Having read the article on BBC news and elsewhere (http://www.bbc.co.uk/news/uk-england-derbyshire-36141199 ) covering the report by two birdwatchers of an alleged crime taking place on National Trust land in the Derbyshire Peak District, I am hardly surprised. The birdwatchers had filmed a man hidden in heather, on NTS land leased for grouse shooting, a short distance from a white dummy bird. According to the witnesses the man had a gun and the dummy bird was very like a male hen harrier. Though the film is quite grainy, having been filmed from half a mile away, the man and the decoy bird can clearly be seen, as can an item that looks very like a shotgun.
The incident, which took place in February, was reported to Derbyshire police, and it appears that their enquiries are complete and did not result in anyone being charged. Though this is extremely frustrating it is hardly surprising as identification was always going to be problematic. Unless the police had some idea who the person was, interviewed him and obtained an admission, they would reach a dead end quite quickly.
But let’s assume there had been identification, did an offence actually take place. Firstly there are two independent witnesses able to speak to what they saw, this being backed up to some extent by what they filmed. The evidence of the two men is likely to have been accepted by the court as they were two birdwatchers out to observe birds and stumbled across this incident. This is completely different from a person going on to land for the purpose of looking for offences being committed, and having found such evidence, capturing the evidence and reporting the matter to the police. It is this evidence that may not be accepted in court and this incident clearly shows the difference.
While I have no doubt that the suspect’s intention was to decoy then shoot a hen harrier this would have to be proved to a court beyond any reasonable doubt – not an easy matter. Though no hen harrier was seen, there is still a potential offence under the Wildlife and Countryside Act 1981, Section 18(2), which states: Any person who for the purposes of committing an offence under the foregoing provisions of this Part (of the Act), has in his possession anything capable of being used for committing the offence shall be guilty of an offence and shall be punishable in a like manner as for the said offence. The ‘said offence’ in this case would be the shooting of a protected bird and the items ‘capable’ would be a shotgun and cartridges.
Proof of intent may depend on the witnesses the prosecution and defence field for this purpose. There is no doubt that the defence would contend that the decoy was to bring a bird that can be lawfully shot, such as a carrion crow, within shotgun range. There are much easier and less time-consuming ways of dealing with carrion crows but methods of dealing with hen harriers without leaving evidence of illegal activity are more difficult. To be honest I doubt that the prosecution would win this argument and demonstrates the difficulty in obtaining convictions for wildlife crime linked to the protection of game, particularly on driven grouse moors where there may be several gamekeepers employed.
It is little wonder that conservationists, police wildlife crime officers and many others with an interest in wildlife become frustrated. If it is any consolation the clock is ticking and I am convinced that, at least in Scotland, the government will lose patience and introduce effective sanctions on errant landowners (beyond even the offence of vicarious liability) for illegal actions of their employees. The rest of the UK should at least make a start with vicarious liability.