Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, March 12, 2019

Official Report 645KB pdf

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Wildlife Crime Annual Report 2017

Under agenda item 2, we will take evidence on the Scottish Government’s “Wildlife Crime in Scotland: 2017 Annual Report”. I am delighted to welcome our guests: Detective Chief Superintendent David McLaren, specialist crime division, Police Scotland; Sara Shaw, head of wildlife and environmental crime unit, Crown Office and Procurator Fiscal Service; David Green, deputy head of specialist casework and head of the Scottish fatalities investigation unit, Crown Office and Procurator Fiscal Service; and Mike Flynn, chief superintendent, Scottish SPCA. Good morning.

Wildlife crime is a controversial subject. It is good news that reports of wildlife crime seem to be coming down. What do you think has contributed to the 11 per cent reduction in wildlife crime since the previous report? Has there been a genuine decrease, or have there simply been fewer reports of wildlife crime? How can you figure that out?

When we look at percentage changes in such small numbers of crimes, assessing the cause can sometimes be quite challenging. There is certainly much wider awareness of wildlife crime across the country, and a lot of the work that we do with partners highlights the real feeling, across the country, that the public, generally, want to see a reduction in wildlife crime. We hope that the partnership work that we are doing to raise awareness and our prevention work are having some effect, but I caution that when the numbers are so small, any fluctuation is difficult to interpret.

Do other panel members have thoughts on why there has been a reduction in crime? What is working?

There has been a marked reduction in the number of reports of illegal snaring, compared with the number a good few years ago. That crime still occurs, but there are a lot fewer reports than there were previously.

I noticed that the number of reported crimes against birds is still quite high.

Yes. Although the number of bird crimes is quite large, the number of crimes against protected species is still quite low; there were in the region of 50 crimes against birds in general, but the number of crimes involving the persecution of raptors was quite low. Clearly, keeping that number low is a main area of focus for us, as members of the raptor persecution priority delivery group.

Have there been any significant changes in how the statistics are recorded or collated? You said that the numbers are very small, but has there been any change in methodology since the previous report?

Not at all. You might be aware that we have different recording systems across the country, but we apply standard crime recording processes across Scotland. There has been no change in that regard since the previous reporting year; the numbers were recorded as they have been in years gone by.

You have highlighted some of the challenges in interpreting the statistics, given that the numbers are very small. Are there any other challenges in the presentation of the statistics? For example, given the reduction in wildlife crime, a bit of complacency could creep in, so it is important to highlight the areas in which the numbers have perhaps not decreased as much as you would have liked. What are the remaining challenges? We still have a long way to go, because we do not want any wildlife crime.

Absolutely. It is worth highlighting the fact that the report includes only recorded crimes, but there is an awful lot of investigation into suspected wildlife crimes that are reported to us. The numbers look fairly small but, over the years, we have been successful in raising the profile of wildlife crime, so a lot more cases of suspected wildlife crime are reported to us, and we have done a lot of work with our partners. Rather than being complacent, we are going far in the other direction. When we suspect that a crime has been committed but we are not absolutely sure, the level of investigation with our partners is such that, should we find out further down the line that there has been, for example, a bird poisoning, we are content that we have already captured the basics, at the early stages. That level of investigation often takes place in cases in which there has been no crime.

You have hit on the fact that evidencing such crime is complicated.

I would not say that it is complicated, but it is challenging because of the nature of the crimes. Most crimes occur in fairly rural locations where there are few witnesses. Nowadays, in conventional crime investigation, closed-circuit television, forensics and telecommunications data all add to building a case, whereas those opportunities often do not exist when investigating wildlife crimes. Quite often, we rely on our relationships with land owners and land users in the areas in which the crimes have been committed. Partnership working is really important so that, when wildlife crimes are reported, we can make those connections and realise the opportunities.

My colleagues will dig a little deeper.

Do the witnesses welcome the reduction in the number of recorded crimes? The news seems to be good, but it has not necessarily been said, or even implied, that it is good news. I think that it is good news. Do you?

Absolutely. Any reduction in any type of crime is good news, and prevention is key to what we are trying to do across the whole wildlife crime piece. Any reduction in wildlife crime is excellent, and we hope that we have had some influence and success in reducing it.

However, as I have said, we are wary, as always, about being complacent. We are not high fiving each other because there has been a reduction, because we know that wildlife crime is still going on and that there is still a significant challenge, particularly in cases in which it is difficult to establish whether a crime has actually occurred. As I said, a lot of wildlife crime investigations are on-going. I absolutely welcome the reduction, but we are certainly not complacent.

Before John Scott continues, Finlay Carson wants to come in, briefly.

Thank you, convener. I am the species champion in the Parliament for bats. I will have more questions about bats later, but first I have a question about the number of crimes that have been committed. The report does not give an accurate assessment of crimes committed; it shows confirmed offences. There has been a marked increase in investigations into allegations of bat crime—I think that there were 27 allegations, which is a fourfold increase—but there is no mention of bat crime in the report. Why is there such a discrepancy?

Do you mean in relation to dedicated areas in the report on bat crime?

Yes.

I might be wrong, but I understand that bats come under general wildlife legislation—there is specific legislation for some wildlife types—so are categorised generally rather than as a species. I would be happy to double check that, but that is my understanding. I think that the issue has come up before in relation to bats.

Although the report has separate areas for “other wildlife offences”, it suggests that there have been no bat offences, but 27 incidents were reported. Are we missing some data and failing to get a true reflection of what is going on?

An incident might involve someone coming to us to report that they suspect that a crime has been committed, so we carry out an investigation to establish whether a crime has occurred, but we might not reach the threshold for reporting that a crime has taken place in the reporting period, hence the discrepancy between the numbers.

Thank you.

I should have declared an interest: I am a farmer.

How has the wildlife and rural crime special constable role, which was announced last year, operated in practice? Is the pilot project continuing?

