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Archive for February, 2019

Much publicity was given to the launch of a new wildlife protection body that not only seeks to challenge the legal process when it thinks it is failing, but also become a prosecutor. Many might see this as a positive move, along the lines of previous prosecution attempts by organisations like the RSPCA and League Against Cruel Sports. But is this really necessary and are there underlying issues of privacy and fairness that need to be understood? Here, author Matt Cross takes a closer look and highlights some uncomfortable aspects of this new group and the worrying environment that it aims to create.

For a while now I have been aware that Chris Packham, Dr Ruth Tingay and Dr Mark Avery had registered a company called ‘Wild Justice’. Ironically, given what follows, I decided to say nothing about it, because I was worried about potential invasions of their privacy. The reason for my silence was that they accidentally registered the company to their own home addresses and I had no desire to direct anyone to that information. Some things should remain private. With a little help they got that information expunged from Companies House and have now ‘launched’ Wild Justice.

I have been wondering for some time what Wild Justice was for. My best guess was that it was way for them to limit their own liability when they brought cases through the civil courts, asking for example for the courts to scrutinise government decisions. But I was wrong. On Farming Today, Chris Packham said, “We are interested in crime and in making sure the crime is punished” he went on to say about Hare Coursing “If we can catch people” and in their official launch statement, “if you are breaking the law, if the law is weak, if the law is flawed – we are coming for you. Peacefully, democratically and legally. Our simple premise is to work with the laws we’ve got to seek real justice for our wildlife”

From all of this, it seems that at least part of the self-appointed task for Wild Justice is to prosecute wildlife crimes. Incidentally the thought of the three of them dealing with a gang of coursers is worth reflecting on, purely for its comedy value!
So why, when we have a police force and prosecution agencies, would any private company want to prosecute crimes? The answer, I suspect, lies in three things, a number of recent legal decisions, where either prosecution has failed or been withdrawn, moves by the Police to marginalise the RSPB in prosecuting wildlife crime offences and the option of using civil courts with their lower bar of proof to effectively ‘punish’ crimes.

In three recent cases there was what appeared to be strong video evidence of a crime being committed. In two videos suspects could be seen setting what seemed to be illegal traps and in a third a suspect appeared to shoot a Hen Harrier. All three videos were filmed by RSPB covert cameras. In one case the Judge threw the prosecution out and in the other two prosecutors dropped the case because they reckoned the evidence was inadmissible.

There were several reasons why the evidence was judged to be inadmissible but crucial among them was the Regulation of Investigatory Powers Act 2000 (RIPA). RIPA (RIP(S)A in Scotland) is the law that allows the police to put you under surveillance. It is designed to do two things; to give the police the power to surveil you and at the same time to protect law abiding, innocent citizens from being inappropriately surveilled. It does this by allowing the police to put you under surveillance to prevent or detect crime, but only with an authorisation from a senior police officer. It’s an indication of how seriously the law takes the business of surveillance that a sergeant can authorise your detention, but it takes a Superintendent to authorise you being put under surveillance.

In the case of R v Hartley, the RSPB had filmed a suspect (Hartley) appearing to trap a Peregrine Falcon (which is a crime). Their video was not allowed to be used as evidence in court because the judge said that as the RSPB work closely with the Police they should have got a RIPA authorisation. Otherwise the Police could subcontract all their surveillance to other agencies and get round the protections of RIPA.

This is what Dr Tingay was referring to when in ‘The People’s manifesto for Wildlife’ she wrote, “We must urgently address and resolve issues concerning inadmissibility of evidence pertaining to the use of covert cameras to monitor wildlife crime committed in remote areas”.

Strangely there is no requirement for private companies or NGOs to get any permission to conduct surveillance, they can just do it off their own bats, nor is there any need for them to record what surveillance they conduct or any method of the wrongly surveilled seeking redress. RIPA with all its protections only applies to public authorities not to companies, charities and private individuals. The problem comes in when they surveil in concert with the Police. So how could you cut out the Police entirely? Well you could gather the evidence yourself and then conduct your own prosecution, then you don’t need to worry about RIPA at all. Strange but true, if the police want to put you under surveillance they have all sorts of legal hoops to jump through. If Chris Packham wants to do so, he can just do it.

