Does the Hunting Act 2005 Really Ban Hunting?

A nice point, as the lawyers say: Having analysed the legal bafflegab, Professor Roger Scruton’s verdict is, No

THE Hunting Act criminalises something called ‘hunting with dogs’, but it does not define either the crucial word ‘hunting’ or the equally significant term ‘with’. Indeed, the Act shows, in its language, that it was written by people who neither know nor care what goes on in hunting. There is therefore a real question in my mind as to whether the Act has succeeded in banning anything that we actually do.

In English usage the verb ‘to hunt’ describes four quite different activities. Used intransitively, as in ‘Sarah hunts’, or ‘John hunts with the Old Berkshire’, it describes what we hunt followers do. We follow packs of hounds as they comb the open countryside in search of a scent.

Nothing in the Act can conceivably be understood as forbidding that activity, which is after all a favourite pursuit among members of the League Against Cruel Sports. Hunting, in this sense, involves no intention to kill or even to chase an animal, but only an intention to keep up with a pack of hounds.

The verb is also used with a direct object, in two ways. First it is used to describe what the huntsman does—as in ‘Albert hunts hounds’, or ‘Albert has hunted hounds all his life’. This describes a highly technical activity, which most of us know from observation and a few from direct experience. It consists of controlling hounds as they search for a scent, and ensuring that, when they are on the scent, they remain under control. It involves encouraging them when the scent is weak or failing, casting them when the scent expires, and also guiding them in much the way that you guide your dog when you take him for a walk in open country.

Nothing in the Act either refers to ‘hunting hounds’ or forbids it. The Act tells us that ‘a person commits an offence if he hunts a wild mammal with a dog, unless his hunting is exempt’. The crime requires the presence of three things: a person, a dog, and a wild mammal. It is therefore not committed by someone who is ‘hunting hounds’ in the normal understanding of that phrase, which requires a person, a pack and a piece of countryside, not a person, a dog and a wild mammal. There may be no such wild mammal, and in any case its presence or absence has no bearing on the activity.

There is another transitive use of the verb, however, which does correspond to the activity supposedly forbidden by the Act, and that is its use to describe what is done by the hounds, as when we describe a pack as ‘hunting a fox’, or ‘hunting a stag’. Strictly speaking, of course, hounds hunt ‘along a scent line’, which may or may not lead them to a fox or a hare or a stag. But, within the bounds of permitted usage, they can also be described as hunting the quarry itself.

Lastly there is a use of the verb with an indirect object, as when we describe a cat as ‘hunting for mice’. This too is something that may be done by packs of hounds, and indeed it is what they are doing most of the time when out hunting: they are hunting for a scent, which means they are attentively sniffing their way from covert to covert and from hedgerow to hedgerow, ready to give cry when the right kind of odour hits their noses.

Nothing in the Act forbids the third or fourth kinds of activity, since they are activities carried out by hounds and not by humans. It is a general assumption of English law that animals cannot be guilty of criminal offences, since they are incapable of the mens rea or guilty mind that makes an act into a crime.

It is true that in American usage the verb ‘to hunt’ is used transitively of humans in the same way that it is used of predator animals. Americans hunt deer, rabbits, raccoons and so on with guns. They go after their quarry as dogs or cats do, with the intention to kill. In English usage, however, this would not be called hunting, and in any case it was clearly not the intention of Parliament to forbid shooting in any of its normal forms.

What now of the huntsman who is ‘hunting hounds’ at a moment when the hounds themselves are hunting some forbidden quarry—a mouse, say. Interestingly the Act contains no definition of the mens rea required to establish guilt, but merely refers to an action—‘hunting a wild mammal with a dog’—that describes nothing that any of us, huntsman, whipper-in or follower, actually does.

In response to inquiries,

DEFRA has suggested that it is a defence to a charge under the Act that a huntsman was not intending to kill the quarry but merely wishing to chase it away. But that leaves us where we were, since how can a huntsman intend an action that is not his own but an action of his hounds? The best he can do is to encourage hounds to follow a scent. But that is scarcely the same as ‘hunting a wild mammal with a dog’—a description that suggests that you and the dog are both engaged in pursuing the quarry, he in order to sink in his teeth, and you in order to sink in teeth, or at any rate a weapon, of your own.

Someone might respond that these are just quibbles, and that the intention of the Act is entirely clear. But I do not think this is so. When a new crime is invented, especially when that crime is vindictively targeted, Parliament is under an obligation to be absolutely clear in describing both the crime itself and the mens rea needed to establish it.

