This is the third blog in a series about the recent failed prosecution of a Bleasdale Estate gamekeeper.
Gamekeeper James Hartley was accused of nine offences in relation to the alleged killing of two peregrines at a nest site on the Bleasdale Estate, Bowland, in April 2016. He denied all charges.
In blog 1, we outlined the prosecution’s case against Mr Hartley, and the skeleton argument put forward by the defence (see here).
In blog 2 we examined why the judge ruled the RSPB’s covert video evidence inadmissible (see here).
In this blog we examine why other evidence was also ruled inadmissible by the judge. This relates to two points: (1) the legality of the first search of the nest site and surrounding grouse moor on 21 April 2016, and (2) the alleged breach of the Data Protection Act in relation to the way the RSPB handled the ‘data’ (recordings made by the video camera).
Let’s start with the land search. Here is an extract from the judge’s ruling on this point:
Basically Mr Rouse QC for the defence argued that the Police and the RSPB breached Code B of the Police and Criminal Evidence Act (PACE) because they did not notify the landowner of their intention to search the nest site area and surrounding grouse moor.
It seems to us that the Police and RSPB did not notify the landowner due to the exemption listed under 6.4 (iii) (see above) because ‘there are reasonable grounds for believing that alerting the occupier or any other person entitled to grant access would frustrate the object of the search….’
This exemption is routinely used by the police in wildlife crime cases like this one, for obvious reasons. If the landowner, or an employee, was suspected of either committing, or being complicit to an alleged wildlife crime, telling them in advance that a search was about to be conducted would alert any potential suspect who could then hide any evidence in advance of that search.
In this specific case, had the landowner been notified of the search in advance, what do you think would be the chance of the police finding the tool bag & equipment, found on a later search of the defendant’s house and outbuildings, and found on subsequent forensic DNA analysis to contain peregrine DNA?!
That’s an obvious point, isn’t it?
Well apparently not. Mr Yip for the prosecution did not raise this point and nor did he call for a live witness to explain to the court why the exemption applied in this case. The judge was left with no option but to rule a breach of the PACE code.
The other line in the defence’s argument was that the RSPB Investigator (name redacted) had breached the Data Protection Act as he wasn’t a registered data controller:
Mr Yip for the prosecution submitted that the RSPB Investigator did not need an individual licence of registration as he was operating lawfully under the collective registration licence of the RSPB. He wasn’t acting an an individual, but as an employee of a registered organisation. Unfortunately, the collective registation document was not submitted to the court as evidence. As the judge said in her ruling:
“Without the evidence, and in the absence of live witnesses to address the point, how am I supposed to be satisfied that what the Crown say is indeed correct?“.
Again, she was left with no other option than to rule a breach of the Data Protection Act.
What a bloody shambles.
As you’ve seen from blog 2 and this blog, the collapse of this case on a series of technicalities was wholly avoidable had the prosecution got its act together.
Now we wait to see whether legal advice will allow the RSPB to release the video footage, which is believed to show one of the peregrines frantically struggling for more than ten hours on the nest ledge as it tried to escape the jaws of an allegedly illegally-set trap clamped around its leg.
Perhaps when the public sees this footage they’ll understand why the defence went to such lengths to have this evidence ruled inadmissible.
And perhaps when the public sees the footage they’ll gain an insight as to why peregrines are doing so badly on many driven grouse moors in northern England and Scotland.
UPDATE 16 April 2018: Grouse-shooting industry’s reaction to the failed Bleasdale Estate prosecution (here)
Raptor Persecution UK 
Well at least it does not seem to set a precedent in England. A warning to other prosecutors to ensure that they are given enough time.
It could of course not happen in Scotland. It may be that it was deemed more important to protect a well connected landowner than ensure that the law is applied fairly or to make video more acceptable as requested by Paul Wheelhouse? My suspicion grows as I try to understand and Occam’s razor seems to imply there is no other explanation if the Guardian article of this month is true.
‘It could of course not happen in Scotland.’
##
In Scotland it probably wouldn’t have got to court at all.
Sorry if I was not clear.
The COPFS (or Crown Office?) has ensured that video evidence from a concealed camera will likely never reach court. My comment was intended to give a considered reason for that. I could perhaps explain that further.
Which Guardian article?
https://www.theguardian.com/uk-news/2018/apr/02/scottish-gamekeeper-banned-over-alleged-goshawk-persecution?CMP=share_btn_tw
Thanks Alex. That links well to RPUKs more recent blog about Duckworth. Both he and Astor both tied strongly to PAW.
[Ed: does Astor have strong ties to PAW?]
Full disclosure: I’m a defence lawyer (in the southeast) so I have some sympathy fior CPS advocates who are left to get on with a badly prepared prosecution, but these are appalling schoolboy errors… Has anyone complained to the CPS about its handling of this case? It would also be interesting to hear from the RSPB re whether it had, or tried to have, any contact/liaison with the police/CPS in preparing this case .. As well as being completely unlawful, placing a trap in an active nest is such a wicked and cruel thing to have done.. if I’d been the judge I’d have been so tempted to say something! Things have got to change…
I’ve also been wondering if there is a route to complaining about the (in)actions of Mr Yip? But I’m also more inclined to blame the CPS for the lack of preparation in this case as the justice system is currently massively underfunded and stretched.
