Two weeks ago we blogged about the Crown Office dropping all proceedings against a gamekeeper who was alleged to have shot a hen harrier on the Cabrach Estate in June 2013. At the time, the Crown Office did not offer any explanation for their decision to discontinue the case (see here).
Today, RSPB Scotland has published video footage of what happened at that hen harrier nest in June 2013:
RSPB Scotland has also released a press statement:
ALLEGED ILLEGAL KILLING OF A HEN HARRIER
Court proceedings against a former gamekeeper, accused of shooting a protected hen harrier, have been dropped by the Crown Office, who have indicated that after considering all of the relevant material they could not use RSPB Scotland video evidence to support the prosecution in court.
Since the incident occurred at Cabrach, Morayshire in June 2013, the case has been subject to a prolonged police investigation and nine separate court hearings, at a considerable cost to the public purse. Only now has the Crown Office Procurator Fiscal Service (COPFS) abandoned the prosecution just a few weeks prior to the scheduled trial.
The evidence was obtained as a result of RSPB Scotland staff monitoring the active nest of a breeding pair of hen harriers on the Cabrach Estate, in Morayshire, which contained 4 eggs. On 20th May 2013, a camera was deployed in a moorland area away from human habitation to film the nest to record the outcome of the nesting attempt – a routine part of RSPB Scotland’s work to observe the success of breeding attempts for this protected and threatened species. Over the next three weeks the footage recorded at the nest showed normal hen harrier breeding behaviour.
However, the film revealed that on 10th June 2013, the female hen harrier was flushed from the nest, and immediately afterwards two gun shots were heard. The bird was apparently hit as a shower of feathers can be seen. A few seconds later, a man, carrying a shotgun entered the picture and moved in the direction of where the hen harrier had flown. He then returned into the picture holding the carcass of the dead hen harrier, and was seen to pick up a number of feathers that had been dislodged from the bird.
On reviewing the footage, RSPB Scotland Investigations staff immediately reported the incident to Police Scotland, as we believed the footage showed clear evidence of a wildlife crime having been committed. This case was then reported for trial by the Crown Office following the identification by the police of a suspect.
Duncan Orr-Ewing, Head of Species and Land Management at RSPB Scotland said:
“In our opinion, the video footage clearly shows an individual involved in the illegal killing and then disposal of a hen harrier, one of Scotland’s most threatened bird species. Whilst we know that hen harriers are often illegally targeted by gamekeepers seeking to protect red grouse stocks, such crimes usually take place in remote areas, and it is therefore very difficult to obtain evidence to bring the perpetrators to justice. This incident would never have been uncovered had the nest not been monitored by our camera”.
He continued: “RSPB video evidence has been used in the successful prosecution of previous wildlife crime cases in Scotland, including two very similar incidents of hen harrier persecution, and more recently our film footage assisted in the conviction of an Aberdeenshire gamekeeper for a number of raptor persecution offences. Digital imagery has also been used to assist successful prosecutions on a number of occasions in England. We are appalled and extremely frustrated that the court has not been given the opportunity to give a judgement based on this clear footage, and we are perplexed by the inconsistency in approach to these cases that seems to be taken by the Crown Office (COPFS). The hen harrier is an agreed Partnership for Action Against Wildlife Crime (PAWS) priority and yet despite this, and the quality of the evidence our staff gathered, we were notified, by email on a Friday afternoon, of the decision to take it no further. In our view, justice has not been seen to be done in this case, and the public interest seems to have been very badly served by COPFS. We have written to the Lord Advocate and will be seeking urgent meetings with the Crown Office to consider the implications. There is little point in passing laws to protect our most threatened species if the public authorities ignore the strong public concern about the scale of wildlife crime in Scotland.”
ENDS
We will be commenting on this press release, the video, and the wider consequences of the COPFS’ decision to (a) exclude the video as evidence, and (b) discontinue criminal proceedings, later this morning. We’ll also be advising what you can do in response. More later…….
UPDATE 13.30hrs: Hen harrier shooting: Fury at decision to drop prosecution (see here).
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)
Raptor Persecution UK 
It begs the question, if the courts have used RSPB film footage before now , and they have, why not this time? what is the difference???
