Tethered eagle owl on Lammermuirs – comment

I was interested in a story on the blog Raptor Persecution UK at the beginning of April. It appears a man with a quad bike and a shotgun was seen at the edge of a shelter belt on the Lammermuirs. Tethered on a post within shotgun range of the shelter belt was an eagle owl. The man made off with the eagle owl when he saw he was being filmed.

There was much discussion on the blog as to whether or not a crime had been committed.

I’ve noticed over the last ten or so years that quite a number of grouse moor keepers are keeping eagle owls. They’re committing no offence in doing so but my suspicious mind tells me they are for use in luring in birds that the keepers want to shoot.

The law (Wildlife and Countryside Act 1981 as amended) in this respect states:

5.–(1)     Subject to the provisions of this Part, if any person

(d)          uses as a decoy, for the purpose of killing or taking any wild bird, any sound recording or any live bird or other animal whatever which is tethered, or which is secured by means of braces or other similar appliances, or which is blind, maimed or injured;

(f)           knowingly causes or permits to be done an act which is mentioned in the foregoing provisions of this subsection and which is not lawful under subsection (5),

he shall be guilty of an offence.

I don’t doubt for a minute the man was intent on decoying birds to shoot. The species of bird intended to be shot is not relevant; it is the tethering of the eagle owl for this purpose that constitutes the crime. However without any other evidence of shots being heard, empty cartridges on the ground or dead or injured birds I doubt that a prosecutor would proceed with a case.

Having said that, if we look at the elements of circumstantial evidence the case is not too far short:

Motive: Get rid of ‘problem’ birds from the moor

Ability: Presumably the man has permission to shoot (he certainly will if he is the keeper), he has a shotgun and (presumably) ammunition

Guilty Intention: This element is unknown

Identification: Unknown, but may be determined by police investigation

Conduct after the Crime: Gathered owl and sped off when he was aware he was being filmed

Opportunity: Unknown until after any interview. Clearly if the man is identified this element is complete (as opposed to him having been on holiday or having a broken leg etc)

Preparation: Eagle owl tethered to post, plus shotgun and transport

Unfortunately, in the absence of crucial evidence showing intent I don’t see that the eagle owl could be considered a ‘decoy’; it was simply an eagle owl tethered to a post, the use of which is unable to be confirmed.

There is also Section 18 of the Act, which states:

(1)          Any person who attempts to commit an offence under the foregoing provisions of this Part shall be guilty of an offence and shall be punishable in like manner as for the said offence.

(2)          Any person who for the purposes of committing an offence under the foregoing provisions of this Part, has in his possession anything capable of being used for committing the offence shall be guilty of an offence and shall be punishable in like manner as for the said offence.

He has not, in my opinion, ‘attempted’ to commit an offence. He also, in my view, falls short of the evidence required for section 18(2). Critics should always be mindful, even if the man was subsequently identified by the police, that evidence to convict must be ‘beyond reasonable doubt’.

I think the action taken should have been:

  • Report the incident to the police at the time. Regrettably there has been so much negative information about the police not being interested or being corrupt that some people are likely to have been put off reporting suspicious wildlife incidents to the police. These biased views do not help to solve wildlife crime and most definitely work to the criminals’ advantage. Even with most of my information now coming from the media I see evidence of cases that the police could most likely have solved had they been reported to the police in the first instance.
  • The police could have investigated the allegation and traced and interviewed the suspect. He would be unlikely to make any admission but still worth a try. Whether a positive or negative outcome an intelligence entry could then be submitted.
  • It could still be reported to the police and investigated but the end result, after details of the incident have been so long in the public domain, will almost certainly be of intelligence value only.

One comment on the blog advocates reporting to the police after releasing details on social media; another suggests reporting first to RSPB, then to SSPCA then to the police. Thankfully the blog editors make the point very clearly that crimes should not be put into the public domain before the police are informed. Why do I get the impression that some who claim to be conservationists seem more pleased to criticise and even thwart the police rather than see a criminal caught and convicted?

Postscript.

The following was posted on Twitter on 6 April:
‘Interested to know why you don’t think this meets requirement for “attempting”, and why insufficient evidence of use as decoy’?

The prosecution has to prove mens rea. The legal definition of mens rea is ‘an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent: guilty knowledge or wilfulness.’  In other words there needs to be proof that the conduct is criminal and that the person involved is aware of this.

You and I and our granny know exactly what was taking place on the Lammermuirs but in the absence of some supporting evidence that the bird was being used to decoy corvids or raptors to be shot I think a case would fail at the issue of guilty intention. I just do not think that there is proof beyond reasonable doubt that the man was using the owl as a decoy. Had the witnesses been a few minutes earlier or a few minutes later the evidence seen (or heard) by them may have been elevated to a new level.

There would be two options for ‘attempt’. There is the attempt at the offence discussed, which is using a tethered bird to lure other birds close enough to shoot. If there is insufficient evidence that the bird was being used as a decoy then I suggest it follows that there can be no attempt at the offence. The other ‘attempt’ offence would be an attempt to shoot a wild bird. There is absolutely no evidence of this.

I can perfectly understand how the public can get frustrated when they see something taking place that appears to be an offence, but the police, prosecutors and courts in turn must look at the relevant legislation word by word and decide if the evidence of what has taken place does indeed fit the wording of the legislation. It’s my view that there is a shortfall, albeit slight, but bear in mind this is only my view and that in trials either the view of the prosecution or the defence is always found to be wrong.

As a priority we now need to get rid of this nonsense that the police are not interested in solving wildlife crime and encourage witnesses to phone the police right away. As I’ve already said phoning non-government agencies first delays the investigation, sometimes fatally. By all means phone, for instance RSPB, after phoning the police but do not put the details into the public domain until the police have time to carry out an investigation.

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