I responded on Twitter to a comment the other day that there had been no prosecution in a particular wildlife crime investigation. The incident, which was the scandalous poisoning of a white-tailed eagle in 2008, is now of course time-barred so far as the offence under the Wildlife and Countryside Act 1981 for killing it is concerned. Any offence under this statute must be commenced in court no more than 6 months from the time sufficient evidence is received by the procurator fiscal, but no later than 3 years after the commission of the offence. In this particular instance any case under that legislation was time-barred in 2011.
There have been improvements in relation to time bars under this 1981 Act over the years. When we made our first wildlife crime investigations the time bar was 6 months from the date of the commission of the offence. If a poisoned bird was found after lying in the heather or in woodland for several months, most or all of the time to investigate the offence and report it for prosecution was gone. Subsequent amendments in Scotland have increased this, firstly to two years from the date of the offence, then to the current position of three years from the date of the offence. (In England and Wales this time bar unfortunately remains at 2 years).
However with baits laced with particularly deadly pesticides such as carbofuran and phosdrin, where a person might be at risk in handling the bait, there may be another option to convict. In Scotland we have common law offences. These have no time bars and can be heard in any court, from the JP court to the High Court. Murder, rape, robbery, theft and assault are all common law offences. Another serious common law offence which may suit the purpose here is culpable and reckless conduct.
Examples of this offence in the past have been:
- Selling glue sniffing kits to children
- Throwing an item off a flyover to hit a vehicle below
- Leaving an item on a railway line
- Organising a rave in a dilapidated building that was at risk of collapsing on the crowd of revellers
So this is yet another option for police and prosecutors to consider. Though there seems to be no legal definition for culpable and reckless conduct it is generally seen to be reckless conduct that results in, or is likely to result in, the serious injury or death of a person. The setting out of a rabbit, pigeon or venison cube baited with one of the most deadly pesticides may well come in to that category. It is a charge that I have used in the past, though of course it is always up to the procurator fiscal as to whether to proceed. It is a huge gamble by the perpetrator, who could well find himself in the High Court; a court that has no limit on penalties in common law cases.