Archive for June, 2017

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.

22
Jun
17

Edradynate Estate gamekeeper in court for alleged crop poisoning

Well this is absolutely fascinating.

From the Courier & Advertiser (Perth & Perthshire edition), 22 June 2017:

Gamekeeper in court over estate crop poisoning allegation.

A senior gamekeeper has appeared at Perth Sheriff Court accused of poisoning crops on a Perthshire estate. David Campbell was working on the Edradynate Estate, near Aberfeldy, when he is said to have committed the offence.

A charge alleges he maliciously damaged the crops between April 14 and 16 this year by spraying them with an unknown substance, causing them to rot and perish. The 69 year old is also said to have stolen a thermal imaging spotting scope.

He made a brief appearance on petition before Sheriff William Wood at Perth Sheriff Court and made no plea or declaration. Campbell had his case continued. He was released on bail.

ENDS

You might be wondering why we’re blogging about this? The simple answer – we are very interested in the Edradynate Estate and have been for a long time as it has repeatedly been at the centre of police wildlife crime investigations (particularly the alleged poisoning of birds of prey) although nobody has ever been convicted.

Most recently (May 2017) our interest has been in relation to the Crown Office’s refusal to prosecute an unnamed Edradynate gamekeeper for alleged offences relating to the poisoning of several buzzards, despite a plea from Police Scotland to proceed (see here). The Crown Office has not provided an explanation about why this decision was taken (video evidence was not involved), other than to say:

The Procurator Fiscal received a report concerning a 66-year-old man, in relation to alleged incidents between 18 March and 4 June 2015. Following full and careful consideration of the facts and circumstances of the case, including the available admissible evidence, the Procurator Fiscal decided that there should be no proceedings taken at this time. The Crown reserves the right to proceed in the future should further evidence become available.”

As the alleged wildlife crime offences took place in 2015, the case will not become time barred until June 2018 so there may still be a prosecution, although we won’t be holding our breath given the Crown Office’s recent performances in this area (five cases of alleged wildlife crime dropped in the space of two months).

It’s ironic then, that an Edradynate Estate gamekeeper (although we understand this particular gamekeeper left Edradynate at the end of Jan 2017, despite what was reported in the Courier) has been charged with an alleged poisoning offence – not of a protected raptor species, but of a crop. That in itself is fascinating, but even more interesting is that this charge is deemed sufficiently serious for the Crown (prosecutors) to begin proceedings by petition (before deciding whether to prosecute on indictment or by summary complaint). Only serious cases are begun by petition.

We’ll be tracking this case with great interest.

Please note: if you decide to comment on this specific blog, please remember that this case and the alleged wildlife crime offences from 2015 are still ‘live’ and at this stage the offences are only alleged. Please think carefully about your choice of words. Thanks.

20
Jun
17

New osprey translocation project for Poole Harbour, Dorset

PRESS RELEASE:

A new and exciting Osprey translocation has been given the go ahead to take place in Poole Harbour this year as a first stage in establishing a south coast breeding population of this spectacular bird. The project is being led by local charity Birds of Poole Harbour, Scottish charity the Roy Dennis Wildlife Foundation and local Poole based-business Wildlife Windows.

Ospreys, which feed exclusively on fish, historically bred across the whole of Britain and NW Europe; but populations drastically declined in the Middle Ages and became extinct in England by the mid 1800’s. The five year project looks to restore Ospreys to their former breeding grounds in the south of England where they used to have the local nickname “Mullet Hawk”. At the same time the project will provide an important stepping stone between breeding populations in Britain and northern France, with the aim of enhancing the long term survival of the Western European population as a whole. The project is part of a wider conservation recovery plan of Osprey in Western Europe and the Mediterranean region.

Map showing the breeding distribution of Osprey in Europe (BirdLife International 2015)

A Conservation Recovery Plan
Ospreys are annual visitors to Poole Harbour as they pass through on their northward and southward migrations between their breeding grounds in Scotland and central England and their over-wintering grounds in West Africa. Over the last 8 years, efforts within Poole Harbour have been made by the RSPB, National Trust, Natural England, The Forestry Commission and private landowners to try and attract Osprey to stay and breed by erecting artificial nesting platforms in the hope that the birds will adopt them as their own nests. Osprey are semi-colonial and often choose to nest in areas where other Osprey are nesting and in 2009, the RSPB went as far as placing decoy birds, supplied by Roy Dennis, on one of their nesting platforms on their Arne Reserve. Although there has been some interest by Osprey in these nesting platforms over that 8 year period, none have decided to stay and breed and it’s now thought a translocation project is the next logical step to try and encourage these incredible birds of prey to settle on the south coast of England.

