02
Jun
12

Inadmissable evidence: double standards for wildlife crime offences?

In February we blogged about the Crown Office & Procurator Fiscal Service (COPFS) decision not to accept the video evidence showing a head gamekeeper apparently bludgeoning crows to death with a stick inside a crow cage trap on a Scottish sporting estate (see here). The video had been filmed by a field officer from the charity OneKind who, by chance, happened to be in the right place at the right time (or the wrong place at the wrong time, depending on your view).

OneKind appealed against the COPFS decision not to initiate court proceedings against the gamekeeper but the Lord Advocate ruled that the COPFS decision would stand. In response, OneKind submitted a petition to the Scottish Government, signed by over 2,000 members of the public who were disgusted by what they’d seen in the video. OneKind asked the Scottish Environment Minister, Stewart Stevenson, for greater clarity on what is / isn’t considered admissable evidence in wildlife crime cases.

Here’s his reply:

“….the Scottish Government believes it is vital to all our efforts in tackling wildlife crime, for members of the public who come across anything suspicious to report what they have seen to the police.

I would however note that there is a difference between cases where members of the public come across evidence that seems to point to a wildlife crime, and those cases where a person who is employed as, or is acting in some capacity as, a wildlife crime investigator, reports such evidence. It is for the Crown Office to decide on how a court would deal with evidence in either of those cases, and their decision on whether to prosecute a case is final”.

See here for the full update on the crow-killing incident provided by OneKind.

So, what have we learned? If you’re a member of the public who doesn’t really know what you’re looking at, or how to record evidence that might be crucial in a subsequent prosecution, then your ‘evidence’ will probably be admissable. However, if you’re someone who knows exactly what you’re looking at and has been trained in the best techniques of evidence collection and preservation, then your evidence will probably be inadmissable.

And the logic in that is….what, exactly? Are there any other areas of criminal law where these double standards apply? (This is a genuine question – we don’t know the answer but would like to hear from anyone who can enlighten us and help us to understand these rules).

Is it any wonder our wildlife crime conviction rates (and especially for raptor persecution incidents) are so pathetically low? How many more legal obstacles are going to be placed in the way of bringing these criminals to justice?

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9 Responses to “Inadmissable evidence: double standards for wildlife crime offences?”


  1. 1 Marco McGinty
    June 2, 2012 at 5:14 pm

    The police receive a tip off from a member of the public that the occupier of a certain house is involved in drug dealing and the house conttains quantities of drugs and drug-dealing paraphernalia. The police raid the house, gather evidence and the occupier is eventually charged and most probably sentenced to a period in prison.

    I’ve thought about this for a while and I (along with any other sensible person) cannot differentiate between the actions of the police officers in the above fictional episode and the actions of the OneKind officer. The only difference in the scenarios being that one crime scene involves urban society (and very probably members of the lower working class) and the other crime scene is a large estate owned by the rich and wealthy. Equality? I think not.

    But here’s another interesting point. What about drivers that are caught on camera breaking road traffic laws? Will motorists now be able to have all convictions thrown out of court? After all, the cameras have been set up, either at the roadside or in police vehicles, in an attempt to capture speeding offences and other law-breaking incidents.

    Have the government and courts now set such ridiculous precedents that will eliminate all documented evidence gathered by crime officers?

  2. 2 Dougie
    June 2, 2012 at 6:38 pm

    The judgement that threw out out the evidence obtained by the One Kind rep. stinks – big time.

    • 3 Steve Miller
      June 2, 2012 at 7:50 pm

      In a court ruling in Malta last year the court ruled that film evidence ( gathered by Birdlife Malta and CABS) was admissable evidence as it was deemed to be in the public intrest! Are we now slipping behind Malta when bird protection concerned.

  3. 4 Circus maxima
    June 2, 2012 at 11:12 pm

    and if a keeper films somebody releasing an animal from a snare this will be inadmissable?

