Abandoned hen harrier case – comment.

The RSPB press release of today’s date states that ‘court proceedings against a former gamekeeper, accused of shooting a protected hen harrier, have been dropped by the Crown Office, who have indicated that after considering all of the relevant material they could not use RSPB Scotland video evidence to support the prosecution in court’.

This incident relates to the shooting of a nesting hen harrier on Cabrach Estate, Morayshire in June 2013.  RSPB released the surveillance footage of the shooting. The female harrier was seen rising from the heather at the nest site and clearly being shot. A few seconds later a man carrying a shotgun came in to view, walked towards where the harrier fell and is seen coming back into the frame again carrying what looks very like a dead hen harrier.

It is incredibly frustrating that this case has been discontinued. A statement released by Crown Office following the RSPB press release gives the reason for dropping the case as the footage being obtained by RSPB entering the land, presumably without the consent of the landowner, for the purpose of gathering evidence for prosecution.

It stands to reason that the landowner would not be contacted by RSPB for permission otherwise the chances are that no crime would have been carried out or -maybe more likely – the perpetrator would have taken steps to ensure that he was either not filmed or was not identified. It is exceptionally frustrating for the public that a crime has clearly been filmed taking place, presumably the person involved had been identified, yet there is no prosecution. It is also very odd that it has taken since 2013 to make the decision to abandon the case.

I know better than most the rules under which COPFS must work but that does not make the clear commission of a crime by a presumably identified person any less frustrating. It is even more frustrating when a gamekeeper covertly filmed shooting a hen harrier in Morayshire in almost identical circumstances in 2001 was convicted and fined £2000.

If anything positive can be taken out of this infuriating incident it demonstrates even more strongly the need for effective sanctions against wildlife crime on grouse moors. It is to be hoped that Roseanna Cunningham, Cabinet Secretary for Environment, Climate Change and Land Reform, will consider this as yet another extreme difficulty in convicting wildlife criminals, especially on driven grouse moors. I am so fed up with repeated wildlife crimes related to shooting estates that I’d much rather driven grouse shooting was banned altogether, though if this incident and the absence of a satisfactory outcome helps licence driven grouse shooting then we may consider there has been some sort of a result.

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21 Responses to Abandoned hen harrier case – comment.

  1. Jo says:

    Whilst appreciating your experience and expertise Alan, I cannot agree that licensing is the way forward to inhibit illegal killing of raptors. Whilst there is driven grouse shooting, there will always be the allurement of reducing raptor numbers to ensure everything possible leads to bragging rights for grouse bags …… It’s all about the money …….

  2. dieselfish says:

    Alan, fully agree with the frustrations but the RSPB must abide by the surveillance rules as the police and all other specialist reporting agencies must do ( although RSPB are not an SRA the rules of evidence must apply to them too surely). This isn’t a new issue for the RSOB and they need to accept what the Crown advises them.

    • Agreed Paul, but it doesn’t make it any less frustrating when there is clear evidence of a crime. The long delay in making the decision is strange, unless the prosecution were hoping for a guilty plea.

  3. Scott says:

    Are we saying that if that hen harrier were a human, there would still rightly be no possible prosecution? That is clearly ridiculous. A man committed a crime, on camera. The purpose of the camera is irrelevant, he still broke several laws. If this is insufficient to prosecute, then at very minimum we must learn to change the law so that this travesty is not repeated.

    • dieselfish says:

      Surely if the RSPB had such a level of suspicion they should have reported it to the police. There are strict investigatory rules in place that regulate such surveillance which every other agency is required to adhere to so why do the RSPB think they can ignore these rules? And what if you were recorded by this camera without your permission as a lady was previously in a less than flattering situation?

  4. Steve Harris says:

    In England and Wales, all evidence is potentially admissible, with safeguards provided by the Police &Criminal Evidence Act 1984. Section 78 PACE enables a court to exclude evidence which would otherwise be admissible against a defendant on the basis it would be unfair to adduce it . The nature of the courts discretion was explained by Lord Lane C.J. in the case of R v Quinn Crim L.R. 581:
    “…The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if… all relevant evidence [is heard] which either side wishes to place before [ the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.” The courts have resisted attempts to fetter their discretion – see for example R v Samuel 1988 Q.B 615 where the court held that because of the infinite variety of circumstances, it was undesirable to attempt any general guidance as to how the discretion under section 78 should be exercised.

