The Hunting Act 2004 is three years old but had a rushed birth and troublesome early life with campaigners on both sides unhappy with the current muddled situation says Tim Ryan, who hopes the High Court will help to remedy the situation

THE HUNTING ACT 2004 came into force on 18 February 2005, having controversially been forced through Parliament by the government after prolonged debate. It has recently survived a challenge in the House of Lords on the basis that it is incompatible with human rights and EU law (R on the application of the Countryside Alliance v Attorney General [2007] UKHL 52), and it is likely that the challenge to its lawfulness will now be taken to the European Court of Human Rights. In any event, it is possible a future Conservative government will repeal it. For the time being, however, the Act is the law and the police and the courts have a duty to enforce it.

The Hunting Act - the end of an era?

The Act was widely presented as sounding the death knell of hunting in the traditional sense, in which packs of hounds controlled by a huntsman are used to hunt certain mammals, particularly foxes, followed by hunt members and supporters, either on horseback or by foot. In fact, the Act did not introduce a total ban on hunting with dogs, but rather restricted the circumstances in which lawful hunting could take place.

Since its introduction, none of the 300 registered hunts have ceased to operate; indeed, at least one new hunt has been established. The majority of those who take part want to see the law repealed, but in the meantime they want to pursue their traditional activities so far as is possible within the law.

Three years on, whatever the merits or otherwise of a ban on hunting, few could seriously argue that the Act has been a success. While those opposed to hunting can point to the fact that over 20 people have been convicted under the Act, of this relatively small number, only three cases have involved hunts. Most of those convicted have been for poaching and/or wanton acts of cruelty as trespassers that might well have been prosecuted anyway under pre-existing legislation. Key concepts in the Act have been exposed as being so badly drafted and ambiguous that it is virtually impossible to state with confidence what is lawful and what is not. In allowing the appeal against conviction of Tony Wright, huntsman of the Exmoor Foxhounds, at Exeter Crown Court on 2 December 2007, His Honour Judge Cottle said “The relevant law is far from simple to interpret or apply; it seems to us that any given set of facts may be susceptible to differing interpretations. The result is an unhappy state of affairs which leaves all those involved in a position of uncertainty.”

What the Act says

Section 1 makes it an offence if a person “hunts a wild mammal with a dog, unless his hunting is exempt”. Hunting is exempt if it comes within a class of activities set out in Schedule 1, which includes:

• the use of up to two dogs for stalking and flushing out a mammal;
• the use of a single dog to bolt a mammal from below ground;
• the hunting of rats and rabbits without restriction;
• the hunting of hares which have already been shot;
• the use of any number of dogs to flush a mammal for a bird of prey to hunt; and
• hunting in connection with wild mammals which have escaped, which are known to be injured, or in relation to research.

For any exempt hunting the permission of the occupier or the owner of the land is a pre-requisite, and other conditions must be satisfied depending on the exemption. For example, in the case of stalking and flushing, there is a requirement to take “reasonable steps” to ensure that the mammal is shot dead by a competent marksman as soon as possible after being flushed, and that the dogs used are kept under “sufficiently close control”. Other offences apply to those who knowingly permit their land (s 3(1)), or their dog (s 3(2)), to be used. The Act also outlaws hare coursing, a sport in which dogs are assessed as to their skill in huntinglive hares (s 5).

So what is “hunting”?

The first, and fundamental, problem is with the meaning of “hunting a wild mammal with a dog”. There is no definition provided in the Act, only an indication that it “includes” any case where a person engages or participates in the pursuit of a wild mammal and one or more dogs are employed in that pursuit (s 11(2)).

In the absence of a definition, under the usual rules of statutory interpretation, words are to be given their ordinary meanings. The prosecution approach so far has been to assert that “hunting” includes “searching”, because this is included in standard dictionary definitions.

The problem with applying dictionary definitions is that it is rare for a word to have only one meaning: so much depends on the context. In Scotland, where a hunting ban was introduced in 2002, it was considered necessary to state expressly that, for the

purposes of the legislation, “to hunt” includes “to search for” (Protection of Wild Mammals (Scotland) Act 2002, s 10(1)), but there is no such provision in the Hunting Act 2004.

If searching is to be included in “hunting”, then this raises the question as to whether an offence requires there to be an identified or identifiable wild mammal, or whether an offence can be committed even if no wild mammal is ever, in fact, present to be hunted.

If the latter view is the correct then the implications for the scope of any allegation and the evidence required, and consequently for the length and cost of proceedings, is enormous. For example, a hunt out trail-hunting (following a pre-laid, artificial scent) may be put in the invidious position of having to answer allegations of unlawful hunting, not simply at the point that a mammal is accidentally (and it is accepted that hunting is an intentional activity) flushed from covert, but at every stage of the day’s activities, which may cover several hours and many miles of terrain.

