APPENDIX 8
LEGAL PROVISIONS RELEVANT TO THE SCOPE OF THE INQUIRY8.1 The topics dealt with by the Inquiry are the subject of a number of legislative provisions and, to a lesser extent, international conventions and European directives.
8.2 These may be separated out into six inter-related strands covering:
- Animal welfare and/or protection
- Pest control
- Food and public safety
- Trespass
- Game and shooting
- Environment and biodiversity.
8.3 The Protection of Animals Act 1911 provides the modern legal definition of cruelty to animals as the causing or permitting of unnecessary suffering to animals. It goes on to delineate a list of cruelty offences, including beating, kicking, torturing, terrifying, baiting and administering poison except for pest control or other good reason.
- the offences apply to domestic and captive animals or livestock only, and the Act is therefore only partially applicable to hunting with hounds or terrier work
- 'captive animals’ are defined as animals held in a permanent, not temporary, state of captivity.
8.4 An amendment to the Act in 1921, and later rulings, clarify the application of the law to captive animals released for hunting or coursing, permitting these activities, provided the animals are not mistreated while in captivity, nor released for hunting in an injured or exhausted state, and once released have a reasonable chance of escape.
8.5 The Abandonment of Animals Act 1960 makes it an offence to abandon animals in circumstances that might lead to unnecessary suffering.
8.6 The Wildlife and Countryside Act 1981 embodies a range of provisions that affect issues of animal welfare and protection. It
- makes the otter a protected animal and thereby indirectly restricts mink hunting in areas of otter habitation and prohibits their further pursuit if they take temporary refuge in an otter holt
- indirectly restricts all forms of hunting with dogs where they may disturb other protected animals (such as sand lizards and smooth snakes when in their hibernacula)
- prohibits the use of self–locking snares, bows, crossbows, explosives other than in firearm ammunition and live animals as a decoy for killing
- makes it an offence to take, or kill, certain mammals by use of a snare, and requires snares to be checked at least once a day
- prohibits the use of certain other methods of killing or taking a range of mammals, none of which figure in this Inquiry
- prohibits the release or escape of mink into the wild since they are not native to this country.
8.7 The Protection of Badgers Act 1992 consolidates legislation over the previous twenty year period intended to protect the badger. It prohibits their injuring, removal, or cruel treatment. The Act also makes it an offence to damage or interfere in any way with a badger sett with the limited exception of temporary stopping up in a specified manner for the purpose of fox hunting. An exception to the Act permits the removal or killing of badgers where it can be clearly shown that they are the cause of damage to property or as an act of mercy.
8.8 The Wild Mammals ( Protection) Act 1996 for the first time gave the generality of wild mammals protection under the law by making it an offence to carry out, or permit to be carried out, certain acts, namely, mutilating, kicking, beating, nailing or otherwise impaling, stabbing, burning, stoning, crushing, drowning, dragging, or asphyxiating with intent to inflict unnecessary suffering. The Act also introduces the words ‘with intent’ thereby introducing the possibility that the offences may be viewed more seriously than those set out in the 1911 Act. Exceptions to the Act are made to cover lawful trapping and hunting, provided the killing of any wild mammal during these activities is done in a ‘reasonably swift and humane manner’. It is thought that the Act has the overall effect of placing a higher burden on those carrying out all forms of hunting, in case any elements of a offence pursuant to the acts listed above may be present in their activities, and also to ensure a quick and humane dispatch of the quarry. An additional clause also provides an exception which permits the killing of the quarry by a dog, lawfully deployed for the purpose of the hunting.
8.9 The European Habitats Directive and Related Regulations
1994 ban various methods of killing or taking mountain hares, including
the use of gin traps, live
decoys , use of tape-recorders, electrical, stunning, or dazzling devices,
drugs, poisons, mirrors, crossbows, non-selective nets or traps, gas,
smoke and semi automatic and automatic weapons.
Pest control
8.10 The Agriculture Act 1947
- provides a mechanism whereby MAFF can serve notice to control certain pest species, including rabbits, hares, deer and foxes. Currently, a control notice exists on rabbits only
- permits the use of gassing foxes underground, although this method of control is no longer practised since the approval for Cymag ® was withdrawn.
8.11 The Pests Act 1954 restricts the use of spring traps to catch pest mammals to models approved by MAFF.
8.12 The Protection of Animals Act 1911 and other later measures have effectively limited the use of poisons against wild mammals to moles underground, squirrels in the context of forestry, rats and mice.
8.13 Licensing provisions exist to cover pest control measures that would otherwise be prohibited acts under the various animal protection statutes outlined elsewhere in this Appendix.
Food and public safety
8.14 The Food and Environmental Protection Act 1985
- sets up the mechanism by which the Pesticides Safety Directorate must approve pesticides for widespread use
- provides that future non-lethal methods of animal population control will also be regulated by this mechanism.
8.15 Firearms Act 1968 requires the holder and operator of rifles and shotguns to possess a certificate. For a rifle held for pest control, the holder must have written authority for at least one area of land. Many police authorities will inspect the land with public safety in mind before granting the licence.
