The Hunting Act 2004
Introduction
This legal guidance is intended as an introduction to the Hunting Act 2004 (the Act) for lawyers and caseworkers. The full text of the Act can be obtained from the <HMSOwebsite>.
The Act is due to come into force on 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 has been 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. The same tests apply 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 are likely to change their written constitutions in reaction to the passing of the Act. The basic structure of a formal fox hunt priorto the passing of the Act is described at <Annex A>for information. It may be useful to compare this with the newly constituted hunts when formulated.
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>link on your desktop computer. The <Director's Guidance on Charging (Second Edition, January 2005)>specifies, at Annex A, that offences arising directly or indirectly out of activities associated with hunting wild mammals with dogs under the Hunting Act 2004 must be referred to a Crown Prosecutor for early consultation and charging decision.
All the offences are summary-onlyoffences and the maximum penalty for these offences is a level 5 fine - section 6 of the Act. There can be no 'attempted' offences <see below>. 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 Director's Guidance on Charging.
Powers of Search and Seizure
<Section 8>of the Act sets out these powers. 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.
Powers of Arrest
Section 7which outlines the power of arrest has now been repealedby the Serious and Organised Crime and Police Act 2005 (SOCPA).
Section 110 (1) and (4) (SOCPA) [in force from 1 January 2006] amends s 24 of the Police and Criminal Evidence Act (PACE) 1984 which dealt with arrest without warrant for arrestable offences and substitutes new provisions (see below).
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 person's arrest is necessary.
See 2.4 - 2.9 of PACE Code G for further details.
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 :
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 to be understood in its ordinary English meaning and the Oxford English Dictionary defines 'hunt' as also including 'to search'. Hunting is an intentionalactivity and there can be no such thing as unintentional hunting.
Hence once an illegal hunt begins, any person who engages or participates in the pursuit or search of a wild mammal is guilty of an offence. The sense of engage or participate is to take an active and direct part in the hunting of the mammal, as distinct from observing. It would seem that 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 or search 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 ofattempting to huntas 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, e.g. 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 or search of a wild mammal. This may be obtained by eye-witness accounts of the activity or video evidence or evidence of preparatory activity such as earth stopping i.e. 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.
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.
Statutory Defence
<Section 4>of the Act provides a defence to a section 1 offence, 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. The defence places a legal burden on the defence 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 inevitably 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. By prosecuting these, the courts can be expected to impose heavier penalties than they would on more minor participants thus triggering a potentially more effective enforcement.
- Eye-witness accounts of a wild mammal being hunted;
- Video and photographic evidence of the hunt or the wild mammal
- Admissions;
- Earthstopping;
- 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:
a 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.
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 readily 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 by obtaining a formal register of the land from the Land Registry for registered land. 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 a '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 enteredin the course of a section 1 offence, the section 1 offence must have already begun before the hunt is allowed to enter the land concerned. It is enough that the hunt enters the land in search of a fox but before one is located.
In relation to the offence of permitting land to be usedin 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 Issue, above>.
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 kennelman 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.
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.
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.
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 - eg the van or trailer (does not have to be a motorvehicle) 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.
Private Prosecutions
There may be instances where private individuals or organisations may launch private prosecutions for offences under the Act. Prosecutors should apply the guidance for whether to take over such cases as set out in <Role of Crown Prosecution Service, elsewhere in this guidance>.
Monitoring offences under the Hunting Act 2004
For the time being 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, London.
Pending Legal Challenges
You will be aware that there are pending legal challenges to the Act. The CPS has in the past when appropriate applied to adjourn cases affected by pending legal challenges. The DPP will, if need be in consultation with the Attorney General, consider whether prosecutions brought under the Hunting Act 2004 need to be similarly adjourned if there are pending legal challenges to the Act. Whether cases need to be adjourned will depend on the nature and progress of any challenges to the Act and the potential impact on prosecutions.
Guidance on this aspect will follow separately, in the first instance by 18 February 2005, by which time we hope a Court of Appeal judgment will have been delivered in the Parliament Act challenge. Further guidance will follow if and when any subsequent challenges proceed.
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 kennelman to look after the dogs,
- a terrierman to control the terriers which are used to kill foxes that have gone to ground during a hunt, (the terrierman has to be licensed and registered with MFHA)
- whippers-in to control the dogs during a hunt,
- a maintenance team to 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 or how to deal with a fox gone to ground. Under the Field Master's direction, a Huntsman is responsible for handling the dogs, assisted by the whippers-in.
Earthstoppers 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.