Hunting Act [Amendment] Bill (POWA proposal)

POWA believes that a number of amendments are needed to make the Act both more readily enforceable and a greater deterrent, so that it can, at last, fulfil the expectations of the original legislators. Our proposed changes are primarily directed at ensuring that organised Hunts are no longer able to exploit lax wording, loopholes and inadequate provision in the Act, but they will, of course, apply equally to anyone seeking to hunt with dogs for 'sport'.

One amendment, however, we regard as being absolutely critical, the 'recklessness' clause at Section 1, which is intended to make hunters responsible for the activities of their hounds and try to ensure that they cannot constantly escape prosecution by claiming 'accident'. It will also bring 'seeking out' wild mammals with dogs explicitly into that clause's definition of what constitutes 'hunting'. There is evidence that DEFRA originally believed that such 'searching' was included in the offence of 'hunting' created by the Act, but the High Court judgement of 2009 stated that it was not. In this regard, then, we merely wish to restore the legislators' original intent.

We have deliberately adopted a 'belt and braces' approach, seeking to ease enforcement and, particularly, to enhance deterrence. Since the amendments will require primary legislation, there is no reason not to seek to sharpen wherever justified and to remove, or at least tighten, all actual and potential loopholes.

POWA has spent many years considering and refining the amendments we believe are needed to the Hunting Act, taking into account the experiences not just of our own Associates, many of whom are active monitors, but also those recounted by the wider anti-hunting community and the views of police, prosecutors and court officers. Nevertheless we welcome constructive criticism of our efforts.

Below are two tables, the first detailing the amendments we propose to the main body of the Hunting Act, the second those to the attached Schedule, which details the various forms of exempt hunting. These include explanations of why we think the amendments are needed and what effect we think/hope they would have.  

HUNTING      ACT    PART	SECTION	AMENDMENT	REASON	EFFECT
1	1	Add new clause, to read -   (2) For the purposes of this Section the phrase 'hunts a wild mammal with a dog' means - causes or permits a dog to seek out, pursue, attack, injure or kill a wild mammal.	To make Hunts responsible for their dogs' behaviour, so they cannot just claim 'accident' whenever their dogs chase wild mammals. In particular, to ensure Hunts cannot continue to take hounds into areas where wild mammals are likely to be found, as they often do now, without being at significant risk of prosecution when their dogs then do pursue or attack wild mammals there.	Hunters commit the offence if shown to be reckless, not just if intent to hunt can be proved. Also, to make Hunts wary of taking dogs into areas where quarry is likely to be found and to deter them from laying trails there. It should encourage them to make 'trail hunting' a lot more like genuine drag hunting - and to make it much easier to distinguish between real 'trail hunting' and disguised live quarry hunting.
1	1	Add further new clause to read - (3)   A person shall not be guilty of an offence under this Section if he shows that his dog is kept as a household pet, was being normally exercised at the time, has never been trained or used in any form of hunting and that he made reasonable attempts to prevent the dog from pursuing the wild mammal.'	It has always been a concern that there should be minimal risk under the Hunting Act of criminalising the innocent dog-walker whose charge takes it upon itself to suddenly run off after a squirrel or similar. New clause (2) above may risk that. (3) is designed to minimise that potential danger whilst excluding hunt hounds or terriers from the exemption	To minimise any risk of innocent dog walkers finding themselves charged with illegal hunting because of the instinctive and spontaneous behaviour of a pet which they were not reasonably able to prevent. They should, however, be able to show they tried at least to stop the dog[s]. If they just stand by and watch they are, we'd contend, hunting with the dog[s] and so should be liable to prosecution.
1	6	Add:- 'or a term of imprisonment not exceeding six months, or both.'	The Act's main aim was to prevent unnecessary suffering to wild mammals - inevitable in hunting with dogs for 'sport'. Penalties should be consistent with those in other wild animal protection legislation, e.g the Wild Mammals Protection Act & the Wildlife & Countryside Act,	To significantly increase the deterrent effect of the sanctions available under the Act. It is presently evident that the prospect of, at worst, being fined is not serving that purpose adequately. Also, to ensure Hunting Act offences become 'recordable' - so that conviction results in a criminal record.
2	6	Add new clause allowing courts to disqualify an offender convicted of an offence under Section 1 or Section 10 from owing, keeping or taking part in keeping animals. Wording of this to be determined.	S1 and S10 Hunting Act offences both involve the use of dogs to inflict unnecessary suffering upon other animals. This suggests the persons concerned may not be fit to keep animals. The power to disqualify should be available as it is with other animal protection legislation.	This is primarily intended as a further measure from deterring organised Hunts from engaging in illegal hunting. We would not envisage it being used in all but the very most serious cases.
2	9	To 9(1), add new sub-section, to read - 'Where an employee or officer of an organised Hunt is convicted of an offence under S.1 of this Act, or the Hunt as body corporate is convicted under S.10, the court may order the forfeiture of any or all of the dogs belonging to the Hunt.'	It is evident that Hunt Masters and officers must often be colluding in the commission of Hunting Act offences, yet only one Hunt has been held to account for such offences. For Hunts, the current forfeiture powers re. dogs may be all but unusable because of the problem of identifying which dogs were involved in the offence[s].	This applies the principle of 'vicarious liability'. The Scottish Parliament has brought this in to apply to landowners who fail to control their gamekeepers when they kill protected birds of prey, etc.  To make Hunts more accountable for the actions, joint or individual, of their staff and officers. Also, to provide a forfeiture power that could realistically be used against organised Hunts.
2	10	Delete Subsection 1 and replace it with:- The officers of the body corporate shall be jointly and severally responsible for ensuring that no employee, member, official or officer of that body commits any offence under this Act, during any activity conducted by that body. If any such person is so charged, the Hunt, as body corporate, shall also be liable to a charge of illegal hunting and may be subject to all or any of the sanctions which may be imposed for that offence, save a term of imprisonment. Delete Subsection 2 and replace with existing Subsection 3	The wording of the current S.10 makes it extremely hard to prove. Hunts should be made responsible for ensuring their staff/officers do not commit HA offences.	Hunts would be made much more readily accountable for the actions of their staff and officers. This should act as a powerful deterrent to organised Hunts..
3	11	In 11(2), delete 'pursuit' and insert 'hunting'.	New Clause 1(2), as above, added a definition of 'hunting' which covers more than just 'pursuit', so this latter word needs to be replaced.	To make Section 11 consistent with Section 1, as amended.   .

