Category: Opinion

New podcast: Ian Thomson, Head of Investigations RSPB Scotland

Ian Thomson, Head of Investigations at RSPB Scotland is never one to mince his words, especially on the subject of the illegal persecution of birds of prey.

Here’s his latest straight-talking podcast with Charlie Moores (a digital producer at Lush) where the discussion includes topics such as the under-recording of wildlife crime, satellite tagging of golden eagles, the suspicious disappearance of golden eagle Fred, satellite-tagging of hen harriers, the recent outlandish claims that tagged hen harrier Saorsa had been “re-sighted”, the Scottish Gamekeepers Association, the Revive Coalition, the Werritty Review, General Licences, General Licence Restrictions, and raising public awareness of raptor persecution.

If you have an hour to spare, it’s well worth a listen on the Lush Player HERE

[Ian Thomson, photo by Charlie Moores]

Rattled? Much?

Have a read of Letter of the Month in the latest edition of Shooting Gazette (‘Driven shooting’s finest journal‘):

He wants the British game-shooting industry to emulate the NRA, one of the most ridiculed and dangerous bastions of far-right lunatics on the planet? And this is the star letter?!

Perhaps those Dubarrys should be swapped for a pair of jack boots.

Golden eagle satellite tag review “exemplary” and “thorough”

A new scientific peer-reviewed paper, authored by a group of highly-respected award-winning ecologists, commends the “exemplary” and “thorough” scientific approach of the golden eagle satellite tag review.

The paper has just been accepted for publication but due to publishing restrictions we’re unable to publish it here (although we’ve read it in full). When it finally becomes available it’ll be a must-read for researchers involved in animal satellite-tracking projects where being able to distinguish between actual death and transmitter failure is important to understanding threats to that species.

Sergio, F., Tanferna, A., Blas, J., Blanco, G. and Hiraldo, F. (2018). Reliable methods for identifying animal deaths in GPS – and satellite-tracking data: review, testing and calibration. Journal of Applied Ecology. doi: 10.1111/1365-2664.13294.

The authors have devised a system, based on the interpretation of various tag data, which correctly distinguished between actual death and transmitter failure in their sample. They found this system worked perfectly for their GPS tags but was not so reliable for tags using only Doppler locations.

[Fig. 3 from the paper]

Using this system, the authors suggest that the highly suspicious disappearance of golden eagles in Scotland as identified in the Golden Eagle Satellite Tag Review “would be most likely confirmed as deaths by our method, thus strengthening the suspicion of illegal killings (Branch 3b, Fig 3)”.

For the reader with a limited understanding of different tag types and the quality of technical data associated with different tags, this paper probably won’t make much sense at all. However, we’ve highlighted it here for good reason.

A couple of weeks ago some extraordinary claims were made about the Golden Eagle Satellite Tag Review. Ronnie Clancy QC, a senior lawyer, claimed that the review contained “significant shortcomings” and that there was evidence of “unconcious bias“. His rationale for these comments is apparently contained in a report he was commissioned to write by the Scottish Gamekeepers Association (SGA), although this report has not been released in the public domain and the story was only run on the BBC News website (here), so we’ve been unable to see the context of these selective quotes.

However, when you look at the quotes that were published by the BBC, it’s not difficult to tear them apart. On the allegation of supposed “unconcious bias”, the BBC reports that Mr Clancy QC said the report authors (Drs Whitfield and Fielding) looked like they had “manipulated” the study “to obtain a desirable result“. This opinion was further fuelled in the BBC report by the SGA’s Chairman Alex Hogg, who claimed that the report’s findings were initially insignificant “until the authors (Whitfield & Fielding) shifted the parameters and extended the boundaries of the moors by up to 4km“.

Dear oh dear. Had they paid attention to the Sat Tag Review they would have read the discussion about why the parameters were extended – which is a perfectly acceptable scientific method known as hypothesis testing – to 4km. Initially, Drs Whitfield & Fielding had used the presence of strip muirburn as a simple way of mapping the location of grouse moors. However, as they explained in the review, grouse moor management extends beyond the boundaries of strip muirburn, often to a considerable distance (e.g. predator control to benefit red grouse takes place in forestry and woodland beyond the actual moors) so to capture the full extent (and impact) of grouse moor management requires extending the search boundary beyond the actual moor. They illustrated this point with this map (we have added the yellow arrow for clarity) showing the last known locations of three satellite-tagged golden eagles. One of these (yellow arrow) ‘disappeared’ on land that wasn’t a grouse moor, per se, but was surrounded by grouse moor. Had they stuck rigidly to using strip muirburn as the grouse moor proxy, this eagle, and several others that ‘disappeared’ when roosting in forestry close to a grouse moor, would not have been classified even though it’s blindingly obvious that the location was associated with grouse moor management.

