Link to the Deadline 2000 submission concerning the European Convention on Human Rights

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2. Deadline 2000 has instructed counsel (including a member of the Bar with experience of legislative drafting) to speak to this paper at the seminar. But it will ensure that other representatives are present to assist the Inquiry with any non-legal issues concerning implementation that arise during the session.

3. Much of the ground covered by these topics has already been crossed by written and oral submissions made to earlier sessions of the Inquiry. To avoid repetition, this paper is kept as short as possible. Where appropriate, cross reference is made to earlier material, especially:

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General observations

4. The task of elected legislators is to decide what the law should be. The task of lawyers who formulate legislative proposals destined for the statute book is to ensure that the law as enacted reflects ­ with accuracy, clarity and certainty ­ the result that the legislature has decided to achieve.

5. Deadline 2000 favours legislation along the broad lines of Michael Foster MP's 1997 Bill as amended in Standing Committee: that is, a primary offence of intentionally hunting a wild mammal with a dog framed in plain and simple language, coupled with intentional "facilitating" offences, and subject to carefully drawn exceptions which strike a fair balance between animal welfare and other legitimate objects. The Bill introduced recently by Ken Livingstone MP was in similar terms. A comparable approach is found in the Bill introduced by Mike Watson MSP in the Scottish Parliament.

6. Some pieces of legislation are easier to draft than others. The view of Deadline 2000 is that none of the elements of the legislation necessary to implement a ban on hunting with dogs ­ the prohibited act, any exceptions, enforcement procedures, supplemental and consequential provisions ­ raises any great difficulty in drafting terms. A statute creating criminal offences of the kind which Deadline 2000 wishes to see enacted can readily be drafted so as to be readily comprehensible both by those whose activities are affected and by those ­ the police and courts ­ responsible for enforcement. No doubt each of the Bills we have mentioned is capable of refinement; indeed, later in this paper we raise proposals which differ in some respects from the Livingstone Bill. But we think the general approach taken by those Bills provides a sound basis for fresh draft legislation to implement a ban.

8. The Offensive Weapons Act 1996, for example, was enacted following growing public concern about violent incidents involving the use of certain kinds of knife, culminating in the murder of a London headmaster. Demands for legislation were initially resisted, partly on the ground that it would be difficult to find a satisfactory drafting solution to the ostensible problem that prohibiting the sale etc. of "combat" knives might also catch innocent types of knife or innocent uses of knives. Following initial legislative proposals by a private Member, the Parliamentary Counsel Office devised an ultimately simple and elegant drafting solution to the problem. So far as Deadline 2000 is aware, there has been no difficulty in enforcement or interpretation of the offences (and exceptions) created by the Act.

9. Much of the animal welfare legislation brought onto the statute book in recent years has addressed numerous moral or ethical issues, of no greater or lesser complexity than those hunting with dogs is said to present. Those opposed to prohibition of hunting with dogs do not suggest that as a result, the legislation necessarily fails adequately to implement the underlying policy. There is no assertion, for example, that the Wild Mammals Protection Act 1996 is insufficiently clear or certain simply because it had to deal with inherently difficult ethical issues such as cruelty. On the contrary, the Countryside Alliance apparently hold out the prohibition imposed by section 1 of that Act as a model of precision (CA Subs, para. 15.2). So far as hunting with dogs is concerned, Deadline 2000 and the Countryside Alliance differ over the particular drafting technique that would best bring certainty to the description of the prohibited act (see below). But the Countryside Alliance do not go so far ­ nor could they ­ as to argue that it is not possible to draft a sufficiently certain description. If the Alliance feel that the formulation we propose lacks certainty, no doubt they will offer an alternative.

10. Those supporting this submission include the RSPCA, which of course has considerable experience of enforcing animal welfare legislation. The Society's clear view is that the drafting approach Deadline 2000 proposes would result in clear, workable legislation.

11. The principal offence will be committed by a person who intentionally hunts a wild mammal with a dog.

12. The Parliamentary drafter who prepared the Government new clause which became clause 1 of the Foster Bill concluded that clarity and certainty were better served by relying on the natural and ordinary meaning of the simple verb "to hunt" than by an exhaustive list approach. We agree that an exhaustive list of activities offered as a definition of hunting may create, rather than avoid, doubt. There would inevitably be interminable argument that some species of hunting activity did not fall precisely within one of the listed verbs.

13. The simple "to hunt" has long featured in animal welfare legislation without causing difficulty (oral submissions by Rachel Newman on behalf of Deadline 2000 on 10 April 2000). We recognise, though, that it arguably harbours two areas of doubt which the legislation could usefully clarify. First, a pursuit (searching for or coursing a wild mammal) should sensibly be regarded as hunting even if it cannot be proved that the dog did, or was intended to, catch or kill the quarry. Second, the obverse situation ­ use of a dog to injure or kill a wild mammal without a pursuit first taking place ­ should also sensibly fall within the prohibition. The drafting solution is a simple, inclusive addition to the expression "to hunt".

14. The prosecution must prove each accused's intention beyond reasonable doubt. Nothing short of intention will do. Carelessness or recklessness is insufficient. As emphasised in previous submissions (IFAW Subs, q. 15, heading "A penal measure"), there is no prospect that a person whose dog, say, slips the leash and pursues a wild mammal could be convicted.

