THERE ARE certain mammals and birds, loved by some people, that are hated by others. Rabbits, foxes, buzzards, stoats, corvids, herons, weasels, bullfinches and even hen harriers are examples. They are often considered pests by different sections of society, for example farmers and rabbits; gamekeepers and foxes; fruit growers and bullfinches. The mammal discussed in this section is the seal, loved by most, but hated by many people involved in salmon fishing.
There are two kinds of seals in the United Kingdom: the Atlantic seal, often referred to as the grey seal, and the common seal, often called the harbour seal. For many years seals had a complete piece of legislation all to themselves: the Conservation of Seals Act 1970. This changed when the Marine (Scotland) Act 2010 took effect on 31 January 2011, a part of the new Act giving seals much more apt protection.
Many who favour seals more than salmon are of the view that the Conservation of Seals Act 1970 was a toothless piece of legislation. It certainly seemed to allow the general culling of seals for a considerable part of the year provided a person had a rifle suitable for the purpose and a firearm certificate conditioned by the granting chief constable to allow the shooting of seals.
There are several interesting scientific publications reporting on the interaction between seals and salmon and seals and white fish. Nevertheless the police have to enforce the law as it is (or at least as it was before 31 January 2011.) Unfortunately there were grey areas in the Conservation of Seals Act, not least the killing of seals to protect fishing nets. Very few seal-related cases have come before the court and there is an almost complete absence of case law to rely on for clarification. In one important 2009 case in Shetland the procurator fiscal shied away from the Conservation of Seals Act and used the more appropriate Wild Mammals (Protection) Act 1996 to convict a fisherman of the killing of 21 grey seal pups, a case I related in The Thin Green Line (Argyll Publishing 2009).
Salmon nets in tidal waters of rivers and along our coastline are now rare, many having been bought over by District Fishery Boards so that their removal would allow more salmon to reach the spawning grounds in the upper reaches of the river system, thereby improving the lucrative rod fishing. In Tayside we still have coastal nets near the mouth of the River South Esk at Montrose and there have been several instances where complaints have been made by the public of the illegal shooting of seals. To establish a crime we have to determine what species of seal was involved, that the seal had wilfully been shot (or shot at), that the shooting was illegal, and who shot it. This is difficult enough with the shooting of a bird or mammal on land where the carcass or injured animal may be easily recovered. In rivers, estuaries or at sea the evidence in the form of the dead or injured seal, in almost all cases, is impossible to recover. The body may be washed ashore a couple of days after the shooting but identifying it as the particular seal shot in the earlier incident is extremely difficult.
I should explain that under the old Act there was a closed season for killing or taking either of the species of seal. This was the period during which the species is breeding and during which time it was protected. Under the 1970 Act the closed season for the common seal was from 1 June till 31 August, and for the Atlantic seal from 1
September till 31 December. Except! This is the dreaded word which must not be overlooked in legislation, and means that if a particular act carried out is an excepted act, then the person has not committed an offence. Almost every piece of legislation has exceptions. The exception in the 1970 Act allowed the killing of a seal during the closed season to prevent damage to fishing nets or fishing tackle provided the seal was in the vicinity of the nets or tackle. This allowed salmon netsmen to protect their nets and their catch, which does not seem too unreasonable a concession. The netsmen are trying to make a living and seals are trying to seek an easy way to catch their prey.
Seals that try this easy method and visit the phocine equivalent of ‘Salmon King’ or ‘McSalmon’ risk being shot. I have no argument with this as it’s what the 1970 Act set out. You will note that there was a qualification in this exception: the seal must be in the vicinity of the net. ‘Vicinity’ was not defined in the Act, nor is there any case law or court decision that could be used to determine how close a seal must be to fishing nets to qualify as being in the vicinity. In the absence of any legal direction on this term, my own interpretation, from a common sense point of view, would be to report anyone for prosecution if there was evidence that a seal had been shot within 200 yards or so of the nets. A court may agree with this interpretation or may disagree completely, reducing or extending this distance, but it seemed a reasonable starting point for a prosecution until there was some legal basis from which to work.
Almost all offences relating to seals shot in the vicinity of a net were likely to relate to common seals. Common seals are in the middle of their breeding time when salmon netting is still in high season, so it is the common seal that would feature in any case of this nature. By the time the former closed season came round for Atlantic seals on 1 September the netting season had ended so they should have total protection while breeding, but I’ll discuss this later.
