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Reform not Repeal
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The Hunting Act - Reform Not
Repeal
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Whilst he was Prime Minister, the then Conservative leader and fox hunter David Cameron stated
that the ban on hunting wild animals with dogs is being so widely flouted by hunters that the Hunting Act 2004, brought in
by the Labour government, should be repealed. He promised to facilitate such repeal by arranging for Parliament to debate
the issue all over again - despite his Party’s previous outrage at ‘700 hours of Parliamentary time wasted’
on Labour’s manifesto commitment to ‘deal with the hunting issue’. The new PM, Theresa May has reiterated
Cameron's promise and appointed the fanatically pro-repeal Andrea Leadsom, who has described foxes as 'vermin',
as DEFRA Secretary of State. Repeal, or further weakening,
of the Hunting Act currently appears unachievable because around 50 Conservative MPs oppose it. But if the Conservatives are
returned with a larger majority at the next election this may not be enough to save the Act. However, while the Hunting Act
was of enormous symbolic importance, as it stands it is of limited value in preventing organised Hunts from chasing and killing
live quarry much as they did before it was passed. |
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During
the period of debates before the Hunting Act was made law a reported
60,000 hunt members and supporters publicly signed a ‘Declaration’ threatening civil disobedience if the hunting
of wild animals was outlawed. Therefore the widespread flouting of the ban on hunting is not surprising.
More surprising is the fact that two Prime Ministers have pledged to reward the law-breakers by repealing the
Act!
In truth, the Hunting Act is heavily flawed. In an attempt to specifically target
the ‘mischief’, ie the use of dogs to chase and kill wild animals for entertainment or ‘sport’, still
regarded by the majority of the public as ‘cruelty’, Parliament provided ‘exemptions’ in the Act to
ensure that people using dogs in other countryside activities, such as genuine pest control, shooting, falconry
or the study and rescue of wild animals, need not fear the anti-hunt legislation. The undisputed targets
of the legislation were ‘sports’ in which wild animals suffered the terror and exhaustion of a lengthy chase by
dogs, or were savaged to death by dogs when they could run no further and, in the case of foxes, often subjected to protracted
and terrifying 'dig-outs' involving underground attacks by ferocious terriers. Thus,
under a lengthy list of provisions and safeguards, certain forms of ‘hunting’ were declared ‘exempt’,
such as using no more than two dogs to flush out a wild mammal into the open so that it could be immediately shot or using
any number of dogs to flush out wild mammals from cover for the ‘sport’ of falconry. Similarly,
using dogs to hunt rabbits and rats was declared ‘exempt hunting’ because a chase of such species is short and
any kill virtually instantaneous. Once the Hunting Act became the law of the land, the hunting
lobby did not offer themselves up for martyrdom by openly disobeying the law but declared that they would now ‘test’
it by using the ‘exemptions’ provided for other non-target dog users. Stag hunters, for instance, would use pairs of hounds in
‘relays’, by flushing a deer out of cover, but not quite managing to shoot it before the deer ran into more cover,
when two more hounds could be used to get it on the run again, not quite managing to shoot it, and so on and so on until the
deer was hounded to exhaustion and then shot at point blank range with a sawn-off shot gun - the very practice which Parliament
voted to outlaw.
A Court determined, a few years ago, that the use of the 'flushing' exemption
[Schedule 1.1] to do this, by the Quantock Stag Hounds, was unlawful, because it was clear that the primary purpose was
'sport' and not 'pest control'. In response, deer hunts simply switched to using the less restrictive
'Research and Observation' exemption [Schedule 1.9] instead. Their use of this exemption has not since been challenged
in court, although hunters have openly written of hunts lasting 2 hours. Hare hunters could exploit the ‘exemption’
in the Act that permits dogs to be used to retrieve a shot hare by reportedly using packs of hounds to hunt and kill hares,
and in the unlikely event of being challenged, simply claim that they are on a ‘mercy-killing’ expedition to ‘save’
a hare suffering from wounds caused by shooting. Or they simply pretend that they are not hunting hares but rabbits [exempt
under the Act]. Despite the absurdity of this proposition - rabbits would instantaneously disappear underground - unless absolute
evidence can be obtained, such as film of them actually setting hounds on a hare, they can get away with this pretence. Mink hunters saw that
their summer ‘sport’ of hounding mink to death on rivers, could be preserved by claiming that their pack of hounds
was hunting rats – a completely ridiculous concept, but not easy to disprove. Fox hunters exploit the ‘falconry’ exemption,
by taking out a captive bird of prey with their pack of hounds. True, falconers sometimes use a dog, possibly
two, for flushing out rabbits or other small mammals to a trained bird of prey. No falconer would ever
use a pack of hounds, and no bird of prey would fly at a mammal in the presence of baying and boisterous dogs.