Quite why the SGA asked a lawyer to opine on a piece of scientific research is anyone’s guess. No doubt, Mr Clancy is a skilled lawyer – you don’t gain QC status without demonstrating legal excellence. But is Mr Clancy a scientist? Does he have experience and expertise in assessing scientific rigour? Is he familiar with satellite tag technology? Is he an expert in golden eagle ecology? Does he have a detailed understanding of the ~100 scientific references cited in the review? Has he authored any scientific papers himself? Why didn’t the SGA commission a review by a qualified scientist? Couldn’t they find one who’d say what they wanted to say? And why has this opinion piece only just emerged, some 17 months after the Golden Eagle Satellite Tag Review was published?

The more you think about this, the more intriguing it becomes. Our guess is that the SGA, realising how comprehensively damning were the findings of the Sat Tag Review, sought advice on making a legal challenge against the Scottish Government for accepting the review’s findings. Why else consult a lawyer? However, although the Cabinet Secretary commissioned the current grouse moor management (Werritty) review on the back of the Sat Tag Review’s findings, there have been no legislative changes based explicitly on the Sat Tag Review, which makes a legal challenge untenable. And even if legislative change (e.g. licensing) does occur after the Werritty Review, the Sat Tag Review will only have played a small role – it just happened to be the final straw in a giant haystack of evidence against the unsustainable and environmentally damaging aspects of grouse moor management.

If this is what happened, then rather than waste the money they spent seeking legal advice (unless Mr Clancy worked pro bono), perhaps the SGA thought they’d make the best of a bad job and simply present the advice as legal opinion in an attempt to undermine the evidence being presented to the ongoing Werritty Review.

Sadly, the SGA hasn’t published Mr Clancy QC’s report – and that is their perogative, as it is, after all, a privately-commissioned piece of work – but it’s a real shame because we would have been very interested in reading Mr Clancy’s opinion on the contemporaneous records of illegal raptor persecution associated with the various geographic clusters of ‘disappearing’ eagles on or close to grouse moors, and the ever-increasing pile of peer-reviewed scientific research that has linked grouse moor management to illegal raptor persecution, all documented and referenced in the Sat Tag Review. Oh, and not to mention the long list of golden eagles whose bodies have previously been found shot and poisoned on, er, grouse moors.

[Golden eagle ‘Fearnan’ found illegally poisoned on an Angus Glens grouse moor. Photo by RSPB]

We understand Mr Clancy’s report has been submitted to the Werritty Review as ‘evidence’. We welcome this. Professor Werritty, as a senior academic of some repute, will no doubt treat it with all the regard deserving of a non-scientific opinion commissioned by an organisation that has repeatedly sought to deny the link between grouse moor management and golden eagle persecution.

 

At least Scottish Ministers are listening. Those at Westminster? Not so much

Today’s earlier blog post (here) on the hypocrisy of the Scottish Government’s reaction to #Goatgate took a bit of a side swipe at the length of time it’s taking the Scottish Government to introduce regulation, enforcement and accountability to the driven grouse shooting industry.

But here’s a bit of perspective on the matter. At least the Scottish Government is listening to concerns, even though it seems to perpetually cycle through reviews and consultations without actually doing very much.

But as for the Westminster Government – the following says it all:

Dr Therese Coffey MP is the Parliamentary Under Secretary of State at the Department for Environment, Food & Rural Affairs (DEFRA). She has special responsibility for the natural environment, including biodiversity.

Shameful wilful blindness, summed up in her one word response.

Trophy-hunting of goats is no less peverse than driven grouse shooting – New Statesman opinion piece

An opinion piece for the New Statesman today, discussing the Scottish Government’s quick reaction to the peverse trophy-hunting of goats and its less-than-quick reaction to the equally peverse trophy-hunting of driven red grouse.

