ETHICS AND PROFESSIONAL LEGAL

PRACTICE

WORKSHOP 1

WORKSHOP ACTIVITY 1

Statutory Interpretation

The Hunting Act 2004

Set out below is an exercise based upon the Hunting Act 2004, extracts of which will
be given to you in the Workshop.

The Hunting Act came into force on 18 th February 2005, after a 7 year battle which
absorbed more than 700 hours of Parliamentary time. Indeed, despite only creating
a handful of new summary offences, it generated much bitterness and controversy
over this period.

Whilst this Act is a genuine statute, all these cases are fictitious. This is because
there has only been one appeal on the issues of statutory interpretation raised, and
this was to the High Court in 2009.

For the purpose of this exercise, you need to consider the following:

 Sections 1, 2, 4, 6 and 11 of the Act;

 Schedule 1 – Exempt Hunting – paragraphs 1 (Stalking and flushing out) and
6 (Falconry); and
 the (fictional) case extracts attached.

Read through the case extracts carefully and list examples of rules and aids of
statutory interpretation used by the Judges - you may use the table attached if
you wish.

572179823.docx 101 © The University of Law Limited

 Extracts from Case Reports

R v Monarch [2012] SC

LORD GORE

This is an appeal by the Crown against the acquittal of Mr Monarch in the High Court.
Mr Monarch was originally convicted by the Kendall Magistrates’ Court of an offence
under section 1 of the Hunting Act 2004.

He had allowed his two dogs to flush out a fox from cover and then chase it for
several minutes across the countryside near Underbarrow in the Lake District, before
shooting the fox as the dogs closed in.  This court takes judicial notice of his
argument that this was the first opportunity he had to shoot the fox cleanly and
without risk of the animal suffering a protracted death, or of the hounds being
endangered.

The magistrates’ decision to convict was reversed by the High Court, after the
Defence appealed by way of case stated. The prosecution have now appealed to
the Supreme Court on a point of law – whether a fox is being hunted from the
moment it breaks cover and the pursuit begins; or does it only become hunting when
the pursuit has been continuing for a certain length of time? If so, for how long? In
effect, when does ‘hunting for’ a fox, become ‘hunting’ under section 1.

We observe at the outset that the experience of this case has led us to the
conclusion that the relevant law is far from simple to interpret or to apply. The result
is an unhappy state of affairs which leaves all those involved in a position of
uncertainty.

Whilst we have considered the interpretation section, this does not provide an
answer. Indeed, we ask ourselves why the words ‘flushing’, ‘cover’ and ‘hunting’ are
not defined in the Act. Judges are, in effect, being asked to define these words
when, despite protracted debate, parliamentarians could not.

Section 11(2) provides some assistance. A person is to be regarded as hunting if

they and one or more dogs are involved in the pursuit of a wild mammal. There are
two possible interpretations of the word ‘pursuit’. The first is that the pursuit begins
from the moment the fox breaks cover. The second is that the pursuit does not begin
until the dogs actively begin to chase the fox. I favour the first viewpoint. The
responsibility then falls upon the huntsman to satisfy the fifth condition of ensuring
that the wild mammal is shot as soon as possible by a competent marksman and the
dogs are kept under sufficiently close control to allow this to happen.

The purpose of hunting legislation, mused Sir William Blackstone, in his 18 th century
Commentaries (1st Edn, vol 3, p 212-3, para 2), was to permit hunting of ‘ravenous
beasts of prey’ such as foxes ‘because the destroying of such creatures is profitable
to the public’. However, the 2004 Act aims to achieve this in as humane a way as
possible.

In my view, this can only be achieved if the huntsman is obliged to take reasonable
steps to shoot dead the fox, immediately upon the fox breaking cover. To allow a
© The University of Law Limited 102 572179823.docx
period of pursuit before such steps are to be taken, would lead to absurd discussions
as to how far the fox should be allowed to run, before such action is taken. As a
consequence, I allow the appeal.

LORD ASTON

My Lords, I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Gore. For the reasons he gives, I would also allow the
appeal.

LORD THROP

I have had the advantage of reading in advance the speech of Lord Gore with which I
wholly concur. Hunting is to be understood in its ordinary English meaning and the
‘Oxford English Dictionary’ defines ‘hunt’ as also including ‘to search’.