Probably because any jury would rightly convict him. Who is the estate owner?
This was a summary case. There is no jury in summary cases, only a sheriff.
The real bile brigade at work. I wonder do the SGA, Scottish Countryside Alliance, GWCT, BASC and Scottish Land and Estates have an alternative explanation for what’s going on other than the illegal killing of protected raptor? Judicial system has clearly failed abysmally here the question is why.
What he say when interviewed? And of his explanation and what the video shows, what would a jury believe?
The gamekeeper accused in this case pleaded not guilty.
The case, had it reached a trial, would have been heard by a Sheriff, not by a jury.
My thoughts are the same. I shall add a tad of detail. He may have pleaded Not Guilty and refused to answer any questions. He may have pleaded NG and given a version of events to explain the video. Jury or Sheriff is not relevant, what would the person(s) in charge of the verdict believe? I could give an explanation here about what I would have said as the gamekeeper that would explain the clip but not any guilt. There’s also what the film-maker’s evidence added to what we see here. If Scotland mirrors England and Wales, the burden of proof being beyond REASONABLE doubt is often raised by the prosecutors to beyond ANY doubt!!!!
We don’t disagree!
BTW – there wasn’t a ‘film-maker’ present – the footage was captured by a fixed camera that had been installed to remotely monitor the breeding attempt at this nest.
As far as we can make out, the sole evidence in this trial was this video footage.
Just another case of the Toffs protecting the Toffs!
My understanding is that the RSPB could take out a private prosecution against this individual. COPFS could stop those proceedings but hopefully wouldn’t dare. I hope I am correct. No doubt RP know better!
I can’t imagine much stronger evidence without the bird actually being caught getting shot and a carcass. The backward shooting feathers and the almost immediate appearance of the individual tell the story of the bird’s death.
It’s a disgusting, outrageous and disgraceful derogation of duty by the COPFS.
In Scotland private prosecutions are extremely rare – no chance in a summary case like this…
Whilst i don’t disagree with a lot of what you say, , having considerable experience in presenting evidence for criminal prosecutions, I would say there is no absolute evidence in that video of who actually shot the poor bird. You see a shot then a man with a gun – whose to say who actually fired the shot? There could be another shooter off to the right. That’s the reasonable doubt that would result in an acquittal if it went to trial. A defence solicitor would make a case of ‘No case to answer’ for those reasons. There is also no corroboration, the video appears to be the only evidence.
I’m actually surprised it got as far as it did
Even if that person in the video didn’t take the actual shot surely he is a co-conspirator of the alleged crime and, it could be argued, is hiding evidence of the alleged crime. Isn’t that an alleged crime?
And can you give the reason he collected the dead bird and removed the feathers from the scene. Removal of evidence comes under perverting the course of justice.
I can’t say for sure what the nature of the landscape was around that nest but I suspect it was very open and the presence of another shooter would NOT be invisible to the man in the video.
To any reasonable person failure to assist in the apprehension (by providing evidence) of any 3rd party would make said man complicit. Is joint enterprise applicable in Scottish law?
The man in the video doesn’t look anything like the retired gamekeeper who was charged . This looks like a much younger man. Not surprised the video could not be used as evidence in the case against him. Did the police charge the wrong man??
This incident, and how it has been dealt with, is completely outrageous. It clearly shows why so many ordinary people are now standing up to protest at this vile industry. The RSPB and their investigations team come out with great credit. Well done to them – please keep up the good and challenging work on behalf of us all.
It begs the question, was this dragged out as long as possible so that it didn’t impact the DEFRA HH recovery plan and the Westminster Debate. I bet they are kicking themselves that it couldn’t be dragged out pass the licensing discussions too.
I wonder if Roseanna Cunningham will comment
Not a chance of her replying, far too hot a topic for this “head in the sand” politician.
What’s disappointing is that COPFOS dropped the prosecution. They could have run it and let the courts decide what is or is not admissible in particular circumstances.
There is a consistent thread to all these cases, and that is that the huge amount of resources being deployed by the defence legal team.
I suspect it will have been made clear to CoPFOS that they do not have unlimited budgets and that they would not want to leave themselves open to allegations of profligacy with public funds.
