Sufficiency of evidence for wildlife crime in Scotland

Coursing a hare - in Scotland one credible witness sufficient to secure conviction

Coursing a hare – in Scotland one credible witness sufficient to secure conviction

In Scotland evidence of one credible witness sufficient to secure conviction for poaching a pheasant

In Scotland evidence of one credible witness sufficient to secure conviction for poaching a pheasant

An article appeared in the Courier the other day based on my blog of 27 October, How do you prove who killed these raptors? Apart from stating that I was an intelligence officer with the National Wildlife Crime Unit, from which I retired on 31 January this year, the article was accurate and much of the format consisted of direct quotes from the blog. I was astonished when a rather vitriolic letter appeared in a following edition of the paper alleging that I had made ‘baseless allegations’ and ‘I note he would like to change the law in order that inadequate or non-existent evidence could be used,’ followed by ‘Why should Mr Stewart expect a different regime for wildlife crime? Why should the burden of proof be any different for his pet offences?’

Firstly there were no ‘allegations’ in the article, far less ‘baseless’ ones. Secondly – and more importantly – those who know me are well aware that I have always preached that legislation must be upheld in the way that it is written, not as some folks might like it to be. In times of preparation for legislative change I have put forward suggestions for improvement, many of which have been incorporated into wildlife legislation. That is completely different from expecting crimes against wildlife to be treated any differently from any other criminality.  I have always been proud of the standard of proof required by courts in Scotland. As I wrote in my book Wildlife and the Law:

‘Standard of proof

Be aware that in Scotland for a person to be convicted normally two sources of evidence are required.  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 goes slightly against the grain for me. Apart from the taking or destruction of wild birds’ eggs, the remainder of the exceptions under the Wildlife and Countryside Act (not taking account of further exceptions under deer poaching and fishing legislation) relate back to exceptions under the former game laws.  Again from Wildlife and the Law:

‘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. (S.10B relates to where the animal is seriously disabled, or in certain circumstances where serious damage is being caused to crops)
  • 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. (S.11H relates to where appropriate authority is given or where the animal is seriously disabled)
  • 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 of any advertisement likely to be understood as conveying that he buys or sells, or intends to buy or sell any of these things.’

I don’t see it in the public interest that a person can be convicted on single witness evidence of poaching a pheasant or illegal possession of a salmon, yet not for the shooting of a golden eagle or badger baiting. Nevertheless that’s what the law says. While I would have no objection to corroborative evidence being required for a conviction in all wildlife offences the proposed movement in criminal law seems to be in the opposite direction – reducing the need for corroboration. This issue is still under debate, but after half a century of being involved in different aspects of policing this is one change I would be sorry to see.  Corroboration safeguards not just the suspect but also the investigating officer.

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