saveseilsound campaigner’s rejected FoI request opens up an another unwelcome impact of the planned abolition of the requirement for corroboratory evidence

[Updated below, 9th May, with response from Ewan Kennedy.] Ewan Kennedy, of the resourceful saveseilsound group of marine environmental campaigners long concerned about the impact on that environment of the pronounced pollution from the salmon cages of fish farming companies – currently focused on the operation of the Pol na Gille site in the waters of the Slate Isles – has uncovered a corking legal conundrum.

This has emerged in the process of his seeing an important Freedom of Information request of his rejected – and confirmed as a rejection at review – by the Information Commission. It is a significant matter.

Mr Kennedy has identified a new abuse of justice that would result from the Scottish Government’s determination to abolish the need for corroboratory evidence to secure a conviction.

In two communications to the Information Commission, reproduced verbatim below, Ewan Kennedy has identified a series of key issues which will horrify many people who assume they live in a democracy in which all are equal under the rule of the same laws and regulations.

  • He points to flagrant breaches of the law by the operator of the Pol na Gille fish farm which, in the six month period from October 2013 to March 2014, exceeded – and sometimes by 50% – a salmon tonnage maximum for POl na Gille which had already been controversially doubled by SEPA to 1,500 tonnes.
  • He notes that the operator of the Pol na Gille site responsible for this signal breach – Meridian Salmon Farms (Argyll) Limited – no longer runs the site, a responsibility taken back by Meridian’s parent  company, Marine Harvest – an action which could be regarded as a move to obstruct any potential legal action on the Pol na Gille tonnage increases, which was arguably a criminal offence.
  • He resurrects the thorny issue of SEPA accepting as valid evidence of legal compliance self-monitoing reports filed by fish farm operators.
  • He reminds the Commissioner – and all of us – of the bizarre reality that: ‘aquaculture [is] almost unique in being officially permitted to pollute as a part of its normal activities’.

In the matter of the role of corroboratory evidence – which currently remains a legal requirement in Scottish law [and which For Argyll sees as a matter of major public interest that it should continue to be so] – Mr Kennedy nails a key issue. He says, in the letter second below:

‘I would also be intrigued, as a former defence solicitor, how the Crown Office would seek to establish guilt at a trial where the only prosecution evidence consisted of self-monitoring reports filed by a fish farm company with SEPA.

‘It would not normally be the case that an uncorroborated statement by an accused person would be sufficient to convict.’

What Mr Kennedy does not say is that this situation also opens up the possibility of an uncorroborated statement by an accused person being sufficient to secure a judgment in that person’s favour – in the event of such a statement having been a misrepresentation of the actuality.

The background to the situation – which is a matter of profound public interest – is detailed below in the series of three communications from Ewan Kennedy to the Information Commission, requesting the release of information on the Pol na Gille matter.

Original FOI request by Ewan Kennedy on 4th December 2015

As the secretary to the saveseilsound Campaign Group I hereby request certain information from you under the Freedom of Information Scotland Act and/or the Environmental Information Regulations as follows:-
1          A note of the numbers of cases notified to the Crown Office and Procurator Fiscal Service in the period from 1 November 2012 to date by the Scottish Environment Protection Agency relating to  operators of fin fish farms in respect of (a) their water-based facilities and (b) in respect of their facilities on land. Please give sub-totals for each calendar year or part thereof in the said period.
2          In relation only to such facilities located in the area of Argyll & Bute Council a detailed breakdown giving (a) the names of the operators (b) the sites affected (c) the date(s) of the referral(s) (d) the charges, if any, which resulted and (e) the outcomes of proceedings following on such charges.

I look forward to hearing from you

Yours sincerely

Ewan G Kennedy

Kennedy letter to Information Commission, 12 February 2016

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I refer to your response dated 17 February informing me that you have decided to apply an administration of justice exemption in order to withhold certain information. I note that your decision has involved balancing the public interest in disclosure against the need to ensure that the police and other agencies are not inhibited from disclosing information “in a manner which is free and frank”. I respectfully disagree with your decision and write to ask for a review. I would draw attention to the following points, which I trust will be considered in the review process.

