Tim Bonner on the RSPB and surveillance

Countryside Alliance Chief Executive Tim Bonner writes: It can be tempting to run and hide when people who should know better do things which are indefensible. The Alliance has always, however, been very clear that the illegal killing of raptors is not just unacceptable, but deeply ignorant as well. There are no excuses for acting outside the law and the offence is multiplied when it involves a rare species such as the hen harrier.

Scottish prosecutors have recently dropped several long-running cases involving illegal raptor killing including one where the act of an individual shooting a hen harrier was caught on video by the RSPB.

The Alliance was not involved in any of these cases, nor is it privy to the details beyond those that have been publicised, but there have been questions raised about the admissibility of video evidence. We share the deep frustration of organisations like the RSPB that what seems to be clear evidence of offences has not resulted in convictions, and that no-one has been held to account for these crimes. However we are also very clear that controversy and inconsistency over the admissibility of video evidence gathered by organisations like the RSPB is largely their own responsibility, and could have been resolved years ago had non-statutory bodies which take on an investigative role properly addressed their activity.

There are a number of conservation and animal rights organisations which have created investigative functions which rely heavily on covert surveillance. The RSPB and the League Against Cruel Sports (LACS) are two obvious examples and they share intelligence and working practices. Their staff are trained by, and they often employ, ex-police officers to carry out sophisticated surveillance operations, but there is one fundamental difference between their activity and that of the police and other statutory bodies. They operate without any regulation or oversight, whereas covert surveillance carried out by statutory bodies like the police and security services is strictly controlled. The police and others have to be directly authorised by a senior officer or a judge to carry out such surveillance, having shown that operations are proportionate and intelligence led, and that the breach of the European Convention on Human Rights which is explicit in a covert surveillance operation is justified. RSPB and LACS, however, carry out covert surveillance on the basis of their own agenda with the absolute expectation that the police and the courts will accept video evidence gathered for the purpose of prosecution even when they have acted unlawfully, for instance by trespassing, whilst gathering it.

NGOs have been aware for years that such evidence will be challenged and that some courts will question its admissibility, whilst others will accept it, but they have done nothing to address this fundamental anomaly. In England and Wales the Crown Prosecution Service has even issued guidance that:

"Where the police are aware of the intention of the NGO to conduct covert surveillance and intend making use of the surveillance product in the event that it reveals evidence of a crime, it would be appropriate to seek an authorisation [under RIPA]".

Given that the police are absolutely aware that these organisations carry out such operations it is surely obvious that NGOs should seek authorisations for legitimate surveillance operations to remove any question about admissibility. The reason they do not lies in the word 'legitimate' and the fact that a huge amount of covert surveillance carried out by NGOs, especially those that are obsessed by hunting, is completely illegitimate. Such covert surveillance operations are not based on intelligence that could justify breaching people's right to privacy, they are simply shopping expeditions launched against people the NGOs do not like in the vague hope of recording a random offence of any kind.

This is exactly the sort of behaviour the ECHR and the Regulation of Investigatory Powers Act (RIPA) process was created to stop, and it is the refusal to submit surveillance activity to proper regulation and separate the justified from the unjustified which has created the current uncertainty. We share the RSPB's anger that people who have illegally killed birds of prey may not be convicted, but in that anger it needs to be honest that its own failure to address such an obvious anomaly in the evidence gathering process could be helping criminals avoid prosecution.

Follow Tim on Twitter @CA_TimB