Archive for the '2016 persecution incidents' Category

10
Oct
18

Armed criminals running amok in the Pentland Hills nr Edinburgh

The northern edge of the Pentland Hills is a familiar sight to residents of Edinburgh and can be seen from the Scottish Parliament building.

[View of the Pentlands from Edinburgh, photo by Ruth Tingay]

Designated as “a place for the peaceful enjoyment of the countryside“, the Pentland Hills Regional Park hosts over 600,000 visitors per year.

We suspect many of those visitors looking for a bit of ‘peaceful enjoyment’ would be outraged to discover that this area is actually a wildlife crime hotspot and the armed criminals involved are running amok without being brought to justice.

In the last two years, a raven was found shot dead on its nest, a merlin’s nest was shot out, a golden eagle ‘disappeared‘ in highly suspicious circumstances and a peregrine has been poisoned with a deadly toxin so powerful that it could kill a human.

These are blatant wildlife crimes and nobody has been charged, let alone prosecuted or convicted. That’s not a criticism of the police – collecting sufficient evidence to charge an individual is almost impossible without the help of witnesses and/or camera footage – but it is a criticism of the Scottish Government’s continuing failure to deal with this issue.

It’s interesting to note that the majority of these crimes occured very close to land managed for driven grouse shooting. The tell-tale rectangular strips of burned heather on this map are quite striking:

Large areas of the Pentland Hills Regional Park are privately owned estates and are managed for grouse shooting and farming. The wildlife crimes have been committed across several estate boundaries and we understand that at least until recently, some estates ‘shared’ gamekeepers.

It is not unusual for the police to be unable to identify the individual(s) committing crimes on driven grouse moors – and again, that’s not a criticism of the police, although withholding information from the public for months on end, especially when there is a risk to public safety, certainly doesn’t help. In fact escaping prosecution was such a common problem that in 2013 the then Environment Minister Paul Wheelhouse MSP introduced another sanction – he instructed Scottish Natural Heritage (SNH) to withdraw the use of the General Licence on shooting estates where there was sufficient evidence to indicate a raptor persecution crime but insufficient evidence to identify the individual culprit(s).

This power has been available to SNH since 1 January 2014 but so far only four restrictions have been imposed: one on Raeshaw Estate/Corsehope Estate in the Scottish Borders; one on Burnfoot Estate/Wester Cringate Estate in Stirlingshire; one on Edradynate Estate in Perthshire; and one on an unnamed individual who had worked on the Tillypronie Estate in Aberdeenshire. We’ve blogged a lot about this sanction and particularly SNH’s failure to impose General Licence restrictions in at least nine other cases where raptor persecution has been detected. When asked about these failures, SNH responded that it “wasn’t in the public interest” to explain (see here).

We’d like to know whether SNH is considering withdrawing the use of the General Licence on any of the shooting/farming estates in the Pentland Hills where raptor persecution crimes have been confirmed. And if not, why not?

Without sanctions being imposed, and importantly, being seen to be imposed, the armed criminals, whoever they may be, running around the Pentland Hills laying poisoned baits and shooting out nests and killing protected birds are going to think they’re untouchable and the wildlife-loving general public is going to know that the Scottish Government has lost all control over this disgraceful issue, happening right on its doorstep.

Ps. Great to see the BBC News website is running with the peregrine poisoning news today (see here).

UPDATE 11 Oct 2018: Merlin nest shot out in the Pentland Hills (here)

Advertisements
10
Aug
18

Moorland Association’s response to peregrine persecution on Bleasdale grouse moor

The Moorland Association’s response to the RSPB video published on Wednesday is an interesting read.

For new blog readers, the Moorland Association is a lobby group representing the interests of grouse moor owners in England.

Here’s the video again, for those who might have missed it, showing an unidentified individual attending a peregrine nest site where an adult male peregrine had been caught in a spring trap on the nest ledge, and where it thrashed around for over ten hours in a desperate attempt to escape before finally being removed by the unidentified individual. We believe this nest site to have been located on a grouse moor on the Bleasdale Estate in Bowland in April 2016 and that the video footage published by the RSPB related to the prosecution of a Bleasdale Estate gamekeeper – a case that collapsed in April this year due to a series of legal technicalities.

