Official Report 628KB pdf
Agenda item 2 is evidence on the Scottish Government’s publication “Wildlife Crime in Scotland - 2013 Annual Report” from the Minister for Environment and Climate Change, Paul Wheelhouse. He is assisted by Hugh Dignon, wildlife management branch team leader, and Karen Hunter, wildlife crime policy officer, from the Scottish Government.
Welcome to you all. Do you wish to say anything before we begin our questions, minister?
I do, if that is okay, convener. I appreciate the opportunity and hope that it will be of value to the committee.
I am pleased to give an update on Scotland’s second annual report on wildlife crime. We are all here because the Wildlife and Natural Environment (Scotland) Act 2011 introduced a requirement for the Scottish Government to lay before Parliament an annual report into the extent of wildlife crime. As you will be aware, this is our second report, and I am pleased that we have been able to implement some improvements on the basis of feedback that my officials and I have received.
Last year, I said that this publication should serve as a reminder of the importance of doing everything that we can to challenge these abhorrent crimes. The reasons for doing so remain the same. Until they are eradicated, the impacts of wildlife crime will continue to stain Scotland’s reputation, and I know that I am not alone in holding the view that that is simply unacceptable.
Although we cannot possibly see trends in data in only two years, the report has again shown that poaching and coursing are a high-volume area of crime. While poaching may not harm the conservation status of deer, the loss of a golden eagle such as Fearnan at the end of 2013 and the mass killing of red kites in Ross-shire in March this year will certainly have consequences for those local populations of rare raptors. I share the revulsion of many people that such cruel and selfish crimes against raptors still occur in the 21st century.
The 2013 report includes information on court proceedings for wildlife crime offences over the past five years, police recorded crimes for the past five years, recent legislative changes and the future direction of wildlife crime policy. We have endeavoured to simplify the look of the data in the report by recording offence type by species rather than by legislation. We have also added sub-totals to the tables so that the reader can better see the changes in numbers across the five-year period. I hope that you will agree that those minor changes have improved the reader’s experience and understanding of a complex and difficult area.
Before I move on, I will take a moment to thank some of the key contributors to the report. The Scottish Government’s justice analytical services team, the Crown Office and Procurator Fiscal Service, Police Scotland and the national wildlife crime unit have, once again, supplied figures and explanation for this year’s report. Partnership against wildlife crime Scotland stakeholders have also provided advice and feedback that have been valued by my officials.
Last year, I said that it would be ideal if we could track each criminal case from discovery through to detection, prosecution and, ultimately, court disposal. We are still at a point when the justice system’s data simply does not allow that follow through, but it is clear that data on recorded crime is almost impossible to reconcile with court statistics because of the often lengthy time periods between the crime taking place and the court hearing. Also, some information is available on a financial year basis while other information is available on a calendar year basis. Last year, I talked about those difficulties and the need for change in that respect and, as Assistant Chief Constable Malcolm Graham said last week, key officials from the various agencies are starting work to get the data more consistent for next year’s report.
In 2013, the first ever case went to court to consider prosecution under the vicarious liability provisions that were brought into force by the Wildlife and Natural Environment (Scotland) Act 2011. It remains to be seen what the outcome of that will be, but I am in no doubt that close attention will be paid to its outcome—not least by me. I am also aware of the second potential case, which is due to commence this month.
In February last year, I announced a further two years of funding for the national wildlife crime unit in Livingston. The unit provides a valuable service to the police nationwide by providing intelligence packages and investigative support. It has also announced three new measures to assist in the fight against wildlife crime. Professor Mark Poustie from the University of Strathclyde is midway through the review of wildlife crime penalties that I initiated and he will report back to me probably early in the new year. Both Police Scotland, which appeared before the committee on 29 October, and the Lord Advocate have confirmed the use of all appropriate technology for investigations, including surveillance cameras. ACC Malcolm Graham outlined the restrictions that the police face in the use of surveillance, but I am confident that such technology can be used where that is appropriate, and the Lord Advocate has made it clear that the option is available to Police Scotland.
The new measure that has perhaps attracted most attention is the introduction of new restrictions on the use of the general licence by Scottish Natural Heritage when there is evidence of wildlife crime taking place. The measure was formally announced on 6 October. Although it may not, on its own, eliminate such selfish and cruel practices overnight, I firmly believe that it will be a deterrent to those who are contemplating criminal acts both because of its practical impact on those landholdings to which it is applied and because of its reputational impact. We should bear in mind that the general licence is a privilege, not a right. It reflects the fact that we trust that its provisions will be used responsibly and constitutes a very light-touch form of regulation. It seems absolutely right to me that, on the basis of evidence that is provided by Police Scotland, where there is a strong reason to suspect that wildlife crime is taking place and trust has been lost, that privilege should be withdrawn and greater scrutiny applied.
Crucially, SNH will be able to consider imposing such a restriction in cases from 1 January this year. It remains to be seen when the first restriction will be imposed by SNH, the circumstances that it is deployed in and the effect that it will have. Implementing the restriction has not been a straightforward measure, and that was reflected in the length of time that it took to finalise the scheme. I thank all those who have been involved in its implementation.
I confirm that there have been informal discussions with both stakeholders and the Crown on the pesticides disposal scheme, which I will formally announce shortly. The scheme will focus on the removal of the illegal substances that are most commonly used in wildlife crime and that it is already an offence to possess. They are listed in the Possession of Pesticides (Scotland) Order 2005 and include strychnine, carbofuran and cyanide.
The report is designed to inform our response to wildlife crime and ensure that there is appropriate scrutiny of trends as they emerge. Wildlife crime is an issue that I am determined to eliminate, and the report is a useful tool in monitoring progress. I look forward to answering the committee’s questions on the annual report.
Thank you, minister. I am sure that members will take your initial remarks into account when they ask their questions.
There are many different sources of information for the 2013 annual report. Have you got them all to agree to provide the information on a calendar basis? What can we expect?
There have been discussions on the matter, which ACC Graham mentioned last week. Since the previous report, it has been a cause of frustration that there is difficulty in reading across the different tables and tying up trends in that way. There has been some difficulty in determining a solution, but I believe that there is a willingness to get reporting on a consistent basis. Hugh Dignon may be able to comment on the discussions that have taken place—I have not been present at those discussions.
As the minister says, it is certainly our ambition to do that and we have been working towards it. It is not as easy as one might hope, because the data systems stretch from as far back as the officer on the ground or the court official inputting data at the beginning of the data collection system right through to the way that the statisticians collect, store, analyse and reproduce that data at the end of the process.
We cannot change the format overnight. I hope that we will be able to make progress on it with the next report. I do not guarantee that everything will be in a standard format by next year, but we are certainly working towards that.
Are there any particular sources that find it more difficult than others to bring the data into a calendar-year format?
I am not aware that any particular organisation finds it more difficult. People now recognise that it is a regular, substantial and important piece of work and they are giving it the attention and providing the input that it deserves, so we are making progress across the board.
Besides the calendar year, there is the complication of the nature of the charge that is laid—please stop me if you are going to ask about that.
In some cases, the wildlife offence is a secondary offence to the main one that the Crown Office is prosecuting. Unpicking that and identifying cases in which wildlife crime is not the main charge for which the person is pursued is another cause of difficulty and complexity. That sometimes causes concern to some stakeholders who have identified that offences do not appear in the tables. That is because it has been difficult to isolate them from the main charges that the accused have faced.
Thank you. Talking about offences appearing in the table, given that tackling poaching is one of the main priorities in the wildlife crime strategy, why does the report not present data on all types of poaching offences?
Could you draw our attention to anything that you are particularly concerned does not appear in the report?
We are talking about deer poaching and poaching on rivers. Sometimes it is easier to capture river information than information on deer.
I certainly acknowledge that poaching is a serious matter. There are some stakeholders in PAW Scotland for whom it is the principal issue of concern. It is raised regularly with us by Scottish Land & Estates, the Scottish Gamekeepers Association and the British Association for Shooting and Conservation. The British Deer Society is conscious of the level of crime, some of it unreported, that occurs throughout Scotland. We hope to improve data quality on that as we go on.