The birds of prey taken out by the hunters are usually Eagle Owls or Harris Hawks, neither of which would be likely
to hunt foxes. Indeed, they would be unlikely to be willing to even tackle a fox, let alone readily dispatch one. Severe
injury and suffering to both would probably result from any combat between the species. At present, the birds
of prey are usually carried around by hunt terriermen on quad bikes, squashed into small containers, bumped around for much
of the day and never actually used.
The official falconry bodies have openly derided and condemned fox hunters for bringing falconry into disrepute,
as well as putting the birds at risk from being killed by the hounds. But if challenged, the fox hunters
can merely produce the miserable bird and defy anyone to prove they were not using the pack of hounds to flush out a fox for
the bird to hunt.
The great bulk of fox hunts, however, are using an exemption that is not even mentioned in the Hunting Act
– so-called ‘Trail Hunting’. They claim that their hounds are hunting a ‘trail’ laid across
the countryside. It could be argued that this is merely ‘drag hunting’ - a harmless hound sport that has existed
in Britain for as long as fox hunting - but drag hunting is a long way removed from ‘trail hunting’.
Packs of hounds registered with the Masters of Drag & Bloodhounds Association follow an artificial scent
trail deliberately laid across open country to avoid places where their hounds would be likely to come across wild animals. POWA
is not aware of any reports of wild animals ever being 'accidentally' chased, let alone killed, by genuine drag hunts.
‘Trail hunting’ on the other hand is defined as ‘simulated fox hunting’ and
the hounds are taken through fox coverts, copses, crops and hedgerows in exactly the same manner as they previously hunted
foxes. For this purpose - and when they bother to lay any trails at all - the hunters use not artificial, but fox-based
scents. They thus ensure that their hounds remain 'hard' to foxes - and that, if/when hounds come across a real, fresh
fox scent they are likely to start following that rather then the 'trail'.
Perhaps the single most depraved aspect of fox hunting occurs, largely in secret,
with trusted hunt members only invited. It happens in the early mornings of late summer and early autumn. This is the cub
hunting season. Though now euphemistically called 'Autumn Hunting', it is still widely practised. It is extraordinarily
hard to monitor at all, let alone successfully.
Foxhounds
always have to be trained to hunt foxes, just as do drag hounds to follow artificial scent trails. Young foxhounds are introduced
into the pack to learn from the older, experienced hounds what to chase and how to kill. This is the purpose of cub hunting
– the tradition of sending the young ‘entry’ of hounds into copses with the experienced old hounds to find
fox cubs, ensuring they do not escape from the covert, and to chase them around until they catch them and tear them to
pieces - to learn, in the words of the 8th Duke of Beaufort, 'to be savage with their fox'.
Without young hounds being encouraged and trained to hunt and kill foxes,
fox hunters would either have to form genuine ‘drag hunts’ or risk regular prosecutions. At present, whether
it is by genuine ‘accident’ or, more typically, ‘cynical subterfuge’, hounds are still chasing and
killing young foxes in the cub hunting season because they are still being encouraged and trained to do so. Hunters are currently
almost always able to avoid prosecution for cub hunting either by taking some miserable captive bird of prey out with them
when they send their full pack of young and old hounds into cover, or by simply claiming that they were 'trail hunting',
or even just 'exercising hounds', and asserting that any observed chase or kill of a fox was an 'accident'.
