Tag: peregrine

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 11^th 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 13^th 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, 14^th 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 21^st 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 26^th 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 24^th 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 2^nd 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)