  4. 5 john miles
    June 3, 2012 at 12:26 pm

    Is it time to switch the lights out and close the door! On the other hand read Stuart Rae’e new book ‘ Eagle days’ Langford Press and see why we will never give up.

  5. 6 Red
    June 3, 2012 at 10:12 pm

    If you go on to private land to take a walk, go climbing, or go birding or any other purpose allowed by the Land Reform Act and you come across what appears to be evidence of wrong-doing, you can take photographs, videos, notes whatever and the evidence will probably be admissible.

    If you go on to private land for the purpose of collecting evidence of crime then you need a warrant. The court will take a view as to why a person is on private land. If that person is employed as a wildlife crime investigator, and just happens to find themselves in a position to make a video of what they think is wildlife crime, then the court is likely to come to the conclusion that collecting that evidence was the real purpose of that person being on that land. No matter what that person may claim.

    it’s got nothing to do with it being wildlife crime. The same would apply to any type of crime and any type of investigator whether the police, MI5 or whoever. The court can excuse the way in which evidence is collected if, for example, serious crime is involved, but in most cases, the court is likely to think professional investigators should get a warrant before going on to private property to collect evidence. That’s the law and it protects us all.

  6. June 4, 2012 at 8:13 am

    Thanks Red.

    I still think there are double standards at play.

    For example, in the crow case, the OneKind guy was virtually accused of being a liar (he said his reason for being on that estate was to research legal snaring techniques), whereas in another case, a gamekeeper who was found to be in possession of illegal poison, on an estate where dead raptors had been found poisoned by the same substance, was not charged with poisoning because COPFS believed his claim that he was innocent!

    So, there we had an upstanding citizen who was reporting an alleged wildlife crime but his evidence was deemed inadmissable because the authorities thought he was lying about his reason for being at that location and yet the word of a convicted criminal gamekeeper is accepted without question. Please don’t try and tell me that double standards are not at play here.

    There have been many other incidents where the reporter is treated as though he’s the guilty party. For example, we know of several raptor workers who are not investigators but just ordinary members of the public who just happen to monitor raptor sites in their spare time, who have reported alleged incidents of wildlife crime to the police, including poisoning incidents (i.e. a serious danger to the public let alone other wildlife) and who have come out of the police station feeling as though they’ve been interrogated when all they’ve been doing is reporting an alleged crime. Some of these reported incidents have not been followed up by the police. Yes, double standards indeed.

  7. 8 Circus maxima
    June 5, 2012 at 6:32 am

    Scottish Access legislation says it is legal to enter “private” land for surveying wildlife etc. There is no bar on the use of cameras/video for this purpose, as long as you are behaving responsibily you have a right to be there. There is nothing in the access code that says “off duty policemen must keep their eyes closed on private land”

    How can it be irresponsible to collect evidence of a crime?

  8. 9 Edinburgh observer
    June 7, 2012 at 7:10 pm

    This thread begs two questions: (1) what types of access are lawful and what is not? and (2) in each case, what factors affect the admissibilty of any evidence secured in relation to a crime wirnessed in the course of exercising such access.

    First, access: as the posts indicate the Land Reform (Scotland) Act 2003 provides rights of responsible access to most land, and certainly all land where wildlife crime is an issue – but not, of course, to dwellings or buildlings. Unfortunately, however, these rights are associated with the purpose of the visit. These are primarily for recreation or education – the latter including wildlife research or monitoring. So, if one visits land for those purposes and happen, by chance, to encounter a crime, the evidence is probably admissable. However, it is arguable that visiting land primarily or knowingly for the express purpose of obtaining or seeking to find such evidence, makes that access unlawful. This ‘unlawfulness’ is, however, only in relation to statutory access rights under the 2003 Act (see below), and the admissibility or otherwise of any evidence must be subjected to the second issue (see further below). Notwithstanding the above, the 2003 Act also creates a statutory right to “cross land” that is not conditional on the purpose – so any access for the purpose of obtaining or seeking to find evidence while “crossing land” should be lawful – perhaps all raptor workers/OneKind staff should be forever heading somewhere else and, therefore, only “crossing land”!!?!

