RSPB surveillance on private land

Dead buzzard in a Larsen trap, which was baited with roe deer offal

Dead buzzard in a Larsen trap, which was baited with roe deer offal

Crow as decoy bird in Larsen. Note that the water is tipped over.

Crow as decoy bird in Larsen. Note that the water is tipped over.

Dead crow used as a decoy bird in Larsen. Note the bird has no suitable water.

Dead crow used as a decoy bird in Larsen. Note the bird has no suitable water.

I read on the Raptor Politics blog that after a trial on 29 June a gamekeeper had been found not guilty in relation to wildlife charges by a district judge at Telford Magistrates court. According to the blog an investigations officer from RSPB, while walking on a public way, had seen a Larsen trap set near to a pheasant release pen and illegally baited with two live white quails. Larsens are normally used to catch carrion crows and magpies. He returned the following day to set up cameras to determine who was using the trap, and he and a colleague monitored the trap between 24 July and 31 July 2014.  A man – the defendant- was seen going to the trap and was also seen carrying a dead buzzard. The RSPB investigations officers then reported the matter to the police.

At the conclusion of the police investigation the defendant was charged with:

  • Using a trap to kill or take wild birds
  • Possessing an article capable being used to commit an offence, and
  • Failing to take steps to ensure that the needs of an animal (the quail) were met

After trial the defendant was found not guilty, the judge ruling that the covert evidence captured by the RSPB was not admissible. The judge is reported as having said that when Mr Jones trespassed the first time to take a closer look he was “well meaning”, but his return to set up covert recording equipment was “disproportionate”. He said even when trespassers acted with the best of motives that did not allow their conduct to be “unfettered”. Though similar evidence recorded by RSPB in Scotland has not always been accepted by the court, this appears to be the first time that it has been disallowed in England.

It is a great pity that evidence such as this does not lead to a conviction, but judges, magistrates, and in Scotland, sheriffs must uphold the law as it is, not as some (including me at times) might want it to be. The stumbling block seems to be the RSPB, a charity, going beyond what they are entitled to do (which in effect is usually no more than any civilian is allowed to do) and straying into a policing role. The fact that this is done with the best intention cannot sway a court, as is clear by what in this case the judge is reported to have said.

Rather than lose good cases, it seems to me much better if the RSPB, on gaining evidence that a crime is being committed, report this to the police at the time. To set up surveillance such as that carried out by RSPB, the police are legally required to obtain authority under the Regulation of Investigatory Power Act 2000 (RIPA), or in Scotland the Regulation of Investigatory Powers (Scotland) Act 2000, (RIP(S)A. Thereafter there is nothing to stop RSPB Investigations staff accompanying a police officer, and even deploying the RSPB’s equipment. In that way the police – the statutory investigative authority – are taking the lead, with valuable assistance from RSPB.

I appreciate that not all UK police forces have wildlife crime officers with sufficient experience to progress this type of investigation, but there are experienced staff within the National Wildlife Crime Unit who can give guidance or actively assist.

It could be argued that the penalties available under the Wildlife and Countryside Act or Animal Welfare legislation are insufficient to allow the police to deploy surveillance on private land without the permission of the owner of the land. The owner of the land, or his agent, may well be complicit in the crime so asking permission is out of the question. If the penalties are thought not to come within the ambit of a grant of authority under RIPA or RIP(S)A then effectively those committing a crime as described are almost beyond the law and the law needs to be re-visited.

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