05
May
17

Hen harrier shooting: fury at decision to drop prosecution

Two weeks ago, the public prosecutors in Scotland (Crown Office & Procurator Fiscal Service) decided to discontinue criminal proceedings against a (now former) gamekeeper who was alleged to have shot a hen harrier on a grouse moor at Cabrach Estate in June 2013 (see here).

No explanation was given for this decision.

Earlier this morning, RSPB Scotland released video footage of the incident and issued a press statement (here). Here is the video in case anyone missed it:

After watching this video, it’s hard to find words to express the disbelief, frustration and fury about that decision to discontinue the prosecution. Social media has erupted in outrage and the Crown Office is seen as a laughing stock. Most reasonable, law-abiding people who don’t have a vested interest in driven grouse shooting would be hard pressed to disagree.

The RSPB Scotland statement said that the Crown Office had indicated they could not use the video as evidence, but no further detail was provided. RSPB Scotland quite rightly pointed out that other cases that have relied upon video footage have been used successfully in Scottish courts (the most high profile one being the conviction of gamekeeper George Mutch in 2014), and the RSPB was bewildered by the inconsistency of the COPFS’ approach in this case.

However, this morning, in response to the release of the video, the Crown Office has finally decided to provide an explanation, as published in a BBC news article:

In accordance with the Crown’s ongoing duty to keep prosecutions under review and after carrying out a detailed review of all of the relevant material, Crown counsel considered that the inevitable conclusion was that RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution.

Discussions have taken place over a number of years between RSPB and COPFS about the admissibility of evidence obtained through the use of covert surveillance.

The Crown has consistently made it clear that strict legal tests must be met before evidence which has been obtained irregularly, such as the evidence in this case, is admissible. We will continue to have further dialogue with RSPB.

In the whole circumstances, Crown counsel concluded that the evidence would not be admissible in court.

In light of that conclusion it was entirely appropriate that proceedings were brought to an end.”

This statement begs several questions:

  • Essentially, this statement implies that RSPB Scotland was lying about the deployment of the video camera. RSPB Scotland had clearly explained that the camera was positioned as part of a routine research/monitoring study focusing on the breeding success of a threatened species. There’s a Scottish Government project (Heads up for Hen Harriers) that is deploying cameras at hen harrier nests for exactly this purpose for Christ’s sake! The Crown Office apparently disputes the RSPB’s explanation for camera deployment. Why? What evidence do they have that makes them think the RSPB is lying? [NB: see update at foot of blog]
  • If the COPFS believed this camera had been placed “for the purpose of prosecution“, why on earth did it take them three years from the date of the shooting to decide to charge the suspect, and why did it take a further year of court hearings (nine in total) before the decision was made to discontinue proceedings? Why did the COPFS even mark this case for proceedings if they didn’t believe the RSPB’s version of events? What changed in the four years the COPFS have been considering this case?
  • Why is the admissibility of video footage such a controversial issue in cases of alleged raptor persecution, and yet we see it being used in a current court case of alleged fox-hunting? We’ve spoken to one of the investigators who filmed the footage being used in the hunt case and he has confirmed he was filming covertly on private land without landowner permission as part of a wider research project on the behaviour of hunts, whether the hunts were involved in alleged criminal activity at the time or not. That’s no different to the circumstances of this hen harrier case.
  • If the circumstances of how this camera footage was obtained were so controversial, why didn’t the COPFS allow the evidence to be assessed by the court? In a very similar case to this current one, in 2006 a gamekeeper was convicted of stalking a hen harrier and his conviction was based on RSPB video evidence. During that trial, there were several hours of legal argument about the admissibility of the video evidence. The Sheriff accepted the video evidence, commenting that the RSPB presence on the gamekeeper’s estate [from where the video was filmed] was “neither illegal nor irregular, and the intent to obtain evidence did not make it so“.
  • We’ve discussed the issue of the admissibility of video evidence time and time and time again. In 2013, the then Environment Minister Paul Wheelhouse told us that this very issue had been raised with the Lord Advocate (see here). Why then, four years later, is there still such inconsistency and lack of clarity about video admissibility?
  • Why did it take the publication of this video footage, two weeks after the Crown’s decision to discontinue proceedings, for the COPFS to provide an explanation for their decision? Hen harrier persecution is one of the highest national wildlife crime priorities and there is huge and legitimate public concern about it. By remaining silent for two weeks, we would argue the COPFS has displayed an arrogance and contempt for that public concern. It’s not the first time the COPFS has been criticised for poor communications – the Scottish Environment LINK report on wildlife crime enforcement published two years ago was damning on this issue, and this year’s Scottish Parliament’s Justice Committee report on the role and purpose of the COPFS reached a similar conclusion.

The general public, is, quite rightly, furious about how this case has been handled. It seems to us that the Crown Office is more concerned about how the evidence was obtained than the actual alleged crime of killing a protected, national priority species. Of course, the COPFS has to assess the evidential circumstances on a case by case basis, and we don’t question that at all. What we do question is, in this case, on what basis the COPFS decided to disbelieve the RSPB’s explanation for deploying the camera, and why it took so long, at such huge cost to the public purse, to decide to discontinue proceedings.