In Tony Wright’s successful appeal against conviction, His Honour Judge Cottle said that “there is a distinction to be drawn between ‘hunting’ and ‘hunting for’ a fox”, noting that this is “a distinction that is easier to state than to recognise”.

Exempt hunting and the burden of proof

If the case involves an issue of exempt hunting, the question arises as to who has the burden of proving whether it was exempt or not. (This is a separate issue from that in relation to the statutory defence contained in s 4 of the Act, which relates solely to the defendant’s belief that it was exempt hunting and where it is accepted on well-established principles that the burden falls on the defence, on a balance of probabilities.)

Do the prosecution have to show, to the usual criminal standard, that non-exempt hunting has occurred? Or, contrary to the normal position, does the burden fall on the defence, as a consequence of s 101 Magistrates Courts Act 1980 (which places the burden on a defendant who “relies for his defence on any exception, exemption, proviso, excuse or qualification”), to show, on a balance of probabilities, that the hunting was exempt?

In the two contested cases heard so far, there has been no consistent approach. In Tony Wright’s original trial at Barnstaple Magistrates Court the issue was never raised and the trial proceeded on the basis that the burden was on the prosecution. In the second trial, a prosecution against the huntsman and a whipper-in of the Quantock Staghounds, a district judge at Taunton Magistrates Court ruled that the burden was on the defence, and, although no argument was raised in that case by the defence, that approach was endorsed on appeal at the Crown Court.

At Tony Wright’s appeal at Exeter Crown Court, however, where argument for both sides was advanced for the first time, His Honour Judge Cottle ruled that the burden was on the prosecution. He declined to give detailed reasons, but the defence had argued that as a matter of correct statutory interpretation s 1 does not create a reverse burden, and relied on Article 6 of the European Convention of Human Rights and a recent Court of Appeal decision, Keogh v R [2007] EWCA Crim 528. The Crown Prosecution Service is seeking to appeal that decision to the High Court, and two further prosecutions are on hold pending a High Court ruling.

The significance of the point is substantial, as the evidence required to discharge the burden in respect of each exemption condition could be considerable, particularly if hunting does include searching and an allegation can be drawn widely enough to encompass all the events of the day, rather than a single incident.

The exempt conditions

The first few prosecutions have also highlighted numerous areas where the exemption conditions, which in some cases are extensive, are frustratingly unclear. For example:

• Does “flushing” cease as soon as the wild mammal leaves covert, or can it continue while the wild mammal is being driven towards guns/bird of prey, and if so to what extent?
• What steps are “reasonable” to ensure that the mammal is shot dead as soon as possible? How many guns are required, how far away should they be positioned? Where more than one mammal is flushed on one occasion, is there a requirement to ensure that all are shot?
• What is meant by “for the purpose of”? If the motive is also for sport, does this prevent reliance on the stalking and flushing exemption altogether, even if the conditions are otherwise satisfied?
• And what does “enabling a bird of prey to hunt” require?” Is an intention to free the bird, so that it could fly at the mammal, enough, regardless of the likelihood of it actually doing so? Must the bird used in fact be capable of killing the wild animal flushed?

Conclusion

In its first three years, there have been relatively few prosecutions under the Act, and most of those have not related to hunting in the traditional sense, for which it was principally enacted. Those prosecutions that have involved hunts have highlighted gross drafting inadequacies and future cases will no doubt give rise to further problems.

Only two contested cases have been heard so far, but both have been subject to appeals. One has resulted in a conviction and one has resulted in an acquittal, but may well be further appealed to the High Court on points of law. Two further cases have effectively ground to a halt pending clarification by the High Court.

The trials/appeals that have taken place have by necessity each taken the best part of a week and the cases on hold have similar time estimates. For summary offences, punishable by a fine only, the costs in bringing and defending such proceedings are wholly disproportionate, not to mention the questionable use of valuable court resources.

Whether hunting should be banned is a complex issue that raises a multitude of considerations and is beyond the scope of this article.

What is clear, however, is that the Hunting Act 2004 is a terrible piece of legislation, that has failed everyone: those who expected to see an effective ban on hunting, those doing their best to hunt within the law, the police tasked with enforcing it and magistrates and judges called upon to apply it.

It is to be hoped that the High Court will be able to inject some clarity and a little common sense into a law which is, quite clearly, not working.

SJ takeaway

• The House of Lords have ruled that a ban on hunting is not incompatible with human rights or EU law and the Hunting Act 2004 is likely to be with us for some time yet.
• The first few prosecutions have demonstrated that the Act is not working at its most basic level. It is not clear what “hunting a wild mammal” means, when lawful “exempt” hunting can be carried out, or what has to be proven and by whom.
• After three years in force, urgent clarification by the High Court is needed, for the benefit of all concerned.

Tim Ryan is a partner at Knights Solicitors, who acted for Tony Wright, the first huntsman prosecuted, and acquitted on appeal, under the Hunting Act 2004