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Hunting Act 2004

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The Hunting Act 2004 (c.37) is an Act of the Parliament of the United Kingdom. The effect of the Act is to outlaw hunting with dogs (particularly fox hunting, but also the hunting of deer, hares and mink and organised hare coursing) in England and Wales from 18 February 2005. The pursuit of foxes with hounds was banned in Scotland two years earlier under legislation of the devolved Scottish Parliament, while it remains legal in Northern Ireland.

Background

Further information: Fox hunting legislation

Many earlier attempts had been made to ban hunting. Two private member's bills to ban, or restrict, hunting were introduced in 1949, but one was withdrawn and the other defeated on its second reading in the House of Commons.[1] The Labour government appointed the Scott Henderson Inquiry[2] to investigate all forms of hunting. Opponents of hunting claimed that the membership of the committee was chosen to produce a pro-hunting report.[1] The inquiry reported its view that "Fox hunting makes a very important contribution to the control of foxes, and involves less cruelty than most other methods of controlling them. It should therefore be allowed to continue."[3]

Twice, in 1969 and in 1975, the House of Commons passed legislation to ban hare coursing, but neither Bill became law. Three further private member's bills were introduced by Kevin McNamara in 1992 (Wild Mammals (Protection) Bill), by Tony Banks in 1993 (Fox Hunting (Abolition) Bill), and by John McFall in 1995 (Wild Mammals (Protection) Bill) - all of which failed to go on to become law.[4]

The Labour Party came to power in 1997 with a manifesto saying, "We will ensure greater protection for wildlife. We have advocated new measures to promote animal welfare, including a free vote in Parliament on whether hunting with hounds should be banned."[5] A new private member's bill, introduced by Michael Foster MP, received a second reading with 411 MPs voting in support, but failed due to lack of parliamentary time.[6] The Burns Report in 2000 concluded that forms of fox hunting "seriously compromise the welfare of the fox",[7] but (in line with its remit) did not draw any conclusion on whether hunting should be banned or should continue. In a later debate in the House of Lords, the inquiry chairman, Lord Burns also stated that "Naturally, people ask whether we were implying that hunting is cruel... The short answer to that question is no. There was not sufficient verifiable evidence or data safely to reach views about cruelty. It is a complex area."[8] Following the Burns inquiry, the Government introduced an 'options bill' which allowed each House of Parliament to choose between a ban, licensed hunting, and self-regulation. The House of Commons voted for a banning Bill and the House of Lords for self-regulation. The 2001 General Election was then called and the Bill ran out of parliamentary time.[9]

Following a series of evidence hearings in 2002,[10] on 3 December 2002, DEFRA Minister of State for Rural Affairs Alun Michael introduced a bill which would have allowed some licensed hunting.[11] The Commons passed an amendment proposed by Tony Banks to ban hunting entirely, but the bill was rejected by the House of Lords.[12]

Royal Assent

The identical Bill to that passed by the House of Commons in 2003 was reintroduced to the Commons on 9 September 2004. It received Royal Assent as the Hunting Act 2004 on 18 November 2004 when Michael Martin, Speaker of the House of Commons, invoked the Parliament Acts 1911 and 1949, with the Bill not having received the approval of the House of Lords who had preferred an Act that regulated hunting with dogs.[13] The Parliament Acts are rarely invoked, the Hunting Act was only the seventh statute since 1911 enacted under their provisions.[14]

The final passing of the legislation was considered very controversial with many newspapers and broadcasters condemning Tony Blair's Labour administration for giving in to what they perceived as the prejudicial views of anti-hunting Labour backbenchers.[15] MPs of all parties voting for the legislation asserted that hunting caused unnecessary suffering and said that they represented the majority of the public who favoured a ban on hunting with dogs. Their assertion of majority support for the thrust of the legislation seems to have some basis in evidence, a September 2002 survey commissioned by The Daily Telegraph indicated that a majority of people (57%) agreed with the statement that 'hunting with dogs is never acceptable'. [16] A survey by MORI for the BBC carried out in February 2005 found that there was a plurality (47% supporting, 26% opposed) of support for the new legislation, but not an absolute majority.[17]