    Why is this not the case in Scotland? By what legislation, or by whose rules, is video evidence of a crime taking place obtained by a member of the public deemed inadmissible by the COPFS? I have asked a Procurator Fiscal this question in person and no answer was forthcoming.

    • I think I’ve answered this before Steve. In Scotland a member of the public (RSPB) who sets up covert surveillance on land without permission can’t bank on any evidence gained being admissible in court. Had a member of the public out walking chanced on and recorded this incident it would have been admissible. I’m not saying that this is always satisfactory but that seems to be the way the Crown Office see it.

      • Steve Harris says:

        I think I’ve asked this before, Alan: what is the legal basis in Scotland for declaring such evidence inadmissible? Prosecutors don’t make the law, they apply the law. So which law deals with admissibility of such evidence in Scotland? I assume it’s not a statute but Scots common law; if that is so, do you know where these precedents can be found? Nobody seems able to tell me!

    • Adam says:

      The procurator fiscal must be satisfied that there is sufficient admissible evidence to justify commencing proceedings. http://www.crownoffice.gov.uk/images/Documents/Prosecution_Policy_Guidance/Prosecution20Code20_Final20180412__1.pdf

      There is no comperable statute in Scotland, but the “fairness” test is similar. The admissibility of irregularly, or illegally, or unlawfully obtained evidence is governed by the test in Lawrie v Muir 1950 JC 19:

      “Irregularities require to be excused, and infringements of the formalities of the law in relation to these matters are not lightly to be condoned. Whether any given irregularity ought to be excused depends upon the nature of the irregularity and the circumstances under which it was committed. In particular, the case may bring into play the discretionary principle of fairness to the accused which has been developed so fully in our law in relation to the admission in evidence of confessions or admissions by a person suspected or charged with crime.” (p 27)

      The courts must balance “the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground.” (p 26)

      http://www.bailii.org/scot/cases/ScotHC/1949/1950_JC_19.html

      Case summary:
      The High Court of Justiciary held that where the prosecution’s evidence of the commission of an offence under the Milk (Control and Maximum Prices) Order 1947 was that of two inspectors who were employees of a company acting in association with the Milk Marketing Board and who had obtained that evidence by a search of the accused’s shop, the accused’s assent to the search having been obtained by a positive misrepresentation made to her, the evidence was inadmissible.

      Other relevant cases:
      Fairley v Fishmongers of London 1951 JC 14
      Henderson v HM Advocate [2005] HCJAC 47
      Cafferkey v HM Advocate [2016] HCJAC 114

      See also:

      “Irregularly obtained real evidence: The Scottish solution?” by Peter Duff
      http://aura.abdn.ac.uk/handle/2164/41

      “Scotland: A Plea for Consistency” by Findlay Stark and Fiona Leverick
      http://link.springer.com/chapter/10.1007%2F978-94-007-5348-8_3

      • Adam, Many thanks for that. I’m always pleased when I can learn something from a comment. I’ll have a look at the links on the first wet day when I can’t get outside, but the mention of Lawrie v Muir 1950 JC19 takes me back to my initial detective training course at Tulliallan in 1980. We could almost recite dozens of the most important stated cases of the time and I remember being able to catch a pretty sleazy lawyer out during a trial by quoting HMA v Hepper, which also relates to ‘improperly’ obtained evidence.

      • Adam, Many thanks for the links you sent. It’s a wet day and I managed to get time to read them. I notice that HMA v Hepper which I mentioned earlier and which helped me out during a trial is included within one of the links. Looking at the decisions I wonder if Crown Office are wary if letting these cases go to court that there would be an appeal which goes the ‘wrong’ way? Knowing the fiscals in the Wildlife and Environmental Crime Unit I suspect they are pretty frustrated as well but feel bound by these precedents and the fear of the wrong result. Whatever the reason the outcome of these two cases has not been in the public interest.

  5. I suspect if they had voiced their suspicions to the police there would have been insufficient for surveillance authority and in due course this crime may have been suspected but never confirmed.

  6. Steve, I’m beginning to get a complex about this, as if the whole thing is my fault! I don’t know for sure where the legal basis comes from, though I suspect it involves RIP(S)A and the Human Rights Act. I’m as frustrated as you are that there have been no court proceedings but there is certainly more public anger and concern about this case being dropped than I’ve seen for a while. Might this lead to changes? I don’t know.