Here’s the Moorland Association’s statement in response to the publication of this video nasty:

The opening line is astonishing: “The suffering of the Peregrine in the RSPB blog is barbaric and abhorrent“.

The peregrine didn’t suffer “in the RSPB blog”, it suffered at its nest site on a driven grouse moor.

A more sincere and accurate Moorland Association statement might have looked like this: “The suffering of the Peregrine in the illegally-set trap that was positioned at the Peregrine’s nest site on a grouse moor on the Bleasdale Estate, a Moorland Association member, is barbaric and abhorrent“.

The rest of the Moorland Association’s statement deflects attention away from the peregrine’s suffering as a result of this crime and instead focuses on trying to undermine the integrity and credibility of the RSPB, as we’ve come to expect.

Not only did the Moorland Association ignore the fact this peregrine suffered on a driven grouse moor (the words ‘grouse moor’ don’t appear anywhere in the MA’s statement!), but it also carefully sidestepped the fact that the grouse moor in question was, at least at the time this footage (and the peregrine) was captured, a Moorland Association member.

How do we know that? Well, as we blogged back in April 2018 when the court case collapsed (see here), in April 2016 when the alleged offences took place, the owner of the Bleasdale Estate was one Jeremy Duckworth, who also happened to be a Director and Regional Representative of the Moorland Association. Here’s a screengrab from the Moorland Association website in 2016:

Strangely, according to documents lodged at Companies House, Mr Duckworth resigned his Directorship of the Moorland Association in September 2016. There are many different reasons why people resign from Directorships but it’s interesting to note that the timing of Jeremy Duckworth’s resignation coincided with the early stages of the police investigation in to the alleged offences on his grouse moor – obviously nothing to do with damage limitation and purely and simply coincidental, of course:

We wonder whether the Bleasdale Estate is a still a member of the Moorland Association?

We wonder whether the Moorland Association is concerned that an unidentified camouflaged individual was able to repeatedly visit this peregrine nest site on the grouse moor of a Moorland Association member and inflict what looks like unimaginable cruelty to this peregrine?

We wonder whether the Moorland Association is concerned that an unidentified armed individual was able to visit this peregrine nest site and fire four shots as another adult peregrine flew from the nest?

We wonder whether the Moorland Association is concerned about the widespread, systematic persecution of peregrines on driven grouse moors in England, as evidenced by an increasing number of scientific papers (here, here, here)? Incidentally, this last paper, ‘Raptor Persecution in the Peak District National Park’ by Melling et al was published by British Birds in May 2018 but the full paper was only available to BB subscribers. British Birds has now kindly published this paper in full so everyone can read it – see here).

We wonder whether the Moorland Association still expects to be considered a genuine partner in the fight against the illegal persecution of raptors on driven grouse moors when it seems to take every opportunity to attack the RSPB’s Investigations Team instead of those responsible for enabling and carrying out these barbaric crimes?

[Photo of an illegally-killed peregrine found next to a driven grouse moor, photo by RSPB]

08
Aug
18

Peregrine persecution on a grouse moor: Bleasdale video footage finally released

In April this year, a high profile prosecution case for alleged raptor persecution collapsed after covertly-filmed video evidence was deemed inadmissible.

The prosecution was being brought against a gamekeeper from the Bleasdale Estate in Bowland, who had been charged with a string of wildlife offences including the alleged killing of two peregrines in April 2016.

We had followed this case since September 2017, attended each court hearing, and blogged in detail after the case collapsed on a series of technicalities earlier this year (e.g. see here, here, here, here).

The details, as described in court, of what had happened to those two peregrines, were horrific. It was alleged that the adult female peregrine had been shot whilst leaving her nest and the adult male had been caught by the leg in a spring trap that had been set on the nest ledge, where he struggled to escape, in vain, for over ten hours, before being shoved in a bag by an unidentified man and removed from the site.