In a very early morning in mid-July 2005 a seal enthusiast who is a member of the British Divers Marine Life Rescue (BDMLR), was checking on some seals at the River South Esk estuary at Montrose. She was on the private road leading to Scurdieness lighthouse, a quiet, narrow lane high above the south bank of the estuary. There were eight adult common seals hauled out on a sandbank in the estuary and the seals still had a couple of hours or so to rest before the sandbank would be covered by the incoming tide. The woman became aware of a 4WD vehicle parked further along the road, then saw the driver of the vehicle emerge with a rifle. She alternated her line of sight between the seals and the man and saw two jets of water spurt from the sea just short of the seals on the sandbank. She was convinced that the man was shooting at the seals though she did not hear any rifle shot. The woman watched the man get in to his car and drive along the road a bit further. The seals were still on the sandbank, undisturbed and presumably unaware of bullets hitting the water just short of where they were hauled out. The vehicle stopped again and the witness watched while the man leaned his rifle over the bonnet to steady his aim. With the aid of binoculars, the woman again saw spurts of water shoot into the air just short of the seals, then saw the seals launch into the water. Seven seals made it to safety; one remained, unmoving, on the sandbank.
The man got back into his car, turned at the lighthouse, and drove back up the road. In the meantime the woman had telephoned the police to report the incident, including the registration number of the car. She had also recognised the man driving the car. Evidentially this information was extremely important, but it still did not prove that a crime had been committed. The woman was unable to say what species the seals were at that stage, which meant that the whole shooting operation may have been legal.
I was contacted by the police in Montrose shortly after this and gave advice on what was required to establish that a crime had actually taken place. I must give full credit to the police officers who attended. The two officers, the original witness and another more experienced member of the BDMLR, Elaine Roft, acted swiftly in getting out on to the sandbank. The seal was identified by Elaine as a common seal and it was secured as evidence in the case. To obtain this crucial evidence the four stalwarts already had waded knee-deep through the South Esk to reach the seal, tied a rope to it and hauled it back to the shore just ahead of the incoming tide. Had they not been able to do that we would not have been able to put a case to the procurator fiscal.
As the four were roping the seal a boat drew up alongside them. This was the brother of the person identified to the police as having shot the seal, who wanted to take the seal to dispose of the carcass. This, he stated, was their common practice after shooting a seal. Needless to say he had to leave empty-handed. This visit by the man in the boat was important to the case, especially since he allegedly stated to the police officers that it was his brother who shot the seal.
I received a further update at this stage of the investigation. I was at a meeting in Edinburgh but was happy to keep in touch by telephone. I requested that the seal be taken to the Scottish Agricultural College vet lab at Perth so that a post mortem examination could be carried out to confirm the cause of death, and to try to recover the bullet for ballistics examination. If a bullet is not too badly damaged it can be compared to another bullet test-fired through the rifle used in the crime and a comparison made. Each bullet has unique marks, called striation marks, caused by the rifling of the barrel through which it is fired. Each round fired through that rifle has exactly the same marks and in that way a bullet can be forensically linked to the rifle. This type of evidence is crucial in the use of handguns in murder cases, where the same gun can be linked to cases that took place at different times and sometimes in completely different parts of the country.
That afternoon a post mortem examination was carried out by a veterinary pathologist. There was a clear bullet entry wound on the seal’s back and its injuries were consistent with it having died as a result of this bullet wound. Even better, the bullet was recovered so now there was a chance of obtaining further incriminating evidence.
This was the good news, but the bad news was that at this point the prosecution case – when it came to trial – could have collapsed. Where evidence is crucial to obtaining a conviction, it must be corroborated. Though a police officer and the two BDMLR members had been present at the post mortem, had taken photographs and could speak to the recovery of the bullet, they were not vets. None were even experienced enough in the examination of injuries to have provided part corroboration of the results of the post mortem and of the cause of death of the seal. We managed, however, to rectify this at a later date. In the same vein, we still did not have corroboration of the fact that the seal was a common seal, as the vet was not sufficiently experienced in seals to provide this identification. This crucial fact we also established later.
On the day following the recovery of the seal the suspect was interviewed by the police officers dealing with the case and his rifle was seized. The rifle was a .22/250 and was fitted with a silencer, hence the reason no shots were heard being fired. The rifle and the bullet were forwarded to our ballistics department at Police Headquarters but the bullet recovered from the seal was too badly damaged for a comparison to be made.