Challenges

Attempts by pro-hunting groups (such as Jackson v Attorney General) to challenge the Act by questioning the legality of the Parliament Act in the High Court and Court of Appeal failed, and the ban took effect on 18 February 2005. The House of Lords agreed with the lower courts in a judgment delivered in October 2005.[18]

A separate application for judicial review was made to the High Court of England and Wales, arguing that the anti-hunting legislation contravenes individual human or property rights protected in the European Convention on Human Rights (ECHR) and under European Community law, that is the free movement of goods and services.[19] Some believed that there was a possibility that the challenges could obtain a degree of compensation for some of those adversely affected, although the Scottish courts did not reject the equivalent Scottish law, the Protection of Wild Mammals (Scotland) Act 2002, which also lacked any compensation provision.[20] The application was successively dismissed by the High Court in July 2005,[21] the Court of Appeal in June 2006[22] and the House of Lords in November 2007.[23] An appeal to the European Court of Human Rights was ruled inadmissible.[24]

The 2010 General Election resulted in a coalition of the Conservative and Liberal Democratic parties. Under the Conservative – Liberal Democrat Coalition Agreement the government aims to give the House of Commons a free vote "to express its view" on repealing the Hunting Act.[25] In November, a number of MPs told the BBC that a vote is not planned before early 2012.[26]

Enforcement

Police forces have said, on a number of occasions, that enforcement of the Hunting Act is a low priority for them, although they say that they will enforce the law, most notably by investigating evidence of illegal hunting.[27] Frustrated by this, animal welfare groups like the League Against Cruel Sports have taken on a self-appointed role of monitoring hunts that they believe may be breaking the law and, in some cases, taking private prosecutions themselves.[28]

Most prosecutions under the Hunting Act have not involved hunts. Anyone involved in the pursuit of a wild mammal with a dog without the consent of the landowner is guilty of an offence and some police forces have used the Act to prosecute those involved in poaching. Convictions under the Act rose from eight in 2005-06 to forty-eight in 2007.[29]

There have, however, been only nine attempted prosecutions involving registered hunts and just three of those have been successful resulting in the conviction of five members of hunt staff. The last successful prosecution was in January 2007. In February 2009, following Exeter Crown Court's acquittal of Tony Wright, huntsman of the Exmoor Hunt, overturning his conviction in the Taunton Deane Magistrates' Court, the High Court dealt with a request by the Crown Prosecution Service to decide whether defendants have a right to say they are "innocent until proved guilty" when claiming the defence of hunting under an exemption, and what is meant by "hunting". In its judgment, the court ruled that the burden of evidence in "exempt hunting" cases was on the prosecution to prove that the conditions of the exemption had not been met, and that searching for a mammal was not an offence. This confirmed the acquittal of Tony Wright. The court concluded that for the offence of "hunting a wild mammal" to take place there must be an identifiable mammal.[30] Subsequently three pending prosecutions against hunts, including one brought privately by the League Against Cruel Sports, were dropped[31] and a further two cases which did reach court were thrown out at the conclusion of the prosecution cases when the District Judges ruled that there was no case to answer.[32]

A person guilty of an offence under this Act is liable on summary conviction to a fine not exceeding level 5 on the standard scale; at the moment that is 5,000 British Pounds (US$ 8,000). There is no jail panalty.[33]

What the law stops: the exemption/loophole issue

The meaning of the Hunting Act is a matter of substantial public dispute. The Countryside Alliance claim that the Act is unclear,[34] while the League Against Cruel Sports argues the opposite.[35] The difference between the two centres around the alternative views that the Act contains either "tightly drawn exemptions" or "glaring loopholes."