We are particularly interested in noting poaching of game birds.
We have a number of challenges on all forms of wildlife crime. Some of them relate to the area in which the crime takes place and the difficulty of finding any evidence. Indeed, people might not stumble across a dead raptor because of the distance between the offence and where the bird dies. In other cases, crimes might go unreported because of the wall of silence to which I have referred on previous occasions. In other instances, it might just be that attention has not been drawn to the crime.
Hugh Dignon wanted to come in on a point of technical detail.
The first column in table 1a in the report is headed “Offences relating to”. It lists “Deer” separately. It also has “Hunting with dogs”, which is essentially coursing. It has “Poaching and game laws”, which is offences under the Wildlife and Countryside Act 1981 in relation to wild birds. It also has “Possession of salmon or trout”, which is obviously salmon poaching, and further “Salmon and fisheries offences”.
The offences are broken down to that extent. We could be a bit more explicit about exactly what we are referring to in that column, but the different sorts of poaching offences are shown.
Good. We look forward to their presentation being such that lay people can understand it.
Why do you not report the data on penalties for wildlife crime?
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As I said in my opening remarks, we are already aware of read-across difficulties with regard to the year in which an offence might be reported, the year in which it is successfully prosecuted and the subsequent sentencing and penalties. I take your point, convener. However, although we can look at how penalty issues are reported in the report, until we crack the problem of the read-across between the committing of the offence, the prosecution and the sentencing or penalty being applied, that information might not tie in very well with the data as currently presented. It would need to be heavily caveated to ensure that people did not conclude that in a certain year there seemed to be fewer offences than there were penalties or sentences, which would look somewhat odd, even to those who study these things closely.
We need to bear that in mind to ensure that the information is intelligible, and, similarly, we need to address the very fair point that you have raised about the headings and how the charges are recorded and work out how people can read across from one table to another and understand the follow-through to a successful prosecution.
Thank you. That leads us perfectly to questions from Jim Hume about the detection of wildlife crime.
Good morning, everybody. Mark Avery from the Scottish Wildlife Trust has reported that the wildlife crimes that had been discovered were just the “tip of the iceberg”, but when we pushed Police Scotland on the matter, it did not agree and said that what had been discovered was much more than the tip of the iceberg. Of course, it did not give us an exact figure. It would be interesting to find out the minister’s view on the detection of wildlife crime. Are we detecting the vast majority of such crimes or just the tip of the iceberg?
Mr Hume raises an extremely important issue. There has been a lot of narrative about the issue both online and in person; I addressed it at last year’s wildlife conference, at which I said that we know of certain areas of Scotland that are perfect habitats for hen harriers, golden eagles and other raptor species—indeed, other wildlife—but the fact is that those species are just not there, and there is no reasonable explanation for their not being there. I want more work and analysis to be done to get a better understanding of why that is the case, but I am concerned that in certain areas of the country that provide the perfect habitat for species that we are not seeing there, something untoward might be happening. Obviously, we cannot take it for granted that that is the case; other factors or natural causes could be at play, so we need to do more work on the matter. Nevertheless, the issue is worthy of investigation.
I read Assistant Chief Constable Graham’s comments on the issue, but my gut feeling is that crimes are being committed that are not being recorded. That is not a criticism of the police or the justice authorities; the fact is that these crimes are extremely difficult to detect, and some people go to great lengths to hide the evidence of their crimes and therefore never come to court. As I have said, I believe that more crimes are being committed than are being recorded—as minister, I need to acknowledge that—but this is the best available data that we have and therefore it is what we can use to tackle this challenge. We must all be mindful of the fact that we might not be capturing every offence that is happening in Scotland at the moment and that as a result we cannot afford to be complacent, even with the relatively low numbers for poisonings and other crimes.
How can we detect more wildlife crimes? I appreciate that you will never be able to uncover every crime that is committed over the vast area of Scotland, but, as you said, there are certain areas that have not been repopulated and there is no explanation of why that is the case. Might Police Scotland and officials focus on such areas to increase crime detection rates, or do you have other tools in the box?
There are a number of aspects to the point that Mr Hume has raised. First, we can work with SNH and other conservation bodies to find out whether this is happening for natural reasons. The police and justice authorities might be aware from previous recorded instances of the possibility, at the very least, that wildlife crime is being committed and although I would not interfere in operational matters I would encourage the police to take that evidence very seriously and to use whatever tools they feel are available to them to try to identify whether a crime is being committed.
At the same time, more science and research might need to be done by SNH and other institutions to identify whether there are any natural causes or whether, for example, changes in agricultural practice or other things that might not necessarily be offences are having an impact on the prey that the birds rely on and consequently on the number of birds in that locality. That said, we have to be aware that wildlife crimes could be happening, and we have to trust that the police and other prosecuting authorities will examine any evidence that they get and, where necessary, carry out investigations to find out whether such crimes are being committed.
A scientific study by RL McMillan that was published in Scottish Birds in 2011 examined populations of golden eagles, red kites, peregrines, hen harriers, goshawks and the like and stated that more illegal persecution of these birds was happening than was being recorded. Even though that scientific evidence is not really about the detection of crime or crimes that have been uncovered, might the minister think about putting it into the report?
I have not read the report that Mr Hume refers to, but I will look at it and see how relevant it could be to the annual wildlife crime report. If the study was conducted at a fixed point in time, it might not be as helpful to us in the on-going development of our annual report and the monitoring of trends, but I will certainly see whether it contains any messages that might help us explore what other evidence we might try to capture that might be suggestive of crime, even if it is not hard evidence. It is worthy of examination, but I cannot make any promises about future annual reports, which, after all, are put together in partnership with the police, the Crown Office and other agencies. We need to look at the matter in the round and take views from everyone involved in the report’s preparation about the relevance of the information.
Hugh, do you know that particular study?
I am not sure that I have read the study that Mr Hume mentioned, but over the years a number of reports have suggested persecution as one of the factors underlying missing populations of a number of our raptor species.
On whether we can get that particular information into the annual report, it might be worth mentioning that PAW Scotland has recently established a science group, one of the purposes of which is to examine whether such scientific reports can be used to help guide police investigations or law enforcement activities. The information that comes out of that could be used in the annual report to help explain the more general position with regard to raptor persecution.
Thank you. That was useful.
On the prosecution of wildlife crime, the figures in the report show that although 1,554 wildlife crimes were recorded between 2008 and 2013 proceedings were taken in only around 19 per cent of the cases. Although that figure rose in 2012-13 to 23 per cent and although I appreciate the difficulties of detecting and pursuing certain types of wildlife crime, do you not agree that at face value those figures leave one with the impression that the authorities are not taking wildlife crime as seriously as they ought to be? I should say, though, that you take it seriously.
There is increased awareness of public concern about wildlife crime. All the partners in PAW Scotland have taken recent incidents very seriously; indeed, since I became minister, I have been aware of the support that we have had around the table for tackling such crime. That is not to say that the response to every incident is perfect. Unhelpful comments have been made in recent times, but I believe that everybody in the law enforcement community takes wildlife crime seriously.
On whether more can be done, we have issued guidance through the Lord Advocate about using investigative tools, with a sincere hope that we can give the police some support to make use of techniques that might be challenging to some of them. We recognise the great difficulty in prosecuting certain types of wildlife crime, particularly those involving raptors, where often, although we suspect that a crime has taken place, the bird may have flown away from the poisoning site and that site can never be found. Depending on the substance that has been used, or on whether the bird has been shot or injured, finding a deceased raptor can be like searching for a needle in a haystack, given that they could have covered a wide range before dying. It might always be difficult to get sufficient forensic evidence to prosecute a case.
We are stepping up our efforts through the Scottish Agricultural Science Agency with regard to the forensic evidence. SASA is developing DNA tools that can be used to identify whether a trap may have been used to trap or injure a protected bird such as a red kite or hen harrier—iconic species that we are keen to protect—even if there is no body present. We are taking steps, and the agencies are pushing forward and saying that they think they can do this.