The pilot project continues and will have been going for a full year by the start of April, so an evaluation will be done towards the end of this month. There was an evaluation after six months, which looked at the number of deployments of special constables in the Cairngorms national park, in partnership with the park rangers, and considered the kind of work that they were getting involved in.

The Cairngorms national park lead attended the most recent raptor persecution priority delivery group meeting, and it is fair to say that the general feeling—which came out in the initial evaluation—is that although the special constables are well deployed in the park, much of their activity is engagement work with park users and landowners; their involvement in wildlife crime investigation has been fairly minimal.

The park will have an opportunity to feed into the evaluation at the end of the month. I think that the feeling is that although the special constable role has been positive in the context of engaging with the community in the park, it is difficult to see great benefits from it in relation to tackling wildlife crime. However, I caveat that by saying that prevention is a really difficult thing to measure. We will see where we go on that after the evaluation at the end of the month.

The deployment of special constables was announced as part of a package of measures, primarily to tackle raptor persecution. Are you saying that the officers have not been successful in identifying areas where raptor persecution is taking place and in bringing forward evidence that might lead to prosecutions?

09:45  

It is important that we let the full evaluation take its course and see what impact the special constables have had on crime in the national park over the past year. It is fair to say that before their deployment in the park, the number of wildlife crimes was not significant, so as part of the evaluation, we will be looking at what intelligence the special constables have gathered while they have been deployed and at their engagement with landowners and land users in the park. Prevention is really difficult to measure, but I guess that we will compare the past year, when there have been deployments in the park, with the years before that.

You are right to say that the special constable project is part of a much wider response by Police Scotland and partners to raptor persecution all over Scotland and not just within the national park.

The scale of the national park brings challenges. The special constables we deployed to the park were already special constables who lived outwith the park area. We had to get them from their home address to the park and team them up with a ranger or another special constable. The park is not the most hospitable of places for travelling around, particularly during the winter months.

I look forward to getting the evaluation and assessing the success and challenges of the deployment over the past year.

What proportion of special constables’ role is dedicated to wildlife crime compared with rural crime? Do you have a ballpark figure for that?

Although the objective in the national park is to tackle wildlife crime, it is a given that any police officer or special constable will also have wider responsibilities, such as watching and patrolling the area. I do not see the value in separating the two. These are police patrols in an area where we have rural crime and wildlife crime. As I said, though, the figures on the level of deployment in the park will be made clear in the evaluation.

The evaluation is not yet complete, but has Police Scotland formed any views on the success of the pilot and whether it could be rolled out to other areas? Have you learned any other lessons that you could share with the committee? I appreciate that the proper evaluation will be presented in due course.

I would rather wait and see the evaluation. Will there be learning? Absolutely. There are always lessons from initiatives such as deployment for a specific crime-prevention or crime-enforcement purpose, which can be rolled out across the country. However, it would be folly for me to make any assessment until we get the evaluation and get a feel for how successful the pilot has been.

You are positive about it, though—we hope.

Absolutely. We talk often about the challenges of wildlife crime. We are keen to look at different ways of doing business to see what is successful and what is not. Like all our resources, special constables are a finite resource and we need to make sure that we are putting them in the right places to be effective. It is no different with wildlife crime. Once we get the evaluation, we will be able to assess that.

How much can be inferred from the regional figures presented in the report, for example the fact that the Highlands and Islands recorded the highest number of wildlife crime offences? To what extent is that influenced by the distribution of resources?

It is the biggest geographical area in the country, so it figures that if wildlife crime is occurring in rural locations, the largest rural location in the country will have the highest figures.

On deployment, we look at the figures on a monthly basis. We have wildlife crime officers in each of our divisions and we liaise with the national wildlife crime unit on intelligence and we have our analytical product to ensure that we deploy our officers in the right places at the right times as much as possible.

Finally, how is resourcing currently affecting the ability of Police Scotland and the Scottish SPCA to investigate and prevent wildlife crime? What is the current resourcing picture beyond the pilot project?

In relation to the Cairngorm national park, or nationally?

Nationally.

As I said, we have dedicated officers in each of our divisions, but it is fair to say that, on their own, an officer or a part-time officer in a division will not make a massive difference. In a lot of respects, they are the divisional experts when it comes to providing advice, guidance and support and so on for investigations.

Over the past year, we have run a number of courses, not just for local community cops as you might expect, but for more specialist officers, so that they have an understanding of wildlife crime when bringing their skills to our investigations. There is a lot of training for our control room staff, particularly for call handlers, to ensure that when they take calls about potential wildlife crimes, they are able to identify early on whether a wildlife crime is being reported to them and whether there might be opportunities to deploy officers quickly.

You said that most of the special constables were redeployed from elsewhere. Did the initiative bring in new special constables who have a particular interest in wildlife crime?

The pilot started before I was in post, so I am not completely au fait with the process for how those special constables were identified, but I can certainly double-check and get back to you.

Countrywide, we are constantly looking to increase our numbers of special constables—they are a really valuable resource for us. During the engagement on the Cairngorms national park, we considered whether having special constables in the park, engaging with people who are working in or using the park, would encourage others to come forward and get involved. Again, as part of the evaluation we could cover whether anyone has come from the park.

I am an enthusiast, because in my previous life I had staff working for me who were special constables, so I saw their value. I encourage you to seize the opportunity for the role in wildlife crime.

I will turn the focus to prosecution and sentencing. Difficulties in finding evidence have been touched on, and we will come to that later. First, what are the key challenges and barriers to achieving higher numbers of prosecutions for wildlife crime?

Basically, the challenge is in investigation of wildlife crime. As DCS McLaren said, there are a lot more cases reported in which we can identify a crime than there are cases in which we can identify a suspect, to the level of the statutory requirements of the Crown Office and Procurator Fiscal Service.