In effect it’s a war of attrition, and it’s costing someone an awful lot of money.
It’s also costing the lives of Hen Harriers.
frankly appalled, yes I know what happens on this video is almost routine on many estates in Scotland and was/is in England when we have harriers. I have never understood the Scottish system reluctance to accept video evidence, it is absolute proof of a crime. So if a murder is videoed automatically and it is the ONLY evidence does the accused not face trial? If they do then this is just the same, makes me so angry a failing system helping the establishments lackies get away with it. Simple on this evidence this bastard should be doing time and the employer facing a vicarious liability charge
In this instance whether any one likes it or not.
It does intimate a crime.
Though its not actually seen.
The defense could argue a peregrine hit the harrier and much as everyone would know it to incredibly unlikely, it cant be proven other wise.
Again, the defense could also argue that there were 20 people there, just out of camera and one of them shot the bird.
It doesn’t change the fact that in my mind a crime has been committed, but prosecuting against that video if that’s all there is would be very difficult.
It does add strength to the argument for licencing estates so that there at least some consequences to these actions.
Yeah, you’re right, Alan. A peregrine probably struck the hen harrier and killed it. Or, as someone said on Twitter this morning, perhaps it was hit by space debris or swallowed a firework.
In all seriousness though, had a Sheriff been given the opportunity to view the footage during a trial, and had he/she not had any connections to the grouse-shooting industry, the ‘reasonable’ conclusion would probably have been quite different. Did the accused have the means, motive and opportunity? Yes, yes, and yes. Unfortunately, the COPFS removed the chance for any Sheriff to make a decision because they dropped the case. We’ll be discussing this at length in a later blog this morning.
Thankfully RSPB Scotland has released the video footage and thus the general public can make up their minds about what went on here.
And even if this had gone to trial, and even if the accused did manage to successfully argue that he wasn’t responsible for the shooting, at the very least, the very very least, there should have been a charge of being in possession of a Sched 1 species.
By dropping this case when they did, justice has not been served.
And if guilty of possession of schedule 1 bird his firearms certificates could be revoked.
Not enough evidence to prosecute?
I wonder what the Duke of Edinburgh, patron of the conservation organisation World Wildlife Fund, and grouse shooter, would say about this case?
Well he said nothing when one of his grandchildren was accused of shooting a Hen Harrier.
I think the issue comes down to corroboration and the law of evidence on what determines if a crime has been committed. In Scotland there needs to be 2 sources of evidence. My understanding is that video footage on its own is not corrobative evidence. There needs to be at least two people to speak to the footage by confirming it is the scene of a crime and that the accused is the person shown in the footage committing the crime. I don’t know enough about the law of evidence to know if what is shown in the video is sufficient to identify that a crime has been committed and that the person shown in the footage is the person who committed the crime. There may also be issues of identification.
If we look at the situation from another perspective, perhaps the prosecution was politically motivated and was raised even though there was no hope in actually securing a conviction. In that instance, you would expect the proceedings to be abandoned because it would be unfair to the accused. However, I appreciate that this case being dropped (and the others) is extremely frustrating.
http://www.bbc.co.uk/news/uk-scotland-north-east-orkney-shetland-39803548
COPFS’s response.
Ah, I see now – the issue is the admissibility of the footage. Thank you.
Well it doesn’t get much more blatant than that. Just what do we have to do to achieve justice?
IF licensing had been in place then there should be NO DOUBT that there was enough evidence in the video for the withdrawal of that license .. hopefully for a few years. The whole things stinks of privilege.
I agree on the licensing part George.
If in future the estate has to apply for a licence it should be refused.
Multiple camera angles next time.
Having read the comments above, I think I can see why the case against the gamekeeper was dropped, infuriating though that is.
However, the video is a remarkable piece of evidence for the court of public opinion – I’ve seen lots of things over the years but I still found it quite shocking. I hope that clever people are working on ways to achieve maximum public exposure and make the very best use of this priceless 59 seconds.
It’s already viewable on You-tube. I can see it was up-loaded some 5 hours ago – it may even make the news. There may be a number of people (and organisations) wishing now that this had been admissible.
