Archive for the 'Opinion' Category

15
Jun
17

Law professor comments on inadmissibility of video evidence in wildlife crime prosecutions

As regular blog readers will be aware, the Crown Office & Procurator Fiscal Service (COPFS), the public prosecutors in Scotland, have, in the space of two months, either dropped or refused to prosecute five cases of alleged wildlife crime. These include:

25 March 2017 – gamekeeper John Charles Goodenough (Dalreoch Estates), accused of the alleged use of illegal gin traps. Prosecution dropped due to paperwork blunder by Crown Office.

11 April 2017 – landowner Andrew Duncan (Newlands Estate), accused of being allegedly vicariously liable for the actions of his gamekeeper who had earlier been convicted for killing a buzzard by stamping on it and dropping rocks on to it. Prosecution dropped due to ‘not being in the public interest’.

21 April 2017 – gamekeeper Stanley Gordon (Cabrach Estate), accused of the alleged shooting of a hen harrier. Prosecution dropped as video evidence deemed inadmissible.

25 April 2017 – gamekeeper Craig Graham (Brewlands Estate), accused of allegedly setting and re-setting an illegal pole trap. Prosecution dropped as video evidence deemed inadmissible.

21 May 2017 – an unnamed 66 year old gamekeeper (Edradynate Estate), suspected of alleged involvement with the poisoning of three buzzards. Crown Office refused to prosecute, despite a plea to do so by Police Scotland.

Two of these cases (Cabrach Estate and Brewlands Estate) were dropped due to the COPFS deciding that the use of RSPB video evidence, on which the prosecutions relied, was inadmissible.

There has been widespread public condemnation and political concern about these decisions, especially in the case of the alleged shooting of a hen harrier on Cabrach Estate in Morayshire. The Crown Office has attempted to explain the decisions but many questions remain unanswered for those of us who don’t have the legal expertise, or all the case details, to challenge the COPFS decisions.

We read with interest, then, a blog that was published yesterday written by Peter Duff, Professor of Criminal Justice at Aberdeen University. His blog, entitled ‘The law of evidence, video footage, and wildlife conservation: did COPFS make the correct decisions?‘ deals specifically with the Cabrach & Brewlands cases and can be read here.

We thoroughly recommend reading it. It’s important to read the perspective of an independent, expert academic who has no axe to grind on either side of the debate. It’s hard for those of us who are either tainted by years of frustration about criminal raptor killers getting away with it, or those with a vested interest in raptor killers avoiding prosecution, to take an unbiased view of the law and its application, so Professor Duff’s opinion is a valuable contribution to the debate. Not only that, it’s great to see this issue receiving wider coverage than the usual commentators.

That’s not to say we agree with his interpretation though! In short, Professor Duff concludes that the COPFS decisions were “perfectly reasonable”, and he explains his reasoning for this, but, crucially, some of what he writes does not take in to account previous case law on this issue, perhaps because he was unaware of such cases?

For example, Professor Duff states: ” In my view also, for what it is worth, I agree that the courts would not excuse such an irregularity in obtaining the video evidence and prosecutions would be fruitless“.

First of all, 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).

During the Marshall trial, there were several hours of legal argument about the admissibility of the video evidence. The Sheriff accepted the video evidence, commenting that the RSPB presence on the gamekeeper’s estate [from where the video was filmed] was “neither illegal nor irregular, and the intent to obtain evidence did not make it so“.  This is no different to the recent Cabrach case.

During the Mutch trial, again involving several hours of legal argument about the admissibility of evidence, the Sheriff accepted that the RSPB had not placed the video camera with the purpose of gathering evidence for prosecution, but they had placed it as part of a legitimate survey in to the use of traps. This is no different to the recent Cabrach case.

There is also an on-going trial at the moment (concerning alleged fox hunting) that relies heavily on video evidence filmed on privately-owned land without the landowner’s permission. The court has accepted the video evidence as admissible (although we can’t comment too much on this as the trial is still live).