One further factor we had to establish for the court was the location of the nearest nets to where the seals had been hauled out on the sandbank. I left this to the local officers, who knew the area far better than I did. They established that the nearest nets belonged to the suspect and were a mile away round the headland to the south of the estuary. I therefore did not think in the circumstances that the court would consider the sandbank to be in the vicinity of the nets, but then this had never been tested. Additionally, might the court take into account that seals resting on a sandbank were not at that time a threat to anything, and that when they left the sandbank they might indeed have swum away in the opposite direction to the salmon nets?
As in most wildlife cases, I discussed the evidence with the procurator fiscal. Most fiscals seldom deal with wildlife cases and a case under the Conservations of Seals Act 1970 was particularly uncommon. There had only been a handful through the UK courts since the legislation was framed in 1970 and as far as I am aware, only one had resulted in conviction. The fiscal asked that we obtain corroboration of the species of seal, crucial because the charge related to shooting a common seal while it was protected by the close season. She also asked for corroboration of the cause of death.
Both of these matters were in hand in any case and I had made contact with the Sea Mammal Research Unit at St Andrews to try to find an expert in seals. I did manage to find an expert, Callan Duck, and arranged for him to view the dead seal. This was in the large freezer at the Scottish Agricultural College vet lab at Perth. Though
the seal took up most of the space in the freezer, we had never considered disposing of it; cases in the past have been lost when a solicitor acting for the defence has asked to see the dead animal or fish that is the subject of the charge, and it was no longer available. If the defence are denied the chance to examine the evidence on which the crown case is relying to convict their client, then that is unfair and the crown case will almost certainly be thrown out.
Callan arrived at the vet lab and I spoke with him before he viewed the seal, asking him about the different characteristics by which he could tell a common seal from an Atlantic seal. He told me that there are several methods of telling the difference between the two species but the teeth are the most failsafe method. Seals’ teeth are modified for grasping prey rather than for chewing it; as a result most prey is swallowed whole. With common seals they have tricuspids on the canines, premolars and molars – in other words three points on these teeth – compared to the Atlantic seals’ single cusp. As with legislation, sometimes there are exceptions: in both species sometimes there isno obvious distinction between the premolars and molars. My method of identifying a common seal is that its head has a resemblance to a spaniel’s head, while an Atlantic seal’s head looks like the head of a horse. This was schoolboy stuff, though Callan did agree that it was a reasonable guide in most cases for adult seals but not necessarily for young seals. Callan then looked at the mouth of the seal and gasped
in amazement. He was ready to show us the distinctive teeth but every single tooth in the seal’s mouth was worn down to the gum; it was impossible to use that method of identification. I asked why that could be, and was told that the most likely reason was that the seal must have enjoyed playing with stones, picking them off the bottom, dropping them, catching them again and rolling them around in its mouth. It was not an old seal and should have had a full set of teeth in reasonable condition. Despite its absence of teeth, the seal wasidentified as a common seal.
The next task was to corroborate the SAC vet, Colin Adams, in his determination from the post mortem examination of the seal that it had been killed by a bullet. I made a telephone call to Professor Ranald Munro and explained the position to him. He was prepared to come and see the seal, and if it was thawed out prior to his visit, he would conduct a second post mortem examination. He said, however, that this might not be necessary and he may be able to establish a cause of death from the photographs taken during the post mortem examination and the report from Colin Adams. I obtained these and posted them to him. Within a short time I had a response back from Ranald that from the evidence I had sent him he was able to concur with the conclusion of Colin Adams: that the seal had been killed by being struck by a bullet. We were now ready for trial.
The accused, during the trial, was represented by a solicitor and a very experienced Queen’s Counsel. The crown was represented by a young procurator fiscal. I am convinced that this situation is neither fair on the fiscal nor fair to the public interest, which she represented, however my views on this don’t count as it’s a practice that is not uncommon. Neither is it the case that the defence always achieve a not guilty verdict, though the odds seem to be in their favour.
On the first day of the trial, evidence was heard from only three witnesses: the woman who witnessed the man with the rifle shooting towards the seals; Elaine from BDMLR who joined her to help recover the body of the dead seal and vet Colin Adams. Since we had run out of time the case was continued until another date two months later.
On the second day I spoke with the fiscal before the proceedings started as I had suggested I should bring the file relating to the man on trial from the Firearms Licencing Department. The entries in the file would show that he had considerable experience of shooting seals, having first been authorised to shoot them more than twenty years previously. I thought if there was an excuse offered that he had been unable to tell an Atlantic seal from a common seal then the fiscal could challenge that effectively because of his experience. I asked the fiscal if she was aware of what the QC might be relying on as a defence but she had no more knowledge of this than I.