And let’s not forget that this case is one of three that the Crown Office has recently discontinued, all in the space of two weeks (see here).

For a comical interlude, have a read of the statement issued by the Scottish Gamekeepers’ Association in response to the video footage. They say, “The SGA has no membership interest in this case. It is not our place to comment, therefore, on individuals involved in the alleged incident or to provide a critique of COPFS“. This is the organisation that is supposedly signed up to the Partnership for action Against Wildlife Crime and who serves on the PAW Raptor Group.

Do we have any confidence in the Scottish criminal justice system to address the on-going persecution of birds of prey? On current evidence, the answer is a resounding NO.

What to do about it? We would urge you to contact your MSP (find out who yours is here) and ask him/her to contact the Scottish Government’s Justice Minister, Michael Matheson to complain on your behalf about the handling of this case. The more MSPs that see this video footage, and hear about the public’s serious concerns, the better.

If you don’t live in Scotland but still want to voice your concerns, please email the Convener of the Scottish Parliament’s Justice Committee, Margaret Mitchell MSP (Scottish Conservatives). Email: margaret.mitchell.msp@parliament.scot

Don’t be fobbed off with platitudes or claims of “We can’t comment on individual cases”. Public scrutiny is fundamental to democracy and the public has every right to be asking questions about this ongoing, disgraceful shambles.

UPDATE 14.30hrs: RSPB Scotland has issued a statement in response to the claims of the Crown Office that the camera had been “deployed for prosecution purposes”. Here’s what it says:

In response to the Crown Office’s statement of 5th May as to why the video evidence would not be admissible in court Ian Thomson, Head of Investigations, RSPB Scotland said: “We do not agree with the opinion from the Crown Office that we were attempting to gather evidence for a prosecution. We installed a camera to monitor a protected breeding bird’s nest site, core business for a conservation organisation. We did not share the information about the nest site with anyone, as would be the case with any rare and vulnerable breeding bird species. 

“The fact that an individual came and allegedly shot the female harrier, and that this was captured on film, was an incidental consequence of the camera’s deployment, in the same way that it could easily have captured footage of the nest being naturally predated or failing due to bad weather. It is very disappointing that the opportunity for the court to consider the issue of the admissibility or otherwise of this evidence, as has happened in previous cases, has been removed. Until today, we have received no rationale for the decision to drop the case despite the fact that a number of our staff have provided significant time and expertise in supporting the authorities with the prosecution case.” 

ENDS

UPDATE 8 May 2017: Some more thoughts on the shot hen harrier video (here)

UPDATE 11 May 2017: Cabrach hen harrier shooting reaches First Minister’s Question Time (here)

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54 Responses to “Hen harrier shooting: fury at decision to drop prosecution”


  1. 1 Mandy payne
    May 5, 2017 at 1:58 pm

    I thought it is unambiguous in law that if a crime is believed to be progress,in flagrante delicto,or about to be committed,then it is permissible to trespass to try and prevent that crime or to apprehend in some way the commissioners of that crime. I don’t personally disbelieve the RSPB over the reasons why the camera was set up on the estate and that it was happenstance that captured the shooting;but even it was,admissibility shouldn’t be an issue if there had been suspicions about the activities of certain individuals connected with the estate. The Court has questions to answer

    • 2 Harry Angel
      May 6, 2017 at 12:04 am

      Mandy, in Scotland responsible access is allowed to most land so trespass wouldn’t have even been an issue, unless the Crown Office wants to call wildlife protection irresponsible!

  2. 3 Pete Hoffmann
    May 5, 2017 at 2:20 pm

    Clearly there is a conflict of interest at play somewhere in the system.
    The shoots are in the habit of inviting useful people.

  3. 4 Simon Tucker
    May 5, 2017 at 3:20 pm

    Surely putting a camera in place to catch wrong-doing is the whole rationale behind the CCTV coverage of our towns and cities? So why not in the countryside?

    This abuse of process and disgraceful decision just yells “corruption”: a total disgrace.

    • 5 Dylanben
      May 5, 2017 at 8:47 pm

      I believe that it is fair to say that the CCTV coverage in our towns and cities referred to above is primarily intended as a deterrent – hence the usual warning signs in various formats which advertise its presence. I can readily see the distinction between this and a covert camera leading to the finding that the latter was set up to obtain a prosecution. But, so what? It has not been alleged that deliberate entrapment occurred, so what is the issue?
      We have excellent, though by no means perfect, wildlife legal protection in place and those who seek to breach it should be fully aware of the penalties likely to be incurred for doing so. Is there any better form of evidence than live video footage showing a crime being committed by an identifiable individual? The farcical effect of the Crown findings appears to be that video evidence is not admissible unless it could be shown that any would-be miscreants had been warned in advance of the presence of a video camera.
      Yet again we have a case of the roll of the weighted dice favouring the dark side.

  4. 6 chris lock
    May 5, 2017 at 3:31 pm

    To be expected as they close ranks and the ‘Laird’s’ look after their own, with many of them on the bench!

