24
Apr
17

Evidence session: petition to introduce gamebird hunting licensing

Last week the Scottish Parliament’s Environment, Climate Change & Land Reform (ECCLR) Committee held an evidence session as part of their consideration of the Scottish Raptor Study Group’s petition calling for the introduction of state-regulated licensing for all game bird hunting in Scotland.

The archived video of the session can be viewed here

The official transcript can be read here: ECCLR transcript gamebird shooting licensing 18 April 2017

The evidence session was split in to two parts. The first part comprised evidence from the petitioners (Logan Steele & Andrea Hudspeth from the SRSG) and the second part comprised a panel of ‘stakeholders’ including Logan Steele, Duncan Orr-Ewing (RSPB Scotland), Robbie Kernahan (SNH), Andy Smith (Scottish Gamekeepers’ Assoc) and Lord David Johnstone (Scottish Land & Estates). (Photos from ECCLR webpage).

We’re not going to go through the transcript line by line because that would be tedious, but instead we wanted to comment on a few observations.

Unlike the evidence session held at Westminster last autumn, this was a civilised, unbiased hearing. That may be because, unlike the Westminster Environment Committee, none of the ECCLR Committee have a direct conflict of interest in the subject nor receive payment from any of the organisations represented by the witnesses. The Convenor of the ECCLR Committee (Graeme Dey MSP) was far more professional than his inexplicably rude Westminster counterpart, and although Mr Dey is known to support the propagandist Gift of Grouse campaign, his management of this evidence session was reasonably balanced and fair.

In the first part of the session, Logan and Andrea gave measured, thoughtful evidence about the continuing issue of illegal raptor persecution, supported by decades of scientific monitoring and peer-reviewed science. These two witnesses deserve much kudos. They are ‘ordinary’ members of the public, so exasperated by the failure of successive Governments to sort out this problem that they’ve been moved to exercise their right through the democratic process of petitioning the country’s decision-makers. As a result, they’ve been vilified on social media, exposed to a barrage of personal abuse from certain individuals within the game shooting sector, and yet here they were again, calmly and adeptly stating their case. We all owe them a massive vote of thanks.

The performance of the other witnesses was mixed. Andy Smith (SGA) is doubtless well intentioned but his ability to engage in the actual discussion is limited. He clearly had a list of points he wanted to get across, but blurting them out whenever he had an opportunity to speak, instead of listening to the question that was posed and reacting to that, didn’t help his cause.

Robbie Kernahan (SNH) didn’t say too much, and most of what he said was fairly standard SNH-speak (i.e. fence sitting), although he did make an important opening statement that should add some gravitas to the Committee’s future deliberations:

Generally, in Scotland, we have quite a positive message about the recovery of raptor populations from those all-time lows. It is certainly a national picture. However, that is not to say that there are not issues. Certainly, some of the concerns about the intensification of moorland management prompted our scientific advisory committee to have a review two years ago. Without wanting to go through that chapter and verse, I can say that there is no doubt that the on-going issue of raptor persecution is inhibiting the recovery of populations in some parts of the country“.

The evidence provided by Duncan Orr-Ewing (RSPB) and David Johnstone (SLE) was perhaps the most interesting. Duncan spoke with authority about the extent of illegal raptor persecution, saying the RSPB “thinks the situation is as bad as it has ever been“, while David flatly denied this, pointing to the annual ‘body count’ as his supporting evidence but completely ignoring the long-term population data, as published in peer-reviewed scientific papers. When asked by the Convener whether there was a possibility that culprits might now be better at hiding the evidence, in part pressured by measures such as the threat of vicarious liability, David’s response was “No“. No? Really? No possibility of that happening at all? Come on.

What made David’s response even more incredible (in the literal sense) was that SLE, as members of the PAW Scotland Raptor Group, have been made aware of the recent flow of scientific papers (e.g. on red kite, golden eagle, hen harrier, peregrine), all clearly showing population-level impacts of illegal raptor persecution, and as PAW partners, are supposed to have been advising their members accordingly. So how come the Chairman of SLE hasn’t been informed?

And on the subject of ‘possibilities’, much was made of the possibility of estates being ‘set up’ (i.e. someone planting evidence) if a licensing system was introduced. Both Logan and Duncan accepted that this was a possibility and they were right to do so. Of course it is a possibility, although on previous experience, the probability of it happening seems quite low.

In January 2012, just after the introduction of vicarious liability, David Johnstone was cited as saying there was a risk of estates being set up in response to the new vicarious liability measure. Five years on, there hasn’t, as far as we are aware, been a single case of an estate being ‘set up’.

