Build on the Ban - Strengthen the Act

6th February 2009 - Statement from Protect Our Wild Animals regarding the High Court Ruling on the Hunting Act 2004 POWA's lawyers have advised that the High Court Ruling confirms that hunting is an 'intentional' act. The court ruled that 'intention' has to be proven in order to achieve a conviction for hunting a wild mammal with a dog. The hunters claim that all incidents of hunting are 'accidental'. Therefore, POWA's campaign to amend the Act and include a reckless behaviour clause is a sensible way forward to securing more prosecutions.

POWA's campaign will continue to encourage MP's to Build on the Ban & Strengthen the Act.

Comment from John Bryant, Animal Welfare & Wildlife Consultant to POWA

"The assertion from the hunting lobby that the Hunting Act should be repealed because it is 'flawed', is a nonsense.

The Badgers Act 1973, which was enacted to outlaw the gruesome 'sport' of badger digging with dogs, had to be amended by three further Acts of Parliament over a period of nineteen years before all its loop-holes were plugged.

If every law found not to be as effective as legislators intended was scrapped, the result would be a criminals' paradise. The reason the Hunting Act contains loopholes big enough to drive a pack hounds through, is firstly because of Tony Blair's seven year prevarication over his 1997 manifesto commitment, secondly the refusal to agree to the inclusion of a proper definition of 'hunting with dogs', thirdly the failure to adequately consult those who best knew and understood the hunters and how they were likely to behave in response to the proposed legislation, and finally the House of Lord's abdication of its role of scrutiny and improvement of the Bill because the majority of its members objected to the principle of banning the hunting of wild animals for sport.

The Hunting Act now needs strengthening so that it does exactly what it says on the can."

Questions & Answers

The Hunting Act is in place. Don't we just need it to be enforced? Nine years since the ban came into force, it is absolutely clear that hunts are continuing to send their hounds into cover where they know wild mammals are likely to be found. Whenever they are caught chasing a wild mammal, they inevitably say they were "trail hunting" , or flushing to a bird of prey under that exemption, and the pursuit was an "accident". This situation must be rectified. The insertion of a reckless behaviour clause into the Act would mean that the claim of an "accident" could no longer be used, as hunters would be guilty of an offence if they "caused or permitted" their hounds to chase live quarry.

Such a clause could also be used to ensure that 'searching' for a wild mammal with dogs falls under the definition of 'hunting'. It is clear that this is what the legislators intended, and that DEFRA originally believed was the case. However, the High Court, upholding the appeal against conviction of the Exmoor FH Huntsman, declared that 'searching' was not ''hunting' within the meaning of the Act. This left Hunts free to take hounds right up to where they know quarry is likely to be hiding or resting up, making a large number of 'accidents' inevitable and rendering it even more difficult to show that Hunts were wilfully chasing wild mammals. The Court also emphasised the necessity of proving intent on the hunters' part. As a result of his judgement, the CPS, which failed to appeal against it, immediately dropped all their pending cases against organised Hunts and the evidential bar which must be cleared to make a prosecution, let alone conviction, possible was raised even higher than it was already.

Would a reckless clause put all dog owners at risk of prosecution?    No, because the reckless behaviour clause would be modified by another stating that, if the dog was kept as a household pet, was being normally exercised, had never been used for hunting and that the walker made reasonable efforts to stop the dog pursuing the wild mammal, they would not have committed an offence. Responsible dog owners would have no need to fear the law, but hunters would not be able to exploit this provision in order to escape prosecution.

Would the addition of a reckless behaviour clause to the Hunting Act be sufficient?   It is also necessary to close the loopholes currently being exploited by hunters.  The Gamekeepers' Exemption is being used as a cloak for terriermen to continue to operate within foxhunts as they always have.   The Falconers exemption is being exploited by fox hunters as it does not limit the number of dogs which may be used to flush quarry to a bird of prey. During the cubhunting season [and, indeed, at other times], when packs of hounds are traditionally held in a covert and trained to kill fox cubs, foxhunts now take out a bird of prey, and claim, if challenged, that the hounds are flushing foxes from the cover to the bird. In the opinion of hunt monitors, this is utterly false, the birds are incapable of killing a fox, and would be unlikely to fly at one. The falconers themselves strongly object to what the hunters are doing, and they also wish to see this loophole closed.