As Mr Dignon pointed out, the PAW Scotland science group is looking at other ways of strengthening the evidential trail and making it easier to secure prosecutions. It is not just raptors. There are other wildlife crimes that may be difficult to trace. As the convener pointed out earlier, some crimes tend to be easier to detect. For example, if we catch someone poaching—it’s a fair cop, guv—it will be easier to secure a prosecution than it will be when someone has laid poisoned bait in a discreet location and has killed a bird as a consequence.
I am aware of the issue and we are trying to make the report more explicit. It has the effect that people can apply a bit of constructive pressure, shall we say, to improve performance across the sphere, not just by the agencies but in the Government. That is healthy and is what the report is there to do.
We are looking at issues related to additional measures, such as the general licence. Do you think that the restriction on general licences to control corvids will be an effective sanction? When will it be possible for an estate or licensee affected by a general licence restriction to apply for an individual licence?
Time will tell whether it has been effective. We have relatively few options available in the interventions that we can take. I have signalled to stakeholders that, if the new regime with general licence provision is not working, it is in their interests to make it work, otherwise we may have to contemplate more general options rather than the targeted approach that we are trying to take. We are trying to target the impact of the measure on those areas of land where we believe that there are issues, rather than hitting all businesses, including those that are acting fairly and delivering on their conservation obligations voluntarily.
We are trying to be proportionate by taking a targeted approach. I hope that that is being taken seriously. I know that some concern has been expressed that it might be just an administrative exercise and that it would be easy for land managers to get a licence through another route, such as an individual species licence. There is provision for SNH to issue an individual licence if someone has had their general licence withdrawn, but that is on a case-by-case basis, it will increase the hassle involved and there is no guarantee that SNH will issue the licence unless it thinks that there is good justification why the licence should be granted—perhaps to protect another species, such as curlews or wading birds that need protection from corvids destroying their eggs, or another bona fide reason.
As I said in my opening remarks, a general licence is a privilege, not a right. In the past we have trusted people on a universal basis. It is clear from the nature of wildlife crime across Scotland that there are some individual landholdings where the activities that are going on mean that we can no longer trust them to use the general licence appropriately, which is why it has been necessary to take this step.
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We know that the licences will be publicised on the SNH website. Will that be updated monthly?
We have not had the first one yet, but we will get some feedback from SNH on its proposals. I imagine that cases will be added on a live basis.
So the public can be assured that they will get fairly speedy information about that.
That is my hope. My intent is that the information would be provided as a reputational driver, as with vicarious liability. One of the most serious aspects of the vicarious liability provision is its impact on the reputation of the landholding and its owner. That reputational driver should be used.
Touching a wee bit on the previous question, I want to follow up the general principle of using proof on the balance of probabilities instead of proof beyond all reasonable doubt—in other words, the civil rather than the criminal law burden of proof. It is very difficult to get the evidence for some of these crimes, especially poisoning; it is much easier for water bailiffs at the edge of a river to catch somebody poaching. One of the questions that was raised with the Procurator Fiscal Service and the police last week was whether, given the difficulties, we can be assured that those prosecuting will always go the extra mile to push those cases. Might such difficulties discourage the police from bringing forward a report to the fiscal, or discourage the fiscal from saying that there is a case?
The agencies should always be pushing the bounds to ensure that we get these cases into court. Even if the fiscal service loses a case in court, minister, there might be sufficient evidence from a criminal case to allow you to take action under the licence provisions, given that the burden of proof would be the balance of probabilities rather than the burden of beyond all reasonable doubt required by a criminal case. Should taking such cases forward be a matter of course for the police, even if, with other kinds of crime, they might have thought that they did not have sufficient evidence? Indeed, the fiscal should also take the case to court, even if they do not think that they have enough to prove a criminal case, because that will give you ammunition in relation to licences.
I recognise the points that have been made about the challenge that we face. It is worth our stepping back and saying that, with regard to the criminal burden of proof, we are talking about the prosecution of an individual who we could prove had committed a crime. That might be possible in cases in which, say, a trap was tagged by the individual who had laid it, the trap contained DNA evidence of a protected wild bird or, indeed, a corpse and it was possible to connect the offence of using a trap to kill them. In most cases in which we find a dead poisoned bird on a landholding, we can be reasonably confident that the poisoning took place on that landholding and that the bird died on the landholding as a result of that poisoning and it is therefore possible to use the civil burden of proof to say that, in all likelihood, a crime had taken place on that landholding. However, we will not be able to pin that on an individual in order to secure a criminal conviction.
This approach gives more flexibility to SNH in circumstances in which it has been impossible to prove that a particular individual was responsible for poisoning or shooting a bird, but in which, in the eyes of the authorities, the likelihood is that a wildlife crime has been committed on that land and therefore that those responsible for managing that land are involved. There might be several different general licences on one landholding, but if we know for certain—or as best we can, to the civil standard of proof—that a crime has been committed on the landholding, the general licence provisions will kick in.
As for whether the police should take forward a prosecution against an individual if they are unsure of their ability to secure a criminal conviction in the hope that that strengthens the case for SNH, a decision on prosecution is, of course, a matter for the Crown Office and Procurator Fiscal Service in liaison with the police. An information-sharing protocol between the police and SNH will be put in place, and the police and SNH will have regular meetings. If the police are fairly confident that a crime has been committed on a particular landholding, they will share their evidence with SNH, which can then take a decision to restrict the general licence.
We must be careful to make it clear to people that the general licence applies to the landholding and not to the individual. If we are looking for a criminal conviction, we must satisfy the criminal standard of proof, which is, as you have rightly said, proof beyond reasonable doubt that the individual has committed the crime. However, the standard of proof in civil cases is still fairly rigorous and gives us options when we cannot prove which individual was involved but we are certain—at least to the civil standard of proof—that a crime has taken place.
Thank you for that helpful explanation. I agree that we have to be careful, because we do not want landholders to be unjustly penalised for something that they have not done. If something happens right in the centre of a massive landholding, it might be easier to pin down who is responsible, but if something happens in an area with lots of relatively small landholdings, that situation is more difficult. As a result, I am glad to hear what you have said.
If the police receive a complaint and investigate the matter but feel that they do not have sufficient evidence to put it to the fiscal, will they be duty bound to pass the information to SNH? Is there a protocol to ensure that cases that do not progress to the fiscal because there is not enough evidence for a criminal prosecution automatically go to SNH?
There will be an information-sharing protocol, so we hope that if the Crown Office thinks for whatever reason that a criminal conviction cannot be secured, the police will share information with SNH if they are reasonably confident, to the civil standard of proof, that a wildlife crime has been committed. SNH can then decide whether the case is strong enough to merit the removal of the general licence.
It is worth pointing out that people will have a right of appeal; indeed, that is an important part of the process, because we are talking about natural justice. It is important that people have a right of appeal to allow them to make their case and explain why they think that the removal of the general licence is unjustified. I hope that the information-sharing protocol will operate in such a way that SNH will have a fairly solid case before it contemplates removing the general licence. If SNH feels it necessary to apply a general licence restriction, I hope that it will be reasonably confident that it can withstand any appeal and secure the move.
We cannot force the police to provide information, but I am confident that they will collaborate. The police have an interest in seeing wildlife crime stamped out and have always indicated their desire for that to happen. I hope that this tool will be useful to all the justice authorities, and that it will send a signal that, when we are confident that a wildlife crime has taken place, sanctions can be applied even when a criminal conviction cannot be secured. I hope that ultimately that will help the police and make police officers’ lives easier in the long run by deterring people from committing wildlife crimes in the first place.
You will not be surprised to hear that there are several supplementary questions about this interesting area.
I was wondering about the rationale behind making it more difficult to control corvids in certain areas and whether as an unintended consequence such a move could be detrimental to other bird species. I have personal experience of trying to get black grouse numbers up, and I know that one of the main problems with that is that hooded or carrion crows take the black grouse eggs. Given that there is plenty of evidence out there that controlling corvids to a reasonable level helps all wildlife, I am interested in finding out the rationale behind restricting the control of corvids, which, as I have suggested, could have quite a detrimental effect on a few bird species.
