Archive for November, 2013

The request from the Federation of Welsh Farmers Packs (FWFP) to amend one aspect of the Hunting Act has clearly caused some degree of consternation within the League Against Cruel Sports (LACS), who have rushed out a report claiming such a change is unnecessary.

To understand the background to this situation, we have to ask why the relevant exemption was included in the legislation. This clause allows the flushing of a wild mammal out of cover for pest control reasons provided a number of conditions are met. One of those conditions is that no more than two dogs are used and another is that the animal is shot as soon as possible. Anti hunting members were in the majority in the committee stage and in the House of Commons during the passage of the Hunting Act and this clause was agreed by both anti and pro hunting sides. So it is fair to say that this form of control was acceptable to the LACS and the other anti hunting groups at the time.

The simple truth is, however, that in hill farming areas the restriction to using just two dogs doesn’t work, especially in vast areas of forestry. It prompts the question where did this magic number two come from? Was it suggested by veterinarians? Does it have some sort of basis in improving the welfare of the quarry animal? Well, the answer lies in the fact that two dogs do not constitute a ‘pack’ and it is the very idea that a pack of dogs might be used that offends the anti groups.

Gun pack 1Furthermore, the fact that the Scottish legislation, which was passed prior to the English and Welsh law and on which the LACS also advised, contains the same exemption but without the limit of two dogs. The resultant outcome obviously unsettled the LACS and others, who then had to prevent the same thing happening south of the border.  The disingenuous nature of the LACS’ position was exposed in a leaked internal memo shortly after the Hunting Act had been in force for only a few months, when the then Chief Executive, Douglas Batchelor said, “Pairs of dogs are utterly useless in flushing to guns.”

Now, after 8 years of operating under the Hunting Act, hill farmers, especially those living and working near large blocks of forestry,  have said what the LACS and everyone else already knew – that this exemption is flawed and requires amendment. To support their view, a scientific study was undertaken and the results have been published on the FWFP website:  http://fedwfp.co.uk/ Its conclusions confirm that the use of more than two dogs would mean that the ‘flush’ would be shorter. The research found that the period from the moment the chase was thought to begin within cover and before the quarry animal emerged, could be up to five times longer when only two hounds were used. Strangely, if it is the chase that offends the LACS and others, one might think that they would support such a move, but looking for logic or principle in the LACS’ position is a futile exercise.

Whether one dog is used or a hundred dogs are entered into cover, the dog or dogs must be used in such a way as to comply with that further condition, which is that the quarry animal must be shot. Amending the number of dogs would not allow hunting to be resumed as if the Hunting Act had not been passed. The ban on hunting remains and repeal or replacement of the Hunting Act will have to wait.

The LACS’ attempt to counter the basis for amending the Hunting Act is contained in the report oddly titled Response to Flushing Exemption Amend and, true to form, instead of addressing the detail of the FWFP study, LACS reacts in a way that it normally does in such situations – it raises the argument to the extreme and claims that this is the return of hunting ‘by the back door’.  The fact that they and others agreed to the principle behind the exemption in the first place appears to be forgotten, just as they have also done in directly contradicting their previous stance regarding fox control by saying that “Killing does not control fox numbers.” 

So let’s do to their report what they seem unable or unwilling to do to the FWFP report- that is properly analyse it.Gun pack 2

The first claim is that the fox population is stable. This assumption is based upon work undertaken by Professor Stephen Harris after the foot-and-mouth outbreak in 2001 and concluded that because hunting had been suspended during that year and there was no apparent rise in fox numbers, this meant that hunting was ineffective and insignificant. However, the method used in this study (faecal counts) is strongly criticised by many scientists and the study does not take into account any other method that may have been used to control foxes. One glaring omission is the fact that though hunting with hounds was suspended in 2001, this accounted for only a couple of months at the beginning and end of that year – hardly a long term study of the absence of hunting with hounds.

The second claim is that fox predation does not have a significant impact on farming incomes. The LACS admits that foxes do take lambs, but argues that the relatively few losses are insignificant compared to other factors, such as poor husbandry and harsh weather conditions. Yet, what is ignored here is that this scenario has to be seen against the backdrop of existing fox control incorporating a variety of methods.

The third claim is that killing does not control fox numbers and the thinking behind this view is that other foxes fill the vacant territories left by the culled foxes. Another study using the same doubtful faecal counting method found that, “culling undertaken by fox control societies, mounted hunts and rangers appeared to have no utilitarian value with respect to reducing fox numbers.”  This ignores the fact that such vacuums caused by localised culling only draw in foxes from neighbouring areas during the natural dispersal period i.e. autumn/winter and not from farther afield. Such immigration does not generally occur during early February through to late March, a period when there is no dispersal and when culling in livestock areas has most effect.

So, within a whole region there will be areas in which the numbers of culled foxes differ, but overall, with a variety of fox culling measures taking place, suppression of fox numbers can be achieved. It is this regional impact on fox numbers that hunts, of whatever kind, seek to achieve and because of they are community-based, they have the best opportunity to accomplish this.