Similarly, in November 2013, the then Environment Minister Paul Wheelhouse was asked during a Parliamentary Committee whether estates being ‘set up’ was a legitimate concern for landowners and gamekeepers. Wheelhouse responded that yes, it was a possibility, but that there wasn’t currently any evidence to support such claims, although a new study on trap interference was due to assess the issue. The results of that study showed that the illegal tampering of traps was not as widespread as the gameshooting industry had claimed (see here) and when it had happened, the interference mostly related to trap ‘damage’ (rendering the trap inoperable) as opposed to setting an illegal trap to infer a guilty responsibility on the estate.

There was quite a lot of discussion about what a licensing system might look like, and it was argued by Logan and Duncan that it should be based on the civil burden of proof (much like the policy used for General Licence restrictions) and that this should be a tiered approach, so that a number of incidents would be required before a licensing penalty was applied. David Johnstone was totally opposed to this, saying that the use of the civil burden of proof would be too much of a business risk. There was quite an amusing discussion about this between him and Committee member Mark Ruskell MSP, who argued that if the business was already fully compliant with the law, as David claimed, then the risk should be very low.

All in all, it was a useful evidence session and the ECCLR Committee will be hard pressed to justify not taking things further. The Committee now has to consider the evidence presented and decide on its next move. We may well have to wait until after 8 June to find out what that move might be, because thanks to the forthcoming General Election, no political or sensitive announcements or decisions are permitted during election purdah.

21
Apr
17

Prosecution dropped against gamekeeper in alleged hen harrier shooting

Regular blog readers will know we’ve been tracking the prosecution of Scottish gamekeeper Stanley Gordon, who was alleged to have shot a hen harrier on Cabrach Estate in Morayshire in June 2013.

It took the Crown Office & Procurator Fiscal Service (COPFS) almost three years to charge Mr Gordon, and they just beat the statutory time bar by a few weeks.

The first court hearing took place in May 2016 and there followed a total of nine court hearings in this case. Mr Gordon pleaded not guilty in September 2016 and so a trial date was set for 19 December 2016. This trial date was later dumped and another provisional trial date was set for 15 May 2017.

Today, there was supposed to be a final hearing (intermediate diet) to confirm the trial date. However, we have learned that the case was not called today because the COPFS have dropped all proceedings.

We do not yet know why the case has been abandoned.

There is no chance of anyone else being prosecuted in this case because the case is now time barred.

So in the space of ten days, yet again the COPFS have dropped a long-running prosecution for alleged raptor persecution; they recently dropped a vicarious liability prosecution because, they said, ‘it wasn’t in the public interest to continue‘ (see here).

And just as in the abandoned vicarious liability prosecution, this latest abandonment comes after a protracted period of court hearings, right up to almost the eve of the actual trial date.

Efforts will be made next week to try and find out why the COPFS dropped proceedings, but, as before, we don’t expect much detail to be revealed because public accountability appears to be limited.

It’s worth remembering at this point that hen harrier persecution is listed as a National Wildlife Crime Priority.

We will have more to say about this case in due course.

19
Apr
17

Crowdfunder to help Andy Wightman fight defamation case

Andy Wightman has launched a crowdfunding appeal to help support his fight against a defamation case being brought against him by Wildcat Haven Enterprises CIC. The pursuer is also seeking an astonishing £750,000 in damages and if successful, would render Andy bankrupt which would result in him being ineligible to continue to serve as an MSP.

We’ve known Andy for several years, before he was elected as an MSP for the Scottish Green Party. He’s been a long-time and vocal supporter of this blog and we’re proud to count him as both a professional colleague and as a friend. His earlier work such as this, this and this sets the framework within which illegal raptor persecution takes place in Scotland and goes some way to help us understand why it is still so prevalent.

We’ve blogged about Andy before, a year before he became an MSP, and our opinion of him has only strengthened since he became a politician. We don’t just admire him, we’re in awe of him.

Here’s what we wrote earlier:

Andy Wightman is a class act. He’s an agitator, a truth-seeker and a fearless revolutionist, but achieves this with a charm and courteousness not often associated with anarchists. Combine that with his capacity for meticulous research and analysis and the result is devastating‘.

This charge of alleged defamation came as a shock to many. Andy is not someone who routinely slurs or makes defamatory commentary like a certain tabloid columnist; he is an honourable, thoughtful, principled man who has integrity and decency in spades. It’s not overly melodramatic to argue that if he loses this case, and loses his position in the Scottish Parliament, it will be a travesty of justice and we’ll all be the ones who lose.

If you’d like to support Andy’s crowdfunding appeal, please click HERE where you’ll also find some background to this case and a few words from Andy about how the funds will be used.

Thanks.

UPDATE 21 April 2017: Just a day and a half after launching, the crowdfunder has raised over £25,000. Legal proceedings have begun in the Court of Session. See Andy’s blog update here

18
Apr
17

Environment Committee takes evidence on licensing system for game bird hunting

This morning the Scottish Parliament’s Environment Committee will hear evidence on the Scottish Raptor Study Group’s petition to introduce a licensing system for all game bird hunting in Scotland.

