Falconry and the Hunting Act 2004: Flying Under the Radar

By JAMES S F HART

Introduction

The Hunting Act 2004 is littered with exemptions, these exemptions make what would be unlawful hunting become lawful hunting. Many in the industry would say that these exemptions are loopholes, abused by hunters so that they can continue their hunting as it would have been pre the Act. The most commonly used is that of trail hunting. However, it has to be made abundantly clear that trail hunting is not an exemption in law and relies on the premise that those who are trail hunting have laid a trail. In this article we explore the Falconry exemption, this exemption without a doubt is the most interesting and most outlandish of all the exemptions, simply because it seems to be so effortlessly easy to manipulate and mitigate oneself out of liability for illegal hunting. However, there is recognised case law which has opened up the falconry exemption and has shown us that there is a way to prosecute and convict those of abusing this exemption.

There is a clear list of exemptions written into the legislation, these are contained within Schedule 1 of the Hunting Act 2004.

These have been listed below:

1(1) Stalking and flushing out

2(1) Use of dogs below ground to protect birds for shooting

3 Rats

4 Rabbits

5 Retrieval of hares

6 Falconry

7(1) Recapture of wild mammal

8(1) Rescue of wild mammal

9(1) Research and observation

The Wording of Flushing a wild mammal from cover

For a person to use the falconry exemption they must satisfy the following conditions:

Flushing a wild mammal from cover is exempt hunting if undertaken-

1. For the purpose of enabling a bird of prey to hunt the wild mammal, and

2. On land which belongs to the hunter or which he has given permission to use for the purpose by the occupier or, in the case of unoccupied land, by a person to whom it belongs. Section 6(a) & (b) The Hunting Act 2004.

It is important to look at the wording of the falconry exemption as this has come into contention when establishing the acts of a defendant when the issue of unlawful and lawful hunting comes into play. For us to look deeper at the meaning of “From cover” we must look at the Section 1(1) of the Act (Stalking and flushing out).

The Stalking and flushing out exemption states:

1. Stalking a wild mammal or flushing it out of cover –

There are five conditions that must be satisfied for the person to use this exemption (We go into detail of these in the “cubbing report”).

As you can see there is a difference in wording between the two exemptions, namely “flushing it out of cover” and “flushing from cover”

The distinguishments and question one must ask is whether or not there is a difference in law between the wording of “Flushing it out of cover” and “Flushing from cover”? It would seem that there is not a difference between the two in law but a difference in material meaning in relation to the activities that would follow on from both.

In practice you could interpret “flushing it from cover” in relation to the Falconry exemption to mean, the action of causing a wild mammal to leave its cover without implying the prior stalking or pursing it. In other words, making the quarry bolt into the open, for the bird of prey to then kill. On the other hand, “Flushing a wild mammal out of cover” in relation to the Stalking and flushing out exemption to mean, the action of causing the wild mammal to leave its place of cover/ hiding and could suggest the prior active pursing or stalking of a wild mammal. The above are my own interpretations of terms, however, the meaning of “Flushing it from cover” has been defined by case law. Without further comment or case law making a distinguishment between the two meanings it would be safe to say that both mean the same in law.

The Falconry Exemption in practice

Up to 30 hunts have brought birds of prey as a way to circumvent the law.¹ The falconry exemption is often deployed during cubbing season due to the nature of cubbing. Huntsmen will deploy his hounds into a covert or fields, the field (Riders) will surround the covert or field continually saddle slapping (to scare any fox cubs/foxes to keep or go back into the covert). If the falconry exemption is being used the hunt will have a bird of prey on standby, the person hold the bird of prey will be often standing aimlessly outside the covert, the intention is not for the bird of prey to kill any bolting cub/foxes but as a way of using the exemption, whilst this is taking the place the hounds are training to find and kill any cub/foxes. If the hunt can show that they have a bird of prey present during a cubbing meet or a normal hunt then often this is enough to satisfy the exemption, one has to note that to prove a huntsman’s intention is an incredibly high bar.