The LACS report does not address the central point of the FWFP research. The exemption to which the League agreed during the passage of the Hunting Act does not work, yet while it admitted such privately, it argues against correcting it publicly.

The need for amending the flawed Hunting Act is crystal clear – as is the duplicitous nature of the League Against Cruel Sports’ case against it.

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As yet another RSPCA case against a hunt fails, solicitor Jamie Foster explains how this situation has occurred, how the ‘public interest’ test was ignored and how the tax payer will pick up the bill.

On 7 November 2013 during a hearing at the Cheltenham Magistrates Court the RSPCA dropped a prosecution they had been bringing against my client Will Goffe, the Huntsman of the Ledbury. Under normal circumstances this may not be big news. Prosecutors do from time to time drop prosecutions. This case, however, was rather special. It was the first hunting case that the League Against Cruel Sports had invited the RSPCA to prosecute on their behalf. Many people are not aware that the League was founded in 1924 by members of the RSPCA who broke away due to a dispute over hunting. Although recently the RSPCA has moved closer to the extreme Animal Rights position that the League has always inhabited, relations between the two charities were never warm.

The League initially began prosecuting hunting cases themselves but soon discovered that was a very expensive and difficult process for which they were not sufficiently skilled. They therefore continued to spend hundreds of thousands of pounds on investigating Hunting Act offences but then passed the results on to the CPS to consider prosecuting. The problem with this approach was that the CPS has to consider any case in light of the Code for Crown Prosecutors. This means they have to consider the quality of the evidence, to determine if there is a realistic prospect of success, and also to determine if bringing the case is in the public interest. As a result there have been a large number of League cases that didn’t make it to court at all due to the generally poor quality of the evidence. Of those League cases involving registered hunts that have made it to court the vast majority have ended in acquittal. As a result the League and their supporters began to believe that the CPS did not have their heart in the prosecutions. To be fair to the CPS this was not true, they had to work with the sub standard evidence that they were presented with, but the League and their supporters believed it to be true.

The League decided therefore to swallow their pride and take a case to the RSPCA. They believed this would make all the difference, and in a way it did. Had the League taken the Ledbury case to the CPS then a reviewing lawyer would have looked at the evidence and determined there was no realistic prospect of a successful conviction. The DVD evidence that had been obtained was not of sufficient quality for a court to be able to identify the Defendant, Will Goffe, or to be sure that a mammal was in fact pursued in breach of the law. Anyone applying the Code for Crown Prosecutors properly would have come to the conclusion that the case was dead in the water. The RSPCA, however, were undaunted. They therefore issued a summons against Will Goffe despite the lack of evidence against him. Having issued the summons they then took the DVD to a forensic expert who enhanced the footage in an attempt to be able to identify Will or the mammal they hoped was on the film. The enhanced footage was of no more use than the original footage.

The RSPCA have suggested that it was after consideration of the enhanced footage that they decided to drop the case. This statement is very hard to relate to the proceedings. The enhanced footage was available to the RSPCA before the first hearing in the case, and was disclosed to me prior to that hearing. During the hearing the solicitor acting on behalf of the RSPCA informed the court that the enhanced footage would lead to the conviction of Will Goffe. It was over a month later that they decided this was in fact not the case. Given that the sequence on the film that the case was based on was a matter of seconds in length it is hard to see how this volte face occurred.

In court we applied for costs against the RSPCA, on the basis that they had clearly wasted the courts time and Will Goffe’s resources bringing a case that had never altered up to the point that they finally decided they didn’t have a realistic prospect of success. The court took pity on the RSPCA and ordered that Will Goffe’s costs were to be met from the public purse. While it is very good that Will should not have to bear the cost of his defence, it is to be wondered whether the tax payer should bear the burden of the RSPCA’s decision to bring an extremely sub standard case to court.

In my view the time has come for us to consider why the RSPCA continues to be allowed to bring criminal cases. It does so under an ancient common law right that private citizens have to bring criminal cases. In reality however the RSPCA is not a private citizen. It is a phenomenally rich charity with an annual income of over £100 Million. It uses that income to act as a de facto state prosecutor in the area of animal welfare. It remains impossible to see how a campaigning charity is in a position to consider whether its own cases are in the public interest. The Ledbury case also shows how difficult it is for the Society to remain objective enough to even decide if their cases have enough evidence to succeed.

This is not a problem in Scotland, where the SSPCA passes all its cases to the Procurator Fiscal to decide whether or not to prosecute. There is no reason why the RSPCA should not pass their cases to the CPS in the same way. Until that happens the RSPCA will be able to continue to take up court time and waste defendants’ legal expenses with cases as weak as the one against Will Goffe. In an age of austerity, when the court service is already stretched to the limit, this cannot be acceptable.

Jamie Foster is a Partner in the solicitors firm of Clarke Willmott. He is a Solicitor-Advocate with Higher Rights of Audience in all courts. He specialises in regulatory law, advising and representing clients involved in environmental prosecutions, health and safety prosecutions and animal welfare cases.

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