Since the ban on hunting came into place there have been over 500 successful prosecutions. However there have been countless incidents of illegal hunting which have not been investigated or simply dropped at the final stages due to insufficient evidence. There are a number of reasons why it has been increasingly difficult for prosecutions to be secured.
The main reasons are exemptions in the 2004 Hunting Act, the lie that is trail hunting, difficulties with proving intent, and the argument of temporary lapse.
The main hurdle is that there are several exemptions written in to the 2004 Hunting Act which many hunts claim to be exercising. As written by the CPS “Defendants claim that they were hunting under one of the exemptions provided by Schedule 1 of the Act and therefore they were not committing any offence.” There are three main exemptions used by hunts to claim they are not illegally hunting wildlife.
Flushing a wild mammal from cover is exempt hunting if undertaken -
(a) for the purpose of enabling a bird of prey to hunt the wild mammal, and
(b) on land which belongs to the hunter or which he has been given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.
Many hunts will employ a member of hunt staff to walk around with a bird of prey so as to later be used in court as a proof that they were following the falconry exemption.
(1) The hunting of a wild mammal is exempt if the conditions in this paragraph are satisfied.
(2) The first condition is that the hunting is undertaken for the purpose of or in connection with the observation or study of the wild mammal.
(3) The second condition is that the hunting does not involve the use of more than two dogs.
(4) The third condition is that the hunting does not involve the use of a dog below ground.
(5) The fourth condition is that the hunting takes place on land -
(a) which belongs to the hunter, or
(b) which he has been given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs.
(6) The fifth condition is that each dog used in the hunt is kept under sufficiently close control to ensure that it does not injure the wild mammal.
‘Observation and research’ is an exemption commonly used by stag hunts to convince the court that they are not illegally hunting.
The law allows for the practice of ‘flushing out’. This is the practice whereby terriermen send a terrier dog underground to flush out a fox to be shot. The law stipulates that only one terrier can be sent underground at a time with a maximum of two dogs present and that the fox must immediately be shot. This rarely happens and terriermen are often seen releasing foxes that have tried escaping underground to then subsequently be chased and killed by a hunt. There is no closed season for the practice of flushing out foxes and it happens all year rounds to fit different purposes of the hunt.
Trail hunting, proving intent and temporary lapse
The other factor when it comes to successfully prosecuting hunts is the arguments put forward by hunts that they’re ‘trail hunting’ as opposed to intentionally and deliberating hunting a wild mammal. This is where the issue of intent comes into play. The hunts claim that since 2004 their hounds have simply been following a pre-laid artificial based scent and that they haven’t been deliberately or intentionally killing wildlife.
The defence of intent rests on a 1969 ruling by the House of Lords whereby guilty intent is important in establishing whether a law has been broken. Hunts also claim a temporary lapse in the sense that they claim to be hunting legally all day (trail hunting) but had a temporary lapse when the hounds pick up on a fox. The CPS is then tasked with the job of proving that the modus operandi from the beginning of the hunt is more consistent with illegal hunting (e.g. hunt are in an area where a trail is very unlikely to have been laid).
If you’d like to read more about the lie that is ‘trail hunting’ and how the hunts have used it as a means of avoiding prosecution and confusing the public you can do so here.