22
Jul
18

Prosecutors accused of ‘failing to take raptor persecution seriously’ in North Yorkshire

A few days ago we blogged about a proposal by the North Yorkshire police watchdog to implement an inquiry in to why the county has the worst record for raptor persecution crimes in England and why efforts to crackdown on the criminals have failed (see here).

This proposal was due to be discussed at the North Yorkshire Police and Crime Panel meeting last Wednesday.

That discussion did take place, and although we’ll have to wait until September for the official minutes to be published and to find out what the panel agreed to do, a couple of articles have since appeared in the media.

The following is an amalgamation of two of those articles, one published in The Northern Echo (today) and one in The Yorkshire Post (yesterday). The articles were almost identical apart from a few minor differences, so we’ve joined them together to ensure all the information is available in one post:

The Crown Prosecution Service (CPS) has been accused of failing to take bird of prey persecution seriously in a county with an “appalling” record over the crime, a meeting has heard.

A leading councillor has been backed by North Yorkshire Police and Crime Commissioner Julia Mulligan in calling for the CPS to revisit how it tackles offenders, ahead of a National Rural Crime Summit in Harrogate on Wednesday.

A meeting of the North Yorkshire Police and Crime Panel heard there had been 70 convictions in the county for poaching over the last year, 54 of which went to court, and there had been others for badger-baiting, but none for raptor persecutions.

Last November, the RSPB said the county’s history of bird of prey persecution was “appalling” and has repeatedly claimed the crimes are linked to land managed for intensive driven grouse shooting.

Panel members were told techniques being used to develop the persecution cases were the most advanced used by the police and there had been no bird of prey persecutions reported since the force and wildlife experts launched Operation Owl, in which officers are sent to raptor persecution hotspots, in February. Panel members were told there were, however, some prosecutions ‘in progress’.

The panel’s deputy chairman, Councillor Peter Wilkinson, praised the professionalism and enthusiasm of wildlife officers.

He added: “I do believe the police are handicapped by the lack of proactivity from the Crown Prosecution Service. I’m not convinced they take it seriously. I’m not convinced they have the resources or capability to tackle this.

I was given an example of the CPS turning up with a solicitor that had had the paperwork for half a day and they were faced with a QC that had already spent £200,000 on preparing a defence for that case.

He added legislative change was needed to mirror Scottish law, in which landowners can be held legally responsible for wildlife crimes on their land, even if they were committed by other people.

Mrs Mulligan responded: “With regard to the Crown Prosecution Service I agree with you. I chair the Local Criminal Justice Board in North Yorkshire and I have brought this up previously with the LCJB and will bring it up again with the Crown Prosecution Service.”

A CPS Yorkshire spokeswoman said it was unable to issue an immediate response but would do so in the coming days.

ENDS

This might sound odd, given the lengthy criticisms of the CPS (and its Scottish counterpart, the Crown Office & Procurator Fiscal Service, COPFS) that have appeared on this blog over the years, but we don’t think the fundamental problem lies with the CPS. Sure, there have been some unfathomable decisions and displays of what look like dumbfounding incompetence over the years, and the prosecutors’ subsequent refusal to discuss or explain these decisions has been exasperating, but all this has to be set in context of the criminal justice system which is, according to many leading lawyers, “at breaking point”. [For an excellent analysis we’d recommend reading The Secret Barrister: Stories of the Law and How It’s Broken (Macmillan, 2018)].

Central to this ‘breakdown’ is a lack of resources which leads to chronic understaffing which then has a knock-on effect for individual public prosecutors and the cases they are working on.

As an example, last week we met a CPS solicitor at a court in northern England. She’d travelled some distance to be there first thing and said she’d been up until 1am that morning prepping her cases. Her schedule for that day alone included two separate trials and one other hearing to deal with complex legal argument. Imagine how soul destroying that must be for someone who spent all those years studying hard for a qualification, who is diligent, committed and wants to do a good job, but just isn’t given the time to prepare in full.

Now imagine that one of those cases she’s dealing with is a prosecution for alleged raptor persecution on a grouse moor. The accused’s employer will have stumped up hundreds of thousands of pounds to engage the services of a top QC, and the main evidence is likely to be covert video footage captured by the RSPB’s Investigations team (it won’t be police footage because the police are not permitted to undertake covert surveillance for what is officially regarded as a low-level crime). The QC will have had the luxury of several (many!) months to focus on getting the case thrown out on a technicality, and, as we’ve seen with increasing regularity, the QC’s painstakingly-crafted argument will win. The hard-working-but-pushed-for-time CPS solicitor doesn’t stand a chance.

Calls for a change in the legislation to introduce vicarious liability for raptor crimes in England are understandable, but what would that achieve? Before a prosecution for alleged vicarious liability can proceed, you first have to demonstrate that the original offence was committed by a named individual working under the supervision of the person being accused of vicarious liability. As we keep seeing, identifying (let alone convicting) a named individual for the original offence is becoming increasingly difficult, especially in cases involving grouse shooting estates that employ multiple gamekeepers where they’ve all given ‘no comment’ interviews to the police.

And even if you did get to the unusual stage of convicting the original offender, a subsequent prosecution for vicarious liability is not straightforward. As we’ve seen in Scotland, where vicarious liability for raptor persecution was introduced on 1 January 2012, there have been only two convictions in six and half years! A third prosecution wasn’t possible because the landowner couldn’t be identified (here) and a fourth prosecution was dropped by the Crown Office because, apparently, ‘it wasn’t in the public interest to proceed’ (here).