Accordingly, I would agree that a hunt takes place as soon as a person participates
in such an activity. Given this, the word ‘pursuit’ must be interpreted widely so that it
applies immediately the fox breaks cover. If you search for, chase or kill a wild
mammal with dogs you are in breach of the law, unless you can satisfy the conditions
for the exemptions.

Whilst I may speculate that a fox may suffer less if it is pursued with reasonably good
prospects of escape, than if it is subjected to the trauma of being flushed out with no
means of escape and then shot, this is not a matter for this court to rule upon.

I refer to the speech of my noble and learned friend, Lord Bingham, in the previous
case to come before the House in relation to this statute, R (on the application of
Countryside Alliance and others (Appellants)) v Her Majesty's Attorney General and
another (Respondents [2007]). My noble friend said, “… this appeal comes before
the House in its judicial capacity. Our task is to decide the legal issues which have to
be decided. We must perform that task without reference to whatever personal views
or sympathies individual members of the committee may entertain. These are
irrelevant to the legal judgment we are called upon to make.”

I agree. I must therefore restrain any love or otherwise that I have for field sports.

I allow the appeal.

LORD SHEARWOOD (IN DISSENT)

I concur with the speeches of my learned colleagues, but I raise an additional issue.
In particular, I refer to the comments made by the DEFRA Minister Alun Michael,
Hunting Bill Committee, 4th February 2003, as reported in Hansard:

“The intentions or actions of the hunter determine what is going on. Hunting has an
ordinary meaning: ‘to hunt’ is the intention to pursue a wild mammal. Without that
intent, a person is not hunting and is not covered by the offence”.

In this instance, once the huntsman became aware of the pursuit, he brought the
hounds under control as soon as reasonably possible and took reasonable steps to
shoot the fox. As a consequence, in my view, what has gone on before did not
572179823.docx 103 © The University of Law Limited
constitute ‘hunting’ because to do otherwise would lead to the conviction of those
who do not have any criminal intent. This would offend the presumption in this
regard.

This is given additional force by s.4 of the Hunting Act, the defence that a person
charged with the offence may escape prosecution if they can show that they
reasonably believed that the hunting was exempt. Whilst not directly applicable to the
appellant’s situation, it does show that the intention of the accused was important in
the minds of the legislators in passing the Act.

Accordingly, I dismiss the appeal.

LORD CARRUTHERS (IN DISSENT)

I refer to the speeches of my learned colleagues but I would disagree with the
majority.

It is autumn on the verdant heathlands of this great nation. Majestic mountains

glower in the mid-distance. A gentle waft of heather tickles the palate. Babbling
brooks of clear, cold water provide a gentle aural echo of the indescribable forces of
nature that scoured our fine peaks and valleys.

Flecks of red appear on the horizon; first muffled, then louder, yapping of proud
hounds. The majesty of the hunt is now upon us as the brave fox darts, weaves,
bucks. The timeless and heroic struggle of the huntsman and his game.

Somewhere many miles away, a sterile legislature is under pressure to consign these
noble sights, sounds and smells into history. In this house, we held firm, and the Bill
became law but with crucial and important exceptions to allow the spirit of country
pursuits to continue. There is some small concession in this hollow statute to the
perceived pain of the vermin, but we all know that this Act permits the hunt to go on.

Thus, my task is easy. I regret I am unable to agree that, on the central point in this
case, the law of hunting is as stated in the judgment of the majority. I would dismiss
the appeal.

© The University of Law Limited 104 572179823.docx

R v Higgins [2005] HC (QBD)

MELIA J

This is an appeal against conviction under section 1 of the Act. The defendant, Mr
Higgins, has argued that he did not commit an offence as the hunting was exempt
under paragraph 6 of Schedule 1, which relates to falconry. His justification is that
his dogs were being used to flush the fox from cover for the purpose of enabling his
eagle owl to hunt it. The dogs chased the fox from the wooded area into the
adjoining field. However, once the fox had run into the open, the bird was
immediately released, although it proved singularly unsuccessful in catching its prey.
Indeed, although eagle owls are capable of hunting mammals such as foxes, this
particular specimen showed no interest and merely soared into the air, before landing
on a nearby tree.