I am also interested in whether it is the land or the individual that will be restricted and have to apply for a licence. Obviously, if a person owns a piece of land in a town and somebody else commits a crime on it, the person who owns that land will not be held liable for the crime. How will this work? Will a licence have to be sought for the land or by the individual themselves where it is deemed on the balance of probabilities that a wildlife crime has been committed?
On your first question, we are aware that corvids can have an impact on a number of bird species and, in some cases, livestock. However, I must stress that we are not saying that restrictions on a general licence will mean that a land manager will have no route for controlling species such as corvids if there is good justification for doing so. What will be removed from them is, if you like, the privilege of being trusted to control a number of species without coming under any serious scrutiny, as was the case in the past. They will have to apply for a species licence, species by species; if they want to control corvids, for example, they will have to apply and make a case for a licence to control that species. If a good case can be made on the grounds of conservation or protecting livestock, SNH will clearly take that into consideration.
Where reasonable cases and bona fide applications have been made to control a number of different species, SNH has always been supportive of those applicants. However, we are not just going to take it on trust any more that people can control a number of different species; they will have to undergo a bit more scrutiny and, to be honest, life will be made a bit more difficult for them to reflect the fact that, on a landholding, there is sufficient evidence under the civil burden of proof to believe that a wildlife crime has taken place.
To reassure Mr Hume and anyone else who is concerned about the control of corvids, I emphasise that land managers can still apply for a licence if they have a bona fide reason and if the application can be justified on the grounds of conservation or the protection of livestock. We are not going to give them a general licence as if by magic so that they can control as many species as they like under its terms; we will have to scrutinise their methods and the objectives that they are trying to achieve in controlling corvids.
As for the issue of the landholding itself and the fairness of the approach that will be taken, we face, as I have said to Mr Thompson, a challenge in using the criminal burden of proof, because we are required to identify the individual who has committed the wildlife crime. Obviously, vicarious liability will kick in for the employer of the person who commits the criminal offence. In such a situation, we need a tool that will help us to be confident enough to say that a wildlife crime has taken place but we cannot pin it on any individual, and we need to be able to reflect the fact that in a general area of land we cannot prove which individual might have committed an offence under their own general licence. Unfortunately for those who are innocent, that means having to place a restriction on the landholding. However, as I have said, licences for controlling individual species can be applied for, so this measure does not constitute an absolute stop on controlling corvids or other bird species if there are genuine grounds for that. Additional scrutiny is needed where we can no longer trust those operating on the landholding to control species legitimately.
Good grief. I am sure that what you have just said will concern a lot of people out there. Just for clarification, am I correct in thinking that you are talking only about licensing to control corvids where it is believed that, on the balance of probabilities, a wildlife crime has been committed?
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We are talking about the privilege of having a general licence, which effectively allows a landholding to control a number of different species without any real scrutiny of the purpose of such control or the techniques that are used.
In truth, I suppose that the approach is similar to other forms of regulation in which we have tried to take a proportionate approach. In this case, we think that, where we have reason to believe that a wildlife crime has been committed on a landholding, it is entirely fair that we remove the privilege that people had in the past of being trusted with very light-touch regulation and that we put in place slightly more rigorous regulation to be confident that the techniques that are deployed are used properly and in accordance with the law and that non-target species are not being captured in traps and with other techniques. Such an approach is entirely proportionate and reasonable.
For those who, as Mr Hume suggests, might be concerned, we have an appeals process. If people can come forward with good evidence that they were not responsible for what happened, I am sure that SNH will look at it. The appeals process is there for a reason. We will not automatically assume that, because evidence comes forward and it is proposed that the general licence be withdrawn, the landholding should be deemed guilty of an offence. It will be given a chance to contradict that evidence if it can do so. A different decision might be taken, and the proposal to remove the general licence might be withdrawn.
Checks and balances will be in place. We are conscious of the need to be proportionate and fair to people in these situations, but if after all that the conclusion is still that, in all likelihood, a wildlife crime has taken place, I do not think it unreasonable to make life a little bit more challenging for people and to apply a bit more scrutiny to what they do.
I appreciate what you have said, but, just for absolute clarity, are you saying that you are not talking about the removal of a general licence to control corvids in areas where there is no evidence at all of any wildlife crime and that you are talking only about areas where there is a balance of probability issue?
Indeed.
I just wanted to get that absolutely clear.
We are talking about landholdings on which it is believed that a crime has been committed rather than every single landholding of a particular individual, if that is the point that you are trying to make.
I just wanted that to be clear on the record, just in case there were any concerns otherwise.
In a way, I am sorry to prolong this discussion, but this is quite an important issue. I must admit that I have concerns about the ability to introduce fairly punitive measures without an incontrovertible burden of proof having been established, but I hear what the minister has said and I am willing to go with it as far as it goes for the time being.
However, I am slightly concerned by one aspect. I do not think that anyone will argue with the point that every wildlife crime incident brings with it an almost increasing atmosphere of accusation and speculation on both sides. For example, there is evidence in the Ross-shire incident of all sorts of speculative accusations having been made, and I am sure that the minister will agree that such an atmosphere does nothing to lessen the tensions between non-governmental organisations, charitable organisations and land management organisations and representatives.
I am beginning to think that the proposed measure will do very little to reduce that tension and speculation, and that does not do the argument any favours at all. Indeed, I think that the measure is likely to exacerbate such activity, particularly in social media, which, of course, now play a large part in such matters. What are the minister’s thoughts on that?
I certainly share Mr Fergusson’s concern about the need for cool heads when such things happen. I completely understand the concerns that are expressed when any such incident occurs, but, as we have seen, random theories about what has happened are not helpful to police investigations. As the minister, I have to be very careful not to comment on what I know and what I have received from the police about a case, as that could prejudice the investigation. Everybody has a responsibility to behave sensibly. I do not deny that people will be angry—indeed, I have been very angry when I have seen incidents in which we have been very confident that a crime has been committed—but they need to hold back and wait for the investigation to come up with the evidence.
I acknowledge the member’s question whether the measures on general licences might exacerbate an already tense situation, but I hope that they might do the opposite. Much of the frustration with wildlife crime arises because of the difficulty of proving definitively that an individual has committed a crime and the feeling that there is no sanction or that people are beyond the reach of the law in some cases. Having a new tool in the armoury for tackling wildlife crime might give people some confidence that, even if a criminal conviction of an individual is not possible, there is at least some sanction in place to make it less likely that such a crime will occur again, given the increased scrutiny that will come with the removal of a general licence and the requirement to demonstrate clearly that there is a conservation purpose or a need to protect livestock behind the use of a species-specific licence.
I hope that that will generate a slightly more constructive atmosphere, and that people will think that there is a route for remedying the situation if a crime is suspected in a particular locality. They will then trust the police to conduct an investigation if they are confident that a crime has taken place, even though they might be unable to secure a criminal conviction. Through the information protocol, details of the case will be supplied to SNH, and if that organisation is similarly convinced, it can remove the general licence. Something will at least be in place that might help to address the challenge. As I said in my opening remarks, Professor Poustie is considering environmental penalties, but one of the key considerations is whether they are a sufficient deterrent.
I hope that these measures will be applied very rarely. If people realise that having to go through additional hoops to get a species-specific licence will be a serious bugbear, that might work as a deterrent and encourage them not to commit the crime in the first place. I certainly hope so—and I hope that we will not have to wade through reams of general licence restrictions posted on the website. However, if that is what is needed, so be it.
I absolutely understand what the minister has said, and I share his hopes for the outcome, but I think that there is potential for the measure to increase the amount of unfounded speculative accusations, particularly in social media, which could be prompted by a desire for action to be taken against a particular organisation or individual even when the burden of proof does not, in fact, exist. However, I hope that I am wrong about that and that the minister is proved right.