    • 7 Skydancing shepherd
      May 9, 2017 at 11:16 pm

      Well done rspb for putting camera out in the first place . now go big on social media and get every body to share it with friends .its a phucking joke they got away with thist

  5. 8 Wilf Norman
    May 5, 2017 at 4:36 pm

    Despatched today!

    Dear Ms Mitchell

    What an absolutely disgraceful decision by the COPFS to abandon the case re the above. Does it really matter how the evidence was obtained? Did anybody encourage the guy to shoot the harrier? Did the camera encourage the guy to shoot the harrier. Of course neither did. The man committed this criminal offence of his own free will. I would really like to know who of the powerful shooting lobby is pulling the strings of the COPFS because believe me that is exactly how this situation looks to many, many people. If video evidence identifying a man deliberately killing a protected raptor thus committing a criminal offence cannot be used in your courts then your legal system is bloody stupid or corrupt! One or the other.

    I would bet my house that had that guy shot a person, and not a raptor there would be no chance at all of the video footage not being used as evidence in court. It really is absolutely infuriating to we conservationists that this guy has got away with a blatant crime. Yours Wilf Norman

  6. 9 Doug Malpus
    May 5, 2017 at 5:16 pm

    This video makes my thoughts on corruption within the shooting estates and the justice system, even more confirmed.

    In the event of someone being caught doing a criminal activity, how can the law say a video is not evidence and inadmissible? The [person] is even shown clearing any evidence of stray feathers. xxxxxxx xxxxxxx

    Most criminals and even speeding motorists cannot use the excuse when caught by CCTV!

    Those with money seem to pay for their get out of gaol cards too easily. Lying and deceit backed by money defeats the law.

    Disgusted, Doug.

  7. 10 Secret Squirrel
    May 5, 2017 at 5:39 pm

    be interested to know whomping he Consel was that reviewed these cases. Was it the same one in each?

    • May 5, 2017 at 5:41 pm

      That’s a very, very good question. We don’t know – a name has not been released. Perhaps RSPB will get an answer if Lord Advocate agrees to a meeting. Then again….

    • 12 Adam
      May 5, 2017 at 6:31 pm

      Crown Counsel denotes the Lord Advocate, the Solicitor General and advocate deputes. Crown Counsel’s instruction (CCI) often issued anonimously, ie. on behalf of Corwn Counsel as a ‘collective entity’.

      Having said that, I doubt that was the case here. This was a summary case which for some reason was referred to Crown Counsel, so presumably an advocate depute looked at the case and issued an instruction. But I think it’s highly unlikely that COPFS would disclose who made this particular decision.

      Ultimately, I guess the responsibilty lies with Lord Advocate as the ministerial head of COPFS.

      • May 5, 2017 at 7:50 pm

        Somebody in C.O.P.f S. needs to hang their heads in shame. If the evidence was so clearly inadmissible then they new that on the day they saw the video of the hen harrier being shot. Why did they draw out this prosecution so long? Did time bar prevent further investigation or different charges being brought?

        • 14 Adam
          May 5, 2017 at 8:06 pm

          The statement refers to the “ongoing duty to keep prosecutions under review” which seems to suggest that perhaps when the police reported the case to COPFS it appeared that there was sufficient admissible evidence, however, as the case progressed and new information came to light it transpired that there were issues which suggest inadmissibility. I suspect that this happens not infrequently (although hopefully inmost cases it doesn’t take 9 diets).

        • 15 Willie S.
          May 6, 2017 at 12:09 pm

          [Ed: first part of this comment deleted as potentially libellous & too convoluted to edit!]
          I can’t imagine a situation, in these politically sensitive times, where a keeper would remove any raptor without the knowledge or prior permission of the landowner.
          There has to be something here, in addition to the inadmissibility issue, otherwise that decision would have been made earlier. The outcome here I think may have satisfied opposing opinions within the landowners
          board.

  8. 16 JImmy
    May 5, 2017 at 5:48 pm

    I really fear for BOP’s in the UK now with the party of the landed toffs riding ever higher after every election – the EU had many flaws but at least it may have acted on these peoples worst excesses. Now there is nothing to stop this government and ones like them declaring an open season on everything from Buzzards to Beavers!!

  9. 17 Kelvin Thomson
    May 5, 2017 at 6:58 pm

    By sheer coincidence had penned letter for my constituency MSP & a couple of the list MSP’s asking them to look into this for me and to write on my behalf to Justice Secretary. I await there replies with interest!

  10. 18 Gerard
    May 5, 2017 at 7:28 pm

    Blimey, I am speechless!

  11. 19 Andy
    May 5, 2017 at 7:46 pm

    Email sent to Margaret mitchell. What an absolute disgrace.

  12. May 5, 2017 at 8:06 pm

    On a side note, I think it was an error of the RSPB to publish the video today when the media has, predictably, been obsessed with the election results. This is far more damaging footage even than the pole trap incident in Yorkshire which was aired on national TV and covered widely in the press. I realise that whenever they published it other events could have pushed it off the “front pages” but it was entirely predictable that today the media would be looking elsewhere.

