Improving police powers in wildlife cases

Trap with sparrowhawk remains found during search without warrant in Perthshire in 2011. Conviction followed.

Trap with sparrowhawk remains found during search without warrant in Perthshire in 2011. Conviction followed.

The remains of the starved sparrowhawk in the trap

The remains of the starved sparrowhawk in the trap

When I began as wildlife crime officer in 1993 wildlife legislation, apart from police powers and sentences relating to salmon and deer poaching, was really poor. The main legislation, the Wildlife and Countryside Act 1981 had been operational since 1982 but it was still barely tried and tested.  There was no power for the police to arrest a suspect, extremely limited powers of search without warrant, not all offences could be applied to an employer or a person in a supervisory position (knowingly cause or permit the offence) and in most cases the offence had to be committed intentionally as opposed to intentionally or recklessly.

In particular I was frustrated by the wording of the police power to search. It read:

‘(1) If a constable suspects with reasonable cause that any person is committing an offence under this Part (of the Act), the constable may without warrant –

stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person;

search or examine any thing which that person may then be using if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that thing;

If a constable suspects with reasonable cause that any person is committing an offence under this Part, he may, for the purpose of exercising the powers conferred by subsection (1), enter any land other than a dwelling’.

These powers only permitted a constable to search an item that a suspect was using. In trying to obtain evidence of a wildlife offence that was of little use; the officer needs to search for evidence, for instance an illegal trap, a poisoned bait, a victim of poisoning etc. Furthermore, most of the items sought were not at the time being used or even in the possession of the suspect but had been used or had been in the suspect’s possession – past tense.

For those of us carrying out searches this wording was infuriating and severely limited searches without warrant. In some circumstances a warrant could be obtained but the time delay could be anything from a few hours to a couple of days, by which time any evidence may have been spirited away or had claimed a victim.

In 2002 I and my wildlife crime officer colleague from the then Northern Constabulary, Inspector John Grierson, were part of a team, under the aegis of PAW Scotland, looking at improving wildlife legislation. We put our views on the limiting powers of search to the then Scottish Executive lawyers. The answer from them was that the powers were already sufficient to enable police to carry out perfectly adequate searches without warrant. This was nonsense, and I wished that those who make legislation had a chance to try it out, practically and operationally.  John and I strongly disagreed with the lawyers and bounced back our views to them via one of the Scottish Executive civil servants.

This time, thankfully, the lawyers conceded (though I suspect reluctantly) and in an amendment to the Wildlife and Countryside Act via the Nature (Scotland) Act 2004 the wording was altered to:

19.–(1)  If a constable suspects with reasonable cause that any person is committing or has committed an offence under this Part, the constable may without warrant–

(a)          stop and search that person if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found on that person;

(b)          search for, search or examine any thing which that person may then be using or may have used, or may have or have had in his possession, if the constable suspects with reasonable cause that evidence of the commission of the offence is to be found in or on that thing;

(c)           arrest that person;

(d)          seize and detain for the purposes of proceedings under this Part any thing which may be evidence of the commission of the offence or may be liable to be forfeited under section 21.

(2)          If a constable suspects with reasonable cause that any person is committing or has committed an offence under this Part, he may, for the purpose of exercising the powers conferred by subsection (1), enter any land other than a dwelling or lockfast premises.

These and other changes have made a remarkable difference to the success of searches in wildlife investigations.  Unfortunately the conviction rate in offences relating to game management remains poor. As I have said several times the answer to this lies not with current legislation or enforcement but with the need to impose sanctions on offenders. Examples are the banning of driven grouse shooting (a petition currently stands at over 60,000) or the licensing of shoots (a petition just launched already has over 1000 signatures).

For details on how other important changes to wildlife legislation came about see my blogs A wildlife case where the law fell short of 24 August 2015, and Wildlife cases frustrated by poor legislation of 15 June 2016. Not all of these changes have been implemented in England and Wales.

Advertisements
This entry was posted in Uncategorized and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s