Archive for June, 2017

30
Jun
17

How divisions within SNP affect rural policy decisions, including tackling raptor persecution

A couple of days ago we read the following short conversation on Twitter, which followed the news that Police Scotland are investigating the shooting of a short-eared owl on Leadhills Estate:

Dominic Mitchell (@birdingetc): Another day on a Scottish grouse moor, another protected bird of prey shot. When will the authorities take effective action to stop this?

Scottish Birding (@birdingscotland): In @strathearnrose [Cabinet Secretary Roseanna Cunningham] I believe we have someone who will act! These morons are simply highlighting the case against themselves.

There’s no doubt in our minds that Roseanna Cunningham is as angry as the rest of us about the continued illegal persecution of birds of prey on grouse moors. Those of us listening to her speech at the SRSG conference earlier this year all saw, heard and felt that anger.

But will she act? Well, her recent announcement of a new package of measures to fight raptor persecution was a sure sign that she intends to act, and a recent tweet from the First Minister’s Special Environment Advisor (David Miller), also in response to a question about what Scot Gov intends to do following the news of the shot short-eared owl on Leadhills Estate, suggests progress is being made:

Trust me. Minds are very definitely focused. Further high level discussions held today. Pushing ahead“.

But as we said when Roseanna announced her package of new measures, we should be under no illusion whatsoever about the dark and powerful influences who will be doing their utmost to disrupt and derail those plans.

Some of those influences will come from external individuals and organisations (no prizes for guessing who), but some of them will also come from within the Government itself. Political divisions within a party are nothing new; we see examples of them all the time. Sometimes they’re just minor squabbles but sometimes they can have enormous consequences.

As an excellent introductory primer to internal SNP divisions, Jen Stout has written an article for the New Statesman. It focuses on why the SNP recently voted, controversially, to lift the ban on tail docking, permitting what many see as a ‘barbaric’ procedure, without anaesthetic, on three-day-old puppies. However, the article also has a broader perspective and Jen ends with this:

The next big showdowns in Holyrood on animal welfare are likely to be just as emotive: the use of electric shock collars on dogs, and the prosecution of wildlife crime (or, how to deal with the fact that poisoned, bludgeoned birds of prey keep turning up on grouse shooting estates). The latter in particular will test, once again, the direction of a party split between appeasing a land management lobby, and meeting the high expectations of its newer members“.

For those of us interested in rural policy decisions in Scotland, and particularly those related to dealing with illegal raptor persecution, it’s well worth taking a moment to consider the political divisions within the SNP because those divisions will undoubtedly make Roseanna Cunningham’s endeavours all the more difficult, and we should all bear that in mind when voicing our criticism. That’s not to say we shouldn’t continue to criticise; on the contrary, the Government should expect to be held to account and public pressure over the last few years has brought things a very long way, but we need to make sure our criticism is aimed at the right target.

29
Jun
17

Fox-hunting duo convicted on basis of covertly-filmed video evidence

Well this is all very interesting.

Today, after a long-running court case, two members of the Jedforest Hunt in the Scottish Borders have been convicted at Jedburgh Sheriff Court of illegal fox hunting (see BBC news article here and League Scotland article here).

The prosecution case relied heavily upon covertly-filmed video footage, filmed by investigators from the League Against Cruel Sports Scotland. We have previously spoken to one of those investigators who confirmed that 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.

The video evidence was accepted as admissible by both the Crown Office and by the court. We’ve even read Sheriff Paterson’s written judgment and there is no mention whatsoever about the admissibility / inadmissibility of the video evidence. It was not deemed to be an issue.

So why the hell was the video evidence in the Cabrach hen harrier shooting deemed to be inadmissible by the Crown Office, before it got anywhere near a court? Does video evidence only become an issue if you have the word ‘gamekeeper’ associated with it?

The circumstances of the collection of video footage in both cases are remarkably similar (no landowner permission, and film work undertaken as part of a wider monitoring project) although there is an important distinction, but we think this distinction should actually have favoured the admissibility of the RSPB’s footage more so than the League Scotland’s footage.