Photo of an un-ringed juvenile Osprey visiting an artificial nest platform in Poole Harbour last September. This was likely an individual heading south on its first migration, taking up residence on this platform for a couple of weeks.

Previous Restoration Success
Translocation has proved a highly successful means by which to restore ospreys to areas from which they have been lost. The much-admired population at Rutland Water in the East Midlands was established by a pioneering translocation project in the late 1990s and similar work has since taken place in two regions of Spain as well as in Italy, Portugal and Switzerland.

This pan-European experience means that the Poole Harbour project, which will involve licensed collection of five-six week-old chicks from healthy, sustainable populations in Scotland, has the best-possible chance of success. Once collected the chicks will be safely brought down to Poole Harbour and held in large holding pens at a confidential site for just two – three weeks to acclimatize to their new home and prepare for their first flights. Once released they will be provided with fresh fish on artificial nests, to replicate normal osprey behavior, and so are likely to remain around Poole Harbour for a further six weeks (the normal post-fledging period) before beginning their long migration to West Africa. During this six week period the birds will imprint on the area and adopt Poole as their new home.

Paul Morton from the Birds of Poole Harbour charity stated:
The main issue that limits the natural spread of Ospreys is their natural dispersal. When young Ospreys return to breed for the first time, males prefer to nest in the area where they themselves were raised, while females tend to settle close to where other Ospreys are nesting. These factors combined mean that the natural expansion of the species is very slow – often as little as 11 km per year. This project will help to significantly speed up this process and restore the Osprey to the south coast where we know that they were once a common sight. The experience of other projects in Europe indicates that we should start seeing translocated Ospreys returning to their adopted home of Poole Harbour two-three years after they are released“.

Every autumn Poole Harbour can host up to six Osprey at any one time, attracted by the abundance of salt water fish such as Mullet, with the last two weeks of August and first two weeks of September being the optimum time to see them as they fatten up before their long journey south to West Africa.

Osprey tourism is hugely popular with the top four Osprey visitor attractions in the UK raising around £4 million each year for local economies between the months of March and August.

Paul Morton said, “We hope that this is a project that the whole community will get behind. In other parts of
the country there is great excitement when the Ospreys return each spring, and in years to come it would be
marvelous if there is a similar feeling in Poole and along other parts of the south coast.”

Roy Dennis and Tim Mackrill, from the Roy Dennis Wildlife Foundation, who have expertise in osprey translocation added, “This project is the next logical step in the conservation of Ospreys in the UK and Western Europe. The Rutland project completely changed the distribution of the species in the south of the UK, but they remain a very rare breeding bird in England despite the fact that extensive areas of suitable habitat exist. Establishing a population of Ospreys on the south coast, where estuaries provide extremely rich fishing grounds, will be another positive step forward and help to link existing populations in Rutland, Wales and France, as part of a pan-European recovery of the species.”

Jason Fathers of Wildlife Windows concluded, “It is a privilege to be involved in this significant project to restore Ospreys to their former breeding grounds in the south of the UK and even more rewarding to know that this step can help the European population as a whole. Much work has been done by local conservation organisations over the last eight years to persuade these wonderful birds to breed here once again and it is great to know we are one step closer to realizing this goal”.

END

Photo of Poole Harbour by Michael Harpur

19
Jun
17

More distorted facts from Scottish Moorland Group Director Tim Baynes

We’ve all learned by now how Tim (Kim) Baynes, Director of SLE’s Scottish Moorland Group, likes to spin the facts; we only wrote about it last week (see here).

Here’s another well-spun article. We missed it when it was published in the Scottish Sporting Gazette (Summer 2016) but someone has kindly sent through. It’s classic Tim (Kim), pretending that illegal persecution is no longer an issue and also pretending that most conservationists (apart from us so-called ‘extremists’) now support the idea of some form of raptor ‘control’.

“The last few decades have seen a grinding controversy over birds of prey, with incidents of illegal killing linked to sporting estates often in the headlines. The good news is that the underlying situation is now hugely improved, but that has galvanised social commentators to try even harder to keep the controversy alive. Social media is their tool of choice, but the facts can become seriously distorted. The problem now is that all the positive work by land managers risks being derailed by a small number of committed activists, particularly those who are anti-grouse shooting.

