In April 2026, gamekeeper Russell Mason was convicted at Perth Sheriff Court of an offence under section 1(1) of the Wildlife and Countryside Act 1981 by killing a goshawk which had been caught within a crow trap in Bridge of Cally, Perthshire. The evidence used to convict Mr Mason bears a striking resemblance to that used in the first conviction in Scotland, in December 2014, of a gamekeeper for this offence, namely the case of George Mutch and represents an opportune moment to consider how these cases proceed and what evidence can be legitimately used by the Crown.
Filming on private land
Prior to the George Mutch case, the Royal Society for the Protection of Birds (RSPB) began to place hidden cameras on estates throughout Scotland, focused almost exclusively on bird traps. Notwithstanding the fact that these traps were placed by members of the RSPB’s “Investigations” team, the justification provided by the RSPB was that research or “surveys” into the use of traps was being undertaken, hence the need for monitoring.
The RSPB provided such covert footage in both the Mutch and Mason prosecutions. In both cases, CCTV directed at a crow trap showed the gamekeeper approaching a trap which had inadvertently caught a protected bird of prey, and thereafter strike the bird with an implement to kill it.
According to the law of corroboration in Scotland, as it stands today, this type of video footage alone - if admitted in evidence - can be sufficient for a conviction, without any further evidence required
Given the ramifications for any one charged with a wildlife offence, if such footage is used, it is important to consider the legal basis for the admissibility of such evidence.
Legal position on surveillance
Surveillance of the type undertaken by the RSPB is unregulated.
In contrast, if Police Scotland were to undertake covert surveillance of the kind used in both cases, they would require authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 to use directed surveillance. This Act imposes safeguards to ensure proportionality and compatibility with a person’s right to respect for private and family life under Article 8 of the European Convention on Human Rights.
As readers will be aware, from our previous blog on the subject, the Scottish Society for the Prevention of Cruelty to Animals (SSPCA) has been granted enhanced powers by the Wildlife Management and Muirburn (Scotland) Act 2024 to investigate certain wildlife offences, when on land under their existing powers under the Animal Health and Welfare (Scotland) Act 2006. Those powers do not permit covert surveillance and as such the SSPCA would require to seek the assistance of Police Scotland to seek the authority to undertake the surveillance, under the 2000 Act.
The absence of any regulation of powers thus places the RSPB in a unique position as a partner agency to Police Scotland in the investigation of wildlife crime.
In order to place cameras, the RSPB (or any other investigators) require to enter land, be present there while setting up, and return for the footage. The Land Reform (Scotland) Act 2003 governs the ability to do so. Section 1(2) provides a right to be on land for three purposes only:-
- for recreational purposes;
- for the purposes of carrying on a relevant educational activity; or
- for the purposes of carrying on, commercially or for profit, an activity which the person exercising the right could carry on otherwise than commercially or for profit.
The investigation of crime is not permitted by any of these purposes. It follows therefore that anyone, excluding Police Scotland and the SSPCA, who accesses land to investigate crime is trespassing unlawfully.
Irregularly obtained evidence
If a person gathers evidence whilst themselves acting unlawfully, the evidence may be considered irregularly obtained.
The legal position on irregularly obtained evidence, in Scotland, is governed by fairness. In general terms, this means it may be excluded unless the irregularity can be excused.
RSPB surveillance has been challenged in the criminal courts. Whilst a challenge was unsuccessful in the George Mutch trial, the Crown began to relent on reliance on such evidence following subsequent challenges. On 30 May 2017, the Head of the Wildlife and Environmental Crime Unit wrote to the Environment, Climate Change and Land Reform Committee in connection with the Crown’s decision to discontinue two cases (Stanley Gordon and Craig Graham). The Crown said that “the placing of covert cameras was, in those cases, for the purpose of detecting crime and, as that activity was not authorised, the subsequent video evidence was obtained irregularly. The irregularity was not capable of being excused”. The Crown’s approach, however, appears to have changed in recent years.
Despite the Crown showing a willingness to use the RSPB’s covert surveillance, most recently in the Mason case, challenges can and should still be brought. Without landowner permission or any other authority, RSPB recordings are comparable to police officers undertaking a search without a warrant. and thus, arguably, evidence which has been ingathered unlawfully.
Vicarious liability – how this impacts landowners
Whilst the Mutch and Mason cases involved prosecution of individual gamekeepers, under the Wildlife and Natural Environment (Scotland) Act 2011, a land owner or manager can be found criminally liable if such an employee commits a wildlife offence on their land, subject to the defence of due diligence.
Issues of irregularly obtained evidence are thus relevant not just to the individual but to the landowner or manager too. If you have a wildlife crime issue, or would like to discuss how you can best protect you and your business, , please do not hesitate to contact Clare Bone or Christoper Shaw, or your usual Brodies contact for expert advice and support.
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