Sheriff Appeal Court upholds convictions for disturbing dolphins and pilot whales off Aberdee

About this case:

• Citation:
  [2026] SAC (Crim) 12
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Wade

Richard James Greenhowe, owner and skipper of the sailing vessel Seacab, appealed against convictions under regulation 39(2) of the Conservation (Natural Habitats, etc) Regulations 1994 arising from two incidents off Aberdeen in July 2023. The court held that the offence focuses on the accused’s deliberate or reckless conduct rather than requiring proof of a particular scientifically defined effect on the animals. Eyewitness evidence and video footage could therefore be used by the sheriff alongside expert evidence to determine whether the mammals had been disturbed.

G Reid, advocate, instructed by Faculty Services Limited, appeared for the appellant. Macintosh, advocate depute, instructed by the Crown Agent, appeared for the respondent. The opinion of the court was delivered by Sheriff Principal Gillian A Wade KC, sitting with Appeal Sheriffs I H Cruickshank and W A Sheehan.

Dolphins and pilot whales

Greenhowe used Seacab to operate sea-life tours from Torry Battery in Aberdeen. Following a trial at Aberdeen Sheriff Court, he was convicted of two charges of deliberately or recklessly disturbing cetaceans.

The first arose on 22 July 2023, when dolphins were feeding near the north breakwater at Aberdeen Harbour. The sheriff found that Seacab passed the feeding area, turned around and travelled back through it before turning again and passing through a second time. At points the vessel was between five and 10 metres from the dolphins. They were observed head-slapping before leaving the feeding area and swimming out to sea. The sheriff found that the vessel’s movements had disturbed them and that Greenhowe’s conduct was at least reckless.

The second incident occurred on 30 July, when up to 25 pilot whales were close to the coast in a larger and smaller pod. The larger pod was moving towards open water when Seacab travelled directly towards it at speed, slowed as it approached and positioned itself between the whales and the open sea. It then turned towards the pod and continued its approach. The larger group changed direction and moved back towards the beach, while the smaller pod became separated. The sheriff regarded this as disturbance, particularly given the danger of pilot whales stranding when close to shore.

Greenhowe was fined £1,000 in respect of the dolphin incident and £1,500 for the pilot whales. Leave to appeal against sentence was refused, but he was permitted to appeal against conviction on restricted grounds.

Ordinary meaning of ‘disturb’

The central issue was the meaning of “disturb” in regulation 39(2), which makes it an offence deliberately or recklessly to disturb any dolphin, porpoise or whale. Greenhowe argued that disturbance of marine mammals was a specialist behavioural concept which could not properly be determined by applying an everyday meaning to the word. He relied on NatureScot guidance defining disturbance as an interaction which changes an animal’s behaviour or environment in a way affecting its well-being or survival in the short, medium or long term. Examples included disruption to feeding or migration, repeated avoidance behaviour, stress and changes in distribution.

His position was that an ordinary observer could describe an animal’s behaviour but could not determine whether what had occurred amounted to legally relevant “disturbance”. That required skilled evidence.

He also relied on the qualified terms in which the Crown’s NatureScot expert, Karen Hall, had expressed some of her conclusions. Her report stated that disturbance of the pilot whales was “likely”, while certain behavioural changes in the dolphins “may” have been caused by the vessel. Greenhowe argued that such evidence did not establish disturbance beyond reasonable doubt. The Crown argued that because Parliament had not defined “disturb” in the regulation, the word should be given its ordinary English meaning.

The Sheriff Appeal Court agreed. Sheriff Principal Wade observed that NatureScot’s guidance could assist in identifying behaviours which might amount to disturbance but could not “trump the primary legislation”. The scientific guidance approached disturbance from the perspective of the effect on an animal, including whether it had been injured, dispersed, disrupted or stressed. The criminal provision, however, was framed differently.

“The focus of the verb ‘disturb’ in the regulation and consequently the charge is on what the appellant did and whether that could be assessed as deliberate or reckless,” the court said. The legislation criminalised the accused’s conduct by reference to his actions and state of mind rather than focusing exclusively on the resulting effect upon the mammals.

The sheriff had therefore been correct to apply the ordinary English meaning of “disturb”, which encompassed concepts including agitation, intrusion, interference, frustration or interruption. The court added that the charges themselves gave fair notice of the conduct alleged to constitute disturbance, namely driving through and over dolphins and repeatedly approaching and splitting a pod of pilot whales.

Expert evidence did not replace fact finder

The court also rejected the contention that disturbance could only be established through skilled evidence. Greenhowe’s argument, it said, “fundamentally misunderstand[s] the role of the skilled witness”.

An expert’s function was to assist the fact finder in an area beyond ordinary experience, not to replace the court’s assessment of the evidence or determine the ultimate issue. Ms Hall’s expertise in marine-mammal behaviour was therefore admissible and useful, but it remained for the sheriff to consider that evidence alongside the eyewitness accounts, video footage and Greenhowe’s own explanations for his actions.

The court said the proposition that the expert’s view should displace the sheriff’s assessment of the evidence was “quite wrong”. The court also noted that the expert evidence did not in any event favour Greenhowe to the extent suggested.

In relation to the pilot whales, Ms Hall had identified the vessel as being in “clear breach” of the Scottish Marine Wildlife Watching Code, described separation of the pod as a clear sign of disturbance and said it had been “extremely fortunate” that no stranding occurred. In relation to the dolphins, she identified the vessel’s close approach, acceleration and changes of direction as conduct which increased the risk of disturbance, particularly in an important foraging area.

There was also a procedural difficulty with the appeal. The stated case did not contain questions challenging the sheriff’s material findings in fact that the dolphins and pilot whales had been disturbed. The court observed that, if those findings remained intact, the appeal necessarily failed. Although a properly framed question challenging them would have been preferable, it nevertheless considered the merits because the interpretation of “disturb” under the regulation was a point of some importance and the appellant contended that the sheriff had set the threshold for criminal liability too low.

The court held that the sheriff was entitled to determine disturbance from the totality of the eyewitness, video and expert evidence before him. All three questions in the stated case were answered against Greenhowe and the appeal was refused.