article ends with some commentary from Amanda Anderson of the Moorland Association who talks about the “great success” of red kites and how “large numbers of red kite are spotted on grouse moors within the Yorkshire Dales on a regular basis including Bolton Abbey in North Yorkshire as well as across the eastern fringe of the national park“.

She forgets to mention how many of those red kites haven’t made it alive off those grouse moors.

Interestingly, we are currently looking in to a claim that the Moorland Association, on behalf of its grouse moor owning members, is apparently concerned about the number of red kites on grouse moors and is seeking advice from Natural England on legal measures to ‘remove’ them. More on this in due course, along with the similar claim about how the Moorland Association has apparently asked Natural England about licences to ‘control’ Marsh harriers.

Gamekeepers invite First Minister to visit estates where mass slaughter of mountain hares takes place

Scottish gamekeepers have invited First Minister Nicola Sturgeon & Environment Cabinet Secretary Roseanna Cunningham to visit estates “to learn about mountain hare culls”.

The invitation comes after the First Minister’s angry response to recent video evidence showing the brutal, military-style killing of mountain hares undertaken by gamekeepers on several Scottish grouse moors and filmed by OneKind, Lush & the League Against Cruel Sports (Scotland) in February this year. Ms Sturgeon commented in Parliament that this mass killing was “not acceptable”.

Here’s the footage for those who missed it:

Presumably the invitation isn’t for the First Minister & the Cabinet Secretary to take part in a hare cull, or perhaps it is? Perhaps the gamekeepers envisage the pair kitted out in tweeds, riding on a quad bike across the moor, blasting hares in the face and legs with a shotgun, all in the name of ‘sport’ and ‘conservation’? Perhaps then they could go on to visit a stink pit to toss in the bloodied corpses on top of the pile of festering bodies already dumped there, with just enough time to set a few snares and batter to death a few cagefuls of trapped corvids before heading back to the big hoose for tea. How could they refuse such an invitation?

Here’s the press release from the gamekeepers:

GAMEKEEPERS INVITE FIRST MINISTER TO LEARN ABOUT MOUNTAIN HARE CULLS

Gamekeepers have invited the First Minister to visit their estates to find out about mountain hare management after she warned filmed culls were “not acceptable”.

Nicola Sturgeon said she was “angry” at footage filmed by animal rights charities which showed the animals being killed on shooting estates.

She warned large-scale mass culls could put the conservation status of the species at risk and said legislation to protect the hares is among options being considered by government.

Currently, landowners operate a voluntary restraint agreement regarding numbers culled.

Now, gamekeepers shown in the footage have written to the First Minister and Environment Secretary Roseanna Cunningham to invite them to their estates to learn more about the rationale behind the killings.

Head gamekeeper for the Clune and Corrybrough Estates in Inverness-shire, Duncan MacKenzie, said: “We’d really like to be able to show the First Minister around rather than discuss these issues in Edinburgh.

I think it would be beneficial for everyone to get an understanding of why the hares need to be managed, here.”

He said the footage filmed by OneKind, League Against Cruel Sports and Lush showed “working people being secretly filmed carrying out a legal management activity which is no different to other forms of species management and is well within the laws passed by Scottish Government“.

The ironic thing is that those who are seeking the end of grouse management would also be signalling the beginning of the end for the mountain hare in Scotland,” he added.

“Populations are thriving on grouse moors but are struggling badly elsewhere due to predation and loss of their preferred heather habitat and we hope to have the opportunity to explain this in full to the First Minister.”

Mr MacKenzie said the estates are not hiding anything, adding: “We have good records of the amount of hares in comparison to the amount we have taken off the hill, covering a number of years, and there are still high numbers of hares on the ground.”

The animal rights charities behind the footage claim it shows the agreement for voluntary restraint over culls has “failed” and along with broadcaster Chris Packham are calling for a cull ban until a review on the issue concludes.

ENDS

And here’s a press release in response from RSPB Scotland:

RSPB SCOTLAND RESPONDS TO GAMEKEEPERS’ MOUNTAIN HARE INVITE TO FM

In response to an invitation to the First Minister by gamekeepers to find out about mountain hare culls RSPB Scotland’s James Reynolds said: “If the First Minister is minded to accept this invitation she will of course also wish to visit and observe land of a similar nature, but managed more sustainably. A good example is the Cairngorms Connect project, which is being supported by The Scottish Government’s own Cairngorms National Park Authority – where multiple stakeholders involving the state, charities and the private sector are co-operating in partnership to deliver habitat restoration at a landscape scale for the benefit of local communities, local economy and Scottish environment.

RSPB Scotland is delighted that the current Scottish Government grouse moor enquiry is addressing the issue of unsustainable mountain hare culls, and undertaking an economic comparison of intensive management versus alternative models; we are sure the First Minister will also wish to give her full support to this initiative by her Cabinet Secretary Roseanna Cunningham MSP.

The notion that the survival of mountain hares is entirely dependent on intensive grouse moor management is of course absolute nonsense.  Mountain hares existed quite happily in balance with their natural habitat since the last ice age before intensive grouse moor management began in the Victorian era. They will do so again if given the chance to flourish without needless mass culls.”

ENDS

Dead red kite in south Scotland now confirmed poisoned

Further to yesterday evening’s blog about a dead red kite found in south Scotland in January that “may” have been poisoned (see here), the BBC news article has now been updated (6/4/18) to confirm this bird was definitely poisoned:

POLICE APPEAL AFTER PROTECTED BIRD OF PREY POISONED

Police investigating the death of a protected bird of prey have said it was poisoned.

The body of the red kite was found by a member of the public in the Durham Hill Lane area of Kirkpatrick Durham in Castle Douglas on 20 January.

An investigation has been launched and officers involved in it have appealed for information.

[Red kite photo from Scottish Raptor Study Group]

PC Alan Steel, a specialist wildlife crime officer, said the illegal use of poison can be deadly for wild birds.

He said: “Due to the inherent scavenging nature of red kites, they are particularly vulnerable to the illegal use of poisonous bait.

Red kites are legally protected and Police Scotland works closely with partner agencies, including the Scottish Agricultural College (SAC), Science and Advice for Scottish Agriculture (SASA) and the Royal Society for the Protection of Birds (RSPB) to ensure that those responsible are brought to justice.”

RSPB Scotland’s head of investigations said illegal poison use can also harm pets and people.

“Numbers of detected cases of illegal poisoning of our birds of prey have, thankfully, been very low in recent years, so this case is of serious concern,” Ian Thomson added.

The Galloway Red Kite trail, just a few miles from where this bird was killed, is a popular tourist attraction and of great benefit to the local economy.”

ENDS

Man charged with stealing eagle & osprey eggs from nests

From DevonLive news, 6 April 2018:

A man has been charged with a number of offences against the Wildlife and Countryside Act 1981, in relation to the taking of and disturbing of protected birds, their nests and eggs.

Jason North, aged 49, from Plymouth has been charged with 14 offences including the disturbance of Schedule 1 birds at or near the nest and the taking of eggs.

These include rare species such as Golden Eagle and Osprey in Scotland.

Further offences relate to nest disturbance and the taking of eggs of rare Devon birds namely Hobby, Peregrine Falcon and Little-Ringed Plover from sites on Dartmoor, Devon.

These offences are alleged to have taken place in Devon and Scotland during 2016.

Mr North is due before Plymouth Magistrates court on 3 May.

ENDS

Thanks to Police Wildlife Crime Officer Josh Marshall from Devon & Cornwall Police for alerting us to this case. Great partnership working between the Police, RSPB & CPS to get this case to court.