Nevertheless, I grant the appeal on the basis that paragraph 6 of Schedule 1 makes
no reference to the success or otherwise of the hunt and I can see no justification for
adding these words which do not form part of the ordinary meaning of the word.

In support of this view, I would refer to the Scott Henderson Committee (1951), which
was the first official public examination of the issue of hunting with hounds. Its
principal philosophy was that:

“Any field sport which has a reasonable measure of support and is a traditional
activity of the countryside, and which has some utilitarian value, should not be
interfered with except for some very good reason. Interference on the ground of
cruelty would be justified only if it was shown that the amount of suffering involved
was excessive or unreasonable”.

I would speculate that the mere presence of the Falconry Exemption to this Act,
would suggest that the legislators did not regard the use of birds of prey for hunting
to involve such cruelty. Accordingly, I allow the appeal.

MONTECUE J

I have had the advantage of reading in advance the judgment of Melia J, with which I
concur.

JEFFRIES J

For my own part, I cannot see any justification for the exemption of falconry. From a
moral perspective, is the death of a mammal likely to entail more suffering if inflicted
by a raptor or by a hound? Nevertheless, as it has been expressly included by
Parliament, I must interpret the Act accordingly. However, if the mischief which this
Act is designed to prevent is to be achieved, the exemptions must be enforced
appropriately.

Whilst I accept that any ambiguity is to be interpreted in favour of the citizen, such a
proposition requires that the exemption from criminal liability must be interpreted
liberally and I can see no justification for this. It is clear that when the Act is read as
a whole, the statutory intention is not simply to regulate hunting in an even-handed

572179823.docx 105 © The University of Law Limited

way, but to prohibit it, subject to exceptions. On this basis, the purpose of paragraph
6 is connected with the banning of hunting wild mammals with dogs, rather than in its
promotion in novel forms.

I dismiss the appeal.

R v Chamberlain [2007] HC (QBD)

FELSTEAD J

This case is an appeal by the prosecution against the acquittal of Mr Chamberlain for
an offence under section 1 of the Act. Mr Chamberlain was charged after being
found hunting with his eagles. In this case, it is accepted that there was a delay of
four minutes before the birds of prey were released.

I have considered this appeal and I grant it. The Hunting Act is really very
straightforward. The object of this legislation is to stop the cruelty of using dogs to
chase furry beasts around the countryside.

I would refer to the use of the word ‘falconry’ in the heading to the paragraph. In my
view, this may reasonably be taken to mean that the paragraph is about falconry.
More particularly, the effect of the paragraph heading is that the use of the dogs to
flush out the mammal is incidental to the use of birds of prey for hunting rather than
the other way around.

In this instance, the birds were not an essential aspect of the defendants’ activities.
The eagles were not released as soon as the fox had been flushed from cover and
there was a chase of the fox by the dogs for some four minutes, before the birds
were involved at all.

Accordingly, I allow the appeal.

PATTERSON J

I allow the appeal. The delay imposed upon the fox an unnecessarily protracted
terror. This instance cannot fall subject to the ‘falconry’ exemption. Not because of
the chicken-and-egg of which came first, the falcon or the dogs, but because the Act
was passed to rid our modern society of the barbaric protracted fright of the innocent
fox. Hunting and other blood sports are degrading, both for the hunter and the
hunted.

KLEIN J

I have read in advance the judgments of my learned friends, and concur with both. I
would allow the appeal.

© The University of Law Limited 106 572179823.docx

Review of Cases relating to The Hunting Act 2004

NOTE: You will need to retain this table for use in preparation for, and use during,
Workshop 2.

Authority Rules etc of interpretation used, Material facts / Ratio & Obiter
(e.g. statute, applying/distinguishing case
case name) You will be filling in this column
before and during Workshop 2.
Hunting Act Lord Gore
2004
Rv [& Lord
Monarch Aston]
[2012] SC

Lord Throp

Lord
Shearwood

572179823.docx 107 © The University of Law Limited

 Lord
Carruthers

R v Higgins Melia J
[2005] HC
[&
Montecue
J]

Jeffries J

© The University of Law Limited 108 572179823.docx

 Rv Felstead J
Chamber-
lain [2007] [& Klein J]
HC(QBD)

Patterson J

572179823.docx 109 © The University of Law Limited

This page is intentionally blank

© The University of Law Limited 1010 572179823.docx