This is a chapter from my book Wildlife and the Law. Though the book covers wildlife crime in Scotland the principles of reporting it will be similar elsewhere
Police have a duty to investigate crime and all forces have an officer who co-ordinates the investigation into wildlife offences. Each force also has a number of wildlife crime officers specially trained to deal with wildlife offences in a manner consistent with legal prosecution procedure. This includes knowledge regarding relevant legislation, power to enter and search land, authority to seize evidence, requirements for corroboration (the requirement for corroboration is being reviewed by Lord Carloway and may change), safeguarding chains of evidence and forensic capabilities. Consequently, all suspected wildlife offences or related suspicious activity should be reported to the police. After the amalgamation of the eight Scottish police forces into one in April 2013 the basics for reporting, and the response given, will remain the same.
In any crime that is in progress or has just been committed, or where the suspect(s) is still in the vicinity, the police should be contacted (if possible) using ‘999’. In non-urgent cases the caller should contact their respective (or nearest) police call centre (when the eight forces are amalgamated it is likely that a single generic telephone number will direct the caller to the nearest police control centre). In most wildlife crime reports to the police, it is advisable to speak with a wildlife crime officer, though most call handlers in police control rooms now have sufficient knowledge to note and pass on details for investigation. Crimes against wildlife require more specialist investigative experience than a beat officer nornally possesses, and in many cases they also need urgent attention. If a wildlife crime officer is not immediately available to respond, another officer may attend under his or her remote direction. Control rooms also have electronic guidance and mapping they can access to assist whichever officer is attending.
A witness may also want to report the circumstances of a wildlife crime to another agency, such as reporting a bird-related crime to the RSPB (who do not investigate crime but on many occasions are of valuable assistance to the police). This should be done after the report to the police.
Obtaining and preserving evidence
In some cases an offence may be ongoing, in which case the police need to respond quickly. Depending on the location, for instance out on a hill or moor, or other ongoing serious incidents, this may not always be achievable. If the witness is unable to contact the police from the scene, or the police are unlikely to arrive before the suspect is gone, then details of the suspect should be memorised (or better still, noted). A description of age, build, height, hair colour and clothing worn are all details of great value in the investigation. Vehicle details, if available, are also extremely helpful, especially if a registration number can be noted, though it is important to note this accurately. Taking photographs or video footage will be a great help.
Bear in mind that if a suspect is aware that his crime has been witnessed, he is likely to take steps to eliminate evidence or to make its retrieval more difficult. Witnesses should not normally remove evidence, as it is much better left in situ for the police to photograph and recover, but there may be circumstances when the witness can helpfully recover evidence. An example might be the recovery of empty cartridge cases or any other item left behind by the suspect, but only if the witness is sure that taking possession of the items is the only way to prevent the suspect picking them up and disposing of them. Any item handled by the witness should if possible be picked up in a way that does not contaminate it with their fingerprints or DNA; in other words don’t physically touch it, and if possible don’t breathe, cough or sneeze on it.
The place where a bird or mammal has been deliberately killed, injured or illegally trapped is a crime scene, and great care should be taken not to tramp about and destroy an item dropped that may provide DNA, or stand on sole or tyre impressions that might be suitable for the police to photograph or cast in plaster.
Standard of proof
Be aware that in Scotland for a person to be convicted normally two sources of evidence are required (though as earlier stated this situation is being examined and may change). These may be two eye witnesses, which is the easiest form of corroboration. It could also be one eyewitness and some other form of corroboration, such as the finding of particular items in the suspect’s possession or his admission of the crime. A case can also be built purely from circumstantial evidence, though this is by far the most difficult form of evidence to obtain. Police, fiscals and courts are often unfairly criticised, but the standard of proof in criminal cases in Scotland is proof beyond reasonable doubt, which, especially in wildlife cases, is often difficult to achieve. Some poaching cases and the intentional or reckless taking or destruction of birds’ eggs are an exception to this rule, with the statute allowing conviction on the evidence of one credible witness.
Single witness evidence under the Wildlife and Countryside Act 1981 – S. 19A WCA
In Scotland, section 19A of the Wildlife and Countryside Act 1981, as amended by the Wildlife and Natural Environment (Scotland) Act 2011, permits the conviction of an accused person on the evidence of one witness in the following circumstances:
- An offence under section 1(1)(a) in relation to a grouse, partridge, pheasant or ptarmigan included in Part I of Schedule 2. This is the intentional or reckless killing, injuring or taking of these species.
- An offence under section 1(1)(c). This is the taking or destruction of an egg of any wild bird.
- An offence under section 6(1) in relation to a grouse, partridge or pheasant included in Part 1A of Schedule 3. This is the selling or offering or exposing for sale, possession or transport for sale, or publishing or causing to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell, live specimens of these species, their eggs or parts thereof. This subsection replaces the provisions of the Game Acts and is to facilitate dealing with poaching activity. Note that exceptions (listed under subsection 6(1A)) allow trade by authorised persons.