I know that the numbers have gone down, but more offences are being committed. No badger offences are listed for the year that we are talking about. That is because cases have been dealt with not through the Protection of Badgers Act 1992, but through the Animal Health and Welfare (Scotland) Act 2006, because dogs have been used and the evidence has shown that injuries to them were caused by badgers.

The difficulties are to do with detection and the nature of wildlife crime. As DCS McLaren has highlighted, it is not routine, it is not caught on closed-circuit television and it is not done in front of plenty of witnesses.

What is your view, DCS McLaren?

I covered that issue earlier when I talked about the need to reach the required threshold. When we have significant investigations, we engage with the Crown Office and Procurator Fiscal Service regularly. It is not the case that we just drop a report on a desk and say that we have done as much as we can. There is constant dialogue to make sure that we have, as we work through a case, an understanding of where the threshold might be. Undoubtedly, that is a challenge. The remote nature of the places where most of the crimes are committed makes it very difficult to gather evidence.

On vicarious liability, the RSPB Scotland report, “The Illegal Killing of Birds of Prey in Scotland 2015-17”, says:

“We also became aware, in spring 2017, that a vicarious liability prosecution, following the earlier conviction of a gamekeeper for killing a buzzard, was being dropped after 14 previous court hearings as Crown Counsel considered ‘it was not in the public interest to continue the case to trial.’”

What are your comments on that?

I will pass that to my colleagues from the Crown Office.

Crown counsel’s considerations took into account the facts and circumstances of that case. The COPFS is under a duty to keep cases under review, which means reviewing the evidence not only when a case is first reported to us, but when there is an on-going prosecution. In that case, the evidence was reviewed by Crown counsel, in keeping with that duty, and it decided that it was no longer in the public interest to continue with prosecution.

The COPFS report also shows that only one wildlife crime conviction resulted in a custodial sentence. Is the current sentencing regime providing a sufficient deterrent to those who are engaged in wildlife crime?

I have to say that it would be quite inappropriate for the Crown Office to comment on that question because such issues are entirely outwith our control. Sentencing is entirely a matter for the courts—and, of course, for Parliament, in setting the levels that judges can impose.

I respect that view. Is anyone else able to comment on the deterrent aspect of sentencing and the lack of custodial sentences being given?

I agree with David Green. It is entirely for the court to look at the individual circumstances of a case, although there is quite often public outcry that sentences do not appear to be having any great deterrent effect.

As David Green said of the COPFS, I think that it would be inappropriate for Police Scotland to comment on sentencing matters. Anecdotally, I know that individuals who get caught are well aware of what sentence they might get and what will follow if the court finds them guilty. However, it is difficult to say whether that is a deterrent. I guess that such issues are looked at on a case-by-case basis.

How does the COPFS respond to concerns that it is not sufficiently transparent in communicating the rationale for its decisions on wildlife crime cases? Scottish Badgers says that it works positively with the police, but a significant number of incidents were reported in the timeframe in question—the figure was, I think, 80—and it has not always been clear why cases have not been taken forward. RSPB Scotland has highlighted the issue, too, so it would be helpful to hear your comments on that. I am not saying that what has been suggested is the case, but I would appreciate it if you could respond to those concerns. How do your communications work?

The wildlife and environmental crime unit liaises and works very closely with partner agencies including Police Scotland, the SSPCA and, on occasion, the RSPB and Scottish Badgers. We meet when appropriate. Due to suppression of data, the report does not show the specific number of badger-related cases that were reported to COPFS in the year in question, but I am not aware of any issue with the cases that Scottish Badgers has reported to the COPFS. When there have been such concerns in the past, the organisation has approached the team, and we have met and had useful discussions with it. That liaison certainly extends to Police Scotland, too. I am not sure whether you are seeking to address a particular issue.

I have very specifically addressed the issue by highlighting Scottish Badgers’ concern that, despite the fact that there were 80 incidents, it does not know why cases were not prosecuted. I appreciate that it is a challenge to prosecute such cases: that is the point that I am making. Could you consider committing to checking with non-governmental organisations and others that you work with—and members of the public who might report a crime—to ensure that, when they report incidents, the reports are responded to and followed up?

The COPFS can consider prosecution only when a matter is reported to it. Scottish Badgers might well have had 80 incidents notified to it in various ways, but that does not mean that COPFS has received 80 reports of badger crime. Every report that we receive in relation to wildlife crime—or any offence—is considered carefully; we consider whether there is sufficient evidence and whether it will be in the public interest to raise a prosecution or to take alternative action.

I am sorry if I am not being clear—I am simply saying that two organisations have highlighted to the committee that they are not always getting feedback on the incidents that they report. I am not criticising decisions on whether the incidents have gone forward to prosecution; I am asking whether you could consider the issue of feedback with the groups that you work with.

10:00  

We would be happy to have such discussions. We received a total of 94 reports of all wildlife crime. The 80 cases that those organisations are aware of might well be being investigated by Police Scotland and others, but the reports on them have not made it to the Crown Office. If we do not know about them, we cannot comment; we would be unable to tell the partner agency anything, because the case is not known to us. If an agency has specific concerns about a specific matter that has been reported to the Crown Office, my team will be happy to discuss the particulars with it.

I appreciate that. That was not my point, which concerned reporting to the police. I want a commitment, please.

There is a real distinction between incidents and crimes.

Absolutely.

In relation to incidents, we have good working relations with Scottish Badgers. I meet it a couple of times a year to iron out issues and to ensure that I can address them from a strategic level and feed that across the country—for example, if there is poor communication or it is concerned about our response to crimes or reported incidents. I personally take such issues up with Scottish Badgers. The last meeting I had was six or seven weeks ago—or a little longer now. I do not recognise 80 as the number of cases raised with me on lack of feedback. I will address that criticism with them.

