I read somewhere the other day a query by a person as to whether a wildlife incident occurring by accident could be a crime. Of course accidents could not be considered criminal but unfortunately in some cases reckless acts may not be considered to be a crime.
Until 2004 the Wildlife and Countryside Act 1981 in Scotland only created as a crime the killing of a wild bird where the action could be proved to be ‘intentional’. (This, so far as I can see from the legislation, still seems to be the case in England and Wales). The Nature Conservation (Scotland) Act 2004 introduced the additional offence of a ‘reckless’ act. Here are pre-2004 examples from my book Wildlife Detective that show the frustration caused by the omission of the term ‘reckless’:
One July evening a foreign shooter was standing shooting woodpigeons under a tree on a farm near Kirriemuir in Angus. An off-duty policewoman lived nearby and could hear the shots. She was aware of where the shots were coming from and at one stage looked toward the tree to see a buzzard fly in and land on a branch. A shot rang out and the buzzard fell to the ground.
The policewoman contacted her colleagues at Forfar Police Station and related the story. Officers attended to deal with the incident, and at the same time I received a telephone call at home advising me of what had taken place. I decided to go to Forfar to ensure that the case was being dealt with properly as cases under the Wildlife and Countryside Act 1981 still held some mystique for many police officers, not being offences they dealt with on a regular basis.
On my arrival at Forfar I was brought up to date with the state of the enquiry and asked if the accused person had returned to his hotel. The answer was no, and that he was in a police cell. I asked what he had done besides shooting the buzzard, which caused a look of bewilderment on the faces of the officers, quickly changing to a look of realisation at what they had done.
Under the Wildlife and Countryside Act at that time – 1999 – there was no power of arrest unless the suspect refused to give his name and address or it was believed to be false. It often meant officers had to investigate wildlife crime virtually with one hand tied behind their back. It is understandable that an interview with a suspect who is detained in a police station is likely to have a substantially different outcome from an interview with a suspect who is in his own home and who may not allow the police over the doorstep.
In any case the situation was reversed here, with a suspect in a police cell without there being legislative power to place him there. He was soon out of the cell and was charged with intentionally killing a wild bird, namely a common buzzard, by shooting it with a shotgun. There was a further charge of being in possession of a thing capable of being used for committing an offence under the Act, namely a Beretta 12 bore semi-automatic shotgun. The accused was due to return to his own country in a couple of days but agreed to present himself at Forfar Sheriff Court the following morning.
In the morning I had a telephone call from the procurator fiscal at Forfar. He explained that the Forfar fiscal was on leave and that he was standing in. He normally worked from the Procurator Fiscal’s office in Glasgow and was not too acquaint with this type of crime. Could I explain to him first of all the difference between a buzzard and a wood pigeon! He was completely devoid of any knowledge about birds but then if someone asked me to explain the off-side rule in a game of football or how many feet from a goal a penalty kick should be taken I would be equally ignorant. Despite initial misgivings I was still confident that he could prosecute the case better than I could referee a football match.
The accused appeared in front of the sheriff and pleaded guilty. He was asked if there were any mitigating circumstances he wanted to put forward to the court before being sentenced. The accused said that he hadn’t intended to shoot a buzzard; he thought when the bird landed in the tree that it was a wood pigeon. So much for sportsmanship; letting a bird land before shooting it!
The sheriff looked at the charge of killing the buzzard again and, rightly, told the accused that with that particular plea in mitigation he was in effect pleading not guilty. The Crown had to prove all of the elements of the charge, one being that the act of shooting the bird was committed intentionally. He was then asked if he wanted to withdraw his plea in mitigation so that he could be dealt with there and then, or if he wished now to plead not guilty and come back for trial. Unsurprisingly he changed his plea to one of not guilty. A trial date was set but no-one expected to see him again. They weren’t disappointed.
It is exceptionally difficult to prove to a court that a particular wildlife crime was committed intentionally. There are many other examples, one in the south of Scotland relating to a person who was charged following the discovery of several poisoned buzzards and ravens. The accused had possession of the same poison that had killed the birds and admitted putting the poison on rabbit baits that he had then set out on the estate. All involved thought that the case was clear-cut and a conviction would follow.
When this case came to trial the defence was that the baits had been set out for foxes and that there had been no intention to kill buzzards or ravens. Poisoned baits are indiscriminate and will kill any predator or scavenger that eats from the bait. It is unrealistic to set out poisoned rabbits for foxes and intend not to kill anything else. Even small signs Private Bait – Foxes Only would be of no help. Nevertheless the verdict of the court was not guilty to the charge of intentionally poisoning buzzards and ravens.
I was furious when I heard this, but the sheriff was absolutely correct. Intent to kill buzzards and ravens had not been proved. It was the Wildlife and Countryside Act 1981 that was badly written and needed changed quickly before more cases like this came to the same conclusion.
On our Partnership against Wildlife Crime (PAW) working group to improve wildlife legislation we had identified this problem at an early stage and it was one of the recommendations we were putting forward. So far as I was concerned the new legislation couldn’t come quickly enough, but it was October 2004 before it was enacted. Now, in similar cases, a person would be charged that he did intentionally or recklessly commit the particular act. A reckless act is much easier to prove and had this been available in the last two cases that I have outlined the outcome would have been different. The public need have no fear of the inclusion of the term reckless. The concept of a reckless act has been well tried and tested in Scots law and is completely different from actions that are careless or accidental, neither of which are criminal offences under wildlife law.
See Wildlife Detective and other books on this blog. If you would like a signed copy contact me on firstname.lastname@example.org