For example, letters from Countryside Alliance officials to a series of local newspapers around the UK in early 2006 say, "The act makes it an offence to hunt a mouse with a dog but not a rat, you can legally hunt a rabbit but not a hare. You can flush a fox to guns with two dogs legally but if you use three it's an offence. You can flush a fox to a bird of prey with as many dogs as you like."[36] The sections below examine whether such exemptions allow loopholes.

Hunting mice, rats, rabbits, and hares

The Hunting Act bans activities that Parliament believed to be cruel sports and permitted activities that it believed to be necessary for land managers. Parliament accepted the view that, where rats and rabbits were pests, hunting them was legitimate.[37] MPs did not believe that there was any necessity to use dogs to hunt mice[38] and believed that hare hunting was cruel, which is why these activities were not exempted from the Act.

These two exemptions do not make it possible for "traditional" hunting to continue. Rabbits tend to stay very close to their warrens and will go underground at the sight of dogs, thus not providing the chase that hunts need.[39]

Flushing wild mammals to guns

Traditionally, in some upland areas, foxes were flushed by packs of dogs to be shot.[40] This activity is still permitted in Scotland under the Protection of Wild Mammals (Scotland) Act 2002.[41] However MPs, in making law for England and Wales, decided that this activity did result in unnecessary suffering, not least because it is more difficult to control a large number of hounds in dense woodland where this activity used to take place.[42]

This exemption was claimed by one stag hound packs in the Exmoor area. In an appeal judgment following the conviction of two stag hunt officials, the judge said that such hunting conducted primarily for recreation was illegal.[43]

Flushing a fox to a bird of prey

Many traditional hunts have bought birds of prey and say that they are using hounds to flush foxes so that the bird of prey can hunt them. The Act requires that the intention must be "for the purpose of enabling a bird of prey to hunt the wild mammal."[44] Many experts, such as the Hawk Board, deny that any bird of prey can reasonably be used in the British countryside to kill a fox which has been flushed by (and is being chased by) a pack of hounds. If this view proves to be correct, then it is unlikely that such a use of dogs is lawful.[45]

Expert opinion on the limitations of flushing foxes to birds of prey will be available to advise courts considering such cases, when they are litigated. For now, the question of what is lawful remains to be determined.

Hunting below ground

Hunting below ground takes place with terriers. The Act outlaws hunting with terriers (also known as terrier work of fox baiting) with a narrowly drawn exemption, described by the Minister, Alun Michael MP as existing "for gamekeepers".[46] The Act requires that any hunting below ground must comply with a number of conditions:

  • The activity must be carried out "for the purpose of preventing or reducing serious damage to gamebirds or wild birds which a person is keeping or preserving for the purpose of their being shot."
  • The person using the dog must have with them written evidence that the land used belongs to them or that they have been given permission to use the land by the occupier. This permission must be shown immediately to a police officer on request.
  • Only one dog may be used underground at any one time.
  • Reasonable steps must be taken to ensure that:
    • the mammal is flushed as soon as found
    • the mammal is shot as soon as flushed,
    • the manner in which the dog is used complies with a code of practice, and the dog must be under sufficient control so as not to prevent this, and
    • the dog is not injured.[44]

Despite this, many fox hunts continue to use terriers on a regular basis. Three people, not associated with hunts, have pleaded guilty to offences under the Hunting Act for hunting with terriers and a fourth was found guilty after a trial.[47]

Harecoursing with muzzled dogs

In a private prosecution under the Act brought by the International Fund for Animal Welfare (IFAW) who had observed two hare coursing events in villages near Malton, North Yorkshire in March 2007 organised by the Yorkshire Greyhound Field Trialling Club, the District Judge in Scarborough magistrates court clarified that the club was mistaken in believing that because the dogs they had been using were muzzled, the practice was legal.[48]

What the law does not cover

The Hunting Act does not stop, and was not intended to stop, 'drag hunting' where hounds are trained to follow an artificial scent, because no animal is chased.[49] According to a High Court decision, hunting does "not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it."[30]