  13. 21 J .Coogan
    May 5, 2017 at 8:06 pm

    Now totally depressed , the far, far right nasty party of the toffs led by the ever grinning Kim jong-un making inroads in Scotland (what is wrong with these people) and the ending of EU environmental influence on the horizon . If I were not a level headed chap I would be calling for direct action . Lets have some Ed Abbey ,”society is like a stew. If you don’t stir it up every once in a while then a layer of scum floats to the top .”Come on DM where are you?

  14. May 5, 2017 at 8:07 pm

    What have SLE got to say about this?
    What do Wildlife Estates say about this?

    If they had the slightest hint of sincerity about tackling this ongoing problem- allowing covert monitoring would be a condition of membership. They should be falling over themselves to prove their good name and earn trust points by letting the cameras in…. but no…they have too much to hide.

    Come the introduction of licensing… this presumably would be sufficient “civil” proof to have their licence pulled?
    In the same vein… I wonder what action the SNH are going to take over this non-criminal evidence?

  15. 23 Adam
    May 5, 2017 at 8:08 pm

    A camera placed by a private organisation on someone else’s land is a completely different source of evidence than a CCTV system installed by the owner.

    What I find interesting is Crown Counsel’s conclusion that the RSPB filming was covert surveillance (and therefore inadmissible?).

    Non-intrusive covert surveillance (or directed surveillance) is undertaken “for the purposes of a specific investigation or a specific operation; in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation).” (Regulation of Investigatory Powers (Scotland) Act 2000, s 1 (2)(a), (b))

    Obviously, RSPB as a private organisation does not have to, or indeed cannot, obtain authorisation under RIP(S)A.

    The statement says that “strict legal tests must be met before evidence which has been obtained irregularly, such as the evidence in this case, is admissible.”

    The “strict legal test” was formulated in the case of Lawrie v Muir 1950 JC 19 and is as follows:

    “Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime.” (p 27)

    The courts must balance “the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.” (p 26)

    http://www.bailii.org/scot/cases/ScotHC/1949/1950_JC_19.html

    • May 5, 2017 at 9:42 pm

      Thanks for that explanation but is it “the courts” doing the balancing as described in your final para or have COPFS decided in advance “in the public interest”?

      • 25 Adam
        May 5, 2017 at 11:26 pm

        Well, first the procurator fiscal will consider the admissibility of the evidence, and if the case goes that far and the admissibility of the evidence is challenged then the courts will do the same.

        “Sufficiency of evidence
        The Procurator Fiscal must be satisfied that there is sufficient admissible evidence to justify commencing proceedings. (…)

        Admissibility
        The laws of evidence determine whether a court can consider certain types of evidence. In considering the evidence, the prosecutor will assess whether, having regard to the laws of evidence, a court will allow the evidence to be considered in the case. For example, the court may refuse to take account of evidence that has been obtained improperly, irregularly or unlawfully. Similarly, certain categories of evidence are inadmissible.” (COPFS, Prosecution Code, p 4)

        http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final20180412__1.pdf
        (Totally irrelevant, but the man on the cover is ex-LA, Frank Mulholland – now a judge.)

    • 26 lizzybusy
      May 5, 2017 at 11:00 pm

      Why would the COPFS come to the conclusion the camera was set up for covert surveillance purposes and why would that make a difference?

      According to the ICO CCTV Code of Practice
      P15 “Even if a system was not established to prevent and detect crime,
      it would still be acceptable to disclose information to law enforcement
      agencies if failure to do so would be likely to prejudice the prevention and
      detection of crime.”

      However, there are caveats.

      The Data Protection Act 1998, Schedule 1, Part 1 sets out data protection principles
      2. “Personal data shall be obtained only for one or more specified and lawful
      purposes, and shall not be further processed in any manner incompatible with
      that purpose or those purposes.”

      Assuming the RSPB had permission for the setting up of the camera surveillance system, then they had a number of responsibilities to comply with.

      The ICO CCTV Code of Practice sets out the duties of organisations operating surveillance systems. These include:

      9. Responsibilities
      9.1 Letting people know
      “You must let people know when they are in an area where a surveillance
      system is in operation.

      The most effective way of doing this is by using prominently placed signs
      at the entrance to the surveillance system’s zone and reinforcing this with
      further signs inside the area.

      Clear and prominent signs are particularly important where the
      surveillance systems are very discreet, or in locations where people might
      not expect to be under surveillance. As a general rule, signs should be
      more prominent and frequent in areas where people are less likely to
      expect that they will be monitored by a surveillance system.”

      I wonder –

      If the purpose of the surveillance cameras was the detection of crime, then, obviously, no notices would be required otherwise the suspect would be alerted.

      If, on the other hand, the purpose of the surveillance cameras was the monitoring of nest activities by a protected Schedule 1 bird then the use of notices might be considered necessary.

      • 27 Harry Angel
        May 6, 2017 at 12:39 am

        Once again the whole justice system needs a serious shake up! It is positively antiquated! What would be the point of monitoring a highly protected species nest with a covertly positioned camera (to allow monitoring without “undue disturbance”, which is something certain people in the game shooting world keep banging on about), if you were going to alert everybody that is in the area to the presence of that highly protected species by erecting signs? Where is/are the modern law/s to allow this and many, many other loopholes to be closed? Put simply our great justice system is not “fit for purpose”! That coupled with “vested interests” in the upper classes whom may or may not be serving on the bench and QC’s that are basically just brilliant liars, certain wildlife stands little chance!

