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The Hunting Act 2004

Introduction

This legal guidance on the Hunting Act 2004 (the Act) is for prosecutors and caseworkers. The full text of the Act can be obtained from the OPSI website.

The Act has been in force since 18 February 2005.

The principal purpose of the Act is to criminalise certain forms of hunting of wild mammals with dogs, but it is wider than that and includes specific offences relating to hare coursing.

The issue of hunting is a contentious one and this was reflected in the debates during the passage of the legislation through Parliament. Prosecutors review all cases in accordance with the Code for Crown Prosecutors to determine whether there is sufficient evidence to provide a realistic prospect of conviction and, if so, whether a prosecution is required in the public interest. This is the Full Code Test which is applied to offences under this Act.

Hunting has many forms, both formal and informal, and it is not limited to those that are regulated by the Masters of Foxhounds Association. Other forms of hunting may include hunting for hare, mink and deer. Formally constituted hunts have changed their written constitutions since the passing of the Act. The basic structure of a formal fox hunt is described at Annex A for information.

In broad terms the Act creates five offences:

  • Hunting a wild mammal with a dog section 1
  • Permitting land to be used for hunting a wild mammal with a dog section 3(1); 
  • Permitting a dog to be used for hunting a wild mammal with a dog section 3(2); 
  • Participating in, attending, facilitating or permitting land to be used for the purposes of a hare-coursing event section 5(1); and 
  • Entering/permitting/handling a dog in a hare-coursing event section 5(2).

The standard offence wording for offences under the Act can be accessed via the Police National Legal Database. All the offences under the Act are summary-only and the maximum penalty for these offences is a level 5 fine section 6 of the Act. There can be no attempted offences. The offences are subject to the normal six months limitation of time for the commencement of such prosecutions.

In cases where an offence is committed on or near a boundary (or possibly in two or more counties), the jurisdictional provisions in Sections 2 and 3 of the Magistrates Courts Act 1980 apply.

ACPO have issued separate guidance to police forces covering strategic and tactical considerations. They have indicated that an appropriate reaction to policing hunts may well be evidence gathering, either by the police or in statement form from members of the public, to identify offences and offenders with a view to subsequent action, whether by summons or arrest. It is important that there is liaison between CPS Areas and individual police forces to discuss what will happen at the local level and to emphasise the Directors Guidance on Charging.

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Investigation, the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (RIPA)

Third parties such as the League Against Cruel Sports (LACS) and other Non-Governmental Organisations (NGOs) often conduct surveillance of hunting meetings and other rural activities. Such surveillance is conducted for their own purposes although they do frequently pass surveillance footage to the police where they believe that a crime has been committed. It has been suggested that such surveillance should not be carried unless an authorisation has been obtained by the police under Part II of RIPA 2000 and/or Part III of the Police Act 1997.

Where covert surveillance is undertaken by a public authority which is likely to result in that authority obtaining private information, an authorisation should be sought under Part II of RIPA if the surveillance is to be deemed to be lawful. If the conduct of the surveillance involves entry on or interference with anothers property, an authorisation should be sought under Part III of the Police Act 1997.

No authorisation under RIPA or the Police Act needs to be sought where an NGO such as LACS conducts surveillance only for its own purposes. RIPA and the Police Act regulate the activities of public authorities so that those activities do not offend against Article 8 of ECHR.

No authorisation would be required as a means of protecting such conduct from being found to be unlawful where the police neither initiate nor encourage the surveillance even though they may be aware of it. See Rosenberg [2006] EWCA Crim 6.

However, where the police are aware of the intention of the NGO to conduct covert surveillance and intend making use of the surveillance product in the event that it reveals evidence of a crime, it would be appropriate to seek an authorisation. This would undoubtedly be the case where the NGO is tasked to conduct the surveillance, whether explicitly or by implication.

Where surveillance product is to be relied upon, the question of whether that surveillance was overt or covert and was carried out at the initiation of or with the encouragement of the police in circumstances likely to result in private information being obtained, are questions of fact to be determined in each individual case.

Where surveillance has been conducted in circumstances which the court determines should have been the subject of an authorisation under RIPA or the Police Act, the absence of an authorisation does not mean that the surveillance evidence will be automatically excluded. The fact that the evidence was obtained in breach of a Convention right is a factor which the court will consider when exercising its discretion under section 78 of PACE.

