I wrote in a very recent article that few wildlife crime cases reach the court without the involvement of at least one other agency or individual, consulted for their expertise in some aspect or other of wildlife or ecology. The following is a perfect example:
The freshwater pearl mussel (Margaritifera margaritifera) is one of the longest living invertebrates, living in rivers that have extremely good water quality and capable of living for well over 100 years. Its range has shrunk considerably due to various pressures including pearl fishing, pollution and river engineering. Even though the mussel is absent in many rivers where formerly there was a healthy population, Scotland may now hold approximately half the known remaining breeding populations in the world and therefore has a critical role in supporting its continued global survival. The Scottish Natural Heritage (SNH) national survey in 2000 and further survey work shows that of 208 watercourses known to have been occupied 100 years ago, pearl mussels are extinct or about to become extinct in approximately two-thirds. In Scotland only 71 watercourses are known to continue to support freshwater pearl mussel populations that show evidence of breeding. These rivers are of the highest global conservation value for freshwater pearl mussels, with the River Lyon in Perthshire being such a river. It is therefore of truly international importance.
It is against this background that in late August 2010 a Tayside police officer and I, together with staff from SNH and Scottish Environment Protection Agency (SEPA) began an investigation into what was likely to be the reckless killing or injuring of freshwater pearl mussels, or damage or destruction to their place of shelter. The case concluded in Perth Sheriff Court earlier this month.
As the then Tayside Police wildlife crime officer, I was first made aware of the incident on 23 August 2010 by SNH. They had been notified by SEPA of extreme silting of the River Lyon in Highland Perthshire caused by work on a mini hydro scheme in the Inverinain burn, which runs into the River Lyon. Though SEPA officers were carrying out their own investigation under the Water Environment (Controlled Activities) (Scotland) Regulations 2005, there was very much the potential of a separate but parallel police investigation as it was almost certain that the freshwater mussel population of the River Lyon would have been badly affected.
We learned early in the investigation that recent surveys had confirmed the presence of pearl mussels including juveniles in the River Lyon. On 24 August, to establish to what extent this population had been affected, Constable Steve Band and I, along with Iain Sime and others from SNH and SEPA staff, including their investigating officer, Brendan Craig, visited the River Lyon. We were devastated by what we found: a thick layer of fine silt several centimetres deep covered the bed of the river from the Inverinain Burn downstream for hundreds of metres. Iain and his SNH colleagues spent hours in the freezing river searching for and photographing evidence. They found colonies of large mussels that were not syphoning properly because of the silt, and concluded that the smaller immature mussels would be completed covered and effectively suffocated. It was an ecological disaster, albeit localised.
The police role here was easier. Steve and I photographed what we could from the bank and noted what was being found by the SNH folks in the river. Even in August the water would be freezing cold and I felt sorry from them, each with one hand and arm, almost to the shoulders, almost continuously immersed in water, while the other hand held the glass-bottomed bucket that gave them a clear view of the bed of the river.
Continual heavy rain after the initial search, with the consequent rise in river level, delayed further attempts to obtain evidence, and we didn’t get back until 12 October. The SNH staff again found a large percentage of the mussels were still closed and therefore not filter feeding. They may in fact have been dead. In undisturbed conditions nearly all mussels would be would be open and filter feeding. It was Iain and his colleague Nicky McIntyre’s opinion that as a result of the silt mussels had been killed and injured and the habitat occupied by them had been damaged.
Separate cases were submitted to the specialist wildlife and environment procurator fiscal, Tayside Police reporting wildlife offences and SEPA reporting pollution offences against two companies and their directors as potential accused. The procurator fiscal raised a prosecution for pollution offences and included in those charges the narrative of causing damage to the river bed and killing and injuring freshwater pearl mussels. Shawater Ltd, who designed the project, pleaded guilty to permitting the pollution to occur, and at Perth Sheriff Court on 18 February 2013 was fined £4000. The specialist wildlife fiscal told the court that it remained unclear how long it would take for the mussel population in the River Lyon to recover, if at all.
Sentence was deferred on Alan Smith, a director of sub-contractor A & C Construction Ltd, and Charles Kippen, also a director of A & C Construction Ltd and a director of Chic Kippen & Sons, who both admitted causing pollution which killed and injured pearl mussels. On 19 March, Kippen was fined £5000 and Smith £6000, though Smith’s fine also took into account another pollution-related incident at Dalmally, Argyll.
The case provides a classic example of effective partnership-working, with each of the various partner agencies bringing their specialist skills to the investigation, and with consultation with the specialist wildlife prosecutor from the outset.