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Archive for September, 2013

Another RSPCA case against a hunt official and another totally disproportionate cost to the charity as compared to the supposed animal welfare outcome. Despite extensive criticism of the RSPCA’s current direction and leaked internal concerns about funding and management problems, little seems to have changed. One has to seriously wonder about the thinking of those in the RSPCA prosecution department and the trustees who permit such actions.

Solicitor Jamie Foster explains.

On 12 September I attended court to represent David Parker, the Huntsman of the Seavington, who had the unenviable task of pleading guilty to a Hunting Act offence. David joins a very exclusive band of huntsmen from registered hunts to be convicted under a piece of legislation that Tony Blair described as a mistake. There have been seven huntsmen convicted to date who have not successfully appealed. David, as all of my huntsman clients have been, is a delightful man who has devoted his life to hunt service for very little financial reward. Oddly that was to help him in the proceedings.

The Hunting Act came into force in February 2005. It should have had time to bed in by now and ought to be a run of the mill offence. It is not for two reasons. Firstly it has almost entirely failed to generate proceedings against the people it was intended to target. Registered Hunts simply haven’t been prosecuted in significant numbers despite the efforts of the campaigning organisations who make it their life’s work to achieve this end. Of those who have been prosecuted an extraordinary percentage have been acquitted, which is no mean feat in the Magistrates Court I can tell you.

Secondly the way that the offence is approached by those who investigate it is unlike anything else currently happening in any area of law enforcement. David Parker’s offence provides a remarkable illustration of just how odd this approach is. A Hunting Act offence is a summary offence that can only be dealt with by way of a fine. It is a less serious offence than, say, speeding, as there is no danger of any person being harmed by its commission. In the moral pantheon of the Criminal Law it falls somewhere between dropping litter and not paying your TV licence. Despite this, last year, a large scale anti hunt covert surveillance operation was conducted in Dorset. Ex- policemen and covert operatives from the International Fund for Animal Welfare hid in bushes during the hunting season and captured thousands of hours of footage gained from monitoring the local hunts at a cost of hundreds of thousands of pounds. The total result of this operation was two minutes of footage of David Parker riding his horse across two fields. A fox had been seen on the DVD evidence that was obtained. Hounds were clearly pursuing the fox although they never got within sight of it. The fox escaped. David Parker, who was a couple of minutes behind the action, had to plead guilty because when he was shown by a foot follower which direction the fox went in he did not stop the hounds but, in a moment of madness blew his horn and encouraged them on. No fox was harmed in the making of the film that was presented to the court.

If IFAW, who captured the video, had done the right thing, they would have provided the evidence to the police to investigate and then respected whatever decision the Police made about whether and how to take action. I understand from the solicitor prosecuting David’s case that IFAW say they informed the police on the day of the offence, but it is clear that they took the decision that it would be more fruitful to provide the evidence to the RSPCA. It is often claimed by those opposed to Hunting that the police will not investigate Hunting Act offences. This is not true. The police have investigated hundreds of such offences and the CPS has brought the majority of the proceedings against registered hunts. The problem for the anti hunt campaigners is that the police will disclose the evidence that has been obtained to the suspect’s solicitor and, if the suspect admits the offence then it is likely they will offer him a police caution rather than prosecute him. A caution is not accompanied by the media fanfare and subsequent donation raising opportunities that a court case brings.

In David’s case the RSPCA refused to provide me with the evidence that they said would identify David as the Huntsman, which is something I have never experienced in all the police investigations I have been involved in. When they brought a prosecution against David they had to let me have this evidence, and, having seen it, David indicated that he would plead guilty. I then invited the RSPCA to issue a caution rather than prosecute. I am aware that the RSPCA often cautions suspects because, on the Cambridge branch of the RSPCA’s own website they advertise the fact that they issued 78.000 cautions and improvement notices in 2012. The RSPCA issue cautions for Animal Welfare offences which include occasions where animals have suffered. They will caution someone who leaves their dog in car on a hot summer’s day, for example. The RSPCA declined to caution David Parker. In court they said that they would not issue a caution for a Hunting Act offence where a mammal was not harmed and it was the first offence alleged against a huntsman. The RSPCA claimed this was in the public interest. It would appear that in fact this is another example of a campaigning charity prioritising its own private political interests in Criminal proceedings which, in my view, is inexcusable. Some may say, quite properly that my view ought not to hold much weight. We now know from a leaked RSPCA internal memo that my concern about overtly political prosecutions is also shared by the RSPCA’s own Deputy Chairman Paul Draycott.