As you can see from the picture above the bird of prey is present, being brought into an open field, the purpose of this is any bolting foxes will then be hunted by the bird of prey. It is important to note that it’s almost pointless to produce a bird of prey during the hunt, any bird of prey should be produced and used from the start of the hunt till it stops. If the Hunt produces the bird of prey halfway through the hunt it can be seen as a way of playing for cameras. Naively the hunts believe it is enough to simply produce a bird of prey, this is not a way to satisfy the exemption as the bird of prey should be present from the very start. Unfortunately, due to the high bar of intention that needs to be proved and the inconsistency of the Act hunts get away with simply producing a bird of prey for the cameras without ever having the intention of using the bird to hunt as prescribed by the Act and therefore satisfy the exemption. In addition, the falconry exemption does not have a two-dog limit like the flushing to guns exemption, in practice this means a full pack of hounds can legally be used to flush out a fox for a bird of prey to kill.

The picture above shows the bird of prey and its handler position themselves in the open filed ready for any bolting foxes. An important consideration to have in mind is the terrain in which the bird of prey is positioned and deployed; this will be addressed later in the article.

Those in the falconry community have said that they fear birds may be mistreated and their traditional branch of field sports targeted by animal rights protesters. Furthermore, the Hawk Board issued a statement saying, “Falconers and those involved in hunting should note that the governing bodies of both sports strongly advise against this practice as it could lead to both being brought into disrepute and have significant welfare risks.”² The Hawk board have also set out guidance as to how the welfare of bird of preys should be dealt with. It is important to note that no fox hunts are affiliated to the Hawk Board.

DEFRA has also made it clear that “Employing a bird of prey which does not ordinarily hunt that particular wild mammal (would be illegal), because, in our view, it suggests that the flushing was not for the purpose of enabling the bird of prey to hunt a mammal.” Furthermore, they go on to say that the falconry exemption allowed dogs to flush out would mammals for the bird of prey to hunt but not to “run after, chase or pursue the wild mammal after it has been flushed out. Nor does the exemption allow the dog(s) to kill the wild mammal.”³

Case analysis – R v ADAMS

The case of R v Adams is a momentous case in terms of fox hunts using the falconry exemption. George Adams was a professional Huntsman of the Fitzwilliam Fox Hunt Club. Mr Adams was charged with a single count contrary to section 1 of the Hunting Act 2004. He was convicted of unlawful hunting and went on to appeal his conviction at the Cambridge Crown Court. The case concerns events at the New Year’s Meet of the Fitzwilliam Hunt in 2016. Adams was using a pack of hounds that had pursued an identified fox which was chased out of a wood through a mixture of hedgerows, filed and covert and then ditches. Video evidence had been taken by a member of the Fitzwilliam hunt which had shown some of the hounds actively pursuing the identified fox across part of an open field and at other times seeming to follow the live scent of the fox. The fox which was being pursued had turned back and the hounds had killed it. Mr Adams asserted that he had only ever deployed his hounds to flush the fox from cover with a view to it being hunted by the bird of prey which was present at the scene and ready to hunt the fox if the opportunity arose.

It is important to remember that in the case of Director of Public Prosecutions v Wright [2010] in the Queens bench reports of that year, on page 224, in which the High Court had to consider the scope of which section 1 is applied. The court had concluded that the act of searching does not amount to hunting by definition.

“A person who leaves home on horseback or on foot intending to search for a fox may in a sense be going hunting but he or she is not at that moment hunting any wild mammal because no wild mammal has yet been found”

As such hunting can only occur when a person participates in the active pursuit of an identified quarry. In the material case (R v Adams) the fox is by definition intentional and is identified quarry. As such it can be established that at this point Mr Adams was hunting.

The case of Adams also deviated as the Court discussed whether or not “hunting” can extend to the direction of the hounds meaning if a huntsman is directing his hounds for example using sounds could this amount to hunting? The court found that this was not in fact needed in terms of judgement and found that it was sufficient to establish whether the defendant was merely participating or engaging in the pursuit.

The Court also had to take into consideration the issue of “exempt hunting”. The key exemption which is relevant to the material case is that of section 6 of Schedule 1 of the Act.

“Hunting is exempt if it is within a trial specified in schedule 1…” The key heading is that of “falconry” under section 6 of the schedule.