SCHEDULE   SECTION	AMENDMENT	REASON	EFFECT
1	In 1(2), after 'undertaken'  add   'and, for any of the purposes in 2(a) and (b) below, can be shown to be necessary... '.	The inclusion of the 'flushing' exemption implied suffering likely to be caused to the wild mammal could be outweighed by the achievement of any of the objectives in 1(2).  But, the existing conditions effectively allow anyone wishing to undertake stalking or flushing of a wild mammal with up to 2 dogs to simply assert they are doing it for any of the reasons listed at 1(2).They should be required to be able to show that it was necessary.	To make this exemption under the Hunting Act consistent with similar exemptions in the Wildlife and Countryside Act, 1981. Thereby to reduce the unnecessary suffering caused to wild mammals by stalking or flushing out that was not itself actually necessary to fulfil any of the conditions in Schedule 1(2)(a) and (b).
1	Delete 2 (c) .	It Is hard to see how stalking or flushing out a wild mammal for 'participation in a field trial' differs much from hunting banned by the Act and a desire to test the dogs' ability to seems an inadequate reason to allow it.	To ensure that wild mammals cannot readily be subjected to being chased by dogs simply for the purpose of 'field trials'.
1	Insert new clause 1(3) to read:- 'The person[s] carrying out the stalking or flushing shall not be regarded as showing that any action of theirs was necessary for a purpose mentioned in Schedule 1 (2)(a) or (b) unless he shows that as regards that purpose, there was no other satisfactory solution.'	The principle here is that wild mammals should not be chased or harried by dogs unless it can be demonstrated that there is no other satisfactory method of fulfilling the cited purpose[s]. The suggested wording follows that for exemptions to the ban on the taking/killing of certain species in the Wildlife & Countryside Act 1981.	It would be made explicit that anyone stalking or flushing a wild mammal with up to 2 dogs for it to be shot, so as to fulfil any of the purposes at 1(2)(a) or (b), must be able to show, as part of a defence of 'necessity' that no satisfactory other means of achieving that end were available. This should limit the number of occasions where this action can be legitimately taken.
2	POWA would prefer for the "Gamekeeper's Exemption" [Schedule 1.2] to be deleted completely. However, we recognise that may not prove achievable. So, failing its deletion we would propose :- In 2(2),  delete  'is undertaken'   and insert  'can be shown to be necessary' .	Terrier-work is abhorrent and we would much prefer it to be banned outright, but fear that it will not be politically possible. In order to, at least, restrict its use we suggest the first condition should be amended to be consistent with the main proposed change, as above, to the wording of the 'flushing exemption'.	To seek to reduce the unnecessary suffering caused to wild mammals, notably foxes, by being harried and/or attacked underground by a terrier, by limiting the occasions on which this can occur by insisting that those carrying out the terrier-work be able to show that it was necessary to fulfil the purpose detailed in Schedule 1.2(2).
2	Insert new subsection to read - '2(2)(b)  The person shall not be regarded as showing that any action of his was necessary for the purpose mentioned in subsection (2)(a) unless he shows that as regards that purpose, there was no other satisfactory solution.'	The principle here is that wild mammals should not be pursued, harried or harmed underground by dogs unless it can be demonstrated that there is no other satisfactory method of fulfilling the cited purpose[s]. The suggested wording follows that for exemptions to the ban on the taking/killing of certain species in the Wildlife & Countryside Act 1981.	It would be made explicit that anyone inserting a dog into the underground shelter of a wild mammal to bolt it, then have it shot, in order to fulfil the purpose at 2(2)(a), must be able to show, as part of a defence of 'necessity', that no satisfactory other means of achieving that end were available. This should limit the number of occasions where this action can be legitimately taken.
2	To 2.2(5), add new sub-section to read - 'Operations reliant on Schedule 1.2 shall not be carried out in conjunction with any sport involving the use of dogs in drag hunting or the simulated hunting of a wild mammal.'	At present many 'accidents', in which hounds from organised Hunts chase foxes, end with the fox going to ground. The terriermen then engage in a dig-out, claiming this is 'Exempt hunting' and separate from any prior chase of the fox. Even though it might be hard to enforce, the Act should make it clear that supposed 'trail hunting' and 'pest control' should not be mixed.	To further attempt to reduce the extent to which 'trail hunting' can be used to disguise traditional fox hunting, in which the dig-outs and subsequent killing of the fox were an integral part of the 'sport'.