I want to reassure Mr Fergusson on one point: I take very seriously the need for a proper evidential trail. I do not think that there will be trial by social media of any individual, and I entirely trust the police and SNH to consider the evidence very sincerely. If they do not feel that the case is strong enough to pursue, they will not pursue it. If, however, they feel that the case is strong, I very much hope that they pursue it as a means of trying to stamp out such activity. Believe me, I am no advocate of trial by social media. Politicians need to tread very carefully in that regard.
Will the statistics in future reports offer a read-across? When a recorded crime or multiple recorded crimes result in the revocation of a general licence, will we be able to get a more accurate picture of clear-up rates, for want of a better expression?
That is an entirely reasonable question. We will think about how we can work that into our report, and we will come back to the committee on how we can reflect evidence from cases that are pursued for a general licence restriction. It will be the first time that such an issue will have been reported in the annual report, and it is a matter of working it into the statistics to provide the kind of read-across that the member has requested.
Drawing this part of the discussion to a close, I think that we must ensure that we do not have speculation about particular crimes. Nevertheless, the statistics that led to the creation by the authorities and the Government of what became the Wildlife and Natural Environment (Scotland) Act 2011 indicated that there had been—to put it mildly—several dozen convictions for such crimes over the previous 15 to 20 years. It is not that there is speculation about the fact that these things have happened—they have. We do not map them every year but, when we look at trends, those facts should not be forgotten.
I will make one brief point, which is that I do not go into these measures lightly. When I first became Minister for Environment and Climate Change, I listened to those voices that said that such crimes were on a downward trend and that we did not have to worry. Unfortunately, since the middle of last year—or slightly longer ago than that—there has been evidence that these offences are increasing again. I take some heart from those progressive voices in the land management sector that are trying very hard to win over people in the wider population, but, unfortunately, there are those who will not listen to those voices and will continue to commit wildlife crime. We have to be realistic about that.
As I have said, instead of having measures that affect both the innocent and the guilty equally, we have tried to target measures that will have an impact on those who are committing crimes and practices that are unacceptable in the 21st century. Although I hope that we do not have to go beyond that, we might have to contemplate that possibility in future.
Good morning, minister. You mentioned a review of wildlife crime penalties to establish whether the act is a sufficient deterrent, and you mentioned previously that Professor Mark Poustie was to lead that review of wildlife crime and that the review is due to report in December. The annual report states:
“A group has been set up to conduct the review of wildlife crime penalties, and expects to report back in late 2014 and Police Scotland will use the appropriate investigative tools at their disposal to investigate crime scenes.”
Last week, Detective Chief Superintendent Robbie Allan told the committee that the group reviewing wildlife crime penalties would hold its first meeting in November 2014. Is there a reason why it has taken so long for the review group to begin work? Will the review still be completed by December, as you told Parliament it would in May this year?
I believe that Mr MacDonald may have uncovered an error. There have been four or five meetings of the group, so we will have to look closely at that point. I apologise for any misleading information.
It is true to say that the report time has slipped somewhat—we believe that the group will report early in the new year rather than in December—but Professor Poustie is working well on delivering that report. I am confident that we will get a report relatively soon, although publication may slip slightly, into the new year.
It is also worth stating—in relation to the commitment that I gave in the chamber to Claire Baker in the recent wildlife crime debate—that we have asked Professor Poustie to undertake a desk review of regimes in the management of shooting and sporting activity, to which he has agreed. However, that will be done after he completes the report on the penalties review because it is obviously the immediate priority.
So, just for clarification, the review has been under way for some time and the first meeting was not in November.
Indeed. Mr Dignon or Karen Hunter will clarify when the first meeting took place, because I am not conscious of the specific dates.
I am slightly embarrassed. I sit on the review committee but I cannot remember when the first meeting was. It was certainly several months ago—probably in the summer.
I think that it was in June.
It was possibly in June. We can confirm that in writing.
We can send the committee details of when the meetings were held to give you a more complete picture. I apologise for that error.
That is certainly more encouraging than the information that we received last week. Thank you.
You commented at the outset about an imminent announcement on a pesticides disposal scheme, so I accept that you may not wish to give too much detail on that to the committee today. However, for how long might such an amnesty run? More important, would the penalties for possession of things such as carbofuran be part of Professor Poustie’s review? It strikes me that if you offer an amnesty, the penalties that are in place thereafter should be severe.
11:00
I note Mr Dey’s comments and have some sympathy with his point, which is that when people are given an opportunity to remove such pesticides from circulation, the justice authorities should note it when they do not take the opportunity to remove them.
Just to be clear, we expect to be announcing details of the scheme very shortly. The scheme will not be an amnesty as such—it is important to make that distinction—but it will allow the control and safe disposal of defined substances that are listed in the schedule to the Possession of Pesticides (Scotland) Order 2005. For the record, they are aldicarb, alphachloralose, aluminium phosphide, bendiocarb, carbofuran—the main vehicle by which birds are poisoned, unfortunately—mevinphos, sodium cyanide and strychnine. It is an offence to possess those substances, which are the most commonly used substances in poisoning offences.
It is worth saying that the proposed package has two principal aims. We will give more detail in due course. The first is to get highly dangerous toxic substances out of the environment. Everyone, including the justice authorities, recognises that that is a very important objective. The second objective is to remove any possibility of someone claiming in the future that they have such poisons because they had not had an opportunity to get rid of them. As I said, I sympathise with Mr Dey’s point. Work is being done in partnership with people in the land-management sector and those who have sporting interests in order to ensure that that opportunity is communicated as widely as possible. If that opportunity is not taken up, we will read into that that there might be a desire to avoid giving up those substances, although that might not definitively be the case. I hope that the authorities will investigate that aspect, if it comes to it.
Will significant penalties be put in place for people who are found guilty?
I cannot say at this moment in time; that is clearly a matter for me and for the Crown Office and the Lord Advocate. We will have to wait to see whether Professor Poustie believes that existing penalties are sufficiently rigorous. I will be happy to come back to the committee, after the forthcoming announcement, with more detail, if we feel that we can tie in with the views of the Lord Advocate and the Crown Office on that issue.
I just want to say briefly that I believe that the work that is being done by the minister and by a range of partners has really focused minds on what you have described as a stain on Scotland’s reputation. I am positive that the work is moving forward.
I turn to the specific question of the use of video evidence. As we know, detection of crime in remote and rural areas is extremely difficult. Last week, we received evidence about the range of investigative tools; Assistant Chief Constable Malcolm Graham explained the position on video evidence. I do not want to go into a great deal of detail about it because it was explained last week and I am sure that you know it well.
However, there is a concern that use of video evidence requires authorisation from senior police officers and must be done in accordance with human rights legislation, as is absolutely right. On other organisations or members of the public taking video evidence, the COPFS explained that Scots law can admit evidence that has been obtained irregularly, and that there is no problem if a farmer takes a film on his or her own land on a mobile phone, but it becomes more complicated if the person taking the video is not on their own land. In view of the remoteness and inaccessibility of some places where wildlife crimes take place, could you comment on that? I have a brief supplementary to ask, which will depend on your answer. I do not want to pre-empt you. It will be on a slightly different tack.
I thank Claudia Beamish for her remarks about the work that is being done. I am sure that they will be appreciated by everyone who is working on the issues.
I agree that one of the biggest challenges that we face is the remoteness and rurality of the places where the larger part of wildlife offences are being committed. We must recognise that police resources are stretched—as they always have been, in policing rural areas—because of geography, so it is difficult to have in place an officer to provide eye-witness evidence of a crime bring committed.
It was significant that the Lord Advocate gave guidance to the police—I think that this may be a direct quotation—to use “all investigate tools”, which includes use of video surveillance evidence. I am aware of the concerns that Assistant Chief Constable Malcolm Graham raised last week about ensuring that such evidence complies with the Regulation of Investigatory Powers (Scotland) Act 2000, and in particular with the human rights aspects of the legislation. Claudia Beamish’s example of a farmer willingly having cameras on his land would clearly not foul of that.
