Concerning implications of case involving jailing of gamekeeper by Drew Allan Feature Writer & Columnist

george-mutch

George Mutch the disgraced Gamekeeper sent to prison this week for committing serious wildlife crimes.

More interesting comments regarding George Mutch’s prison sentence handed down this week by a Scottish Sheriff  have been published by the HeraldScotland today. These comments, like the one at the end of this article, make very interesting and in one respect amusing reading. There is a significant legal difference between planting a camera to track and record Wildlife Crime in the countryside, and  installing a surveillance devise in people’s gardens or their homes, which of course the Police & RSPB are legally prevented from doing. In the latter, without specific approval from senior officer,  the police in England are not allowed to do this as they are regulated by the Intrusive Surveillance Section 32 Regulation of Investigating Powers Act 2000.

See below to read the details of Section 32 that apply to the police

Being on private land even if the open access provisions apply requires an intrusive surveillance authority. Criteria set out below.

32 Authorisation of intrusive surveillance..

(1)Subject to the following provisions of this Part, the Secretary of State and each of the senior authorising officers shall have power to grant authorisations for the carrying out of intrusive surveillance. .

(2)Neither the Secretary of State nor any senior authorising officer shall grant an authorisation for the carrying out of intrusive surveillance unless he believes— .

(a)that the authorisation is necessary on grounds falling within subsection (3); and .

(b)that the authorised surveillance is proportionate to what is sought to be achieved by carrying it out. .

(3)Subject to the following provisions of this section, an authorisation is necessary on grounds falling within this subsection if it is necessary— .

(a)in the interests of national security; .

(b)for the purpose of preventing or detecting serious crime; or .

(c)in the interests of the economic well-being of the United Kingdom. .

[F1(3A)In the case of an authorisation granted by the chairman of the OFT, the authorisation is necessary on grounds falling within subsection (3) only if it is necessary for the purpose of preventing or detecting an offence under section 188 of the Enterprise Act 2002 (cartel offence).] .

(4)The matters to be taken into account in considering whether the requirements of subsection (2) are satisfied in the case of any authorisation shall include whether the information which it is thought necessary to obtain by the authorised conduct could reasonably be obtained by other means. .

(5)The conduct that is authorised by an authorisation for the carrying out of intrusive surveillance is any conduct that— .

(a)consists in the carrying out of intrusive surveillance of any such description as is specified in the authorisation; .

(b)is carried out in relation to the residential premises specified or described in the authorisation or in relation to the private vehicle so specified or described; and .

(c)is carried out for the purposes of, or in connection with, the investigation or operation so specified or described. .

(6)For the purposes of this section the senior authorising officers are— .

(a)the chief constable of every police force maintained under section 2 of the M1Police Act 1996 (police forces in England and Wales outside London); .

(b)the Commissioner of Police of the Metropolis and every Assistant Commissioner of Police of the Metropolis; .

(c)the Commissioner of Police for the City of London; .

(d)the chief constable of every police force maintained under or by virtue of section 1 of the M2 Police (Scotland) Act 1967 (police forces for areas in Scotland); .

(e)the Chief Constable of the Royal Ulster Constabulary and the Deputy Chief Constable of the Royal Ulster Constabulary; .

(f)the Chief Constable of the Ministry of Defence Police; .

(g)the Provost Marshal of the [F2 Royal Navy Police]F2 ; .

(h)the Provost Marshal of the Royal Military Police; .

(i)the Provost Marshal of the Royal Air Force Police; .

(j)the Chief Constable of the British Transport Police; .

[F3(k)the Director General of the Serious Organised Crime Agency and any member of the staff of that Agency who is designated for the purposes of this paragraph by that Director General;] .

[F4F3(m)an officer of Revenue and Customs who is a senior official and who is designated for the purposes of this paragraph by the Commissioners for Her Majesty’s Revenue and Customs;] .

F4(n)the chairman of the OFT. .

George Mutch

However the case of George Mutch appears to have some very concerning implications. It would appear that the RSPB put a recording device on private land without the knowledge or permission of the landowner. The resulting film was then accepted by the sheriff as competent evidence and the gamekeeper was convicted on this evidence. On whose legal authority was the recording device so placed? Were the RSPB acting without legal authority? If they had legal authority how far does this authority extend? Can they place snooping devices in our gardens? Is the next logical step that the RSPCC could place cameras inside people’s house ostensibly to identify child abuse?

 

4 comments to Concerning implications of case involving jailing of gamekeeper by Drew Allan Feature Writer & Columnist

  • Falcoscot

    Does Joe Public really understand surveillance ?
    Google Earth is only a tiny percentage of what Western Governments have available to them when required.

  • Alex Milne

    I don’t see the issue myself. The article makes clear that the same law applies in England and Scotland. In England despite there being no right to roam, courts have repeatedly allowed video surveillance by he RSPB. In Scotland, despite there being no case to answer by the RSPB over the right to be there, courts have not up to now allowed video evidence. Although each case needs to be reviewed on it’s merits, it is now more likely to be approved after the Sheriff’s judgement in this case. Clause 32 applies only to the police. The court has to decide in each other case on it’s merits, wherever it occurs.

    Editor’s Comment. Alex, in your third sentence you say there is NO right to roam in England. Of course the right to roam in England became law many years ago. The RSPB and any member of the public are able to legally set up a video camera to record illegal activity on any private estate without the consent of the owner. Any incidents of illegal activity will be taken into consideration by the courts. As you say, in Scotland its up to individual Sheriffs.

    • Alex Milne

      Thanks for the reply. I thought the 2000 Countryside and acts of way act did not include much countryside outside of National parks. As an example I looked at the area around Stody, but did not find much open access land. After consideration of your correction to my statements, I still feel that the act still does not seem to have a greater effect in Scotland than England.

      Editor’s Comment. Alex, yes here in England the Right to Roam act provided the public with access to most moorlands throughout northern England, much to the annoyance of the estate owners who said this would drive away raptor species like the hen harrier. We heard a rumor that last year the North West Raptor Group were informed by one moorland landowner that a camera set overlooking a peregrine site to catch egg or chick thieves was set illegally. The group were advised they required a licence to install a surveillance camera on open moorland for any reason. This advise obviously was nonsense, as we now know the RSPB have been setting cameras on privately owned estates in England and Scotland without a licence or land owner approval.

      The situation regarding the camera set that photographed George Mutch is a little different, because before such evidence can be introduced into court in Scotland the Sheriff makes the final decision on the matter. In Scotland the public have the right to walk the hills at any time, although when shooting is taking place notices are erected warning the public of the danger.

      One additional significant difference between ringing wild schedule 1 birds in England and Scotland. In England before any licensed schedule 1 ringer can ring, say for example any bird of prey at the nest, the consent of the landowner must first be obtained; this is a BTO rule and is taken very seriously by the BTO. Whereas in Scotland most raptor ringers do not seek approval from the estates before ringing chicks, some do, but most do not. There is a strong belief that asking any estate owner for approval to ring chicks at a nest would result in the nests destruction. This is why many ringers even in England often ring at the nest without seeking approval from the estate.

  • paul williams

    If it is to believed that Landowners of Grouse Moors believe there should be more Hen Harriers on their Moorland, Why is there an issue about a camera being used for scientific data…???? Why is permission required when all parties are like minded…Puzzled….PS…We own nothing on this planet…There are no pockets in a shroud.