Due to the nature of what they were filming (a fox hunt), the League Scotland investigators would reasonably expect to capture footage of individuals that presumably could be later identified. If you do that, you enter a minefield of legislation about the use of personal data / private information that is subject to the terms of the European Convention on Human Rights, as discussed recently by Dr Phil Glover of Aberdeen University Law School (here).

Whereas the investigators from RSPB Scotland had placed their camera pointing at the nest of a specially-protected hen harrier, miles from any private dwelling. Given the species’ Schedule 1 status, the investigators would not have expected to capture ANYBODY on camera unless they had a Schedule 1 disturbance licence giving permission to visit the nest.

You’d think then, based on the circumstances, that the RSPB’s video evidence would have sailed through but the League Scotland’s video evidence would have come up against more opposition. But what actually happened was the complete opposite!

Today’s judgement is a very good result for League Scotland (and well done to them) but it just throws up more questions about the inconsistency of the Crown Office when deciding whether video evidence is admissible or not.

If anybody with legal training is able to help us understand this seeming disparity, please give it a go.

29
Jun
17

“Fiercest critic” yet to be fierce or critical

Back in January this year we wrote a blog about Conservative MSP Edward Mountain (Highlands & Islands) who had written a guest article for the Scottish Gamekeepers’ Association’s quarterly rag.

In that article, Mr Mountain wrote this:

I believe that challenging the ‘spectre’ [of land management reform] is vital, if the very countryside we all value and love is to be maintained. The way to do this is by standing tall and laying out a stall, for all to see the benefits positive management has to offer. The problem is that every time it looks like the right story is being delivered another case of wildlife crime comes to light. If there is any chance of moving forward we must stop these idiots, who believe illegally killing raptors is acceptable.

I therefore would urge all organisations that represent country folk to stand up and let people know all the good work that is being done for conservation. At the same time, they also need to vilify those that break the law.

Over the next 4.5 years I look forward to working with the SGA and I will do all I can to defend the values you and your members believe in. However, I must also say that I will be the fiercest critic of those that jeopardise these values by breaking the law‘.

Here he is (2nd from right) hosting a Parliamentary reception in Dec 2016:

Since January we’ve waited with anticipation to see this “fiercest critic” in action but we haven’t heard a peep from him on the subject of illegal raptor persecution, not even after the publication of the golden eagle satellite tag review which showed that one of the six significant clusters of suspicious eagle ‘disappearances’ was within his constituency (the grouse moors of the Monadhliaths to the west of the Cairngorms National Park).

So a couple of days ago, when Police Scotland announced an investigation in to the illegal shooting of a short-eared owl on the Leadhills Estate, we thought we’d ask Mr Mountain on Twitter for a ‘fiercely critical’ response. Instead we got this:

Watching carefully need the evidence“.

When we asked him why 50 recorded wildlife crime offences over a 14 year period wasn’t enough evidence, he said:

I will react when I have clear and legal proof to do so before would be irresponsible“.

So not so much the “fiercest critic”, but more the meekest observer.

If any of you are attending the Scottish Game Fair this weekend, you can probably catch Mr Mountain for a chat. He’ll definitely be there tomorrow (Friday), presenting the SGA’s Young Gamekeeper of the Year Award.

29
Jun
17

Parliamentary question re Crown’s decision to drop wildlife crime prosecutions

The issue of the Crown Office’s questionable decisions to drop five wildlife crime prosecutions in recent months is not going away.

Mark Ruskell MSP (Scottish Greens) has now lodged the following Parliamentary Question:

The answer given by the Lord Advocate to the earlier question to which Mark refers is this:

It’s an interesting question from Mark and we look forward to seeing the answer in due course. Will there be an opportunity to ask for a review of the Crown’s decision to drop any or all five of these cases?

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 April 2017 – gamekeeper Stanley Gordon (Cabrach Estate), accused of the alleged shooting of a hen harrier. Prosecution dropped as video evidence deemed inadmissible.

