25
Apr
17

Crown Office drops third prosecution in two weeks

Two weeks ago, we blogged about how the Crown Office & Procurator Fiscal Service (COPFS – the public prosecutors in Scotland) had dropped a long-running vicarious liability prosecution against landowner Andrew Duncan, who was alleged to have been vicariously liable for the crimes of his gamekeeper, who had killed a buzzard on the Newlands Estate in 2014. When pressed for a reason behind the decision to drop the vicarious liability case, the Crown Office said it was “not in the public interest to continue” but did not provide any further detail of how, or why, that decision had been reached (see here).

Ten days later, we learned that the COPFS had dropped another long-running prosecution, this time against gamekeeper Stanley Gordon who was alleged to have shot a hen harrier on the Cabrach Estate in 2012. No explanation was given for this decision.

And now today, we have learned that the COPFS have dropped another long-running prosecution, this time against Angus Glens gamekeeper Craig Graham who was alleged to have set and re-set an illegal pole trap on the Brewlands Estate in 2015. Again, no explanation has been given for this decision.

That’s three high profile prosecutions for alleged raptor persecution crimes, dropped within a two week period, with no explanation why.

One long-running case being dropped would raise an eyebrow; a second long-running case dropped a few days later would cause concern, but three long-running cases, all dropped within a fortnight, all on the eve of an actual trial? That is highly suspicious, even for the most unassuming observer.

Was it incompetence on the part of the COPFS? That is surely a possibility, especially as each of these cases has been running for months, at huge cost to the public purse. Why did it take so long to decide to abandon each case? Was it an issue with video evidence? We’ve been there before, although we’ve also seen successful prosecutions based on video evidence. If it was an issue with video admissibility (and we don’t yet know if it was, so this is just speculation), why did it take so long to reach that decision and anyway, wouldn’t admissibility be an issue for the court to decide, not the prosecutor? Was there another reason for discontinuing these cases? We don’t know, because the Crown Office is saying nothing.

Whatever it was, the discontinuing of these three cases will cause huge damage to public confidence in the Scottish criminal justice system. What do you have to do to get someone to stand trial for alleged raptor persecution in Scotland? We know how difficult it is to identify a named suspect, and we know that the evidential threshold is set extraordinarily high for this sort of crime, so when you do manage to secure enough evidence to charge and then prosecute somebody, it is massively frustrating to (a) see the cases dropped and (b) not be told why.

What is clear amongst all this murkiness is that the current system is not fit for purpose. This series of discontinued prosecutions just adds more grist to the mill for the introduction of a licensing system, and for basing that system on the civil burden of proof.

Meanwhile, we’re looking forward to the release of the video footage……

25
Apr
17

CEO of landowners’ lobby group Scottish Land & Estates announces departure

Serial raptor persecution denier Doug McAdam is to stand down as CEO of Scottish Land & Estates, according to a statement on SLE website (here).

[Update 16.30hrs: apparently he’s already gone! That was a bit abrupt!]

We’ll miss his persistent and unsupported claims that raptor persecution is in decline, that grouse moor management is great for biodiversity, that raptors thrive on driven grouse moors, that grouse moor owners love golden eagles, that grouse moor owners love hen harriers, that grouse moor owners love all raptors, and that mountain hares are managed ‘sustainably’ on driven grouse moors.

We’ll miss the repeated calls for licences to ‘manage’ raptors, the letters of complaint about the RSPB, the letters of complaint about the BBC, and the letters of complaint that raptor persecution gets too much media attention.

Delusional to the end, we had to laugh at this quote in the SLE press statement:

I am very proud of the progress we have made under my watch. We are now seen as a progressive, evidence-led organisation“.

We’re guessing his leaving gift won’t be gold-framed prints of these two pie charts produced by RSPB Scotland in 2015:

 

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.




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