Mike Flynn mentioned badgers earlier in the meeting. We know that six offences relating to badger persecution were recorded in 2016-17, compared with seven in 2015-17, and that four of those offences concerned damage to badger setts. In the statistics for the number of wildlife cases received by the COPFS in the 2017 report, information on badgers is absent, with the explanation that it is “data suppressed”. Can you explain what that means, and how many of the six offences relating to badger persecution that were recorded by Police Scotland in 2016-2017 were referred to the procurator fiscal?

I will have to get back to you on the finer detail of that. Sara Shaw might have a response on your first question.

On page 82 of the report, the first paragraph explains COPFS policy on our data protection responsibilities and explains why there has been suppression of data in line with those responsibilities in some places in the report. We are not in a position to confirm the exact number because in some cases, the number is fewer than five—as is explained in that first paragraph.

Did you say “fewer than five”?

Yes. The report says:

“where the number of cases is fewer than 5, these figures have been replaced with an asterisk. In some cases, it may have been necessary to apply a further suppression to a figure equal to or higher than five to prevent other suppressed data being deduced through subtraction. This applies to all data being published by COPFS”

According to our briefing, there were six offences relating to badger persecution in 2016-17. The report mentions that a five-year incident analysis of badger persecution was produced for the national wildlife crime unit. Can you provide any information on what that analysis showed, and the influence that it has had?

The analysis that has been produced by the Scottish Government is really helpful for the work of the national wildlife crime unit that I referred to earlier. That is the case not only in relation to badger persecution but across the whole wildlife crime arena. It can help us to identify problem areas and trends, and new tactics, techniques and modus operandi that are used by perpetrators. It is a work in progress and is very useful for identifying where we might have issues, and in our consideration of plans for how to tackle them.

Some crimes are not being recorded, even if there is enough evidence to prosecute, because of its not being in the public interest to do so. Three cases of bat persecution were not progressed because of lack of intent or recklessness. Does it need to be recognised that there should be more data sharing to ensure that a report is fit for purpose and that we address what could be seen as underreporting of offences rather than crimes? We are not getting a true picture.

That is quite a specific point that relates to disturbance of bat roosts. From an investigator’s point of view and from the Crown Office’s point of view, the legislation is quite unhelpful in that it details the wilful act aspect, but detail is missing in relation to disturbance. There must be evidence of mens rea or criminal intent in order for us to record a crime.

As I said earlier, I met an individual from the Bat Conservation Trust. We have recently talked about how we can make representation to the Scottish crime recording board so that we have more accurate recording. The issue is that innocent members of the public who are going about their business and have no wilful criminal intent can potentially disturb a bat roost and ultimately end up with a crime being recorded against their name. That does not seem to be proportionate. We must strike a balance so that we are able to record incidents but not criminalise people for completely innocent acts.

That is not to say that there are not instances in which there is criminal intent. It is really important that we investigate so that we can differentiate between the two. However, in some cases that have been raised recently, it has been very difficult to identify criminal intent.

We recognise that that is an issue, and it is probably for us to take forward through a tweak in the legislation. Generally speaking, in all crime there has to be criminal intent.

My next question is for the whole panel. Is it recognised that we should not just record crimes but, in order to see a true picture of what is happening, find a better and more transparent way of recording offences? An offence, intended or not, is still an offence. If someone disturbs a bat roost or a badger sett, that is still an offence, although it might not be a crime. Do we need more sharing of data among stakeholders in order to identify where offences have been committed?

I think that there is a specific issue with the legislation that causes the anomaly. We record incidents in which crimes have not necessarily occurred but on which we have carried out an investigation because there was a suspected crime. It is difficult for me to see how we can be more transparent about how we gather information in relation to wildlife crime and report on it. The bat issue is a bit of an anomaly.

My team and Police Scotland have discussed that issue. I cannot comment on the intention behind the drafting of regulation 39(1)(d) in the Conservation (Natural Habitats, &c) Regulations 1994, but it is certainly quite stark that there is no mention of the offence being deliberate or reckless, although that is mentioned in previous provisions. It seems that it was intended that the legislation be drafted in that way. We discussed the fact that it appears to be the case that, although there might not be intent, a crime will have been committed based on the facts, and that probably qualifies for recording.

The rule of five is an Office for National Statistics restriction. No personal references are used—right across the board—if the number is below five.

The Crown Office follows that directive.

Yes. That was just an observation. My real question is a brief one. Can you point us to any academic research on deterrence? It is generally thought—by me, if by no one else—that deterrence is about being caught and not about the sentence thereafter. I wonder whether there is anywhere we could get a sense of whether that thing that I have picked up at some point in my life is correct or incorrect. Can anyone help with that?

We would welcome anything that could help us to tackle wildlife crime and get a better understanding of the individuals who are involved in it. If there is something academic that can help with that, we will take it on board. Because there are a wide range of different types of crime involving different species and areas of the country, and because there are only small numbers, with not many people being caught, it is a challenge to get a meaningful data set. However, we will be more than willing to take that work on board if you can point us in the direction of someone who would be willing to undertake it for us.

I would like to move on to video surveillance, which follows on quite well from the difficulties around prosecution. The issues are well recorded. What developments have there been in the admissibility of covert video surveillance evidence since the cases in which it was not admitted?

I am not aware of any particular developments in the law following those cases.

RSPB Scotland has said that it believes that the decision about the admissibility of video footage placed more emphasis on perceived irregularity in obtaining evidence than on the actual criminal offence. How do you respond to that?

As investigators, we regularly have video evidence brought to us, and we share it with the Crown Office. There are often discussions about the admissibility of that evidence. There is a much wider issue to do with human rights and the really quite tight legislation that controls the deployment of covert tactics in investigations. I think that the committee has discussed previously the threshold for proportionality and necessity in the deployment of covert video recording, given its intrusive nature. On the police deploying it in relation to wildlife crime, my experience over the years has been that we have never met the threshold in terms of either the serious crime aspect or proportionality.