So on that basis, we profoundly disagree with Professor Duff’s opinion that covertly filmed video evidence would not be accepted by the Scottish courts. It already has been, on several occasions, resulting in convictions. The question remains then, why did the COPFS decide it was inadmissible? Somebody within the Crown Office (presumably an experienced lawyer from with the Wildlife & Environmental Crime Unit) decided, when this case was first marked, that the video evidence was admissible. It took nine court hearings over a period of a year before the COPFS decided that the video evidence was inadmissible. We still don’t know the basis for that decision. And the other related question to this is why didn’t the COPFS let the court make the decision? It’s this inconsistency of approach that has caused so much confusion, and as Professor Duff writes, ‘bewilderment’.

Professor Duff also writes: “The actions by the RSPB [of placing a covert camera] are a breach of the right to privacy of both the estate owners and their employees (whilst not quite analogous, imagine if your neighbour installed a secret camera to record everything that went on in your garden)“. Sorry, but it’s quite absurd to compare these two scenarios given the size difference between these two types of landholdings. Nobody could argue that placing a covert camera to film somebody’s back garden wouldn’t be a breach of privacy, as you’d reasonably expect to see the human occupants on a daily basis. But on a multi-thousand acre estate, far from any private dwelling? Come on, “not quite analogous” is one hell of an understatement. And not only that, in the Cabrach case, the camera was aimed at the nest of Schedule 1 hen harrier, which by law cannot be approached/disturbed without an appropriate licence from SNH so you wouldn’t expect to film anybody anywhere near the nest.

All in all then, Professor Duff’s interpretation of the law, whilst useful, still doesn’t explain, or justify, the decisions made by the Crown Office in these two cases.

And questions still remain about the decisions to drop the other three cases (gamekeeper John Charles Goodenough of Dalreoch Estates; landowner Andrew Duncan of Newlands Estate; an unnamed gamekeeper of Edradynate Estate), none of which were reliant upon video evidence.

12
Jun
17

Heads Up for Harriers: Tim Baynes claims illegal persecution an “historical controversy”

Another week and another duplicitous article from Tim (Kim) Baynes, Director of SLE’s Scottish Moorland Group. This guy seems to live in a perpetual state of denial when it comes to the illegal persecution of raptors on driven grouse moors.

This time he’s penned an article for the latest edition of Shooting Times about the ridiculous Heads Up for Hen Harriers project (more on this below).

The front cover of the Shooting Times has a headline banner: “The hen harrier: how much do we really know?”, which laughably infers that the cause of long-term hen harrier decline in the UK is still a bit of a mystery that needs solving, and then inside there’s a two-page spread from Tim (Kim) who suggests that ‘weather’ and fox predation are the big culprits, as recorded by Heads Up for Hen Harrier cameras. Astonishingly, he also claims that the illegal persecution of hen harriers on grouse moors is an “historical controversy”.

You can read the full article here: Shooting Times 7 June 2017_HaveYouSeenAHenHarrier_TimBaynes

Perhaps he missed the Government-commissioned 2011 Hen Harrier Conservation Framework, which set out very clearly what the main issue is: Illegal persecution is the biggest single factor affecting hen harriers and it is having a dramatic impact on the population, not only in northern England but also in Scotland:

  • The potential national hen harrier population in Scotland is estimated (conservatively) to be within the range 1467-1790 pairs.
  • The current national hen harrier population in Scotland as recorded during the 2010 national survey is 505 pairs, more than a 20% decline from the numbers recorded during the 2004 national survey.
  • In Scotland, the hen harrier has a favourable conservation status in only five of 20 regions.
  • Two main constraints were identified: illegal persecution, and in one region, prey shortages.
  • The species is particularly unsuccessful in the Central Highlands, Cairngorm Massif, Northeast Glens, Western Southern Uplands and the Border Hills. There is strong evidence in these grouse moor regions that illegal persecution is causing the failure of a majority of breeding attempts.

Tim (Kim) also appears to have missed the video published by RSPB Scotland last month showing exactly what happens when a camera is installed at a hen harrier nest without the grouse moor owner and gamekeeper’s knowledge:

He must also have missed last month’s news that Police Scotland are investigating the illegal shooting of yet another hen harrier on a grouse moor near Leadhills (see here), which incidentally is alleged to have happened on the estate owned by the Hopetoun family – that’ll be the family of Lord Hopetoun, Chair of the Scottish Moorland Group, of which Tim (Kim) is, er, Director.

