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.

24 Responses to “Further comment on admissibility of video evidence from more law academics”

  1. 1 Alex Milne
    June 24, 2017 at 8:56 pm

    I have been reading with interest those blogs which have discussed the decision by COPFS.
    As of now I have seen nothing which persuades me that their decision was correct, and we are arguably in a worse position than if a case had gone to court, someone was convicted and it was appealed successfully.
    I would much prefer however that we discuss this less, and concentrate what needs to change in order that the words of the head of department at COPFS. Unfortunately I don’t agree either with the suggestions for change put forward.
    Here are my suggestions for the changes in the law necessary to allow this to happen. I would welcome blog writers to correct, amend or make further suggestions in order that a bill may be passed quickly.
    The Wildlife and Countryside Act 1981 be amended by adding in a Section 19B
    “Admissibility of evidence in Scotland.
    In any proceedings in Scotland for any offence under Part 1 there shall be a presumption that photographic, audio recording or video evidence shall be admitted.
    RIP(S)A . No change needed.
    Land Reform Act 2003. No change needed but there should be a consultation with a view to modifying the Scottish Outdoor Access Code, section 3.64 which states: “Access rights extend to individuals undertaking surveys of the natural or cultural heritage where these surveys have a recreational or educational purpose within the meaning of the legislation. A small survey done by a few individuals is unlikely to cause any problems or concerns, provided that people living or working nearby are not alarmed by your presence. If you are organising a survey which is intensive over a small area or requires frequent repeat visits, or a survey that will require observation over a few days in the same place, consult the relevant land manager(s) about any concerns they might have and tell them about what you are surveying, for what purpose and for how long. If the survey requires any equipment or instruments to be installed, seek the permission of the relevant land managers.”
    This should be changed to add:
    “Ministers may appoint bodies who may wish to carry out surveys or install equipment or instruments otherwise in accordance with the act who then may do so without permission of the relevant land managers. These appointed bodies shall issue an annual report stating what surveys and types of equipment were installed under this derogation”. I have in mind allowing a body such as the RSPB who may wish to monitor birds or schedule 1 mammals, or to investigate after it is noted that a crime has occurred. In the latter case it is expected that they would inform the police, and operate under their supervision after that time, as has happened on previous occasions. This is necessary in order that people working in the field of schedule 1 species may continue to carry out work, and if a crime is detected, it would be admissible in court.

    • June 24, 2017 at 11:05 pm

      While it is our main concern, we should not be too focussed on wildlife crime. There are other reasons why people may want to record photographs or video. Its an access legislation issue.

    • 3 dave angel
      June 24, 2017 at 11:25 pm

      Would that proposed change be ECHR compliant?

      If not, it’s a waste of time.

      • 4 Alex Milne
        June 25, 2017 at 10:15 am

        I’m not suggesting that the changes I put forward are the eventual answer. I don’t think filming a crime gives the perpetrator or his employer a right to have the film disallowed in court due to EHCR, but what do I know? I would like someone in the Scottish Government to take up the torch to find the correct solution. Perhaps the Justice committee should be involved. I would love to see COPFS put forward someone to the ECCLRC to explain why they decided to review the matter themselves, rather than let the courts continue to decide to allow prosecutions to continue as they would likely have done. They could be asked to put forward changes in the law they would accept which mean that the 4 cases looked at would have gone to court. They have conducted the review, so should be in a good place to make suggestions suitable to resolve the matter.

  2. June 24, 2017 at 10:48 pm

    Changes are needed somewhere to allow video evidence to be produced in court. To disallow video taken without the consent of the landowner is flawed; who engaged in activity that may be actionable is going to give permission for the collection of evidence against them?

    • 6 dave angel
      June 24, 2017 at 11:28 pm

      If shooting estates were licensed you could make it a condition of the licence that the landowner is deemed to have granted consent for the use of covert surveillance cameras to protect raptors.

  3. 7 Nimby
    June 24, 2017 at 10:50 pm

    Perhaps I’m being naive in requesting the Scottish Government to take a lead?

    Accepting the complexity but also the potential confusion, what is clear is that consistency is needed otherwise the Scottish legal system risks continued failure in addressing what has been shown to be illegal persecution of wildlife? Is that the intention of the Scottish legal system? I would like to think not but the number of cases, initiated at great expense that are subsequently dropped just ahead of the ‘finish line’ is astonishing ….