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Powers of Search and Seizure Hunting Act 2004

Section 8 of the Hunting Act sets out the powers of search and seizure. These powers can be used where a constable reasonably suspects that a suspect is committing or has committed an offence under this Act. Under the Act, there is no power where a suspect is about to commit an offence or may commit an offence in the future as the section is worded to cover current and past activity only.

In summary, a constable may search without a warrant any suspect, and any "vehicle, animal or other thing". if the constable reasonably believes that evidence of an offence under the Act is likely to be found sections 8 (2) and (3).

In addition a constable has the power to detain a "vehicle, animal or other thing" if it may be used as evidence or be the subject of a forfeiture order under section 9 of the Act.

Section 8 (5) provides the power of entry to land, premises other than a dwelling, and a vehicle for the purposes of a search. There is no equivalent power for the purpose of effecting an arrest under the Act.

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Powers of Arrest Hunting Act 2004

Section 7 which outlines the power of arrest has now been repealed by the Serious and Organised Crime and Police Act 2005 (SOCPA)

Section 110 (1) and (4) (SOCPA) [in force from 1 January 2006] amends section 24 of the Police and Criminal Evidence Act (PACE) 1984 which dealt with arrest without warrant for arrestable offences and substitutes new provisions.

Under the new Section 24 (1) a constable may arrest without a warrant

a) anyone who is about to commit an offence;

b) anyone who is in the act of committing an offence;

c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence; and

d) anyone whom he has reasonable grounds for suspecting to be committing an offence.

All offences carry a power of arrest and a lawful arrest requires two elements:

  • A person's involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
  • Reasonable grounds for believing that the persons arrest is necessary.

See 2.4 - 2.9 of PACE Code G for further details.

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Hunting Wild Mammals with Dogs

Section 1 provides:

A person commits an offence if he hunts a wild mammal with a dog unless the hunting is exempt.

Hunting is described in section 11(2) of the Act as follows:

For the purposes of this Act a reference to a person hunting a wild mammal with a dog includes, in particular, any case where:

a) a person engages or participates in the pursuit of a wild mammal, and

b) one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction)

The Act therefore makes clear that hunting with dogs includes engaging alone or participating with others in the pursuit of a wild mammal where a dog is used in that pursuit. Hunting is an intentional activity and there can be no such thing as unintentional hunting.

The issue of whether 'hunting' under the Act included the searching for an as yet unidentified or unidentifiable wild mammal was examined in the joined cases of DPP (Crown Prosecution Service CCU South West) v Anthony Wright; and The Queen on the Application of Maurice Scott, Peter Heard & Donald Summersgill vTaunton Deane Magistrates Court [2009] EWHC 105 (Admin).

The Administrative Court gave a restrictive interpretation to the Act ruling that the term 'hunts' under the Act does not include the mere searching for an as yet unidentified wild mammal.

Hence once an illegal hunt begins, only a person who engages or participates in the pursuit of an 'identified' wild mammal is guilty of an offence. It is therefore essential to establish whether the police have gathered evidence to support this ingredient of the offence when assessing whether the evidential stage of the Full Code Test has been met.

The terms engage or participate mean to take an active and direct part in the hunting of the mammal, as distinct from observing. Those who follow a hunt for the sake of observing the hunt are not technically hunting under the Act. A suspect may argue that although he was following the hunt he was not in pursuit of a mammal but merely observing the acts of those involved in the actual hunting. It may be argued, subject to the availability of the necessary evidence, that the followers are aiding and abetting the hunt by encouraging those who actively participated.

The gathering before the hunt will not constitute hunting for the purposes of section 1. There can be no offence of attempting to hunt as the section 1 offence is summary only and only either way and indictable-only offences can be charged as attempts under the Criminal Attempts Act 1981.

A mammal is a creature whose female of the species has mammary glands, i.e. suckles its young. The fox and about 4000 other species are mammals. There must be some form of evidence adduced to prove that there was an actual pursuit of a wild mammal. This may be obtained and supported by eye-witness accounts of the activity, video evidence or evidence of preparatory activity such as earth stopping; that is the practice of blocking fox, rabbit, badger holes to prevent a fox going to ground, see Evidential Issues below.

Typically a pack of dogs is involved in the hunt. It will be necessary to prove that the dogs were hunting a wild mammal and that the form of hunt is not exempted under the Act.