Article available here

Grouse shooting industry’s histrionics over proposed estate licensing

Following on from Saturday’s news that the SNP’s National Council has voted to adopt an official policy of grouse moor licensing (see here), the grouse shooting industry has responded with a fine display of histrionics.

A quick look on social media shows the usual buffoons shrieking about potential job losses and how everyone should get together for a march/demonstration, which would probably result in about four quad bikes being parked on the new Queensferry Bridge for an hour or so.

BASC has issued a press statement claiming the SNP’s new policy would “harm rural Scotland“, The Sunday Times ran with an article yesterday with the headline, ‘SNP votes to curb fox hunting and grouse shooting‘, and an article in today’s Daily Mail headlined with ‘War on the Countryside‘. They’re good at amateur dramatics, this lot.

There’s also a comment piece in the Mail by Lord David Johnstone, Chairman of Scottish Land & Estates, who argues (as he has before) that there is no need for estate licensing and everything would be just fine if only we’d all work with the shooting industry because, he says, “this does deliver results“. No, Dave, it doesn’t deliver results, unless you consider the never-ending news of poisoned, shot, trapped & bludegeoned raptors a ‘result’.

What we’re really struggling to understand is why the grouse shooting industry is so certain that estate licensing would result in the loss of jobs. Why would it? Unless this is a tacit admission that the grouse shooting industry does in fact rely on the illegal killing of birds of prey in order for shooting estates to remain viable and so the loss of a shooting licence (and possible subsequent closure of an estate) would be inevitable?

If driven grouse shooting is lawful and sustainable, as the industry so often claims, what on earth is there to worry about? There’d be no loss of licences for lawful or sustainable practices, so why is this industry so fearful of the scrutiny and regulation that the rest of us accept as part of our daily lives? Not got something to hide, surely?

There are the usual claims that ‘activists’ will ‘set-up’ estates by planting poisoned or shot raptors on grouse moors in an attempt to implicate the landowner and/or gamekeepers. Lord Johnstone used this excuse way back in 2012 when objecting to the introduction of vicarious liability for raptor persecution offences (see here). Five years on, we’re not aware of a single case where this has been shown to have happened, but we’ve seen plenty of cases where gamekeepers have been caught committing criminal offences as part of their daily routine.

The grouse shooting industry needs to face facts. Estate licensing is on its way and the industry only has itself to blame. It’s been given hundreds of chances to reform, and has received repeated warnings from the Scottish Government that further action would be taken if the industry didn’t clean up its act.

And if/when estate licensing is shown not to work, the grouse shooting industry should know what to expect next.

W Yorks Police Firearms Licensing Dept: in breach of policing code of ethics?

A couple of days ago, the following extraordinary tweet appeared on the West Yorkshire Police Firearms Licensing Department’s official twitter account:

This is a shocking abuse of position. According to the national Policing Code of Ethics, police officers and staff are supposed to be impartial and non-political. For an official police account to use the hashtag #NoMoorMyths, which is the basis of a BASC propaganda campaign against those who oppose driven grouse shooting, is neither impartial or non-political.

Our objection isn’t based on whether or not we support grouse shooting, because we’d be equally appalled if we saw an official police account promoting the hashtag #BanDrivenGrouseShooting. This is about having confidence in the police’s ability to be professional and objective.

The police are also not supposed to abuse or harass members of the public (in this case, re-tweeting an offensive comment about Chris Packham).

The West Yorkshire Police Firearms Licensing Department’s twitter account is relatively new (the account opened on 18 July 2017) but a quick scan through some of its other tweets (e.g. promoting the Glorious 12th) is an alarming demonstration that whoever is operating the account needs to receive some advice on professional standards, and pronto!

Perhaps West Yorkshire Police Chief Constable Dee Collins might want to have a word. Emails of encouragement to: dee.collins@westyorkshire.pnn.police.uk

Ian Botham masterclass on how not to do a radio interview

You’ve got to listen to this. It’s the funniest nine minutes of car crash radio you’ll have heard for a long time.

It’s Ian Botham, being interviewed on BBC Five Live this morning, talking about how the public spirited game shooting industry is planning to donate thousands of lead-poisoned pheasants and partridges to the poor and needy.