The only ‘historical’ aspect of hen harrier persecution is that it’s been going on for over a hundred years. Pretending that it’s now stopped, in the face of such overwhelming evidence to the contrary, is the response of an idiot.

We’ve blogged about the Heads Up for Hen Harriers project many times (e.g. see here, here, here). The idea is that estates give permission for cameras to be installed at active hen harrier nests ‘to help build a picture of why these birds aren’t doing as well as they should be’. The major flaw in this ‘study’ design is that gamekeepers will know on which nests the cameras are pointing, so obviously they’re not going to shoot the adults or stamp on the eggs/nestlings at those sites. Instead, the cameras will record natural failures (e.g. poor weather, predation) and then the grouse shooting industry can use this information to claim that illegal persecution isn’t an issue, but poor weather and predation is. This is exactly what Tim (Kim) Baynes has done in this latest article.

Now, some might argue that having grouse moor owners’ agreement to install cameras at hen harrier nests on their estates is a good thing – at least those nests will be left alone and the birds might be able to produce some young. There is that, of course. But leaving the birds alone long enough to produce fledglings isn’t enough. What happens to those young fledglings once they leave the safety of a monitored nest? You only have to look at what happened to young hen harrier Elwood to answer that question. He survived for approximately two weeks after dispersing from his monitored nest site before un-mysteriously vanishing on a grouse moor in the Monadhliaths – funnily enough in an area where many satellite tagged golden eagles have also un-mysteriously vanished.

Tim (Kim) talks about the number of estates that have agreed to participate this year (at least 15) and makes much of the fact that some of these are grouse moor estates. The same thing happened last year, although what was covered up last year was the fact that only three nests were successful and none of those was on a driven grouse moor. This wasn’t a surprise given that most of the driven grouse moor estates that agreed to ‘participate’ were located in the Angus Glens – an area that hasn’t seen a successful hen harrier breeding attempt since 2006.

What would be more interesting to know is not how many estates have agreed to ‘participate’, which is a largely meaningless figure unless they actually have an active nest, but how many estates have refused to participate? Again, this information is not made public, presumably because it’ll spoil the image of this so-called ‘widespread cooperation’ from grouse moor estates.

We’ve got another question for Tim (Kim). In this article he says:

A better idea of current numbers will emerge when the results of the 2016 UK harrier population survey are published, but the overall picture is expected to be broadly the same in Scotland“.

Really? On what basis is he making this claim? The results of the National HH Survey have not yet been released (held back, we believe, due to the General Election, but due out shortly), so what makes Tim (Kim) think that “the overall picture is expected to be broadly the same in Scotland”? Is this based on factual information or is Tim (Kim) just making up some nonsense to suit his agenda?

It’s not like he/Scottish Moorland Group/Gift of Grouse hasn’t done this before (e.g. see here, here, here).

31
May
17

Scottish Government announces significant action in fight against raptor persecution

Today is an historic one in the fight against illegal raptor persecution in Scotland. This is the day that the Scottish Government has finally agreed to take bold, innovative action against a criminal sector of society that has got away with so much for so long.

This afternoon, Cabinet Secretary for the Environment, Roseanna Cunningham, has announced a package of measures to tackle wildlife crime, and specifically the illegal killing of protected birds of prey on some driven grouse moors.

This package has been triggered by the publication of the much anticipated review of golden eagle satellite tag data, which shows clear evidence of deliberate and sustained illegal raptor persecution over a number of years.

Here is a copy of the report: Analyses of the fates of satellite tracked golden eagles in Scotland

Here is a brief summary of the review’s findings:

We will be blogging about this review extensively in due course, but for now, have a look at these maps we’ve created. The first one shows the locations of the last known fixes of satellite-tagged golden eagles that have disappeared in suspicious circumstances across Scotland, and the second map zooms in on some significant clustering on several driven grouse shooting estates in and around the Cairngorms National Park (including the Monadhliaths, Angus Glens and North Perthshire).

NB: These maps are copyright of RPUK and may not be reproduced without written permission

In response to this latest evidence demonstrating the appalling scale of illegal raptor persecution, the Cabinet Secretary has announced the following measures designed to protect birds of prey, the wider Scottish environment and the reputation of those who abide by the law:

We will comment on each of these measures in due course when we’ve had time to consider the implications. As an immediate response, we very much welcome the majority of them, but we’re disappointed that the SSPCA will not be given increased investigatory powers. Nevertheless, we are delighted to see both long and short-term action, which is exactly what we asked for.