        It seems to me that other wildlife crime is taken far more seriously where there aren’t any “vested interests” in a vain attempt to make it look like certain people and organisations are doing a good job and to give the impression that huge amounts of public money are not being wasted, which lets face it, there are.

      • 28 Iain Gibson
        May 6, 2017 at 4:17 am

        A point already raised which is perhaps worth repeating is what is the point of the “Heads up for Harriers” Project, which involves the police and landowners, putting out surveillance cameras at harrier nests to monitor, amongst other aspects of breeding performance, the level of persecution. If the landowners and inevitably the gamekeepers are complicit to the installation, the ‘keepers are hardly likely to walk in and blatantly shoot the harriers. Similar tricks have been played in the past by keepers pretending innocence by focusing RSPB attention on one harrier nest on their moor, which they leave untouched, while wiping out several other nests on the same moor. In those days the RSPB fell for it, even extending to formally thanking the estate owners and congratulating the gamekeepers for behaving responsibly! I know they are wiser to such tricks now, but still makes me wonder why SNH et al think the “Heads up for Harriers” exercise is worth the cooperation. I suppose it’s marginally better than not doing it. However surely it’s time we stopped tinkering around the edges of the problem and grasped the nettle of campaigning to ban grouse shooting completely. Just now we (with the exception of RPUK of course) could be accused of pandering to the privileged classes with their establishment connections. We should also remember that while the harrier problem is the most high profile issue just now, persecution of Buzzards, Goshawks and even Sparrowhawks still occurs with frequency on lowland shooting estates, possibly even more discreetly than the harrier persecution. One last comment – I’m always attempting to convince people unfamiliar with the birds that shooting harriers is an easy task for a gamekeeper, for various reasons, and hopefully this video will convince them that it’s true. Every harrier worker will know what I mean. That explains why English grouse moors have managed to virtually wipe them all out.

        • May 6, 2017 at 4:17 pm

          Heads up for Harriers? Where is the sincerity from the landowners and the gamekeepers?
          Keepers see thousands of harriers over their moors and they are all doing so well that they are about to die from obesity- yet they never actually send any records to “Heads up”… no buy in/lip service/hiding?
          SLE supports “Heads up” hook line and sinker… so why dont their members take part? Sham/hoodwink/procrastination?

          If these guys are going to take part in PAWS because they have nothing to hide, there should be no need to grant individual approvals for nest cams, there should be a simple blanket consent. If they dont embrace PAWS properly then we should all just acknowledge that the PAWS procrastination adventure is dead.

      • 30 Adam
        May 7, 2017 at 8:17 pm

        1. Why would the COPFS come to the conclusion the camera was set up for covert surveillance purposes?

        I don’t know. The COPFS statement says: “the inevitable conclusion was that RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution. Discussions have taken place over a number of years between RSPB and COPFS about the admissibility of evidence obtained through the use of covert surveillance.”
        My understanding is that the RSPB had no permission from the landowner to set up a camera.

        One could perhaps argue that permission to set up a nest camera is not required, on the basis that the Land Reform (Scotland) Act 2003 provides that everyone has statutory access rights. The right to be on land may be exercised, inter alia, for the purposes of carrying on a relevant educational activity. A “relevant educational activity” is an activity which is carried on by a person for the purposes of (a) furthering the person’s understanding of natural or cultural heritage; or (b) enabling or assisting other persons to further their understanding of natural or cultural heritage. (I’m not implying that this is the position the RSPB takes, it’s just a possible line of argument.)

        The RSPB statement says: “We installed a camera to monitor a protected breeding bird’s nest site, core business for a conservation organisation. We did not share the information about the nest site with anyone, as would be the case with any rare and vulnerable breeding bird species.”

        RSPB routinely mounts surveillance operations, including covert filming, in order to investigate alleged offences. Some examples:
        https://www.rspb.org.uk/our-work/rspb-news/news/details.aspx?id=tcm:9-249827

        http://www.rspb.org.uk/community/ourwork/b/investigations/archive/2008/02/12/covert-surveillance-pays-off-with-successful-prosecutions.aspx

        http://www.rspb.org.uk/community/ourwork/b/investigations/archive/2016/03/10/xxxxxx.aspx

        http://www.rspb.org.uk/community/ourwork/b/investigations/archive/2011/05/04/caught-on-camera.aspx

        It’s difficult to answer your question on the basis of the publicly available information, but it seems that RSPB often installs cameras with the purpose of catching perpetrators. It seems that COPFS concluded that in this particular case the main purpose of the camera was not the monitoring of nest activities, but the detection of crime.

        2. Why would that make a difference?

        The purpose of the CCTV Code of Practice is to help organisations who use CCTV to comply with the Data Protection Act 1998. I think the statement that information can be disclosed to law enforcement agencies even if a CCTV system was not established to prevent and detect crime has little (if any) relevance to the admissibility of irregularly or unlawfully obtained evidence.