We’ve been waiting for the RSPB to publish this video footage ever since the case collapsed and the accused walked free. We understand there have been some legal issues about publishing the video and although we don’t know the details, it’s probably a safe bet to guess that some influential people from the grouse shooting industry have probably been working hard to ensure this footage never sees the light of day.

Today the RSPB has released video footage of peregrine persecution in Bowland and although the Bleasdale Estate is carefully not mentioned, it’s quite obvious from the dates cited and the video images that what is being shown in this footage fits the description of what allegedly happened to those two Bleasdale peregrines as desribed to the court earlier this spring.

The RSPB has published a blog describing the circumstances of this footage (here).

Watch the video here but beware, it contains graphic content:

Ater you’ve watched it, think about why nobody has been successfully prosecuted for these crimes.

And then think about why nobody will ever be prosecuted for these crimes.

And then think about why these crimes continue to be committed on grouse moors in 21st Century Britain.

And then think about what you can do to help bring it to an end.

Change must come, but it will only come if people stand up and demand it.

See you at a Hen Harrier Day event this weekend.

UPDATE 10 August 2018: Moorland Association’s response to peregrine persecution on Bleasdale grouse moor (here)

04
May
18

Jason North convicted for disturbance & egg theft from raptor nests

RSPB press release (3 May 2018):

EGG COLLECTOR RECEIVES SUSPENDED SENTENCE AND FINE FOR OFFENCES AGAINST RARE BIRDS

An egg collector, who was previously unknown to police, has pleaded guilty to taking osprey eggs and disturbing rare breeding birds in Devon and Scotland.

Today (3 May 2018), Jason North, 49, from Plymouth appeared at Plymouth Magistrates Court and pleaded guilty to nine charges relating to the taking of osprey eggs from Highland Scotland, and the disturbance of golden eagle, osprey, peregrine falcon and little-ringed plover during 2016.

He received a 6-week jail sentence on each charge suspended for one year and a fine of £665 for taking the osprey eggs. He was also put in a 10-week curfew to ensure he remains at home between 9pm-6am. Maps, books and equipment were also confiscated.

The four species involved are all rare breeding birds listed on Schedule 1 of the Wildlife and Countryside Act 1981. Offences against these birds can result in up to six months in prison and/or an unlimited fine per offence.

[Jason North leaving court yesterday, photo by Penny Cross]

In December 2016, Devon and Cornwall Police, assisted by RSPB and NWCU officers, searched the home of Mr North at Haddington Road, Plymouth. They seized a number of items including hand-written notes, diaries and a computer. Following forensic examination of the computer, hundreds of digital images and video clips were recovered showing eggs and nests. The evidence indicated that North had been routinely making unlicensed visits, over a number of years, to the nests of rare breeding birds in Devon and Scotland. There were also images of eggs which had been removed from nests and put into display cases. The location of these eggs remains unknown.

A detailed investigation by Wildlife Crime Officer (WCO) PC Joshua Marshall, supported by RSPB and others, located several of the nest sites shown in the images. Evidence from people monitoring those sites, supported by expert evidence, confirmed that eggs had undoubtedly been taken in some cases. All the evidence clearly indicated that North, in addition to making unlicensed visits to take photographs, was also involved in taking eggs and it is believed these were then added to a collection.

PC Joshua Marshall of Devon and Cornwall Police said:

North was unknown prior to this investigation and only brought to account for his illegal activities via a number of diligent members of the public reporting to police confidentially. The public have such an important role to play in bringing wildlife criminals like this to justice. Please be vigilant while out in the countryside and report any suspicious behaviour, especially around nest sites, to the police on 101.

It also serves as a warning to potential or active offenders that you stand a high risk of being brought to account for any illegal activity you commit in respect to wild birds.

I would like to thank all those involved with the investigation including CPS, the expert witnesses and RSPB Investigations Officer Guy Shorrock.”

Jenny Shelton from the RSPB’s Investigations unit added: “These days, thankfully, egg collecting is by and large a thing of the past. However, there are still some active collectors targeting our rarest birds, and it is particularly worrying when new egg collectors come to light showing that the everyone needs to remain vigilant. We are grateful for the fantastic work by Devon and Cornwall Police plus the support from the CPS, NWCU and numerous people involved in monitoring and protecting these nest sites.