    As well as statutory access rights under the 2003 Act, many access campaigners also argue that, in Scotland, there are traditional rights of ‘customary access’ (see Blackshaw, 1999 in Edinburgh Law Review at http://www.euppublishing.com/doi/abs/10.3366/elr.1999.3.3.368). Such rights would apply to the kind of open countryside where wildlife crime is an issue – and are not subject to the limitations of purpose described above. Thus, access for any purpose could – according to Blackshaw be lawful.

    Secondly, is evidence obtained by lawful or unlawful access (as distinguished above) admissible? This boils down to a decision, ultimately, for the court to determine – on the basis of balancing competing concerns. Of course, in the OneKind case referred to above (and in several other wildlife cases), the Court has not been asked to make a determination because the Procurator Fiscal has (pre)determined the answer and decided not to proceed. Procurators should, of course, make such judgements in cases where the balance of competing interests is so obvious that no reasonable court would reach an alternative conclusion. However, in these wildlife cases, this obvious-ness is less clear and Procurators appear to be pre-judging the answer – and, as suggested, creating double standards.

    The origin of the doctrine of balancing competing interests was the case of Lawrie v Muir (1950 JC 19, 1950 SLT 37, [1949] ScotHC HCJAC_2, see http://www.bailii.org/scot/cases/ScotHC/1949/1950_JC_19.html) and has developed since, and is discussed in detail in “Illegally Obtained Evidence and Scots Law: A Fair Balance?” (Stark and Leverick, 2010 – online but as a word document – google it!). The rule seems to be that a court, in determining admissibility, should balance the “upside” of securing justice via prosecution against the “downside” of seeming to allow irregularity or unlawfulness in the securing of the evidence. In extreme cases, for instance, where a housebreaker witnesses a murder, the unlawfulness of housebreaking may be overlooked to secure prosecution for murder – and, of course, the housebreaking could be subsequently prosecuted. These issues, of course, will mean lots of variables in comparing and contrasting the interests of justice with the interests of the accused or other deterring other irregularities, and are affected by various modern legislation both on access and on human rights. However, as Stark and Leverick rightly conclude the approach of the Scottish courts to the question of whether illegally obtained evidence should be admitted in or excluded from criminal proceedings is “unsatisfactory” and “largely incoherent”. They also discuss the need for reform of the law which has gone unaddressed for over fifty years.

    So, in the wildlife cases, it seems the procurator has taken the view that the court would consider the irregularity of unlawful access (trespass!?) to be a more serious issue than the alleged wildlife crime, and not a matter of such relative insignificance that it might be overlooked by the court. However, one might ask, when has the Crown ever tested such an argument in Court? Very few reported cases are available – and those that are have special circumstances. To date, no Court has determined whether the public interest in securing justice, convicting an offender and deterring wildlife crime is or is not greater than the public interest in not encouraging the (potential) unlawfulness of ‘irregular’ access to open countryside.

    In this issue, the comparison with Malta above, and incidentally England, is notable – the post above suggests that the Maltese jusisdiction has admitted such evidence, as has regularly been the case in England. It is scandalous that this is not, apparently, the case in Scotland – but perhaps even more scandalous that the determination of the public interest has, to date, rested with the COPFS. It is time that the relevant arguments were made in Court – to date, no full exploration of all the issues has been made or a definitive Court judgement sought. Pressure should be applied to the COPFS to make a test case of one such as that described above – or do they find it useful to have “unsatifactory” and “incoherent” law that allows them to make arbitary decisions as they wish?

    In addition, of course, it is probably time that wider concerns raised by Stark and Leverick were addressed. Something for the Scottish Parliament?


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