The admissibility (or, more to the point, the inadmissibility) of covert video footage as evidence in wildlife crime cases has long been a source of fascination and, for us at least, confusion.
We’ve blogged about it a lot over the years and we’ve received some interesting and useful responses from some legal commentators (e.g. see the comment from ‘Edinburgh Observer’ on this 2012 blog). Sometimes covert video footage has been accepted as admissible evidence (more so in English courts than Scottish courts, although it is being increasingly challenged in raptor persecution trials in the English courts) and other times, inexplicably to us lay observers, it has been ruled inadmissible. The decision to rule on inadmissibility in Scotland has, for a long time, been taken by the Crown Office rather than by a Sheriff, which has caused consternation among some observers, with a notable exception being the Mutch trial, where the Sheriff ruled the RSPB’s video evidence was indeed admissible, but only because the RSPB was able to show the footage was a by-product of a wider, legitimate research project (in this case the use of crow cage traps), rather than the camera being placed with the sole intention of filming someone committing a criminal act.
We were surprised, then, to read the news yesterday about the use of covert video footage obtained by the League Against Cruel Sports Scotland (LACS) that has led to the arrest of two people accused of alleged fox-hunting offences in the Borders. Not only that, but the video footage has already been placed in the public domain by the BBC, prior to any subsequent trial. The footage can be seen on the BBC news website here, included in a mini-documentary about fox-hunting in general. It’s well worth a look.
So what was it about this video footage that made it admissible, rather than inadmissible evidence? At this stage, we know the footage has been deemed admissible because two individuals have been charged on the basis of what was filmed. In the British justice system, you arrest on suspicion, charge on evidence, and convict on proof. If this case does reach trial, the footage may well be later challenged in court and ruled inadmissible by the Sheriff; we’ll have to wait and see. But for now, the Police (and presumably the Crown Office who would have advised on whether charges could be brought) have accepted the footage as admissible evidence, otherwise these two individuals would not have been charged.
There are several ways to look at admissibility in this case. If you watch the BBC’s mini-documentary, there’s an interview with Robbie Marsland, the Director of LACS Scotland. In that interview, Robbie seems to suggest that LACS Scotland hired wildlife crime investigators specifically to monitor the activities of Scottish hunts. He said he gave his investigators explicit instructions to remain covert while filming, because, justifiably, he didn’t want the overt presence of observers to alter the behaviour of the hunts they were monitoring. So in this case, you could argue that the LACS investigators were filming covertly and specifically to catch someone committing a criminal offence. On the other hand, it’s also quite clear from the interview with Robbie that this was part of a wider research project being undertaken by LACS. It wasn’t just the Jedforest Hunt that was being filmed – other Scottish hunts were also being filmed because LACS had received persistent intelligence reports that some hunts were breaking the law, even though the Police and Crown Office said they hadn’t received any reports. LACS began a wider research project to investigate patterns of behaviour among Scottish hunts.
To our mind, this scenario is very similar to the way the RSPB investigations team operates. When they undertake covert video monitoring they’re not just filming on one estate, they’re actively monitoring many estates because, as with LACS, they receive persistent intelligence reports that some estates are illegally killing raptors. Surely this could be viewed as being a ‘wider research project’, in the same way that LACS has operated?
The public release of the LACS footage, prior to a subsequent trial, is also interesting. We’re not sure the RSPB has ever done this before a trial, although they certainly have released footage post trial. Perhaps the early release of the LACS footage can be explained because, as the footage was captured from some distance to the hunt, it is virtually impossible to identify any individuals in the released LACS video. That’s important, especially in Scotland, where identification can be an issue in a trial. Because of this, it can be considered contempt of court to publish an image of the accused prior to conviction (although apparently you can in England) because it might prejudice a fair trial by influencing the jury. RSPB video footage, on the other hand, tends to be have been filmed at much closer range where the suspect’s identity is often clear.
However, as the two suspects in the LACS case have been charged with alleged summary offences (case heard by a single Sheriff rather than by a jury), as is often the case with suspects charged with summary offences on the basis of RSPB footage, then there’s no jury to prejudice so why not release the footage early?
All in all then, an intriguing (and still confusing) situation and we’ll watch with interest to see how this develops.