It’s hard to understand why someone would prefer to take the eggs of these incredible birds rather than see the birds flourishing in the wild.”

If you notice any suspicious behaviour around birds’ nests or breeding sites, including people looking in bushes or wading out to islands, often at unsociable hours, please call police on 101 and RSPB Investigations on 01767 680551.

ENDS

UPDATE 9 May 2018: A good blog about this case from the RSPB’s Investigations Team (here)

16
Apr
18

Grouse-shooting industry’s reaction to the failed Bleasdale Estate prosecution

The prosecution of a gamekeeper, employed by the Bleasdale Estate in Bowland to manage a grouse moor, collapsed recently on a series of legal technicalities (see here, here and here).

We’ve been wondering how the grouse-shooting industry would react to this failed case. Would they condemn the alleged illegal killing of two breeding peregrines at a nest site on a driven grouse moor? And, seeing as all charges against the defendant were dropped, would the industry put out a public appeal for information to help find the alleged perpetrator?

So far we haven’t seen any public commentary from the owner of the Bleasdale Estate, Mr Jeremy Duckworth. This is a bit surprising. At the time of the alleged offences (April 2016), Mr Duckworth was a Director and a regional representative of the Moorland Association (a group representing the interests of grouse moor owners in England):

According to documents lodged at Companies House, Mr Duckworth resigned his Directorship of the Moorland Association in September 2016. The timing of his resignation coincided with the early stages of the police investigation in to the alleged offences on his grouse moor – obviously nothing to do with damage limitation and purely and simply coincidental, of course:

As well as silence from Mr Duckworth, nor have we seen any commentary from the Moorland Association (MA) itself. As a member of PAW (Partnership for Action against Wildlife Crime), it’s not unreasonable for us to expect the Moorland Association to have provided comment. Surely the MA must be concerned that an unidentified individual appears to have repeatedly visited the grouse moor nest site of a specially protected species and allegedly killed two peregrines, no?

What we have seen though, is a press release issued by You Forgot The Birds (YFTB), an astroturfing lobby group funded by the grouse shooting industry.

Perhaps this press release from YFTB was issued on behalf of the Moorland Association, or with the MA’s blessing, or funded by members of the MA? No, that can’t be right, because the YFTB press release wasn’t concerned at all about the alleged killing of two peregrines on a grouse moor, but instead, just like all its other press releases (funded by the grouse-shooting industry) this press release was focused entirely on attacking the RSPB and attempting to undermine its credentials.

The press release was sent out to media journalists last Friday, embargoed until one minute past midnight on Saturday morning, obviously designed to hit the weekend papers. We’re grateful to the journalist who sent us a copy. It read as follows:

Judge accuses RSPB of ‘deliberate circumvention’ of law

A judge in Lancashire has accused the RSPB of “deliberate circumvention” of the law regarding covert surveillance. In a case concerning alleged wildlife crime the judge said the RSPB had “effectively taken on the role of a police officer” and that wildlife crime police officers were “turning a blind eye” to how the RSPB was seeking to avoid complying with the law.

Sitting in Preston last month District Judge Jane Goodwin examined the use of covert videoing by the RSPB of a peregrine falcon nest in the Forest of Bowland. James Hartley, a gamekeeper, had been accused of persecuting the birds.

The judge ruled that the RSPB investigators – who were both former police officers – should have informed the police about their proposed videoing but did not because that would have triggered the safeguards of the Regulation of Investigatory Powers Act.

In her decision Judge Goodwin said that “the deliberate circumvention of the RIPA legislation… leaves an air of disquiet.” The RSPB had also “trespassed… without justification [and] breached the PACE Codes of Practice…The RSPB have acted improperly and out with their remit”.

The judge noted two previous occasions when RSPB evidence had been deemed inadmissible by prosecutors because of irregularities.

Last month an FOI response revealed that national police officers had been highly critical of the RSPB’s attempts to dominate the investigation of bird crime. The Defra official in charge of wildlife crimes had written that the charity’s approach could “prejudice the integrity of investigations.”

