​Crown Office under fire after a third case involving RSPB video evidence is booted out

An environmental charity is demanding answers from the Crown Office after a wildlife crime prosecution was dropped by courts – the third in a matter of weeks.

RSPB Scotland said it is “frustrated and disappointed” after the case – which involved the use of illegal pole traps to capture birds of prey – was thrown out.

It follows a similar decision involving the prosecution of a gamekeeper who was accused of shooting an endangered hen harrier.

Meanwhile, another prosecution, at Elgin Sheriff Court, of an individual charged with the alleged illegal killing of a hen harrier, was similarly discontinued, on 21 April.

At the heart of all three is video evidence gathered by RSPB investigators which formed a major tranche of the prosecution cases.

On all cases the Crown Office ruled the footage inadmissible, and now the RSPB wants answers as to why.

The charity renewed its call for a meeting with prosecutors amidst fears future cases could be jeopardised.

This latest case began on 9 July 2015 when RSPB Scotland staff, walking on the Brewlands Estate in Glen Isla, Angus, discovered an illegally set spring trap placed on top of a pheasant carcass that had, in turn, been placed a post just a few metres inside a pheasant pen.

It was a baited pole trap, which has been illegal since 1904, and is designed to snap shut and break the legs of a bird of prey, holding the victim until it can be dispatched by the trap operator.

The RSPB team, having no mobile phone signal to allow contact with the police, made the trap safe to ensure no birds would be caught.

They then deployed a video camera (see footage below) focussed on the area, with a view to securing the evidence until the police could attend and recover the trap.

A few days later, RSPB staff accompanied a police wildlife crime officer to the scene, where it was found that the trap had been reset. The police seized the trap as evidence, and the camera was recovered.

Review of the footage filmed by the camera showed an individual resetting the trap twice in the days after which it had been found. On the first occasion it was set, it was seen to later fall off the pheasant bait and trigger itself.

The footage was passed to the police, who subsequently identified the individual setting the trap, and who later charged him with four alleged offences, contrary to the Wildlife and Countryside Act, 1981, and sent a report to the procurator fiscal, who marked the case for prosecution.

The case was first called at Forfar Sheriff Court on 31 March 2016, with subsequent hearings on 22 April and 12 May 2016, during which the accused plead not guilty.

Following two further hearings, the Crown Office Procurator Fiscal Service (COPFS) notified RSPB Scotland that following consideration of the case, which has been scheduled for trial on Monday of this week (15 May), the prosecution could not rely on the RSPB video evidence and would be discontinued.

The charity says no reason for this decision was provided.

RSPB Scotland’s head of species Duncan Orr-Ewing said: “For one case, where there was excellent video evidence to support the prosecution, to be discontinued inexplicably by the Crown Office so close to the trial was baffling.

“For a second case to be discontinued, again with no explanation from the Crown Office, and again without the opportunity for the evidence to be tested in court, is deeply concerning, and significantly undermines our confidence in the ability of Scotland’s justice system to bear down on the criminals who continue to target our protected birds of prey.”

In the previous case, RSPB Scotland said it had video evidence (see below) which showed a hen harrier being shot in Carbrach, Moray, in 2013.

However, the Crown Office ruled this inadmissible as evidence and charges against Stanley Gordon, who denied any wrongdoing, were dropped.

The RSPB has had the backing of fellow environmental charity the Scottish Wildlife Trust. Susan Davies, director of conservation, said: “It's extremely disappointing that the Crown Office has stated it [the video evidence] is inadmissible."

Meanwhile, both police and the charity are appealing to the public for information following the shooting of a protected hen harrier on a grouse moor near the village of Leadhills in South Lanarkshire.

The incident happened at 5.15pm on Friday 4 May, when a female bird was killed. The shooting happened close to the scene where two other birds have been killed.

An individual, armed with a shotgun and with his face covered, was observed at the scene, but left hurriedly, on a quad bike before the police were able to attend.

RSPB Scotland’s head of investigations, Ian Thomson said: “This latest incident shows very clearly how protected birds of prey continue to be treated in some areas of our uplands, particularly where there is intensive grouse moor management. We ask that, if anyone has information about this latest incident at Leadhills, they contact Police Scotland on 101.”

He added: “The recent decision by the Crown Office to discontinue a court case where there was clear video evidence of the alleged shooting of another hen harrier, has clearly sent out a message to those that wish to kill our protected birds of prey, that they can continue to do so with impunity, knowing that even if their alleged crimes are caught on film, they are unlikely to be called to account. We need this last matter to be addressed by the public authorities as a matter of urgency. ”

A spokesman for the Crown Office said: "Discussions have taken place over a number of years between RSPB and COPFS about the admissibility of evidence obtained through the use of covert surveillance.

“The Crown has consistently made clear the limitations which the law places on the admissibility of evidence which has been obtained irregularly. The Crown will continue to have further dialogue with RSPB to explain the legal position.

“The Crown is committed to the rigorous, fair and independent prosecution of crime, including wildlife and environmental crime. It has a specialist unit dedicated to the prosecution of wildlife and environmental crime, acting under the direction, as required, of a Senior Advocate Depute.

“The investigation of crime is subject to rules which have developed over many years and aim to strike a balance between enabling justice to be done and protecting the public from illegal or irregular invasions of their liberties.

“The Crown requires to apply the law fairly and independently to the circumstances of each case."