The facts are that a number of long-term changes have come to fruition in the last five years. Scotland has pioneered new approaches, particularly through the Partnership Against Wildlife Crime (PAWS) – of which Scottish Land & Estates and the Scottish Gamekeepers’ Association are committed members – with awareness training and tightening up of legal sanctions.

The Scottish Government now publishes official data on police-recorded persecution cases which enables national assessment of the problem each year, and that has shown a marked decline in bird of prey incidents – particularly poisoning, which is down to single figures. The police believe that wildlife crime generally is now under control and, for example, there have been no police-recorded raptor incidents in the whole Cairngorms National Park for the last two years. Recently, there have been as many reported cases of gamekeepers taking wounded birds of prey to the vet as there have been keepers being prosecuted!

Alongside this, most bird of prey numbers have increased all over Scotland, as evidenced by the BTO Bird Atlas, and on many sporting estates they are in rude health. An example is the Langholm Moor Demonstration Project where there are now 68 pairs of breeding raptors. There was a national census of golden eagles in 2015 which is expected to show an increase, and 2016 sees the latest national survey of hen harriers.

Three surveys of managed grouse moor estates in 2015 showed the presence of 10 raptor species, including breeding eagles and harriers. However, there is ongoing concern that these two Schedule 1 species could be doing better in some areas and Scottish Land & Estates are working closely with PAWS partners in two national initiatives – Heads Up for Harriers and the South of Scotland Golden Eagle Project.

With this background and the recent publication of the year-long scientific study ‘Understanding Predation’ by Scotland’s Moorland Forum, the real debate over birds of prey is now moving onto more positive territory, with focus on the ecological impacts, not just the incidents of persecution. It is now accepted that key prey species such as waders, black grouse, and grey partridges are in serious decline while some predators including buzzards and ravens have increased significantly. The project has fostered real cooperation among groups of stakeholders with traditionally opposing views, and it is hoped that the new Scottish Government will now back practical action to address this problem. It is now up to the extremists to give that cooperative approach their full support and not jeopardise progress”.

END

We could spend all day pointing out the spin in Tim’s (Kim’s) claims, such as there being no police-recorded raptor persecution incidents in the Cairngorms National Park for two years (not quite true – see here), or that there are more reported cases of gamekeepers taking wounded raptors to the vets than there are of gamekeepers being prosecuted, implying that gamekeepers are no longer committing alleged offences (not quite true – see here), or implying that eagles and harriers were successfully breeding on three surveyed grouse moor estates in 2015 (not quite true – see here), or that most bird of prey numbers have increased all over Scotland (not quite true – see here, here, and incidentally both these scientific papers were published before Tim (Kim) wrote this tripe), or implying that all stakeholders, with traditionally opposing views, are now supportive of backing what Tim (Kim) calls ‘positive action’ against raptors (what he means is licenced ‘control’) – again, this is not true. Name one conservation NGO that doesn’t have a vested interest in game shooting who supports this idea?

One year on from Tim’s (Kim’s) world of fantasy, and our so-called ‘extremist’ claims that illegal persecution is still rife on many driven grouse moors has been validated by the findings of the recently published golden eagle satellite tag review. It is now apparent even to the Scottish Government that illegal raptor persecution continues, albeit very well hidden (apart from if the targeted raptor victim happens to be wearing a satellite tag) and on the basis of this overwhelming evidence, we are finally set to see some action.

Thank goodness the policy makers haven’t listened to Tim’s (Kim’s) distorted point of view.

UPDATE 22 June 2017: Retired Police Wildlife Crime Officer Alan Stewart has blogged about this article here

18
Jun
17

Local volunteers patrolling peregrine nest sites in Forest of Dean

Following a spate of peregrine persecution incidents, the Gloucestershire Wildlife Trust has teamed up with local residents in the Forest of Dean to launch a protection scheme, including the installation of video cameras at nest sites and regular patrols to report any suspicious behaviour.

Full story on the GloucestershireLive website here

Very well done, Gloucestershire Wildlife Trust and those local volunteers.

Peregrine photo by Megan Lorenz

This local action comes after the suspicious death of three adult peregrines near the Devil’s Pulpit in the Forest of Dean earlier this spring (see here).