The evidence session starts at 10am and you can watch it live here

UPDATE: The archived video of this session can be watched here

UPDATE 24 April 2017: Our commentary on the evidence session here

17
Apr
17

Vicarious liability prosecution abandoned as ‘not in public interest to continue’

Last week we blogged about the Crown Office dropping all proceedings against landowner Andrew Walter Bryce Duncan, who was alleged to be vicariously liable for the criminal actions of his gamekeeper, William (Billy) Dick in April 2014.

Gamekeeper Dick was convicted in August 2015 of killing a buzzard on the Newlands Estate, Dumfriesshire by striking it with rocks and repeatedly stamping on it (see here). Mr Dick was sentenced in September 2015 and was given a £2000 fine (see here). Mr Dick appealed his conviction but this appeal was rejected on 15 July 2016 (see here).

The Crown Office & Procurator Fiscal Service (COPFS) began vicarious liability proceedings against Mr Duncan in August 2015 but the case was repeatedly adjourned (a total of 13 court hearings) with two trial dates assigned but then later dropped (see here). These repeated delays were due in part to gamekeeper Dick’s appeal against his conviction but in part for other reasons which have not been explained.

As the third trial date (24 April 2017) approached, we were somewhat surprised to learn last week that the case had been abandoned. We asked COPFS why this had happened and this is their response:

All cases are continually kept under review, and after taking consideration of the full circumstances of this case, and all of the available evidence, Crown Counsel concluded that it was not in the public interest to continue the case to trial.

COPFS remain committed to tackling raptor persecution and there is a strong presumption in favour of prosecution of the cases reported to us where there is sufficient evidence and it is in the public interest to do so“.

There is no detail about why proceeding to trial ‘was not in the public interest’ and indeed, the COPFS does not have to disclose this information. We do know that the COPFS Prosecution Code outlines a large number of factors that are to be considered for a public interest test, including:

  • The nature and gravity of the offence
  • The impact of the offence on the victim and other witnesses
  • The age, background and personal circumstances of the accused
  • The age and personal circumstances of the victim and other witnesses
  • The attitude of the victim
  • The motive for the crime
  • The age of the offence
  • Mitigating circumstances
  • The effect of prosecution on the accused
  • The risk of further offending
  • The availability of a more appropriate civil remedy
  • The Powers of the court
  • Public concern

Without knowing the specific details of the evidence in this case it is pointless to speculate about why the case was abandoned (and for anyone commenting on this post, please be careful not to libel Mr Duncan). We just have to accept that it was abandoned, as frustrating as that is, but we do hope that the COPFS will share some detail with the reporting agencies so that lessons can be learned for future cases.

Journalist Rob Edwards has written an interesting piece about the case, published today on The Ferret website (here), which includes some news about the Newland Estate’s membership of Scottish Land & Estates and its accredited membership of the SLE-administered Wildlife Estates Scotland initiative.

In a wider context, this abandoned case is highly significant. Contrary to the COPFS’ decision, there is huge and legitimate public concern and interest about wildlife crime enforcement, particularly in respect to raptor persecution crimes. The Scottish Government is keenly aware of this and has come under increasing pressure in recent years to introduce new measures to tackle the problem. Vicarious liability was one of those new measures (introduced on 1 January 2012) but to date, only two cases have resulted in a conviction: one in December 2014 (see here) and one in December 2015 (see here). Both related to raptor persecution on low ground shoots, not on intensively managed driven grouse moors where raptor persecution is known to still be a common occurrence. One further case in October 2015 did not reach the prosecution stage due, we believe, to the difficulties associated with identifying the management structure on the estate where the crimes were committed (see here).

Given the low success rate of vicarious liability, alongside the continued illegal persecution of raptors on game-shooting estates, it is clear that the Scottish Government needs to do more.

Tomorrow, the Scottish Parliament’s Environment Committee will hear evidence from the Scottish Raptor Study Group (Logan Steele & Andrea Hudspeth) in support of their petition to introduce a state-regulated licensing scheme for all game bird shooting in Scotland. Part of this licensing scheme would include provisions for sanctions against estates where raptor persecution takes place. Evidence will also be heard from various stakeholders including RSPB Scotland (Duncan Orr-Ewing), Scottish Gamekeepers’ Association (Andy Smith), SNH (Robbie Kernahan) and Scottish Land & Estates (David Johnstone). The evidence session begins at 10am and can be watched live on Scottish Parliament TV (here) and we’ll post the transcript when it becomes available later in the week.

16
Apr
17

Shot hen harrier Rowan: no further metallurgical tests

The farcical reporting about the shooting of young hen harrier Rowan continues.