25 April 2017 – gamekeeper Craig Graham (Brewlands Estate), accused of allegedly setting and re-setting an illegal pole trap. Prosecution dropped as video evidence deemed inadmissible.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Well done, Mark Ruskell. Good to see there are some decent politicians willing to hold the authorities to account.

28
Jun
17

GWCT back-pedalling on hen harrier cull idea

So, further to our last blog about the GWCT calling for a ‘limited cull’ of hen harriers in response to the news that hen harriers have sunk further in to decline, the GWCT is now saying (on Twitter) that we have deliberately misrepresented their position and that they are NOT calling for a cull of hen harriers.

Let’s just be clear here. If we have misrepresented their views (and we don’t believe we have – see below), then it certainly wasn’t done intentionally. We’re not in that game, unlike the GWCT who are the masters of misrepresentation (e.g. see here for just one of many examples).

The GWCT argues that we “spliced together” two parts of their statement “to misrepresent our position“. It is fair comment to say we spliced together two parts – we did. But not to misrepresent the GWCT’s position – it was because we believed they were specifically referring to hen harriers in both parts of their statement.

If we were deliberately trying to misrepresent the views of the GWCT, why would we have published their entire press statement? We published it for precisely the reason NOT to misrepresent – it’s there for all our blog readers to view and to make up their own minds. Judging by the public reaction both here and on social media, we’re not the only ones who thought the GWCT was advocating a ‘limited cull’ of hen harriers.

So why did we think they WERE advocating a hen harrier cull? Well, it’s mostly down to one paragraph:

Dr Adam Smith said: “We need an adaptive approach whereby agreements are reached between landowners and government, allowing sustainable numbers of both raptors and prey to be achieved. We welcome Defra’s plan to study how to regulate the impacts of harriers on grouse in a non-lethal trial in the interests of both species. This is overseen by Natural England and supported by many organisations including the Game & Wildlife Conservation Trust, who first suggested licensed control in 1998. Grants, intra-guild effects, limited culls, target predator densities and other mechanisms should be used in this way to serve the long-term interest of raptors as well as game species and other wildlife.

In this paragraph, the GWCT are specifically discussing the management of hen harriers. They talk about DEFRA’s (ridiculous) Hen Harrier Action Plan, and in the same sentence mention that the GWCT  “first suggested licensed control in 1998“. The sentence that immediately follows is where they advocate, amongst other things, “limited culls“. In our opinion, it is perfectly reasonable to conclude that they were still talking about hen harriers, especially as we know that the GWCT has previously advocated a hen harrier cull (see here).

When GWCT said on Twitter that they were NOT advocating a hen harrier cull, we asked them for which raptor species they WERE advocating a cull. They responded by saying they weren’t advocating a cull of any raptor species, but claimed, “The line refers to possible research into effects of raven population on wading birds. The line refers to all wildlife, not just raptors“.

We’ll leave the reader to decide whether this was a case of genuinely mistaken misinterpretation (on our part) of a poorly-articulated  GWCT press statement, or whether this is the GWCT furiously back-pedalling in the face of a public backlash to their long-standing calls for a hen harrier cull.

The rest of our original blog remains unchallenged by GWCT (the bit about there being an over-abundance of red grouse and a lamentable lack of hen harriers) and all this argument about whether they currently want to cull or not is acting as a nice distraction from the REAL issue, which is the continued illegal killing of hen harriers on driven grouse moors.

28
Jun
17

GWCT responds to hen harrier decline with calls for a ‘limited cull’

This is just astonishing.

Following this morning’s news that the UK’s hen harrier population has descended further in to decline, the Game & Wildlife Conservation Trust (GWCT) has published the following response:

The GWCT says the results of the national hen harrier survey indicate that balance in moorland conservation and management in the UK is needed more than ever.

Many birds of prey have now largely recovered their numbers, with buzzards, sparrowhawks and ravens commonplace species. Such a full recovery of numbers and range is not the case for all birds of prey. Though the hen harrier has increased in range and number from a few pairs on Scottish islands in the early 20th century to the estimated 545 pairs in 2016, there is still work to do on their conservation.

