Posts Tagged ‘peregrine

15
May
18

Missing sea eagle Blue T: statement from Cairngorms National Park Authority

Following last week’s news that a young satellite-tagged sea eagle (Blue T) had ‘disappeared’ on Invercauld Estate, the Cairngorms National Park Authority’s CEO, Grant Moir, has published a statement:

The frustration is evident and it’s clear that a great deal of thought has gone in to this statement, which is a huge improvement on previous CNPA statements about ‘disappearing’ satellite-tagged raptors in the National Park (e.g. see here), but we wanted to pick up on a few things.

The news that SNH will shortly be launching the next phase of its raptor tracker project is great – any technological developments that might provide more detail about the fate of ‘missing’ satellite-tagged raptors will be warmly welcomed by most (but probably not by the criminals within the grouse-shooting industry).

However, Grant seems to think that knowing exactly where and when a tagged bird was killed will “take the ambiguity away from the situation“. It won’t.

As we’ve blogged before, if the tag/raptor is destroyed on an estate that employs multiple gamekeepers, the issue of identifying the individual culprit(s) will remain, especially if all the staff give the standard ‘no comment’ police interview. There will also be the sometimes plausible argument that the raptor had been shot/poisoned on a neighbouring estate and died just over the boundary of the estate under scrutiny. And as we’ve seen in recent years, even with clear video evidence of an individually identifiable gamekeeper killing a raptor, a successful prosecution is highly unlikely because the Crown Office will declare the evidence inadmissible or will claim it’s not in the public interest to proceed.

Sorry, Grant, but the so-called ‘ambiguity’ will remain – although there’s nothing ambiguous about the robust & statistically significant findings of the golden eagle satellite tag review, which demonstrated a clear relationship between suspicious raptor disappearances and land managed for intensive driven grouse shooting in and around the Cairngorms National Park:

One other thing in Grant’s statement that we wanted to pick up on –

Invercauld Estate is part of the East Cairngorms Moorland Partnership and I genuinely do believe that progress has started to be made across a wide range of subjects with the Estates involved……”

Really? What progress is that, then? Any progress on stopping the illegal persecution of raptors?

The East Cairngorms Moorland Partnership was established in December 2015 and comprises six estates working in ‘partnership’ with the CNPA.

The Partnership’s statement of purpose can be read here.

Here are the estates (boundaries sourced from Andy Wightman’s Who Owns Scotland website):

  1. Glenlivet Estate. 2. Glenavon Estate. 3. Mar Lodge Estate (National Trust for Scotland). 4. Invercauld Estate. 5. Mar Estate. 6. Balmoral & Birkhall Estate.

Last October, almost two years after this Partnership was established, we wanted to find out what progress had been achieved. We submitted an FoI to the CNPA asking for copies of all correspondence relating to the East Cairngorms Moorland Partnership since 1 January 2016.

Here’s the reply we received in November 2017:

We have searched our Corporate Drives for the period as above and we hold no information‘.

Impressive amount of progress, eh?

We do know that in February this year the CNPA was advertising for a part-time East Cairngorms Moorland Partnership Officer, on a decent salary of £28,770 – £34,633 pro rata.

Assuming someone has now been employed in this new position, they’ve certainly got their work cut out in delivering the objectives set out in the Cairngorms National Park Management Plan 2017-2022, which includes improving raptor populations in the National Park. Recent peer-reviewed science has revealed that the local hen harrier population has crashed (here) as has the local peregrine population (here).

Oh, and satellite-tagged hen harriers keep going ‘missing’ in highly suspicious circumstances inside the National Park, just like hen harrier Calluna, as do satellite-tagged eagles such as sea eagle Blue T and golden eagle #338.

National Park or National Disgrace?

Advertisements
09
May
18

Moorland Association giving false hope for an end to raptor persecution in Peak District National Park

The Moorland Association’s long-term ability to deny and undermine the proven link between illegal raptor persecution and driven grouse moor management is legendary (see here for just one of many examples).

Never far from the headlines, they’ve been churning out the propaganda again, this time during an interview on BBC Radio 4’s Today programme, broadcast 2 May 2018, in response to the recently published scientific paper linking illegal raptor persecution in the Dark Peak area of Derbyshire’s Peak District National Park with driven grouse moor management.

The interview is available on iPlayer for the next 21 days here (starts at 53:15 mins).