It was important for the court to consider the meaning of “flushing from cover”

“We read that flushing a wild mammal form cover is exempt hunting if undertaken (a) for the purposes of enabling a bird of prey to hunt a wild mammal and it goes on at (b) to refer to permission and ownership of land” it is unfortunate that there is currently not definition in law as to what “flushing from cover” means. And the Court had to establish very carefully how they are to interpret what it is to mean.

Turning to the meaning of “flushing”.

The Court broke down the two key words “flushing” and “cover”, firstly the meaning of “flushing”. Again, the Court took guidance from the case of DPP v Wright in that in the early stages of flushing from cover the foxes presence may be suspected but not known, the court found that this was pure speculation.⁴

When applying the test set out in Wright the court found that early flushing from cover is a precursor to hunting and it is not the same as hunting. In the material case in which the evidence was heard supported the view that “flushing from cover” may not in fact involve any active pursuit of the fox by dogs, because the court heard that the fox hears the hounds speaking and that the yapping to each other, effectively means that they sense a fox nearby, meaning it may be flushed from cover without ever having been seen by or actively pursued by the hounds. Having said that even though the presence of a fox is actually known, the question arises as to whether or not it’s actually hunted with dogs, that’s intentionally pursued with said dogs as opposed to being flushed from over by their presence elsewhere in cover, will depend on the facts.

The Court had also established that flushing is not the same as hunting, but the two actions can overlap, and do. The fox may well be flushed from cover without actually being hunted. Furthermore, it may be hunted without being flushed, these two actions overlap when the fox is directly and intentionally chased from cover, this would be when it is being flushed from cover and also being hunted. Break it down into this simple wording, pursued then Hunted. Flushing from cover is not illegal in itself by the Act, unless it amounts to hunting with dogs, Flushing which does amount to hunting with dogs is illegal unless it is exempt as set out in schedule 1 of the Act, it would only be legal if the hunting was done for a single defined purpose and that in the material case was hunting by a bird of prey.

Another among many considerations the court had to decide on was the phrase “flushed from cover” and its material activity meaning. Essentially what does this mean in the physical realm of the activity? The point of “flushing” in terms of the falconry exemption is to flush the fox into the open, not to chase it repeatedly around hedgerows or within and around cover. The Court had also made it clear that the flushing from cover will need to be “systematic” meaning that it should be flushing from one direction towards ground sufficiently open to allow a gangue opportunity for the permitted hunting to occur. Moreover, due to the nature of the hounds, another consideration was that the flushing was done in such a way that would avoid the fox being surrounded, attacked and killed whilst in cover. The Court established that “flushing” and “hunting” by dogs for their own sake will not be exempt hunting.

The Court then had to consider the meaning of “cover”. The court found that the meaning should not deviate from the ordinary meaning as founded by the English language. “cover” is to mean a place where the fox could remain unseen, meaning that is habitually out of sight.

The Court turned its attention to the hunting by bird of prey. In the material case, the bird used was a raptor. The method the raptor will use to kill is to land on the fox cling onto it with its talons, immobilising it before killing it or enabling it to be killed by others. For the exemption to be used and therefore for the hunting to be exempt the flushing from cover must be done so that the flushing is to a location in which the hunting by the bird of prey could be done effectively. Moreover, the flushing would need to enable the fox to be flushed into the open where it would be unable to transfer itself back into cover, around cover or go underground.

Location and terrain are incredibly important considerations when we look at this falconry exemption, one main reason is that it could make the difference between legal and illegal.

The Court helpfully set out three different factual scenarios to illustrate the way in which the above can be fulfilled.

1^st Situation

A small, isolated area of cover surrounded by a large area of open land. Once the fox has been flushed out of that small area of cover the statutory exemption would not permit the hunting with dogs through the open land. So far that the dogs deployed which have been a bred instant and training to hunt and kill there, there would clearly need to be a mechanism to retrain the dogs from chasing the fox down over open ground and killing it.

2^nd Situation

A large area of cover, like a forest, with a small clearing within it. The statutory exemption would not permit the hunting of a fox with dogs through that cover. Moreover, the deployment of a bird of prey would be completely impracticable, unless the fox by chance runs through a clearing. As such the deployment of sogs in those circumstances could not be described as “flushing from over with the view to hunting with a bird of prey”. The pursuit of the fox by the dogs through and around cover would be hunting with dogs and therefore not exempt.