We should recognise that many land managers are very sympathetic to conservation issues and may be concerned to protect a bird’s nest from egg theft or from disturbance and be quite willing to collaborate, on that basis. Also, some land managers—not many, I should be careful to say—may be resistant to having any surveillance on their land, which would place the police in a difficult position. However, if the police have evidence that a crime is being committed, that strengthens their argument when seeking permission to use video surveillance evidence. I hope that they would have political support across Parliament for that. It is difficult for any minister—especially for me, because I would not want to be seen to be interfering in policing operational issues—but I have tried to make clear the concern that it is difficult to prosecute wildlife crime and that we need every available resource to be used to catch the people who are committing the crimes.
We are not asking for indiscriminate use of video surveillance; we want it to be used appropriately and in proportion to situations—for example, where there is good cause to believe, perhaps based on past performance, that a land manager or their staff are committing wildlife crimes.
In one case, the admissibility of third-party video surveillance evidence is being looked at. I do not want to prejudice the outcome of that case, but we will be looking at what comes out of the judgment in relation to admissibility. The legislative framework in England is slightly different; we must look at the case in the context of the laws that apply in Scotland. However, we are taking a lot of interest in the issue for reasons, such as have been cited by Claudia Beamish.
The difficulty in securing convictions ties in with Graeme Dey’s point about the perception of the inability to secure a prosecution. We are concerned about that; I am sure that the police and the Crown Office and Procurator Fiscal Service also share that concern and want to be seen to be getting results.
Is there the opportunity through PAW Scotland, for example, to increase public awareness of what people can and cannot do? Perhaps that work is going on already. People do not necessarily know what the options are.
Are you suggesting that we should clarify the investigative options?
Yes. If a member of the public is aware that something is going on, what would they be able to do and how would they go about reporting it? I am not asking for detail at this point, but how is that awareness being raised in rural Scotland?
Thank you for the clarification. That is an important point. We have tried to do that through PAW Scotland. We have an excellent media adviser in Louise Batchelor, who has influenced the media as chair of the PAW Scotland media sub-group. The group has looked at various approaches.
On communications through the media, we try to emphasise technological breakthroughs, such as the roll out of DNA evidence. I mentioned that SASA has the techniques to prove that a trap has been used to capture a protected species—for example, a hen harrier or a red kite. Over time, we would hope that the DNA profile expands to include other species.
PAW Scotland has a mobile phone app that gives guidance to people on what evidence to collect. That is a helpful way to inform the public—this is important—not to disturb evidence when they find it, because that can contaminate a site and make it more difficult to secure a prosecution.
I take the point that, without giving away too much detail to potential criminals, we can perhaps make more explicit the kind of tools that can be used in order that we make them aware that they could be on “Candid Camera” at some point. That in itself might have a deterrent effect.
We move on to wildlife incidents that have occurred this year.
Alex Fergusson has helpfully already mentioned the incident on the Black Isle with the red kites and buzzards, and you mentioned it briefly, minister.
I am pleased to assist.
You are always helpful, Alex.
You will be well aware, minister, of the press release that the police put out on 24 October, which caused a bit of a stir and more speculation than was intended. When we talked to the police last week, they made it clear that they had chosen their words carefully and had said that the birds
“were most likely not targeted deliberately but instead were the victims of pest control measures.”
You also stated earlier that you are concerned and angry about the rumours. With such a situation, lots of rumours fly around and some of them are not so helpful. Will you, as far as you can, comment in a bit more detail on where the police investigation is? In particular, will you comment on the statement that 16 of the birds—there were 22 altogether; we do not yet know what happened to the other six—were killed by an illegal poison?
Unfortunately, I am in a difficult position. It always feels awkward when I am asked such questions because the natural desire is to answer them as helpfully as possible, but because there is still a live criminal investigation, I cannot comment on the method or the assumptions that the police have made about what happened in that instance, because it might add to the speculation about the cause.
We have to trust the police to release information as and when they feel able to do so. They continue to review the case and I am sure that they will give more detail when they feel able to do so. However, as Dave Thompson mentioned, the police have already indicated that a high proportion of the birds that were found had been poisoned. As far as I am aware, a criminal investigation is still under way. I ask the committee to reflect on both those facts and not to read too much into the press release that was issued on 24 October, to which Mr Thompson referred.
It was a particularly difficult and upsetting incident. I have met Andrea Goddard and the others who lodged a petition expressing their concern about the issue and their desire for more to be done to tackle wildlife crime. I have no doubt about the strength of feeling about the offence in the Black Isle and the wider Highland community. I welcome the fact that all the stakeholders in the area came together to offer an award. I commend RSPB Scotland for starting that process and others for augmenting it. I still hope that, if there is a criminal prosecution, it will be helpful in yielding evidence of what happened.
I am afraid that I cannot really go beyond that. I hope that the committee understands why.
11:15
I understand what you say. The birds are dear to my heart. I helped to open the Tollie feeding point a couple of years ago, so I would have helped to feed some of the red kites and other birds. It is sad to see them being poisoned as they were.
Rumours can cause all sorts of difficulties for local landowners and others, so I have a lot of sympathy with them. One aspect of the investigation that strikes me as interesting is the time that it took the police to get warrants to go and look for poisons. It took a couple of weeks or more and they went to specific farms that everyone will be aware of, which can further stir the rumours. Are you planning to carry out an investigation of any kind once the case is wrapped up? Will you, at some time in the future, look in detail at how the police operated and how the investigation was carried out? I feel that we could learn a number of lessons from that case, and I dare say that you will be getting a report from the police in due course, irrespective of whether they bring a prosecution.
Finally, were you consulted about the wording of the press release from Police Scotland before it went out?
On the latter question, I believe that we did not have an awful lot of notice of the press release going out, so I certainly did not have any input to it. My Scottish Government colleagues are shaking their heads, so I do not think that our team had any input to the press release in that instance. We are trying to work closely with the police on all media and communications relating to wildlife crimes. It can be difficult, because an offence might be discovered in what would have been described in the past as a local divisional area and communication might be put out to local media about the incident. Without being centralist, we are trying, in partnership with the police, to get a degree of consistency in how such incidents are reported. I know that they recognise that and want to improve the process. On that occasion, unfortunately, we did not have any input.
On the investigation itself, we obviously do not interfere in operational matters, but I am aware that the police will have made a decision as to what kind of warrant they needed or whether they needed a warrant at all. If the police had any reason to believe that evidence was being tampered with or moved, they could have gone in without a warrant to investigate straight away. However, I am not a lawyer, and I should state that for the record. I shall leave it to the justice authorities to say whether or not it is appropriate, but clearly they felt that they needed a warrant to go in.
The question whether we can ask for a review of the case would perhaps best be addressed to the Lord Advocate and the Cabinet Secretary for Justice. It is something that they might want to contemplate. I do not have portfolio responsibility for policing, but we have on-going engagement with the police through PAW Scotland and we have a good relationship with them, so we can ask for their perspective on whether there is anything that they feel, in retrospect, they might have done differently.
I should add for the sake of clarity that Police Scotland did discuss with us the fact that they were going to release that press release and the broad terms of what would be in it, but we did not see any of the detail or have sight of the release. I just want to be clear about the exact process.
I have a couple of follow-up points. Concerns were raised about the case by people who had their properties searched, including members of the NFU Scotland. When I asked the police last week about who the partners in PAW Scotland are, they said that the NFUS is not a partner. However, I notice from studying the list of that Scottish Land & Estates is a partner. I have had some constituents from the NFUS’s organisation in the Highlands asking whether the NFUS ought to be a member of PAW Scotland so that its can be involved in that discussion.
On that point, I certainly acknowledge that we need to have as broad a partnership as we can get, and have as much concerted action as possible
I welcome the NFUS’s strong condemnation of the incident in Ross-shire at the time, which was helpful.
I understand that discussions are taking place about the NFUS’s involvement in PAW Scotland. We can come back to the committee once we have more detail about what it wants to do in that regard. We cannot force the NFUS to be involved if it does not want to be, but it is obviously encouraging to hear that colleagues in the Highlands are at least keen to be involved and consulted on measures.