17. We think there is a strong case for a "going equipped" offence along the lines of section 1(1) of the Cockfighting Act 1952. That would be confined to possession of an instrument or appliance designed or adapted for use in connection with hunting a wild mammal with a dog and would require proof that the accused had it in his possession for that purpose. It would be particularly useful from a crime prevention standpoint in relation to terrier work: persons equipped with locators, for example, would be liable to have the items seized before a hunting offence is committed, and on conviction the items could be forfeited (see below).

18. The scope of particular exceptions is largely a question of policy rather than law or drafting. The views of Deadline 2000 on the content of appropriate exceptions are reflected in IFAW Subs q. 15 para. 8. We make the following general comments about the way in which the legislation ought to deal with exceptions.

20. Given the nature of the underlying issues, the judgment on the right balance to be struck between animal welfare and other considerations should be one for Parliament in primary legislation. It would be unsatisfactory for Ministers to be given a "Henry VIII" power to create additional exceptions by subordinate legislation, as was proposed by a Government new clause inserted into the Foster Bill in Committee.

21. Certain of the exceptions proposed by the original Foster Bill were criticised in Committee for failing to make clear where the burden of proof lay. We think that criticism was largely misplaced: the law generally recognises that the burden of proving a defence by way of "exception or proviso" to an offence rests with the accused. Unlike the prosecution, who must prove every ingredient of the offence itself (intentionally hunting a wild mammal with a dog, or knowingly permitting use of land to hunt, etc) beyond reasonable doubt, the defence burden is the lighter one of the balance of probabilities. The Foster Bill's exceptions would undoubtedly have been for the defence to establish to that standard. But we accept that there is a good argument from certainty to make that position clear on the face of the legislation.

22. The point has been made on all sides of the debate that the law must be made adequately enforceable. The powers contained in clause 7 of the Livingstone Bill follow a formula well-established in animal welfare legislation. In relation to the powers set out in subsections (2) and (3) of that clause, see in particular section 19(1) and (2) of the Wildlife and Countryside Act 1981. Such provisions are generally found to provide the police with adequate powers of investigation and detection while containing adequate definition of the scope of those powers, and the trigger conditions for their exercise, to provide the suspect with necessary safeguards.

23. The power of arrest proposed by clause 7(1) extended to a power to intervene to prevent an offence about to be committed. That mirrors the powers police officers have under existing common law to arrest so as to prevent a breach of the peace. That limited power of intervention is more than justified where legislation concerns offences likely to have irreversible effects (death or injury to an animal) if committed.

24. We would propose that the legislation should also contain provision mirroring section 19(3) of the Wildlife and Countryside Act 1981, which enables a magistrate to issue a warrant to a constable authorising entry to premises. This would be the only basis on which entry could be gained to a dwelling without the consent of the owner (since s. 19(2) properly excludes dwellings from the power to enter land without a warrant). It would also enable entry to non-residential premises where, for example, the police have been refused entry.

25. It has been suggested that an implementation problem weighing against introduction of a prohibition of hunting with dogs is the possibility that police resources might be insufficient to detect or prevent every instance of an offence: see CA Subs paras. 16.2-16.4 (and the response to part of the argument at IFAW Subs q. 16 heading "civil disobedience"). The police are not bound in law to investigate or seek to prevent every single offence or prospective offence brought to their attention. They may make rational priorities in allocating resources, and regularly do so in relation to all kinds of offences: see for example R. v. Chief Constable of Sussex, ex parte ITF [1998] 3 WLR 1260, HL. Likewise a prosecutor is bound before proceeding to consider both the adequacy of the evidence as to each ingredient of an offence (including the mental element) and whether in all the circumstances there is a sufficient public interest in a prosecution. These lawful practices in no sense undermine either the authority of the law or the underlying moral force of the case for legislating.

26. We consider that the provisions for trial and penalties should be in line with other contemporary animal welfare legislation: trial in the magistrates' court with power to impose up to 6 months' imprisonment and/or a fine of up to level 5, currently £5,000. These are maxima; they give the court ample flexibility to deal with the range of circumstances of offences and offenders. But it would be disproportionate to treat offences under the proposed legislation as so inherently serious as to justify the much heavier maximum penalties associated with offences triable on indictment (typically including a power for the Crown Court to impose an unlimited fine). We think the better method of avoiding serious recidivism is to enact powers of forfeiture and disqualification (IFAW Subs, q. 16, heading "Will the law be enforceable"). Those powers would also be in line with the provisions of comparable legislation and would contain appropriate supplementary provisions for appeals and so forth (RSPCA subs. q. 16, heading "sanctions").

27. Deadline 2000 has been satisfied throughout that none of the legislation it proposes would involve violation of any Convention right of those involved. We do not consider the Convention to require the legislation to provide for compensation to those whose activities would become unlawful.

28. That view is supported by counsel instructed to advise specifically on Convention issues. Their written opinion is expected in the next few days and will be submitted to the Inquiry as a supplementary document as soon as it is to hand.

29. Our position has been throughout that the legislation should come into force within a fixed, short period from the legislation receiving Royal Assent: IFAW subs, q. 16, para. 1. The legislation we propose would not involve the establishment of any new administrative machinery or the making of subordinate legislation, so there would be no justification for commencement by Ministerial order. We consider that the legislation should therefore include a provision in standard form for commencement two months after Royal Assent. The likelihood of a prohibition on hunting has been adequately trailed since before the last general election and certainly since the overwhelming Parliamentary support received by Michael Foster's Bill (IFAW Subs, q. 16, heading "Implementation").

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Date uploaded to website 10 May 2000