Having read Guy Shorrock’s detailed account of a cache of poisons uncovered on a driven grouse moor in North Yorkshire. I can sympathise with his anger and frustration at the eventual outcome. Very briefly RSPB Investigations staff had well founded suspicions about illegal activities on East Arkengarthdale Estate, having been aware of a poisoned buzzard found there and Guy himself having seen an unidentified person with a Land Rover taking a pot shot at a sparrowhawk, albeit these incidents were slightly dated. Guy was also aware of a cage trap that had been – or was being – operated in a small plantation on the moor and he and a colleague decided to check it out since they are sometimes operated illegally.
It is interesting that a police officer could not have done this and expect any illegality found to be acceptable in court; it would be held to be a ‘fishing expedition.’ On the basis of the information given by Guy there would not be enough evidence for a search warrant and, if a police officer was relying on powers of search within the Wildlife and Countryside Act the incidents would have to be recent or there would need to be a clear seasonal course of illegal conduct. Police, as the statutory enforcers, must stick to these rules but ngo’s don’t have to, though at the end of the day prosecutors and courts would need to make a decision on whether to accept any evidence gained.
Part of the RSPB’s objective with these searches is to uncover wildlife crime, especially that relating to raptors, but if no conviction follows at least incidents are brought into the public domain. It could be argued that these strict guidelines for search on private land may not be in the public interest and gives landowners and their employees an unfair advantage. However there are examples of where legislation is seen to disadvantage the public and changes are gradually made to balance the interests of the public against the interests of an individual. A classic example is the change of police powers of search made under the Nature Conservation (Scotland) Act 2004 (see my blog of 15 July 2016 – Improving police powers in wildlife cases).
In December 2014 Guy and a colleague visited the cage trap, but found it was no longer in use. Shortly afterwards they found a buried bucket, discovered only by a small piece of blue plastic showing among the pine needles, that turned out to be part of the lid. Further investigation revealed that the bucket contained a tub which was part-full of a white powder. They discussed whether to mount surveillance on this bucket or to hand the case over to the police. The decision they made was to take a small sample of the powder for analysis and to return with surveillance equipment.
Was this the correct choice? I could see their reasoning and don’t necessarily disagree with it. There is no indication that they knew what the substance was at that point and only suspected that a crime was being committed. If they had KNOWN a crime was being committed it is my view that they should have passed the case on to the police. In my opinion RSPB have no remit to investigate crime but are fantastic at assisting the police to do so. I would go so far as say they are better than many police officers at investigating raptor-related crime.
Skipping ahead a bit, surveillance equipment was installed and in the few days since Guy and his colleague had first found the bucket it now contained an additional tub of powder, from which they again took a sample.
After several checks, on 16 March 2015 the RSPB surveillance showed a man removing the large plastic container, then replacing it later that day. Their check on the bucket showed that the small plastic container was gone but there was now a sachet of a pesticide called Ficam W, the principle ingredient being bendiocarb. The matter was reported to the police and a joint investigation made with North Yorkshire Police, Natural England and RSPB Investigations. The large container had held Cymag, the smaller container had held alpha-chloralose and of the course the sachet had held bendiocarb.
The gamekeeper was interviewed by the police and in the tradition of hardened criminals and gamekeepers made ‘No comment’ responses to questions. He was found to have ‘an electronic calling device with an interesting selection of raptors and predatory birds’. This is illegal to use for the luring of birds to be caught or killed unless licensed.
The case was reported by the police to CPS but for a reason unspecified (though may have been related to identification of the suspect from the surveillance photos taken) CPS did not take the case to court.
While I have my doubts that this case would have been taken to court in Scotland either there was some great work here by RSPB Investigations. What bothers me is how far behind Scotland the legislation is in England and Wales, with it being made clear during the debate resulting from Mark Avery’s petition to ban driven grouse shooting that the Westminster government thinks everything is fine and has neither any intent to ban driven grouse shooting nor to improve wildlife legislation.
As I see it this gamekeeper, by his own admission during an appeal against his firearms certificate being revoked (which he won and is another sad story) left deadly substances in the open and not under lock and key. Cymag, which has been banned since 2004, releases fast acting hydrogen cyanide when exposed to moisture. Unless a person has access to an antidote it can kill quickly. In addition he had bendiocarb, an acutely toxic carbamate-based insecticide, and the slightly less dangerous alpha-chloralose, which kills by lowering the body temperature and the victim dies of hypothermia. I would suggest that in Scotland leaving these substances where they could be – and indeed were – accessed by the public would constitute culpable and reckless conduct. This is a common law offence which can be tried in higher courts and with an unlimited penalty (see my blog of 7 May 2014 – Time bars in raptor poisoning cases). This may have given grounds for surveillance under the control of the police, which is always difficult on private land and depends on proportionality, particularly on the sentence available if convicted.
All three chemicals in this case, in Scotland, are included in the list of prescribed pesticides under the Possession of Pesticides (Scotland) Order 2005. The possession of these without valid excuse makes a person liable to a fine of up to £5000 and/or 3 months imprisonment. This is far easier to prove than under the Food and Environment Protection Act and the Control of Pesticides Regulations which I suspect police in England and Wales still use, or even an offence under the Wildlife and Countryside Act 1981 of being in possession of items capable of being used for committing an offence.
And then of course there is vicarious liability, which the Westminster government thinks is not required…
I wondered about the temporary removal of the Cymag on 16 March and bet it was used for gassing a fox den with cubs somewhere on the estate. In relation to his firearm certificate if he had been sacked, as he should have been, and shunned by other keepers he wouldn’t have needed a firearm certificate.