Roseanna Cunningham said:

This day has been a long time coming. Many, many people have been involved in this protracted battle for several decades and each and every one has played an important part. From the highly skilled raptor fieldworkers, to the RSPB and particularly its Investigations and behind-the-scenes advocacy teams, to the academics who have analysed and published the scientific data, to the campaigners who have brought this scandal to the attention of the wider public. It is the efforts of all of these people combined that has influenced public opinion and brought us to this watershed moment.

We would like to pay tribute to Cabinet Secretary Roseanna Cunningham. Be under no illusion about the strength and power of the dark forces that have influenced and manipulated this situation for so many decades. It takes considerable courage to go up against that and we applaud her all the more for it. Please, take the time to send her a message of thanks and let her know that you welcome and support her announcement. Emails to: CabSecECCLR@gov.scot

RESPONSES & MEDIA COVERAGE

Scottish Government statement here

RSPB Scotland press statement here

Blog from RSPB Scotland’s Head of Investigations, Ian Thomson here

Scottish Land & Estates press statement here (PS. they’re still in denial)

Scottish Gamekeepers’ Association statement here (still clinging on to the wind farm myth)

BBC News here

Cairngorms National Park Authority statement here

Herald here

Independent here

UPDATE 5 June 2017: Our analysis of the SGA’s response here

23
May
17

Environment Committee brings licensing for driven grouse shooting one step closer

It’s not often we can report good news on this blog but today is one of those rare occasions.

This morning the Scottish Parliament’s Environment Committee considered various options for progressing the Scottish Raptor Study Group’s petition calling for the introduction of a licensing scheme for game bird hunting.

In short, the Committee has agreed to keep this petition open and will be writing to the Environment Cabinet Secretary to recommend that the Scottish Government further explores, with stakeholders, the implementation of a licensing regime for driven grouse shooting.

This is fantastic and very welcome news!

Grouse shooting butt, photo by RPUK

The video archive can be viewed here (starts at 1:04:05).

The official transcript of proceedings can be read here: ECCLR Committee transcript_23May2017

For now, here’s a brief summary of what happened.

As we blogged earlier, the Committee had three options on the table (see here). Briefly, these were (1) to close the petition and do nothing more; (2) recommend that the Scottish Government explores a licensing system and the feasibility of a trial scheme; and (3) do something else, which in this case was to consider maintaining the status quo as recommended by the game shooting industry.

The following MSPs delivered their thoughts on this petition prior to the vote:

Kate Forbes (SNP), Alexander Burnett (Conservative), Claudia Beamish (Labour), Mark Ruskell (Greens), Emma Harper (SNP), Angus MacDonald (SNP), Richard Lyle (SNP) and Graeme Dey (SNP).

Maurice Golden (Conservative) and Finlay Carson (Conservative) did not have anything to say. Dave Stewart (Labour) was not present.

Special mention to Claudia Beamish and Mark Ruskell, who both demonstrated a clear grasp of the scale of raptor persecution, the length of time it has been allowed to persist, the need for a civil burden of proof, and a very marked view that voluntary regulation by the game shooting industry has failed to deliver tangible change.

The votes went as follows:

Option 1 (close the petition & do nothing else)

This option was rejected 10 votes to zero.

Option 2 (recommend that Scot Gov further explores, with stakeholders, how a licensing scheme could work and the feasibility of a trial scheme)

For: Kate Forbes (SNP); Claudia Beamish (Labour); Mark Ruskell (Greens); Emma Harper (SNP), Angus MacDonald (SNP); Graeme Dey (SNP).

Against: Alexander Burnett (Conservative); Maurice Golden (Conservative); Finlay Carson (Conservative); Richard Lyle (SNP).

This option was passed with six votes for, and four against.

Option 3 (close the petition & recommend that Scot Gov considers the non-regulatory alternatives put forward by the game shooting industry)

For: Alexander Burnett (Conservative), Maurice Golden (Conservative), Finlay Carson (Conservative), Richard Lyle (SNP).

