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LATEST HIGH COURT RULING ON THE HUNTING ACT 2004
Elyned Ashcroft
Elyned Ashcroft is a solicitor with Cartmell Shepherd of Carlisle who are ranked the top agricultural law practice in the North West by the independent Chambers guide. She lives on a hill farm in the Pennines with her husband and three children, where they keep Kendal Rough sheep and pedigree Fell ponies. Her contact is eda@cartmells.co.uk
As most people reading this page will be all too well aware, the Hunting Act 2004 came into force on 18th February 2005. The Act bans hunting wild mammals with dogs but does allow some exempt activities including:-
- stalking or flushing out to prevent or reduce serious damage to game or wildlife so long as the flushed mammal is shot immediately and no more than two dogs are used
- hunting rats or rabbits
- retrieving hares which have been shot
- flushing a wild mammal from cover for falconry
- re-capturing a wild mammal which has escaped or been released from captivity provided it was not released for the purposes of being hunted
- rescuing an injured wild mammal using not more than two dogs above ground on condition that reasonable steps are to be taken to relieve the suffering as soon as possible
- hunting a mammal for the purpose of its observation or study using not more than 2 dogs above ground
All the above exemptions must take place on land belonging to the person hunting or on which he has been given permission to hunt by the occupier or owner.
Prosecutions have been brought under the Hunting Act. Those found guilty face a fine of £5,000 and forfeiture of dogs, hunting articles or vehicles used in the commission of the offence. In one case the Crown Court concluded that the relevant law was far from simple to interpret or apply. This has led to two cases being referred to the High Court and judgment has now been given by the High Court Judge, Mr Justice Maddison.
There were two main questions concerning the Hunting Act which Mr Justice Maddison had to decide:-
- Whether the burden of proving one of the exemptions applied fell on the Defendant or if the burden of proving it did not apply fell on the prosecution.
- Whether the term “Hunt” a wild mammal with a dog used in section 1 of the Act includes the activity of searching for a wild mammal for the purpose of stalking or flushing it.
On the first question, the prosecutor had argued that if the burden of proving the exemptions did not apply fell on the prosecution this would make the Act unworkable. The Judge rejected the argument, and ruled that it falls to the accused to simply ensure that there is sufficient evidence of the exemption he wishes to rely on, so the Court is aware that the matter is a live issue. It is then for the prosecution to disprove, beyond all reasonable doubt, the various elements or conditions of the exemption relied upon by the Defendant.
On the second question the Judge ruled that the prosecution has to show that there was a fox (or quarry) being hunted and that merely searching for a wild mammal to hunt is not enough in itself.
It is interesting that in reaching its decision the court stated a conviction under the 2004 Act is not to be regarded as trivial.
The judgment, as it stands, makes the prosecutor’s task more difficult. However, this may not be an end to this matter. The Director of Public Prosecutions can apply for leave to appeal the decision and to have the case heard before the House of Lords.
We’ll have to wait and see...