2	To 2.2(5)(g), add new sub-section to read - 'and, the underground shelter in which the wild mammal is believed to be present shall not be dug into by any person prior to or during the stalking or flushing, save where it can be shown to have been necessary in order to rescue a dog that had become trapped.'	Pre-ban, dig-outs were more an integral part of the 'sport' than genuine 'pest control', This remains the case with many Hunts. The 'Gamekeeper's Exemption' was meant to just allow simple 'bolting' but, because neither it nor the Code of Practice explicity forbid digging, terriermen frequently do that and seem currently to be able to get away with it.	Being confronted, and perhaps attacked by a terrier in its underground shelter must be a traumatic enough experience for a fox. To have one or more terriermen simultaneously digging down towards it must surely worsen the experience. The measure proposed should therefore reduce the suffering which foxes are likely to experience when 'exempt hunting' under Schedule 1.2 is undertaken
3	After   'The hunting of rats is exempt'  add :- ', providing it does not involve the use of more than two dogs,'	Mink hunting packs are circumventing the law by pretending to be hunting rats. There is no necessity to use more than two dogs to conduct pest control operations against rats.	It should become harder for Hunts to use packs of dogs to hunt and kill mink, or to disturb and perhaps chase or even kill otters.
4	After   'The hunting of rabbits is exempt'  add :- ', providing it does not involve the use of more than two dogs,'	Hare hunting packs are circumventing the law by pretending to be hunting rabbits. There is no necessity to use more than two dogs to conduct pest control operations against, rabbits, or hunting of them for the pot.	Hare hunts would no longer be able to roam the countryside with full packs and escape arrest and investigation when seen chasing a hare by pretending they were intending to hunt rabbits and pursuing the hare was an 'accident'.
5	After   'The hunting of hares which have been shot is exempt'   add :- ', providing it does not involve the use of more than two dogs,'	Hare hunting packs can circumvent the law by pretending to be seeking to retrieve a shot-wounded hare. The current law allows them to use a full pack of hounds in such pretence. In a real situation, the job could be adequately done by one or two retrievers. Beagles, bassets and harriers will more likely savage the hare than retrieve it for humane dispatch.	The loophole allowing hare hunts to chase hares they pretend to have been shot will be closed and such hunts will have one less excuse to roam around the countryside with full packs, endangering wildlife.
6	After  'Flushing a wild mammal from cover is exempt'  add :- ', providing it does not involve the use of more than two dogs,'	The Falconry Exemption is being widely abused by Hunts. Carrying a bird of prey with them, usually squashed in a small box on a quad bike, allows them to claim, if caught full-pack quarry chasing with dogs, that they were 'flushing' it to a bird of prey. There is no record of any such bird actually being used by an organised Hunt. The main falconry bodies are strongly opposed to the exemption, sayng it endangers the birds' welfare and brings disrepute on falconry. The current exemption helps disguise 'cub hunting'.	It is hard to see that this exemption was other than an attempt to sabotage the effectiveness of the Act and the loophole must be closed. Doing so would deprive Hunts of one of their most effective get-outs, one which can prove particularly effective in allowing them to avoid arrest and prosecution, especially when cub-hunting. It would also alleviate the evident welfare concerns raised by the way in which Hunts transport birds of prey around on hunt days.
9	Add new subsection to read - (7) The sixth condition is that each dog used in the hunt is kept leashed at all times	There is a case to be made for the tracking of animals with up to two dogs for various non-harmful purposes, but it should be possible to achieve these purposes with leashed dogs. At present, this exemption is being misused by deer hunts to subject deer to hunts of up to at least two hours, and it has the potential to be abused by other 'sport' hunters.	Prevent deer hunts from abusing the exemption to provide what looks very like 'sport' hunting. It's unclear if they do, or can, use relay pairs of hounds. A court decided this was illegal under Schedule 1.1, but it hasn't been tested under 1.9. Such hunts may end with the deer brought to bay and being shot. Amending the exemption should encourage more humane culling methods, where needed.
ADDITIONALLY  -  Add to the Act a Code of Practice for 'trail hunting' to have force of law, as does the 'Gamekeepers' Code', attached to Schedule 1.2. Detals to be determined, but to include, at minimum -  1/  a ban on laying trails into areas where wild mammals likely to be found [wooded coverts, standing crops, reed beds, etc.],  2/ a ban on use of animal-based scents

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