Also the exemptions which allow the retrieval of a shot hare and the hunting of rats or rabbits are being exploited by beagle packs who know of no instance of a bird of a prey actually being used by a Hunt, because there is no limit on the number of dogs which may be used for these activities. Hunts suspected of using an entire pack of beagles for illegal hare hunting simply claim to be operating under one of these exemptions, whilst mink hunts claim their packs are hunting rats. The deer hunts are abusing the 'research and observation' example to continue chasing and killing red deer for 'sport'.(see 'At a Glance Guide' for details of proposed amendments).
Tougher sanctions are also needed. It has become evident that the main penalty for illegal hunting under the Act, a fine of up to £5000, has proved inadequate as a deterrent. Indeed, most of the fines levied in the mere 24 successful Hunting Act cases against organised Hunts or their members since 2005 have been a small fraction of that sum, POWA believes that, being legislation intended to protect wild animals from unnecessary suffering, the Act should include power to impose a prison sentence of up to 6 months, as is the case with the Wild Mammals Protection Act and the Wildlife & Countryside Act. The powers in the Act to order forfeiture of dogs or material used in committing a Hunting Act offence have never been used against organised Hunts, though they have been against trespassing offenders of the lurcher brigade. This may be partly because the provision only allows for dogs actually used in the commission of an offence to be seized. In most cases it would be next to impossible to prove which of the Hunt's dogs were involved. POWA argues that, in the case of organised Hunts, the power should be to order forfeiture of all the dogs belonging to the Hunt. Section 10 of the Act allows for the conviction of a Hunt as a body corporate, but it is phrased in such a way as to make it extremely hard to prove. POWA believes that Hunts should be responsible for ensuring that their employees and officers do not hunt illegally and that they should be potentially liable for conviction under the Hunting Act if they do.

Where is the evidence of widespread law-breaking by the Hunts? Hunt monitors and members of the public have made a considerable number of complaints to the police of illegal hunting which they have witnessed and, often, filmed. The overwhelming majority of these have been rejected, sometimes in the early stages by the police or the Crown Prosecution Service, sometimes after the police have gone to considerable trouble compiling the evidence. ACPO made it clear early on that hunting offences would be accorded a low priority. As time has gone on police in many areas have ceased to respond adequately to such reports, perhaps because they know the chances of conviction are so remote. The League Against Cruel Sports has said that the majority of the Hunts that their professional investigators observe appear to be breaking the Hunting Act, whilst volunteer monitors and sabs say that almost all Hunts are flouting both the spirit and letter of the law.

The issue always comes back to proving "intent", when the hunters have claimed an 'accident'. The levels of evidence currently being demanded to satisfy the needs of the Act are almost impossible to achieve. But POWA emphasises that the Act's wording and numerous loopholes allow Hunts to continue to chase and kill wild mammals either without breaking the law or with a very slight chance of being prosecuted should they do so.

Doesn't a call to strengthen the Act just play into the hands of the hunters? On the contrary. The thing that the hunters fear the most is a strengthening of the Act. This is illustrated by the words of pro-hunt Conservative MP David Maclean, when addressing the crowd at the Peterborough Festival of Hunting in 2007. Mr Maclean said "'This law will be toughened up if Labour wins another election. It is essential that we get political and help Vote OK to get the pro-hunting MPs into parliament.'

Do the public wish to see the Act strengthened? Polls consistently show that the public remain overwhelmingly in favour of hunting being banned and also that this opinion is shared by the majority in rural areas. They are aware of the level of lawbreaking currently taking place, and a poll conducted by the Exeter Express & Echo on 15-1-09 asking if the Hunting Act should be strengthened resulted in a vote of 86% in favour of strengthening, and only 14% against. A recent national opinion poll [November 2013] by IpsosMori found 80% in favour, with just 17% against. Giving the lie to hunters' constant claims to represent the countryside, the results from rural voters were almost exactly the same as urban ones. Clearly those people would want an Act than can work properly.

Won't the police use the assertion that the Act is currently too weak as an excuse not to bother to enforce the ban? In fact, the police long ago drew that conclusion for themselves and it is probably the main reason why there has been so little attempt by police to enforce the Act. Also, an ACPO representative has said that the low level of criminal sanctions provided by the Act was another factor that knocked its enforcement down their order of priorities. At the present time public money is being wasted, as police officers work hard compiling evidence of illegal hunting, only to have the cases come to nothing as the CPS reject them on the grounds of the difficulty of proving "intent". A stronger Act would aid both police and Crown Prosecution lawyers in getting illegal hunting successfully prosecuted. The police are also concerned about the safety of hunt monitors, who try to gather evidence of illegal hunting and who suffer repeated verbal and physical abuse and property theft and damage from hunters. A more clear-cut law, with less onerous demands and, in particular not having to prove 'intent' on the hunters' part, would mean the monitors would be in a less dangerous position.

POWA's campaign continues to encourage decision-makers to
Build on the Ban, Strengthen the Act

POWA produced an information pack in the last Parliament detailing proposals for amendments to strengthen the Hunting Act 2004. These are now superceded by the proposals detailed on this website..................................