Commenting on the latest case Ian Gregory of the pro-grouse moor group You Forgot The Birds said: “The RSPB is facing a crisis of trust. It should reflect on why so many find it difficult to work with it. Only through good relations with the justice system and gamekeepers can it help to reduce bird crime.”

ENDS

Interestingly, two contacts were provided for editors who wanted more information. One was Ian Gregory (the usual YFTB contact) but the second contact was none other than the Bleasdale defendant’s solicitor, Tim Ryan! Imagine that!

Blog readers who have been following this case and have read the farcical court proceedings (see here, here & here) will see how YFTB has cherry-picked all of District Judge Goodwin’s criticisms of the RSPB and then tried to present them as a coherent representation of what happened in court, completely ignoring the ridiculous legal technicalities which caused the collapse of this case. YFTB’s intentions are clear: ignore the details of the horrific alleged peregrine persecution and instead besmirch the integrity and reputation of the RSPB’s Investigations Team.

Unfortunately for YFTB, this attempted smear against the RSPB didn’t really go to plan. We saw two articles in the weekend press that were clearly informed by YFTB’s press release (one in The Times on Saturday [behind a paywall] & one in the Mail on Sunday [not behind a paywall]) but neither of those articles presented the case as YFTB had intended. Instead, those two papers took a rather more balanced view and as well as mentioning the judge’s criticism of the RSPB, they also both focused on the alleged crimes, particularly the Crown’s case that one of the peregrines had been caught in a trap for over ten hours, and that peregrine DNA had been found on a knife and a hammer recovered from the defendant’s home/outbuildings. They both also included a response from the RSPB which said similar evidence [to the Bleasdale Estate case] had been accepted in other court cases.

Blimey, is this an indication that mainstream journalists have finally got the measure of YFTB and understand that YFTB press releases require detailed scrutiny to get beyond the spin?

It certainly looks that way.

16
Apr
18

Why other evidence was also ruled inadmissible in the Bleasdale Estate case

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)

13
Apr
18

Why the video evidence was ruled inadmissible in the Bleasdale Estate case

We’ve been reporting on the case against Bleasdale Estate gamekeeper James Hartley since September 2017 (see herehereherehere for previous posts).

The case against Mr Hartley collapsed recently after the judge ruled the RSPB’s video evidence inadmissible.

In a series of blogs we’re examining what happened in this case.

In part one (here), we set out the nine charges against Mr Hartley relating to the alleged shooting of a peregrine and the alleged spring-trapping of a second peregrine on the Bleasdale Estate, Bowland, in April 2016. We outlined the evidence as presented to the court by the Crown Prosecution Service, the defence’s skeleton argument calling for the video evidence to be ruled inadmissible, and other technical issues relating to further evidence which the defence argued should also be ruled inadmissible. We also commented on the quality of the presentations by both the CPS barrister and the defence QC.

In this blog we discuss the legal argument surrounding the admissibility of the RSPB’s video evidence and the judge’s explanation for why she ruled the evidence inadmissible. In later blogs we’ll discuss the other issues raised, including the RSPB’s alleged breach of the Data Protection Act and the alleged breach of the Police and Criminal Evidence Act during the police search of the nest site and surrounding grouse moor.

Before we get in to the details of the legal arguments for and against the admissibilty of this particular video evidence, it is worth bearing in mind the statement made to the court during the first court hearing in September 2017, by the defendant’s solicitor, Tim Ryan:

My client did not carry out the alleged offences and is not the person shown in the video footage“.

Unfortunately the strength of this argument and the evidence to support it remains untested in a court of law.

It’s also worth noting the judge’s comments to the court before her ruling on the admissisbility of the video evidence:

I must remark that reaching a decision in this case has been made all the more difficult by the Crown declining to call live evidence [i.e. RSPB witnesses], despite the court inviting the Crown to consider doing so. The CPS website when addressing cases of this type states:

‘…Where surveillance product is to be relied upon, the question of whether that surveillance was overt or covert and was carried out at the initiation of or with the encouragement of the police in circumstances likely to result in private information being obtained, are questions of fact to be determined in each individual case…’

Even with that guidance, the Crown in this case ask the court to make such findings on the basis of written evidence alone. They have given no explanation as to why they do so. I find that approach most unusual“.