As I mentioned in a telephone conversation with your office last December the concerns which prompted my request on behalf of the saveseilsound campaign group relate to the stretch of water surrounding the Isle of Shuna (Seil/Shuna/Melfort), which for some time we have been arguing should be treated as together forming a single sea loch for the purpose of environmental protection. There is extremely strong public concern among those with knowledge of local conditions in Seil/Shuna/Melfort about the extent to which the health of the seabed, the water quality and the condition of the shoreline are affected by operations at the many industrial fish farms there. I also mentioned that of particular concern was the site at the Southeast end of the Isle of Shuna known as Pol na Gille.

Unlike the situation with almost every other form of statutory regulation, aquaculture depends for its policing entirely on a system of self-monitoring, in term of which operators are asked to file periodic reports with SEPA on certain topics relevant to pollution, such as chemicals and medications used, quantities of toxic waste dumped into the environment and stocking levels. Mortalities require to be reported as bulk figures, but not causes of death. SEPA then edit the information and publish some of it on their website. For example Pol na Gille has been recorded as “unsatisfactory” but the reasons for that finding were not published and indeed withheld from disclosure under FOI.

The purpose of the regulatory system is to avoid “excessive” damage to the environment, aquaculture being almost unique in being officially permitted to pollute as a part of its normal activities. In this context the permitted stocking levels are very important, because SEPA calculates the amount of biomass which can be held in cages at a particular site to take account of seabed and tidal conditions there, based on measurements and a computer system known as autodepomod.

Until recently the site at Pol na Gille was licensed to hold a maximum of 750 tonnes of salmon. Stocked at that level it appeared to satisfy the requirements of SEPA, although members of the public became aware that seabed conditions were poor. I was personally present when a dive took place there in order to record video footage of the seabed, which later formed part of a short film that can be viewed online here.

That film was published in 2012. The operators later asked SEPA for permission to increase the permitted biomass to 1500 tonnes, which was agreed to by SEPA despite strong representations from local residents and environmentalists.

Information published by SEPA on its website disclosed inter alia that in the period between October 2013 and March 2014, both inclusive, tonnages at Pol na Gille were always in excess of this, sometimes by a factor of 50%. To put this into context, if we assume, being kind to the operators, that the salmon were reaching maturity at about 4kg per fish, the permitted stocking would allow 375,000 fish to be caged at Pol na Gille. Overstocking by 50% means that an additional population of at least 137,500 must have been in the cages.

It is impossible to overstock, especially over a period of several months, by accident.

I asked SEPA under FOI to tell us what they were doing about this obvious breach and they applied the same exemption that you seek to apply, thereby implying that matters might be in the hands of the Crown Office.

There is encouragement from bodies such as SEPA to the public to get involved in reporting crime. The task of the police force and bodies such as the Crown Office would be much more difficult without such involvement. In common with all others involved in saveseilsound my concern is to ensure that the system of regulation works and that persons deliberately breaking the rules are brought to justice. I am aware that one of the very few prosecutions against the operator of a fish farm in Seil/Shuna/Melfort was initiated only following great persistence by a local environmentalist and diver.

In framing my FOI request to you I was extremely careful to ask for only the most basic details, essentially to find out if any action is being taken in respect of the apparent breach at Pol na Gille. I did not and do not seek disclosure of any evidence, details of witnesses etc. Is there not a clear public interest in our having that information, sufficient to overcome any possible inhibitions at SEPA?

Finally, although strictly not relevant, I am concerned that in view of the delay that has occurred any prosecution may now be time-barred. Are you able to assure us that this is not the case and perhaps even indicate a time scale within which a decision about proceedings is likely to be made?

I look forward to hearing from you.