This ground-nesting species is attracted to grouse moors where gamekeepers manage the heather, the fox numbers, and provide plenty of young grouse for them to eat. The GWCT’s research has shown a cyclical relationship between harriers and keeping. With plenty food and protection from foxes, harrier numbers can increase. If predators eat too many grouse chicks, the grouse moor becomes unproductive, making the moor redundant. Without gamekeepers there is less food, heather or fox control, so the harrier population cycles down again. Declines and rises in harrier numbers are not always linked to grouse management.

The GWCT believes the UK’s objective must be to enhance the community of raptors in the country as a whole. In some species this will need improvements in food supply or nest protection. In other places reducing the predation pressure by raptors, including hen harriers, on wildlife using the most satisfactorily humane methods will encourage their protection and conservation.

Dr Adam Smith said: “We need an adaptive approach whereby agreements are reached between landowners and government, allowing sustainable numbers of both raptors and prey to be achieved. We welcome Defra’s plan to study how to regulate the impacts of harriers on grouse in a non-lethal trial in the interests of both species. This is overseen by Natural England and supported by many organisations including the Game & Wildlife Conservation Trust, who first suggested licensed control in 1998. Grants, intra-guild effects, limited culls, target predator densities and other mechanisms should be used in this way to serve the long-term interest of raptors as well as game species and other wildlife.

“The GWCT condemns crimes against wildlife. We are committed to finding an effective and practical resolution to the conflict between red grouse and raptors. Wildlife crime only serves to delay a satisfactory resolution of the conflict.”

ENDS

Are they for real?

Here we have the news that in England in 2016 there were just four territorial pairs of hen harriers (resulting in just three successful breeding attempts, none of which occurred on a driven grouse moor), where there is the potential for over 300 pairs.

Compare that with the unsustainable, artificially-high density of red grouse produced on driven grouse moors (this density is between 10-100 times higher than the ‘natural’ density), and you’ve got GWCT talking about the “need to reduce the predation pressure by raptors, including hen harriers” which could be achieved by, amongst other things, “limited culls“?

What?!! Without resorting to a torrent of swear words, we’re actually lost for words. Actually, the magnitude of what they’re proposing deserves a swear word. What the actual fuck? As has been said over and over again, if a business model relies on the removal of a protected native species, it isn’t environmentally sustainable. If that business model has practically eradicated, illegally, that protected native species, the business deserves to be closed down.

GWCT are right in that “a balance in moorland conservation and management is needed more than ever” but the idea of culling a species that is just about to fall off the precipice in to breeding extinction, thanks to systematic illegal persecution, is insane.

Balance on the UK moorlands will only be restored if (a) the illegal persecution stops and (b) the clamour for ever-increasing bag sizes (# of grouse shot) stops.

UPDATE 3pm: GWCT back-pedalling on hen harrier cull idea (see here)

28
Jun
17

National hen harrier survey reveals further decline

Press release from RSPB Scotland:

Hen harrier numbers have fallen by 9% in Scotland since 2010, according to the latest national survey of these birds, with the total population now estimated to be less than 500 breeding pairs.

The fifth national hen harrier survey was carried out in 2016 by the RSPB, Scottish Natural Heritage (SNH) and the Scottish Raptor Study Group, along with a range of other UK partners, and covered the whole of the United Kingdom and the Isle of Man.

In Scotland the results revealed a drop in breeding pairs to only 460, compared with 505 pairs from the previous survey in 2010. The UK population is now estimated at 545 breeding pairs.

This is the second successive decline in the Scottish hen harrier population revealed by national surveys, signalling a worrying trend. In the longer term, over the last 12 years, the number of breeding pairs has dropped by 27% in Scotland.

Known for their majestic skydancing ritual, hen harriers are one of the most threatened birds of prey in the country. Independent research has identified illegal killing as one of the main constraints on this species, along with a changing climate and the loss of heather moorland and other suitable nesting habitat to commercial afforestation and overgrazing.