Furthermore, would it not be a good idea for PAW Scotland to hold one of its meetings in Ross-shire rather than in a central place such as Livingston?
To be fair to the members of PAW Scotland, usually they are trying to make it easier for me by meeting in Edinburgh, so I am probably the guilty party there. However, I take the point and there may be a case for having a meeting in rural Scotland, where most of the offences occur. That might send an important message.
There are quite a few people who would like to claim a meeting, this being the most high-profile event of the year. That prompts me to suggest that people would be reassured if they saw meetings happening in other parts of the country. The minister is always welcome in our part of the world.
I am reminded by Hugh Dignon that we have already discussed having a meeting within the boundary of the Cairngorms national park. I can see Mr Dey looking very interested in that idea. We are interested in the relationship between the national park and wildlife crimes being committed there. We can provide the committee with details of the timing of that meeting.
Good. It is nice to tour the country.
Last week, I asked Detective Chief Superintendent Allan whether there was a map of where red kite carcases were found, given that large numbers of deaths have occurred in that area. He said that a PAW Scotland raptor subgroup was conducting an on-going exercise to map the various carcases but that the police do not chart or map every carcase.
In the case of a crime such as this, in which 16 red kites were poisoned, it would help the public if they knew that the police were creating that kind of map. As I said, in the past, there have been quite a few deaths in a similar area, and it would be useful to see where the carcases were found.
I recognise your point. PAW Scotland recognises the importance of mapping and, as you have indicated, it has been doing good work in the development of mapping.
The police have records of recorded crimes involving all raptors. They hold data on incidents concerning dead or missing raptors in which they suspect that foul play was involved, and the RSPB has published a paper on the effects of crime on the red kites in the Black Isle relative to the effects on the equivalent population down south.
However, it is fair to say that not in every case do we find the carcase of a raptor. As I say, we recently and very tragically lost a sea eagle. I am not aware that we have found any physical evidence of the death of that bird, so what happened to it will remain a mystery. That means that it is difficult to map exactly what happened and where. However, in so far as we have definitive evidence of where birds are found, I believe that the police would be constructive in helping to provide information for mapping purposes.
It may well be that the explanation for not being able to map all incidents involves, for example, a member of the public handing in a carcase but being unable to say exactly where they found it, or the bird having disappeared. Again, I remind the committee and members of the public of the PAW Scotland app, which features a little tool that helps you to physically map where you are taking a picture of the carcase, which will help the police to find the carcase. We encourage people not to move any carcase that they may find. People might not be accurate about where they found the bird, or they could end up moving it from one landholding to another.
Furthermore, we should emphasise that it could be poisonous to people if they handle the bird.
Absolutely. That is a very important point.
Dave Thompson has a further question regarding the collection of evidence.
I am keen to ask the minister about the powers of the Scottish Society for the Prevention of Cruelty to Animals in particular. When we were discussing the matter with the police and the Procurator Fiscal Service last week, a number of interesting things arose. I was drawing a comparison with the powers of water bailiffs, who are essentially appointed by the private sector through the salmon fishery boards and so on. They have extremely wide powers, although the police said that they hardly ever use water bailiffs these days, because the police tend to become involved at an early stage. Nevertheless, water bailiffs have powers of arrest, seizure and all sorts of other things.
Local authorities also have powers under the Animal Health and Welfare (Scotland) Act 2006 in relation to animal disease, movements of animals and all sorts of other things. A number of local authorities appoint specialist animal health officers.
The wild fisheries review briefly touches on the water bailiff issue. It mentions
“The potential to integrate the bailiffing system more effectively with Police Scotland and other wildlife crime functions”.
The Procurator Fiscal Service said that it deals with animal welfare issues as well as with broader wildlife crime and so on. It strikes me that there are a number of different enforcement bodies and others involved, so I wonder whether it might be useful for the Government to consider consolidating some of that work. Is it necessary for local authorities to enforce animal health and welfare legislation, or should that go to the specialist police unit that is already dealing with wildlife crime and so on? Is it still necessary for 32 local authorities all to be doing their own thing at different levels? I suspect that that point ties in fairly neatly with the whole animal welfare issue.
I am sorry that I am giving you an awful lot of questions here, but that brings us to the possibility of the SSPCA being authorised to carry out greater functions than it currently has powers for.
The wild fisheries review made a recommendation which, as with other recommendations, we will take under advisement before returning with a proposal in due course. The review recommended that a central national unit be deployed to co-ordinate the issuing of warrants for water bailiffs, and indeed noted
“The potential to integrate the bailiffing system more effectively with Police Scotland and other wildlife crime functions”.
We will consider that and come back to the committee and other stakeholders in due course with our views on the matter. I take note of Mr Thompson’s point about consolidation and the potential opportunity to develop a greater degree of standardisation and possibly consistency in how such things are done.
In relation to the SSPCA, there are certainly some interesting parallels. I know that parallels have been drawn between water bailiffs and the SSPCA in this respect. I emphasise a point that was picked up earlier, in discussion with Mr Dey and with the convener, which is that, generally speaking, we have a better record for prosecuting offences against salmon and other poaching offences than we do for other aspects of wildlife crime. That might be connected to the fact that we have more eyes and ears on the ground—or on the water, in the case of salmon—looking for people committing offences.
Aside from the fact that a commitment was given when the WANE bill was going through Parliament to undertake a consultation on extra powers for the SSPCA, one of the purposes behind that consultation relates to the reasons that Claudia Beamish was referring to earlier regarding the need to use all the investigative tools that we have. There are very few eyes and ears on the ground and, despite the best efforts of the police, it will always be difficult to catch criminals in the act. It is therefore of interest of us to take soundings from people on the potential, at least, for the SSPCA’s powers to be extended.
11:30Already, on the completion of appropriate training, SSPCA inspectors can, without a warrant,
“enter non-domestic premises, for the purpose of taking possession of a suffering animal or destroying an animal, if the inspector believes immediate entry is appropriate in the interests of the animal”.
They can also
“enter non-domestic premises, to search for and seize any evidence (including animals) as evidence in relation to a ‘relevant offence’, if they believe that any delay caused by seeking a warrant would frustrate the purpose of that search”,
which perhaps goes back to the earlier point about other incidents that we are aware of. In addition, SSPCA inspectors can, without a warrant,
“enter and inspect any non-domestic premises, for the purpose of ascertaining whether or not an offence under Part 2 of the 2006 Act has been committed.”
With a warrant, they can
“enter any premises, for the purpose of taking possession of a suffering animal or destroying an animal (where appropriate)”
and
“enter any premises, to search for and seize any animal or other thing as evidence in relation to a ‘relevant offence’ under Part 2 of the 2006 Act.”
SSPCA inspectors already have substantial powers in relation to animal welfare issues. The consultation is looking at whether those powers should be extended to incidents such as a trap being found illegally laid although no animal has yet been caught in it and, therefore, no suffering has been experienced, or other circumstances in which there reason to believe that a wildlife crime is being committed. The potential powers that SSPCA officers might receive have been quite well defined in the consultation, but we will look through the analysis of the evidence that has been submitted. We have already published the responses to the consultation, and I hope that I will have an analysis of those responses early next year at the latest. We will then come back to the Parliament with our views on the proposals.
I am not sure that I have answered every question that Dave Thompson asked me.
That is a pretty good effort, minister.
I have one wee follow-up question. The wild fisheries review has highlighted the need for water bailiffs to be accountable, but we should maybe, as you say, take a broader look at the legislation in the area. One of the big issues about giving further powers to the SSPCA officers is the issue of accountability. How would you hold them to account?
That is a good point. We would have to take that issue into consideration in considering any extension of powers. The point that I was making is that SSPCA officers already have quite extensive powers in relation to animal welfare and are, I presume, felt to be accountable for what they do in relation to animal welfare issues. I hope that, if we decide to proceed with additional powers for the SSPCA, accountability can be demonstrated. Appropriate training would be given to the SSPCA officers in advance of their having an extended role of this kind.