    Review and reform in Scotland and in England is desperately needed? At times the system is almost feudal? Where is the public interest served by abandoning what to observers seem like clear cut cases of crime? At the risk of repetition, if this was a case where a person (a child or a vulnerable adult) was killed what would a jury do when presented with such videos? OK, I suspect that’s far too simple a scenario but the system seems to be failing to uphold the law? Rather it supports the establishment which manage it along with extortionate legal fees etc.?

  4. 8 chris lock
    June 25, 2017 at 8:56 am

    A camera is the best and only tool people have and should be allowed every time.

    • 9 Alex Milne
      June 25, 2017 at 10:27 am

      These 2 abandoned case were likely using a covert camera, sited such that the perpetrator would not likely see them. It is legal to use a camera according to the Scottish Outdoor access code and this is covered in some detail. COPFS drew attention to this as “equipment or instruments” requiring permission (how likely is that in a lot of Scottish estates where “RSPB not welcome” signs are seen) and “investigating crime” is not allowed (despite a crime having been discovered and the police attending later). It seems courts have realised the issue but COPFS for some reason have not.

  5. 10 Martin
    June 25, 2017 at 10:28 am

    Given that more than one sheriffs interpretation is that covert evidence is admissable why would copfs not allow these cases to advance to trial. This would increase the chances of getting some case law.

    It is blatantly obvious that copfs are treating wildlife crime cases differently from other crime cases.

    Continually finding reasons to drop cases. In particular if the offender is associated with a sporting estate.

    Soft plea,s being accepted and cases dropped for the most minor of reasons.

    To date copfs track record on wildlife crime is very poor and lets not forget its meant to be a specialist role.

    • 11 Alex Milne
      June 25, 2017 at 10:41 am

      I think we need to be fair to COPFS. They must have been under enormous pressure for some time to drop all prosecutions of estate employees for wildlife crime. They decided to go to court in the Mutch case, perhaps thinking that the case would be thrown out of court due to inadmissible evidence. There were 2 case ready to be heard, in which it was apparent that [Ed: alleged] crimes had been committed. Perhaps they took the decision to drop the cases as they realised that a court would likely convict, and the pressure from elsewhere to drop the cases was just too great.

  6. June 25, 2017 at 11:20 am

    Why has COPFS not communicated this properly to the RSPB? They say they have but that doesn’t appear to be the case.
    It is astonishing that this mess is only coming to light now.
    OK here comes the conspiracy theory, but it does seem as though they don’t want us to know the law.
    On a positive note, this can only mean that the laws against wildlife have to be strengthened to stop what is in all effect a loop hole.

  7. 13 Simon Tucker
    June 25, 2017 at 11:50 am

    The law should not protect criminals from the consequences of their crimes. This is clearly bad law and needs urgent amendment.

  8. 14 SOG
    June 25, 2017 at 12:47 pm

    I’m going off at a tangent here, and hoping this comment is not inaprropriate at this time.

    The estates and their organisations would like to assure everyone that no illegal activity takes place relating to raptors. Everyone trusts them, and they keep repeating this. So naturally the researchers do not intend to record any possibly illicit actions by estate staff, for they just don’t happen. No, they wish to learn if predation, perhaps by foxes or buzzards, affects a nest or nests.

    Catching estate staff doing something suspicious would be entirely unexpected.

  9. 15 Merlin
    June 25, 2017 at 2:24 pm

    This needs to be kept at its most basic level, the difference between right and wrong. Lawful and unlawful, ln the instance of the Harrier being shot as it left it’s nest that was clearly unlawful, if the criminals can by pass this then clearly the law needs amending. Law and order is there for everyone it’s a basic

    • 16 dave angel
      June 25, 2017 at 4:25 pm

      It’s not as simple as that.

      The right to use video evidence to gain a conviction has to be balanced with the citizen’s right to privacy, which includes the right not to be subjected to covert surveillance.

      The question is where you strike that balance, and how you do it.

      • 17 Nimby
        June 25, 2017 at 6:23 pm

        Sorry Dave Angel but I’d have to agree with Merlin in so far a s lawful and unlawful goes and I’d hope you would too.