The video footage that comes to us often comes from other organisations that have recorded it, and the focus is often the intent with which the footage was recorded. If it was recorded for the purposes of monitoring or assessing behaviour—innocently, I guess—in a wildlife environment, it will be for the court to decide whether it is admissible. However, experience has shown that evidence from the focused deployment of video recording equipment has been inadmissible more often than not.

The Poustie review made recommendations on enabling the admissibility of video evidence. That brings me back to my previous question about whether there have been any developments. Has any guidance been produced for people who want to help you all to identify wildlife crime on what is and is not admissible? Well-meaning people such as RSPB Scotland want to flag up instances of wildlife crime in order to help with your investigations and bring people to prosecution. What guidance do you give them to ensure that their video evidence will not be thrown out?

10:15  

This is not a new issue; it has been kicking about for a number of years. We work closely with organisations that investigate or support the investigation of wildlife crime, such as RSPB Scotland and the SSPCA, and I hope that Mike Flynn will support me when I say that our partners are clear about the challenges around the use of video recording equipment on private land. We work closely on guidance on that, and I do not think that there is any ambiguity about the challenges around video recording.

There is no ambiguity from our point of view. I can remember only one recent case in which video evidence was used, and that was at the request of a landowner whose livestock were being targeted and snared. The use of the video evidence was admissible because it was taken with the landowner’s permission.

Can a distinction be made between video evidence that can be used to inform an investigation and video evidence that can be used as part of a prosecution? In other words, although video evidence might not have the evidential trail that enables the prosecution to rely on it, can it be used by the investigator to establish what questions they should ask in trying to get evidence? Is that a proper distinction to make?

Yes, I think so. Any video evidence, whether it is admissible or not, may be used as intelligence in an investigation. We have to be really careful about the provenance of video evidence and the investigative work that follows directly from it, but we certainly take on board any evidence that is shared with us, and we have discussions with the Crown Office about its admissibility. It is always intelligence.

I agree with that. Quite a few of the cases that we get involve video evidence. In the first such case, we were given CCTV footage of a guy in a pub in Aberdeen hitting a bat with a pool cue. The video was not used as evidence, but we found the bat and witnesses, so there was corroboration.

Quite a few cases in the puppy trade have come out of videos on Facebook. As David McLaren said, the video evidence starts the investigation—it does not conclude it, but it gives people information to work on.

It is a step towards the collection of more robust evidence, rather than the smoking gun itself.

Yes.

I understand that. We will move on.

I want to talk about a topic that Donald Dewar described as “Scotland’s shame”—the persecution of birds of prey.

In the report, which relates to the year 2016-17, the Cabinet Secretary for Environment, Climate Change and Land Reform makes the point that the report probably does not capture the extent of raptor persecution in Scotland, particularly given what we know about the satellite tagging work that has been done.

I would like each member of the panel to answer this question, and I appreciate that you will do so in the way that is most relevant to your duties and responsibilities. What do you think is the top challenge around prevention, detection and prosecution of crimes that involve birds of prey, and what are you doing to ensure greater success?

I will probably say the same as Police Scotland. We can respond only to the information that is received. You will have seen how many birds the scientists say have been poisoned. Unless it can be proved that the poisoning was inadvertent after a poison was legally laid—an agricultural thing—an offence has been committed, but the issue is detecting the person who was responsible.

It is about having greater public awareness. The number of people who report wildlife crime to the SSPCA and the police is higher than it has ever been. It is well known that there are concerns out there.

The difficulty is the one that has been alluded to: such offences occur in places where they are not necessarily observed—in remote areas and so on—and the gathering of evidence is a problem. As Mike Flynn said, poisoned raptors are found, but were they poisoned where they were found or many, many miles away? All of those things present us with challenges. We do whatever we can, working with partners, to get sufficient evidence and, in all cases in which it is possible to do so—in which there is sufficient evidence—we will take proceedings, because that is what we do.

We stated before that we are committed to tackling wildlife crime and, in particular, raptor persecution. We take the matter seriously, and we have stated to the committee before and in correspondence that there is a strong presumption in favour of prosecution in cases that are reported to us when there is sufficient admissible evidence and it is in the public interest to raise the prosecution. Where we can, we will.

I chair the raptor priority group. It is fair to say that that group, with a host of partners around the table, works in quite a challenging partnership environment. Certainly, it is one of the most challenging partnership environments that I have worked in, from a policing point of view, given that there are people around the table who are at different ends of the spectrum in terms of their values—there are conservationists as well as those who are involved in the game industry. Our focus is on getting everyone working together around initiatives relating to the prevention, enforcement and intelligence side of things. I sit at that table feeling that I have people’s full support in pursuit of the crime reduction, prevention and investigation aspect of things. Lots of work is going on but, as others have said, there are great challenges, given the nature of the crime.

With regard to the gathering of intelligence, when the committee took evidence on the previous wildlife crime report, we discussed the issue of scientific data. The report that we are discussing today mentions the bird of prey persecution maps, and we are aware that there are other forms of intelligence on population that can point to where persecution is most likely happening. One year on from our previous session on this, can you describe how you are now using that data, particularly in the light of the work on satellite tagging, to drill down and find out where that illegal activity is taking place? It is clear that illegal activity is taking place; there is, in all probability, no other reason why the birds are disappearing and why the satellite tags are stopping working. How are you using that hard ecological population data to drill down and stop the criminals?

That data is useful. As I said, we will absolutely take on board any information or data that we can use to assess problems or trends in various areas.

With regard to your point about satellite tags, I think that the reliability is improving. They have not always been greatly reliable. In the past six months to a year, there have been instances of birds seeming to disappear and then to reappear due to issues with the tags. That is always a challenge for us.

On the recording of crime, we need to be absolutely certain that a crime has taken place—as opposed to just considering that, in all probability, a crime has taken place—before we can record the incident as a crime. However, that is not to say that the information received is not used as intelligence to support further investigative work, applications to the Crown Office for warrants or any other activity that we want to undertake.