In the nine hunting seasons since the legal banning of hunting, fox hunts have very frequently been observed
hunting and sometimes killing foxes. However, when such incidents are reported by members of the public,
or recorded by hunt monitors or sabs, the hunters merely claim that it was an ‘accident’. The fox, they will say, had
jumped up in front of the hounds, and, before they could be stopped, it was ‘unfortunately’ pursued
and perhaps torn to pieces - or run to ground.
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Indeed, the Hunting Act does not actually place any
obligation to stop hounds in such a situation, and the hunters are only at risk of prosecution and conviction if it can be
shown that they intentionally 'engaged or participated' in the chase. The 2009 High Court decision in the successful
appeal of the Exmoor FH Huntsman, who had been convicted of illegal hunting, determined that 'searching' was
not 'hunting' within the meaning of the Act. This left hunters completely free to take hounds right up to where
they had good reason to believe they would be likely to find quarry hiding or resting up, and they are very often observed
doing this. No wonder then that there are so many 'accidents'.
But what
about the foxes that sense the hounds are nearby? Don’t they pop down their ‘earth’? Yes,
as do many that have been chased, accidentally or deliberately. But every Fox Hunt still has the brutal ‘spade and terrier’
brigade accompanying them, even though using dogs to hunt foxes underground is illegal. They are exploiting
the ‘gamekeepers exemption’ which allows a single terrier to be used to flush out a fox to be shot for the purpose
of ‘preventing serious damage’ to game birds being kept or reared for shooting.
There
is no requirement in the Hunting Act for the hunters to prove that foxes have been causing such ‘serious damage’
- unlike the Wildlife and Countryside Act 1981 which states that this defence must be accompanied by evidence of such damage.
So the hunters simply point to the local tame landowner who only has to say he invited the terrier-men to flush out
the fox and shoot it because he likes to have a few pheasants to shoot for the pot. Terriermen
with Hunts are often seen engaging, or attempting to engage, in dig-outs of foxes that the hounds have driven to ground, much
as they did pre-ban. This has much more to do with 'sport' than genuine 'pest control'. Though the 'Gamekeepers'
Exemption' has a Code of Practice attached to it which proscribes how terriermen are to carry out their 'underground
hunting' neither it nor the Act itself address, let alone ban, digging out. Thus Fox Hunting, in all its gore, continues almost unchanged, in defiance of the clearly expressed
will of parliament and public. At the latest time of asking, late in 2016, 84% of the public supported the retention of the
Hunting Act[which the vast majority think has actually banned it]. In order
to convict someone of hunting a wild mammal with a dog, the current Act demands proof that the person[s] charged wilfully
took part in the pursuit of the mammal by the dog[s]. This is because words such as ‘caused or permitted’, which
are common in legislation outlawing acts of cruelty or killing, have been omitted.
If it was illegal to ‘cause or permit a dog to hunt, attack, injure or kill a wild mammal’
and a hunter enters hounds into areas where he knows, or ought to know (because the hunt had found foxes there for decades
before) they were likely to find and chase or kill a fox, then he could be charged with ‘causing or permitting’
the offence - through recklessness. The same applies to other forms of quarry hunting. It should induce
Hunts to adjust their current form of 'trail hunting' to something much more like genuine drag hunting [or just close
down if they don't fancy that because it is, as a pro-hunt Tory MP once said, 'like kissing your sister' - bloodless
and passionless] and make it much less likely that they will 'accidentally' chase and/or harm wild mammals.
The prosecution
would not have to prove that the hunter intended the dogs to hunt wild quarry. It would be enough to show recklessness. The
body of statute law is replete with offences for which it is only necessary to show reckless behaviour to convict. For instance,
many motorists are convicted of causing death or injury in accidents involving reckless behaviour on their part,
whether it be driving under the influence of drink or drugs, speeding, talking on a mobile phone etc. The courts don’t
have to consider whether the driver intended to kill or injure someone. Similarly, a person who
causes their child, or domestic animals to suffer can be convicted of cruelty by neglect, or even ignorance, irrespective
of whether they intended to cause suffering.
