I was interested in the case reported in the recent Sunday Post where a gamekeeper in Ayrshire accused of using gin traps to catch fox cubs had the charges against him dropped because of a paperwork mistake – getting dates wrong, possibly the date of the offence on the copy complaint. The report in the paper suggested that the keeper was caught with gin traps covered in animal blood and that dead fox cubs had been seen near his traps in May 2016.
Following hot on the heels of four other wildlife cases being dropped this is infuriating. The report does not state whether this is a police mistake or a mistake by COPFS but it is not unique. I remember a salmon netting case being dropped just before trial as the date of the offence contravened, as given on the copy complaint, was out by a century. Though it would be more work, it could be well worth an experienced wildlife crime officer having a read of wildlife cases as prepared by the prosecutor well in advance of trial. I know as an author my editor (and family) pick up many mistakes that I miss. While fiscals make very few mistakes like this, every one is a disaster for complainers, witnesses, the investigating officer and indeed the public. It is also an embarrassment for COPFS.
The case reminded me of an almost identical one we dealt with around 2002. It started with a poisoned buzzard, which had been killed by carbofuran, being found on a Perthshire estate, intelligence that the keeper was bragging about killing about 30 buzzards a year and culminating in a search that we, as former Tayside Police officers and staff, carried out with assistance from, at that time, SEERAD, now renamed Scottish Government Rural Payments and Inspections Directorate, plus RSPB Investigations.
The increased powers of search without warrant for the police in wildlife cases only came about in 2004, so rather than request a search warrant we decided to use powers given to SEERAD (and subsequently SGRPID) officers to carry out searches without warrant in relation to the use and storage of pesticides. The search of outbuildings resulted in the recovery of a small egg collection which included a buzzard egg, a small quantity of strychnine, which at that time the keeper was entitled to have for mole control, a film container with traces of carbofuran and a number of gin traps with blood and fur being visible on the jaws of one of the traps.
The explanation for the egg collection was that it had been collected prior to the Wildlife and Countryside Act 1981, apart from the buzzard egg, which the keeper admitted he had added to the collection in much more recent times. He also claimed that the carbofuran had been used on carrots in his garden! Despite the use of gin traps being banned since the 1950s, the keeper admitted he used them to catch fox cubs in springtime.
The land search turned up a dead crow, which had also been killed by carbofuran, near a pheasant release pen operated by the keeper.
Charges against the keeper were (1) having an article in his possession (the film container with traces of carbofuran) that could be used to commit a crime; (2) setting out an unknown bait laced with carbofuran to kill a wild bird; (3) intentionally (there was no option of reckless until 2004) killing a carrion crow and a buzzard; (4) possessing a buzzard egg; (5) storing carbofuran in a container other than its original marked container; (6) possessing 11 gin traps for a purpose for which they were unlawful.
The case went to trial and part-way through the trial the accused offered a guilty plea to charged 4, 5 and 6. He was fined £250, which was a moderate fine and no doubt considerably less than his lawyer’s fee would be.
I strongly suspect that had the trial run its course we would have lost all the charges. Through a lack of police search powers still two years distant we were using the powers of another agency, SEERAD. With hindsight and a lot more experience I’m sure we were stretching SEERAD powers well beyond their legal limits. SEERAD powers certainly didn’t include egg collecting and the use or possession of gin traps and on finding these items we should probably have gone for a warrant.
The modernisation of wildlife law has made a difference. In view of the recent cases that have been binned is it time now for some of the case law in Scotland to reflect modern times?