The brother of the accused, who had turned up in the boat to retrieve the seal, was called to give evidence. I later gathered from others who were in court that unexpectedly he had led evidence that he had lobster pots in the area of the sandbank, much closer than the nets, though for whatever reason the distance they were situated from the sandbank was never brought out. No one had been aware that the accused or his brother used lobster pots, though it was known that there were some round the coast used by another fisherman. Whether they were there or not is largely irrelevant; the witness said that they had been there and no-one was in a position to challenge this.
The fishermen were entitled to use the statutory defence to shoot seals that were protected by the close season provided that at the timethe seal was in the vicinity of nets or fishing tackle. We had focussed too much on nets since the accused was a salmon fisherman, and had not considered fishing tackle as we did not know that he used lobster pots.
The brother apparently also gave a different version of why he had gone in the boat to collect the seal. In court he said that he had been mistaken when he said that his brother had shot it. This, he claimed, had been an assumption on his part but in fact he recollected that his brother had simply told him that there was a seal which had probably been shot lying on the sandbank.
An interesting point arose in discussions with a seal and fisheries expert since the trial. It appears that most areas on which seals haul out are traditional and seals return to them again and again. This includes sandbanks, though by their very nature sandbanks may move about a bit in an estuary. The expert view is that if someone put lobster pots in an area near a traditional haul-out site then the operators would not be entitled to rely on the defence that they were protecting their tackle against seal predation. This makes absolute sense. As analogies, a farmer would not expect to have a harvest from a crop of peas sown in a hen run or would dissuade his children from keeping their pet white mice in an open run under a pair of nesting owls. In all cases disaster would not only be inevitable but would be predictable to anyone with any common sense. (It is interesting that under the Marine (Scotland) Act 2010 that now replaces the 1970 Act, it is an offence to intentionally or recklessly harass a seal at a designated haul-out site).
Getting back to the trial, the next witness was the police officer who had investigated and reported the case. She stated in evidence that what the brother of the accused had said to her was quite unequivocal: that the witness was there with his boat to collect a dead seal which his brother had shot. It was unfortunate that this corroborating evidence had not been led from the witness who watched the accused shooting at the seal. She had also heard the comment, and it was in the statement she gave to the police, but she had not been asked about it in the witness box. The police officer was also unable to say exactly where the nets were situated on the day that the seal had been shot. She had not measured the distance that day but in fact had gone three days later to measure the distance between where the seal was and where the nets were.
When this witness finished giving evidence the QC addressed the sheriff and stated that there was no case to answer. When this happens the defence has to state the reasons for this motion and the prosecution, conversely, has an opportunity to state why there is a case to answer. The court adjourned for a short time to let everyone gather their thoughts and the fiscal came to the witness room to see me. I was at the case in the capacity of an ‘expert’ witness and as such the case could be discussed with me. I learned something of what had happened in the court from the fiscal and was devastated by the new ‘evidence’ about the lobster pots. Surely it would have been sensible for the accused to have made mention of this at the time. Had it been the case, and had it been demonstrated to be so, he may not have been charged. I didn’t believe it but could do nothing about it. I also thought that the evidence of where the nets were on the day was irrelevant as the nets are fixed nets. It would be reasonable to assume if they were in that fixed position two or three days before the shooting and still there three days after, then they would have been there on the day the seal was shot. The opportunity to give this evidence from the witness box was lost. The fact remained that the distance from the seal on theday it was shot to the nets had not been established in evidence, though I was still puzzled by what difference this could make.
The defence motion of no case to answer was based on two factors. Firstly the QC claimed that it had not been established that the accused shot the seal. He was only seen shooting towards the seal and no-one saw a shot strike and kill a seal. Secondly it had not been established by the prosecution that the seals on the sandbank were not in the vicinity of nets or fishing tackle. The fiscal argued against these points. The evidence of the shooting of the seal by the accused came from the sighting of him with his rifle and the surrounding facts and circumstances. To corroborate this we were relying on the account of the brother as to why he turned up to collect the seal. The fiscal could not disprove the allegation by the defence of lobster pots in the area and could see the case rapidly going down the tubes. I wondered also if lobster pots could really be classified as fishing tackle, since lobsters are crustaceans, not fish.
The sheriff adjourned to consider her decision, which took more than two hours. I began to realise that it was not clear cut or she could have given her decision in a matter of minutes. When she returned to the bench she admitted that the issues were complex and asked a further few questions of the QC and the procurator fiscal. As I feared, she agreed with the defence and upheld the motion of no case to answer. The accused was acquitted.