In the 12 months since we last talked to the police about the issue, what has changed in how you are using that population data? Your predecessor gave a commitment to use that data more in your intelligence-led policing. How does that work with regard to special constables and information on the ground? You are clearly saying that, in many communities, there is a wall of silence—an omerta—around the evidence and that you have to use the data to work around that and drill down into what is happening.

We use the data to identify problem areas, and, when we know that crimes have been committed, we can use that data in a way that is supportive of our investigation.

I take your point about species populations, but the issue is complicated. I am not a wildlife expert, and we have, on the one hand, reports that say that population decline is absolutely due to persecution, while, in other cases, we know that there are wider issues—for example, climate change—with certain species regarding the areas where we are trying to reintroduce them. The issue is not always persecution.

From an investigative point of view, we work with facts in trying to gather evidence. Intelligence is useful to support our investigations, and hard and fast facts that are actionable often just support the intelligence. We can use that information to get warrants, for example. Intelligence is therefore helpful, but the situations are not always black and white.

Does the SSPCA have a view on that? I suppose you are quite constrained in what you can and cannot do at present.

A lot of the scientific evidence that has come out would not kick off any investigations for us. We know that things are going on in certain areas, but so do the police. Where evidence can be found, it will be reported.

I reassure the committee that, when satellite-tagged birds disappear, although that is not dealt with as an investigation to begin with, we will investigate it. For example, there was a case three or four weeks ago, down in the Borders, where a golden eagle went missing. We deployed a team down there with a search-and-recovery dog and recovered the bird, but the initial indications are that it died of natural causes. There was no crime in that case, but there was a fair amount of police activity in trying to identify whether a crime had occurred, and I reassure the committee that that example is not a one-off. If partners come to us and say that a bird from a protected species has disappeared and that the tag was last registered in X, Y or Z area, we will deploy and search with partners in that area, and we will, when appropriate, engage with the landowner.

Some members want to come in on that theme. Claudia Beamish is first.

I want to explore the issue further. In my South Scotland region, in the Leadhills and Wanlockhead area—it would not be appropriate to name the estate—there has been significant reporting of wildlife crime for the past 20 years, and it appears to be pretty intractable. To what degree can the police, with the help of the SSPCA, all partners and the public, focus on such areas and deploy what I appreciate are limited resources to crack a problem that has gone on for far too long?

It is difficult to speak about individual cases and areas, but, as a starting point—

I am giving that as an example.

Absolutely. I have been an investigator for all of my service in the police, and nothing hurts more than criticism about the level or efficiency of our investigations in any area of policing. I reassure the committee that, when crimes are reported to us, we seek every opportunity to detect those offences. We have covered in this evidence session the challenges that exist, but, if there is anything that we can do with our partners to obtain evidence so that we can report individuals to the procurator fiscal, we take those opportunities.

I have two questions. First, I am interested in the reliability of the tags. I had assumed, perhaps naively, that they were 100 per cent reliable. If they are not as reliable as I had assumed, can you talk a bit about that? Also, have climate change and, in particular, the adverse winter weather conditions last year—the beast from the east—which certainly affected farming, affected the survival of all wildlife?

10:30  

I am afraid to say that climate change and the survival of all wildlife are not really my bag—you will have to ask someone else about those issues. As far as the reliability of tags is concerned, improvements in technology mean that the quality of the devices that are being used is a million miles on from what it was years ago. However, there is still a margin of failure. Some tags are out in the extremes for a long time, they have issues and they fail. I have read reports about their reliability, but I do not want to get into the detail of the operational environment and why the tags on birds might fail. From an investigator’s point of view, it is often difficult to hang your hat on a tag’s disappearance definitely being the result of persecution. There is no doubt that that will be the case on some occasions, but differentiating between tag failure and persecution is a real challenge.

Mark Ruskell will finish off this theme.

I will go back very quickly to vicarious liability. Will any of the developments that we are expecting with regard to land reform and the new public register of controlling interests in land have any bearing on the ability of COPFS to bring prosecutions under vicarious liability? Will they make that sort of thing easier?

It might assist in identifying the owner of an estate and facilitate the obtaining of evidence. I cannot comment on the detail of the changes, because I am not sighted on them, but such moves might well assist us.

The register will extend beyond the owner to controlling interests, which might not be transparent.

I am sorry, but I am not sighted on the detail of those proposals.

That is okay. We will wait and see.

My next question is quite topical. Has Police Scotland discussed with the Scottish Government how the enforcement of laws under the Convention on International Trade in Endangered Species of Wild Flora and Fauna might be impacted by a no-deal Brexit?

We are monitoring that closely, but at this time we are unclear about what changes might come about in terms of the movement of CITES. The issue is on our radar and, when we have a clearer picture of Brexit and what some of the controls might be, we will adapt our processes. That engagement is on-going.

It is work in progress. Thank you very much.

I believe that Angus MacDonald has some questions on freshwater pearl mussels.

Indeed, convener. There has been some good work on tackling freshwater pearl mussel extraction, including the riverwatch schemes that have been established by the LIFE+ pearls in peril project. Can the panel provide more information on the outcomes of operation Caesar, which investigated the routes for the sale of freshwater pearl mussels, and on how those outcomes are being used or built on?

I am not sighted on that particular operation, but I can feed back to you on it.

But you have heard of it.

I am familiar with the details of the operation, but not in any great depth, and I would not be comfortable to talk in any detail about it. However, I will say that with any operations or initiatives that we have, we pick up the sort of learning that you are talking about as a matter of routine and share it across all the different wildlife crime areas. If there are any learning opportunities, we make sure that they are realised across the board. I can certainly get back to you with some of the finer detail about that operation.

That would be most welcome. Stewart Stevenson has some questions about poaching and coursing.

I think that they have been covered, convener.