Scotland is still a major stronghold for hen harriers, with 80% of the UK population. However, having a breeding population of fewer than 1000 birds makes this species vulnerable to the effects of habitat degradation and, in some areas, wildlife crime. The west Highlands continue to provide a home for the majority of Scotland’s breeding harriers (estimated 175 breeding pairs), while Orkney and the Hebrides were the only areas of the country to show a slight increase in the number of these birds.

According to the survey, similar hen harrier declines have been witnessed in all other parts of the UK as well. In England, these birds are on the brink of extinction as a breeding species, with the population falling from 12 pairs in 2010 to only four pairs last year. Meanwhile, Wales saw the number of pairs fall by more than a third over the past six years, from 57 to 35, and Northern Ireland recorded only 46 pairs in 2016 compared with 59 in 2010.

Duncan Orr-Ewing, Head of Species and Land Management at RSPB Scotland, said: “The hen harrier is an indicator of the health of our upland environment, and the fact that its population continues to decline is of major concern. The hen harrier is a high priority for our conservation work and urgent steps need to be taken to tackle illegal killing of this species and to improve their moorland breeding habitats.”

Eileen Stuart, SNH’s Head of Policy & Advice, said: “While Scotland remains the stronghold for hen harriers in the UK, the continuing decline is a serious concern particularly the low numbers found in parts of the mainland. We’re committed to continuing to work with a wide range of partners to tackle wildlife crime through PAW Scotland, including initiatives such as Heads up for Harriers, and General Licence restrictions where evidence supports such action. Scottish Natural Heritage and Forestry Commission Scotland have set up a joint Raptor Working Group to identify and promote the opportunities of forestry for raptors, including hen harriers, to sustainably deliver Scottish Government environmental and forestry policy.”

Wendy Mattingley, from the Scottish Raptor Study Group, said: “There is a very concerning trend of a long term decline in the number of breeding hen harriers in Scotland. For the population to begin to recover and expand over all suitable habitat, the intensively managed grouse moors of east and south Scotland must produce successful breeding hen harriers again. The hen harrier is a wonderful spectacular raptor and more action must be taken to ensure that its future is secure.”

Tim Baynes, Director of the Scottish Moorland Group, said: “Scotland is still the UK stronghold for the hen harriers by a huge margin. However, it is disappointing to see any indication of decline in Scotland – and much larger drops in Wales and Northern Ireland – even though the decline is regarded by the survey team as statistically insignificant. Harrier breeding fluctuates annually for many reasons – not all associated with wildlife crime. For example, 2016 was a poor year largely due to low vole numbers in Scotland with weather and predation shown to have played their part.  Fifteen of our members, covering an area of 325,000 acres, will be working with the Heads Up for Harriers project again this year to better to understand the reasons for poor harrier breeding and to help rebuild the harrier population.”

Simon Wotton, lead author of the study, said: “This survey required a monumental effort from a number of different funders, organisations and volunteers – without their help, dedication and expertise we wouldn’t be able to build up this accurate picture of these magnificent birds of prey. We hope these results will convince everyone in a position to help hen harriers to take positive steps to ensure their protection and rebuild the country’s population for people to enjoy for generations to come.”

Ends

If there’s anybody still wondering why approximately 2,000 pairs of hen harriers are ‘missing’ in the UK uplands, here’s a short yet instructive video which explains everything:

And let’s not forget, just two weeks ago Tim (Kim) Baynes of Scottish Land & Estates claimed that illegal persecution of hen harriers was an “historical controversy” and that “a better idea of current numbers [of hen harriers] will emerge when the results of the 2016 UK harrier population survey are published, but the overall picture is expected to be broadly the same in Scotland“ (here).

We’re thinking of changing his name to Duplicitous Tim.

27
Jun
17

Short-eared owl shot on Leadhills Estate – police appeal for info

Police Scotland are appealing for information after the shooting of a short-eared owl was witnessed on the Leadhills (Hopetoun) Estate, South Lanarkshire.

According to this article in the Carluke Gazette, the shooting was witnessed about 11.45am on 31 May 2017 (ironically, the day Environment Cabinet Secretary Roseanna Cunningham announced a package of new measures to clamp down on the illegal persecution of raptors on Scottish grouse moors).