Since it is my considered view that any rational being who actually knows what goes on when a pack of hounds is hunted could not conceivably regard this activity as a crime, then it is up to Parliament to tell me exactly what aspect has attracted its disapproval.

Not the killing of the quarry by hounds, since this is something that the law can neither punish nor prevent. Not the hunting of hounds by a huntsman, since that is not described or referred to in the Act. Not the following of the hounds by a field, which is the same activity whether the hounds are hunting a live quarry or a drag.

What the MPs intended to forbid was people pursuing a quarry, side by side with dogs, both aiming for a kill in a steam of murderous rage. This is what goes on, according to their story-book image of hunting.

But of course the story books are as ignorant as the MPs, and even if something occurs that might, to the uninstructed, look like the kind of sadistic scrum of which Parliament accuses us, the appearance is deceptive. For the mens rea that is implied in the first section of the Act—namely the intention to hunt a wild mammal with a dog (whatever ‘with’ might mean)—is absent.

The huntsman is trying to control the hounds and to ensure that they do nothing forbidden (ie forbidden by him—and who cares what is forbidden by Parliament, which has no jurisdiction over animals?); the followers are trying to keep up with the huntsman; the hounds are trying to catch the quarry. It is impossible, from these facts, to mount a proof that the huntsman or anybody else also intended the quarry to be killed. And even if the huntsman is happy for his hounds to kill their quarry, and does what he can to ensure that they use their skills to good effect in pursuing it, this still falls far short of anything that is implied in the Hunting Act.

Right up to the last moment, the huntsman might be on the side of the quarry, as the followers tend to be—helping the hounds to keep to the scent, but with no intention to kill. Only in one circumstance is the huntsman likely to have such an intention, and that is when digging out a fox that has gone to ground and shooting it, or when shooting a stag that has come to bay. But those activities are still permitted.

The plain fact of the matter is that the Act has made no attempt to understand the state of mind that is necessary for a huntsman to hunt hounds successfully. The huntsman’s interest must be focused intently and severely on the scent, and he must try to keep the noses of the hounds attached to it. The Act does not describe that activity as a crime, nor could it easily do so. At the far end of the scent-line there is, of course, the quarry. But the quarry may have no place in the huntsman’s thoughts until it finally comes in sight, and by then it is the pack, not the huntsman, that decides the quarry’s fate.

Somebody might reject all that I have said on the following grounds: hunting is justified by its supporters as a comparatively humane way of controlling quarry populations. How can it be such a thing, if the intention is not to kill? Should we not therefore assume that, whenever a pack of hounds is on to a scent and the huntsman is encouraging them, that the huntsman too is hunting, within the meaning of the Act?

My response is, No, you cannot make any such assumption. The ecological function of hunting is no part of the huntsman’s purpose: it arises ‘by an invisible hand’, in Adam Smith’s famous phrase, from an activity that has no such intention. You can understand the point from a parallel case. Children who play in dirty places strengthen their immune systems, and that justifies their playing in the dirt. But it is no part of their intention to build up their immune systems; they just enjoy playing in the dirt.

If we look at the Hunting Act with a critical eye, we can readily understand why it has succeeded in forbidding nothing. This is because it was framed by people who are so antagonistic to us that they refuse to employ our language. The phrase ‘hunting with dogs’ appeals to them, not because it has any precise meaning, but because it seems to cast what we do in a repugnant light. The word ‘hound’, to which so much poetry and history is attached, could never pass their lips, and an expression like ‘hunting hounds’ is an unutterable abomination.

Had they swallowed their prejudice so far as to describe what they are forbidding in the language hitherto used to permit it, acquainting themselves meanwhile with the literature and history of our unique way of life, they would have succeeded in turning us into criminals. But they would also have jeopardised their prejudice, and thereby lost the heart to proceed.

In the light of all that, it seems to me that we must try to test the law, and to see exactly how the courts might discern, in Parliament’s language, a clear specification of some action of which we are guilty when we hunt, and some state of mind that makes us so. Until somebody—whether a policeman or some nosy parker from the League—brings a prosecution we have no means of knowing whether what we do is forbidden or permitted.

We at Sunday Hill Farm have tried to interest the police in our mouse hunts, hoping to attract a criminal charge. But so far they have shown not the slightest interest in attending. I suppose the next stage is to invite the League. Meanwhile, however, we should all go on as before, some of us hunting hounds, others just hunting. For my belief is that everything we have done in the past is still permitted, and we shall not be breaking the law.