        Public authorities are given the power and regulated to carry out covert surveillance. There is no comparable oversight or regulation of the covert surveillance activities of NGOs. Arguably, as long as they operate within the law this is not an issue, but once the information ingathered is submitted as evidence then the problem as to their admissibility arises. This doesn’t mean that such evidence will be automatically inadmissible, but in order to excuse the irregularity the court must be convinced that the overall fairness of the trial remains unharmed. Perhaps in this case it transpired at some point that the prospect of achieving this was remote. (But again, this is just my assumption.)

        However, when you read some of the above articles (or any edition of the Legal Eagle magazine) it becomes obvious not only that RSPB often sets up covert cameras to investigate crime, but that in most cases the video evidence is admitted.

        In the case against George Mutch, according to RPUK, Sheriff McPartlin’s ruling “was based on his view that the footage in question was a by-product of a legitimate survey (in to the use of crow cage traps) rather than the camera being placed with the sole intention of filming someone committing a criminal act.” https://raptorpersecutionscotland.wordpress.com/2014/12/11/george-mutch-trial-sheriff-rules-video-evidence-admissible/

        A sheriff’s decision is not binding on another sheriff, but perhaps – after arriving to the “inevitable conclusion that RSPB investigators entered the land in question and embarked upon evidence gathering for the purpose of prosecution” – the Crown took Sheriff McPartlin’s ruling into consideration when they discontinued the proceedings.

        The CPS issued guidance which covers this point: http://www.cps.gov.uk/legal/h_to_k/hunting_act/index.html#investigation

        (Obviously the CPS guidance is applicable only in England and Wales.)

  16. 31 Peter Shearer
    May 6, 2017 at 11:58 am

    It is quite clear to most of us that incompetency or worse is happening in these cases. All the signs are that wildlife crime is going to go even further down the politician’s list of priorities. So those of us who care about our wildlife are going to have to be far more imaginative in what we do to fight back. You cannot possibly look at all the crimes, compare the prosecution rates and come to any other conclusion than there is a deliberate ploy in play to protect the killers. And we know that what we see is only the tip of the iceberg.

    • 32 dave angel
      May 7, 2017 at 5:13 pm

      ‘It is quite clear to most of us that incompetency or worse is happening in these cases.’

      No. I think what is happening in these cases is that the legal team for the accused have huge resources made available to them to fight each and every case tooth and nail. Every piece of evidence will be challenged, nothing will be conceded or agreed.That has budgetary implications for COPFOS which leaves them open to political pressure not to be squandering public funds.

      It’s costing someone an awful lot of money, which shows just how much is at stake for them.

      The answer is the licensing of shooting estates.

      I just hope enough SNP MSPs have the guts to push for its implementation.

      • 33 Iain Gibson
        May 7, 2017 at 11:06 pm

        If a licensing system was introduced, and a licence revoked, what would stop the existing company being liquidated and a new company set up to apply for a new licence? Another alternative might be for the landowner to sell the land, making a vast profit under current grouse moor land valuation, and for the new owner to be granted a licence. This pattern could be repeated for ever more, assuming the initial prosecution was successful and subsequent gamekeepers didn’t cover up their crimes carefully. I suspect the legal wrangles would lead to lawyers being the only people to benefit substantially. Perhaps I’m being naive, as has already been implied when I was sceptical about SSPCA being successful if given legal search powers.

  17. 34 Badgerman
    May 6, 2017 at 1:40 pm

    One more case of COPFS not being fit for purpose regarding wildlife crimes. I spent eight years investigating all manner of animal welfare offences, domestic and wildlife, with the SSPCA. Lack of action by COPFS was the main driver in me leaving. Too many people with their own agendas and prejudices against non government organisations reporting wildlife crime.
    You can bet your bottom dollar if this was some scrote from a housing scheme he would’ve been prosecuted to within an inch of his life, yet here we have once again the rich twats getting away with it.
    If anybody thinks that the Scottish justice system is set up to prosecute ‘in the public interest’ then they are sadly deluded.

  18. 35 anon
    May 6, 2017 at 5:52 pm

    Looks like there’s some clearing of court cases / plea bargaining going on here before the conclusions of the raptor sat tagging review are announced (i.e. you’re all off scott free whether you be game keepers or very rich influential landowners). Let’s hope this is followed up by the threat that any further raptor persecution will be prosecuted. RSPB must be considering taking this to judicial review

  19. 36 crypticmirror
    May 6, 2017 at 11:12 pm

    This is why I say you should release any video showing any wrong doing before going to the cops. If this video had been in the public domain in the first instance then the posh tossers might very well have been forced into a proper prosecution by the court of public opinion. Rabble rouse, it is the only option open to us these days.

  20. 37 tom
    May 7, 2017 at 8:39 am

    I have just returned from a wonderful two weeks in Scotland with Hen Harriiers coming past our car while parked on a public road. The downside was that soon after I was clocked speeding.Should I fight the prosecution on the basis that the policeman with a handheld camera had positioned himself to entrap potential criminals?!

  21. 38 J.Hill
    May 7, 2017 at 11:29 am

    Simply unbelievable and leaves you feeling disgusted and strangely empty.There is no wonder that we have grown sick of those that supposedly govern us.