The Protection of Wild Mammals (Scotland) Act

Main article: Protection of Wild Mammals (Scotland) Act 2002

The equivalent law in Scotland similarly makes it illegal to chase or deliberately kill mammals with dogs. There are a number of differences between the two Acts:

  • The Scottish Act does not place a two dog limit on the flushing of a mammal to guns in order to shoot it;
  • With respect to flushing foxes above ground to guns to shoot them, only the Scottish Act permits this to be done to protect game birds;
  • With respect to flushing foxes below ground to guns to shoot them, only the Scottish Act permits this to be done to protect livestock;
  • The Scottish Act allows someone convicted to be sentenced for up to six months in prison, there is no such power in the Hunting Act.[41]

See also

Footnotes

  1. ^ a b Tichelar, M. (2006). "'Putting Animals into Politics: The Labour Party and Hunting in the First Half of the Twentieth Century". Rural History. 17: 213–234. doi:10.1017/S0956793306001889.
  2. ^ Scott Henderson (1951). "Report of the Committee on Cruelty to Wild Animals". {{cite journal}}: Cite journal requires |journal= (help)
  3. ^ "Timeline: Hunting row". BBC. 2005-02-17. Retrieved 2008-02-19.
  4. ^ Fletcher, J. "Executive Sovereignty in our Constitution" (PDF). Justice. Retrieved 2008-02-19.
  5. ^ "The Labour Party's Manifesto 1997". BBC. 1997. Archived from the original on 2007-12-20. Retrieved 2008-02-19.
  6. ^ "How hunting ban went to the dogs". BBC. 1999-07-09. Retrieved 2008-02-19.
  7. ^ "The Final Report of the Committee of Inquiry into Hunting with Dogs in England and Wales". Her Majesty's Stationery Office. 2000-06-09. Retrieved 2008-02-10. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  8. ^ Burns, T. (2001-03-12). "Official Report, Lords". House of Lords. Retrieved 2008-02-19.
  9. ^ "Hunt battle set to return". BBC. 2001-06-17. Retrieved 2008-02-19.
  10. ^ "Hunting Hearings". Defra. 2002-12-10. Retrieved 2008-02-19.
  11. ^ "Hunting vote sparks angry scenes". BBC. 2002-12-17. Retrieved 2008-02-19.
  12. ^ "Lords rejects hunting ban". BBC. 2003-10-12. Retrieved 2008-02-19.
  13. ^ "Fox hunting ban looks inevitable". BBC. 2004-11-17. Retrieved 2008-02-19.
  14. ^ http://www.theyworkforyou.com/wrans/?id=2010-04-08a.462.0. Parliamentary Debates (Hansard). House of Lords. 8 April 2010. col. 462-463. {{cite book}}: |chapter-url= missing title (help)
  15. ^ "Hunters fall prey to Parliament". BBC. 2004-11-19. Retrieved 2008-02-19.
  16. ^ "Poll" (PDF). Yougov.
  17. ^ "Attitudes To The Hunting Ban". Ipsos Mori. 2005-02-16. Archived from the original on 2008-01-31. Retrieved 2008-02-19.
  18. ^ "Jackson and others v. Her Majesty's Attorney General UKHL 56". British and Irish Legal Information Institute. 2005-10-13. Retrieved 2008-02-19.
  19. ^ "Legal challenges update" (PDF). Countryside Alliance. 2005-07-19.
  20. ^ "Adams & Ors [2002] ScotCS 344". British and Irish Legal Information Institute. 2002-07-31. Retrieved 2008-02-19.
  21. ^ "The Countryside Alliance and others v. H.M. Attorney General and others [2005] EWHC 1677 (Admin)". British and Irish Legal Information Institute. 2005-07-29. Retrieved 2008-02-19.
  22. ^ "R. (oao The Countryside Alliance; oao Derwin and others) v. Her Majesty's Attorney General and Secretary of State of Environment, Food and Rural Affairs [2006] EWCA Civ 817". British and Irish Legal Information Institute. 2006-06-23. Retrieved 2008-02-19.