Photo of a short-eared owl by Jamie MacArthur

The suspect/culprit is described by Police as “being small or medium build, driving a black 4×4 type vehicle with a dark canopy on it. The vehicle thereafter drove off to the B7040 Elvanfoot Road“.

Witnesses are sought, and those with information are urged to call Police Scotland 101 or Crimestoppers on 0800 555 111.

Well done Police Scotland for getting this news out and not sitting on it for three years. More of this, please.

The location given is the same as described in an earlier Police appeal for information following the witnessed shooting of a hen harrier earlier in May 2017 (see earlier blogs here and here).

Here’s a map of the Leadhills Estate (Leadhills Estate in block red, dotted line denotes neighbouring Buccleuch Estate boundary, info from Who Owns Scotland).

And here is a map showing the B7040 Elvanfoot Road, which runs right across the Leadhills (Hopetoun) Estate:

We’ve blogged extensively about this estate (see here) and we’d particularly encourage new readers to have a look at the very long list of raptor persecution crimes recorded (49 incidents [now 50] recorded over the last 14 years see here). There have only ever been two convictions of estate gamekeepers.

We’ll be blogging more about this place shortly.

In the meantime, we need to see an immediate response from the Scottish Government. On 31 May 2017 the Cabinet Secretary told the world that the Government would “Immediately review all available legal measures which could be used to target geographical areas of concern“.

Has that been done? What are the legal measures available, and when will they be implemented?

25
Jun
17

Game shoot licensing discussed on BBC’s Landward programme today

Today’s edition of the BBC’s Landward programme had a small feature on proposals for the introduction of game shoot licensing, including contributions from Duncan Orr-Ewing (RSPB Scotland) and Lord David Johnstone (Scottish Land & Estates).

It is available to watch on BBC iPlayer for the next 29 days (Episode 12, starts at 17 mins – here).

We’ve reproduced the full transcript:

Presenter, Euan Mcllwraith: “The majestic golden eagle, soaring above Scottish hills. It’s an iconic image of wild Scotland. But a Government report has found that almost a third of all golden eagles which have been tracked by satellite died in mysterious circumstances, and the majority of those cases were found on land which is managed for grouse shooting. And the demise of the golden eagles has kick-started a re-examination of the way that game shooting is managed.

Game shooting is a major contributor to the Scottish rural economy and supports jobs in rural areas. But the field sport relies on there being a large population of grouse to shoot. The report’s findings led Scottish Environment Minister Roseanna Cunningham to propose an inquiry in to whether or not shooting estates should need a licence to operate.

But why would a licence protect eagles? Well at the moment, if a gamekeeper for example was caught killing a bird of prey, he might be prosecuted and in extreme cases be sent to jail, but the estate would still be allowed to carry on doing business. But the threat of a removal of a licence to operate could prove a more effective deterrent.

The proposal has delighted some groups and horrified others.

With me now are Duncan Orr-Ewing of RSPB Scotland and David Johnstone of Scottish Land & Estates.

Duncan, from your point of view, what’s the attraction of a licence, ‘cos there’s a lot of penalties at the moment, if a keeper gets convicted he goes to jail. Why a licence?”

Duncan Orr-Ewing: “Well, we very much welcome the Cabinet Secretary’s statement that she will look at options including a licensing system. The reason we support a licensing system is because we believe it will raise standards in the grouse moor sector in particular, which has a whole range of problems that have been highlighted in recent years and we think there is a need to reflect the public interest”.

Euan Mcllwraith: “David, from your point of view, you’re not in favour of licences. Why is that?”

David Johnstone: “There’s a number of reasons within that. There’s the SNH report that came out showing licensing going on around Europe, it clearly demonstrated that licensing, wildlife crime still exists in parts of Europe where licensing also takes place. But also we don’t think that it will actually be effective, we think that there are better ways of doing it that will lead to the higher standards that Duncan was talking about, creating good working relationships between ourselves and other stakeholders within, especially the Government”.