Trespass
8.16 Certain aspects of the laws of trespass are relevant to the topics covered by this Inquiry:
- wild animals cannot trespass and so no liability arises between landowners for damage caused by, for example, deer or rabbits when passing back and forth over different properties
- a trespass on land is committed by sending or allowing dogs onto another’s land without permission . If a dog strays onto property and causes damage, the owner is theoretically liable
- hunting in fresh pursuit of deer, hare or fox with hounds or coursing in fresh pursuit of hare are exempt from the offence of trespassing for game, provided they started off on land where permission had been granted for the activity. They are not,however, exempt from the offence of civil trespass, which also extends to the hounds. Appropriate hunt officials may find themselves liable for the trespass of others following the hunt. This can be particularly relevant to hunting deer with dogs, when trespassing into, for example, a deer sanctuary may occur.
8.17 Legislation on this subject is relevant to the Inquiry insofar as the deer and the hare is concerned. It should be noted that deer are classified as wild animals and not game.
8.18 The Deer Act 1991- Section 1 requires the consent of the landowner or occupier to kill or pursue a deer, or to remove a carcass, although a person is not considered to have committed the offence if they believe that consent would have been granted.
- Section 2 prohibits killing wild-living deer during a close season.
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- Section 3 prohibits killing at night
- Section 4 prohibits killing, or harming deer by various methods except by shooting with a rifle, or hunting with dogs. It further prohibits shooting from a vehicle or using a vehicle to drive deer. The required firearm and ammunition are specified. Partial exceptions to this section are granted for deer on enclosed land, actions carried out with the authority of the occupier of the land, any requirement from MAFF under the Agricultural Act (1947), the prevention of suffering to an injured or diseases deer, and to allow landowners to kill deer where they are causing damage , if this is deemed necessary to prevent further damage.
- The purchase and sale of venison must be by a licensed game dealer and records of such purchases kept.
8.20 The Hare Act 1848 was intended to facilitate the killing of brown hares as a pest control measure by removing the requirement for game licences. The Ground Game Act 1880 extended the right to kill brown hare to tenants as a crop protection measure. In a reversal of intention The Hare Preservation Act 1892 prohibited the sale of hare during the breeding season, thereby lessening the economic attractions of killing them.
8.21 Other game legislation affecting hare:
- it is an offence to kill game by the use of firearms during the hours of darkness
- Sunday and Christmas Day hunting of hares is prohibited
- By exemption, a game licence is not required to hunt hares with hounds or beagles.
Environment and biodiversity
8.22 The purpose of this Convention, to which the UK is a signatory, is to provide a broad framework for conservation of fauna and flora within the countries of the Council of Europe.
8.23 Both the deer and the hare are amongst the species listed for protection in accordance with the following provisions:
- the maintenance or adaptation of their population to a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements and the needs of sub-species, varieties or forms at risk locally
- their exploitation to be regulated in order to keep the populations out of danger
- the prohibition of the use of all indiscriminate means of capture and killing and the use of all means capable of causing local disappearance, or serious disturbance, of their populations.
8.24 Exceptions to the application of these provisions are made, intended to protect flora and other fauna, damage to all forms of property, public health and safety, research and education. There is a standing committee, to which all signatories must report every two years full details of all exceptions that have been allowed.
EC Directive (92/43/EC – Habitats and Species Directive)
8.25 The Directive arose as a result of the need of the EC to implement the provisions of the Berne Convention and there is considerable overlap in the main provisions and details.
United Nations 1992 Convention on Biological Diversity
8.26 The Convention introduces a general requirement to manage all aspects of biodiversity in a sustainable manner. There is specific provision to ‘eradicate those alien species which threaten ecosystems, habitats or species’.
8.27 The UK’s ratification of the Conventions and any associated EC directives has some more general legal impact on the matters under discussion. An important principle established is that legislation should not only serve to protect endangered species and habitats but also to conserve the traditional and commonplace both in terms of animals and ecosystems generally. This may be seen as applying in varying degrees of relevance to such matters as:
- deer management schemes
- encouragement of brown hare populations where they are falling..
- land use that encourages the protection and promotion of such features as hedgerows, ponds, coppices and unfarmed pockets of land.
8.28 The UN Convention also urges signatories to ‘respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity’.
Agreements on International Humane Trapping Standards8.29 There are two relevant agreements which have predominantly similar terms: the Agreement on International Humane Trapping Standards between the European Community, Canada and the Russian Federation; and the International Agreement in the form of an Agreed Minute between the European Community and the United States of America on humane trapping standards (Standards for the humane trapping of specified terrestrial and semi-aquatic mammals).
8.30 Neither document affects the UK position at present but future developments could affect pest control methods involving trapping in the future.
8.31 In the first three of these international agreements, the power of national governments to make exceptions from protection provisions for species, even if perceived as pests nationally, is subsidiary to the obligation to maintain their favourable conservation status
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