Someone has to ask why it took so long to decide that the video wasn’t adequate evidence.
For your information I earlier tweeted Tim Bonner as follows – “A clear case of wildlife crime dropped; time to review the law? Comments?” He replied “Act is shocking, unacceptable, unjustifiable & just plain wrong. Haven’t facts or knowledge to comment on legal process stuff” .
That bastard. I’m absolutely bloody raging. Collecting the feathers at the end to remove evidence. Absolutely sickening.
Since the clown court system will not act against the moor owners or their slaves, the keepers, it must be clear to all that direct action to target grouse shoots will form part of the answer.
This will be a long fight but driven grouse shooting will eventually be shown for what it is – totally unsustainable & not acceptable to the people of these islands.
Although fox hunts continue to flout the law, it was after all the relentless pressure from activists that started to kill it & reduce it to a shadow of it’s former self.
Driven grouse shooting must start to feel the heat before long.
Keep up the pressure !
Someone must know the culprit , it’s only time before he , she or friends will be boasting about it . Keep your ears open , and plant many more cameras .
Re peregrines or other debris if you stop the video at 7 seconds the Harrier is still in frame exploding in a puff of feathers with no peregrine in sight. Just the simultaneous crack of a shotgun.
I get the inadmissibility aspect. It is difficult to prove that the individual, picking up the bird and dispersed feathers, presumably to effect disposal of evidence, was the person firing the shot. It wouldn’t have been too difficult, you would have thought, to prove the accused of being, at least, complicit in the offence. The inadmissibility would appear to have been more about the question of whether the RSPB intentionally set out to collect evidence. Only the RSPB would know that. Would the evidence have been admissible if the landowner had been notified of the presence of nest monitoring – If that is the case, and the landowner hadn’t been notified, does that mean that the fate of every nest site depends almost entirely on the landowner if they succeed in restricting access of “witnesses”, RSPB or public.
I’m trying to logically think this through to understand how it can be made “jail sentence” clear that this can’t be condoned by landowners – and the legal system has to be clearer in how these offences are dealt with. It appears to me that driven grouse shoots are good at presenting a publicity “front” but where actions, by some, are some distance away from the rhetoric.
Our esteemed landowner is well known for his [Ed: rest of comment deleted as libellous]
Land reform. Stop these sods having their way over our uplands. Not their uplands.
If the video showed a person being shot and killed, would the CPS have sat on its hands?
And would apologists say ‘we can’t be sure what this video shows, so the serial killer must be left to continue his work’?
If the answer is ‘NO’ , then the problem here is not the quality or admissability of the evidence.
in France, Hen Harriers are in large numbers and are protected. In the UK, the numbers are nearly zero. That says enough about the English land owners. The hen harrier represents freedom and diversity and these are constantly under attack by ignorant English people…garden grabbing for development, wiping out sparrows/blackbirds, cars driven recklessly needlessly killing wood pigeons etc. The sad thing is is that when all is quiet in the English countryside nature would have not said a word in defiance before it is fully dead, whilst humans continue to get more obese and more miserable as each day unfolds in their quest to acquire more ‘wealth’.
The owner of Cabrach Estate Christopher Moran moves in the right circles this is the bottom line. Look at his own website christophermoran.org in particular the photograph at his August ceilidh senior directors of Moray Council at the table… [Ed: Tracey, thanks for your comment but we’ve deleted the rest as it’s potentially libellous. This is the second time we’ve done it for this particulur comment. Please understand, somebody’s opinion, no matter how valid it may be, is insufficient evidence for us to publish as fact].
RPUK, surely if you present something as someone’s opinion, that’s not publishing it as fact? I’m not trying to interfere in your editorial decisions, but sometimes wonder if we’re too quick to censor opinions. I realise this can be a difficult dilemma for you, and certainly wouldn’t want to see all manner of lies being published, as in some of the pro-shooting anti-harrier blogs. Just a thought.
Thanks Iain, my full comment can be viewed on https://wildlifedetective.wordpress.com/2017/05/05/abandoned-hen-harrier-case-comment/ the wildlife detective website if you wish to see it.