Flushing out prosecutions

Last month's High Court decision in DPP v Wright [2009] EWHC 105 (Admin) has been hailed as a victory by both hunt supporters and animal welfare groups alike. The case was brought by the Crown Prosecution Service to clarify how several key clauses in the Hunting Act 2004 should be interpreted. While the clarity of the judgment does indeed represent a landmark ruling for hunting, whether it also sounds the death knell for a clearly wounded Hunting Act remains to be seen.

More difficult prosecution

The first point to note is the High Court's more restrictive definition of 'hunting', which focused on the identification of a specific quarry rather than on any preparatory activity such as searching for an animal or 'going equipped for hunting'. This is undoubtedly a much more practical interpretation than the equivalent Protection of Wild Mammals (Scotland) Act 2002, and one that reasserts the distinction between hypothetical and actual hunting. Such a view also seems to confirm the legality of trail and drag hunting where no intention to hunt wild mammals exists. The interpretation will, however, make it more difficult for English anti-hunt campaigners to bring prosecutions '“ as they will now need to prove that specific wild animals were suffering, rather than simply wildlife as a whole.

Many of the difficulties surrounding prosecutions come not from identifying that hunting has taken place, but rather from having to prove that the huntsmen are guilty of unlawful hunting. This is because the Hunting Act bans some, but importantly not all, forms of hunting (sched.1 to the Act lists nine separate exemptions where hunting wild mammals is perfectly legal). While ultimately the decision as to whether the hunt is exempt is a question of fact for individual courts, what Wright confirms is that the legal burden of proving the unlawfulness of the hunt falls on the prosecution '“ huntsmen remain innocent until proven guilty.

Although the burden of proof remains with the prosecution, Wright also imposed a corresponding evidential burden on the defendants to state what defence they will be relying on (with a failure to disclose this defence being punishable by adverse inferences, or costs awards) to allow the prosecutors to gather sufficient evidence to rebut such a claim. This is perhaps the most difficult part of the process. Hunts by their very nature are typically conducted at a fast pace across uneven countryside '“ a situation not particularly conducive to accurate contemporaneous recording and observation.

Ironically, the complex drafting of the Hunting Act itself only serves to muddy this process further. For example, while the Act states that it is a defence if the huntsmen have taken reasonable steps to shoot a flushed animal, it does not elaborate on what steps would actually be considered reasonable (see Tim Ryan, 'Hunting high and low for clarity', Solicitors Journal 152/8, 26 February 2008 for more unanswered questions).

The High Court in Wright may therefore have confirmed that on a theoretical level, the Hunting Act is still a workable statute. On a practical level however, the question of whether enough evidence can be collected to support a reasonable chance of a conviction is another matter.

Changes afoot

Following this decision, there are three very different, but equally possible, futures for hunting.

The very public criticism of the inadequacies of the Hunting Act has increased calls from hunting organisations and the Countryside Alliance for its repeal. Such a move would also be supported by the Conservative Party, which has promised a free vote on the issue should it win the next election.

It is also possible that the current legislation could be tightened, for example, by bringing England into line with Scottish rules on searching, or extended by applying the Act to other animal sports. Now the CPS has indicated that it will not appeal Wright, this could be achieved through legislative means.

The third, and perhaps most likely, option for hunting is the approach taken by the League Against Cruel Sports (LACS) and the RSPCA who plan to use the clarification provided in Wright to resume their backlog of private prosecutions. Although, paradoxically, it seems that animal rights campaigners have had more success in using the criminal law to prevent violence and intimidation to their own observers, rather than to prevent animals being hunted.

While Wright provides several important clarifications to the Hunting Act, ultimately the court was constrained by a poorly drafted Act that promised much but sat on the fence rather than jumping over it. With both sides claiming victory, we eagerly await further clarification of the law from the forthcoming prosecutions of the Devon & Somerset Staghounds Hunt (rescue, research & observation exemptions) and the Isle of Wight Hunt (Bird of Prey exemption).