Indeed. Finlay, did you have any questions on this?

I think that Mark Ruskell has some questions, too, but I would like to know where the figures for hunting with dogs or using dogs for fox control come into this.

In relation to cruelty?

In relation to crimes committed with dogs.

I am sorry, but I am not quite clear what the question is.

Table 1, of recorded wildlife crime, has information about hunting with dogs, in which there has been a marked decrease. Does that suggest that the introduction of the voluntary good practice guide is working?

It is difficult to say, given the numbers. We would hope that the guide’s introduction has had an influence, but given the low numbers and the fluctuations over past years, it is difficult to make an assessment of its success or otherwise.

Mark Ruskell has questions for the SSPCA.

I want to explore the relationship between the SSPCA and Police Scotland and how that works in practice and the options that are available to Government—we have already mentioned special constables and their enhanced role in one area of Scotland.

What is your view on how the relationship works, and what the difference is between the treatment of wildlife crimes and that of crimes involving animals that are under the control of man, under the legislation?

Every day our inspectors work with members of Police Scotland. There have been occasions, particularly wildlife incidents, when we did not know anything about it until after the event. I am not saying that we should have known, particularly if the police were dealing with it. The cabinet secretary declined to give us powers under the Wildlife and Countryside Act 1981, but we can still deal with incidents concerning a wild animal or bird and we work constantly with the police. We could not do a lot of our job without Police Scotland’s assistance. In general, the co-operation between us is very good. Like anything else, there are areas in which it could be better.

I agree with that. We work with a lot of partners across wildlife crime. Given the numbers of crimes that are reported to us and the way in which they are spread across the country, our officers who deal with them have not always dealt with lots of wildlife crime before—I talked earlier about our wildlife crime liaison officers in the divisions providing support.

We do not always get engagement with partners right, but we have good working relationships so that, if we have issues, key individuals can pick up the phone to each other to iron them out. We welcome the SSPCA’s support, particularly on intelligence information that goes much wider than wildlife crime to serious and organised crime—the SSPCA is a really valued partner for that. Like all partnership working, ours has evolved; it is not always plain sailing, but as long as we have the shared objective to tackle and investigate wildlife crime, we will always find a way.

Some of our special investigations have involved working with intervention units, which are having fantastic successes on animal welfare and on a range of things for Police Scotland. For example, we are working closely on known badger baiters and diggers. The relationship works very well in many areas.

Would Police Scotland have any concerns if the SSPCA’s powers with regard to wildlife crime were extended? Would that create practical issues on the ground?

In our submission about 18 months or two years ago, we were quite clear in our view that the power to investigate crime sits with Police Scotland and that the SSPCA is a key partner in support of that. I do not think that our position has changed, although I would have to see what your proposals and suggestions would be and whether they were different from the previous ones. I take you back to what I said five minutes ago: as long as we have the shared objectives of investigation and prevention, we have a good working relationship.

What is the SSPCA’s view? Are you actively seeking more powers? In your discussions with Government, are there any concerns? If so, what are they and what would you be able to address?

To be honest, we were informed at the same time as everybody else, when the Cabinet Secretary for Environment, Climate Change and Land Reform made her statement. If there was an issue, we never received a clear definition of what it was. The original suggestion was made by Peter Peacock MSP, during the passage of the Wildlife and Natural Environment (Scotland) Bill. We accepted that and made the offer, which still stands.

After the announcement was made, we wrote to the cabinet secretary to say that, if the Government wanted to review the situation in five years’ time, our offer would still be on the table. Regardless of that, as David McLaren said, our inspectors from Shetland to Stranraer are there to assist the police under the current set-up, as set out in the legislation, every day of the year.

Under the law, the SSPCA has substantial animal welfare powers, particularly in relation to domestic animals that are under the control of man. Have issues been raised about the modernisation of the governance of those powers? Is the SSPCA fit for purpose in discharging and extending those duties?

Yes.

Is your board aware of the issues?

Yes. The rules on disclosure and prosecution in relation to domestic animals are the same as those in relation to wild animals. With regard to the police’s statement that they have primacy over wildlife crime, I made the argument at the time that, if we take it to that extreme, the police have primacy over dealing with domestic dogs that have been starved or kicked. Those are still crimes.

I have never understood why we can have powers over all domestic animals, which account for 95 per cent of our work and which include livestock as well as dogs and cats, but we are not considered fit for purpose in what is the smallest part of our work. However, we did not go in a huff when the cabinet secretary said that we could not get the powers. We still assist the police, and we need the police to assist us. We do not want that to change.

What does the extent of your powers mean in a practical sense? What happens on the ground? For example, if you saw someone hitting a horse in an enclosed paddock, what could you do that you could not do if you saw the same person hitting a wild animal or destroying a fox inhumanely outside that enclosed paddock? I am not entirely clear what the big difference is.

It is quite easy. A lot of it is on the prevention side. If a badger has been caught in a snare but is still alive, we can deal with it because there is a genuine welfare issue and we can relieve suffering. Whether such an incident resulted in a prosecution is a different matter, because our purpose is to protect the animal’s welfare.

However, under section 19 of the 2011 act, if we remove a badger that has been caught in an illegal snare and we suspect that there might be other snares that could cause similar injuries, we have no right to retrieve them as evidence. We need to withdraw, report the matter to the police and hope that the police have the resources at that time to deal with it. We are talking about rural areas, so it could take two and a half days to search for illegal snares. During that time, no animal might be suffering, but every snare could catch something.

The main difference is that, if a live animal or bird is involved, we will deal with the incident and secure the welfare of the animal. We will then use whatever means to try to get the police to take the matter further.

How would the police respond to such a situation?

As Mike Flynn said, we will attend the incident, depending on the location and the demand at the time. In our submission during the consideration of extending powers, we said that we hoped that the SSPCA’s powers could be extended to allow it to seize evidence in such a scenario, so that there would be no loss of evidence. More often than not, we are able to attend incidents, and I am not aware of cases in which there has been a loss of evidence through the police being unable to attend or there being a delay.

