Consultation Response Form Q1. Do you agree that the law in Scotland should be changed to give the SSPCA the powers as set out in section 4.1? Yes
No X
X
Q2. Please set out your reasons for your answer to Q1. Comments Question : Do you agree that the law in Scotland should be changed to give the SSPCA the powers as set out in Section 4.1 ? Answer : NO. Please set out your reasons for your answer to Q1. Reasons : I note that the consultation document includes at para.4 the following :‐ “ the mechanism for creating any new powers is not set out here as views are being sought on the principle of extending powers, not on how that might be achieved in law.” The mechanism by which that might be achieved in law is an important part of the context in which the power could be exercised : it is unfortunate that no hint whatever is able to be given as to how it is proposed to be done. In the absence of such explanation I set out below some of the reasons why I am opposed to any extension of the existing powers and some of the legislative framework within which a power would require to be formulated. It should be borne in mind that you should examine legislation in not only the light of the benefits which it will convey if properly administered but also in the light of the wrongs it would do and the harm it would cause if improperly administered. The principle that “ the proper use of anything is inseparable from its abuse” has been referred to in the Supreme Court in recent times in the context of press freedom : it is equally relevant in the present context. The courts are already only too familiar with instances of the improper use, if not the
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abuse, of existing powers by campaigning organisations in connection with the prosecution of crime. Indeed, a number of relatively high profile prosecutions have failed by reasons of such abuses. I have had it said to me in a public forum by a senior representative of a sister organisation to the SSPCA words to the effect that “ our Royal Charter empowers us to investigate (wildlife) crime and we will do that regardless of what the courts say.” Efforts over many years to encourage such organisations to operate within the existing authorised framework of, in particular, the exercise of powers of search have met with opposition. Seizure : It must be borne in mind that what is in contemplation is the granting of powers of search and seizure to a private campaigning organisation which is not answerable to any public authority for the application of its policy . Snaring and badger culls are current examples of such policy conflicts where activity which is authorised by law is opposed by the organisation to which Parliament proposes to give power of seizure of materials in the investigation of wildlife crime. Every employee exercising such powers as are contemplated has a patent conflict of interest which could impact on any objection taken to the legality of seizures or searches carried out under such powers. How a grant of such powers to a private organisation could be made responsibly is a matter which would require extraordinary justification : how it could be granted to such an organisation in the face of patent conflict of interest is inconceivable. Judicial examples exist of e.g. RSPCA seeking to expel from it organisation members who are opposed to any particular policy position which the organisation happens to adopt from time to time. This proposal is also being contemplated within the framework of an existing legislative structure which already enables the appropriate investigating public authority, namely the police, to call on the assistance of organisations such as the SSPCA to assist in the investigation of crime where the police consider it necessary. Such assistance is authorised by warrant. Whilst the consultation document does not address “ the mechanisms” for achieving such an extension of powers it is inconceivable that such a mechanism as is mentioned at 4.1 and which authorised the “seizing” of evidence should not also regulate what should be done with such evidence after it has been “seized.” Is an item seized, for example, to be available to SSPCA officers for handing over to their
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own in‐house or favoured “experts” for examination and reporting ? Is it to be handed over to the police and/or PF ? If so when ? Section 18 (3) of the Criminal Procedure (Scotland) Act provides that any article seized by police or procurator fiscal will be presumed to be in the same condition on examination as at seizure : is such a presumption to be contemplated ? The existing chain of transmission of evidence is a vital step in preserving that presumption. Contamination of evidence, in the widest sense of that expression, is a familiar and routine problem for investigating police officers who are required to take well recognised and regulated steps for the proper preservation of evidence : where stands the evidential value when a member of a campaigning organisation with a proveable conflict of interest simply removes a vital piece of evidence from a crime scene and hands it over to a favoured “expert” for examination and reporting ? Such situations are not hypothetical and examples of abuses within the existing structures are well known. Search : As I have already observed above, what is in contemplation is the extending of powers of search to a campaigning organisation which is not accountable to any public authority. That is to say, that a private organisation is to be given powers to invade the privacy of another private individual where the potential consequences can include imprisonment. It is often a matter of fine judgement as to whether a particular incident of the exercise of existing powers of search is in fact a search to investigate a crime which has been committed or is