Jeremy Hagan Whaley+brian Leonard Friend V. The Lord Advocate For Judicial Review Of The Protection Of Wild Mammals (scotland) Act 2002
| Jurisdiction | Scotland |
| Judge | Lord Brodie |
| Docket Number | P672/02 |
| Date | 20 June 2003 |
| Court | Court of Session |
| Published date | 20 June 2003 |
| OUTER HOUSE, COURT OF SESSION | |
| P672/02
| OPINION OF LORD BRODIE in the Petition of JEREMY HAGAN WHALEY and BRIAN LEONARD FRIEND Petitioners; against THE LORD ADVOCATE, Respondent: for Judicial Review of the Protection of Wild Mammals (Scotland) Act 2002 ________________ |
Petitioners: Parties
Respondent: Moynihan, Q.C., Wolffe;
Solicitor to the Scottish Executive
20 June 2003
Introduction
[1] The petitioners seek judicial review of the enactment, by the Scottish Parliament, of the Protection of Wild Mammals (Scotland) Act 2002 ("the Protection of Wild Mammals Act"). It is the contention of the petitioners that the Protection of Wild Mammals Act is not within the legislative competence of the Parliament.
[2] The Protection of Wild Mammals (Scotland) Bill, which was to become the Protection of Wild Mammals Act, was passed by the Parliament on 13 February 2002. It received the Royal Assent, and thereby, in terms of section 28 (2) of the Scotland Act 1998, became an Act, on 15 March 2002. Section 12(2) of the Protection of Wild Mammals Act provides that the preceding sections are to come into force on such day as the Scottish Ministers may by order made by statutory instrument appoint. By the Protection of Wild Mammals (Scotland) Act 2002 (Commencement) Order 2002 ("the Commencement Order"), made by the Scottish Ministers in the exercise of these powers, the day appointed for the coming into force of the Protection of Wild Mammals Act was 1 August 2002.
[3] The long title of the Protection of Wild Mammals Act is: "An Act of the Scottish Parliament to protect wild mammals from being hunted with dogs; and for connected purposes." Section 1 of the Protection of Wild Mammals Act is in the following terms:
"1. Offences
(1) A person who deliberately hunts a wild mammal with a dog commits an offence.
(2) It is an offence for an owner or occupier of land knowingly to permit another person to enter or use it to commit an offence under subsection (1).
(3) It is an offence for an owner of, or person having responsibility for, a dog knowingly to permit another person to use it to commit an offence under subsection (1)."
Section 10 of the Act provides that: "wild mammal" -
"(a) includes a wild mammal which has escaped, or been released, from captivity, and any mammal which is living wild;
(b) does not include a rabbit;
(c) does not include a rodent;
and references to hunting with, or the use of, 'a dog' are to be interpreted as also applying to hunting with, or (as the case may be) the use of, two or more dogs."
[4] Sections 2 to 6 of the Protection of Wild Mammals Act make provision for exceptions, whereby a person using a dog in certain specified circumstances does not commit an offence. Section 6 empowers the Scottish Ministers to specify further excepted activities which will not constitute an offence under section 1(1). Section 7 confers powers of arrest, search and seizure without warrant upon a constable who suspects with reasonable cause that a person has committed or is committing an offence under the Act. Section 8(1) provides that a person guilty of an offence under the Act is liable on summary conviction to imprisonment for up to 6 months or a fine of up to level 5 on the standard scale or both. Section 9 empowers a court convicting a person under section 1 to make disqualification orders disqualifying that person from keeping a dog. Section 10 provides definitions of certain terms. Section 11 gives effect to consequential amendments. Section 12 gives the short title of the Act and provides for its commencement. The sections of the Act which follow section 1 are accordingly all ancillary to that section and the offences created by it.
[5] The Protection of Wild Mammals Act has the effect of prohibiting in Scotland (by rendering criminal) the activity of mounted fox-hunting in which the fox is pursued by hounds with the intention that the hounds kill the fox. I shall refer to this activity as "fox-hunting".
[6] The petitioners are Mr Jeremy Hagan Whaley and Mr Brian Leonard Friend. They are persons who have, in the past, and would wish, in the future, to engage in the activity of fox-hunting. Mr Whaley is the Master and Huntsman of the Berwickshire Hunt. Mr Friend described himself during his submissions as a follower on foot of that Hunt. His pedestrian status is, however, consequent upon injury and, he would hope, temporary. When he returns to fitness he would wish to resume mounted fox-hunting, to the extent that it is lawful to do so. The petitioners aver in the petition that they are associate members of the Union of Country Sports Workers (UCSW) and join with others of their community either to ride to hounds or follow the hounds on foot with the Berwickshire Hunt and other hunts. They aver that they follow the ancient cultural activity and lifestyle of hunting with hounds. The petitioners appeared in person. Both addressed me on their own behalf. Mr Friend spoke at the greater length. His submissions were adopted and briefly supplemented by Mr Whaley.