And last month, the Gloucester Wildlife Trust provided the Police with a video showing a man who appeared to have entered private land within the Forest of Dean and was throwing items at a peregrine nest site (see here). Police would like to speak to this individual:

17
Jun
17

Another year, another gas gun deployed on a driven grouse moor

It’ll come as no surprise to anybody that gas guns are still being deployed on driven grouse moors, at a critical time in the hen harrier breeding season.

Here is one photographed this week in use on Glenogil Estate in the Angus Glens (photo from one of our blog readers):

We’ve been blogging about the use of gas guns for two years. For those who don’t know, propane gas guns are routinely used for bird scaring on agricultural fields – they are set up to produce a periodic booming noise to scare pigeons, geese etc away from crops. The audible bang can reach volumes in excess of 150 decibels. We suspect these are being used on driven grouse moors throughout the UK uplands to prevent hen harriers and other ground-nesting raptors from settling to breed.

We’ve previously asked the statutory conservation organisations about the legality of use. We assumed that the deployment of these gas guns would be subject to guidance and rigorous licensing controls by SNH and Natural England (as they are the licensing authorities for the Wildlife & Countryside Act (as amended)), particularly in relation to the hen harrier, which, as a Schedule 1A species (in Scotland only), is “protected from harassment [including disturbance] at any time”, not just when it’s trying to breed (see here). After a long delay, SNH replied with this and Natural England came up with these (useless) ‘guidelines’.

Hopefully the use of gas guns will be included in the forthcoming independent review of grouse moor management techniques.

Hen harriers haven’t bred successfully on the grouse moors of the Angus Glens since 2006. Can’t think why.

16
Jun
17

Scottish Government to review use of stink pits on game shooting estates

Yesterday the Scottish Parliament debated the use of stink pits (middens) on game-shooting estates, following a motion from Christine Grahame MSP.

Stink pits are piles of rotting animal carcasses (often including the corpses of wild and domestic animals) that are dumped in a heap and surrounded by snares. The putrefying stench from the corpses attracts predators to the pit who are then caught in the snares, killed and thrown on to the pit. This is all quite legal as long as the animals have been lawfully killed.

The official transcript of the debate can be read here: Stink pit debate_ScotParl_15June2017

Take note of the comments made by Peter Chapman MSP (Conservative, NE Scotland, a former vice president of NFUS and now serving as Shadow Cabinet Minister for the Rural Economy & Connectivity). According to Peter,

On baiting, a proper midden is located in an area where target species can be naturally channelled and, as such, I am told that descriptions of piles of carcases are frankly incorrect. Indeed, such piles are not necessary: it does not take a tonne of wheat to attract a rat—a small pile will do—and it would be the same for a midden“.

This was challenged by Christine Grahame who asked whether Peter had seen the online photographs of piles of carcasses. He had to admit that he had (so therefore his assertion that Christine’s claim was ‘frankly incorrect’ was, er, totally incorrect). Peter claimed that “despite spending my whole working life living and working in the countryside“, he had not ever seen a stink pit nor even heard of one before yesterday’s debate. Perhaps he needs to get out a bit more. Here’s one, photographed in his own constituency (on Glenogil Estate) – a pile of bloodied, rotting mountain hares dumped underneath a tree and surrounded by snares (Photo by one of our blog readers who wishes to remain anonymous):

Aside from Peter’s uninformed comments, other MSPs spoke of their revulsion of stink pits and expressed shock that there is currently no regulation or legislation covering stink pit use in Scotland or elsewhere in the UK.

Environment Secretary Roseanna Cunningham spoke at the end of the debate and claimed that “stink pits are used as a way of maximising the effectiveness of snaring as a means of fox control. They are used to draw foxes into fewer, more easily checked sites; thus, they have the benefit of concentrating snaring effort and reducing the number of snares that are set in the wider countryside“. That’s an interesting claim. Is there any evidence to support it? Given that nobody knows how many stink pits are in use at any given time, or how many snares are set at any given time, it seems a bit of a jump to argue that stink pits reduce the number of snares used in the wider countryside, doesn’t it? You could equally argue that stink pits ADD to the number of snares being set on these estates. Without supporting data, both claims are as valid/invalid as each other.

Anyway, the good news is that Roseanna has confirmed that stink pit use will be under review by two separate groups. One is the Scottish Government’s Technical Assessment Group, who will review stink pits as part of their overall snaring review. The other is the yet-to-be established independent group that will review grouse moor management practices, as announced last month in response to continued illegal raptor persecution. We look forward to hearing more about that group, and its full remit, in the very near future.




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