Here’s the transcript:

John Humpries: There’s new research seems to show a clear link between grouse shooting and the decline in the number of birds of prey, specifically the goshawk and the magnificent peregrine falcon, the fastest bird in the world. Mark Thomas of the RSPB has done the work, Amanda Anderson is the Director of the Moorland Association. They are both on the line.

Mr Thomas, haven’t we heard this before?

Mark Thomas: We have, John, lots of times. The difference here is you’ve got a National Park, a place where the public can go, 10m visitors a year.

John Humphries: The National Park being ?

Mark Thomas: The Peak District National Park. It is highly protected yet half of the park, the northern bit with the grouse moors, are a no go zone for the very birds that you’ve just discussed.

John Humphries: Because?

Mark Thomas: Because we’ve done some research and what we’ve done is we’ve looked at all the crimes against birds of prey. So this is shot peregrines, poisoned buzzards, shot buzzards, pole trapped ospreys, it goes on and on, and all those crimes, we’ve matched them statistically with the area used for driven grouse shooting in the Dark Peak, the northern area.

John Humphries: But I’m not quite sure how you link the crimes, as you put it, to legitimate grouse shooting.

Mark Thomas: Because what we’ve basically done is we’ve matched the places where the crimes occur and then we’ve put a layer on showing where the grouse moors are and statistically that is significant. It overlays each other and we’ve proven a correlation between the two. If you are a bird of prey, you do not want to be in the Dark Peak.

[RSPB map from the new scientific paper showing the number of confirmed raptor persecution incidents in the Peak District National Park 2000-2016 overlaid with areas managed for grouse shooting]:

John Humphries: Amanda Anderson, do you accept that?

Amanda Anderson: Good morning John, good morning Mark. I have to refute that Mark thinks the northern area is a no go zone for birds of prey. The National Park is a massive area, the size of London, and in the north of the park this year we have 8 pairs of peregrines and 7 or 8 pairs of goshawk. Now it’s early in the season, it’s a very cold late spring, I’m sure you’ll agree, so we can’t guarantee that these pairs will turn into nests and eggs turn into chicks.

John Humphries: But it’s this correlation between the crime and the areas where grouse shooting happen.

Amanda Anderson: One incident of a bird of prey being persecuted is too many but we must look at the instances of this, the amount of crimes reported. I don’t know the definition of a confirmed crime but it is over a 16-year period so there are 3-4 incidents per year and there have been 2 prosecutions in the area that Mark refers to and bird of prey numbers are now increasing.

John Humphries: That presents a slightly different picture, Mark.

Mark Thomas: That’s not exactly right. When you look nationally, 69% of all people convicted for killing birds of prey, gamekeepers, let’s get to it, they are the people killing birds of prey in this park. And, as I’ve said, we have a whole catalogue of incidents. The confirmed ones is when we’ve got a body, we’ve physically got a body where nobody can refute that that bird has not been poisoned, hasn’t been trapped. In terms of the birds that are there at the moment, we’ve had this situation year on year. At the beginning of the season it looks good. Ask Amanda. Last year not one single peregrine falcon was successful in the northern Dark Peak where the grouse moors are.

Amanda Anderson: That’s absolutely true. Last year peregrine were very disappointing. As I say, this year it’s looking very exciting with about 8 pairs on the go at the moment.

John Humphries: So there we are, that’s it, it does fluctuate, doesn’t it Mark?

Mark Thomas: It does but what our data is looking at is over a long period of time. Amanda’s reflecting on one year. We must acknowledge Amanda has tried very hard with her moorland managers to self regulate but that is not working.

John Humphries: So what would you do? Would you ban grouse shooting?

Mark Thomas: No, the RSPB is not saying that and we are not going as far as that. We are saying we want licencing. If a shoot has committed a crime then the licence to shoot on that moor is removed for a period of time. That would focus and we think that would solve this problem.

John Humphries: And would you accept that, Amanda?

Amanda Anderson: If a shoot has committed a crime then somebody should be in court and prosecuted and that is a fair system and is working. The conclusion the RSPB draw to legislate to help birds of prey is flawed when the population is increasing.

ENDS

Wow. Amanda’s final comment deserves a whole blog to itself but that’s for another time.

For now, we want to concentrate on Amanda’s claim that this year is “looking very exciting with about 8 pairs [of peregrines] on the go at the moment” and “7 or 8 pairs of goshawk“.