[7] The petitioners challenge the validity of section 1 of the Protection of Wild Mammals Act on the grounds that the offences thereby created (referred to in the petition as "the OFFENCES") are incompatible with Articles 8 to 11, 14, 17 and 53 of the European Convention on Human Rights ("the Convention"). They further claim, pursuant on section 58 (4) (a) of the Scotland Act 1998, that the offences created by section 1 conflict and do not comply with certain of the international obligations of the United Kingdom, as created by the following international instruments: the Rio Declaration on Environment and Development of 1992, the Rio Convention on Bio Diversity of 1992, the Final Act of the Helsinki Conference on Security and Cooperation in Europe of 1975, the United Nations International Covenant on Economic Social and Cultural Rights of 1966, the United Nations International Covenant on Civil and Political Rights with the Optional Protocol of 1966, and the Universal Declaration of Human Rights of 1948. In statement 5 of the petition there are set out the petitioners' grounds of challenge to the Protection of Wild Mammals Act. Statement 5 is the following terms:
"THE GROUNDS FOR THE CHALLENGE
a)The petitioners challenge the OFFENCES of the said ACT on the following grounds: pursuant to the Human Rights Act 1998 and the Scotland Act 1998 in that they:-
i)are 'incompatible' and have no 'legal competence' and unlawful under the Convention
ii)are 'incompatible' with UK 'international obligations'
iii)do not pursue a legitimate purpose
iv)are 'not necessary in a democratic society'
v)are 'discriminatory'
(b)Further, the inevitable consequence of the OFFENCES will be that wild mammals, and other creatures, will be killed by methods that invariably inflict more pain and suffering than hunting with hounds. In short when quarry is hunted by hounds it is either alive and free or dead, it is never wounded. No other form of killing can guarantee this except poison which is indiscriminate and environmentally unacceptable."
[8] The petition was served on the Lord Advocate. The Lord Advocate appeared as respondent, represented by counsel, Mr Moynihan QC and Mr Wolffe, and lodged Answers to the petition. It was explained by Mr Moynihan that the respondent appeared primarily as Lord Advocate in the public interest but also as one of the Scottish Ministers who had enacted the Commencement Order.
[9] The petition came before me for a first hearing, which took place over four days, from 14 to 17 January 2003. By agreement of the parties, that hearing proceeded by way of a debate on the relevancy of the petition. The primary motion on behalf of the respondent was to sustain plea in law 4 in the Answers and to dismiss the petition, which failing, to exclude from probation such subordinate parts of the petition as I should find to be irrelevant or lacking in specification. Neither the respondent's first plea, of no title and interest, nor his second plea, that the petition was incompetent, were argued as separate matters. It was submitted that I should not, in any event, make any interim order. The motion for petitioners was for a second hearing, as provided by Rule of Court 58.9 (2) (ix), in order to lead evidence in support of the propositions contained in the petition. The petitioners confirmed that they did not seek declarator ad interim at this stage.
[10] In the course of submissions I was reminded that the validity of the Protection of Wild Mammals Act has been previously considered by Lord Nimmo Smith in an application for judicial review, Trevor Adams and Others Petitioners (since reported as Adams v The Scottish Ministers 2003 SLT 366). The petition in Adams was dismissed after a first hearing before Lord Nimmo Smith. Lord Nimmo Smith's Opinion in Adams is dated 31 July 2002. I was advised that a reclaiming motion against Lord Nimmo Smith's decision is set down for a date in June 2003. As appears from Lord Nimmo Smith's Opinion, the grounds of the application in Adams were partly, but only partly, co-extensive with the grounds in the present petition. Reliance on Articles 8 and 14 was common to both petitions but this petition's reliance on Articles 9 to 11, 17 and 53 of the Convention and upon the international obligations was new. With one minor exception, counsel for the respondent urged me to follow Adams both as to reasoning and result insofar as Lord Nimmo Smith's decision dealt with grounds founded on in the present petition. It was not, however, contended that the decision in Adams operated to support a plea of res judicata in respect of any issue raised in the present petition.
The provisions referred to in the petition
[11] It is convenient at this stage to set out certain provisions of the statutes (other than the Protection of Wild Mammals Act) and the international instruments which are referred to and relied...
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