3^rd Situation

A mixed area, (the material case). An area of fields and some areas of cover, including hedgerow, areas of corpse and a number of other geographical features. The exemption must presuppose that the terrain that is being used to hunt on is by principle suitable for a bird of prey to be deployed on. Otherwise, the purpose of the flushing cannot be said to be hunting of a fox with a bird of prey.

It is important to note for saboteurs and investigators that the fact that bird of prey could at some point be deployed, in addition to or instead of the dogs, will not excuse what would otherwise be hunting of a fox by dogs, if the premise was to be hunting using the dogs. This is key when we look at footage of certain hunts bringing a bird of prey out for the cameras, with no intention of using the bird of prey as it should be for the hunting to be exempt.

In the material case the terrain was mixed, it was an area which allowed for some opportunities to deploy the bird of prey. However, there was issues with certain obstacles such as a nearby aerodrome and many connected hedgerows linking to other areas of cover. In the material case the fox was surrounded and killed by the pack of hounds. The court found that it was not important to consider the matter of whether the flushing was simply inefficient and as such the flush had gone wrong, but that of whether or not the “flushing from cover from hunting by a bird of prey” was in fact the case. The court found that at least at some points the hunt was simply hunting with hounds.

As mentioned at the start of the article, Section 6 of Schedule 1 is different from the other exemptions in such a way that it does not make provisions for the control of the hounds nor does it make a statutory limitation on the number of hounds that can be used. Even though there is no statutory limitation on hounds and control of the hounds the Court had to consider this when making a judgment as to the intention of the hunt master. For example, if the hunt master was to deploy 12 hounds as opposed to 2 could it been seen that the master’s intention by taking 12 hounds was that there would be a better chance for a kill and that the hunting intended was to be undertaken by the bird of prey and not by the hounds.

Intention

The intention of the hunt master was of paramount importance in the material case. The Crown Prosecution Service offer guidance on the elements of intention in relation to Hunting offences. In terms of “no intent proven” successful prosecutions against such a defence are based upon proving that the actions of the defendant equated to encouraging his dogs to chase a wild mammal, this could be via means of using of hunting horn, or deliberately allowing the dogs to out of control when they realised that they were on the scent of a wild mammal.⁵

In terms of the statutory requirement which is that the prosecution must prove that the activity was hunting. First, it must be established that the activity was in fact hunting. To simplify this, consider the following, Was there an identified mammal? Was this identified mammal intentionally pursued? Furthermore, the terms “engage” or “participate” mean that one must have an active and direct part in the hunting of the mammal; this is distinct from observing. As such only members of the field who “engage” or “participate” would be liable, not those merely riding regardless of their knowledge; one must be “Actively involved in the intentional pursuit of the Identified mammal”.⁶ If the pursuit was intentional and there is an identified mammal then the hunting would be unlawful .

Statutory Defences

The mental element is that the defendant did not reasonably believe that it was exempt hunting, the burden is on the Crown to establish otherwise. Under Section 4 of the Hunting Act 2004 provides a statutory defence for a person charged with an offence under section 1 in which it is to be shown that they believed that the hunting was exempt.

The case of DPP v Wright had established that the burden of proof is on the Crown to prove that the appellant did not believe or did not believe reasonably that the hunting was exempt. The Court in the material case asked itself 3 questions.

1^st Question

• Did Mr Adams engage or participate in the intentional pursuit of a fox and were one or more dogs employed in that pursuit?

2^nd Question

• If the hunting at all stages exempt hunting, in the sense that it was no more than was necessary in fact to flush the fox from cover, with the purpose of enabling a bird of prey to hunt the mammal?

3^rd Question

• Are we sure that the defendant did not believe that the relevant element of hunting was exempt or, if he did that it was not reasonable to do so?

3^rd Question in the alternative

• Might the appellant have believed that every element of the hunting was exempt and, if he might have done, would that belief have been reasonable?

Having set out the questions the court needed to consider they then went on to establish how the facts of the material case tie into the set of questions. The basic facts of the material case have been set out at the start of the article; however, it is wise to lay out the principle findings of the court.