The water bailiffs work closely with local police—wildlife crime officers, in particular—and the local procurator fiscal as part of their duties, so there is already a good example in the water bailiffs working closely with the justice authorities. I will have to consider in depth the concerns that have been expressed by the police and other consultees as well as the submissions from those who are in favour of the proposal before I come back with a considered view about what to do.
We must move on. Angus MacDonald has a supplementary question.
It follows on from Dave Thompson’s question about the SSPCA. As you have mentioned, minister, Police Scotland is not convinced that the SSPCA should have extra powers—that was mentioned in evidence last week. Dave Thompson rightly raises the issue of the need for checks should extra powers be given, to ensure that those powers are not abused. I urge you, should you decide to go down that route, to take into account the concerns that SSPCA officers could overstep the mark.
I whole-heartedly agree that we have to give people confidence in any change. For the record, I have not yet made up my mind about whether we go ahead with additional powers for the SSPCA. I am waiting for the analysis report to give me the basis on which to make a decision. I absolutely agree with Mr MacDonald that, if we do give the SSPCA additional powers, we have to give confidence to the widest possible population that the measure is proportionate and that the SSPCA is accountable for its actions and staff. I am sure that it will be keen to make sure that everything is above board and that it does not suffer any reputational damage from taking on such additional powers. I hope that we can make positive proposals on that if needed.
In the Government debate on wildlife crime back in May, you said that the Government is committed to taking further action if you judge it to be necessary, and in your opening remarks today, you said that the Government is determined to eliminate wildlife crime. At what point will you consider taking further measures to tackle wildlife crime? Are you actively considering any measures?
That is an important point. We have had the announcement of a number of measures such as the general licence provision, which we have debated today. That is probably the key measure. Professor Poustie’s review of penalties will, in due course, be equally important. If Professor Poustie determines that a case can be made for extending penalties and making them more of a deterrent, we will give that serious consideration.
Viewing that package in the round, we will need to give some time to seeing whether those measures would have an impact. The formal announcement of the general licence provision was made on 6 October, although it is backdated to 1 January to cover any offence that has been committed since then. SNH can consider a case for removing a general licence in such a case. I will take advice from the committee, but I hope that we will have some time to see whether those measures are effective, along with any additional measures that Professor Poustie recommends.
I have today reiterated my commitment to Claire Baker that we will undertake a desk review of regimes elsewhere, so we are at least doing the preparatory work in the background to ensure that we know what other options are available to us. I have tried to be fair and honest with all stakeholders by telling them that they need to help us to make this work or we might have to contemplate doing things that would be unfortunate for those good land managers and estates that are doing the right sort of things and would catch them in the extra bureaucracy that is associated with an additional licensing scheme. However, if that is necessary for us to crack down on those who continue to ignore the law, we might need to take that route. We do not, however, have a definitive timescale for that.
You have anticipated my supplementary question on an update of the review on the game bird licensing.
I just reiterate that Professor Poustie has agreed to do that and we hope that that will start as soon as possible after the review of penalties is concluded early in the new year. We will keep the committee advised about the timing of that, if it would be helpful.
I want to pick up on the specific issue of gun licences. Many folk make the point that those who depend on having a gun to do their job—and they are many—would be seriously disadvantaged if their gun licence was taken away because of inappropriate activity. The question has been asked before and the answer has been given that the subject is reserved and that gun licensing is largely related to safety in the context of assaults on humans—in other words, the preservation of life—and the gun licensing criteria do not really have anything to do with wildlife crime. Do you have anything to say on that subject? Is it something that we ought to change?
It is an interesting point but not one that I have considered in any depth. I appreciate the point about the legal responsibilities and powers in relation to firearms offences. Some of the provisions that we have talked about today have come about because it is difficult to prove that an individual is responsible for a wildlife crime, and if an individual was convicted of a wildlife crime, that would be tied to that individual and it might be a matter that the authorities were able to take into account.
With your permission, convener, I invite Hugh Dignon to comment on the legal position, because I know that he has a lot of experience in this area and might be able to comment on what would be possible under current legislation.
As members of the committee probably know, decisions on firearms licensing are ultimately for the chief constable of Police Scotland. We are aware that firearms licences are removed in certain cases and that they have been removed where wildlife crimes have been committed, so that approach is already in play to some extent.
In PAW Scotland, we are interested in examining further in exactly what circumstances wildlife crime offences are taken into account and what procedure is in place for that when looking at a firearms application or a renewal application or deciding whether to remove a firearms licence. As part of that work, the PAW Scotland legislation and regulation group has written to the chief constable and asked him whether he would explain to us how that system currently operates. We are not under any illusion that we can interfere in that process, which is strictly and rightly a matter for the chief constable, but we are keen to know how it operates and to be reassured that it is working to the best possible effect in helping to deter wildlife crime.
For the moment, I am encouraged that that is being looked at, but it is clear that we might want to come back to the issue.
I want to pick up on a completely different issue, which relates to the reporting of crime in the wildlife crime report. Would it be possible to bring together the statistics for inchoate crimes—that is, the ones in which an illegal trap has been found but no bird has been damaged as a result of it, for example, or in which an inappropriate poisoned bait has been found and it feels as though there has been a crime, but the bait did not work and no damage has yet been done? I have not seen any evidence that such crimes are reported. Are they reportable? Does the data even exist? Should they be reported?
I believe that such offences should be captured, but we can come back with clarity on exactly how they are recorded. Perhaps that ties in with the earlier point about clarity that the convener made. Obviously, the report is an evolving document. Perhaps we can try to improve the clarity of the footnoting, for example, where that is appropriate, to make it clear where such numbers are relevant.
I entirely take the point, which ties in with the point about the SSPCA’s powers, that where there is sight of an illegal trap but no obvious victim of it, that eliminates its ability to intervene. I hope that, if such a trap were seen, it would be reported to the police, but obviously that evidence might be removed in the intervening period, and the chance for a prosecution might be missed.
I take the point, and we can obviously come back to the committee on how we can best reflect that in the report. If that is not obvious and clearly explicit to members of the committee, we need to work harder on making it explicit.
Thank you.
I would like to pick up on the issue of vicarious liability. Last week, Patrick Hughes of the Crown Office and Procurator Fiscal Service commented:
“My impression is that the provision is effective, certainly at present.”—[Official Report, Rural Affairs, Climate Change and Environment Committee, 29 October 2014; c 36.]
I was encouraged by that. Do you have any other view on how vicarious liability is going?
Obviously, we will know—relatively soon, I hope—how the justice system has received the first case and whether the vicarious liability provision is robust and able to withstand the scrutiny of someone who is a very good defence lawyer, from what I can gather. We will know in due course whether it is robust.
I take Mr Hughes’s point. It is certainly reported to me that the threat of a reputational impact has resulted in many landowners ensuring that their staff are appropriately trained to know what their legal responsibilities are, but it is clear that wildlife crime is still being committed. Therefore, the approach has not been entirely successful in deterring serious offences.
Perhaps we have to wait and see whether a conviction can be secured and then perhaps those who are sitting on the fence on the issue will finally judge that it is worthy of note that they are at risk of being prosecuted under that provision. I have to hope that landowners are not encouraging their staff to carry out such activity or are even being permissive of it, and that they are genuinely taking all possible steps to encourage their staff to behave and obey the law. However, it is clear that we need to see a successful prosecution before the threat is real for people.
Thank you, minister. There is great public interest in what is happening, and the 2013 report is very helpful for us to focus that. We have given the report a good deal of time. We think that that has been necessary, and we look forward to learning in the next annual report exactly how much progress is being made to solve these crimes and report them in a fashion that the public can easily understand. We thank you very much for the detailed answers that you and your officials have given us.
Thank you, convener. I thank the committee for its clear interest in the issue. Having your thoughts on how we should proceed is very helpful to me.
There will be a letter in the post.
We will have a five-minute break. We must be quick, because we have a large session to follow.
11:45 Meeting suspended.
11:52 On resuming—
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