As mentioned on this blog before, I have a role in relation to the School of Law at the University of Aberdeen’s blog. This has been a useful forum for colleagues and for me, with a number of spin-offs in other online fora (for example, this post by Dr Heather Green became a Democratic Audit piece) or in the media (the most surreal example of that being when I appeared on BBC Radio Scotland speaking about Nazis and how two Aberdeen students sat law exams as Prisoners of War).
The content on the Abdn blog is driven in a variety of ways, but the two most common ways are: a) colleagues approaching me with something they wish to air; or b) me approaching colleagues after they have done something (a conference paper, a news appearance, a publication etc.) and asking for a related post for the blog.
A recent post by my colleague Professor Peter Duff was an example of the latter. BBC News quoted him in relation to the (most recent) decision of the Crown Office and Procurator Fiscal Service (COPFS) not to bring proceedings in a case of apparent raptor persecution, so I hassled him for a post.
To outline the situation, in Scotland nature conservation laws exist to criminalise conduct designed to affect the population of birds of prey. That being the case, these laws operate within the overall criminal law scheme and crimes must be proven beyond reasonable doubt using evidence that can be put before a court (and possibly a jury) for consideration. The COPFS has a role in deciding what cases to bring before a court.
Pete’s blog post attracted a response from the Raptor Persecution Scotland blog and the readers of it. Pete is a pretty robust chap and has written authoratitatively about some controversial areas of law: for example, relating to criminal evidence reform in general and sexual offences and the system known as the “rape shield” (which prevents certain questioning of a victim of alleged sexual assault) more specifically. As such he probably does not need me to defend him. I did feel a certain smidgen of responsibility though, as the person who encouraged the blog post. I also take some responsibility in advocating a blog post that was accessible to all readers, so whilst some who knew the issue well might have felt Pete was somehow glib in his treatment, I was thinking about someone coming to the issue cold. I still think Pete’s post operates as a useful primer to the issue, despite critique.
Another person who felt a certain responsibility was my colleague Dr Phil Glover. He had suggested another slant for Pete to mention, which Pete duly did in a throwaway conclusion to his blog post. That conclusion, about investigatory powers and the applicability of rules that govern certain public authorities (including Police Scotland) was criticised by some as being clearly wrong, as the Royal Society for the Protection of Birds (RSPB) is not a relevant public authority in terms of the applicable section of the Regulation of Investigatory Powers (Scotland) Act 2000. Phil sought absolution by writing a comprehensive post of his own. As that post notes, it might not be as simple as saying the RSPB has a freer hand when acting in situations that might then spin into criminal proceedings. For my part, it is fair to say I was minded for Phil’s blog post to be as technical as it needed to be, so as to stave off any criticism for not considering the matter deeply enough.
This Scots private lawyer cannot meaningfully add to those contributions, save for one observation about access to land which cropped up in the comments on Raptor Persecution Scotland and in related social media discussion. Another insight relates to blogging in general in law blogging in particular, which I will turn to first.
Perceptions of Bloggers
I was struck by the reaction from some quarters (but not, I stress, the Raptor Persecution Scotland blog itself) that Pete could have been holding a torch in relation to the wider issue of raptor persectution.
Anyone writing on the internet or indeed expressing an opinion anywhere knows to beware the ad hominen riposte: play the man, not the ball, and all that. Be that as it may, it is an attack new kids on any block seem to be susceptible to. Those already on the block might, with justifiable scepticism, wonder who any Johnny-come-lately telling them what to think is. That scepticism is fine, up to a point, but dismissing these people outright could be the wrong approach.
Like a terrible social scientist, I will back this up with a data set of one anecdote.
I found myself in a similar blogging quagmire with associated kickback from some quarters in relation to another very different Scottish matter, namely when I wrote about souvenir plots to land. Eventually, this settled down when it became clear I was mainly setting out the law and policy relating to souvenir plotting and did not actually have any particular vested interests. (Well, no vested interests beyond: 1) healthy scepticism; and 2) me kicking back in turn against those who besmirched my reputation in the initial kickback.) I do wonder if this is something law bloggers need to be mindful of though. Sure, we might know the law in the round, but we won’t necessarily know the law as it has actually applied to real people affected by that legal regime. Not that that changes anything, a valid point is a valid point irrespective of who makes it. It just means law bloggers might need to be more braced than others, if that makes sense.
Access to Land
One legal issue I can comment on relates to the analogy Pete drew between video surveillance on an estate and someone setting up a camera to record activity in a domestic garden.
Pete was correct to point out that workers carrying out their day job and landowners do have certain rights to privacy. Those privacy rights, however, are not in the same magnitude as someone might expect when at home or in her garden. (In fact, this point was stressed by George Monbiot recently when he was pushing for more access to the English countryside – privacy should not, he argued, extend to “hundreds of hectares”.)
One way Scots law caters for the expectation of and right to privacy is to exclude the operation of the right of responsible access (in terms of the Land Reform (Scotland) Act 2003) to domestic gardens, per section 6(1)(b)(iv) of that legislation. This provision has been the subject of much litigation and writing, but it basically means that you cannot rely on the right of responsible access to go rambling over or stop for a picnic on a domestic occupier’s lawn whilst in peering distance of her window.
Clearly, setting up a camera in such a setting would also be problematic, but the fact that this exclusion to the right of responsible access does not apply in other areas does not mean that the right of responsible access would allow recording elsewhere in all circumstances.
A first point relates to the legislation itself, and whether it allows recording. Photography and the like might be allowed as a recreational activity or for educational purposes (and perhaps even commercial purposes, this being something Douglas Cusine considers in a recent Scots Law Times (News) article), but that does not extend to a right to leave a camera on someone else’s land. The right of responsible access is for people, not for inanimate objects. *See also the point below about using access rights to investigate and detect crime.
Finally, and most importantly in the context of the present discussion, privacy concerns (and related human rights) do not stop when land is not excluded under the 2003 Act. Just because something is recorded on non-excluded land does not mean it will be admissible evidence in a criminal trial, for reasons people like Pete and Phil can explain better than me.
There is a wider debate as to whether the current Scots law system is correctly positioned to allow for enforcement of conservation laws, specifically in the context of birds of prey. I welcome that debate. Irrespective of what happens with that debate, I also welcome justified analysis of decisions that the COPFS takes within the existing system.
Unsurprisingly, I also welcome the contributions of Pete and Phil to the overall debate, and I hope others better versed in the issue than me (and indeed Pete and Phil) welcome their contributions too. Finally, I hope this post is welcome, in terms of its brief contribution on one legal point and also in terms of some wider thoughts about blogging. It certainly helped me sort out some of my own thoughts.
*UPDATE 22 JUNE AT 19:09
In the context of the Land Reform (Scotland) Act 2003, for completeness it is worth recalling what the COPFS said in its recent letter (PDF) to the Environment, Climate Change and Land Reform Committee of the Scottish Parliament, namely the following:
The statutory access rights granted by section 1 of the Land Reform (Scotland) Act 2003 are granted for specific purposes. The purpose of investigating and detecting crime is not one of those purposes. It follows that someone who is on land for such a purpose is not there pursuant to the rights granted under the Act.
In any event, the Scottish Outdoor Access Code states that where people exercising access rights wish to undertake surveys of natural or cultural heritage which require the installation of any equipment or instruments they should “seek the permission of the relevant land managers”: para. 3.64.