If we can raise enough complaints, maybe next time they will take it seriously. What are the options regarding private prosecution in these cases (I assume it’s too late in this case as there has been a ruling)?
If CPS cannot meet even a basic standard of prosecution, can we appoint someone to represent the raptors against the [alleged] raptor killers?
We really need to see this footage released with max’m publicity.
4th para from end – avoidable rather than unavoidable.
[Ed: thanks – amended!]
This increasingly looks like an episode of Judge John Deed except without a John Deed.
I only read quickly the RPUK document
Click to access bleasdale-ripa_rpuk-copy.pdf
but i am more sceptical of the fairness of the judge than RPUK .
She obviously tries to steer Yip in the right direction at times but she also appears to attack the RSPB more than the Defence. For example she scrutinies the Crowns claim about RSPB data collection licence. Fair enough but she doesn’t scrutinize the date of the letter submitted by the Defence (to quote RPUK)
‘Mr Rouse QC also drew the court’s attention to an open letter written last year by the Crown Office (Scotland) detailing its reasons why several prosecutions, all reliant on RSPB covert video footage, had recently been dropped [the alleged shooting of a hen harrier on Cabrach Estate & the alleged setting of a pole trap on Brewlands Estate]. Mr Rouse argued that this letter proved the RSPB had been told not to use covert cameras in Scotland “but the RSPB has decided to go on in England and take their chances“, referring to the current Bleasdale case. However, the Crown Office letter was written in May 2017, over a year AFTER the camera was placed on the Bleasdale Estate, so it was disingenuous of Mr Rouse to suggest the RSPB had ignored advice “and decided to go on in England and take their chances” at Bleasdale. Mr Yip missed this point entirely.’
Surely a judge doesn’t need a prosecuting lawyer to point out the dates of the letter. Perhaps this is just how court work but i have twice defended myself in court and both times the judge offered assistance.
In fact she actually quotes the date in her reasoning:
‘The defence point to the open letter of the Procurator Fiscal dated 30 May 2017 which
address the issue of covert camera evidence and, in particular, the use of it by the police and
RSPB. In two cases the Crown Counsel had concluded that the placing of cameras had been
for the purpose of detecting crime and the video evidence was obtained irregularly. The
irregularity was not capable of being excused in common law and so the evidence was
deemed inadmissible.
I note that approach is not binding upon me nor do I have the details of the cases to which the
letter refers. It does, however, demonstrate that the police and RSPB are aware that questions
have been raised about the propriety of this method of evidence gathering. ‘
I am sure i have got this wrong so hopefully someone will correct my assumptions.
I am hoping that at some time in the proceeding the judge mentioned the deplorable nature of the [alleged] crimes!
Hi Prasad,
We wouldn’t agree that the judge was ‘unfair’. From our seats at the back of the court District Judge Goodwin seemed to act with complete fairness.
Her job was to rule on the interpretation of the law. In the adversarial arena of the English justice system, it was up to the prosecution to point out the weaknesses in the defence’s argument, and vice versa. Sure, the judge did miss the point about the date of the COPFS letter but it was Mr Yip’s job to draw that to her attention.
It’s probably also worth bearing in mind the presentation styles of the defence and the prosecution. As we mentioned in the first blog we wrote about the hearing, Mr Rouse QC did a fantastic job of presenting his case. He was calm, measured, and his presentation was meticulous, with his evidential documents referenced and a full copy of his notes in the hands of the judge so he could refer to specific pages in those notes when he wanted her to see something. In contrast, Mr Yip arrived at court without his bundle of evidential documents and there were long silences before he was able to respond to some of the judge’s questions. There’s no getting away from the fact that we all, judges included, take non-verbal cues from presenters. There’s every possibility that the judge ‘felt’ that Mr Rouse’s evidence was strong and reliable simply due to the contrasting styles between these two barristers.
District Judge Goodwin gave Mr Yip plenty of opportunity to provide responses to Mr Rouse QC’s arguments, including additional court time in the form of short intervals to allow Mr Yip to do some online research to help him answer some of the questions she’d asked of him. Even with that additional time, he couldn’t provide the explanations she required.
Nor did she comment on the ‘deplorable nature’ of the alleged crimes. At that stage of proceedings it would have been inappropriate for her to do so. She wasn’t there to judge the morality of the defendant or of the alleged offences, she was there simply to interpret the law on the admissibility of evidence. Had the case continued to trial, and the defendant was found guilty, THEN it might have been appropriate to comment, but certainly not during legal argument.
Thanks.
Stranger and stranger. And increasingly annoying.And I agree that it seems puzzling why the RSPB and CPS had not agreed a strategy. We have to do better than this-surely?