Euan Mcllwraith: “But is it not quite simple? If a nightclub has a licence, they break the rules, they go out of business. If a landowner on an estate was seen to be killing birds of prey, which does happen, you cease to have that right to run a business”.

David Johnstone: “This is a very, very different situation because within a nightclub, when a nightclub finishes business, the doors are shut and nobody else is allowed in to that nightclub at all, you control everything that’s going on. Within an estate on land in Scotland, under the 2003 Act, people have a right to roam anywhere, at any time, which we fully support, therefore you have people wandering across the land you’re managing, doing whatever they may wish to do and we have…”

Euan Mcllwraith: “Yeah, but people aren’t going to walk on to an estate and kill a bird, I mean it may happen, but the vast majority…”

David Johnstone: “I’m sorry but we have examples of people who have been interfering with legally set traps and everything else so it does happen, nefarious activity does go on, and that puts at risk people’s livelihood, their jobs, the economy, everything. You’ve got to prove you didn’t do something, as opposed to somebody proving that you did do something”.

Euan Mcllwraith: “Is that a real worry though? That an estate can go out of business, a vital part of the rural economy will cease to exist, on a very low level of proof?”

Duncan Orr-Ewing: “Look, we’re in this position because of a failure of self-regulation, despite repeated public warnings that the estate sector, particularly driven grouse moors, need to get their house in order. They have failed to deliver, that is why we’re at this point.

We believe a system of licensing can be developed, that has the right checks and balances in place, they do it in other countries, we imagine this won’t be done routinely….”

Euan Mcllwraith: “Duncan, David, I think this debate will rage for a long time to come. At the moment it’s in the hands of the Minister who will make a decision in the months and years to come”.

ENDS

When do you think Scottish Land & Estates will realise that the game’s up? That everybody, even the Scottish Government, now accepts the huge weight of evidence showing that illegal raptor persecution is undertaken as a matter of routine on many driven grouse moors?

Does David Johnstone honestly think that anybody is going to believe his inference that 41 satellite-tagged golden eagles ‘disappeared’ in suspicious circumstances on driven grouse moors as a result of ‘nefarious activity’ undertaken by random members of the public?

If he’s so sure of this (without any supporting evidence), then presumably SLE members won’t have any problem accepting the placement of monitoring cameras at raptor nest and roost sites on driven grouse moors? You’d think they’d welcome this measure, which would clear estate gamekeepers from the frame, right? It’s funny then that certain estates continue to refuse to participate in the placement of cameras by SNH’s Heads Up for Harriers project.

Lord Johnstone has used this tactic of blaming members of the public before, when objecting to the introduction of vicarious liability. In 2012 he was cited as saying there was a risk of estates being set up. Five years on, there hasn’t, as far as we are aware, been a single case of an estate being ‘set up’.

Johnstone talks about instances of interference with legally set traps as an example of ‘nefarious activity’. Yes, it does happen, although not as widely as the game-shooting industry claims (see here) and most, no, all of the examples that we’ve seen show vandalism of the trap (thus rendering it inoperable) as opposed to some random person placing illegally-set traps (e.g. pole traps, as pictured above (RSPB photo)) to infer guilt on the estate gamekeepers.

We should really be congratulating whoever is responsible for SLE’s media strategy (‘deny, deny, deny’) because the longer SLE and the grouse-shooting industry takes to accept responsibility, or continues to blame it on others, the more idiotic, the more complicit, and the more incapable of self-regulation, they look, and then the quicker a licensing regime will be imposed.

Former police wildlife crime officer Alan Stewart wrote a blog recently about the grouse shooting industry’s refusal to accept responsibility for raptor persecution and specifically about SLE’s Moorland Director Tim (Kim) Baynes’ accusations against so-called ‘extremists’ (that’ll be us) for ‘derailing progress’. It’s well worth a read – here.

24
Jun
17

Further comment on admissibility of video evidence from more law academics

Last week we blogged about a commentary from Professor Peter Duff (Aberdeen University Law School) on the admissibility of video evidence in wildlife crime prosecutions (see here).

