DPP v Wright
| Jurisdiction | England & Wales |
| Judgment Date | 04 February 2009 |
| Neutral Citation | [2009] EWHC 105 (Admin) |
| Docket Number | Case No: CO/2553/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2009 |
[2009] EWHC 105 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: President of The Queen's Bench Division
Mr Justice Maddison
Case No: CO/2553/2008
Mr Kerry Barker & Ms Rebecca Bradberry (instructed by CPS Bristol) for the Appellant
Mr Philip Mott QC (instructed by Knights Sols) for the Respondent
Mr Philip Mott QC (instructed by Clarke Willmott, Taunton Sols) for the Claimants
Mr Kerry Barker & Ms Rebecca Bradberry (instructed by Sols) for the Respondents
Hearing dates: 16/17 December 2008
Sir Anthony May – President of the Queen's Bench Division:
This is the judgment of the Court.
Introduction
The Hunting Act 2004 was controversial during its prolonged Parliamentary history between 1997 and its enactment in 2004. Its application and effect remain controversial. The length of Parliamentary time spent on the issue of hunting was virtually unprecedented in modern times. The Parliamentary history of what became the 2004 Act is summarised in paragraph 12 to 21 of the judgment of a division of this court in R (Countryside Alliance) v Attorney General [2005] EWHC 1677 (Admin). That judgment dismissed judicial review challenges to the lawfulness and integrity of the 2004 Act on the grounds that it was a disproportionate, unnecessary and illegitimate interference with the claimants' rights to choose how to conduct their lives; with market freedoms protected by European law; and an unjust interference with economic rights. This court held that the 2004 Act was rational and proportionate legislation to achieve a legitimate democratic aim which withstood human rights and European law objections. Appeals against this judgment to the Court of Appeal and the House of Lords failed ([2006] EWCA Civ 817; [2007] UK HL 52), the main lines of this court's reasoning being upheld.
The 2004 Act was enacted by being passed in the House of Commons alone on a free vote by a substantial majority of Members of Parliament from all major parties. The ban of hunting wild mammals with dogs which it imposed did not represent legislation promoted by the Government. It did not represent the policy of the Government, but rather the will of the House of Commons expressed in a free vote. The legislative aim which this court discerned at paragraph 339 of the Countryside Alliance case – which the Court of Appeal and the House of Lords adopted - was a composite one of preventing or reducing unnecessary suffering to wild mammals overlaid by a moral viewpoint that causing suffering to animals for sport is unethical and should, so far as practical and proportionate, be stopped. There were, however, competing considerations such that the ban on hunting wild mammals with dogs was not absolute. Perhaps the main relevant competing consideration was the need to retain the lawful possibility of using dogs to control wild mammals which farmers and others are entitled to regard as pests.
The Hunting Act 2004
Section 1 of the 2004 Act provides that “a person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt”. Section 3 creates offences by a person who knowingly assists hunting which is banned under section 1. Part 2 of the Act has provisions for enforcement. A person guilty of an offence under the Act is liable on summary conviction to a fine not exceeding level 5 in the standard scale – currently £5,000. In addition, section 9 provides for the forfeiture of any dog, hunting article or vehicle used in the commission of the offence, pursuant to which the court might in some cases deprive a defendant of property of considerable value. So far as is material to these proceedings, this is not, in our view, mere regulatory criminality to be equated with minor motoring offences or routine licensing matters. Although the offences created by the Act are summary only, the subject matter is of great social and emotional importance to a large number of people, both the proponents and opponents of the ban on hunting with dogs. The prosecution which these proceedings mainly concern took 4 days before the magistrates and 5 days on appeal to the Crown Court.
The time limit for bringing a prosecution is the normal 6 months for summary offences. There is no requirement, such as there is for some motoring offences, of a notice of intended prosecution to be given within 14 days of the alleged offence.