Yours sincerely

Ewan G Kennedy

Kennedy response to Information Commission review  of rejection of FoI request

I refer to your email of 21 March, with which you sent a letter confirming that my request for a review of the Crown Office’s refusal to disclose certain information regarding possible prosecution(s) of fish farm operators in Argyll & Bute had been rejected.

You also referred me to section 48 (c) of the Freedom of Information (Scotland) Act, which exempts from referral to the Information Commissioner information held by the Lord Advocate as head of the prosecution service. As that section is categorical in its terms I accept that further steps would be pointless.

Regrettably, the refusal to disclose information by the Crown Office, which followed on a similar refusal by SEPA, leaves behind an extremely unsatisfactory situation, as follows.

The site known as Pol na Gille is current licensed to carry 1500 tonnes of biomass, but in the period between October 2013 and  March 2014 tonnages were always in excess of this amount, sometimes by a factor of 50%. This can be assumed to have had a damaging effect on the local marine environment and also appears to constitute a breach of the relevant regulations and potentially a criminal offence. When members of saveseilsound became aware of the apparent breach towards the end of last year we naturally wished to discover if any action was being taken by SEPA or by yourselves.

We now know that action is being contemplated by the Crown Office against someone, in respect of some violation of a regulation somewhere, but do not know if it is the matter we are aware of or something else. Plainly this is entirely unsatisfactory, both to concerned members of the public, and also to the operators of Pol na Gille.

Regarding the latter, we note that Pol na Gille was operated by Meridian Salmon Farms (Argyll) Limited during the relevant period, but in April 2014 the trade and undertaking of that company was “hived up” to its parent Marine Harvest, after which Meridian is presumably no longer operational. It is possible that the company may now be wound up, in which case any proceedings could be pointless.

We were also concerned that any prosecution would be time barred, as we understand that there is a general time limit of twelve months on summary prosecutions in Scotland. Our local MSP Mike Russell wrote to the Lord Advocate asking about this and was reassured that there is no applicable time bar in a case of this sort.

I would also be intrigued, as a former defence solicitor, to know how the Crown Office would seek to establish guilt at a trial where the only prosecution evidence consisted of self-monitoring reports filed by a fish farm company with SEPA. It would not normally be the case that an uncorroborated statement by an accused person would be sufficient to convict. In view of the terms of the section of FOISA referred to I suppose that this must remain a mystery.

Yours sincerely

Ewan Kennedy

Note: An article written by Ewan Kennedy for For Argyll in 2013 on this same issue is well worth reading: Ewan Kennedy: The line in the Sound.

9th May update: response to article from Ewan Kennedy

‘I am grateful on behalf of saveseilsound to Newsie for giving publicity to our attempts to find out what is being done by SEPA and the Crown Office to enforce the rules about permitted levels of pollution in the stretch of water comprising Seil Sound and lochs Shuna and Melfort (Seil/Shuna/Melfort). It may be helpful for me to supply some background for those who have not been following the story, which has been largely ignored in the mainstream media.

‘The Scottish Government (SG) has over the years refused to designate Seil/Shuna/Melfort as a single sealoch for the purposes of planning, preferring instead to view only Loch Melfort as such and the remainder as effectively open sea and outwith planning constraints. Strangely this view is not shared by the industry itself, which sees the area as a single stretch for farm management purposes, a position for which there is very good scientific backing. As recently as few months ago SG refused to change its position, in response to a written question submitted by Mike Russell MSP.

‘The effect of this is that Seil/Shuna/Melfort has seen rapid expansion, with consents granted by Argyll & Bute Council, objections being invariably ignored, the most recent case being the massive installation at the South West corner of Shuna. Farms such as Pol na Gille have had their permitted tonnages increased, despite clear evidence of seabed damage (look at the video linked in the article). This has happened at a time when the industry itself is looking at less damaging ways of ensuring sustainability, by for example moving farms further offshore, using close containment etc.