Principle findings

The Huntmaster gave a briefing for hunt members prior to the event and was the person who was responsible for addressing the field at the meet. The meet had in attendance around 50 riders. The hunt master was not identified in this case did not give any evidence. At the time of the event there were between 35 and 39 hounds they were under the direction of George Adams. Adams was the appellant in the case. The appellant was the only person to have a hunting horn and this was used for the purpose of communication with the hounds. He also used vocal commands, including active direction called “hunting the dogs”. The appellant worked alongside the two “whippers in” whose job it was to assist in the marshalling of the hounds. They all worked in tangent with the bird of prey handler, who was a skilled falconer. The falconer was using a quad bike and would drive one-handed, this was due to his left arm which was holding the golden eagle, which was named Irlam.

Irlam wears a helmet which would prevent him from seeing and, when It is slipped or removed by the falconer, the eagle would take off after the fleeing prey. The Court heard from the falconer that the way in which Irlam would kill or assist in the kill was by way of landing on the prey, hold the prey down using its claws and the falconer would kill the prey using a knife, the bird had done this with foxes at a rate of around eight or so per annum since 2004.

The hunt first made contact with a fox that was situated within a corpse bordering an airfield. The bird of prey could not have been deployed at this point as it was not permitted to fly within a set distance of an airfield. The fox escaped. The appellant then directed his hounds to flush out the fox at the south side of field D. Note that the Court had a plan of the fields to use as reference. The flushing took place in a northerly direction, with the aim of flushing the fox out into field D where the bird of prey was deployed in the south-western corner of the field, close to the corpse. This would have meant that the falconer would have been sitting on his quad bike in the south-western corner of field D, anticipating the fox bolting into the open field.

As the above process was being completed, nice saboteurs came into field D on foot approaching from the entrance which is two-thirds of the way northwards on the eastern edge of the field. This meant the fox broke from cover northwards up a riverbank, along the western edge of the field D, running beyond a line of vegetation which was separating the field from the riverbank. As the fox broke out of cover sounds from the horn and vocal sounds could be heard. The appellant asserts the sounds had not originated from him. It is noted that the saboteurs had with them a hunting horn, which is often used to confuse the hounds.

The fox was pursued by the hounds and it had been seen that the lead hounds were pursuing on sight as opposed to scent. The fox was chased up the riverbank and the falconer on his quad bike. The quad bike overtook the fox and went directly to the north-western corner of field. The fox then ran across the open field, running around 120 yards diagonally across the north-west corner of field D. The fox continued to be in full view of the lead hounds which were no more than several seconds behind it. The fox then ran into a hedgerow and was chased by the hounds along the hedgerow around the perimeter of the field until it was on the eastern side of the field heading south and back in the direction of the corpse. Close by was the whipper-in and two pedestrians. The fox then turns back north, by this time it had been overtaken by the lead dogs. As a result, in the north-east corner of field D the hounds attacked and killed the fox, close to the hedgerow in the corner of field D.

Agreed facts and Issues in dispute

The Crown conceded that the defendant has permission to be on the relevant land. In turn satisfying section 6 (b). The Crown invited the court to agree that the evidence shows that the actively went beyond that of section 6. As such the actively was purely allowing the hounds to hunt the fox to death. They also invited the court to conclude that the phrase “flushing out” does not properly describe the activity on the day.

The appellant stated in his evidence that the events on the day amounted to exempt hunting. It was asserted that the fox only left cover for a few seconds when it appears to be behind the falconer in the corner of the field. The appellant did not accept that he was aware that the fox had done so and asserted that he did not participate in nor engage in any intentional hunting of the fox with dogs other than what is prescribed within Schedule 1 of the Act. Furthermore, the appellant states that he reasonably believed that the hunting was exempt.

Central to the issues in the case and the findings of the court was that the huntsman has the complete ability to make key decisions as to how they should conduct the days’ hunt, furthermore, they have the ability to make decisions on how the hounds are bred, for what purpose they are bred. The huntsman also has the choice as to how many if any members of the field should participate in the flushing or in the pursuit. As discussed in my article “Unravelling the Hunt”, I make it clear that only those who are “Actively involved in the intentional pursuit of the Identified mammal” could be found guilty of an offence under the act, if they are not as stated above then they would not. It is not an offence under the Act to be a member of the field and observe the hunt.