I’ve never found the various arms of the law to be impartial when adjudicating on politically charged cases so this comes as little surprise to me (with the odd exception) …. because politically charged this certainly is.
It is a cello, that is what it is and no mistake.
Not a double bass? That’s the biggest fiddle I can think of
I guess this is another wildlife crime that didn’t happen now (as far as the boys in tweed will say) unless RSPB get the video out for all to see
This is a wildlife crime and did happen, the RSPB have evidence that a crime was committed. In the eyes of the law they do not have any evidence to identify the perpetrator.
So when the MA et al claim prosecution for wildlife crime are falling etc. this (and other examples) add to the weight of counter agruement
Politically charged or not is almost irrelevant what is an absolute tragedy is that with a decent brief properly prepared and presented in court with the appropriate witnesses available to be called we would probably of had a trial with all of the evidence presented. I don’t subscribe to a conspiracy theory that suggests Yip was deliberately picked to loose, but he could and should have been much, much better. WE would know for sure whether Hartley was guilty as charged or innocent. As it is the evidence remains unviewed and unheard, he of course is innocent yet it remains unproven one way or the other. This is bad for the law, bad for raptor protection and in the long run probably bad for grouse shooting. I know what I think based on the idea that the defence didn’t want the evidence seen and heard but in reality that is not enough. The best we can hope for is that the video evidence is made public even with a pixilated face.
The raptor persecution hot spots of the Bowland grouse moors need a successful prosecution as do the grouse moors of the Yorkshire Dales. Currently the bad guys, and there are plenty of them are getting away with it and probably laughing about the whole thing. This was a great chance fucked up by a poorly presented and argued case.
Doesn’t the CPS have any idea of the calibre of defence lawyer they’re going to face? Be interesting to hear Mr Yip’s perspective on this – as to whether he might have been set up to fail by his bosses.
[Ed: comment deleted as libellous. Chris, this is the second time you’ve tried to post this. Please don’t try again]
‘Perhaps when the public sees this footage they’ll understand…’
Can you give us any information as to whether, when and by what means this footage will be put before the public?
I hope a huge effort will be made to do this. Following the success of Mark Avery’s crowdfunding appeal, please let us know if some funding would help make this happen.
Hi Alan,
This is a decision for the RSPB.
Financial constraints won’t be at play here, but potential legal constraints definitely will.
In previous failed cases the RSPB has published the associated video evidence on its YouTube channel. Assuming the lawyers give the go ahead, that’s where we’d expect to see it. If it is published, we’ll be blogging about it, don’t worry (and we’ll probably be blogging about it if it isn’t published!).
Many thanks for this.
I never doubted that RPUK would (if legally possible) display the footage prominently, and I’m sure (as Mr Carbo says below) many regulars here will be strongly affected by it.
But the important issue is, will the RSPB make a real effort to get the evidence out to a much wider audience, starting with its own membership then moving on to the general public? Judging from recent experience, we can’t be confident that the RSPB will try particularly hard.
If the RSPB does put it into the public domain, might some funding help to push the footage out via social media and other channels?
The video footage sounds like it is rather harrowing to watch and would be very emotive if presented to the public whichever way that could be achieved. I do hope that the RSPB can find a legal channel to do this .I am sure it would shock its own membership and the public at large.
It would certainly bring into question how damning evidence can be ruled as inadmissible and how our legal system is flawed in such cases. The public would be outraged at this farcical legal situation. I hope they can legally put the video in the public domain.
[Ed: Thanks, Mr Carbo. The last two sentences have been deleted as they verge on being libellous, although pretty sure that wasn’t your intention]
If the police were given the proper resources and instructions to investigate and prosecute what serious and organized wildlife crime, then it wouldn’t be up to the RSPB to place covert surveillance cameras as the police would be doing it. After all the police do use much more intrusive methods than this including the placing of bugs, hidden cameras in people’s own homes, intercepting communications and far more. Even local councils have wide ranging powers to investigate offences such as failing to pick up dog waste, and whether people actually live full time in houses where they are registered for where their children go to school. DWP investigators follow and film people on benefits to see if they are ill. Unlike other potential crime scenes, it is known where the crimes are being committed. There is a very narrow group of potential suspects for these crimes. The authorities have already got considerable powers to investigate this orchestrated wildlife crime if they wanted and had the will.
However, lets not beat about the bush, because we’re all aware why there is a lack of will to do this. Potentially the people behind this crime are some of the most senior members of the establishment, and if they were caught red handed, it would cause a massive scandal. So the police leave it for an NGO to investigate, and their investigations are then undermined, because it is claimed that they had no authority to carry out this surveillance. It is a complete contrivance, as the measures necessary to detect and prevent this crime have long been known.
Seems to me the law makes a good job of protecting the accused, even if there is evidence of a crime. The burden of ensuring the gathering of evidence is lawful seems too great and I cannot see the point of having laws if they are virtually unenforceable.
The law appears more concerned with procedure than a crime being committed. I applaud RPUK for keeping going and not wanting to give up!
Question is who would Blackadder have chosen for his defence Yip or George?