There is of course no need for Wild Justice to conduct their own surveillance, the RSPB already has an active surveillance team. At one time the RSPB’s investigations team were heavily involved in wildlife crime detection but recently they have been distinctly marginalised.

In March last year a tranche of emails from DI Nevin Hunter at the National Wildlife Crime Unit were released following a freedom of information request. These gave us an insight into how dim a view the Police took of the RSPB investigations team. In one particularly ferocious passage DI Hunter wrote to an RSPB officer, “You trespass on the estate for around 6 years, you conduct surveillance, you find and handle evidence. You then ‘assist’ on the warrant and actually direct officers to evidence? RSPB then interview suspects and want to direct the CPS as to who and what they get charged with. It appears that you wanted to give ‘expert and impartial’ evidence about the contents of text messages between gamekeepers. Irrespective of what you think, that evidence could only be your interpretation. How could that possibly be impartial or even expert? ”

They also show a determined effort to marginalise the RSPB investigations team, at one point an officer at the National wildlife Crime Unit wrote, “One thing I am mindful of is cutting the RSPB out completely and I do think on occasions they have something to offer. I think that on occasions it can be justified in taking them on a warrant, it is certainly catered for in the WCA, but their attendance would have to be justified, their expertise would have to be required and most importantly the Police must keep control. Perhaps this may be a token olive branch. Or then again we could just say ‘F*** them” A Scottish Police officer wrote, “The RSPB will kick and scream as the transition takes place but ultimately they cannot change the demands of legal opinion. They are – and always will be – simply an NGO and cannot expect to manage wildlife crime”

Frankly there are huge civil liberties concerns about the way the RSPB has conducted itself, surveilling people, abusing police processes to obtain home addresses, asking police if they can read their target’s private correspondence. But that is an issue for another day.

The launch of ‘Wild Justice’ was welcomed in tweets by the RSPB, Bob Elliot (former head of RSPB investigations) and Ian Thomson (head of RSPB Scotland Investigations). It would be no surprise at all to see Wild Justice playing self-appointed prosecutor to the RSPB’s self-appointed police officer. This can all be conducted without any oversight, restriction or remedy for anyone who is survielled without justification.

I ran all this by a very considerable expert in Scots criminal law who pointed out a simple flaw. His view was that this might fly in England, but in Scotland it plain won’t work, because private criminal prosecution is effectively impossible in Scotland. There have been two private criminal prosecutions in Scotland in the last 100 years. I can’t believe this has just escaped the notice of Wild Justice and their legal advisers. I suspect that their approach to crime in Scotland is going to be quite different.

In January 2017 two footballer were ordered to pay £100,000 in compensation to a woman called Denise Clair who they had raped. What is striking in this case is that they were never prosecuted, the whole matter was dealt with in the civil courts. No Police or COPFS (like the CPS but Scottish) involvement. The Police had investigated the initial claim of rape, but on the basis there was not adequate evidence, there was no prosecution. So, the victim brought her own action for damages through the civil courts and won.

The big difference between civil and criminal courts is that in a criminal court a charge must be proven ‘beyond reasonable doubt’, in the civil courts a claim is assessed ‘on the balance of probability’. “In other words, is it more likely that Ms Clair was unable to give consent and was therefore raped, than the opposite side, which is that she freely and willingly gave her consent”

It may well be that Wild Justice actually intend to seek compensation for a ‘victim’ of wildlife crime through the civil courts with their much lower bar of proof. The problem with that will be convincing the court there has been a human victim who requires to be compensated. In the past, however, an ASBO was granted against an egg collector on the basis of the fear and alarm he would cause certain bird lovers by coming to Scotland, so human ‘victims’ of crimes against birds are not unknown.

Will it all work? Dunno and definitely yes. Whether they will ever get a conviction or secure a penny in compensation is a matter I can’t comment on, that needs a lawyer. But I strongly suspect that is not the point. The point is to generate publicity and expose their version of the evidence. Which is exactly what RSPB surveillance has long been intended to do. Losing is winning, because it allows campaigners to press the case for more powers and more draconian restrictions.

That, I suspect, is the real game.

 

This article first appeared athttps://countrysidecontroversial.wordpress.com

 

 

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