I have just had the pleasure of having an article published in in Issue 4 of the 2017 Juridical Review, the law journal of the Scottish Universities.
The article focuses on recent controversy surrounding some Crown Office and Procurator Fiscal Service (COPFS) decisions not to proceed to prosecution in cases of wildlife crime, despite the apparent availability of what I term ‘video data evidence’. This term reflects the modern conception of investigative video recording (whether or not undertaken covertly) and the storage of recorded material in electronic form (data) and offered as evidence.
Taking the contents of a publicly available letter of explanation exchanged between the COPFS and Graeme Dey MSP (Convenor of the Scottish Parliamentary Environment, Climate Change and Land Reform Committee) the article examines why investigative video data acquisition undertaken as part of an investigation might be conceived as being likely to be ruled inadmissible by Scottish Courts. The article builds on previous blog posts on the subject by Professor Peter Duff and this author.
I take the view that any investigator acting in a capacity outside the parameters of a ‘public authority’ in Scotland is therefore acting outside the ECHR-compliant data acquisition framework set out in the Regulation of Investigatory Powers (Scotland) Act 2000 (RIPSA). This means that a serious question mark attaches itself to the legality of obtaining evidence of criminal activity where such investigations are conducted by actors not being public authorities such as Police Scotland.
I conclude that however well-intentioned private investigators are in their pursuit of video evidence of criminality, they should, until such times as the Scottish Parliament enacts amended legislation, ‘subcontract’ operational investigation to a relevant public authority. This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision. In the longer term, the Scottish Government might benefit from examining the provision of a mechanism whereby well-intentioned private investigatory actors can be added to the list of ‘approved’ authorities for undertaking surveillance.
The Juridical Review is published by W. Green/Thomson Reuters and is available via Westlaw. An open access version of the article can be made available after an embargo period of 12 months. The most recent issue of the Juridical Review also carries an article by Malcolm Combe, on the regulation of short-term letting in Scottish land law. He has blogged about that article on his personal blog.
This post is by Dr Phil Glover. It builds on earlier blog posts on this site and flags his recently published academic article.
I note that you state: "This might be as simple as asking Police Scotland to obtain the relevant authorisation required under the RIPSA before delegating investigative functions back to the investigator under supervision." I am sure that you are aware that Police Scotland may not obtain such authorisation because the investigation involves a potential crime which only carries a maximum sentence of 6 months, shortly one hopes to be extended to 2 years if the recommendation of the review group set up under Professor Mark Poustie of Strathclyde University which reported in 2015. As this only recommends a sentence of 2 years it would still not be sufficient. As I advised at the recent Law Seminar held at the University at which you spoke I have submitted a Petition to the Scottish Parliament which suggests increasing the maximum sentence to 3 years, at which point authorisation could be obtained. I do not have an email address for you. If you contact me, I could send a link to a blog I have now set up in support of my petition. I would be pleased if you would take the time to read it.