The only cases that I can think of are those in which we have reported the matter to the police because we do not have the right to do anything, and a constable has not been available. There have been occasions when the police have bounced the matter back to us and said that we will need to do something because they cannot send someone. In the past, the police have said that an issue will be dealt with by a wildlife officer, but they might be off for the weekend. Our concern is that, in that case, there could still be illegal snares in the area that could damage something.

Has that happened?

It has happened but, to be fair, it is rare.

As an organisation, where can you add value? Where can you make the biggest impact in tackling wildlife crime? Is it badgers, bats, raptors or fox hunting with dogs?

10:45  

We have had some good success with badger-related crime, as opposed to crimes under the Protection of Badgers Act 1992, where you catch the offender at the sett. The majority of what we get is bashed-up dogs, where further corroborative evidence, such as videos, shows that the dog was injured because it was fighting a badger. In every one of those cases, we work closely with Police Scotland, because most of the people involved are also regular clients of Police Scotland.

Indeed. Does Police Scotland have a view on where the SSPCA could bring additional value?

The SSPCA absolutely brings value, as do many of the partners that we investigate with. Each brings something different to the table. Quite often, when we are carrying out searches across all types of wildlife crime, we have a mixed resource. I would not pick one particular area. When we are investigating a crime, depending on the circumstances we will call upon different partners to support us where they can.

I have been involved in wildlife crime on and off for five or six years, and in that time there has been a massive shift and improvement in partnership working and our response to wildlife crime. It is like everything, though: there is still room for improvement. Partnership working will continue and I hope that we will continue to improve things.

What is more effective, special constables or the SSPCA? Or is that the wrong question, because you need them all working together?

That is comparing apples with pears. The SSPCA has a clear role because of its expertise and function. Special constables have a different role altogether. We talked earlier about the difference between wildlife crime and rural crime. As far as a special constable is concerned, crime is crime, and they are there as a guard, watch and patrol, whereas the SSPCA has quite a narrow role in terms of crime.

There really has to be shared and trusted support either way. When people think about wildlife crime, they think about a poisoned bird and someone being reported, but an investigation involves a huge amount of work. Let us take badgers, for instance. If we take into account the veterinary and pathology reports, and the items that are seized by the police, such as mobile phones, that is hours and hours of work, which we regularly share with the police. To be honest, I have known a lot of police constables, mainly in middle management—sergeants and inspectors—who are delighted that we get involved, because instead of taking up a constable’s time for two shifts, they are used for an hour. We can get warrants in our name. We never serve a warrant without the presence of the police. If we have a warrant issued by the Crown Office, the police will always assist us.

Mike Flynn referred to Peter Peacock and the third session of Parliament. Did you say that it was Peter Peacock’s proposal on the Wildlife and Natural Environment (Scotland) Bill that was not accepted? Remarkably, I was the deputy convener of the committee that considered the bill, and the same minister, Roseanna Cunningham—then as now—also looked at the situation. That must be 10 years ago. I know that you are awaiting the evaluation, but on the evidence thus far, would you say that the development of special constables is the way forward to further reduce wildlife and rural crime? Would you be happy with enhancing the status quo?

I would prefer to wait until I see the evaluation and fully understand the success or otherwise of the initiative. I go back to what I said earlier. The focus should be on any opportunities or suggestions for a better or more effective way to deploy our resources and have them in the right place at the right time.

As I also said earlier, our resources are finite. Lots of different challenges and demands are placed on us. We will wait and see what the evaluation says and take it from there.

I want to ask about drones. I have a constituency interest, because the Ythan has the largest seal haul-out site in the United Kingdom—I am proud of that, as you can probably tell—and there have been instances of drones disturbing the colony. That is probably unintentional in the majority of cases. Have you come across instances of drones being used with intent to cause harm or distress to wild animals?

I am not aware of any cases, but that is not to say that there have been no such cases. We deal with reports on a case-by-case basis; if there was a suggestion of criminality, we would investigate.

You are right to raise the issue. The use of drones has taken off—pardon the pun—and lots of people are using them, for a host of reasons. I imagine that they are used to monitor wildlife legitimately, but perhaps some people are not thinking about the consequences of what they are doing.

Has Mike Flynn come across drones being used for a negative purpose?

I have heard of that happening, although nothing has been proven. The issue was raised at the legislation, regulation and guidance sub-group of the partnership for action against wildlife crime in Scotland, which Professor Colin Reid chairs.

Scottish Natural Heritage is considering whether people should require a licence to use drones for certain purposes, because people have been taking aerial photographs of birds of prey, and if a drone gets too close to the nest it can disturb the birds and ruin the nesting site. SNH is actively looking at that.

Okay. So far, there is no recorded criminality involving drones.

Not that I am aware of, but I can get back to you.

Okay. It is an interesting area. John Scott has questions on beavers.

Police Scotland will be aware that a Scottish statutory instrument has been laid to make beavers a European protected species. Have you considered how unlicensed interventions, including unlicensed culling, will be approached in the initial period after the instrument comes into force, and indeed thereafter?

I saw the news about that, two or three weeks ago. It is work in progress. We plan to sit down and consider the implications of the legislation. I guess that, as with all wildlife crime, we will seek a partnership approach to tackling any issues that arise.

Do you foresee particular challenges in relation to the enforcement that is envisaged? Will there be an additional workload? How do you see things developing?

There are challenges right across the wildlife crime arena. The approach that we take to other types of wildlife crime works well, and I see no reason why it cannot be replicated to deal with issues to do with beavers. We will have to see how things play out in the fullness of time.

Okay. Thank you.

I think that that concludes our questions. I thank the witnesses very much for spending time with us and answering our questions.

10:53 Meeting suspended.  

10:59 On resuming—