‘There are now about ten operational farms in Seil/Shuna/Melfort, plus two major Scottish Water sewage treatment systems (with some operational problems), plus countless domestic ones, plus several hundred yachts berthed at Craobh Haven and elsewhere, some working farms and a few industrial sites, all discharging into an area with very limited tidal flushing. One does not need to be a crank to be concerned about this, indeed one of the bosses at Marine Harvest told me some years ago that he was glad his company did not then operate at Ardmaddy (but thanks to a take-over they do now).

‘The European Environmental Impact Assessment Directive requires any assessment to be comprehensive, looking at all the sources of pollution in an area. SEPA have confirmed to saveseilsound that this has never happened at Seil/Shuna/Melfort. We are working on a complaint to the EU Commission regarding this failure.

‘I have to take issue with one item in Newsie’s article. The issue with proving a criminal case is not primarily to do with corroboration, or the proposed abolition thereof. Rather it’s a fundamental point that except in extremely limited circumstances written statements don’t prove themselves, they require people to come to court and speak to the facts they narrate, before we get to the current requirement for corroboration. Given that the company need not cooperate with the authorities I really don’t see how the Crown Office intend to get round this and suspect this is one reason why they have been sitting on the case. Sadly it seems we’ll never be told.’

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Related Articles & Comments

  • The notion of a company’s self monitoring of its activities being accepted as evidence by the relevant authorities that it’s complying with the law surely stretches well beyond the fish farming industry, and sounds uncannily like the procedure that enabled faulty construction of schools in Edinburgh (and elsewhere in Scotland) to go unchallenged – until they started to fall apart.

    Like or Dislike: Thumb up 4 Thumb down 0

    Robert Wakeham May 8, 2016 6:30 pm Reply
  • I think Mr Kennedy should take up scrabble or bridge in his retirement. Methinks he has too much time on his hands these days.

    Like or Dislike: Thumb up 2 Thumb down 8

    Mel Gibson May 8, 2016 8:41 pm Reply
    • Sounds like you should declare an interest, ‘Mel’.

      Like or Dislike: Thumb up 3 Thumb down 0

      Robert Wakeham May 9, 2016 2:01 am Reply
      • My interest, “Robert”, lies not with any of the commercial companies mentioned but with a) the increasing need for sustainable sources of protein, b) the need for wealth creation and employment in rural Argyll, c) irritation that the FOI law is abused by individuals with personal axes to grind (to whom should I send an FOI request to find out just how much public finance is wasted responding to endless FOIs?).

        Like or Dislike: Thumb up 2 Thumb down 1

        Mel Gibson May 9, 2016 7:26 am Reply
        • Spin it around Mr Gibson; if the government made reporting of these fairly banal facts mandatory instead of forcing locals to recourse to endless(and in this case fruitless)FOI requests, there would be no cost to anyone and everyone would be a lot happier that the fishfarms were not despoiling the environment beyond the permission already granted to them. Transparency has been on the FM’s lips many times this last month, perhaps she ought to actually follow through and give us some transparency rather than just blethering a good game.

          Like or Dislike: Thumb up 2 Thumb down 1

          db May 9, 2016 8:22 am Reply
          • Mrs.

            Like or Dislike: Thumb up 1 Thumb down 0

            Mel Gibson May 9, 2016 11:46 am
      • My apologies if your name really is Mel Gibson – I thought you were one of the hermit crabs who contribute to this blog.

        Like or Dislike: Thumb up 2 Thumb down 0

        Robert Wakeham May 9, 2016 12:07 pm Reply
  • This consistent denial by Government Departments to accept responsibility has become ‘the norm’. Executive Officers and heads of departments throughout the civil service are quick to point out that the fault lies within another organisations operation. It matters not a jot who’s found to be a fault as they will be removed on promotion to head some other department. The age of accountability is long gone….unfortunately.

    Like or Dislike: Thumb up 5 Thumb down 0

    Alistair May 8, 2016 8:52 pm Reply

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