  23. ^ "R (oao Countryside Alliance and others (Appellants)) v Her Majesty's Attorney General and another (Respondents) [2007] UKHL 52". House of Lords. 2007-12. Retrieved 2008-02-19. {{cite web}}: Check date values in: |date= (help)
  24. ^ "Press release issued by the Registrar". ECHR. 2009-12-15. Retrieved 2009-12-18.
  25. ^ "Policy-by-policy: The coalition government's plans". BBC News Online. 21 May 2010.
  26. ^ Sinclair, Andres (4 November 2010). "No plans for hunting ban vote before 2012, MPs say". BBC News Online.
  27. ^ Elliott, V. (2005-02-16). "Q&A: the hunting ban". London: The Times. Retrieved 2008-02-19.
  28. ^ "Hunting Prosecutions". League Against Cruel Sports. Retrieved 2008-02-19.
  29. ^ "Written Parliamentary Answers". Hansard. 2009-01-13. Retrieved 2009-01-17.
  30. ^ a b "Director of Public Prosecutions (Crown Prosecution Service CCU South West) v Anthony Wright; The Queen on the Application of Maurice Scott, Peter Heard & Donald Summersgill v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin)". British and Irish Legal Information Institute. 2009-02-04. Retrieved 2009-02-15.
  31. ^ Butcher, A. (2009-04-14). "Case dropped against hunting men arrested in dawn raids in 2007". Horse and Hound. Retrieved 2009-10-02.
  32. ^ "Cleared huntsman criticises waste of money". Cumberland and Westmoreland Herald. 2009-09-21. Retrieved 2009-10-02.
  33. ^ England and Wales, National Archives, Hunting Act 2004 c.37, part 2 Section 6., and the Criminal Justice Act, 1991.
  34. ^ "Blueprint For A Whole Countryside" (PDF). Countryside Alliance.
  35. ^ "Huntsman guilty of breaking ban". BBC. 2006-08-04. Retrieved 2008-02-19.
  36. ^ "The Rise and Fall of Mr. Fox". The Telegraph. Retrieved 2011-01-16.
  37. ^ "Official Report, Commons". House of Commons. 2002-12-16. Retrieved 2008-02-19.
  38. ^ "Official Report, Lords". 2004-10-28. Retrieved 2008-02-27.
  39. ^ Banks, P.B., Hume, I.D. & Crowe, O. (1999-05). "Behavioural, Morphological and Dietary Response of Rabbits to Predation Risk from Foxes". Oikos 85(2): 247–256. {{cite journal}}: Check date values in: |date= (help)CS1 maint: multiple names: authors list (link)
  40. ^ Jones, K. (2000). "Federation of Welsh Packs submission to Burns Inquiry". Defra. Retrieved 2008-02-19.
  41. ^ a b "Protection of Wild Mammals (Scotland) Act". HMSO. 2002. Retrieved 2008-02-12.
  42. ^ "Official Report, Commons". House of Commons. 2003-02-04. Retrieved 2008-02-25.
  43. ^ Williams, Judge W. (2007-10-02). "League Against Cruel Sports vs. Down & Pillivant" (PDF). League Against Cruel Sports.
  44. ^ a b "Hunting Act 2004". HMSO. Retrieved 2008-02-12.
  45. ^ McLeod, I. (2005). "Birds of prey and the Hunting Act 2004". Justice of the Peace, 169: 774–775.
  46. ^ "Official Report, Commons". House of Commons. 2003-06-30. Retrieved 2008-02-19.
  47. ^ "Hunting Act convictions". League Against Cruel Sports. 2008-01. Retrieved 2008-02-19. {{cite web}}: Check date values in: |date= (help)
  48. ^ "TV chef admits hunting offences". BBC News. 2009-09-01. Retrieved 2009-09-01.
  49. ^ "Official Report, Commons". House of Commons. 2003-02-25. Retrieved 2008-02-26.
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