Against: Claudia Beamish (Labour); Mark Ruskell (Greens); Emma Harper (SNP); Angus MacDonald (SNP); Graeme Dey (SNP).

Abstention: Kate Forbes (SNP)

This option was rejected with four votes for, and five votes against, and one abstention.

So as you can see, the decision to approve Option 2 was certainly not unanimous and it was a pretty tight call, but that doesn’t really matter. What matters is that this petition is moving in the right direction.

Various members of the Committee wanted to speak before the vote and many of them wanted to put on record their appreciation of petitioner Logan Steele’s evidence-based approach and his calm delivery of that evidence. We would echo that appreciation. As we’ve blogged before, Logan and his fellow petitioner Andrea Hudspeth, have both been subjected to some vile abuse and harassment on social media as a result of presenting this petition to Holyrood and it is to their credit that they refused to be intimidated and remained composed throughout. They deserve recognition for this, and for all the long hours of preparatory work that went in to writing the petition, and we all owe them a huge debt of gratitude.

So what happens next? Committee Convener Graeme Dey will write to Cabinet Secretary Roseanna Cunningham, outlining the comments made during today’s discussions and recommending Option 2 – that the Government needs to explore the issue of licensing, particularly with reference to land that is intensively managed for driven grouse shooting. The issues to consider will not be restricted to the illegal killing of raptors, but will also include other issues such mountain hare slaughter and the environmental impact of muirburn practices and the use of high dosage medicated grit.

We’re under no illusion that a licensing regime will solve the problem – we maintain our long-held concerns about the issue of enforcement, particularly brought in to focus with the recent decisions of the Crown Office to drop four prosecutions despite the availability of very clear evidence. However, we also recognise that a licensing regime is a necessary step before a full ban on driven grouse shooting will be considered. If licensing works, then fine. If it doesn’t, a ban will be inevitable.

We don’t know what the timescale for these stakeholder discussions will be, and, going on past experience, this process may take a long time. Somebody commented on an earlier blog that the issue may be kicked in to the long grass and that is certainly a possibility, but we will be doing everything within our power to make sure that doesn’t happen.

And who knows, today’s decision may prove to be a watershed moment for dealing with raptor persecution in Scotland. The Cabinet Secretary has some important decisions to make before the summer recess (30 June 2017), including her decision on increased powers for the SSPCA and her response to the findings of the raptor satellite tag data review.

Public awareness of both the criminality and environmental damage associated with intensive driven grouse moor management has increased massively in recent years and public opinion has been vociferous. This weight of public opinion, combined with today’s decision, may just buckle the fence on which the SNP has been balancing for far too long.

UPDATE 7.30pm: Game-shooting industry issues joint statement on licensing proposals (here)

UPDATE 26 May 2017: Wildlife conservationists issue joint statement on licensing proposals (here)

08
May
17

Some more thoughts on the shot hen harrier video

Three days on and our anger has not subsided. If anything, it’s grown. The more we’ve watched that video, and the more we’ve tried to comprehend the reasoning behind the Crown’s decision to drop all criminal proceedings, and the more we’ve contemplated the injustice and wider implications of the Crown’s decision to drop all criminal proceedings, and the longer the silence from a Government that repeatedly claims a ‘zero tolerance’ policy on raptor persecution, the more incensed we’ve become. And we’re not alone.

This 59-second video is actually a microcosm of a war that has been raging for over 60 years, ever since birds of prey were afforded full legal protection. It’s got everything, all the characteristics with which we’re now so familiar: the remote upland landscape, an area with a long history of raptor persecution, the supposedly protected hen harrier so vulnerable as she waits until the last second to abandon her eggs and flee her nest, the violent gunshots, the explosion of feathers as she’s hit, the poignant silent aftermath as her feathers float to the ground, the armed man apparently removing and hiding the evidence of the crime. Only this time the crime was witnessed, captured on film and now, finally, exposed for the world to see.

And then comes the ridiculous pantomime of legal protocol that forces fearful commentators to describe this as an ‘alleged’ crime, which implies it might not have happened. Our eyes work just fine and it is our opinion that it did happen. The only questionable part is who pulled the trigger (twice). The video footage is not conclusive on this point and the man who was charged had pleaded not guilty. It’s fair to comment that the charges against him were alleged (in other words it’s not known whether he was responsible or not) but let’s not pretend that this crime didn’t happen. Somebody shot that hen harrier in June 2013 and whoever it was has escaped justice as the case is now time-barred.