  22. 39 Me
    May 7, 2017 at 1:21 pm

    I haven’t had a chance to read all the blogs regarding this matter, so if I am repeating another’s comments please forgive me. Firstly, the statement produced in response to the outcry by decent members of the public ,was it written by the same person who produced the statement on the Ross – shire massacre ?
    Secondly, cctv footage has been used in the past to secure prosecuction in the cases of ” beasts ” being mistreated at ” slaughter houses ” on a farm where a person was being used as a ” slave ” In these cases the accused/ or their employee had installed the cctv cameras.So how did the prosecution manage to use the cctv evidence?
    Also were the land owners of this Indepedent State of Scotland and the United Kingdom asked if the RSBP or anyone else for that matter were to deploy a cctv camera on their land in the interest of monitoring a protected
    Bird of prey would they have given permission and if , yes, in the event of a criminal act taking place on their land would they allow said footage to be used in court proceedings ? If not, why not ?
    And why is the freak shown in the cctv footage carrying a Firearm. Was he part of an ” organised shoot ” or are there wolves and bears we are unaware of in the area and he required it to protect himself.No, of he needed it to shoot vermin i.e anything other than ” game birds ”
    The First Minister should be starting an enquiry into how the legal system is conducted in this area of Scotland over the years and not just with wildlife crime.Those in a position of authority are abusing it and we all know they are people being forced to leave their ” homes ” for giving evidence against gamekeepers and I would also suggest that some police officers are pxxxed off at the work they are putting in and then getting it flung back in their faces.
    Hang your heads in shame all of you involved in this blatant cover up.

  23. 40 Merlin
    May 7, 2017 at 4:13 pm

    Is it me being overly cynical but the first case was dropped the day before
    Theresa May called for a general election, the other two shortly after, Theresa May would have talked with her party members long before deciding to call an election, I’m thinking no Politician is now going to do anything about this and that’s why these cases have been deliberately dropped. Unbelievable that cctv footage has again been deemed inadmissible, we have tv programmes that now use covert cameras to trap rogue builders and fly tippers, the worst offenders get prosecuted, once again the untouchables get off with their sickening crimes, another election looming and the possibility of another environment minister to sit twiddling their thumbs avoiding upsetting the organised criminals in the uplands, I thought people went into politics to change the world for the better not to sit back and avoid making any decisions
    Shooting a bird coming off its nest, it’s hard to get much lower than that other than pleading not guilty to doing the deed or not passing on the name of the person who did, he might not have acted alone but he was still allegedly a part of disturbing a schedule one bird nesting bird and he also allegedly withheld information, he should have at least stood trial for that.

    • 41 Iain Gibson
      May 7, 2017 at 5:43 pm

      You’re right to be cynical but possibly over-stepping the mark in terms of conspiracy theory. Not that there isn’t an overall culture of conspiracy to pretend to the general public that the grouse shooting fraternity is made up entirely of decent law-abiding citizens. This is clearly evident in the propaganda-type PR exercised by organisations like the Game & Wildlife Conservation Trust, and the witness statements at the Westminster debate and various other forums by grouse shooters who proclaim to “love the sight” of Hen Harriers on a moor! Possibly they do genuinely love the sight, in that they relish the opportunity to shoot one, to boast about over dinner that evening. However one fact I’d bet my Swarovskis on is that with the Conservative Party heading for a predicted landslide victory in the forthcoming general election, the fight against raptor persecution is likely to become far more difficult. It’s also becoming clear that Brexit is already making it highly profitable to invest in grouse moor land purchase, which is bound to strengthen the resolve of the grouse shooting billionaires and their Tory friends. Difficult times ahead, and we need to rethink our future strategy now. It’s essential to bring the public on side through awareness raising, but currently it’s sad to say we give the impression of representing a minority interest. I strongly urge the RSPB to reconsider its policy of being impartial towards grouse shooting, which merely confuses most of its own members and public perception of its true aims and objectives. So long as they continue to repeat the mantra “we’re not opposed to grouse shooting, we don’t want to stop grouse shooting,” the public are likely to interpret that as tacit support for grouse shooting.

  24. 42 Me
    May 7, 2017 at 5:32 pm

    I think I read somewhere that the case would not be heard before a Judge and jury, but only before a Judge.
    So if it did eventually proceed to trial then the ” guilty ” verdict would not have been decided by the jury, but by the Judge. Do we know who the Judge should have been ? I don’t think this would be too difficult to find out as I presume, as with other courts in Scotland, a Judge is assigned to a particular court ( correct me if am wrong)
    Am not suggesting a Judge can have any influence regarding a particular case and it would be conducted without fear or favour. Just a thought ,

  25. 43 Brian Bull
    May 7, 2017 at 6:31 pm

    It is very clear that COPFS are treating wildlife crime differently from other summary cases.

    They will not proceed with a case unless it is a guilty plea or the strength of evidence is disproptionately high.

    This case should have gone to trial and let a sheriff decide admissibility of the film.

    Surely the seriousness of the offence against the backdrop of organised attempts to eradicate a species trumps a potential minor civil err .

    This case leaves a nasty taste in the mouth and asks questions of COPFS.

  26. 44 Jen
    May 7, 2017 at 7:42 pm

    Can the public attend these court cases ?