First, here’s a bit of background (from yesterday’s Sunday Times) –

Whether you think donating thousands of lead-contaminated game birds to the poor is a great idea or whether you think it’s simply a PR opportunity to justify the killing of 50 million game birds a year for entertainment, this is fantastic radio.

Here’s the interview (starts at 2:39:12). Only available for 29 days.

UPDATE 27 January 2018: The interview has now been archived on YouTube. Listen to it in full here

Further comment on admissibility of video evidence from more law academics

Last week we blogged about a commentary from Professor Peter Duff (Aberdeen University Law School) on the admissibility of video evidence in wildlife crime prosecutions (see here).

As a quick summary, we fundamentally disagreed with Professor Duff’s conclusions that “the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless” because 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).

On the back of that blog, another Aberdeen University Law School academic, Dr Phil Glover, has now written a blog on the same subject – see here and he appears to support the opinion of Professor Duff that the COPFS was correct to apply caution and reject the RSPB’s video evidence as inadmissible. Dr Glover addresses the two case studies we had previously mentioned whereby video evidence had been deemed admissible by the courts (the Marshall and Mutch trials) and his opinion is that the two Sheriffs presiding over these cases were wrong to accept the video evidence.

Dr Glover’s blog is technical, dry, and stuffed with specialist knowledge of the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA). As such, it is way beyond the scope of our limited knowledge of this legislation and thus we won’t even attempt to critique it. That is not to say it should be dismissed – on the contrary, we welcome the opportunity to read the informed opinion of a law academic, particularly one whose PhD research focused on the very subject of RIP(S)A, and hopefully some of our legally-trained blog readers will be willing to provide a critique.

Another blog has also been published on this subject, this time by Malcolm Combe, a lawyer also working within Aberdeen University’s Law School. Malcolm’s blog (here) is written in a way that is easier (for us) to comprehend and features some pertinent commentary on privacy and the Land Reform (Scotland) Act 2003, of which he has detailed, specialist knowledge.

What is clear from all three legal blogs is that the issue about the admissibility of video evidence in relation to wildlife crime prosecutions in Scotland is complex and confusing and, like most legislation, subject to interpretation, which has led to an inconsistent application in recent years. It has been fascinating to read the opinions and the rationale behind them; it’s a shame that the COPFS has not put as much time and effort in to explaining the recent decisions made by the public prosecutors to drop five wildlife crime prosecutions, leaving many questions still unanswered and public confidence in wildlife crime prosecutions at an all time low.

What is also clear is that the current legislation is practically unenforceable in cases of alleged wildlife crime that takes place on large, remote game shooting estates where the likelihood of anybody witnessing the crime is pretty slim. Back in 2014, when this issue was again at the centre of attention, the then Environment Minister Paul Wheelhouse told a Parliamentary Committee that he was “confident” that surveillance cameras could be used in wildlife crime investigations where it was appropriate and the Lord Advocate had apparently made it clear that the option was available to Police Scotland (see here). Police Scotland had a different view and said, “Police Scotland will not be routinely deploying these tactics” (see here).

So where do we go from here? As both Dr Glover and Malcolm Combe note, there is a wider debate to be had here and maybe, on the back of the recent COPFS decisions, these commentaries from legal academics will prompt a review, leading to much-needed reform. In his blog, Dr Glover makes several suggestions for improvement, and some of our blog commentators have, in previous posts, suggested that a condition of any proposed game shoot licensing scheme could be that landowners have to agree to the installment of cameras at the nests of certain raptor species. A review of this type would come under the remit of the PAW Scotland Legislation, Regulation & Guidance sub-group, whose objectives include:  ‘To review the operation in practice of wildlife legislation and regulations; identify areas for improvement and make recommendations; produce guidance for wildlife crime law enforcement practitioners, land managers and other countryside users‘.

What absolutely cannot be allowed to continue is clear-cut evidence of illegal raptor persecution being routinely dropped on the basis of a legal technicality. If the current legislation doesn’t work (it doesn’t), it needs to be amended. We’ve seen the much-welcomed review of wildlife crime penalties, the recommendations of which have been agreed by the Scottish Government (here) but there’s no point in having stronger penalties as a deterrent if the offender knows that the chances of being caught and receiving the punishment are minimal.

Law professor comments on inadmissibility of video evidence in wildlife crime prosecutions

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.