As you’ll recall, Rowan was satellite-tagged by the Hawk & Owl Trust / Natural England at Langholm in 2016. His corpse was discovered, in suspicious circumstances, in Cumbria /Yorkshire Dales National Park in October 2016, shortly before the Westminster debate on banning driven grouse shooting.

A press release issued by Cumbria Police (after consultation with Natural England and possibly the Hawk & Owl Trust) stated he was ‘likely to have been shot‘. We questioned that phrasing and a series of FoIs revealed that Cumbria Police had changed their statement from ‘was shot‘ to ‘was likely to have been shot‘. Why did they introduce an element of doubt? Was this a political move?

We asked Cumbria Police and Natural England to publish the post mortem report and the x-ray of Rowan’s corpse – they refused, saying it ‘might affect the course of justice‘. This made us even more suspicious as police forces routinely publish x-rays of shot birds as part of their appeals for information. By not publishing Rowan’s x-ray, it was almost as though they had something to hide.

Then on 3 February 2017, the RSPB published an image of Rowan’s x-ray on their blog. The image was clear: Rowan had suffered gun shot injuries to the leg and metal shot fragments were visible at the fracture site.

Later that day, the Hawk & Owl Trust issued a statement saying ‘the initial post mortem results were not wholly conclusive and further metallurgical tests were required‘.

We asked the Hawk & Owl Trust, several times, who had decided the post mortem results were inconclusive, who had decided that further metallurgical tests were required, had those tests been done, and if so, what were the findings?

The Hawk & Owl Trust did not respond.

So in March 2017, we submitted an FoI to Natural England to ask about these ‘further metallurgical tests’. Here’s their response:

You’ll notice that our questions about whether further metallurgical tests were ‘required’ and if so, who deemed them a ‘requirement’, were carefully dodged. The response to question 1 should really have been the response to question 3.

But that little anomaly aside, it’s clear from Natural England’s response that further metallurgical tests are not being undertaken. Does that mean that it is now accepted that Rowan had been shot? And if so, why all the obfuscation in the earlier press releases? To us, it looks remarkably like a cover-up job, albeit a bodged one.

Meanwhile, in the March edition of the RSPB’s Legal Eagle newsletter, it was stated that ‘the Zoological Society of London post mortem examination, including a radiograph of its fractured left leg, showed the bird’s injuries were entirely consistent with it having been shot‘.

And what of the Hawk & Owl Trust? Well, last week they published a statement on their website, out of the blue, about this case:

Why did they publish this statement last week? Was it because they’d been tipped off by Natural England that an FoI had been submitted seeking clarification on the claim that ‘further metallurgical tests were required‘? It certainly looks that way. So now they’re trying to put responsibility for this claim back on to Natural England! (“All subsequent statements from the Hawk & Owl Trust were based soley on information provided to them by Natural England“).

So, was it Natural England who determined that ‘further metallurgical tests were required‘ and if so, why haven’t these tests been done? Or was it the Hawk & Owl Trust who determined that ‘further metallurgical tests were required‘ in an attempt to introduce an element of doubt about the circumstances of Rowan’s death, to justify their continued involvement in the DEFRA Hen Harrier Inaction Plan, even though they’d previously stated that they’d pull out if criminal activities continued?

15
Apr
17

Suspicious meat baits on a Highland grouse moor

A few months ago one of our blog readers sent us a series of photographs and a report that a large number of meat baits had been found placed along a 250m estate boundary fence on a Highland grouse moor.

The meat baits had attracted the attention of a number of red kites, buzzards and corvids, and a dead corvid was found on the ground next to one of the baits.

Some of the baits (but not all) appeared to have a coating of white residual powder. Given the history of raptor persecution in the area, there was some suspicion that this might have been an attempted poisoning incident. Placing poisoned baits along a boundary fence is a technique that has been used on other grouse moor estates (e.g. see here).

We encouraged the witness to contact the police and a Police Wildlife Crime Officer attended the scene the next day (good response time). Several baits were collected to be sent for toxicology tests and the results were later confirmed as negative.

Unfortunately, the Police WCO also called the head gamekeeper while at the scene and asked why meat baits had been placed on the fence line. The gamekeeper’s response was along the lines of ‘It’s diversionary feeding and if you want any more information speak to my lawyer’.

In this instance, illegal poisoning was not proven (it’s a shame the dead corvid wasn’t sent for testing) and perhaps it was just a simple case of lawful, diversionary feeding. However, it could have been a prelude to something much more sinister but as the WCO had already alerted the estate staff that the baits had been found, it was a missed opportunity for further evidence gathering. The upside is that the estate was made aware that members of the public, and the police, were paying attention to estate activities.

If you’re out and about, it’s well worth taking a walk along estate boundary fence lines……




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