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Exempt Hunting

Certain forms of hunting, very closely defined in Schedule 1, are exempt namely:

  • Stalking and flushing out a wild mammal for certain purposes, with a view to its being shot forthwith, and not using more than two dogs;
  • Use of not more than one dog at a time below ground in the course of stalking or flushing to protect birds for shooting;
  • Hunting rats;
  • Hunting rabbits;
  • Retrieval of shot hares;
  • Flushing a wild mammal from cover in connection with falconry;
  • Recapture of accidentally escaped wild mammal;
  • Rescue of wild mammal believed injured using not more than two dogs and no dog below ground; and
  • Observation and study of a wild mammal, using not more than two dogs and no dog below ground.

Prosecutors are advised to note the judgment of the Administrative Court in the joined cases of DPP (Crown Prosecution Service CCU South West)  v Anthony Wright; and The Queen on the Application of Maurice Scott, Peter Heard & Donald Summersgill v Taunton Deane Magistrates Court (2009).

The Administrative Court ruled that the term 'hunts' under the Hunting Act 2004 ("the Act") does not include the mere searching for an unidentified and unidentifiable wild mammal. As to the question on where the burden of proof lies, the court held that once the defendant raised one of the exemptions in the Act, then the prosecution needed to prove to the criminal standard that this exemption did not apply (see Exempt Hunting, above).

Accordingly, when reviewing cases, prosecutors should consider whether any of the statutory exemptions are likely to be relied upon, and assess whether the evidence taken in its entirety is sufficient to rebut the raising of such an exemption. This may require inviting the police to gather further evidence as appropriate.

Prosecutors should invite the court to remind defendants of their obligations under Part 3 of the Criminal Procedure Rules, namely assistance in the early identification of the issues in any case. This is particularly important given that Defence Statements are not mandatory in the magistrates' court. Such an approach will assist in avoiding ambush defences being presented on the day of trial.

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Statutory Defence

Section 4 of the Act provides a defence to a section 1 offence, namely that the defendant reasonably believed that the hunting was exempt. This will only apply when the hunting concerned was not in fact exempt. If it was exempt, there is no offence against which a defendant needs a defence. This defence places a legal burden on the defendant to prove, on the balance of probabilities, that he reasonably believed his acts were exempt. In cases where it is likely that the defence under section 4 is to apply, evidence to contradict the claims being made will be necessary if a prosecution is to succeed.

Evidential Issues

It is important that there is early local liaison with the police to address evidential issues.

The list that follows should not be seen as prescriptive but as examples of the sort of evidence which may help prove the commission of an offence. Prosecutions should primarily be concentrated on those responsible for managing and directing the activity.

  • Eye-witness accounts of a wild mammal being hunted;
  • Video and photographic evidence of the hunt or the wild mammal;
  • Admissions
  • Earth-stopping
  • Roles undertaken by suspects in the hunt; 
  • In the absence of a dead wild mammal, evidence in the form of the suitability of the environment and the presence of mammal droppings; and 
  • Documentary evidence such as circulars about a planned hunt, for example.

Public Interest Issues

Ordinarily a prosecution should be pursued under the Act unless there are compelling public interest factors which militate against the prosecution. The usual factors as outlined in the Code for Crown Prosecutors should be considered.

In cases involving youths, which pass the evidential sufficiency stage, consideration should first be given as to whether any further action is required. If action is required then diversion should be considered in the usual way before any decision to prosecute is taken.

Permitting Access to Land

Section 3(1) of the Act provides that: 

person commits an offence if he knowingly permits land which belongs to him to be entered or used in the course of the commission of a section 1 offence.

Points to prove:

  • a section 1 offence was committed it will not be necessary to convict anyone, but section 74 PACE could be used to prove that element of the section 3(1) offence if a conviction for a section 1 offence has occurred; 
  • the section 1 offence was committed on land "belonging" to D;
  • D knowingly permitted the land to be entered or used; and 
  • the entry or use was in the course of the section 1 offence.

Knowingly Permits

An owner or occupier of land who gets an unwelcome visit from the hunt will not be caught by section 3(1). Proof will be required that the defendant knew that illegal hunting was taking place at the time that the illegal hunt was on his land.

It may be argued that permission was given for legal forms of hunt and that the persons have gone beyond the scope of the permission granted. In these situations it will be important that the necessary evidence of knowledge is obtained from circumstance or other evidence before a prosecution is pursued.

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Belongs to him

Section 11(3) provides that for the purposes of the Act land belongs to a person if he:

  • owns an interest in it (so freehold or leasehold will suffice); 
  • manages or controls it; or
  • occupies it.