As a quick summary, we fundamentally disagreed with Professor Duff’s conclusions that “the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless” because the Scottish courts HAVE excused the irregularity of obtaining video evidence without the landowner’s permission and far from those prosecutions being ‘fruitless’, they actually resulted in the conviction of the accused (e.g. see the Marshall trial here and the Mutch trial here).

On the back of that blog, another Aberdeen University Law School academic, Dr Phil Glover, has now written a blog on the same subject – see here and he appears to support the opinion of Professor Duff that the COPFS was correct to apply caution and reject the RSPB’s video evidence as inadmissible. Dr Glover addresses the two case studies we had previously mentioned whereby video evidence had been deemed admissible by the courts (the Marshall and Mutch trials) and his opinion is that the two Sheriffs presiding over these cases were wrong to accept the video evidence.

Dr Glover’s blog is technical, dry, and stuffed with specialist knowledge of the Regulation of Investigatory Powers (Scotland) Act 2000 (RIP(S)A) and the Data Protection Act 1998 (DPA). As such, it is way beyond the scope of our limited knowledge of this legislation and thus we won’t even attempt to critique it. That is not to say it should be dismissed – on the contrary, we welcome the opportunity to read the informed opinion of a law academic, particularly one whose PhD research focused on the very subject of RIP(S)A, and hopefully some of our legally-trained blog readers will be willing to provide a critique.

Another blog has also been published on this subject, this time by Malcolm Combe, a lawyer also working within Aberdeen University’s Law School. Malcolm’s blog (here) is written in a way that is easier (for us) to comprehend and features some pertinent commentary on privacy and the Land Reform (Scotland) Act 2003, of which he has detailed, specialist knowledge.

What is clear from all three legal blogs is that the issue about the admissibility of video evidence in relation to wildlife crime prosecutions in Scotland is complex and confusing and, like most legislation, subject to interpretation, which has led to an inconsistent application in recent years. It has been fascinating to read the opinions and the rationale behind them; it’s a shame that the COPFS has not put as much time and effort in to explaining the recent decisions made by the public prosecutors to drop five wildlife crime prosecutions, leaving many questions still unanswered and public confidence in wildlife crime prosecutions at an all time low.

What is also clear is that the current legislation is practically unenforceable in cases of alleged wildlife crime that takes place on large, remote game shooting estates where the likelihood of anybody witnessing the crime is pretty slim. Back in 2014, when this issue was again at the centre of attention, the then Environment Minister Paul Wheelhouse told a Parliamentary Committee that he was “confident” that surveillance cameras could be used in wildlife crime investigations where it was appropriate and the Lord Advocate had apparently made it clear that the option was available to Police Scotland (see here). Police Scotland had a different view and said, “Police Scotland will not be routinely deploying these tactics” (see here).

So where do we go from here? As both Dr Glover and Malcolm Combe note, there is a wider debate to be had here and maybe, on the back of the recent COPFS decisions, these commentaries from legal academics will prompt a review, leading to much-needed reform. In his blog, Dr Glover makes several suggestions for improvement, and some of our blog commentators have, in previous posts, suggested that a condition of any proposed game shoot licensing scheme could be that landowners have to agree to the installment of cameras at the nests of certain raptor species. A review of this type would come under the remit of the PAW Scotland Legislation, Regulation & Guidance sub-group, whose objectives include:  ‘To review the operation in practice of wildlife legislation and regulations; identify areas for improvement and make recommendations; produce guidance for wildlife crime law enforcement practitioners, land managers and other countryside users‘.

What absolutely cannot be allowed to continue is clear-cut evidence of illegal raptor persecution being routinely dropped on the basis of a legal technicality. If the current legislation doesn’t work (it doesn’t), it needs to be amended. We’ve seen the much-welcomed review of wildlife crime penalties, the recommendations of which have been agreed by the Scottish Government (here) but there’s no point in having stronger penalties as a deterrent if the offender knows that the chances of being caught and receiving the punishment are minimal.




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