So at a time of austerity the RSPCA used the public resources of a court to bring proceedings that the proper authorities are unlikely to have brought. In court the RSPCA asked for an order that David Parker should pay their costs of £4,783. While this falls far short of the nearly £330,000 they were looking for in the Heythrop case it remains a staggering sum when compared with the costs of a couple of hundred pounds that the CPS would have applied for under similar circumstances. In the end the court fined David £500 due to his limited means and awarded the RSPCA £500 of the costs that it had claimed. This means that the prosecution cost the RSPCA £4,283 and they are now creeping towards the half million pound mark in regard to costs that have not been recovered in prosecutions since the Heythrop case. This is not an insignificant amount of donated money that some feel could more properly have been used to help animals in need.

The court also ordered that David Parker pay a victim’s surcharge of £50. I hope that this sum makes its way eventually to the fox who will no doubt spend it on chicken. Overall the case again begs the question of how long it will be right to allow the RSPCA to subvert the criminal process for its own political ends, and in this regard only time will tell. The one thing IFAW’s covert surveillance operation proved beyond doubt is that almost no-one is breaching the Hunting Act, which is maybe one more reason for repealing it and saving the criminal justice system the burden of these rather unusual cases.

Jamie Foster is a senior partner in the solicitors firm of Clarke Willmott

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This post concerning an RSPCA internal document has been requested to be removed.
However, watch this space.

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If the RSPCA has had a difficult time recently, perhaps it shouldn’t be so much of a surprise when one considers the type of individual it has chosen to be its vice-presidents. Following the refusal of the Most Rev Justin Welby, Archbishop of Canterbury, to become a vice-patron, two vice-presidents, Brian May and Chris Packham, appear to be vying for the “Most Outrageous Comment” award.

Given that the four previous Archbishops of Canterbury agreed to become vice-patrons, the decision for Justin Welby must have been, at the very least, uncomfortable. Yet he might have given a sigh of relief when he saw what Brian May then said about those who dare to criticise the RSPCA, “Britain at this point either allows Cameron’s government to propel us back into the Dark Ages of barbarism, or we all stand up and cry “No!” No return to the despicable pursuits of the privileged few in the name of tradition, or hidden under the entirely bogus claim of ‘control’. May then goes on scaremongering about “ruthless toffs” threatening personal freedoms and compares critics of the RSPCA with child abusers attempting to curb the NSPCC!

Brian May correctly makes the link between founders of the RSPCA and NSPCC, but conveniently omits to say that one, Richard Martin, was a foxhunter.

Compounding that gaffe, May then refers to the badger cull as ‘genocide’, a comment that clearly upset sections of the Jewish community and probably many others too.

Such daft comments brought sharp rebuffs from various quarters of the media and countryside organisations, including a vegetarian columnist for the Observer newspaper telling him to shut up. Even the RSPCA distanced themselves from their own vice-president by saying his comments were his personal views.

Apparently OK to shoot

Apparently OK to shoot

Then Chris Packham gets in on the act and responds by giving his thoughts on the badger cull to curb bovine TB by saying, “That brutalist thugs, liars and frauds will destroy our wildlife and destroy our reputation as conservationists and animal lovers”.

Certain things become apparent when listening to these two, the first being that while they both agree in opposing the badger cull, they couldn’t be further apart on deer control. When May was exposed in the press in having deer culled on his land in Dorset, he said, “I put a stop to all culling on my land in 2011, as I felt the job of caretaking could be done better in other ways…Eventually, we will look at birth control in the herd, which I now know can be done by vaccination.”

Packham’s view?  “We have to play a proactive role and that means killing things. People come to shoot near where I live and they ask me where the deer are and I tell them ‘the deer are over there – go and blast’.”  I’ll bet he doesn’t say that too loudly at RSPCA meetings, but more importantly how can a major charity like the RSPCA retain credibility when two of its public figures are so at odds and make such outlandish comments?

Apparently not OK to shoot

Apparently not OK to shoot

Now the RSPCA has set up a ‘wounded badger’ hotline. Very commendable, as no one wants to see any animal injured in this way, but it does smack of hypocrisy when we recall that the same organisation, along with the League Against Cruel Sports and IFAW, claimed that shooting was the humane alternative to hunting with hounds. I don’t recall any ‘wounded foxes’ hotline being set up after the Hunting Act became law. Indeed, quite the opposite, when the RSPCA’s Director General at the time said, “There is not absolute proof that wounded foxes suffer.”

Apparently OK to wound

Apparently OK to wound

But there is another angle here and that’s how those inflammatory remarks are taken by certain individuals who are quite prepared to break the law through a variety of means, including intimidation and damage to property. The history of the Hunting Act and how it came about is littered with unsavoury illegal acts – and in a way it still is. Already a number of arson attacks have been claimed in the name of groups opposed to the badger cull and just this week four people have been arrested on suspicion of theft and aggravated trespass – one also arrested on suspicion of possession of an offensive weapon. It’s no coincidence that animal rights groups that had previously criticised the RSPCA for being concerned only about cats and dogs and too ‘establishment’, now sing its praises.