Difficulty may arise in identifying the chain of ownership, management and occupation of rural land. Land may be held in the sole name of the beneficial owner, or it may be held in other ways, such as in the name of a trust or a limited company or other corporate body. The land may be farm or forest. There may be a lease to an individual or a company, and there may be a manager. There may be someone residing on part of the land, e.g. a farm or forestry worker. Evidence of interests in land can be obtained from the Land Registry. This will not assist in the case of unregistered land where it may be necessary to revert to other local registers or utility company information to ascertain who the owner is.

On the basis of the wide definition of who owns land, it is likely that more than one individual could be liable under this offence. In such situations careful consideration needs to be given to the extent that the acts of an owner were in fact permitting the hunt as opposed to acts of employees or sub-tenants.

In the course of the commission of a section 1 offence

There are two differing factual situations caught by section 3(1), namely 'entered in the course of the commission of an offence' or 'used in the course of the commission of an offence'.

For the offence of permitting land to be entered in the course of a section 1 offence, the offence must have already begun before the hunt is allowed to enter the land concerned. In relation to the offence of permitting land to be used in the course of a section 1 offence, use requires that the hunting offence takes place on the land, regardless of where the hunting offence began.

This means that care will need to be taken in the drafting of a section 3(1) offence to ensure that the wording of the charge follows the factual situation that can be proved. It may be that "use" of the land will be easier to prove.

Where not relying on (section 74 PACE) to prove that a section 1 offence was committed, evidence will need to be adduced to prove the commission of a section 1 offence, see Evidential Issues.

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Permitting use of a Dog in a Hunt

Section 3(2) of the Act provides that:

a person commits an offence if he knowingly permits a dog which belongs to him to be used in the course of the commission of a section 1 offence.

Section 11(4) provides that for the purposes of the Act:

a dog belongs to someone if he:

  • owns it
  • is in charge of it; or
  • has control of it.

This is similar to the terminology used in the Dangerous Dogs Act 1991.

Points to prove

  • a section 1 offence was committed it will not be necessary to convict anyone, but section 74 PACE could be used to prove that element of the section 3(1) offence if a conviction for a section 1 offence has been obtained;
  • the dog "belongs" to D. Where an entire pack is involved, it would seem proper to charge ownership of all the dogs as a single offence. This would not be duplicitous as a single offence was being committed of permitting the use of a pack of dogs for a section 1 offence;
  • the dog was used in the course of the commission of a section 1 offence. This may require evidence of when the section 1 offence began;
  • D knowingly permitted the dog to be used during a section 1 offence.

This section is aimed at those responsible for the pack, and may catch someone such as the kennel man who brings dogs to a section 1 hunt or who controls them at the scene. It is wide enough to cover any individual who provides a dog to be used to commit an offence regardless of whether they in fact own it.

Knowingly Permits

As with the section 3(1) offence, the offence is aimed at the willing participant, and proof will be required that the defendant knew that illegal hunting was taking place at the time that he permitted the dog or dogs to be used for illegal hunting

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Hare Coursing

Section 5 outlaws hare coursing and contains wider provisions than those relating to hunting wild mammals. The offence in section 5 is precisely drawn but some confusion may arise where 'illegal hare coursers' are prosecuted. Such persons are trespassers and commit an offence under the Game Acts. Where trespass to land is an ingredient of the activity said to constitute an offence under section 1 or section 5 of the Hunting Act 2004, it will generally be easier to continue to prosecute under the Game Acts.

Section 5(1) provides:

A person commits an offence if he:

  • a) participates in a hare coursing event;
  • b) attends a hare coursing event;
  • c) knowingly facilitates a hare coursing event; or
  • d) permits land which belongs to him to be used for the purposes of a hare coursing event.

Hare Coursing Event

A hare coursing event is defined in section 5(3) as: a 'competition' in which dogs are, by the use of live hares, assessed as to skill in hunting hares. This definition is restrictive in that it requires proof of a competitive event and that it was to assess the skill of the dogs.

Participates

This means taking part in, and will therefore catch those who take part in the 'competition' which is the essential feature of a hare coursing event. As with the definition of hunting, the definition of a hare coursing event requires that a 'competition' has begun.

Attends

Unlike the section 1 offence of hunting with dogs, being present at what is a hare coursing event, even as a spectator is an offence under the Act.