It seems that the
penalties provided under the Hunting Act are insufficient to deter organised hunters from offending. Fines of up to £5,000
can be imposed, but nearly all the sanctions against convicted members of organised Hunts have been just a small fraction
of that. Indeed, in 2013, two offenders were just given Conditional Discharges. An ACPO spokesman has stated that the low
seriousness accorded to Hunting Act offences is a significant reason why police accord such low priority to investigation
and enforcement. This attitude seems also to influence some judges and magistrates in sentencing. Nor are Hunting Act offences
'recordable', further reducing deterrence, since conviction does not result in a criminal record.
The
Hunting Act was intended to protect wild mammals from the infliction of the unnecessary suffering that is inevitable,
perhaps intentional, in hunting with dogs for 'sport'. Logically, the Act should contain penalties similar to that
in other animal projection legislation.
Although the Animal Welfare Act 2006, for instance, allows for much stiffer
sanctions, the Wild Mammals Protection Act 1996 is perhaps the most appropriate comparison. This allows for a fine of up to
£5,000, and/or a prison term of up to 6 months. POWA believes that the Hunting Act should carry penalties of no lesser
magnitude. This would automatically make Hunting Act offences 'recordable'. Perhaps as importantly,
Hunts should be made responsible for the actions of their employees and official in the hunting field via what is called in
law 'vicarious liability'. Because domestic animals are inevitably used in the commission of Hunting Act offences,
consideration should also be given to adding a power to disqualify offenders from keeping or owning animals, even if it
could only be used against serial offenders. This should present a significant deterrent to hunt staff in particular.
The Hunting Act 2004 was intended to prevent certain wild animals being unnecessarily hounded and savaged to death by dogs.
It has been used successfully to convict between three and four hundred offenders – but these are
mostly trespassing hare-coursers, badger diggers and poachers caught by the police acting on information supplied by members
of the public.
The number of successful prosecutions of members of organised
Hunts is tiny in comparison, and many of them have been achieved through private prosecutions by animal welfare societies, several
through evidence supplied by voluntary hunt monitors and sabs dedicated enough to spend a huge number of hours in the field
and brave enough to risk the obstruction, abuse, harassment, threats, damage or theft of property and violence commonly
meted out by hunt followers and staff.
Monitors' or sabs' mere presence may have some effect
in restraining Hunts from attempting to chase and kill wild animals, though some Hunts continue to do just this, even though
they know cameras are being trained on them. Yet, even when they have hunted openly and been filmed, monitors and sabs have
still usually been unable to persuade the authorities that there are sufficient grounds to prosecute. But monitors
can never hope to cover more than a small fraction of the more than 250 Hunts in England and Wales. There have been approaching
170,000 hunting days since the Act came into effect, and, judging by what monitors and sabs have witnessed of Hunts'
behaviour over those years, offences will have been committed on a very large proportion of those days, and Hunts seem to
be becoming ever more brazen. But there have been just 33 members of organised Hunts [and one whole Hunt]
convicted of illegal hunting since it became a crime in 2005. This is a quite astonishingly low offence to
conviction ratio. A table detailing all such prosecutions of persons from organised Hunts in England and Wales can be found
here.
The Hunting Act
has, so far, largely failed to curb the powerful and organised group of criminals whose activities were the main target of
the entire democratic and Parliamentary action. Parliament now needs to demonstrate that its authority
cannot be thwarted by any group of people – no matter how well-funded, no matter how highly placed their friends and
no matter how much land they control. The Hunting Act needs to be amended so that it does what it was intended to do –
prevent the unnecessary suffering of wild mammals in the name of bloodsports. The Act should certainly not be removed
from the statute book. When criminals circumvent the law, it should be strengthened to stop them, not repealed to reward them.
You can read POWA's proposals for amending the Hunting Act here. John Bryant POWA Animal Welfare & Wildlife Consultant
Alan Kirby, M.Sc POWA
Press & Research Officer
Section 4
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