It is also key to note that the Fitzwilliam hounds had been continually bred post the Act to hunt, chase and to kill foxes. As such the behaviours of the hounds would be as they were pre the ban.

Evidence of “cover”

In the material case the court found the term “cover” includes the copse which was known as the “poplars”, it was also decided that it includes the hedgerow and ditches around the field. However, it does not include the riverbank to the west of the field, this is due to the fact that foxes progress could be tracked through the gaps in the vegetation as it bolted north and where the fox was clearly visible to the chasing hounds on the river side of the vegetation and the filed side of the vegetation. This was denied in the case but was evidence via the footage supplied by the witnesses in the case. In addition, it was clear that the open field that the fox had ran into to the northern hedgerow, could not be seen as “cover”. It was abundantly obvious that the fox was hunted via sight.

Calling the hounds off

At no time had the hounds been called off when the hounds started to chase the fox, there was no communication between the huntsman and the field all of which could have and should have intervened. The appellant noted that there was nothing that could have been done to control the hounds as the fox was caught and mauled by them.

I find this argument weak; the intervening act should have been done at the start of the pursuit as soon as the appellant was aware that his hounds were chasing the fox. The huntsman should at all times be in a position in which they can recall the hounds and be in sufficient close control. The Court agrees with my interpretation in which they asserted that the death of fox demonstrated that the hounds were not under any meaningful control. From the start to end the end the appellant exerted no effective control over the hounds nor did he direct others to do so. The hounds acted as they should have in terms of the fact that they had been bred to kill.

Deployment of the bird of prey

The court had acknowledged that had there been opportunities for the bird of prey to have been deployed, notably when the fox had broken diagonally across the field, due to the hounds being out of control and chasing the fox up the riverbank and across the field that would have prevented the falconer from deploying the bird of prey. The blame for this was directed at the saboteurs, this was rejected by the court.

The key finding of the court and what best supports the building of cases against hunts who use the falconer exemption is that the courts concluded that the presence of the bird of prey, close by and ready to join the hunt if the fox went into open ground, makes no difference to the essential nature of what had occurred that day.

The Court concluded that the material case was not exempt hunting, and it was therefore hunting by dogs.

Might the appellant have believed that every element of the hunting was exempt and, if he might have done, would that belief have been reasonable?

The court had to consider whether they were sure that the defendant did not believe that the relevant element of hunting was exempt or, if he did, that it was not reasonable to do so?

This can be broken down into two sub-questions

1^st Question

• Whether the defendant believed or may have believed that the hunting was exempt?

2^nd Question

• Whether, if he did so, whether such a belief was reasonable.

The court considered that the defendant had given evidence and that he was of good character, as such it supported his credibility. Moreover, he is an experienced huntsman, attending meets once or twice a week for four months of every season.

The court stated that the defendant would have known that when he had no control over the hounds, for example when the fox had been seen by the riverbank, the defendant must have understood that he was not within the elements needed to assert that his hunting was exempt. The defendant had strongly argued that he had never seen the fox at any stage but the court was not convinced due to the positioning of the defendant having been positioned in an elevated position and his interest was on the lead dogs.

The court also found that the pursuit of the fox by uncontrolled hounds over open ground is in itself an offence. The presence of the bird provides no defence. This was due to the fact that the bird of prey was never in a position where it could have been deployed and it was at the time being driven by its handler, as the hounds hunted down the fox.

The court concluded by saying “We are sure that he did not believe that his actions were lawful. Nor that he could have ever reasonably have done so.”⁷

1. The Guardian, 2005, “An eagle on the arm, and the hunt is on”. ↩︎
2. Ibid. ↩︎
3. Ourdogs, “Gone to the birds – hunts prey for change” ↩︎
4. DPP v Wright [2010] ↩︎
5. CPS “The Hunting Act 2004, Updated: 20 August 2019, Legal guidance. ↩︎
6. Unravelling the Hunt, by James SF Hart ↩︎
7. R v Adams, appeal against conviction. Unreported, Cambridge Crown Court, 9^th May 2019 ↩︎

Credits

Main photo: Peterborough Telegraph / SWNS