APPEAL COURT judges have thrown out a Crown challenge over the acquittal of an Angus gamekeeper on a buzzard trapping charge.
In June this year, Anstruther Smith, of Cortachy, near Kirriemuir, faced trial at Forfar Sheriff Court on charges relating to alleged breaches of the Wildlife and Countryside Act.
The case followed the discovery of three buzzards in a trap in woodland on Airlie Estate, near Kirriemuir, in March 2011.
The Crown case collapsed after Sheriff Kevin Veal ruled the evidence of SSPCA special investigations officer Alistair MacGregor inadmissible.
Mr McGregor had told the court how he and a non-uniformed wildlife police officer spoke to Mr Smith after the birds were found in a crow cage trap, a large structure with a funnel entrance.
Crow cage traps are covered by general licence conditions and Mr Smith was also charged with using such a device which did not carry a proper tag.
After the discovery of the trap and the raptors all of which were released Mr Smith, who is in his early 30s, spoke to the men in his home, but the outcome of the trial rested on the way the interview had been conducted.
Mr Smith’s defence counsel argued that it would have been impossible for the gamekeeper to waive his right to legal advice since he had not been properly advised about the matters he was being questioned on.
The sheriff said he believed the gamekeeper had not been given proper information about why he was the subject of an interview.
The conduct of the interview involving Mr Smith became a “trial within a trial” during the proceedings, leading to the SSPCA officer’s evidence being declared inadmissible and the subsequent collapse of the Crown case.
The matter was subsequently appealed by the Crown and considered at the Court of Session by a panel comprising Lady Paton, Lady Smith and Lord Wheatley.
A newly issued opinion delivered by Lady Paton has backed the decision of Sheriff Veal.
It stated: “In our opinion, the sheriff’s reasoning and conclusion cannot be criticised.
“The respondent was suspected of the offences of taking and controlling three buzzards, failing to read the general licence and understand the conditions, and using a cage trap which did not carry the required tag or sign.
“Yet he was not advised (a) of any alleged offences; (b) that he was the suspect in relation to those alleged offences.
“It was in those circumstances that he declined an offer of access to legal assistance (and was not advised that he could change his mind on that matter).
“The question of fairness is ultimately one of fact and degree, to be assessed by the judge at first instance.
“In our opinion, in the circumstances of this case, the sheriff was well entitled to form the view that the interview had been unfair. It follows that the Crown appeal should be refused.”
Mr Smith and Airlie Estates were not available for comment on the case.
gbrown@thecourier.co.uk