That statement alone probably summarises all you need to know about this particular case. The video evidence was crucial to the prosecution’s case, and yet the prosecution barrister missed opportunity after opportunity to challenge the defence QC’s legal arguments against its use.

On to the legal argument.

We’ve prepared an edited version of the court’s ruling on the admissibility of this particular video evidence, as delivered by District Judge Goodwin on 14 March 2018. We have redacted several names of witnesses and the peregrine nest site name, for obvious reasons.

This document summarises the defence’s argument against the admissibility of the video evidence, the prosecution’s counter-claims (such as they were), and the judge’s consideration of each point.

Download it here: Bleasdale RIPA_RPUK copy

A few thoughts….

The defence accepted that as the RSPB was not a public authority it was therefore not subject to RIPA (Regulation of Investigatory Powers Act 2000) whereby authorisation would be required for covert surveillance on private land. However, Mr Rouse QC (for the defence) painted a picture of the RSPB and police “working hand in glove” and being “inextricably entwined” and that the two RSPB investigators involved in this case were both ex-police officers [not actually true] and thus should have known that RIPA authority should have been sought for the installation of this camera and by not doing so they were “deliberately flouting the rules“.

Mr Yip (for the prosecution) argued that no breach of RIPA had occured because the RSPB is not a public authority, is not listed on the RIPA Schedule, and had been monitoring this nest for a number of years as a matter of routine. He also pointed to many other similar cases that had been reliant on covert video evidence where there hadn’t been an issue with its admissibility or where there had, the court had used its discretion to accept the evidence because the actual trial process, where the evidence is tested, still ensures the defendant receives a fair trial.

Mr Rouse suggested to the court that if the [RIPA] law doesn’t apply to the RSPB then it shouldn’t apply to others, “…for example, Fathers for Justice, who could put bugs and cameras in hospitals, schools, bedrooms“.

In our opinion, Mr Rouse stretched this point beyond its limit. To compare the action of the RSPB placing a covert camera aimed at the nest of a protected Schedule 1 peregrine (to which only those in possession of a Sched 1 disturbance licence are permitted to visit) in the middle of a grouse moor far away from any homes and dwellings, with the placing of bugs/cameras in hospitals, schools and bedrooms, is simply ludicrous. Of course you would expect to capture ‘private’ information about people if you bugged hospitals, schools and bedrooms. You would NOT expect to capture private information about anybody if you pointed a camera at a Sched 1 nest site in the middle of a remote moor because nobody should have been there unless they held a disturbance licence.

Mr Yip should have been all over this and highlighted the obvious difference in circumstances, but he didn’t, other than to say the camera was not placed near a dwelling. Indeed he couldn’t take the argument apart, because as he told the court, he had not watched the video footage and nor did he have a copy available when the judge asked to see it (presumably she asked to see it to help determine the position of the camera and the view being recorded).

Mr Rouse argued that the RSPB’s placement of the camera did fall under the definition of ‘directed surveillance’ as defined by RIPA because even if it hadn’t captured ‘private’ information, the camera was CAPABLE of capturing private information (audio and visual) because the grouse moor was open access and the “public is entitled to privacy when out and about“. Again, had Mr Yip seen the video footage (it was nowhere near a private dwelling) and understood the restriction on visiting the nest sites of Schedule 1 species, he could have put this argument to bed.