The ban on hunting a wild mammal with a dog does not extend to hunting which is exempt. By section 2 of the Act, hunting is exempt if it is within a class specified in Schedule 1. We reproduce Schedule 1 in full as an appendix to this judgment. In short descriptive summary, exempt hunting includes:
i) stalking a wild mammal, or flushing it out of cover, if the conditions in paragraph 1 of the Schedule are satisfied. The conditions include that:
a) the stalking or flushing out is undertaken to prevent or reduce serious damage which the wild mammal would otherwise cause;
b) it does not involve the use of more than two dogs; nor
c) the use of one dog below ground otherwise than in accordance with paragraph 2.
The conditions in paragraph 2 include that the purpose of the stalking or flushing out is to prevent or reduce serious damage to game or wild birds kept for the purpose of their being shot; and that reasonable steps are taken to shoot the wild mammal dead as soon as possible after it has been flushed out from below ground.
ii) Hunting rats (paragraph 3) or rabbits (paragraph 4);
iii) Retrieving hares which have been shot (paragraph 5);
iv) Flushing a wild mammal from cover for falconry (paragraph 6);
v) Recapturing a wild mammal which has escaped or been released from captivity or confinement provided that it was not released or permitted to escape for the purpose of being hunted (paragraph 7);
vi) Rescuing an injured wild mammal using not more than two dogs above ground on condition that reasonable steps are taken as soon as possible to relieve its suffering (paragraph 8); and
vii) Hunting a wild mammal for the purpose of its observation or study using not more than two dogs above ground (paragraph 9).
All nine paragraphs of Schedule 1 have close variants of a condition that the exempt hunting takes place on land which belongs to the person hunting or which he has been given permission to use for that purpose by the occupier or owner. Several of the paragraphs have conditions that “reasonable steps are taken” to ensure that the wild mammal is shot dead and that each dog is kept under sufficiently close control to ensure that it does not prevent or obstruct the shooting.
By section 4 of the Act, it is a defence for a person charged with an offence under section 1 in respect of hunting to show that he reasonably believed that the hunting was exempt.
The 2004 Act came into force on 18 February 2005. There have since been a number of prosecutions for alleged offences contrary to section 1 of the Act. The matters before this court come from the West Country. Some prosecutions have been brought privately by the League Against Cruel Sports Ltd.
The Proceedings
On 4 August 2006, Anthony Wright, the Huntsman of the Exmoor Foxhounds, was convicted by magistrates of hunting foxes with dogs contrary to section 1 of the 2004 Act. He was fined £500 and ordered to pay £250 costs. The prosecution, brought by The League Against Cruel Sports Ltd, arose out of events on 29 April 2005, a few weeks after the 2004 Act came into force. The information was laid on 27 October 2005, two days before the end of the six month period. Mr Wright appealed to the Crown Court. The Director of Public Prosecutions took over the case from the private prosecutor. The appeal was heard by the Recorder of Exeter, HHJ Cottle, and justices on 5 to 9 November 2007. Judgment was given on 30 November 2007. It proceeded on a ruling of law that the burden of disproving that hunting was exempt under Schedule 1 was on the prosecution and that the standard of proof was the criminal standard. The appeal was allowed.
On 4 June 2008, Lloyd Jones J gave the DPP permission to apply for judicial review and ordered that the case should be heard at the same time as an application for judicial review in R (on the application of Scott) v Taunton Deane Magistrates' Court, which is now also before this court. On 18 July 2008, this court ordered the Crown Court in Mr Wright's case to state a case. This case is now before this court.
In the Taunton Deane Magistrates case, Maurice Scott, Peter Heard and Donald Summersgill are charged with unlawful hunting. They are concerned with stag hunting; and Donald Summersgill was, incidentally, the first named human rights claimant in the Countryside Alliance case – see paragraph 32 of the judgment. Earlier in the year, in a third case not before this court, DJ Parsons had convicted two members of the Quantock Stag Hounds of offences under section 1 of the Act, it being agreed by the parties that, by virtue of section 101 of the Magistrates' Court Act 1980, the burden of proving that hunting was exempt under Schedule 1 of the Act was on the defendants. On appeal in that case to the Taunton Crown Court, Wyn Williams J and Justices regarded that as clear.
In Mr Wright's case, however, the prosecution had been conducted before the magistrates on the basis...
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