There are several aspects of this case that fan the flames of our exasperation. We’ve already discussed the role of the Crown Office and the questions raised by their decision to drop all proceedings. These matters are deeply concerning and need to be addressed as a matter of urgency.

Other issues concern the long history of confirmed raptor persecution on Cabrach Estate. Two gamekeepers have previously been convicted for such crimes: one for having a poisoned peregrine in the back of his vehicle (here) and one for shooting two buzzards (here). Other crimes were also detected including the discovery of 11 shot buzzards that had been stuffed inside rabbit holes, 24 poisoned baits, three illegal pole traps and an owl with smashed legs (here) but nobody was charged. We want to point out that the current team of gamekeepers is very recently employed and there isn’t, to our knowledge, any evidence of further crimes since the shooting of the hen harrier in 2013. But the appalling history provides a long-term perspective on what had been going on for a number of decades and that is hard to ignore.

Map showing the location of Cabrach Estate, bordering the Cairngorms National Park (estate boundary based on information from the Who Owns Scotland website).

The publication of this video by RSPB Scotland last Friday has provoked an outpouring of public outrage. Social media has been alight all weekend, and commentary has been provided by many, including a 15-year-old schoolboy (here), a leading figure in conservation (here), another well-known campaigner (here) and a retired police officer (here).

Statements from the game-shooting industry have been thin on the ground but where they have been made, the words chosen have very carefully avoided discussing the killing of a hen harrier.

The Scottish Gamekeepers’ Association said they had no comment to make as they didn’t have a membership interest in this case. The video footage was totally ignored (see here).

Scottish Land & Estates also ignored the video content and instead opened with the vague statement, “Evidence of apparent ill-treatment of any protected species is, of course, deeply concerning“. There then followed the usual denials about the extent of raptor persecution, the same old spin about their involvement with the partnership working sham that is the Heads up for Hen Harriers project (which we have previously addressed, here) and then a bit more spin with this line: “In this instance, the estate in question was praised in an RSPB report last year as a potential model sporting estate given its commitment to species conservation, including Hen Harriers“. We were intrigued by this ‘RSPB report’ until we realised that it wasn’t an official RSPB report written by professional upland scientists based on a long-term & detailed assessment, but rather a report of a day trip to the estate, escorted by the new Head Keeper, of the local RSPB members’ group. Hmm, not quite as compelling an endorsement as SLE try to portray. Has Lord Johnstone been taking spin lessons from Beefy Botham on how to make a report sound more credible than it actually is?

So far, there has been no comment from the Scottish Government.

UPDATE 11 May 2017: Cabrach hen harrier shooting reaches First Minister’s Question Time (here)

27
Apr
17

Raptor groups slam DEFRA’s Hen Harrier Plan

The Northern England Raptor Forum (NERF) has published a damning criticism of DEFRA’s Hen Harrier Action Plan in what it describes as a Year 1 Assessment.

The Plan, as you know, was wheeled out by DEFRA in January 2016 and has been widely criticised by conservation organisations, not least for including the controversial element of brood meddling, i.e. removing hen harriers from driven grouse moors during the breeding season so there are more red grouse available to be shot by wealthy gunmen, and then releasing the harriers back on to the moors in the autumn to coincide with, er, the grouse shooting season. Genius.

NERF’s criticism of the Plan doesn’t include any surprises apart from the news that NERF was refused a seat at the table when the Plan was being formulated. NERF contends that the Plan in its current format is unworkable and that the estimated £1.39 million pounds being thrown at it from the public purse should be diverted to help monitoring and enforcement. They’ve got a point.

It’s good to see NERF utilise their undisputed expertise and experience and make clear their position on what is one of the most controversial issues in UK conservation. More of that, please!

The NERF statement can be read here

26
Apr
17

More hen harriers on English grouse moors than people attended Trump’s inauguration. Fact. Or something

More ‘facts’ (bollocks) about hen harrier conservation from the Moorland Association – here.




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