It is not only ridiculous to use outrageous language in the complex debates about hunting, wildlife management and wildlife disease control, but dangerous too. While I’m sure the Mays and Packhams of this world would not support such actions, their words may lead others to do so.

The trustees of the RSPCA would do well to remember that.

A version of this article first appeared in Countryman’s Weekly http://www.countrymansweekly.com/

                       

 

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The issues surrounding the badger cull in an attempt to curb bovine TB are undoubtedly complex. Scientific opinion is split, though perhaps not as starkly as some would have the public believe.

The campaign opposing the cull consists of a wide spectrum of different groups using different tactics to achieve their aim of preventing a cull. One of those methods is to organise ‘wounded badger’ patrols, which are supported by the RSPCA and IFAW, but this too is not simple.

It also begs the question, ” If shooting was regarded by the RSPCA and IFAW as the humane alternative to hunting in the campaign to pass the Hunting Act, why is it now inhumane for badgers?” No ‘wounded fox’ patrol was ever set up by the same groups.

Here Giles Bradshaw raises some pertinent points.

There’s been a lot of fuss on twitter recently about the possible use of dogs during the badger cull.  It seems at some point someone may have heard a dog barking and this has spiralled into lurid tales of badger cullers pursuing and killing their quarry with packs of hell hounds.

To be honest the more shrill and certain the claims that dogs have been used by the badger cullers become, the less I am inclined to believe them.  It’s worth pointing out that some of the people making those claims are the very same people who falsely claim that virtually everyone connected with hunting routinely breaks the law.

Defra did not help matters by appearing to claim initially that any use of dogs is illegal. At some point they may have realised that their own guidance [https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/200909/pb13922-shooting-guidance-20130517.pdf] for the controlled shooting of badgers specifically allows for the  use of dogs:

“The use of a trained dog to follow a scent trail, with the aim of locating (without physically coming into contact with) an injured badger, does not require a licence and can be carried out under an exemption provided in the Hunting Act 2004.”

They later clarified their position and have stated that:

“No dogs will not be used to hunt or pursue badgers. This is illegal.”  https://twitter.com/DefraGovUK/status/374973961660268545

However:

“dogs may be used but only to judge whether badgers are in the area. Not to hunt badgers. But to date none have been used.” https://twitter.com/DefraGovUK/status/374975241325666304

With regard to Defra’s claim that it is illegal to hunt a badger with a dog, in my opinion this is specifically contradicted by the Hunting Act.  The Hunting Act exempts certain forms of hunting.  If something isn’t hunting it does not require exemption.  Exempt hunting is legal hunting.  All the activities defined in the Hunting Act as exempt are also defined by it as hunting.  For example : “Stalking a wild mammal, or flushing it out of cover, is exempt hunting if …” , “The hunting of rats is exempt if …” and “The hunting of a wild mammal is exempt if..”

Moreover, as there is no doubt that dogs ARE in fact present at the badger cull, it is therefore vital for the people in control of them to understand exactly what they can and cannot do with them.  To this end I am outlining my understanding of exactly what forms of hunting they can and cannot engage in with their dogs.

It’s often claimed by those that champion it that the Hunting Act is a clear law so it should be easy to follow.  However I accept that I may not have got the law entirely right and I’d be most interested other people’s views.

Badger patrol 1We know dogs are present at the cull because some of the protesters have posted pictures of them.  I understand this is a bloodhound and a German Wirehaired Pointer, two very capable hunting hounds.

These dogs are on leashes and accompany people who are hunting for wounded badgers in order to retrieve them and relieve their suffering.  The dogs they have with them are highly likely to be far better at spotting and locating any badgers than they are due to their superior sense of smell.  It’s highly likely that if they come near to a badger the dog will pull their owner towards it and attempt to scent trail it.

This all looks very like the form of exempt hunting outlined in Defra’s best practice guidance, however there is one glaring problem.  This is that the Hunting Act’s exemption for the rescue of a wild mammal requires permission from the landowner.  All the land on which the protesters are operating is likely to be owned by someone, even if by the local authority, and it is unlikely in my view that the protesters will have sought or obtained permission to use their dogs to hunt for badgers.   This means that it is illegal under the Hunting Act for the protesters to engage in any activity that constitutes hunting with a dog – even such activities aimed solely at relieving the wounded badgers suffering.  Worse still, only two dogs can be deployed in such circumstances.

It would be no defence under the law to argue that such an activity prevented enormous suffering on the part of a wounded animal by enabling it to be found and taken to the RSPCA for treatment.

One has to ask whether even IF they managed to get permission from the council to hunt for badgers on roads and public land, whether any such hunting could be considered reasonable.  The chances of them actually being able to retrieve a badger and take it to a wildlife hospital seem remote.  The RSPCA have set up a badger hotline and special admissions system because they claimed they would be overwhelmed with wounded badgers – have they even received any?  I feel that if they had then we’d have heard all about it by now.