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Knowingly Facilitates

A person who facilitates something makes it happen or makes it easier for it to happen. That would appear to catch those who organise or promote a hare coursing event. This sub-subsection cannot be aimed at those who allow their land to be used, as that is specifically dealt with by sub-subsection (d). It catches those who set out the course, set up the admission table, provide the prizes. It should also include those who take steps to prevent the illegal event from being disrupted by the police or campaigners.

Section 5(2) creates offences relating to involvement with a dog which participates in a hare coursing event:

Each of the following persons commits an offence if a dog participates in a hare coursing event:

a) any person who enters the dog for an event;
b) any person who permits the dog to be entered;
c) any person who controls or handles the dog in the course of or for the purposes of the event.

It is important to note that the issue of ownership of the dog does not arise in the definition of these offences

Forfeiture Orders

A specific power of forfeiture is contained in section 9 of the Act. The following can be forfeited when a person is convicted of any offence under the Act:

  • any dog (but note, not, horses) that was used in the commission of an offence under Part 1 of the Act or in the possession of D when arrested;
  • any hunting article that was used in the commission of the offence or in the possession of D when arrested. Hunting article is defined in section 9(3) as any article designed or adapted for use in connection with hunting a wild mammal; and
  • any vehicle used in the commission of the offence for example the van or trailer (does not have to be a motor vehicle) used to bring the dogs to the start of the hunt.

The forfeiture of dogs is clearly a very sensitive issue. Before making a forfeiture application, the prosecutor should be in a position to advise the court what arrangements can be made for the future of the animals if forfeited, to be included in any direction made under section 9(4)(a). Any application for forfeiture should only be made in consultation with the police.

A gradual approach to forfeiture may well be appropriate. In other words, it is those who re-offend or who are persistent offenders that are most at risk of forfeiture applications and orders.

Section 9 also provides for any person in possession of a dog, hunting article or vehicle which is made the subject of a forfeiture order to hand it over to the police. Hence there is no need to seize these at the time of the section 1 offence. Section 9(7) makes it an offence not to comply with a forfeiture order.

There is no power in section 9 to order the forfeiture of horses.

There is provision for a person other than the defendant, who claims an interest in a dog, hunting article or vehicle which has been made the subject of a forfeiture order to apply to the court for the return of the dog, hunting article or vehicle before the police have finally destroyed or disposed of it. Section 9 sets out no procedure, but the procedure is likely to be analogous to the (Police (Property) Act 1897) procedure.

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Private Prosecutions

There may be instances where private individuals or organisations may launch private prosecutions for offences under the Act. Prosecutors should refer to the Legal Guidance on Private Prosecutions in deciding whether to take over such cases.

Monitoring Offences under the Hunting Act 2004

Areas are asked to notify Policy Directorate of any prosecutions that occur under the Hunting Act 2004. The information that needs to be forwarded is as follows:

  • Name of defendant(s);
  • The offence under the Act;
  • The type of mammal hunted e.g. fox, mink, deer, hare;
  • The outcome of the case.

This information should be sent to Policy Directorate Helpdesk, HQ London. hqpolicy@cps.gsi.gov.uk

Annex A: The Structure of MFHA-Affiliated Hunts and their Documentation

Hunts formally affiliated to the Masters of Foxhounds Association (MFHA) have a written constitution and a clear structure. Details of the officers of the hunt will be registered with the MFHA.

A Hunt Committee holds the hounds as agent for the Trustees, although some of the dogs may belong to a Master.

Records of the names, descriptions and pedigrees of the dogs will be maintained by the hunt and registered with the MFHA. Dogs are required to have a long pedigree and to be from accredited hunting stock.

Administration of the hunt is typically divided into three: horses, dogs and followers, each may be the responsibility of a Master. Hence there may be two or more joint Masters.

The committee may employ:

  • one or more stud grooms,
  • a kennel man to look after the dogs,
  • whippers-in to control the dogs during a hunt,
  • a maintenance team which includes a country man to build fences and repair damage caused by hunting.

The hunt may also operate a service to collect and dispose of dead stock from the farms of farmers who support the hunt.

While the hunt is out in the country, one of the joint Masters will be Field Master. He directs the hunting and makes any necessary decisions, such as the direction of the hunt. Under the Field Master's direction, a Huntsman is responsible for handling the dogs, assisted by the whippers-in.

Earth-stoppers are people who go out the night before a hunt and block up fox, rabbit, badger holes in order to prevent a fox going to ground.

The hunt should hold an annual general meeting, prior to February in each year, to consider arrangements for hunting in the following season.

Foxhunting generally takes place from August/September until March/April.

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