So what is the answer? There are those who would argue for a specialist wildlife crime prosecution unit in England, and there are definite merits in that, but again, look at the experience of Scotland where a specialist wildlife crime unit was set up at COPFS in 2011. Has this led to an increase in successful prosecutions for raptor persecution? No, it hasn’t.

There are those who would argue for a specialist environmental court – again, there are definite merits in that but as someone pointed out to us during a discussion on this topic just the other day, what happens if, within the small pool of judges available, one or several of them has vested interests in gamebird shooting and/or strong links to the ‘establishment elite’ (many of whom are involved in grouse shooting)? It doesn’t take much imagination to predict the outcome.

It’s a difficult issue if we’re going to rely upon the justice system to solve the problems although a few of us will be sitting down with some very bright legal minds in the near future to discuss exactly that.

Another option of course is to stem the problem at source – just ban driven grouse shooting. That seems a long way off but an interim step of licensing driven grouse shooting (and thus being able to withdraw the licence of those estates that persist with the illegal killing of raptors) is becoming an inevitable outcome, at least in Scotland.

We look forward to hearing the suggestions put forward by the North Yorkshire Police and Crime Panel about how they intend to address the ongoing problems in their county.


10 Responses to “Prosecutors accused of ‘failing to take raptor persecution seriously’ in North Yorkshire”


  1. July 22, 2018 at 7:21 pm

    An excellent article about the subject. Thanks.

  2. 2 crypticmirror
    July 22, 2018 at 8:32 pm

    Badger baiting and poaching are offences committed by the rabble (and the latter against the lordships) so it is no surprise that those prosecutions go through on a nod and a wink. Raptor persecution, committed mostly by the lordship’s men, investigated by the police who are looking for a social leg up and the fix put in for their promotions; prosecuted by someone with the family connections enough to fund law school, and sat in judgement by the Right Dishonourable Olde Boye…. Yeah, it is the system right enough. It is rotten to the very core. The fish rots from the head. All the people in the prosecution side have reason to protect the moor owners.

  3. 3 Alan Cranston
    July 22, 2018 at 8:43 pm

    Good analysis, thank you. The other reasons for banning driven grouse shooting are coming more to the public mind, so the end of this damaging ‘sport’ may not be so far off.

  4. 4 Dylanben
    July 22, 2018 at 9:06 pm

    Certainly the CPS has a lot to answer for in terms of the representation of the prosecution side of the case(s) cited. However, it strikes me that there haven’t been all that many arrests of the miscreants responsible for the ongoing procession of wildlife crimes committed in NY. CPS only comes into play when we’ve got someone on the hook.

  5. 5 Mike
    July 22, 2018 at 9:38 pm

    Thanks again for a good and fair analysis/summary of the situation. In terms of ways forward it leads us to draw our own conclusions and how best we can promote the necessary change.

  6. 6 Ernie
    July 23, 2018 at 11:53 am

    The CPS has also dropped a number of cases of illegal hunting with dogs due to ‘insufficient evidence’ even where video footage existed. Makes one wonder if a higher authority is advising them to concentrate on higher profile work i.e. wildlife crime takes a back seat. It has taken nearly two years to bring to trial a case against individuals attached to the XXXXXX Hunt for allegedly feeding live fox cubs to hounds for training purposes.

  7. 7 Winston
    July 23, 2018 at 12:51 pm

    You mention that:

    “the main evidence is likely to be covert video footage captured by the RSPB’s Investigations team (it won’t be police footage because the police are not permitted to undertake covert surveillance for what is officially regarded as a low-level crime)”

    What’s the basis for the police not being permitted to undertake covert surveillance for low-level crime?

    The problem with video evidence, as has been demonstrated with the Scottish cases, is that it is inadmissible when taken by the RSPB because it needs authorisation – if the Police obtain consent under RIP(S)A and accompany the RSPB when setting up the cameras then this would appear to rectify the problem (for Scotland anyway), as identified by the professors at Aberdeen University.

    The RSPB and the police need to start working together – possibly in conjunction with the COPFS – to set up a system designed to ensure that video footage is obtained lawfully which cannot be circumvented by loopholes. Until there is a joined up approach then there will continue to be very few successful prosecutions.

    Fundamentally, however, there needs to be legislative change that addresses the loopholes currently in the system.

    • July 23, 2018 at 1:16 pm

      Hi Winston,

      Our understanding is that the police cannot get authorisation for undertaking covert surveillance to detect raptor persecution crimes because these crimes are not considered serious enough based on the criteria of RIP(S)A and the Sentencing Council.

      RIP(S)A was introduced, quite rightly, to protect an individual’s privacy. The police can’t just install cameras in people’s houses to detect low-level crimes because the information they’d collect would breach that individual’s human rights. The police need to have good reason to suspect the individual is involved in a high level crime (i.e. one that attracts a heavy sentence) to justify an application to install covert cameras.

      Clearly, RIP(S)A was not designed to cope with situations such as the illegal killing of raptors in the middle of a grouse moor in the middle of nowhere, with zero chance of breaching someone’s privacy (especially when the camera is pointing at the nest of a protected Schedule 1 species which shouldn’t be visited by anybody unless they have an appropriate Schedule 1 Disturbance licence).

      • 9 Winston
        July 23, 2018 at 3:31 pm

        Thanks RPUK.

        I have had a look at the legislation and I see that under section 21 of the Wildlife and Countryside Act 1981, a conviction for an offence under the Act is liable for imprisonment for a term not exceeding six months.

        Whereas, a ‘serious crime’ under section 31 of RIP(S)A means:

        “that the offence or one of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of 21 and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of the three years or more.”

        This would appear to confirm that covert surveillance under RIP(S)A would not be permitted for wildlife crime. I think legislative change is the only way forward to truly remedy this.


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