Scottish High Court of Justiciary Decisons

MATTHEW JACK WELSH MORRISON v. PROCURATOR FISCAL, AYR [2001] ScotHC 9 (1st March, 2001)

[1] The appellant was charged on a summary complaint containing five charges of contraventions of the Wildlife and Countryside Act 1981 and one charge of contravention of the Protection of Animals (Scotland) Act 1912. On 15 February 2000, after a trial, he was found guilty on all six charges.

[2] The charges fall into two groups. The first four charges relate, in one way or another, to the taking or attempting to take a wild bird by the use of a pigeon tethered as a decoy. Charges 5 and 6 relate to the appellant having in his possession a live bird, namely a pigeon, and carrying it in a manner liable to cause it unnecessary suffering. Having regard to the findings, and to the way in which the argument before us developed, it does not seem to be necessary to go into more detail of the individual charges.

[3] The essential findings in fact are as follows. On 10 August 1999 at 7.30 p.m. a blue Ford Sierra car E399 DOS, belonging to the appellant, was seen parked on a disused railway line near high cliffs beyond a caravan park at Heads of Ayr, Dunure. An area had been cut in cliff vegetation 200 feet above the shore, and, as appears from the summary of evidence, 100 feet below the top of the cliff, to form a trap site, and a live pigeon was tethered on the site. The sheriff finds that the pigeon was bait for peregrine falcons which nested on the cliffs. By 10 p.m. on 10 August, the appellant's car had gone. The sheriff then finds as follows:

[4] The sheriff also found that keeping a live pigeon restrained in this manner caused it unnecessary suffering. Subsequently, the appellant consented to his house being searched but nothing which the sheriff thought significant was found. When cautioned and charged with a contravention of the Protection of Animals Act, the appellant said "The pigeon was injured. I put it in a grey ferret bag."

[5] In the course of the trial, objection was taken to the evidence relating to the contents of the appellant's rucksack on the ground that the police had no authority under the Wildlife and Countryside Act to detain the appellant and that any search of his rucksack was tainted by the irregularity that he had been unlawfully detained and was inadmissible. The sheriff repelled that objection. Section 19 of the Act contains various powers which enable the police to search a person whom they reasonably suspect of committing an offence under the Act but the only power to apprehend a person is a power to arrest conditional upon the person refusing to give his name and address. In the argument before us, the advocate depute conceded that the detention had been an irregularity but submitted that, on the principles set out in Lawrie v. Muir 1950 JC 19, that irregularity might be excused.

[6] It is true that if the police had chosen not to detain the appellant but merely to search him on the spot, they would have been entitled to do so and would have found the objects which they did find in the appellant's rucksack. However, what they did in fact was to detain the appellant, take him, under detention, to a police station and carry out the search there. That was undoubtedly an irregularity, as the advocate depute conceded. Such an irregularity requires to be excused and the decision whether or not to excuse it depends on a balancing of the whole circumstances of the case. In that balance, it is important that the principle of the liberty of the subject should not be overlooked. Looking at the whole circumstances, it is our view that in this case the irregularity cannot be excused. The statute under which the police officers were acting contains only a limited power of arrest. The limitation must have been deliberate, and that indicates that Parliament took the view that, in the ordinary case, a person suspected of an offence against the statute should not be detained. In these circumstances it seems to us that there would have to be something to justify the detention before it could be treated as an excusable irregularity, and we do not think that it could be said that there was anything to justify the detention in this case. The search was carried out in the context of that detention and cannot be divorced from it. The consequence is that the evidence in regard to the finding of the live pigeon in the rucksack is inadmissible. As a result, the convictions on the two charges, numbers 5 and 6 on the complaint, which related to the live pigeon cannot stand and must be quashed.

[7] It was further argued on behalf of the appellant that, once the evidence in relation to the live pigeon had been excluded, there was insufficient to entitle the sheriff to convict of the first four charges on the complaint. This argument can, in our view, be dismissed briefly. There undoubtedly was a trap set to catch a peregrine falcon, employing a live bait. The appellant's car was placed in the vicinity of the trap on the evening of 10 August 1999. He returned and inspected the trap through binoculars on the following morning and climbed down to it and dismantled it. It is not, in our view, difficult to infer that it was his trap. The appellant did give evidence but the sheriff found him shifty and evasive and rejected his evidence entirely. In these circumstances, in our view, the appeal against conviction on the first four charges should fail.