  27. 47 Mick
    May 8, 2017 at 1:20 pm

    I think you will find that a lot of Judges, Magistrates, Solicitors and Barristers dress up in their tweed shooting suits on grouse moors too.

  28. 48 Marcia Wilson
    May 12, 2017 at 6:04 am

    There have been other cases where rich men and their staff have been treated as being beyond the law. XXXXX XXXXX killed wild salmon illegally but loads of charges were dropped and a pitiful wrist slap issued instead of a decent jail term.
    A malign masonic influence in the Crown Prosecution Service is widely believed to be the reason for these astonishing decisions.

  29. 49 Mick
    May 19, 2017 at 6:50 pm

    I contacted Margaret Mitchell by e-mail and got the expected pathetic nothing to do with me response:

    Dear Mick

    Ref: Persecution of Hen Harriers

    Thank you for getting in touch about the persecution of hen harriers.

    The incident that you refer to in your correspondence has been dealt with by the Crown Prosecution Service. Whilst we absolutely condemn the persecution of hen harriers, we do not believe it is the role of a political party to comment on the outcome of a case.

    However, we share your concerns over the illegal persecution of birds of prey and we would encourage anyone with information about it to report what they know to the authorities. Birds of prey are protected under the Nature Conservation (Scotland) Act 2004 and the Wildlife and Natural Environment (Scotland) Act 2011 and the Scottish Government must lay an annual report on Wildlife Crime before the Scottish Parliament. Strong legislation therefore already exists and I believe that the best way to tackle criminal harm is rigorous enforcement of current laws.
    Game management on grouse moors can make an important contribution to biodiversity by providing cover for wildlife, and through the creation and care of habitats such as woodland, grouse moors, beetle banks and hedgerows. Sporting estates often play a significant role in game conservation and across the UK shoot providers spend nearly £250 million a year on conservation.

    Finally, we welcome the installation of cameras by sporting estates around hen harrier nests. This will ensure that activity around hen harriers is carefully monitored and that the protection of wildlife continues.

    I hope this is helpful.

    Best wishes,

    • 50 Iain Gibson
      May 20, 2017 at 12:16 am

      I’m surprised there hasn’t been any significant reaction to this reply from Margaret Mitchell, so far. It’s one of the worst examples of whitewash and naive acceptance of assurances from the raptor killing industry I’ve read for a while. The last two paragraphs could have been written by a PR adviser to the shooting community, utter lies and/or exaggeration. Bullshit is too polite a term for it.

      “Game management on grouse moors can make an important contribution to biodiversity…” Who is she kidding apart from herself? By providing cover for wildlife (except for mountain hares, any species non-resistant to fire and anything remotely resembling a predator), woodland (forestry plantations by any chance?), grouse moors (best slip that one in), beetle banks and hedgerows? Where are these last two features found on grouse moors? Certainly none that I’m familiar with, which would suggest very rarely. Does this “champion” for the Hen Harrier even know what is meant by “game conservation,” which in contrast to nature conservation, effectively includes clandestine and illegal persecution and killing of her very own champion species? All this illustrates either very confused thinking, or copying and pasting from shooting magazines.

      Perhaps the most naive statement I’ve ever heard from a politician with any remit for nature conservation is “Finally, we welcome the installation of cameras by sporting estates around hen harrier nests.” So much hypocrisy and disingenuous intent is wrapped up in that simple sentence. ‘Heads up for Harriers’ is certainly doing its job in covering up the wrong-doings and as a PR stunt for the landowners and shooting syndicates, but nothing for the harriers whose suffering never ends. SNH’s role seems to be more about appeasing and accommodating the landowning gentry (and politicians) than protecting nature and serving the general public.

      • 51 Iain Gibson
        May 20, 2017 at 12:20 am

        Forgot to mention, the paragraph which begins “The incident that you refer to…” does not bode well for an SNP decision regarding giving statutory search powers to SSPCA.

      • 52 Mick
        May 20, 2017 at 9:39 pm

        I’m going get back to her, I expect to put something together tomorrow if the blood pressure is back to normal. I wouldn’t have dared to reply too soon after receiving it as I would have not worked at it with my head. I think shooting holes (pun intended) in her reply will be like taking candy off a baby.

    • May 20, 2017 at 10:38 am

      Thanks for sharing this, Mick.

      It’s important to note that this response from Margaret Mitchell MSP is from her personal perspective (as a Conservative MSP) rather than as her role as Convener of the Justice Committee.

      Her response is laughable, and is as you’d expect from most Conservative politicians. The bit about “Game management on grouse moors can make an important contribution to biodiversity by providing cover for wildlife, and through the creation and care of habitats such as woodland, grouse moors, beetle banks and hedgerows” has been lifted directly from the standard Tory response to the grouse shooting debate last year. Have a look at Mark Avery’s amusing deconstruction of the exact same statement here:
      http://markavery.info/2016/08/26/writing-conservative-mp-firm-briefing-4/

      We’re not going to dwell too much on Margaret’s response. Tomorrow, there will be some more news about the widespread concern of how the Crown Office has handled this and other recent cases….and many blog readers will be pleased to see what is happening. More tomorrow.


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