    • Iain Sneddon says:

      Interesting to consider whether or not RIP(S)A 2000 actually applies here. The act applies to ‘Directed surveillance’. Surveillance is covert if it is carried out ‘in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation)’. It then goes on to clarify what private information actually means: ‘In this section “private information”, in relation to a person, includes any information relating to the person’s private or family life.’ I don’t think that shooting a Hen Harrier falls under private or family life! In any event the RSPB are not mentioned as a ‘Public Authority’ under Sec 8 so, in all likelihood RIP(S)A does not apply.

      • Iain, Many thanks. I agree that RIP(S)A does not apply to RSPB. I also doubt that the police would be granted authority under RIP(S)A had they been passed intelligence that a harrier was likely to be shot off a nest, unless the covert surveillance could be carried out from other than the suspect’s land and permission was granted by the neighbouring landowner. It is a really frustrating situation to try to deal effectively with some of the intelligence relating to suspicion of criminal activity on shooting estates. It makes the need for an effective sanction such as licensing all the more urgent.

  7. dieselfish says:

    Can someone explain to me why the RSPB have not sought to become a Specialist Reporting Agency as is the SSPCA? Or have they and been knocked back? If so, why? This would then allow the organisation to apply RIP(S)A, and also be accountable to it….

    • Iain Sneddon says:

      I suspect that the RSPB see being a Specialist Reporting Agency as a bit beyond their remit as a charity. The siting of the camera in this case was outwith the scope Of RIP(S)A anyway as its purpose was to monitor the nest site rather than gather intelligence on the private information of an individual.
      My own opinion is that the actions of the ‘alleged’ perpetrator were captured as an unintentional consequence of the presence of the camera and were entirely outwith the scope of RIP(S)A anyway as there never was an intention to gather private information on that or any other individual. A bit like accidentally capturing a murder on a remote camera trap if you like.

    • Adam says:

      That’s a question only RSPB can answer. They did carry out private prosecutions in England and Wales until relatively recently, but I don’t think RSPB Scotland ever reported cases directly to COPFS as an SRA.

      Under the Criminal Justice and Licensing (Scotland) Act 2010 investigating agencies are under a (continuing) duty to disclose relevant material to the prosecutor.

      Investigating agency means the Police Service of Scotland, or such other person who
      engages (to any extent) in the investigation of crime or sudden deaths, and submits reports relating to those investigations to the procurator fiscal, as the Scottish Ministers may prescribe by regulations. This is done in the Disclosure (Persons engaged in the Investigation and Reporting of Crime or Sudden Deaths) (Scotland) Regulations 2011, which lists, inter alia, three charities: Royal Environmental Health Institute of Scotland, Royal Society for the Protection of Birds (Scotland), and the Scottish Society for the Prevention of Cruelty to Animals. But being “prescribed persons” for the purposes of sections 117(4) and 164(3) of the Criminal Justice and Licensing (Scotland) Act 2010 gives the charities no powers whatsoever, only obliges them to have regard to the “Code of Practice – Disclosure of Evidence in Criminal Proceedings” (issued by the Lord Advocate) in carrying out their functions in relation to the investigation and reporting of crime and sudden deaths.

      In any event, even if RSPB reported cases as an SRA, it would still not be a public authority. In the same way SSPCA is not a public authority and accordingly cannot, grant authorisation for the carrying out of directed surveillance under RIP(S)A. Private bodies, including charities, can do whatever they want (obviously, as long as they are not breaking the law); however, if they collect evidence for criminal proceedings then they “can’t bank on any evidence gained being admissible in court”, as Alan noted above.

  8. Anthony Summerson says:

    I am sorry but I have just picked up on this report, I don’t know how I’ve missed it over the weekend but, unfortunately, I have. I have yet to read it all but, cherry picking certain aspects is already making my blood boil. In our legal system money is not supposed to buy an advantage but the impression given, in both the English and Scottish Legal Framework, is that the shooting fraternity have bought Justice, Justice which should protect our Hen Harriers together with all other Birds of Prey. Any ideas????

    • Anthony, I’m not of the view that justice has been ‘bought’ in this case; it is simply the position of the Crown Office in relation to certain covert surveillance. There is no easy answer but wildlife crime, particularly that associated with driven grouse moors, should be brought to the attention of the public at every opportunity. The interest of the public maybe needs to be more fairly balanced; it is certainly weighted in favour of wildlife criminals in the meantime. Banning driven grouse shooting or at least licensing shooting would be a good start.

  9. Billy-oh says:

    Reading some of the subsequent blog entries and comments (on other sites), I can’t help but think that we are our own worst enemies. The release of this video should have been a big step forward in the fight against raptor persecution, but I can’t help but think that ultimately it will result in two steps back.

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