More lessons are learned from lost cases than from those that succeed. The clear issue here was that the Conservation of Seals Act 1970 no longer seemed fit for purpose. Firstly there was no power of arrest given to the police in the Act, nor were any of the offences punishable by imprisonment. This meant that any interview of a suspect by the police almost had to be conducted on the suspect’s terms; he could not be arrested or detained and taken to a police station for interview.
Secondly there was no real protection for seals. They could be shot all the year round except during the breeding season, when they could still be shot in the vicinity of fishing nets of other fishing tackle. This case demonstrated how difficult that was to prove. Had the situation been that seals were protected by the law but could still be shot by a fisherman provided he could justify the shooting in defence of hisnets or fishing tackle that would be workable. This reverses the burden of proof so that the fisherman would have had to demonstrate that nets were in the vicinity of where the seal was shot. In genuine cases that would not be difficult. From the interpretation of the outcome of this case the police had to prove first of all the species of seal shot, no easy task if it sinks to the bottom of the sea; that it was during the breeding time of the seal, and that there were no nets or other tackle – or maybe even lobster pots – in the area. Since lobster pots are under water the best person to tell the police where they are situated is the suspect, but the minute he becomes a suspect he must be cautioned that he is not obliged to say anything and that anything he says will be noted and may be used in evidence.
With the experience of the problems in this case and the unsuitability of the provisions of the Conservation of Seals Act 1970 I wrote a report for the Scottish Government outlining the issues. I repeated them during the consultation period of the Marine (Scotland) Bill. I also learned in early 2007 that in the Firth of Tay, not too many miles down the coast from the South Esk, common seal numbers had dropped by 48% since 2002. I wonder why?
However, with every tale there is good news and bad news. I’ve already narrated the bad news. The good news was that the case was to be appealed by the Crown on the grounds of a wrong decision by the sheriff in response to the defence submission of No Case to Answer. Wildlife cases seem to drag on forever. In mid April 2007 the appeal was due to be heard but was not contested by the defence. The case was remitted back to the sheriff, who was then bound to repel the ‘no case to answer’ submission and proceed with the trial.
The trial continued on 3 August 2007. The prosecution evidence had been completed and it was now down to the defence to either concede, or argue against the Crown case. An accused person has no need to give evidence on his or her behalf: it is up to the Crown to prove the case. In this particular trial the accused had agreed to give evidence.
His evidence was initially surprising, as he did not dispute that he had shot a seal on the sand bank, his argument being that the seal was within half a mile of his salmon nets. He also produced a letter to the court that his father had received in 1971 – 36 years previously – from the then MAFF (Ministry of Agriculture Fisheries and Food, now in 2007 after several name-changes Scottish Government Rural Payment and Inspections Directorate with the unpronounceable acronym SGRPID). The MAFF letter referred to half a mile as a reasonable distance for a seal to be a potential threat to salmon nets. This was not a definition of the term ‘vicinity’ in relation to seals and nets, simply the view of an individual in the then MAFF. The salmon netsman further admitted that the seal, along with its companions, was basking on a sandbank when he shot it. He also agreed that the shot seal’s companions probably swam off in the direction of his salmon nets rather than away from them after the shot.
Some of this was good prosecution evidence but the 1971 letter had thrown a spanner in the works. Though I wasn’t in court to hear the legal arguments I’m a bit surprised that the introduction of the letter was admissible in evidence. The prosecution must disclose to the defence everything that is to be led in evidence. It seemed that this was not so with the defence. I often feel in criminal investigations and the subsequent legal proceedings that we are not playing on a level playing field; that the rights of an accused are well safeguarded but less so the rights of a victim, in this case the public interest. I may be wrong but this is certainly the way that court proceedings sometimes come across to the public – and even to seasoned crime investigators.
The accused stated in evidence that he had measured the distance between the nets and where he had shot the seal, which he averred was .32 of a mile. Though police had measured the distance at a mile this evidence had not been given in court as the officer who measured the distance was not called as a witness. The prosecution case was already closed and the version of the distance put forward by the accused could not be contested by the fiscal.
At the conclusion of the trial the sheriff found the accused not guilty. She stated that she had found him a credible witness and said that he had acted within his exemption. She went on to state that, ‘the public could well be appalled at someone shooting seals apparently sunning themselves, but he’s in the fishing industry.’
Since this case, common seals had temporary additional protection outside the closed season on the north and north-east coast of Scotland under the Conservation of Seals (Scotland) Order 2007, as their numbers were rapidly falling, though the ‘netsmen’s defence’ as discussed was still applicable. The need for the Order surely begs the question of why the numbers had declined.
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