a “fishing exercise” to identify whether or not a crime has actually been committed. It is a distinction with which the courts are familiar and in respect of which a significant corpus of law already exists. Within that corpus of law are other examples of non‐police organisations being given powers, sometimes extensive, of search. Such organisations will, in general if not exclusively, be arms of Government e.g. HM Revenue and Customs and the Health and Safety Executive. Article 8 of the European Convention on Human Rights is a provision which is still very much in a process of development : it provides for respect for private life, family life home and correspondence. Funke v France (1993 A256‐A) and other similar cases have been considered in the context of Article 8 ; in Funke Customs Officers had the exclusive right to determine the length and scope of an investigation including the exercise of powers of search and seizure. Their actions were found to be unlawful on the basis that “the domestic law was too lax and full
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of loopholes.” The conjunction of the “right to roam” and extended powers of search will almost inevitably give rise to increased risk of instances of surveillance : examples of such surveillance already abound in cases under the Wildlife and Countryside Act 1981 and the product of such surveillance is commonly released into the public domain by countryside campaigning organisations such as the SSPCA. Such instances of surveillance are known to have resulted in the failure of prosecutions for serious wildlife crimes . To whom would, for example, photographs taken of an alleged crime scene belong ? Would the SSPCA officer concerned be able at will to move from his capacity as purely an SSPCA employee to his capacity as carrying out a legally authorised search? Are those capacities interchangeable or are they in fact one and the same ? When would e.g. photographs become the property of the prosecuting authority or would they always be the property of SSPCA to use as they see fit ? Peck v UK ( from Peck v Brentwood Council [1998] EMLR 697 ) was a case in which an individual had attempted suicide in a public street which had been caught on CCTV : on that material coming into the public domain it was held that the disclosure of the material caught on CCTV was a serious interference with the right to respect for private life and constituted a violation of Article 8. Use of such material by the SSPCA in any public forum e.g. seminars conferences and the like could give rise to some interesting questions. Assuming liability as in Peck, (above) would this be a breach of Article 8 by “a public authority” or by a private individual, viz the SSPCA. Examples can be pointed to where campaigning organisations have covertly informed broadcasting organisations of forthcoming searches and have facilitated coverage by such broadcasters. We need look no further than one very recent high profile example of such behaviour by a police force collaborating with the BBC to confirm that such events take place. Views expressed thereon by the Attorney General as to possible consequences for the legality of the search would require to be taken into account. The consequences of such facilitation in the most recent case are yet to be determined but have also given rise to a measure of public hostility. The campaigning organisations cannot be placed in a position in which they have powers of search and seizure which in fact exceed those of the police. Police surveillance is accountable and is regulated by, inter alia, the Regulation of Investigatory Powers (Scotland) Act 2000. One of the purposes of that particular piece of legislation is to provide a system which would be compatible with the right to privacy under Article 8 of the European Convention of Human Rights.
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The suggestion that the benefits flowing from these proposals would include “ an additional specialist resource made available at no cost to the public purse” is specious. That could be said of a number of private organisations in a variety of settings in law enforcement. On the application of the same logic it could as easily be said that if the SSPCA are suitable to do the job then the police can reduce the number of officers dedicated to wildlife law enforcement or remove them altogether. That is a short step and it will be borne in mind that the RSPCA in England is numerically the second biggest prosecutor in England , second only to the CPS. Adverse judicial comment on a number of these prosecutions is a factor which cannot be ignored . The suggestion that the powers are necessary or desirable because they would enable quicker response times in circumstances where police resources are restricted is equally specious : the fact that an SSPCA officer can arrive at an alleged crime scene before a police officer is not a reason for granting him a power of search and seizure . On the contrary it is an invitation to vigilantism and an acknowledgement that the police are under resourced in this area of law enforcement. Generally : many people including myself have worked over many years in an effort to break down the well known hostilities which exist between sections of the wildlife community. In my opinion the extending of the powers of the SSPCA in the way proposed is capable of undermining such limited progress as has been made and has the potential to have an adverse effect on wider relations within the wildlife community.
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Q3. If you would prefer to see changes to the SSPCA’s powers to investigate wildlife crime other than those set out in section 4.1, please describe them. Comments The status quo should not be disturbed.
Please return the completed forms to:
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