        The issue surely is how we cleanse a system which favours the continued feudal deference?

      • 18 Macrude.
        June 25, 2017 at 10:16 pm

        Dave Angel, video evidence is already used all over the UK. ie. Traffic Cameras, cameras in shopping centres,cameras in towns monitoring busy areas at all times of day/night. security cameras in public places. If they can be used in these places why cant they be used in country estates. Police helicopters video all over the place day and night and not just after car drivers. If cameras can be used for watching the public, what not on shooting estates.

        • 19 dave angel
          June 26, 2017 at 7:52 am

          An some would argue that the level of surveillance we are all subjected to is already excessive.

          But the differences between the instances you cite and the present cases are that the surveillance is not covert, is done with the landowner’s consent and/or is carried out by the police or other arm of the state, not by a private organisation.

          • 20 Alex Milne
            June 26, 2017 at 10:12 am

            Please remember the detail of the 2 cases not brought to court, Dave. The RSPB were monitoring a nest, which I would have said was understandable from a research point of view in finding why nests fail by a charity that is interested in birds. That is why the “Heads up for hen harriers” scheme was started by PAW. COPFS seemed to suggest they were looking for evidence of criminality, and although it would not be unlikely that they would find it on many Scottish estates, was it the main purpose in monitoring the nest?
            As an aside, the estate was not part of the scheme but my feeling is that the nests not being monitored on some estates may well be shot out. I’m sure there are many estates who do not, and are distressed at the behaviour of the estates who allow their keepers to commit crimes, but I don’t hear them speaking out loudly enough. Do you? Sorry, can’t help showing my prejudice.
            The second case was where RSPB personnel stumbled upon a trap they considered illegally set, and they unset the trap and placed a concealed camera before contacting the police. The police when they came with RSPB were able to identify the individual and charged him. Are you suggesting that in this instance the RSPB did something wrong? Whether they did or didn’t COPFS dropped the case. COPFS seem to imply that the keeper did nothing wrong. Many of us don’t agree, and a court may well have agreed with us, but the way Scottish law works, we cannot but seethe with anger.

  10. 21 Steve Harris
    June 26, 2017 at 1:44 pm

    The Crown Prosecution Service in England & Wales have advised that if the conduct of surveillance involves entry on or interference with another’s property, an authorisation should be sought under Part III of the Police Act 1997.

    The Police Act says authorisation can only be granted where the authorising officer believes—

    (a) that it is necessary for the action specified to be taken for the purpose of preventing or detecting] serious crime, and

    (b) that the taking of the action is proportionate to what the action seeks to achieve in respect of investigation of serious crime.

    The Police Act says an offence shall be regarded as serious crime if, and only if,—

    (a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose, or

    (b) the offence or one of the offences is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.

    Wildlife offences generally do not fit that definition of ‘serious crime’ (the maximum sentence of imprisonment under the Wildlife & Countryside Act is 6 months), so I’d be interested to know whether or not Dr Glover believes the police would ever be in a position to authorise the sort of surveillance carried out by NGOs such as the RSPCA, unless sentences were to be increased to 3 years or more.

    I’m not a lawyer so please forgive me if I am in error!

    (NB I have posted the same comment on the Aberdeen Law School website.)

    • 22 Alex Milne
      June 26, 2017 at 3:24 pm

      This subject has been covered in comments in the blog of Alan Stewart, wildlife detective, which you should be able to find. You are indeed correct that when the RSPB called in the police and set a covert camera, the police would not have been able to take over the camera after obtaining permission because the potential crime was not serious enough. The police could have asked the estate for permission to set a covert camera to confirm the employee identity, which was already known, but what would be the point? As Alan wrote, “the outcome of these two cases has not been in the public interest” and “There must be a solution; it is simply not right to record people committing a crime and for them to get off Scot-free.” COPFS knew this was the case. I’m certain that they took the wrong step as we are now in a dreadful place, as courts can no longer continue the common law precedents which had already been set.

  11. 23 lizzybusy
    June 26, 2017 at 11:47 pm

    The RSPB need to alert their membership to the legal problems they are experiencing. Clearly there is a loophole that is being exploited here. I, like many people, have speculated about what the issue might be but without a definitive comment from the RSPB we can’t effectively address the issue and campaign for appropriate new measures.

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