Partnership-working in action – a joint police, SNH, and SEPA investigation relating to water pollution and freshwater pearl mussels
Prosecutions that relate to freshwater pearl mussels (FWPM) are rare. The mind immediately jumps to the conclusion that the offence is of someone taking them from the river in search of the elusive pearl sometimes found inside. In recent years, in Tayside at least, the endangered mollusc has been at far more risk from illegal or sloppy river engineering. Such an incident took place on the River Lyon in Highland Perthshire that led to an unusual and highly successful multi-agency investigation.
As the then Tayside Police wildlife crime officer, I was first made aware of the incident on 23 August 2010 by Scottish Natural Heritage (SNH). They had been notified by Scottish Environment Protection Agency (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.
Immediately the investigation showed that recent surveys had recorded the presence of pearl mussels including juveniles in the River Lyon. Iain Sime, a FWPM expert from SNH said, “I would consider the pearl mussel populations in the River Lyon to be of immense importance to the conservation of pearl mussels.”
The following day, 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.
Consistent rain delayed more searches for evidence, but eventually a further search of the river managed to be carried out on 12 October. SNH staff found a large percentage of the mussels were closed and therefore not filter feeding. 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 COPFS 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 FWPMs. 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 remains unclear how long it will take for the FWPM 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.