I watched an item on Countryfile last night about grey seals breeding at Blakeney Point in Norfolk. The footage of the pure white pups brought back memories of an incident that occurred in one of our most northerly islands. Since this case had only just been concluded before my book The Thin Green Line went to print, I included it as a postscript. Here is the first of two parts:
And finally, a landmark case that has just concluded as the text for the book is going to the publisher. For this case we need to travel about as far north in the British Isles as is possible; in fact to the island of East Linga, part of the Shetland Isles. East Linga is about half way up the east side of the group of islands and lies between Whalsay to the west and Grif Skerry to the east. The smaller Calf of Linga lies to the north and is connected to East Linga at low tide. A high proportion – about 3,500 – of the UK seal population live in and around the Shetland Isles and around thirty grey seal pups are born each year on East Linga. (It is interesting that the UK has about 40% of the world population of grey seals – about 120,000 animals – and 90% of those breed in Scotland.) Unlike the common seal breeding time, June to July, grey seal pups are usually born in October or November.
Legal protection is given to the seals during their breeding time with grey seals being protected against shooting between 1st September and 31st December unless directly threatening to damage the nets of coastal fishermen. (This has changed since I wrote this chapter, with the much more enforceable Marine (Scotland) Act 2010 now replacing the toothless Protection of Seals Act 1970). It has long been suspected that seals are shot during the time they are protected and at a time that they are causing no immediate threat to nets. According to the Seals Protection Action Group the number killed either legally or illegally is around 5000 annually in Scottish waters alone. Evidence of illegal practice is extremely hard to gather since the seals often haul out in remote places and very often the evidence in the form of a dead seal sinks to the bottom of the sea or, if shot on the coastline, is washed out to sea. Occasionally, however, the police have a lucky break when the killing of seals in unlawful circumstances is witnessed. This was the position on East Linga on 29th November 2008.
On that Saturday members of staff from Scottish Natural Heritage were carrying out a seal survey by boat when they saw two men acting suspiciously on the shoreline of the island and suspected they were killing seal pups. One of the men was raising a fence post above his head and bringing it down with some force. The witnesses alerted the police, and Constable Bob Veighey, the wildlife crime officer for the Shetland Isles, chartered a boat and went to the island along with a local SSPCA inspector. They were shocked to find the beach littered with dead seal pups, twenty-one in total. The pups had severe head injuries and it appeared that they had been clubbed to death. As a result of the police investigations two men from Whalsay were charged. One of the men, who appeared to have instigated the cull, alleged that he had killed the seal pups because they had been abandoned by their mothers. He did not want them to die of starvation and his sole reason for killing them was concern and compassion for their suffering. That they had been abandoned was easily refuted by the evidence of a veterinary pathologist, who examined each dead seal in turn to establish its injuries and found them to be in very good condition, with a thick layer of blubber under the skin.
There was much discussion about the most relevant charges, the reason for this being the poor maximum penalty available under the Conservation of Seals Act 1970. Even with a recent update to the penalties the maximum remains Level 4, which is currently £2,500, and with no option to the courts of imprisonment. Unusually there is nothing in the Conservation of Seals Act that relates to clubbing seals to death. The Act specifies that they may not be poisoned nor shot with the wrong type of firearm but the legislators have not taken into consideration man’s ingenuity to devise other means of culling seals. Some legislation – for instance the legislation governing the killing of deer or fishing for salmon – lays down the legal methods and anything outside these methods is considered an offence. Not so the Conservation of Seals Act. The more I see of this Act the more I am convinced of its inability to deal effectively with illegal acts committed against pinnipeds.
Since there was veterinary evidence in relation to each one of the twenty-one dead seals, this allowed the men to be charged under the Wild Mammals (Protection) Act 1996 with twenty-one counts of cruelly killing them by clubbing. This Act had been passed to give some protection against cruel treatment meted out to wild animals, in particular prompted by the frequency that hedgehogs were being abused. It covers a variety of methods of cruelly killing or injuring wild mammals, in particular that of beating them. In relation to any mammal that is killed, it would be necessary to prove that there was unnecessary suffering. As is the right of the procurator fiscal, in this case he decided to combine the twenty-one separate charges of cruelly killing a seal into one single charge of killing twenty-one seals. He dropped twenty-one charges under the Conservation of Seals Act 1970, probably having as little faith in its provisions as I do.
If post mortem examinations showed that in each case the first blow had killed the seal then it would be extremely unlikely that a conviction under the Wild Mammals (Protection) Act 1996 could follow, since the Act relates to specified acts committed against wild mammals with intent to inflict unnecessary suffering. These are detailed in the Act as mutilate, kick, beat, nail or otherwise impale, stab, burn, stone, crush, drown, drag or asphyxiate. In this case the seal pups were beaten with a fence post. There was evidence from the post mortem examinations that the heads of the seals had been struck with great force, several blows eventually shattering their skulls and pulping their brains. Importantly the post mortem examinations also showed that some of the animals had ingested and inhaled blood, indicating they had not been killed instantly. Killing cleanly is not cruel treatment, though the killing of the animal may be an offence in itself under other legislation – in this case the Conservation of Seals Act 1970. Police officers, and in due course, prosecutors, have to weight up the options available under a variety of legislation and decide on the charge which best fits the circumstances of the crime. It is also possible to libel two or more charges, as was the case here, though if two different charges arise virtually out of the same circumstances the court may consider this to be double jeopardy. The charge under the Wild Mammals (Protection) Act is much stronger, and has a penalty of imprisonment available to the court. Under this Act penalties are more in keeping with modern legislation. A maximum fine of £5,000 is available, as is imprisonment of up to six months. If the men were convicted the court now had a much better choice of penalties.