A gamekeeper has been cleared of illegally trapping a protected bird after it emerged police officers lied during the course of the investigation.
The case against Terry Lindsay collapsed when Sheriff Robert McDonald heard evidence that officers misled two people about why they were on the Fyvie Estate.
Police had received a tip-off that a sparrowhawk was “beside” a trap but lied to estate staff about why they were there – instead saying it was to look for a missing person.
Sheriff McDonald said that “outright lie” made the police officers’ evidence inadmissible and acquitted Mr Lindsay, 40, less than an hour after the trial started at Banff Sheriff Court.
‘It’s fatal that police have told an outright lie’
“It seems to me that the critical point is the lying,” Sheriff McDonald said.
“I think the evidence of the search is inadmissible. It’s fatal that police have told an outright lie to two members of the public who, as I pointed out, had some authority as to who comes onto the land.
“That compounds it. I find the evidence inadmissible.”
A Police Scotland spokesman said: “We are aware of the outcome in court and the full circumstances leading to yesterday’s trial are being reviewed.”
The verdict was met with “disappointment” by the RSPB, the bird welfare charity which initially came across the trap and reported its whereabouts to police.
Tip-off led police to Fyvie Estate
Pc Alison Davis told the trial she and her sergeant, Gary Johnston, spent about an hour scouring the estate on August 26 2020 after an RSPB informant made them aware there was a “trap with a bird beside it”.
She told procurator fiscal Gerard Droogan they were approached by a gamekeeper and the laird, Sir George Forbes-Leith, and told both that they were searching for a missing person.
“There was no truth in that as far as I am aware,” Pc Davis said, before adding: “He [Sgt Johnston] said to me afterwards that he was concerned that any evidence would be lost, or words to that effect.”
Mr Lindsay’s defence agent Paul Anderson asked Pc Davis why neither conversation was included in her statement.
Sparrowhawk found inside trap
She replied: “I didn’t consider them to be witnesses. I didn’t think of that as relevant to the inquiry. That’s why it’s not in my statement. It was certainly not intentionally left out.”
Mr Anderson asked: “Two lies were told in the space of one hour to two separate members of the public?”
“Yes,” replied the officer.
During her evidence, Pc Davis also explained how they eventually found the trap with a sparrowhawk inside around 20 metres from a pheasant breeding operation on the estate.
The bird was alive, she took photos of it and they released it, before placing the trap in the back of the van, she said.
‘The evidence is so tainted it cannot be considered by the court’
Mr Anderson said this decision to lie, alongside a decision to search the land “without reasonable cause to suspect someone was committing an offence”, made any police evidence “unreliable and uncredible”.
“There were lies told to two members of the public within one hour about why police were on the land,” he told Sheriff McDonald.
“It’s inexcusable. The evidence is so tainted it cannot be considered by the court.”
He added the lies became “fatal to the search” and invited the sheriff to offer an acquittal.
Sheriff McDonald agreed and Mr Lindsay, of North Haddo, Fyvie, was acquitted of the charge under the Wildlife and Countryside Scotland Act 1981.
‘We are disappointed’
Speaking after the case, the RSPB said more needed to be done to regulate the use of traps.
Ian Thomson, RSPB Scotland’s head of investigations, told The Press and Journal: “While we are disappointed that this case was dismissed after the court considered witness evidence from the police, we remain concerned that traps authorised by the General Licences issued annually by NatureScot continue to be poorly regulated, with no compliance monitoring, and are widely misused and abused.
“We hope that provisions introduced by the Wildlife Management and Muirburn Bill, currently being considered by the Scottish Parliament, bring better training, accountability and tighter regulation of such devices that are in widespread use on gamebird shooting estates in particular.”
‘The sparrowhawk was released unharmed’
A Fyvie Estate spokesman said: “As per other legally set Larsen traps, a sparrowhawk was caught and upon Mr Lindsay checking the trap, he found the police in attendance. The sparrowhawk was released unharmed by police officers.
“All traps are licensed and tagged, and a meat bait return form is completed as per Nature Scot guidelines showing the release of non-target species caught. The beauty of this type of trap is that they are checked several times a day and birds can be released unharmed.”
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