That sounds promising, doesn’t it? But just how accurate are these figures?

Not very, according to local raptor group fieldworker Mike Price from the Peak District Raptor Monitoring Group.

We asked Mike to comment and here’s his response:

“Thank you for your email. Whilst we are not able to publicly share the figures of breeding, highly threatened raptor species at this point in the season, we can tell you that the activity of Peregrine Falcons has followed the pattern of previous years, with several sites occupied earlier in the season. Approximately 50% of these sites are no longer occupied. 

We know that there has been an incident near to one site that led to an injured bird being photographed by a member of the public. It was described as immobile, on the ground and covered in blood. Unfortunately, despite extensive searching the bird has not been recovered and we do not know what caused the bird’s injuries.

[Photos of the injured peregrine, found 14 April 2018, published on Twitter by @RSPBBirders]

Occupied Goshawk sites appear to be lower than in 2017, although known breeding pairs remain in line with 2016 and 2017. Several sightings of pairs exhibiting breeding behaviour at historic breeding sites appear to have fizzled out and at a number of sites this appears to be happening annually and without any reasonable explanation.

With all of that in mind the figures quoted by Amanda Anderson for the north of the Peak District National Park, are in our opinion, inaccurate. We would welcome a recovery for both Peregrine and Goshawk in the area mentioned but after seven years of failed collaborative working we are understandably cautious”.

Hmm, this report paints quite a different picture to the one Amanda was suggesting, doesn’t it?

To be fair though, Amanda did say it was still early in the season and it’d been a cold, late spring so there was a chance that not all the peregrine and goshawk breeding attempts would be successful. That’s true, and the weather may well have played a role in some of these early failures (we’ll find out when the 2018 report is published). But take a look again at that bloodied, injured peregrine laying in the heather. Was that a victim of the cold, late spring?

It’s a critical time for breeding birds, and especially for breeding raptors in the Peak District National Park. According to a statement made by the Peak District National Park Authority in January this year, it is “looking for an increase in birds in the breeding season before committing to working with the other organisations in the Peak District Bird of Prey Initiative beyond 2018″.

It’s no wonder the Moorland Association is keen to pretend things are on the up.

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)

29
Apr
18

New paper links raptor persecution to driven grouse moors in Peak District National Park

A new scientific, peer-reviewed paper, published in the journal British Birds, links the illegal killing of birds of prey with driven grouse moor management in the Dark Peak area of the Peak District National Park.

Full citation: Melling, T., Thomas, M., Price, M. and Roos, S. (2018). Raptor persecution in the Peak District National Park. British Birds 111 (May): 275-290.

Unfortunately we’re not permitted to publish the full paper (you’ll have to subscribe to British Birds to access it) but here is the abstract and a number of the figures:

The RSPB has published a blog about this research which is well worth a read – here.

At the end of the RSPB blog, RSPB Investigator Mark Thomas writes: “It’s going to be interesting to see the response to our paper“.

The response will be the same one we’ve seen to every other scientific paper linking illegal raptor persecution to driven grouse moor management (and there have been many):

  1. Conservationists will be appalled (but not surprised);
  2. The grouse shooting industry will either (a) ignore it or (b) try to undermine the credibility of the authors and the science;
  3. The statutory authorities will either (a) ignore it or (b) they’ll acknowledge it and say raptor persecution ‘won’t be tolerated’ and then do nothing.

We still need to work on increasing public awareness about the illegal persecution of raptors on driven grouse moors and encourage more voters to apply pressure to their political representatives. Good progress has been made in the last few years but there is much, much more to do.

Scientific papers such as this latest one all help build the evidence, although if they sit behind a journal paywall they have limited value. Please help spread the word about this paper, especially on social media, and if you’re a resident of the Peak District National Park or if you live nearby and your MP’s constituency extends in to the Park, please send a copy of the paper’s abstract to them and ask that they contact Wildlife Minister Therese Coffey at DEFRA to demand she takes action.

In fact, even if you’re not a Peak District resident, this is a National Park that is there for all of us to enjoy, so please send a copy of this paper’s abstract to your local MP, wherever you live, and ask him/her to demand action from Minister Therese Coffey on your behalf.

The illegal killing of raptors on grouse moors in this National Park (and many others) has been going on for decades. It’s all documented. It will continue to go on unless we demand change. Please act.

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

  • 4,108,064 hits

Archives

Our recent blog visitors

Advertisements