The defence argued that the RSPB should have sought RIPA authority via the police for the placement of the camera, and pointed to a previous case, reported in Legal Eagle 2006, where this had been done. The judge asked Mr Yip what his view was on that case. Mr Yip said he didn’t know the details of that case but the circumstances would have been case specific. Had Mr Yip been familiar with that case, he would have known that it was a police-led investigation whereby the police had requested the assistance of the RSPB, not the other way around, that the landowner’s consent had been granted for the placement of a camera (it was a quarry owner) and therefore RIPA authority was easily obtained. [RIPA authority is not available for what are considered ‘low level’ offences such as wildlife crime, UNLESS the landowner’s permission is granted for the placement of a camera]. The judge asked Mr Yip why the RSPB had not sought the landowner’s consent for the Bleasdale camera and when he couldn’t answer she invited him to consider calling a ‘live’ witness [from the RSPB] to explain. Mr Yip did not accept the invitation, for reasons unknown, thus depriving the RSPB of an opportunity to explain.

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.

There’s no denying that the interpretation and application of RIPA is complex, is dependent upon the particular circumstances of a case, and we do not pretend to be experts on its use. Far from it. However, what is clear, not just from the Bleasdale case but also several others where covert footage was central to the prosecution, is an inconsistency of approach. Some courts allow it without question, others do not, and recently in Scotland the decision hasn’t even been made by the court because the Crown Office has ruled it inadmissible instead of allowing a Sheriff to consider the specific circumstances of each case.

So where does this leave us, apart from with an ever-increasing sense of injustice and an ever-decreasing confidence in the criminal justice system?

The RSPB and other groups who rely upon using covert video evidence could continue as they have been, and run the risk of cases collapsing on technicalities. That’s not really satisfactory though. Investigators need to be clear about the restrictions in advance, to allow them to take every measure to avoid this outcome and to safeguard the privacy of innocent individuals.

Alternatively, as has been suggested a few times now, the RSPB could simply forget about reporting suspected incidents to the police for a potential prosecution and instead could just place the footage in the public domain for the public to make up its own mind. This would save years of endless delay waiting for a case to reach court and, as we’ve seen in recent failed cases, video footage is a very powerful tool and stirs up public debate far more than a conviction does – the failed Cabrach case is a good example of this, as people are still talking about the injustice of that case collapsing a year on, whereas if there’d been a conviction the case would have been in the news for a few days and then forgotten. This alternative option is not really satisfactory either though. There would undoubtedly be legal issues about privacy and human rights (although it’s not difficult to pixellate a face to avoid identity) and it wouldn’t result in fair justice for either the alleged perpetrators (who wouldn’t have the opportunity of defending themselves in court) nor justice for the victims of these crimes.

Interestingly, as an aside, we’ve yet to see the covert video footage captured at Bleasdale Estate. We’ve heard about its apparent gruesome content, as described to the court, but surprisingly the RSPB has not yet put the footage in the public domain, as it has with other cases. Perhaps the defence is looking at ways of preventing its publication? Time will tell.

Another alternative is to change the law. As mentioned above, RIPA authority, without the landowner’s permission, is only available for what is classed as ‘serious crime’ (defined by the custodial sentence available for that offence). The types of crimes we’re seeing against raptors don’t fall within this definition. However, this might change in Scotland once the Scottish Government implements an increase of penalties for wildlife crime, following its acceptance two years ago of recommendations made in the Poustie Review. Would that mean that RIPA authority could then be sought by the police to investigate suspected raptor persecution crimes? We’re not entirely sure but hopefully some clever lawyers will be looking at that.

Whatever, something needs to change, and fast. It’s quite clear that the current rules permit landowners and their employees to commit whatever crimes they want against raptors, safe in the knowledge that they are unlikely to be held to account. NB: this is not a direct reference to the Bleasdale case, but is a general observation of raptor persecution crimes taking place on privately-owned land.

The next blog on the Bleasdale case will consider the legal arguments put forward against the admissibility of some of the other evidence collected, involving alleged breaches of the Data Protection Act and alleged breaches of the Police & Criminal Evidence Act in relation to the search of the nest site and surrounding grouse moor.

UPDATE 16 April 2018: Why other evidence was also ruled inadmissible in the Bleasdale Estate case (here)

UPDATE 16 April 2018: Grouse-shooting industry’s reaction to the failed Bleasdale Estate prosecution (here)




Enter your email address to follow this blog and receive notifications of new posts by email.

Blog Stats

  • 4,508,274 hits

Archives

Our recent blog visitors

Advertisements