Hunting Wild Mammals: The Hunting Act 2004

The former head of Britain's National Wildlife Crime Unit has said that illegal fox hunting continues with impunity, with the police and courts failing to tackle those involved in the crime.

The Hunting Act 2004 ("the Act") makes it an offence, with a few notable exceptions, for a person to:

• hunt wild mammals with a dog, unless that hunting is exempt (section 1 of the Act);
• knowingly permit land which belongs to him to be entered or used in the course of the commission of an offence under section 1 of the Act (section 3(1) of the Act); 
• knowingly permit a dog that belongs to him to be used in the course of the commission of an offence under section 1 of the Act (section 3(2) of the Act); 
• participate in a hare coursing event, attend a hare coursing event, knowingly facilitate a hare coursing event, or permit land belonging to him to be used for the purposes of a hare coursing event (section 5(1)(a-d) of the Act);
• enter a dog for a hare coursing event, permit a dog to be entered for a hare coursing event, or control or handle a dog in the course of or for the purposes of a hare coursing event (section 5(2)(a-c) of the Act).

The definition of hunting is given in section 11(2) of the Act, as follows:

• 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 person engages or participates in the pursuit of a wild mammal, and
• one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction).

For the purposes of the legislation land belongs to a person if he owns it, manages it or controls it. A dog belongs to a person if he owns it, is in charge of it or controls it.

Offences under the act are triable summarily and have a maximum penalty of a level 5 fine (unlimited).

Martin Sims, currently Director of Investigations for the League Against Cruel Sports, told the Guardian: "When you see stickers on hunt followers' cars - like 'Keep calm carry on hunting', 'Fuck the ban, fight the ban' - it's clear they've got no intention of stopping as the legislation currently stands."

Data provided by the League shows that by 2018 - the most recent year for which figures are available - 497 convictions had been obtained for all offences under the Act. A further 47 people have received cautions for hunting offences.

The Countryside Alliance, which campaigns in favour of hunting, denies that illegal hunting is so widespread. It points to the fact that since the commencement of the 2004 Act there have been fewer than 30 people associated with registered hunts convicted under the legislation. It should be noted, however, that prosecutions have arisen under alternative legislation, including the Animal Welfare Act 2006.

A spokesman for the Alliance questioned the validity of League Against Cruel Sports statistics and said its members regularly faced unfounded allegations of illegal hunting.

"If there is any evidence of illegal hunting activity then we would always expect it to be taken to the police to be investigated in the appropriate manner, rather than trying to create publicity through the media," he added.

Opposition politicians have been campaigning to strengthen the provisions of the Act. In its recent General Election manifesto, the Labour Party pledged to close "loopholes", toughen penalties and introduce a recklessness clause to the legislation.

Setting aside the issue of hare coursing for a moment, it has to be said that it is quite difficult to prove an offence under section 1 of the Act. It therefore follows that offences under sections 3(1) and 3(2), which can only come about in the presence of a section 1 offence, are even harder to prove.

Applying the definition of hunting given in section 11(2) of the Act, it can be observed that hunting is an intentional activity (e.g. the person is engaged or participating in it). A person is only guilty of hunting if the court is satisfied, beyond reasonable doubt, that they intended to hunt (non-exempted) wild mammals with a dog. This is why, no doubt, the Labour Party was mulling over the idea of a recklessness amendment.

It is a perfectly valid defence for a person to claim "my dog was out of sight when it took chase of a [insert name of non-exempt wild mammal], so I didn't realise it was happening". In the absence of evidence to the contrary the offence could not be proved in those circumstances, because the person is neither engaged or participating in the hunting of the non-exempt wild mammal.

The legislation, as currently formulated, is difficult to enforce as there are a myriad of perfectly valid and plausible defences. If the Government wishes to retain the Act and have it applied in the spirit as originally intended, it might be an appropriate time to take another look at the wording.

The court, remember, can only apply the legislation that is in force. Personal feelings and emotions should not feature.