Another option might be for them to pretend that the dog on the end of the leash was no use in finding badgers.  To me this beggars belief – they have hunting hounds and any one that understands such creatures knows that in many crucial respects they will be more useful than them and they are bound to heed the obvious signals when their hounds sense a badger nearby wounded or not.

The protesters therefore need to understand exactly what is and is not hunting as defined by the law.badger patrol 2

This is where things get a little complicated because the law does not actually state what “hunting” is.  The normal recourse of the courts when a term is not defined is to resort to its ‘normal English meaning’.  When the Hunting Act was first passed Defra pointed out quite rightly that one of the common meanings of the law was to “search” and on this basis they notified the public that it was illegal to use a dog to search for a wild mammal.  They are quite right –  ‘to search for’ and ‘to hunt for’ something can be used interchangeably.

I’ve taken advice on this issue and have been told by a lawyer that in the first case bought under the Hunting Act the judges ruled that ‘searching for’ – or ‘hunting for’ a wild mammal was not in fact ‘hunting’ as defined by the law.

If “searching for” or ” hunting for” a mammal with a dog is not “hunting” it would clearly be ridiculous for finding it to be.  The entire aim of a search is to find and making it legal to search for something but illegal to find it would be completely preposterous.  This will be a great relief to the protesters and cullers alike as it means dogs can be used to hunt for and locate badgers which they believe to be wounded without having to comply with the conditions for exempt hunting (these being the need for permission , the limit on the number of dogs etc.).

Scent hounds search for wild mammals primarily by scent trailing them, sight hounds do so with vision.  It is precisely these attributes that make a hound useful in searching for and locating an animal.

Although the cullers are not apparently using dogs Defra have made it clear that they can providing their use is legal.  The culler’s situation is likely to be different to the protesters in that they are likely to have the permission of the landowner to actually hunt badgers (albeit in an exempt manner)

If the courts have ruled that merely searching for and locating a wild mammal does not constitute “hunting” as defined by the Act and as it is clear that there is a form of hunting an injured mammal that is exempt  from the law,  it’s perfectly reasonable to ask what this form of hunting actually is.  Does anybody even know?  Defra, having removed “searching” from their definition of “hunting”, came up with the following:

hunting should be understood in its ordinary English meaning, which includes chasing wild mammals,  or pursuing them with the intention of catching or killing them”

You can even see where they removed ‘searching’ from their definition – it’s the double space before the comma.

So what exactly can the form of hunting be that the exemption for rescue of a wounded wild mammal exempts?  It must surely be something above and beyond searching and locating which are apparently not hunting at all.  Is it one, some or all of the above activities – chasing, pursuing catching and or killing?  Or is there some other meaning of the word that no one has yet even thought of?

I don’t think this is a clear law at all and in fact I don’t think anyone in reality knows the answer to this question. I’d be extremely interested in people’s views on exactly what the Hunting Act does allow the protesters and cullers to do with dogs during the cull.

I ‘phoned the RSPCA and asked them about using dogs to search for wounded badgers and whether it came under the Hunting Act – their answer was fascinating : “We honestly don’t know”. I also ‘phoned the League Against Cruel Sports. I told them I wanted their position on this issue for this blog. As yet they have been unable to provide an answer.

The relevant sections of the Hunting Act are:

1 Hunting wild mammals with dogs

A person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt.

11 Interpretation

(2) 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)a person engages or participates in the pursuit of a wild mammal, and

(b)one or more dogs are employed in that pursuit (whether or not by him and whether or not under his control or direction).

SCHEDULE 1

Exempt Hunting

8

(1)The hunting of a wild mammal is exempt if the conditions in this paragraph are satisfied.

(2)The first condition is that the hunter reasonably believes that the wild mammal is or may be injured.

(3)The second condition is that the hunting is undertaken for the purpose of relieving the wild mammal’s suffering.

(4)The third condition is that the hunting does not involve the use of more than two dogs.

(5)The fourth condition is that the hunting does not involve the use of a dog below ground.

(6)The fifth condition is that the hunting takes place—

(a)on land which belongs to the hunter,

(b)on land 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, or

(c)with the authority of a constable.

(7)The sixth condition is that—

(a)reasonable steps are taken for the purpose of ensuring that as soon as possible after the wild mammal is found appropriate action (if any) is taken to relieve its suffering, and

(b)in particular, each dog used in the hunt is kept under sufficiently close control to ensure that it does not prevent or obstruct achievement of the objective in paragraph (a).

(8)The seventh condition is that the wild mammal was not harmed for the purpose of enabling it to be hunted in reliance upon this paragraph.

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