- An offence under section 6(2) in relation to a grouse, partridge, pheasant or ptarmigan included in Part IIA of Schedule 3. This is the selling or offering or exposing for sale, possession or transport for sale, or publishing or causing to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or dead specimens of these species. Again this subsection replaces the provisions of the Game Acts and is in part to facilitate dealing with poaching activity, and in part to allow the sale of ‘game’ birds throughout the year. Note that exceptions (listed under subsection 6(5B) and 6(6)) allow this trade by authorised persons provided the birds have been killed outside the close season.
- An offence under section 10A(1). This is the intentional or reckless killing injuring or taking of brown hares or mountain hares during the respective close season unless the activity is permitted by section 10B
- An offence under section 11G(1). This is the intentional or reckless killing injuring or taking of brown hares, mountain hares or rabbits unless the activity is permitted by section 11H.
- An offence under section 11I(1). This is the possession or control of live or dead brown hares, mountain hares or rabbits killed or taken in contravention of sections 10A or 11G, or their parts or derivatives; their sale, offer for sale or exposure for sale, or their possession or transport for sale; or the publishing or causing to be published any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell any of these things.
If you are a witness
If you are a witness to an incident, the police will note a statement from you. This will be a statement of facts and circumstances to which you could speak if the matter proceeds to court. You may have expertise in a particular field, in which case evidence of your opinion might be noted. Examples might be the fact that you have regularly witnessed hare coursing incidents and the circumstances in the case being investigated, even though no hare was seen being chased, were exactly the same as in previous incidents where hares had been chased or caught; or, being an experienced ornithologist, that in an investigation where a sand martin colony had been destroyed in, say, early June, that a high proportion of the nest burrows would contain eggs or chicks. You will also be asked to sign labels attached to any items you have found or have witnessed the police officer taking as physical or documentary evidence in the case.
As a witness, in due course you may want to know how the investigation is progressing. Obtain a case reference number or details of the investigating officer so that you can follow the case up. The police are notoriously bad at updating complainers or witnesses (I included myself in that category when a serving officer). This is not because they don’t want to: simply that they are usually very busy with other things, and updates unfortunately slide to the bottom of the pile. Most are now contactable by email or mobile phone, which is far easier than trying to make contact with officers who work different shift patterns.
Depending on either the complexity of the case or the difficulty in obtaining evidence, it might take some time before the officer can firstly identify a suspect, and secondly, know if there is going to be sufficient evidence to submit a case to the procurator fiscal. Wildlife crime investigations are among the most difficult of all. That does not mean that the police are not trying their best to obtain evidence, but it simply isn’t always available.
Under most of the wildlife legislation, a case can be brought to court at any time not exceeding six months from which sufficient evidence is received by the procurator fiscal, but not more than three years from the date of the commission of the offence. If evidence does not become available during the initial few months of the enquiry the investigation may be set aside, but can be re-opened if new evidence emerges later. Some statutes still stipulate that the case must be before the court not more than six months from the date of the commission of the offence. This is also the case where no ‘time bar’ or time stipulation is given.
The police act as investigators on behalf of the procurator fiscal, who is the public prosecutor in Scotland. The police electronically submit the case in summary form to the procurator fiscal. Two fiscals, one based in Edinburgh and one in Glasgow, are now dedicated to marking (preparing for court) all cases that relate to wildlife, environmental and animal cruelty offences in Scotland. They will also prosecute most wildlife and environmental crime trials. These prosecutors will be in regular communication with WECOs (and members of other reporting agencies) over these specialist cases, but it is ultimately the prosecutor’s decision whether or not to take the case to court. This decision is based on sufficiency of evidence and public interest.
If the decision is taken to prosecute, in due course the case is called in court at a ‘pleading diet’, at which time the accused may plead guilty and be dealt with. If the accused pleads not guilty a trial date is set, with a date identified for an intermediate diet roughly two weeks before the trial date. This intermediate diet gives another opportunity for a guilty plea to be entered; in fact at any time right up to and even during a trial an accused person can enter a plea of guilty.
If a case proceeds to trial, some or all witnesses will be required to give evidence. In some cases there is an agreement on parts of the evidence between the prosecutor and the defence, thus limiting the number of witnesses required. An example could be that an accused person does not deny committing a particular act, but denies that the act committed constituted an offence. In that case, only witnesses that, in the Crown’s view, can prove that the act was an offence might be called to give evidence.
There are three verdicts in Scottish courts: guilty, not guilty and not proven. The not proven verdict is often quoted as meaning ‘we know you did it but sufficient proof is lacking.’ Whether or not this is really the case, the result is the same as not guilty: an acquittal.
See Wildlife and the Law and other books on this blog. If you would like a signed copy contact me on email@example.com